Partial constitutionality of the Public Employment Framework LawConstitucionalidad parcial de la Ley Marco de Empleo Público

**Sala Constitucional** **Resolution No. 17098 - 2021** **Resolution Date:** July 31, 2021 at 23:15 **Case File:** 21-011713-0007-CO **Drafted by:** Ana María Picado Brenes, Fernando Castillo Víquez **Type of Matter:** Optional legislative consultation **Constitutional Control:** Upholding judgment **Analyzed by:** SALA CONSTITUCIONAL **Judgment with Dissenting Vote** **Judgment with Separate Opinion** **Relevance Indicators** **Relevant Judgment** **Key Judgment** **Related Judgments** **Content of Interest:** **Content Type:** Majority Vote **Branch of Law:** 3. MATTERS OF CONSTITUTIONALITY CONTROL **Topic:** LABOR **Subtopics:** NOT APPLICABLE.

**Topic:** OPTIONAL LEGISLATIVE CONSULTATION **Subtopics:** NOT APPLICABLE.

017098-21. LABOR. OPTIONAL LEGISLATIVE CONSULTATION ON CONSTITUTIONALITY, REGARDING THE BILL ENTITLED "LEY MARCO DE EMPLEO PÚBLICO". LEGISLATIVE FILE No. 21.336.

CO10/21 RE/CO ... See more **Related Judgments** **Content of Interest:** **Content Type:** Majority Vote **Branch of Law:** 6. LEY DE LA JURISDICCIÓN CONSTITUCIONAL ANNOTATED WITH JURISPRUDENCE **Topic:** 101- Pronouncement of the Chamber **Subtopics:** NOT APPLICABLE.

ARTICLE 101 OF THE LEY DE LA JURISDICCIÓN CONSTITUCIONAL. “…Article 101 of the Ley de la Jurisdicción Constitucional establishes a one-month period to evacuate the optional constitutionality consultation starting from the receipt of the legislative files or their accumulation, except for causes of interruption…” CO10/21 ... See more **Content of Interest:** **Content Type:** Majority Vote **Branch of Law:** 6. LEY DE LA JURISDICCIÓN CONSTITUCIONAL ANNOTATED WITH JURISPRUDENCE **Topic:** 096- Legislative Consultation on Constitutionality **Subtopics:** NOT APPLICABLE.

ARTICLE 96, SUBSECTION C) OF THE LEY DE LA JURISDICCIÓN CONSTITUCIONAL. “…It is for this reason that the Sala Constitucional has established the receipt of the legislative file or the accumulation as the moment when the period begins; from those moments on, it is not possible to admit new consultations, whether from deputies or from other bodies external to Parliament. Secondly, it is clear that the Corte Suprema de Justicia is aware of this Court's position - it has been reiterated jurisprudence - therefore, and especially since the bill in its original and final versions were the subject of constitutional consultation to this branch of the State in accordance with numeral 167 of the Carta Fundamental, it is clear that the Corte Suprema de Justicia had sufficient time to make the consultation before the receipt of the legislative file or the accumulation of the consultations. Finally, if the start of the period defined by the Chamber were to be deferred due to new special optional constitutionality consultations by external bodies, the period could be extended by up to five months, all of which would entail not only a violation of numeral 101 of the Ley de la Jurisdicción Constitucional, but would also constitute an undue interference in the iter of the bill within the parliamentary procedure, with the aggravating factor that the political times and moments in the Asamblea Legislativa are changing and volatile, which could, in many cases, wreck the agreements reached in the Asamblea Legislativa. Hence, for the reasons noted above, the consultation presented by the Corte Suprema de Justicia is unevacuable due to being untimely…” CO10/21 ... See more **Content of Interest:** **Content Type:** Majority Vote **Branch of Law:** 6. LEY DE LA JURISDICCIÓN CONSTITUCIONAL ANNOTATED WITH JURISPRUDENCE **Topic:** 096- Legislative Consultation on Constitutionality **Subtopics:** NOT APPLICABLE.

ARTICLE 96 OF THE LEY DE LA JURISDICCIÓN CONSTITUCIONAL. “…In accordance with the provisions of the Ley de la Jurisdicción Constitucional, this Constitutional Court may exercise prior advisory opinion on legislative bills. Among the different types of constitutionality consultation, we find the optional consultation contemplated in subsection b) of Article 96 of the cited law, raised by deputies of the Asamblea Legislativa, with the requirements that will be stated. Furthermore, the optional consultation contemplated in subsection c) of Article 96 of the cited law, raised by the Corte Suprema de Justicia, in aspects related to its constitutional competence. In this case, we find three optional consultations presented by deputies and one consultation presented by the President of the Corte Suprema de Justicia…

CO10/21 ... See more **Content of Interest:** **Content Type:** Majority Vote **Branch of Law:** 6. LEY DE LA JURISDICCIÓN CONSTITUCIONAL ANNOTATED WITH JURISPRUDENCE **Topic:** 096- Legislative Consultation on Constitutionality **Subtopics:** NOT APPLICABLE.

ARTICLE 96, SUBSECTION B) OF THE LEY DE LA JURISDICCIÓN CONSTITUCIONAL. “…Partial withdrawals of signatures, made on June 30, presented by three deputies (Sylvia Patricia Villegas, Walter Muñoz, and Shirley Díaz Mejías) are not admitted, since, regardless of when they are made, partial withdrawals of a signature are inadmissible for this Chamber. When a consultation is signed, it is signed in its entirety, therefore, a partial signature or a partial withdrawal is not admitted, neither before nor after receipt of the legislative file…” “…In addition, the withdrawal of the signature of another deputy (Paola Valladares) due to being presented on July 7, subsequent to the submission of the legislative file, means that her withdrawal cannot be admitted, and that, therefore, this consultation maintains the signature of 10 deputies…” ARTICLE 96, SUBSECTION C) OF THE LEY DE LA JURISDICCIÓN CONSTITUCIONAL. “…it must be kept in mind that the Sala Constitucional has a period of one month set by law to evacuate the admitted consultation. In that sense, and so that the processing of the advisory opinion does not become an obstacle for Parliament to exercise its legislative power, this Court must establish a start moment for the period to have certainty as to which is the last day to evacuate it…” CO10/21 ... See more **Content of Interest:** **Content Type:** Majority Vote **Branch of Law:** 6. LEY DE LA JURISDICCIÓN CONSTITUCIONAL ANNOTATED WITH JURISPRUDENCE **Topic:** 034- Passive standing. Joinder of parties **Subtopics:** NOT APPLICABLE.

ARTICLES 34 AND 83 OF THE LEY DE LA JURISDICCIÓN CONSTITUCIONAL. “…Regarding all these submissions, with manifestations for and against the consulted bill, it is appropriate to note that active or passive joinder (litis consorcio) is not provided for in the legislative consultation mechanisms, in which there may exist simple opposing legal opinions about the constitutional regularity of a bill, which does proceed in amparo proceedings or actions of unconstitutionality - Articles 34 and 83 of the Ley de la Jurisdicción Constitucional; as this Chamber has indicated in previous cases, since the optional consultation of constitutionality of a bill is a proceeding where coadjuvancies are not admitted, neither for nor against the consulted bill, the denial of the processing of all these briefs is what proceeds…” CO10/21 ... See more **Content of Interest:** **Content Type:** Majority Vote **Branch of Law:** 1. CONSTITUCIÓN POLÍTICA WITH JURISPRUDENCE **Topic:** 121- Powers of the Asamblea Legislativa **Subtopics:** NOT APPLICABLE.

ARTICLE 121, SUBSECTION 22) OF THE CONSTITUCIÓN POLÍTICA. “…The issue of substantial defects in parliamentary procedure has been analyzed on several occasions by this Chamber. Constitutional jurisprudence has generally indicated that the internal regulatory power of the Asamblea Legislativa can be exercised freely and autonomously, as long as, of course, it does not contravene constitutional provisions, principles, or values. The power of Parliament to dictate the rules of its own internal governance (interna corporis) is not only provided for by the Constitución Política in its Article 121, subsection 22, but is consubstantial to the democratic system and specific to the Asamblea Legislativa as a constitutional power, pursuant to Title IX of the Carta Fundamental. This power is intrinsic to the Asamblea Legislativa, which develops it with absolute independence from the other organs of the State, by virtue of the principle established in Article 9 of the Carta Fundamental. However, like any power, its exercise is subject to limitations, which are: compliance with the Law of the Constitution, that is, the set of constitutional values, principles, and norms. In recognition of this “interna corporis,” this Chamber has recognized that its function in matters of legislative procedure is solely to declare those substantial defects that violate the constitutional principles and values applicable to the matter, because otherwise it would be affecting the self-regulatory and functional capacity of parliament (interna corporis), distorting its role as guardian of constitutional supremacy into that of a kind of ad hoc senate. Thus, only in the face of evident or gross violations of the constitutional principles governing parliamentary law would the intervention of this Constitutional Jurisdiction be legitimate….” “…In conclusion, from all the foregoing it follows that the power to make motions held by all deputies of the Asamblea Legislativa admits as its only limits those expressly stated in the Constitución Política, or in the Reglamento of the Asamblea Legislativa, provided they do not excessively restrict or affect the essential core of said power (the deputy's right of amendment). Therefore, it is possible for the president of the Asamblea Legislativa to proceed to accumulate motions, by means of a reasoned resolution…” CO10/21 ... See more **Content of Interest:** **Content Type:** Majority Vote **Branch of Law:** 1. CONSTITUCIÓN POLÍTICA WITH JURISPRUDENCE **Topic:** 188- Autonomous institutions **Subtopics:** NOT APPLICABLE.

ARTICLE 188 OF THE CONSTITUCIÓN POLÍTICA. “…Another issue that must necessarily be addressed, based on the fact that the Asamblea Legislativa, in exercising the power to legislate, has a constitutional competence to regulate the organization and functions of the branches of government and decentralized entities, not to suppress the self-organizational or self-regulatory autonomies - in the case of state universities - the political one - in the case of the municipalities and the CCSS - and the administrative one - in the case of autonomous institutions - is whether, regarding a typically administrative function - public employment (empleo público) - in relation to certain job positions directly linked to the exclusive and exclusionary competencies, it may or may not affect them, those derived from those degrees of independence, that is, positions related to competence in matters where there is exclusivity in their exercise, which must be defined exclusively and exclusionarily by the constitutional organs and entities with constitutionally assigned purposes and for which they are endowed with degrees of autonomy based on the constitution. This means that the legislator has a limit in the exercise of the power to legislate, because it cannot suppress them, or affect them, in their essential elements, nor transfer them to other entities or organs…” CO10/21 ... See more **Content of Interest:** **Content Type:** Majority Vote **Branch of Law:** 2. PRINCIPLES WITH JURISPRUDENCE **Topic:** Separation and coordination of state functions **Subtopics:** NOT APPLICABLE.

PRINCIPLE OF SEPARATION OF POWERS. “…According to the design of distribution of competencies, which responds to the principle of separation of powers and the degrees of autonomy, established by the original constituent in favor of the constitutional organs - branches of the State - and decentralized public entities by region - municipal corporations - and services - state universities and the CCSS - it is clear that the power of direction that corresponds to the Poder Ejecutivo or one of its organs - Mideplán - is incompatible with that constitutional principle and the degrees of autonomy enjoyed by certain entities. Stated another way, the power to issue directives (directrices) - special mandates that order the activity of an organ or entity by setting goals and objectives, but not a concrete act - is not constitutional when it affects or influences the exclusive and exclusionary competencies of the other branches of the State or the constitutionally assigned purposes of corporate-based or institutional entities that enjoy a degree of autonomy of three - self-organizational or normative - or two - political - or in those administrative activities necessary for the exercise of those competencies. Starting from this cardinal idea, it is clear that in matters of public employment, regarding the personnel of the branches of the State and the entities decentralized by region and service, those who exercise such competencies - jurisdictional, para-jurisdictional, electoral - or participate in the public management related to the constitutionally assigned purposes of the cited entities, as well as the administrative support, professional, or technical personnel, defined, exclusively and exclusionarily, by each branch and entity, cannot fall, under any circumstances, under the power of direction of the Poder Ejecutivo or Mideplán. There is, then, a hard core, a non-disposable element for the Poder Ejecutivo, which cannot be ordered in its activity, much less through the exercise of regulatory power, which corresponds exclusively to each branch of the State and each public entity…” CO10/21 ... See more **Content of Interest:** **Content Type:** Majority Vote **Branch of Law:** 1. CONSTITUCIÓN POLÍTICA WITH JURISPRUDENCE **Topic:** 191- Civil Service **Subtopics:** NOT APPLICABLE.

ARTICLE 191 OF THE CONSTITUCIÓN POLÍTICA. “…A civil service (servicio civil) regime is envisioned, not as a corporate privilege, but as a guarantee of institutional impartiality, which regulates public function, guarantees the selection of personnel based on criteria of merit and capability, as well as a fair balance between rights and responsibilities of public employees. It has also been indicated that such legislation must provide instruments that facilitate the planning, organization, and most efficient use of their personnel for the different administrations. Hence, the labor relationship of public employment is subject to certain specificities and principles, such as those of merit and capability in access, and also to certain rules of public law, such as the incompatibility regime, which guarantee objectivity and impartiality in the provision of the public service…Thus, the constitutional principles and norms governing the Civil Service extend to the public employment regime of administrative entities, because the intention of the constituent was to create an administrative labor regime, with its own principles, derived from the statutory nature of the relationship between public officials and the State, and although it was conceived in a general manner, Article 192 of the Constitution also foresaw the need to establish exceptions to that single regulation…” CO10/21 ... See more **Content of Interest:** **Content Type:** Majority Vote **Branch of Law:** 1. CONSTITUCIÓN POLÍTICA WITH JURISPRUDENCE **Topic:** 140- Duties and powers of the Poder Ejecutivo **Subtopics:** NOT APPLICABLE.

ARTICLE 140 OF THE CONSTITUCIÓN POLÍTICA. “…As can easily be deduced from what we have said, the intention of the original constituent was to subject all public employment relationships to a regime of administrative law - statutory - that is, no organ or entity of the Public Administration, central or decentralized, was exempted from this duty, hence, although special statutes may exist - specific to decentralized organs and entities - as long as they respond to the cardinal principles enshrined in the Carta Fundamental, it is also true that it is constitutionally valid to have a single statute that regulates the relations between the Public Administration, central and decentralized, and its employees. The foregoing means that the Asamblea Legislativa is enabled by the Law of the Constitution to establish a single statute that encompasses all public servants, with the exceptions that the Constitution - subsections 1 and 2 of Article 140 - and the cited statute determine, so that, on this point, the consulted bill is not contrary to the cited Law and, logically, always provided that the exclusive and exclusionary competencies corresponding to the branches of the State and decentralized entities are not suppressed, affected in their essence, or transferred to other organs and entities according to the principle of separation of powers or functions or the degree of autonomy, respectively…” CO10/21 ... See more **Content of Interest:** **Content Type:** Majority Vote **Branch of Law:** 2. PRINCIPLES WITH JURISPRUDENCE **Topic:** Independence of the judge **Subtopics:** NOT APPLICABLE.

JUDICIAL INDEPENDENCE. “…this Chamber has understood as valid and justified that the Poder Judicial has its own regulatory framework, which regulates specifically, particularly, and differently the employment relations between said Branch and its employees, this does not exclude the recognition that the Asamblea Legislativa is enabled by the Law of the Constitution - according to the intention of the original constituent, as developed in Consideration VIII of this vote - to establish a single statute that encompasses all public servants, including officials of the Poder Judicial, provided that such regulations, by their content or effects, do not suppress, affect in essence, nor imply transferring the exclusive and exclusionary competencies that correspond to the Poder Judicial to other organs and entities, in violation of the principle of separation of powers or functions and, very particularly, of the principle of judicial independence, as will be analyzed below, with respect to the different consulted norms…” “…In relation to Article 7, subsections d), g) and p) they are unconstitutional, because they affect the independence of the Poder Judicial and the Tribunal Supremo de Elecciones, insofar as it subjects them to the power of direction and regulatory power of Mideplán, as well as to the verification of whether or not they fulfill the task of performance evaluation (evaluación del desempeño) and are not excluded from the power of direction. It must be emphasized that the principle of separation of powers or functions is incompatible with the power of direction and regulation exercised by the Poder Ejecutivo, since it cannot order its activity, establishing goals and objectives. As regards performance evaluation, it is reserved to each branch of the State, since this matter is consubstantial to the exercise of its constitutional competencies. This means that, regarding this point, all the officials of each branch would be subject to the internal provisions that each of these issues in this respect…” CO10/21 ... See more **Content of Interest:** **Content Type:** Majority Vote **Branch of Law:** 1. CONSTITUCIÓN POLÍTICA WITH JURISPRUDENCE **Topic:** 154- Poder Judicial subject to the Constitución Política and the law **Subtopics:** NOT APPLICABLE.

ARTICLE 154 OF THE CONSTITUCIÓN POLÍTICA. “…Given that Article 154 of the Constitution itself subjects the Poder Judicial only to the Constitution and the law, but not to provisions of the Poder Ejecutivo. Note that these are positions of great importance as they would refer, at least, to those who make up the Consejo Superior of the Poder Judicial, and the heads of the Defensa Pública, Ministerio Público, and the Organismo de Investigación Judicial. Positions that are of great relevance, which must be particularly protected from interference by other Branches of the Republic, and that require the stability of personnel necessary for an adequate and impartial performance of the position, which is incompatible with a subordination to the provisions issued in this regard by Mideplán, as established by the norm in question. The Poder Judicial itself being competent in this respect, as this Chamber has previously indicated: “…be it the Régimen del Empleo Público, it is possible to conclude that the competent state organ in this matter is each branch of the Republic, given that these- Ejecutivo, Legislativo, Judicial, and Tribunal Supremo de Elecciones- are the most capable of determining their needs and knowing their particular conditions.” (judgment no. 03575-1996). Note that, in judgment no. 2018-019511, in which the legislative consultation regarding the bill "Ley de Fortalecimiento de las Finanzas Publicas" (legislative file no. 20.580) was heard, this Chamber concluded - after carrying out an interpretive task regarding the content of the bill - that, specifically, what was provided for in numbers 46, 47, and 49, concerning the “steering role (rectoría) of the public employment matter of Mideplán” and “the mandatory nature of the technical and methodological guidelines of the Dirección General del (sic) Servicio Civil”, did not apply to the Poder Judicial. An interpretation that was made, considering the principle of independence of the Poder Judicial. Therefore, it is considered that there is a defect of unconstitutionality in the consulted Article 17, in the terms set forth…” CO10/21 ... See more **Content of Interest:** **Content Type:** Majority Vote **Branch of Law:** 1. CONSTITUCIÓN POLÍTICA WITH JURISPRUDENCE **Topic:** 099- Tribunal Supremo de Elecciones **Subtopics:** NOT APPLICABLE.

ARTICLE 99 OF THE CONSTITUCIÓN POLÍTICA. “…Tribunal Supremo de Elecciones, as the constitutional organ responsible for organizing, directing, and supervising the independence of the suffrage, was granted the rank and independence proper to a branch of the State. Therefore, it enjoys full independence to fulfill its constitutional tasks. Due to the electoral problems that motivated the 1948 revolution, the members of the Asamblea Nacional Constituyente of 1949 took special care of the electoral matter, segregating everything related to suffrage, mainly from the sphere of the Branches of the State, shielding the electoral function through different principles and guarantees, such as, in the first place, the autonomy of the electoral function. From what has been said, it is clear that the Tribunal Supremo de Elecciones is a constitutional organ specialized in electoral matters, which by constitutional provision enjoys the same independence as the Branches of the State in the exercise of its powers; that is, it has full autonomy to organize, direct, and monitor electoral processes and all acts relating to suffrage, with the independence and rank proper to a state Branch. Thus, this Sala Constitucional concluded that “the electoral sphere is a special constitutional realm, to which the same rules that apply to the other Public Branches do not suit it” (judgment no. 2000-06326). Although it is true that the constitutional principles of the public employment regime (suitability and stability) also apply to it, it is understood that the TSE has its own organic or special rules that grant exclusive competence to its leaders to set the remuneration, representation expenses, and other inherent facilities of the positions, of its own members and subordinates...” CO10/21 ... See more **Content of Interest:** **Content Type:** Majority Vote **Branch of Law:** 1. CONSTITUCIÓN POLÍTICA WITH JURISPRUDENCE **Topic:** 009- Supreme Branches **Subtopics:** NOT APPLICABLE.

ARTICLE 9 OF THE CONSTITUCIÓN POLÍTICA. “…The independence of the branches is essential in a Constitutional State of Law. In accordance with such principle, each branch is independent of the other, each organ of the State must be able to exercise its function independently of the others (Art. 9 Constitutional). There may be interrelation between them, but never subordination. Furthermore, it is not only a matter of a violation of the principles of separation of functions, but of the entire democratic system and the organization of the Branches that the Constituent has created in our State of Law. In the specific case of the TSE, it is possible to replicate - as pertinent - the same conclusions already issued regarding the Poder Judicial. Although the fundamental principles of the public employment regime also apply to the TSE, the truth is that, to protect its independence, it must continue to have its own regulatory framework, which regulates specifically, particularly, and differently the employment relations with its employees and the evaluation of their performance (evaluación de su desempeño). The foregoing, in order to duly guarantee the independence of said organ, for the due exercise of its electoral function and those other essential administrative functions that support its primary function. Hence, it is unconstitutional to admit that the Poder Ejecutivo, through Mideplán, has steering (rectoría) competencies over the officials of the TSE…” CO10/21 ... See more **Content of Interest:** **Content Type:** Majority Vote **Branch of Law:** 1. CONSTITUCIÓN POLÍTICA WITH JURISPRUDENCE **Topic:** 084- University autonomy **Subtopics:** NOT APPLICABLE.

ARTICLE 84 OF THE CONSTITUCIÓN POLÍTICA. “…The Constitución Política provides that universities enjoy independence for the performance of their functions and full legal capacity to acquire rights and contract obligations, as well as to establish their own organization and government. The Chamber's jurisprudential line has been clear in establishing that public universities have the highest degree of autonomy, which is self-organizational autonomy (autonomía autoorganizativa) or full autonomy. This autonomy, which has been classified as special, is complete and, therefore, distinct from that of the rest of the decentralized entities in our legal system (regulated mainly in another part of the Political Charter: Articles 188 and 190), and means that they are outside the direction of the Poder Ejecutivo and its hierarchy, that they have all the administrative faculties and powers necessary to carry out the special purpose legitimately entrusted to them. They can self-determine, in the sense that they are enabled to establish their own plans, programs, budgets, internal organization, and structure their government. Furthermore, public universities have regulatory power (autonomous and of execution); they can self-structure, distribute their competencies within the internal scope of the entity, deconcentrate to the extent legally possible and lawful, regulate the service they provide, and decide freely on their personnel. All these are powers of the administrative, political, organizational, and financial modalities of the autonomy that corresponds to public universities. University autonomy has as its main purpose, to provide the entity with all the necessary legal conditions to carry out its mission of higher culture and education with independence…” CO10/21 ... See more **Content of Interest:** **Content Type:** Majority Vote **Branch of Law:** 1. CONSTITUCIÓN POLÍTICA WITH JURISPRUDENCE **Topic:** 073- Social security. Caja Costarricense de Seguro Social **Subtopics:** NOT APPLICABLE.

ARTICLE 73 OF THE CONSTITUCIÓN POLÍTICA. “…From the foregoing, it is derived that the Caja Costarricense de Seguro Social (CCSS), by constitutional provision (Art.73), enjoys administrative and governmental autonomy. Which means that, as a functionally decentralized entity, it can establish the rules for the selection of its personnel, it being valid in this case the existence of a special regulatory framework for its statutory relationship, which attends to and ensures its degree of autonomy. That degree of autonomy also allows it to self-administer (dispose of its human, material, and financial resources); establish its own internal organization; the setting of ends, goals, and types of means to achieve them; the issuance of autonomous service or activity regulations, in accordance with provisions normally called general policy. So then, as an autonomous institution of constitutional creation and with a higher degree of autonomy (administrative and governmental), it is allowed to be protected against interference from the Poder Ejecutivo and from limitations when legislating by the Poder Legislativo (which cannot modify its degree of autonomy via law). Thus, the Poder Ejecutivo cannot act as a director or in a hierarchical relationship vis-à-vis this institution, cannot impose guidelines, nor give orders, nor control the timeliness of its activities…” “…The Constituent itself established the existence of exceptions to that single regulation, precisely because what is not equal cannot be equated, nor can the scope of autonomy that certain institutions have be harmed, such as the CCSS, since these possess certain special characteristics that reasonably differentiate them from the rest of the administration, precisely to fulfill the purposes constitutionally entrusted to them…” CO10/21 See more Content of Interest:

Content type: Majority opinion Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 170- Municipal autonomy Subtopics:

NOT APPLICABLE.

ARTICLE 170 OF THE POLITICAL CONSTITUTION. "…Recall that municipal autonomy, contained in Article 170 of the Political Constitution, essentially originates from the representative character of being a local government (the country's only territorial decentralization), charged with administering local interests. The local government has the power of self-regulation (autonormación) and self-administration (autoadministración), meaning it can issue its own regulations to govern its internal organization and the services it provides, as well as its capacity to manage and promote local interests and services independently from the Executive Branch. It is clear, then, that the Executive Branch cannot act as a director or in a hierarchical relationship vis-à-vis the municipalities, and cannot impose guidelines, give orders, or control the timeliness of their activities. Therefore, Article 9 in question is unconstitutional for attempting to subject the human resources departments of local governments to applying and executing the provisions of general scope, the directives, and the regulations, regarding planning, work organization, employment management, performance management, compensation management, and labor relations management, that Mideplán sends to them…" CO10/21 ... See more Content of Interest:

Content type: Majority opinion Branch of Law: 2. PRINCIPLES WITH JURISPRUDENCE Topic: Conscientious Objection Subtopics:

NOT APPLICABLE.

CONSCIENTIOUS OBJECTION. On conscientious objection (objeción de conciencia). In a generic sense, conscientious objection refers to an institution of ancient date, which has appeared in society since remote times and involves the possibility of departing from a legal duty or mandate when these clash or conflict with the objector's convictions without liability being demanded. In other words, it could be considered a kind of resistance to the normative precept, insofar as it is based on the apparent conflict between the moral, religious, or justice obligations of the person and compliance with legal provisions. Conscientious objection is understood as an outward (ad extra) concretion of the right to freedom of conscience, which manifests as a limit on public powers so that they do not interfere with personal convictions…" "…Pursuant to the foregoing, it can be concluded that conscientious objection is understood as an outward (ad extra) concretion of the freedoms of conscience and religion, which manifests as a limit on public powers so that they do not interfere with personal convictions. Specifically, it refers to the possibility of departing from a legal duty or mandate when these clash or conflict with the objector's convictions without liability being demanded from said objector. For its part, freedom of thought and conscience stand as fundamental elements that shape the identity of believers and their conception of life, as well as for atheists, agnostics, skeptics, and the indifferent…" CO10/21 ... See more Content of Interest:

Content type: Majority opinion Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 062- Collective bargaining agreements (convenciones colectivas) Subtopics:

NOT APPLICABLE.

ARTICLE 62 OF THE POLITICAL CONSTITUTION. "…From the extensive jurisprudential compendium alluded to, it can be concluded that the right to collective bargaining (negociación colectiva) is a constitutional right recognized in Article 62 of our fundamental charter whose immediate purpose is the review, inter partes and with the character of law, of the minimum content of the legal benefits that govern labor relations, all with the aim of improving or surpassing that essential minimum. This Chamber has recognized that collective bargaining in the public sector can only be admitted for those workers who do not perform public management, employees of State companies or economic services, and those in charge of operations subject to common law. Regarding the content of collective bargaining in the public sector, it has been indicated that the parties can only validly agree on what they can legally fulfill, due to the contractual nature of the collective agreement (convenio colectivo), and it is admitted that its scope involves working or labor conditions, without this purpose being extendable to regulating extra-labor matters…" "...In the Public Administration, the authorization to negotiate collectively cannot be unrestricted, that is, comparable to the situation of any private employer, since existing laws, regulations, or governmental directives must be respected, as well as the legal competencies of public entities, attributed based on normative hierarchy or the special conditions of the Public Administration in relation to its workers. Thus, the obligations undertaken by public institutions and their employees can be subject to an analysis of reasonableness, economy, and efficiency, whether to prevent the rights of the workers themselves from being limited or harmed through a collective bargaining agreement, or to prevent the abusive use of public funds. The right to collective bargaining is subject to the jurisdictional control of the Chamber, since as indicated, it is subordinated to constitutional norms and principles…" "…b.- Transitory Provision XV referring to the denunciation of collective bargaining agreements (convenciones colectivas), is not unconstitutional provided it is interpreted in the same sense indicated in vote number 2018-019511 of 21:45 hours on November 23, 2018, that is, in application of the Political Constitution (Articles 62 and 74), the International Conventions of the International Labour Organization, and the jurisprudence of this Court, it shall be interpreted that each head of public entities has the power to denounce or not the respective collective bargaining agreement, in accordance with the current legal system…" CO10/21 ... See more Content of Interest:

Content type: Majority opinion Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 191- Civil Service Subtopics:

NOT APPLICABLE.

ARTICLES 191 AND 192 OF THE POLITICAL CONSTITUTION. "…Therefore, the temporary disqualification (inhabilitación) via administrative procedure of a public servant, to prevent them from accessing public positions, is a figure recognized by this Court, which allows officials who have breached their ethical and moral duties by misusing their position or State property, to not be appointed again for a defined period, in order to guarantee the principles of administration efficiency (eficiencia) and proven suitability (idoneidad comprobada). This principle of suitability must not be understood solely as the verification of academic, physical, or experience aptitudes, but it extends, additionally, to a series of ethical, moral, and even psychological elements, which are part of that suitability required for the exercise of public office, hence it results in an adequate means to the constitutional purposes embodied in Articles 191 and 192 of our fundamental charter. In accordance with the foregoing, the disqualification provides for the temporary unsuitability of former officials for a public position, in the case of having been dismissed without employer liability, thereby seeking -as stated supra- to guarantee that the provision of public services conforms to the principles of proven suitability and efficiency in public function (Articles 191 and 192 of the Political Constitution)…" CO10/21 ... See more Content of Interest:

Content type: Majority opinion Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 057- Minimum wage Subtopics:

NOT APPLICABLE.

ARTICLE 57 OF THE POLITICAL CONSTITUTION. ON GLOBAL SALARY. "…The jurisprudential line of the Chamber has been clear, in the sense of recognizing that the indiscriminate equalization of remuneration among members of the public powers is not possible, because imposing equal treatment on situations or officials who are objectively in unequal circumstances would violate, in general, the principle of equality and specifically in matters of salaries and working conditions, Article 57 of the Constitution…" "…The point is to determine whether this differentiation of treatment is founded on constitutionally legitimate purposes, whether it is objective, that is, whether it is supported by a different factual premise, whether it is based on relevant differences (tertium comparationis), whether there is proportionality between the constitutional purpose and the differentiated treatment applied, and the motive and content of the act, and, whether that treatment is suitable for achieving the pursued purpose…" "…In the first assumption, the difference in treatment must be based on constitutionally legitimate objectives, which entails three consequences for the pursued purpose. Firstly, laws cannot pursue purposes that contradict the Law of the Constitution or the norms found in international Human Rights instruments. Secondly, when pursuing purposes not constitutionally protected, but which do not contradict its values and principles, the differentiation of treatment must be strictly monitored in relation to the factual premises that justify it and the purpose it pursues. Lastly, when a constitutionally protected purpose is pursued, the differentiation of treatment will be valid provided it respects the criteria of reasonableness, proportionality, and necessity…" "…Finally, it must be emphasized that compliance with the principle of financial or budgetary balance in this case is an objective and reasonable justification for concluding that the transitional regulation conforms to the Law of the Constitution, especially considering the severely deteriorated fiscal situation of the central Government, which endangers the viability of the Social State of Law and the Costa Rican economy as a whole. In this direction, in advisory opinion No. 2018-18505…" "…For the foregoing reasons, it is concluded, by majority, that Transitory Provisions XI and XII do not violate the principle of equality -equal pay for equal work under identical conditions of efficiency-, nor that of legality, and, consequently, they are not unconstitutional…" CO10/21 ... See more Content of Interest:

Content type: Majority opinion Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 192- Suitability. Appointment of public servants Subtopics:

NOT APPLICABLE.

ARTICLE 192 OF THE POLITICAL CONSTITUTION. "…As such, and as this Court has reiterated, the Constituent Power itself foresaw that not all State servants could be covered by the special regime, since the method of selection, the special capabilities, the functions of each position, and the relationships of trust and dependence are not the same in all cases, hence the principles derived from Article 192 are applicable to the majority of State workers, but not to all. From this perspective, contrary to what the petitioners affirmed, it is possible to establish exceptions to the scope of application of the civil service regime or statute; an exclusion that cannot be arbitrary and must be duly justified. That said, it is observed that the petitioners question this provision -Article 3 of the bill under study- pointing out, solely, that the mere criterion of competitiveness is insufficient to grant them differentiated treatment, since they are equally public officials who manage public funds and, as they themselves recognize, these are public companies and institutions that are under a competition regime; that is, they are not under equal conditions as the other State institutions, as inferred from Articles 3, 111, and 112 of the General Law of Public Administration, when referring to the workers of this type of state companies, they are governed by private law. To understand the scope of the exclusions in Article 3 of reference, a conceptual differentiation must be made between what subsection a) stipulates, which are the non-state public entities (entes públicos no estatales), and what subsection b) covers, which refers to public companies and institutions under competition, the latter being those regarding which the petitioning legislators raise their questioning since, as noted supra, they consider that the mere criterion of competitiveness is insufficient to grant them differentiated treatment because they are still public officials who manage public funds. Those that are primarily excluded according to the cited Article 3 of the bill under study are the non-state public entities. These entities have a different legal nature from the rest of the State institutions. According to doctrine, they have been conceived as corporate-based organizations, constituted through an agreement or a law, which group private interests that are relevant to the State, funded by the contributions of their members and by parafiscal contributions, other direct contributions, and, to a lesser extent, by the State. Therefore, their legal regime is predominantly private, although they are subject to the administrative legality framework regarding the exercise of sovereign powers exerted by legal delegation. Consequently, non-state public entities technically do not belong to the State, but rather exceptionally exercise administrative functions, through which they issue administrative acts and are considered part of the Public Administration. Outside of those sovereign powers, they relate to other subjects based on the principle of freedom of contract (autonomía de la voluntad) governed by private law; hence, their labor relations have been considered under private law, and for that reason, they are also reasonably excepted from the public employment regime intended by the Legislative Assembly. Such would be the example of professional associations (colegios profesionales), defined as non-state public entities, and whose workers are governed by private law…" CO10/21 ... See more Content of Interest:

Content type: Dissenting vote Branch of Law: 3. MATTERS OF CONSTITUTIONALITY CONTROL Topic: LABOR Subtopics:

NOT APPLICABLE.

DISSENTING VOTES AND NOTES OF JUSTICE FERNANDO CASTILLO VÍQUEZ On the admissibility of the consultations:

• 1)By unanimity, the consultation filed under case file No. 21-011713-0007-CO is admitted. Justices Castillo Víquez, Salazar Alvarado, and Justice Garro Vargas record separate notes. Justice Rueda Leal gives different reasons regarding the admissibility of this Consultation.
• 2)By majority, the consultation filed under case file No. 21-012118-0007-CO is admitted. Justice Salazar Alvarado records a note. Justices Castillo Víquez and Rueda Leal dissent and declare the consultation not subject to review (inevacuable) for separate reasons.
• 3)By majority, the consultation filed under case file No. 21-012714-0007-CO by the Supreme Court of Justice is declared not subject to review. Justices Castillo Víquez and Rueda Leal file separate notes. Justices Garro Vargas and Picado Brenes dissent and admit the consultation. Justice Garro Vargas records a note.

On the substantive defects (vicios de fondo) alleged regarding the Judicial Branch and the Supreme Electoral Tribunal:

• 4)By unanimity, the consultation on constitutionality regarding the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" processed in legislative file No. 21.336 is reviewed, in the sense that Article 2, subsection a) is not in itself unconstitutional, insofar as it includes the Judicial Branch and the Supreme Electoral Tribunal in a general regulatory framework for public employment, but it is unconstitutional due to its effects, because some of its norms -as examined below- empty the principle of separation of powers of its content. Justices Castillo Víquez and Rueda Leal, and Justices Garro Vargas and Picado Brenes file separate notes.
• 5)By majority, the consultation on constitutionality regarding the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" processed in legislative file No. 21.336 is reviewed, in the sense that Article 49, subsection b) is not unconstitutional, provided it is interpreted that the General Directorate of Civil Service lacks competence regarding matters referring to the Judicial Branch and that its special regulations in these matters are not being derogated. Justices Castillo Víquez, Salazar Alvarado, and Justice Hernández López dissent and declare the complaint without merit because it does not refer to the Judicial Branch, nor does it derogate its special regulations in these matters.
• 6)By majority, the consultation on constitutionality regarding the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" processed in legislative file No. 21.336 is reviewed, in the sense that subsections g) and h) of Article 49 are unconstitutional for violating the independence of the Judicial Branch. Justice Castillo Víquez and Justice Hernández López dissent and declare that these subsections are not unconstitutional.

On the substantive defects alleged regarding the Costa Rican Social Security Fund (CCSS):

• 7)By unanimity, the consultation on constitutionality regarding the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" processed in legislative file No. 21.336 is reviewed, in the sense that Article 2, subsection b) is not in itself unconstitutional, insofar as some of its norms -as examined below- include the CCSS in a general regulatory framework for public employment, but it is unconstitutional due to its effects since some of its norms empty its autonomy of government (autonomía de gobierno) of its content. Justices Castillo Víquez and Rueda Leal, and Justices Garro Vargas and Picado Brenes file separate notes.

On the substantive defects alleged regarding the municipalities:

• 8)By unanimity, the consultation on constitutionality regarding the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" processed in legislative file No. 21.336 is reviewed, in the sense that Article 2, subsection c) is not in itself unconstitutional, insofar as it includes the municipalities in a general regulatory framework for public employment, but it is unconstitutional due to its effects since some of its norms -as examined below- empty their autonomy of government of its content. Justices Castillo Víquez and Rueda Leal, and Justices Garro Vargas and Picado Brenes file separate notes.

On the other substantive defects:

• 9)By majority, the consultation on constitutionality regarding the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" processed in legislative file No. 21.336 is reviewed, in the sense that subsection g) of Article 23 is not unconstitutional because it adequately guarantees the right to conscientious objection (objeción de conciencia). Justice Rueda Leal gives different reasons regarding what was consulted on this matter in case file No. 21-011713-0007-CO. Justice Hernández López considers that Article 23, subsection g) of the consulted Bill is constitutional, provided it is interpreted that the sworn statement referred to in the norm must be subject to a verification process that guarantees that the public official is not evading obligations inherent to their special subjection relationship, which would nullify or render without content the constitutional and legal guarantees and limitations of conscientious objection, such as safety, order, health, and respect for the fundamental rights of persons, particularly human dignity and non-discrimination, according to the balancing test that must be done in each specific case, as established in judgment 2020-001619 of this Chamber. Justices Castillo Víquez and Rueda Leal omit ruling on what was consulted on this matter in case file No. 21-012118-0007-CO.

CO10/21 ... See more Content of Interest:

Content type: Dissenting vote Branch of Law: 3. MATTERS OF CONSTITUTIONALITY CONTROL Topic: LABOR Subtopics:

NOT APPLICABLE.

DISSENTING VOTES AND NOTES OF JUSTICE PAUL RUEDA LEAL On the admissibility of the consultations:

• 1)By unanimity, the consultation filed under case file No. 21-011713-0007-CO is admitted. Justices Castillo Víquez, Salazar Alvarado, and Justice Garro Vargas record separate notes. Justice Rueda Leal gives different reasons regarding the admissibility of this Consultation.
• 2)By majority, the consultation filed under case file No. 21-012118-0007-CO is admitted. Justice Salazar Alvarado records a note. Justices Castillo Víquez and Rueda Leal dissent and declare the consultation not subject to review (inevacuable) for separate reasons.
• 3)By majority, the consultation filed under case file No. 21-012714-0007-CO by the Supreme Court of Justice is declared not subject to review. Justices Castillo Víquez and Rueda Leal file separate notes. Justices Garro Vargas and Picado Brenes dissent and admit the consultation. Justice Garro Vargas records a note.

On the substantive defects alleged regarding the Judicial Branch and the Supreme Electoral Tribunal:

• 4)By unanimity, the consultation on constitutionality regarding the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" processed in legislative file No. 21.336 is reviewed, in the sense that Article 2, subsection a) is not in itself unconstitutional, insofar as it includes the Judicial Branch and the Supreme Electoral Tribunal in a general regulatory framework for public employment, but it is unconstitutional due to its effects, because some of its norms -as examined below- empty the principle of separation of powers of its content. Justices Castillo Víquez and Rueda Leal, and Justices Garro Vargas and Picado Brenes file separate notes.
• 5)By unanimity, the consultation on constitutionality regarding the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" processed in legislative file No. 21.336 is reviewed, in the sense that Article 6, subsection b) is unconstitutional. It is declared that it is unconstitutional insofar as it subjects the Judicial Branch and the Supreme Electoral Tribunal to the directive power of the Executive Branch. Justice Rueda Leal files a note. Justices Garro Vargas and Picado Brenes give different reasons and declare it unconstitutional insofar as it subjects the Judicial Branch and the Supreme Electoral Tribunal to the stewardship (rectoría) of the General Public Employment System under Mideplán.

On the substantive defects alleged regarding the Costa Rican Social Security Fund (CCSS):

• 6)By unanimity, the consultation on constitutionality regarding the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" processed in legislative file No. 21.336 is reviewed, in the sense that Article 2, subsection b) is not in itself unconstitutional, insofar as some of its norms -as examined below- include the CCSS in a general regulatory framework for public employment, but it is unconstitutional due to its effects since some of its norms empty its autonomy of government of its content. Justices Castillo Víquez and Rueda Leal, and Justices Garro Vargas and Picado Brenes file separate notes.

On the substantive defects alleged regarding the municipalities:

• 7)By unanimity, the consultation on constitutionality regarding the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" processed in legislative file No. 21.336 is reviewed, in the sense that Article 2, subsection c) is not in itself unconstitutional, insofar as it includes the municipalities in a general regulatory framework for public employment, but it is unconstitutional due to its effects since some of its norms -as examined below- empty their autonomy of government of its content. Justices Castillo Víquez and Rueda Leal, and Justices Garro Vargas and Picado Brenes file separate notes.
• 8)By unanimity, the consultation on constitutionality regarding the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" processed in legislative file No. 21.336 is reviewed, in the sense that Article 6 is unconstitutional insofar as it subjects the municipalities to the directive power of the Executive Branch.

On the other substantive defects:

• 9)By majority, the consultation on constitutionality regarding the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" processed in legislative file No. 21.336 is reviewed, in the sense that subsection g) of Article 23 is not unconstitutional because it adequately guarantees the right to conscientious objection. Justice Rueda Leal gives different reasons regarding what was consulted on this matter in case file No. 21-011713-0007-CO. Justice Hernández López considers that Article 23, subsection g) of the consulted Bill is constitutional, provided it is interpreted that the sworn statement referred to in the norm must be subject to a verification process that guarantees that the public official is not evading obligations inherent to their special subjection relationship, which would nullify or render without content the constitutional and legal guarantees and limitations of conscientious objection, such as safety, order, health, and respect for the fundamental rights of persons, particularly human dignity and non-discrimination, according to the balancing test that must be done in each specific case, as established in judgment 2020-001619 of this Chamber. Justices Castillo Víquez and Rueda Leal omit ruling on what was consulted on this matter in case file No. 21-012118-0007-CO.
• 10)By majority, the consultation on constitutionality regarding the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" processed in legislative file No. 21.336 is reviewed, in the sense that Article 43 contains no constitutional defects (vicios de constitucionalidad), insofar as the new obligations or rights obtained through collective bargaining are adjusted to the principles of reasonableness, proportionality, and budgetary legality, under the protection of constitutional jurisprudence, and provided these are collective bargaining agreements (convenciones colectivas) where the Public Sector employees who can validly enter into collective bargaining agreements in accordance with the Constitution and the law participate. Justice Rueda Leal and Justices Garro Vargas and Picado Brenes give different reasons.
• 11)By unanimity, the consultation on constitutionality regarding the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" processed in legislative file No. 21.336 is reviewed, in the sense that Transitory Provision XV referring to the denunciation of collective bargaining agreements, is not unconstitutional provided it is interpreted in the same sense indicated in vote number 2018-019511 of 21:45 hours on November 23, 2018, that is, in application of the Political Constitution (Articles 62 and 74), the International Conventions of the International Labour Organization, and the jurisprudence of this Court, it shall be interpreted that each head of public entities has the power to denounce or not the respective collective bargaining agreement, in accordance with the current legal system. Justice Rueda Leal gives particular reasons regarding this point.

Magistrates Garro Vargas and Picado Brenes provide different reasoning.

• 12)By majority vote, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that Transitory Provisions XI and XII, referring to salary rules, are not unconstitutional. Magistrate Rueda Leal records different reasoning. Magistrates Hernández López, Garro Vargas, and Picado Brenes dissent (salvan el voto) and consider subsection a) of Transitory Provision XI unconstitutional for violating the right to wage equality. Magistrates Garro Vargas and Picado Brenes issue separate notes.
• 13)Magistrates Rueda Leal and Araya García, and Magistrates Hernández López, Garro Vargas, and Picado Brenes record separate notes.

CO10/21 ... See more Content of Interest:

Content type: Dissenting vote (Voto salvado) Branch of Law: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Topic: TRABAJO Subtopics:

NO APLICA.

VOTOS SALVADOS Y NOTAS MAGISTRADA NANCY HERNÁNDEZ LÓPEZ On the admissibility of the consultations:

• 1)Unanimously, the consultation filed under case file No. 21-011915-0007-CO is admitted. Magistrates Hernández López and Garro Vargas provide different reasoning separately. Magistrate Salazar Alvarado and Magistrate Picado Brenes record separate notes.

On the substantive defects alleged regarding the Judicial Branch (Poder Judicial) and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones):

• 2)By majority vote, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that subsection b) of Article 49 is not unconstitutional, provided it is interpreted that the Dirección General de Servicio Civil lacks competence regarding matters pertaining to the Judicial Branch (Poder Judicial) and that it is not derogating its special regulations in these matters. Magistrates Castillo Víquez, Salazar Alvarado, and Magistrate Hernández López dissent (salvan el voto) and declare the grievance unfounded because it does not refer to the Judicial Branch (Poder Judicial), nor does it derogate its special regulations in these matters.
• 3)By majority vote, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that subsections g) and h) of Article 49 are unconstitutional for violating the independence of the Judicial Branch (Poder Judicial). Magistrate Castillo Víquez and Magistrate Hernández López dissent (salvan el voto) and declare that these subsections are not unconstitutional.

On the substantive defects alleged regarding public universities:

• 4)By majority vote, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that subsection b) of Article 30 is constitutional. Magistrates Hernández López, Garro Vargas, and Picado Brenes dissent (salvan el voto) regarding subsection b) of Article 30 and hold that, with respect to university autonomy (autonomía universitaria), it is unconstitutional by its effects for the salary of the President of the Republic to serve as a cap for universities, when technical reasons exist that justify different remuneration.

On the remaining substantive defects:

• 5)By majority vote, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that subsection g) of Article 23 is not unconstitutional because it adequately guarantees the right to conscientious objection (objeción de conciencia). Magistrate Rueda Leal provides different reasoning regarding what was consulted on this matter in case file No. 21-011713-0007-CO. Magistrate Hernández López considers that subsection g) of Article 23 of the consulted draft Law is constitutional, provided it is interpreted that the sworn statement (declaración jurada) referred to in the norm must be subject to a verification process that guarantees that the public official is not evading obligations inherent to their special subjection relationship, which would nullify or strip content from the constitutional and legal guarantees and limitations of conscientious objection (objeción de conciencia), such as safety, order, health, and respect for the fundamental rights of individuals, particularly human dignity and non-discrimination, according to the balancing test (juicio de ponderación) that must be performed in each specific case, as established in ruling 2020-001619 of this Chamber. Magistrates Castillo Víquez and Rueda Leal refrain from issuing a pronouncement regarding what was consulted on this matter in case file No. 21-012118-0007-CO.
• 6)By majority vote, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that Transitory Provisions XI and XII, referring to salary rules, are not unconstitutional. Magistrate Rueda Leal records different reasoning. Magistrates Hernández López, Garro Vargas, and Picado Brenes dissent (salvan el voto) and consider subsection a) of Transitory Provision XI unconstitutional for violating the right to wage equality. Magistrates Garro Vargas and Picado Brenes issue separate notes.
• 7)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that Articles 21 and 22 do not contain violations of the principle of constitutional due process (debido proceso constitucional); therefore, they are not unconstitutional regarding this consulted matter.
• 8)Magistrates Rueda Leal and Araya García, and Magistrates Hernández López, Garro Vargas, and Picado Brenes record separate notes.

CO10/21 ... See more Content of Interest:

Content type: Dissenting vote (Voto salvado) Branch of Law: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Topic: TRABAJO Subtopics:

NO APLICA.

VOTOS SALVADOS Y NOTAS MAGISTRADO LUIS FERNANDO SALAZAR ALVARADO On the admissibility of the consultations:

• 1)Unanimously, the consultation filed under case file No. 21-011713-0007-CO is admitted. Magistrates Castillo Víquez, Salazar Alvarado, and Magistrate Garro Vargas record separate notes. Magistrate Rueda Leal provides different reasoning regarding the admissibility of this Consultation.
• 2)Unanimously, the consultation filed under case file No. 21-011915-0007-CO is admitted. Magistrates Hernández López and Garro Vargas provide different reasoning separately. Magistrate Salazar Alvarado and Magistrate Picado Brenes record separate notes.
• 3)By majority vote, the consultation filed under case file No. 21-012118-0007-CO is admitted. Magistrate Salazar Alvarado records a note. Magistrates Castillo Víquez and Rueda Leal dissent (salvan el voto) and declare the consultation cannot be resolved (inevacuable) for separate reasons.

On the alleged procedural defects:

• 4)By majority vote, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that subsection b) of Article 49 is not unconstitutional, provided it is interpreted that the Dirección General de Servicio Civil lacks competence regarding matters pertaining to the Judicial Branch (Poder Judicial) and that it is not derogating its special regulations in these matters. Magistrates Castillo Víquez, Salazar Alvarado, and Magistrate Hernández López dissent (salvan el voto) and declare the grievance unfounded because it does not refer to the Judicial Branch (Poder Judicial), nor does it derogate its special regulations in these matters.

CO10/21 ... See more Content of Interest:

Content type: Separate note (Nota separada) Branch of Law: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Topic: TRABAJO Subtopics:

NO APLICA.

NOTA MAGISTRADO JORGE ARAYA GARCÍA On the remaining substantive defects:

• 1)Magistrates Rueda Leal and Araya García, and Magistrates Hernández López, Garro Vargas, and Picado Brenes record separate notes.

CO10/21 ... See more Content of Interest:

Content type: Dissenting vote (Voto salvado) Branch of Law: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Topic: TRABAJO Subtopics:

NO APLICA.

VOTOS SALVADOS Y NOTAS MAGISTRADA ANAMARI GARRO VARGAS On the admissibility of the consultations:

• 1)Unanimously, the consultation filed under case file No. 21-011713-0007-CO is admitted. Magistrates Castillo Víquez, Salazar Alvarado, and Magistrate Garro Vargas record separate notes. Magistrate Rueda Leal provides different reasoning regarding the admissibility of this Consultation.
• 2)Unanimously, the consultation filed under case file No. 21-011915-0007-CO is admitted. Magistrates Hernández López and Garro Vargas provide different reasoning separately. Magistrate Salazar Alvarado and Magistrate Picado Brenes record separate notes.
• 3)By majority vote, the consultation filed by the Corte Suprema de Justicia under case file No. 21-012714-0007-CO is declared cannot be resolved (inevacuable). Magistrates Castillo Víquez and Rueda Leal issue separate notes. Magistrates Garro Vargas and Picado Brenes dissent (salvan el voto) and admit the consultation. Magistrate Garro Vargas records a note.

On the substantive defects alleged regarding the Judicial Branch (Poder Judicial) and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones):

• 4)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that subsection a) of Article 2 is not unconstitutional in and of itself, insofar as it includes the Judicial Branch (Poder Judicial) and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones) within a general regulatory framework for public employment, but it is unconstitutional by its effects, because some of its norms—as examined below—empty the principle of separation of powers of its content. Magistrates Castillo Víquez and Rueda Leal, and Magistrates Garro Vargas and Picado Brenes issue separate notes.
• 5)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that subsection b) of Article 6 is unconstitutional. It is declared unconstitutional insofar as it subjects the Judicial Branch (Poder Judicial) and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones) to the directive power of the Executive Branch (Poder Ejecutivo). Magistrate Rueda Leal issues a note. Magistrates Garro Vargas and Picado Brenes provide different reasoning and declare it unconstitutional insofar as it subjects the Judicial Branch (Poder Judicial) and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones) to the stewardship (rectoría) of the Sistema General de Empleo Público under the charge of Mideplán.
• 6)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that subsections d), g), and p) of Article 7 are unconstitutional for affecting the independence of the Judicial Branch (Poder Judicial) and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones), insofar as it subjects them to the directive and regulatory power of Mideplán, as well as to the verification of whether or not the purpose of the performance evaluation (evaluación del desempeño) is met, this latter function corresponding to the aforementioned branches according to their internal regulations. Magistrates Garro Vargas and Picado Brenes provide additional reasoning.
• 7)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is declared cannot be resolved (inevacuable) regarding Article 12, for lack of substantiation of the matter consulted, with respect to the Judicial Branch (Poder Judicial) and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones). Magistrates Garro Vargas and Picado Brenes issue separate notes.
• 8)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that subsection f) of Article 13 is unconstitutional for violating the independence of branches of government, both with respect to the Judicial Branch (Poder Judicial) and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones). Magistrates Garro Vargas and Picado Brenes provide different reasoning.
• 9)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is declared cannot be resolved (inevacuable) regarding Article 19, for lack of adequate substantiation from a constitutional standpoint of the matter consulted. Magistrates Garro Vargas and Picado Brenes issue a note.

On the substantive defects alleged regarding public universities:

• 10)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that Article 6 is unconstitutional insofar as it subjects public universities to the directive power of the Executive Branch (Poder Ejecutivo). Magistrates Garro Vargas and Picado Brenes provide different reasoning.
• 11)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that Article 7 is unconstitutional in relation to those provisions that subject public universities to the directive and regulatory power of Mideplán. Magistrates Garro Vargas and Picado Brenes provide additional reasoning.
• 12)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that subsection e) of Article 13 is unconstitutional, for not including in said subsection the employees who perform research, social action, and cultural activities of the public universities. Magistrates Garro Vargas and Picado Brenes provide additional reasoning.
• 13)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that Article 17 is unconstitutional, insofar as it subjects the senior management personnel of public universities to the general provisions, directives, and regulations issued by Mideplán. Magistrates Garro Vargas and Picado Brenes issue a note.
• 14)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that Article 30 is unconstitutional, insofar as it does not exclude officials who perform substantive duties—inherent to university activity—and because it does not establish that—in consideration of university autonomy (autonomía universitaria)—the construction of the salary column family and its characteristics corresponds exclusively and preclusively to the highest bodies of the university entities. Magistrates Garro Vargas and Picado Brenes provide different reasoning.
• 15)By majority vote, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that subsection b) of Article 30 is constitutional. Magistrates Hernández López, Garro Vargas, and Picado Brenes dissent (salvan el voto) regarding subsection b) of Article 30 and hold that, with respect to university autonomy (autonomía universitaria), it is unconstitutional by its effects for the salary of the President of the Republic to serve as a cap for universities, when technical reasons exist that justify different remuneration.
• 16)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that Articles 31, 32, and 34 are unconstitutional, insofar as they do not exclude officials who perform substantive duties—inherent to university activity—and because the definition of the relevant work factors, their relative weight, the number of grades required within each family and their characteristics, and the elaboration of the salary column corresponds exclusively and preclusively to the highest bodies of the university entities. Magistrates Garro Vargas and Picado Brenes provide different reasoning.
• 17)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that Article 33 is unconstitutional, insofar as it does not exclude officials who perform substantive duties—inherent to university autonomy (autonomía universitaria)—and subjects the job manual (manual de puestos) of said officials to the analysis and evaluation of Mideplán, which—in consideration of university autonomy (autonomía universitaria)—corresponds exclusively and preclusively to the highest bodies of the university entities. Magistrates Garro Vargas and Picado Brenes provide different reasoning.
• 18)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that Articles 35 and 36 are constitutional. Magistrates Garro Vargas and Picado Brenes provide different reasoning separately.

On the substantive defects alleged regarding the Caja Costarricense de Seguro Social (CCSS):

• 19)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that subsection b) of Article 2 is not unconstitutional in and of itself, insofar as some of its norms—as examined below—include the CCSS within a general regulatory framework for public employment, but it is unconstitutional by its effects since some of its norms empty its autonomy of government (autonomía de gobierno) of content. Magistrates Castillo Víquez and Rueda Leal, and Magistrates Garro Vargas and Picado Brenes issue separate notes.
• 20)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that Article 6 is unconstitutional, insofar as it subjects the CCSS to the directive power of the Executive Branch (Poder Ejecutivo). Magistrates Garro Vargas and Picado Brenes provide different reasoning.
• 21)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that subsection d) of Article 7 is unconstitutional in relation to those provisions that subject the CCSS to the directive and regulatory power of Mideplán. Magistrates Garro Vargas and Picado Brenes provide additional reasoning.
• 22)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that subsection b) of Article 13 is unconstitutional, for not including the employees who perform substantive and professional duties concerning the constitutional purposes assigned to the CCSS. Magistrates Garro Vargas and Picado Brenes provide additional reasoning.

On the substantive defects alleged regarding municipalities (municipalidades):

• 23)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that subsection c) of Article 2 is not unconstitutional in and of itself, insofar as it includes municipalities (municipalidades) within a general regulatory framework for public employment, but it is unconstitutional by its effects since some of its norms—as examined below—empty their autonomy of government (autonomía de gobierno) of content. Magistrates Castillo Víquez and Rueda Leal, and Magistrates Garro Vargas and Picado Brenes issue separate notes.
• 24)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that Article 7 is unconstitutional in relation to those provisions that subject municipalities (municipalidades) to the directive and regulatory power of Mideplán. Magistrates Garro Vargas and Picado Brenes provide additional reasoning.
• 25)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that the second paragraph of subsection a) of Article 9 is unconstitutional with respect to its application to municipalities (municipalidades). Magistrate Garro Vargas provides different reasoning. Magistrate Picado Brenes provides additional reasoning.
• 26)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that Article 13, by not creating a job family (familia de puestos) for municipal employees, includes them all within the Civil Service (Servicio Civil). Magistrate Garro Vargas provides different reasoning. Magistrate Picado Brenes records additional reasoning.

On the remaining substantive defects:

• 27)By majority vote, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that Article 43 does not contain constitutional defects, insofar as the new obligations or rights obtained through the scope of collective bargaining (negociación colectiva) are adjusted to the principles of reasonableness, proportionality, and budgetary legality, under the protection of constitutional jurisprudence, and provided it involves collective bargaining agreements (convenciones colectivas) in which public sector employees who can validly enter into collective bargaining agreements (convenciones colectivas) in accordance with the Constitution and the law participate. Magistrate Rueda Leal and Magistrates Garro Vargas and Picado Brenes provide different reasoning.
• 28)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that Transitory Provision XV, referring to the denunciation of collective bargaining agreements (convenciones colectivas), is not unconstitutional provided it is interpreted in the same sense indicated in vote No. 2018-019511 at 9:45 p.m. on November 23, 2018, that is, in application of the Political Constitution (Articles 62 and 74), the International Conventions of the International Labour Organization, and the jurisprudence of this Court, it shall be interpreted that each head of public entities has the power to denounce or not the respective collective bargaining agreement (convención colectiva), in accordance with the current legal system. Magistrate Rueda Leal provides particular reasoning regarding this point. Magistrates Garro Vargas and Picado Brenes provide different reasoning.
• 29)By majority vote, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that Transitory Provisions XI and XII, referring to salary rules, are not unconstitutional. Magistrate Rueda Leal records different reasoning. Magistrates Hernández López, Garro Vargas, and Picado Brenes dissent (salvan el voto) and consider subsection a) of Transitory Provision XI unconstitutional for violating the right to wage equality. Magistrates Garro Vargas and Picado Brenes issue separate notes.
• 30)By majority vote, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that Articles 39, 40, 41, and 42, regarding new situations for leave (permisos), are not unconstitutional. Magistrate Picado Brenes provides particular reasoning. Magistrate Garro Vargas dissents (salva el voto) and declares it cannot be resolved (inevacuable).
• 31)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that Article 3, regarding the scope of exclusions, is not unconstitutional.
• 32)Magistrates Rueda Leal and Araya García, and Magistrates Hernández López, Garro Vargas, and Picado Brenes record separate notes.

CO10/21 ... See more Content of Interest:

Content type: Dissenting vote (Voto salvado) Branch of Law: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Topic: TRABAJO Subtopics:

NO APLICA.

VOTOS SALVADOS Y NOTAS MAGISTRADA ANA MARÍA PICADO BRENES On the admissibility of the consultations:

• 1)Unanimously, the consultation filed under case file No. 21-011915-0007-CO is admitted. Magistrates Hernández López and Garro Vargas provide different reasoning separately. Magistrate Salazar Alvarado and Magistrate Picado Brenes record separate notes.
• 2)By majority vote, the consultation filed by the Corte Suprema de Justicia under case file No. 21-012714-0007-CO is declared cannot be resolved (inevacuable). Magistrates Castillo Víquez and Rueda Leal issue separate notes. Magistrates Garro Vargas and Picado Brenes dissent (salvan el voto) and admit the consultation. Magistrate Garro Vargas records a note.

On the substantive defects alleged regarding the Judicial Branch (Poder Judicial) and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones):

• 3)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that subsection a) of Article 2 is not unconstitutional in and of itself, insofar as it includes the Judicial Branch (Poder Judicial) and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones) within a general regulatory framework for public employment, but it is unconstitutional by its effects, because some of its norms—as examined below—empty the principle of separation of powers of its content. Magistrates Castillo Víquez and Rueda Leal, and Magistrates Garro Vargas and Picado Brenes issue separate notes.
• 4)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that subsection b) of Article 6 is unconstitutional. It is declared unconstitutional insofar as it subjects the Judicial Branch (Poder Judicial) and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones) to the directive power of the Executive Branch (Poder Ejecutivo). Magistrate Rueda Leal issues a note. Magistrates Garro Vargas and Picado Brenes provide different reasoning and declare it unconstitutional insofar as it subjects the Judicial Branch (Poder Judicial) and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones) to the stewardship (rectoría) of the Sistema General de Empleo Público under the charge of Mideplán.
• 5)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that subsections d), g), and p) of Article 7 are unconstitutional for affecting the independence of the Judicial Branch (Poder Judicial) and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones), insofar as it subjects them to the directive and regulatory power of Mideplán, as well as to the verification of whether or not the purpose of the performance evaluation (evaluación del desempeño) is met, this latter function corresponding to the aforementioned branches according to their internal regulations. Magistrates Garro Vargas and Picado Brenes provide additional reasoning.
• 6)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is declared cannot be resolved (inevacuable) regarding Article 12, for lack of substantiation of the matter consulted, with respect to the Judicial Branch (Poder Judicial) and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones). Magistrates Garro Vargas and Picado Brenes issue separate notes.
• 7)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that subsection f) of Article 13 is unconstitutional for violating the independence of branches of government, both with respect to the Judicial Branch (Poder Judicial) and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones). Magistrates Garro Vargas and Picado Brenes provide different reasoning.
• 8)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is declared cannot be resolved (inevacuable) regarding Article 19, for lack of adequate substantiation from a constitutional standpoint of the matter consulted. Magistrates Garro Vargas and Picado Brenes issue a note.
• 9)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is declared cannot be resolved (inevacuable) regarding Article 31, for lack of adequate substantiation from a constitutional standpoint of the matter consulted. Magistrate Picado Brenes issues a note.

On the substantive defects alleged regarding public universities:

• 10)Unanimously, the constitutional consultation on the draft "LEY MARCO DE EMPLEO PÚBLICO" being processed in legislative file No. 21.336 is resolved, in the sense that Article 6 is unconstitutional insofar as it subjects public universities to the directive power of the Executive Branch (Poder Ejecutivo).

Magistrates Garro Vargas and Picado Brenes give separate reasons.

• 11)By unanimous vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Article 7 is unconstitutional in relation to those provisions that subject public universities to the power of direction and regulation by Mideplán. Magistrates Garro Vargas and Picado Brenes give additional reasons.
• 12)By unanimous vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Article 13, subsection e) is unconstitutional, for not including in such subsection the employees who carry out research, social action, and cultural activities at public universities. Magistrates Garro Vargas and Picado Brenes give additional reasons.
• 13)By unanimous vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Article 17 is unconstitutional, insofar as it subjects the senior management personnel of public universities to the provisions of general scope, directives, and regulations issued by Mideplán. Magistrates Garro Vargas and Picado Brenes file a note.
• 14)By unanimous vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Article 30 is unconstitutional, insofar as it does not exclude officials who perform substantive duties—specific to university activity—and because it does not establish that—in consideration of university autonomy—the construction of the salary column family and its characteristics corresponds exclusively and solely to the highest bodies of the university entities. Magistrates Garro Vargas and Picado Brenes give separate reasons.
• 15)By majority vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Article 30, subsection b) is constitutional. Magistrates Hernández López, Garro Vargas, and Picado Brenes dissent regarding Article 30, subsection b) and consider that, with respect to university autonomy, it is unconstitutional in its effects for the salary of the President of the Republic to be a cap for universities, when there are technical reasons justifying a different remuneration.
• 16)By unanimous vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Articles 31, 32, and 34 are unconstitutional, insofar as they do not exclude officials who perform substantive duties—specific to university activity—and because the definition of relevant job factors, their relative weight, the number of grades required within each family and their characteristics, and the preparation of the salary column correspond exclusively and solely to the highest bodies of the university entities. Magistrates Garro Vargas and Picado Brenes give separate reasons.
• 17)By unanimous vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Article 33 is unconstitutional, insofar as it does not exclude officials who perform substantive duties—specific to university autonomy—and subjects the job description manual for said officials to the analysis and evaluation of Mideplán, which—in consideration of university autonomy—corresponds exclusively and solely to the highest bodies of the university entities. Magistrates Garro Vargas and Picado Brenes give separate reasons.
• 18)By unanimous vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Articles 35 and 36 are constitutional. Magistrates Garro Vargas and Picado Brenes give separate reasons individually.

Regarding the substantive defects alleged concerning the Caja Costarricense de Seguro Social (CCSS):

• 19)By unanimous vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Article 2, subsection b) is not unconstitutional per se, insofar as some of its norms—as examined below—include the CCSS in a general regulatory framework for public employment, but it is unconstitutional in its effects given that some of its norms empty its governmental autonomy of content. Magistrates Castillo Víquez and Rueda Leal, and Magistrates Garro Vargas and Picado Brenes file separate notes.
• 20)By unanimous vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Article 6 is unconstitutional, insofar as it subjects the CCSS to the power of direction of the Executive Branch. Magistrates Garro Vargas and Picado Brenes give separate reasons.
• 21)By unanimous vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that subsection d) of Article 7 is unconstitutional in relation to those provisions that subject the CCSS to the power of direction and regulation by Mideplán. Magistrates Garro Vargas and Picado Brenes give additional reasons.
• 22)By unanimous vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Article 13, subsection b) is unconstitutional, for not including the employees who perform substantive and professional duties related to the constitutional purposes assigned to the CCSS. Magistrates Garro Vargas and Picado Brenes give additional reasons.
• 23)By unanimous vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Article 18 is unconstitutional, for affecting the political autonomy of the CCSS regarding the terms of senior public management personnel. Magistrate Picado Brenes gives additional reasons.

Regarding the substantive defects alleged concerning the municipalities:

• 24)By unanimous vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Article 2, subsection c) is not unconstitutional per se, insofar as it includes the municipalities in a general regulatory framework for public employment, but it is unconstitutional in its effects given that some of its norms—as examined below—empty their governmental autonomy of content. Magistrates Castillo Víquez and Rueda Leal, and Magistrates Garro Vargas and Picado Brenes file separate notes.
• 25)By unanimous vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Article 7 is unconstitutional in relation to those provisions that subject the municipalities to the power of direction and regulation by Mideplán. Magistrates Garro Vargas and Picado Brenes give additional reasons.
• 26)By unanimous vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that the second paragraph of subsection a) of Article 9 is unconstitutional regarding its application to the municipalities. Magistrate Garro Vargas gives separate reasons. Magistrate Picado Brenes gives additional reasons.
• 27)By unanimous vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Article 13, by not creating a job family for municipal employees, includes them all in the Civil Service. Magistrate Garro Vargas gives separate reasons. Magistrate Picado Brenes records additional reasons.
• 28)By unanimous vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Article 18 is unconstitutional, for affecting the political autonomy of the municipalities regarding the terms of senior public management personnel. Magistrate Picado Brenes gives separate reasons.

Regarding the other substantive defects:

• 29)By majority vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Article 43 does not contain constitutional defects, insofar as the new obligations or rights achieved through collective bargaining conform to the principles of reasonableness, proportionality, and budgetary legality, under the protection of constitutional jurisprudence, and provided that these are collective bargaining agreements in which Public Sector employees who may validly enter into collective agreements in accordance with the Constitution and the law participate. Magistrate Rueda Leal and Magistrates Garro Vargas and Picado Brenes give separate reasons.
• 30)By unanimous vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Transitory Provision XV, referring to the denunciation of collective agreements, is not unconstitutional provided that it is interpreted in the same sense as indicated in vote number 2018-019511 at 21:45 hours on November 23, 2018; that is, in application of the Political Constitution (Articles 62 and 74), the International Conventions of the International Labour Organization, and the jurisprudence of this Court, it shall be interpreted that each head of the public entities has the power to denounce or not the respective collective agreement, in accordance with the current legal system. Magistrate Rueda Leal gives particular reasons regarding this point. Magistrates Garro Vargas and Picado Brenes give separate reasons.
• 31)By unanimous vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that subsection a) of Article 4, referring to disqualification, is not unconstitutional. Magistrate Picado Brenes files a note.
• 32)By majority vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Transitory Provisions XI and XII, referring to salary rules, are not unconstitutional. Magistrate Rueda Leal records separate reasons. Magistrates Hernández López, Garro Vargas, and Picado Brenes dissent and consider subsection a) of Transitory Provision XI unconstitutional for violation of the right to equal pay. Magistrates Garro Vargas and Picado Brenes file separate notes.
• 33)By majority vote, the constitutional consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21.336 is resolved, in the sense that Articles 39, 40, 41, and 42, regarding new cases for leave, are not unconstitutional. Magistrate Picado Brenes gives particular reasons. Magistrate Garro Vargas dissents and declares it not subject to the consultation.
• 34)Magistrates Rueda Leal and Araya García, and Magistrates Hernández López, Garro Vargas, and Picado Brenes record separate notes.

CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 2. PRINCIPIOS CON JURISPRUDENCIA Tema: Unidad Estatal Subtemas:

NO APLICA.

PRINCIPIO DE UNIDAD ESTATAL. “…It must be kept in mind that in a unitarily concentrated State such as Costa Rica, all public entities are subject to the principle of state unity, since autonomy does not mean sovereignty, but simply and plainly independence in the exercise of exclusive and excluding powers. Regarding the principle of state unity, it has been affirmed that regardless of the degree of autonomy that a decentralized entity may have, it is closely linked to the State by a series of principles and norms that are in the Constitution of the Republic, for example, numerals 11, 48, 49, 182, 184, and 192 of the Fundamental Charter, which establish the principles of legality, accountability and transparency, the unrestricted respect for fundamental rights and subjective public rights and their effective judicial protection in the constitutional and contentious-administrative jurisdictions, the principles and procedures of administrative contracting, the approval and oversight of budgets by the Contraloría General de la República and control by this organ of constitutional relevance over the use of public funds, submission to the core principles of the civil service, etc. In this regard, it is not unconstitutional for the legislator to subject the entire Public Administration to a public employment framework law, provided it rigorously observes the principles of separation of powers and does not empty of content the degrees of autonomy that the Constitution of the Republic grants to State universities, the CCSS, and the municipalities…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: CONSULTA LEGISLATIVA FACULTATIVA Subtemas:

NO APLICA.

Tema: TRABAJO Subtemas:

NO APLICA.

017098-21. TRABAJO. CONSULTA LEGISLATIVA FACULTATIVA DE CONSTITUCIONALIDAD, REFERENTE AL PROYECTO DE LEY DENOMINADO "LEY MARCO DE EMPLEO PÚBLICO". EXPEDIENTE LEGISLATIVO N° 21.336.

ARTÍCULOS DE LA CONSTITUCIÓN POLÍTICA.

• A)CUESTIONES DE TRAMITE:

I.- Preliminary.- (drafted by Magistrate Castillo Víquez) We who subscribe to this advisory opinion place on record that in this case there are justified reasons for not raising any recusal, despite the fact that the consulted bill affects us. In the first place, we are dealing with a law of a general nature that affects all public employees, except those who work in public enterprises that are under a competition regime, such that it affects us in our capacity as magistrates—proprietary and alternate—as well as those who teach at public universities. Secondly, as the regulations contained in the bill affect both the proprietary magistrates and the alternate magistrates, the latter because they are paid a salary for substitution starting from one day, it is logical to assume beforehand that all of us have grounds for recusal, such that, in application of numeral 29 of the Organic Law of the Judicial Branch, the Tribunal must be composed of the same proprietary and alternate magistrates that originally composed it. In other words, there is no sense in all of us recusing ourselves, a process that could take from three to five months, to arrive at the same starting point; especially since in this case Article 101 of the Law of the Constitutional Jurisdiction establishes a term of one month to resolve the optional constitutional consultation starting from the receipt of the legislative files or their accumulation, except for causes of interruption. It is also logical to assume that the majority of the proprietary and alternate magistrates have close relatives—children, brothers, sisters, in-laws, etc.—such that they would also have grounds for recusal, which would again suppose that the Tribunal would be almost entirely disintegrated. On the other hand, in session No. 22-2021 of the Supreme Court of Justice, held on June 2, 2021, Sole Article, alternate magistrates José Paulino Hernández Gutiérrez, Mauricio Chacón Jiménez, and Ronald Salazar Murillo participated in the discussion of the bill being consulted, just as in session No. 27-2021 of June 30, 2021 of the cited body, Article I, the alternate magistrate and alternate magistrates Lucila Monge Pizarro, José Paulino Hernández Gutiérrez, Mauricio Chacón Jiménez, Alejandro Delgado Faith, and Hubert Fernández Argüello participated in the session in which it was agreed to pose an optional constitutional consultation to the Constitutional Chamber, such that they have already expressed an opinion and, consequently, could not and should not form part of the Tribunal that will resolve the accumulated constitutional consultations. Finally, and no less importantly, it must be kept in mind that in the case of the alternate magistrates who are practicing attorneys, that fact does not detract from what has been stated, for the elementary reason that they are public officials and, when they exercise the magistracy, the consulted regulations also affect them, since they receive a salary starting from one day of substitution. By virtue of the foregoing, it is proper that all the proprietary magistrates hear this matter; the only recusal presented and accepted being that of proprietary magistrate Fernando Cruz Castro, by reason of the fact that, due to his position as president of the Supreme Court of Justice, he has already issued an opinion on the consulted bill. Furthermore, note that this same magistrate has presented, on behalf of the entire Supreme Court of Justice, an optional consultation of his own accord. Therefore, he cannot act simultaneously as party and as judge, in this case. In substitution of Magistrate Cruz Castro, the alternate magistrate Ana María Picado Brenes was appointed.

II.- On the admissibility of the optional constitutional consultations posed.- In accordance with the provisions of the Law of the Constitutional Jurisdiction, this Constitutional Tribunal may exercise prior advisory opinion on legislative bills. Within the different types of constitutional consultation, we find the optional consultation contemplated in subsection b) of Article 96 of the cited law, posed by deputies of the Legislative Assembly, with the requirements to be stated. Additionally, the optional consultation contemplated in subsection c) of Article 96 of the cited law, posed by the Supreme Court of Justice, on aspects related to its constitutional jurisdiction. In this case, we have three optional consultations presented by deputies and one consultation presented by the President of the Supreme Court of Justice. The four consultations were accumulated to this file through resolutions numbers 2021-15105, 2021-15137, and 2021-15240, dated July 2, 2021. The examination of the admissibility of each of these cases proceeds separately.

• 1)On the admissibility of the optional consultations presented by the deputies (Art. 96.b of the Law of the Constitutional Jurisdiction).- Through three different briefs, three optional legislative consultations presented by deputies of the Legislative Assembly were submitted to the Constitutional Chamber. The admissibility of each of these consultations is examined individually.
• a)Optional consultation under file No. 21-011713-0007-CO:

On June 17, 2021, a brief signed by 15 deputies (with 14 signatures being valid), presented the first optional constitutional consultation, assigned file number 21-011713-0007-CO. This consultation, presented based on Art. 96.b) of the Law of the Constitutional Jurisdiction must meet two requirements for its admissibility: it must be presented by a number of no fewer than ten deputies and must be made after the consulted bill has been approved in the first debate (or before, if the Legislative Assembly had a constitutional or regulatory deadline to vote on it). Given that the first debate took place in ordinary session No. 17 on June 17, 2021, and this consultation was presented in the afternoon of that day; and given that it was 14 deputies who ultimately signed the consultation, this fully complies with the mentioned requirements. It is worth mentioning that the initial brief was signed by 15 deputies. Then, before the date of receipt of the legislative file (June 25, a date that this Chamber has taken as the limit for this type of briefs, according to vote No. 2018-019511 and 2014-012887), on June 17 and 18, two deputies requested that their signatures be withdrawn (Deputy Mario Castillo Méndez and Deputy Zoila Rosa Volio Pacheco), a withdrawal that is considered valid. Subsequently, a new deputy (Deputy Dragos Dolanescu Valenciano) requested on June 21 (also before the date of receipt of the legislative file) that his signature be added to the consultation, an addition that is considered valid. At that moment, there was a total of 14 valid signatures. It must be taken into account that the signature of Deputy Aracelly Salas Eduarte appears in this consultation and in the second; given that it cannot be admitted in both—according to the jurisprudence of this Chamber—it is admitted as valid only in this first consultation. The partial withdrawals of signatures, made on June 30, presented by three deputies (Sylvia Patricia Villegas, Walter Muñoz, and Shirley Díaz Mejías) are not admitted, forasmuch as, regardless of when they are made, partial withdrawals of a signature are inadmissible to this Chamber. When a consultation is signed, it is signed in its entirety; therefore, neither a partial signature nor a partial withdrawal is admitted, neither before nor after receiving the legislative file.

Therefore, this consultation is deemed admitted with the signature of 14 deputies, a number that meets the mentioned requirement of being presented by a minimum of 10 deputies.

• b)Optional consultation under file No. 21-011915-0007-CO:

The second optional consultation presented by deputies was received by this Chamber at 08:11 hours on June 22, 2021. The filing brief records the signature of 10 deputies (with 10 signatures being valid). Processed under file No. 21-011915-0007-CO and accumulated to this file by resolution number 2021-015105 at 9:15 hours on July 2, 2021. Now then, the following facts are observed: the consultation was initially presented by 10 deputies. Given that, one of the deputies (Aracelly Salas Eduarte) also signed the first consultation No. 21-011713-0007-CO, this Chamber considers the first signature as valid, and therefore, it is deemed not presented in this second consultation; thus, nine signatures remained valid. However, subsequently, a deputy (Melvin Núñez Piña) adhered to this consultation by brief filed on June 23, prior to the receipt of the legislative file. Hence, this consultation is deemed presented with the signature of 10 deputies, a number that meets the mentioned requirement of being presented by a minimum of 10 deputies.

• c)Optional consultation under file No. 21-012118-0007-CO:

The third optional consultation presented by deputies was received by this Chamber at 18:47 hours on June 23, 2021, with the signature of 10 deputies. Processed under file No. 21-012118-0007-CO and accumulated to this file by resolution number 2021-015137 at 9:15 hours on July 2, 2021. Therefore, the minimum number of 10 deputies is met. A number that does not change due to the fact that one deputy (Zoila Rosa Volio) had signed the first consultation, since her signature in that first consultation was deemed withdrawn (by brief dated June 18, before receipt of the legislative file) and, therefore, nothing prevented her from being admitted in this one. Furthermore, the withdrawal of the signature of another deputy (Paola Valladares), due to being presented on July 7, subsequent to the presentation of the legislative file, means that her withdrawal cannot be admitted, and that, therefore, this consultation maintains the signature of 10 deputies.

Thus, by unanimity, the first two consultations are considered admissible, and by majority, the third consultation is considered admissible. This is because the three consultations presented meet the two mentioned requirements. All were presented by at least 10 deputies, and all were presented after the bill was approved in the first debate. Moreover, regarding the timing requirement set by this Chamber in these cases, all were presented before the legislative file was submitted to this Chamber, that is, before June 25, 2021. In conclusion, the three prior consultations are deemed admitted.

Separate reasons of Magistrate Rueda Leal regarding the admissibility of the consultation under file No. 21-011713-0007-CO.

I note that in judgment No. 2014-012887 at 14:30 hours on August 8, 2014, together with Magistrates Cruz Castro and Salazar Alvarado, I ruled in this sense:

“XV.- Note of Magistrates Cruz Castro, Rueda Leal and Salazar Alvarado, on the withdrawal of signatures (Drafted by Magistrate Rueda Leal).- A situation that occurred during the processing of this file has drawn the attention of the undersigned Magistrates. Given it, we have considered it necessary to add this note, for although it is not a questioned point or one of great incidence in this legislative consultation process, it has manifested itself patently and requires, in our judgment, to be addressed. It is necessary to observe what occurred in this file to fully understand the observation of the signatories.

The first constitutional consultation was posed on April 22, 2014, by Carmen Granados Fernández, Xinia Espinoza Espinoza, Carmen Muñoz Quesada, Yolanda Acuña Castro, Claudio Monge Pereira, José María Villalta Flórez-Estrada, Juan Carlos Mendoza García, Justo Orozco Álvarez, Luis Fishman Zonzinski, Carlos Góngora Fuentes, Rodolfo Sotomayor Aguilar and José Joaquín Porras Contreras (12 deputies).

On April 28, 2014, Rodolfo Sotomayor Aguilar withdrew his signature; the same was done, on April 29, 2014, and through respective memorials, by Carlos Góngora Fuentes and José Joaquín Porras Contreras. That same day, by separate briefs, María Eugenia Venegas Renauld and Damaris Quintana Porras added their signatures to the consultation.

Regarding the second consultation, it was posed on April 29, 2014, by Adonay Enríquez Guevara, Damaris Quintana Porras, Danilo Cubero Corrales, Ernesto Chavarría Ruiz, Fabio Molina Rojas, Luis Fishman Zonzinski, Manuel Hernández Rivera, María Ocampo Baltodano, Mireya Zamora Alvarado and Víctor Hugo Víquez Chaverri (10 deputies). That same day, Fabio Molina Rojas, María Ocampo Baltodano and Víctor Hugo Víquez Chaverri withdrew their signatures and, a few hours later, added their signatures again. Subsequently, on June 2, 2014, now former deputies, María Ocampo Baltodano and Víctor Hugo Víquez Chaverri withdrew their signatures from the consultation.

The Chamber has referred to the procedural good faith that must prevail in optional consultation procedures:

“… In that regard, this jurisdiction is of the opinion that, on the first occasion in which Deputies formulate an optional legislative consultation, they must indicate each and every one of the constitutional defects—both of form and of substance—that they believe exist in the bill. This, given that, otherwise, the optional legislative consultation would be used as an instrument to unduly prolong the legislative procedure, subverting its purposes. The need to consult possible constitutional defects on a single occasion also responds to the procedural loyalty and good faith that must prevail in the use of any mechanism offered by the legal system to submit a specific conduct to jurisdictional oversight. There are also reasons of procedural legislative economy that impose this new stance, forasmuch as, deputies could well pose as many optional legislative consultations regarding a bill that has not undergone essential or substantial modifications as they deem necessary, giving rise to an endless chain of consultations. It must be taken into consideration, as prescribed by numeral 101, paragraph 2, of the Law of the Constitutional Jurisdiction, that the opinion rendered by the Constitutional Chamber in the consultation, ‘In any case, does not preclude the possibility that subsequently the norm or norms questioned may be challenged through the means of constitutional review’.” Consequently, going forward, this Chamber will only issue a new legislative consultation when, after the bill has been returned to the legislative process—after, of course, the first of such consultations has been heard by this jurisdictional body—substantial modifications or amendments have been introduced to it." (Judgment number 2011-14965 of 9:34 a.m. on November 2, 2011) Admitting free withdrawal in constitutionality consultations opens the door to situations where, contrary to procedural good faith, the signatures of deputies are withdrawn or added according to the parliamentary strategy of each legislator or political party, and not, as it should be, with the sincere interest of ensuring the constitutionality of the bill. Our opinion is that such defects lead to a perversion of the mechanism of the facultative constitutionality consultation, to the extent that it subjects it to the swings and vicissitudes of politics. In other words, the use of the facultative parliamentary consultation for purposes of legislative tactics contributes to the judicialization of politics, when judicial independence and the separation of powers require that the Judicial Branch and, as part of it, the Constitutional Chamber protect themselves as far as possible from that phenomenon.

Furthermore, the undersigned emphasize that in matters of unconstitutionality actions (acciones de inconstitucionalidad), it has been established that "there is no rule that authorizes the withdrawal of an unconstitutionality action" (judgments numbers 2013-008946 of 2:30 p.m. on July 3, 2013, 2013-004620 of 2:30 p.m. on April 10, 2013, and 2013-005095 of 2:30 p.m. on April 17, 2013). By virtue of the foregoing and with special emphasis on the need to protect the Constitutional Chamber from political incidents, we consider that legislative consultations that have been filed complying with the requirement of Article 96, subsection b) of the Ley de la Jurisdicción Constitucional, must be processed as appropriate, disregarding any signature withdrawal requests filed subsequently." (Emphasis not in original).

In the sub examine, I determine that this consultation was originally filed by 15 deputies, among them, Deputy Mario Castillo Méndez and Deputy Zoila Rosa Volio Pacheco. Subsequently, on June 17 and 18, they requested the withdrawal of their signatures from this consultation. In application of the transcribed jurisprudence, I consider the withdrawal of such signatures improper, and therefore I consider that they should be added to the total number of signatures.

Separate note of Magistrate Garro Vargas regarding the admissibility of the consultation processed under case file number 21-011713-0007-CO I have deemed it necessary to record this separate note to outline my position regarding the statements of the legislators who raised a "partial withdrawal" from the legislative consultation related to case file number 21-011713-0007-CO.

Since it was proven that said expression of will was made after the complete certified copy of the legislative file was received—the moment from which the Chamber rejects the possibility of withdrawing signatures—, I believe it is unnecessary for this Court to rule on whether this is admissible in itself. However, I agree with the majority of the Chamber in the sense that partial withdrawals (that is, regarding the content) from legislative consultations directed to the Constitutional Chamber are not permissible.

Dissenting reasons of Magistrate Hernández López on the admissibility of the second consultation, case file number 21-11915-007-CO Since Judgment 2014-012887, I have been consistent in pointing out that the repeated signature of deputies on different consultations filed on time (that is, before the receipt of the case file), are admissible insofar as they have new issues not originally raised in the previous consultation. From my point of view, the participation of the same deputy in different consultations is not limited by law, and therefore, the Chamber could not obstruct the exercise of that power granted to the members of the Legislative Branch through an interpretation. I consider that the Chamber should not distinguish where the law does not distinguish, and even less so with a restrictive interpretation that limits the exercise of this power.

Dissenting reasons of Magistrate Garro Vargas regarding the admissibility of the consultation processed under case file number 21-011915-0007-CO In the specific case, and upon better consideration, I separate from the majority line of the Chamber because I believe that a legislator can sign a new facultative constitutionality consultation, even though he or she has signed another one on the same bill. The foregoing is under the understanding that the signature on the previous consultation is considered not placed. In other words, an expression of will by which a subsequent legislative consultation is signed implies that the previous signature is considered withdrawn. All of this could only be done if it is prior to the receipt of the complete certified copy of the legislative file, the moment from which the withdrawal or addition of signatures becomes improper.

This interpretation seeks to comply with the requirements demanded by the Chamber, in the sense that it is not valid for a deputy to simultaneously sign more than one legislative consultation and, furthermore, it aims to protect his or her most recent expression of will.

To support the above, I consider that the following must be taken into account: Legislators are allowed the possibility of withdrawing their signature or joining an already formulated consultation, provided it is prior to the receipt of the complete certified copy of the legislative file. On the other hand, as the Chamber is ruling, the partial withdrawal of a consultation already raised is not permissible. So, it is logical that they be recognized the possibility of signing another subsequent consultation that might be more in line with their convictions and interests. In such a case, it is understood that he or she implicitly withdraws his or her signature from the previously formulated consultation.

What is not admissible—and on this I agree with the majority of the Chamber—is simultaneity. That is, signing a subsequent consultation while maintaining and counting the signature from the preliminary consultation.

With this interpretation I propose, the ratio of the legislator is observed, who imposed a requirement of a minimum of ten signatures to admit a facultative constitutionality consultation; but, in parallel, the intention or sovereignty of the legislator is respected by considering their most recent formal expression of will as valid. In that sense, I deem it pertinent to bring up what this Court has said on previous occasions:

"The Court, recognizing the right of deputies to come in consultation, has exercised its jurisdiction profusely, responding to the facultative legislative consultations made to it, but the exercise of the right must be done within the terms set by the law that governs the Jurisdiction, in an orderly and reasoned manner; allowing access indiscriminately can lead to denaturing the process and turning it into an abuse of that right, since logically it must be understood, then, that as many consultations as combinations of ten deputies are possible can be formulated" (see advisory opinion number 2000-03220, a criterion that was subsequently reiterated in the following 2014-12887, 2016-9874, and 2018-019511).

Consequently, for legislators it is only legitimate to sign a single facultative constitutionality consultation and not several, and, should this situation occur, only their last signature is considered effective, as it is the most recent expression of will. It would be understood that they are tacitly withdrawing from the first legislative consultation. These movements, I insist, are valid only if they are made prior to the receipt, by this Constitutional Chamber, of the complete certified copy of the legislative file.

Separate note of Magistrate Picado Brenes regarding the admissibility of the consultation formulated under case file number 21-011915-0007-CO (point 2 of the Por Tanto) Regarding the second facultative consultation filed by deputies, received in this Chamber at 8:11 a.m. on June 22, 2021, it is observed that Deputy Melvin Núñez Piña joined this consultation by written submission filed on June 23. That is, his joining occurred prior to the arrival of the legislative file at the Chamber. In this sense, I consider that such joining by Deputy Melvin Núñez is admissible, precisely because it was filed before the arrival of the legislative file. If the joining had been filed after June 25—the date the Legislative file entered the Chamber—said joining could not be admitted.

Dissenting vote of Magistrate Castillo Víquez on case file number 21-012118-0007-CO In accordance with my voting line (see, among others, advisory opinion number 2014-012887), I declare the third constitutionality consultation not issuable, since a deputy withdrew her signature from the consultation on July 7 of the current year and, consequently, the consultation remains with only nine signatures. Ergo, I subscribe to the thesis that at any time a deputy can withdraw his or her signature and, in this case, the constitutionality consultation does not meet the requirement of ten signatures; this is a supervening inadmissibility. The foregoing does not mean that I do not participate in the discussion and voting on the conscientious objection (objeción de conciencia), since this point is consulted in the first facultative constitutionality consultation that was indeed admitted.

Dissenting vote of Magistrate Rueda Leal with respect to the consultation formulated under case file number 21-012118-0007-CO.

As I indicated in my dissenting reasons analyzing the admissibility of case file number 21-011713-0007-CO, I consider the withdrawal of signatures of deputies in matters of legislative consultations improper. For this reason, I reiterate that I reject the withdrawal of the signature of Deputy Zoila Rosa Volio Pacheco from consultation number 21-011713-0007-CO. Since her signature must be added to that consultation, it cannot be validated for case file number 21-012118-0007-CO, which means that the latter is left with only nine signatures (including that of Deputy Paola Valladares, whose withdrawal I reject analogously). Now, such a number is insufficient to meet the admissibility requirement established by numeral 96, subsection b) of the Ley de la Jurisdicción Constitucional, which requires the signature of 10 deputies. To that extent, I declare this consultation not issuable.

Note of Magistrate Salazar Alvarado regarding the admissibility of the Legislative Consultation.

In Judgment No. 2014-012887 of 2:30 p.m. on August 8, 2014, I signed, together with Magistrates Cruz Castro and Rueda Leal, the following note regarding the withdrawal of signatures in the process of a legislative consultation:

"XV.- Note of Magistrates Cruz Castro, Rueda Leal and Salazar Alvarado, on the withdrawal of signatures (Drafted by Magistrate Rueda Leal).- "A situation that occurred during the processing of this case file has drawn the attention of the undersigned Magistrates. As a result, we have considered it necessary to include this note, because although it is not a contested point or one of great incidence in this legislative consultation process, it has manifested itself patently and requires, in our opinion, to be addressed. It is necessary to observe what happened in this case file to fully understand the observation of the signatories.

"The first constitutionality consultation was filed on April 22, 2014, by Carmen Granados Fernández, Xinia Espinoza Espinoza, Carmen Muñoz Quesada, Yolanda Acuña Castro, Claudio Monge Pereira, José María Villalta Flórez-Estrada, Juan Carlos Mendoza García, Justo Orozco Álvarez, Luis Fishman Zonzinski, Carlos Góngora Fuentes, Rodolfo Sotomayor Aguilar and José Joaquín Porras Contreras (12 deputies).

"On April 28, 2014, Rodolfo Sotomayor Aguilar withdrew his signature; the same was done, on April 29, 2014, and through separate memorials, by Carlos Góngora Fuentes and José Joaquín Porras Contreras. That same day, by separate writings, María Eugenia Venegas Renauld and Damaris Quintana Porras added their signatures to the consultation.

"As for the second consultation, it was filed on April 29, 2014, by Adonay Enríquez Guevara, Damaris Quintana Porras, Danilo Cubero Corrales, Ernesto Chavarría Ruiz, Fabio Molina Rojas, Luis Fishman Zonzinski, Manuel Hernández Rivera, María Ocampo Baltodano, Mireya Zamora Alvarado and Víctor Hugo Víquez Chaverri (10 deputies). That same day, Fabio Molina Rojas, María Ocampo Baltodano and Víctor Hugo Víquez Chaverri withdrew their signatures and, a few hours later, added their signatures again. Subsequently, on June 2, 2014, being already former deputies, María Ocampo Baltodano and Víctor Hugo Víquez Chaverri withdrew their signatures from the consultation.

"The Chamber has referred to the procedural good faith that must prevail in facultative consultation procedures:

"'… In that regard, this jurisdiction holds the view that, on the first occasion on which Deputies formulate a facultative legislative consultation, they must indicate each and every one of the constitutional defects—both of form and substance—that they believe are present in the bill. This, because, otherwise, the facultative legislative consultation would be used as an instrument to unduly prolong the legislative procedure, subverting its purposes. The need to consult on all possible constitutionality defects on a single occasion also obeys the procedural loyalty and good faith that must prevail in the use of any mechanism offered by the legal system to submit a specific conduct to jurisdictional oversight. There are also reasons of legislative procedural economy that impose this new stance, since deputies could well raise as many facultative legislative consultations regarding a bill that has not undergone essential or substantial modifications as they deem necessary, giving rise to an endless chain of consultations. It must be taken into consideration, as prescribed by ordinal 101, paragraph 2, of the Ley de la Jurisdicción Constitucional, that the opinion issued by the Constitutional Chamber in the consultation, "In any case, does not preclude the possibility that the questioned norm or norms may subsequently be challenged through the means of constitutionality control." Consequently, going forward, this Chamber will only issue a new legislative consultation when, after the bill has been returned to the legislative process—after, of course, the first of such consultations has been heard by this jurisdictional body—substantial modifications or amendments have been introduced to it.' (Judgment number 2011-14965 of 9:34 a.m. on November 2, 2011).

"'Admitting free withdrawal in constitutionality consultations opens the door to situations where, contrary to procedural good faith, the signatures of deputies are withdrawn or added according to the parliamentary strategy of each legislator or political party, and not, as it should be, with the sincere interest of ensuring the constitutionality of the bill. Our opinion is that such defects lead to a perversion of the mechanism of the facultative constitutionality consultation, to the extent that it subjects it to the swings and vicissitudes of politics. In other words, the use of the facultative parliamentary consultation for purposes of legislative tactics contributes to the judicialization of politics, when judicial independence and the separation of powers require that the Judicial Branch and, as part of it, the Constitutional Chamber protect themselves as far as possible from that phenomenon.

"'Furthermore, the undersigned emphasize that in matters of unconstitutionality actions (acciones de inconstitucionalidad), it has been established that "there is no rule that authorizes the withdrawal of an unconstitutionality action" (judgments numbers 2013-008946 of 2:30 p.m. on July 3, 2013, 2013-004620 of 2:30 p.m. on April 10, 2013, and 2013-005095 of 2:30 p.m. on April 17, 2013). By virtue of the foregoing and with special emphasis on the need to protect the Constitutional Chamber from political incidents, we consider that legislative consultations that have been filed complying with the requirement of Article 96, subsection b) of the Ley de la Jurisdicción Constitucional, must be processed as appropriate, disregarding any signature withdrawal requests filed subsequently.'" Subsequently, in Judgment No. 2016-004651 of 12:40 p.m. on April 6, 2016, I recorded another note in which I clarified the scope of my position on the issue, in the following terms:

"'Although, in Judgment No. 2014-12887 of 2:30 p.m. on August 8, 2014, I signed a joint note with Magistrates Cruz Castro and Rueda Leal regarding the withdrawal of signatures in a legislative constitutionality consultation, in the case under study, in which the petitioner withdraws the present unconstitutionality action (acción de inconstitucionalidad), I agree with the majority vote, which deems the action withdrawn, since it had not yet been admitted for study when the plaintiff filed the withdrawal, by virtue of an acquittal judgment having been issued in his favor, hence the—essential—difference from the note signed in that consultation. Ergo, it goes without saying that, in the opinion of the undersigned, it is viable, from a procedural point of view, to withdraw an unconstitutionality action while it has not yet been admitted for study, as happened in this one.'" From what is stated in the cited notes, it follows that, both in the avenue of facultative legislative constitutionality consultation and in the avenue of unconstitutionality action (acción de inconstitucionalidad), it is valid, for the undersigned, the withdrawal of signatures or the withdrawal of the action—as the case may be—provided it occurs before the Chamber receives the certified copy of the legislative file (in a facultative legislative consultation) or it has not yet been admitted for study (in an unconstitutionality action).

In this same order of ideas, it is indeed possible, in a legislative constitutionality consultation, to validly withdraw a signature before the Chamber receives the certified copy of the legislative file—the moment from which the monthly period to decide begins—, just as it must also be understood that a deputy who, before this Court receives the said copy of the legislative file, requests to be considered a signatory of the consultation, must be validly considered a consultant.

In legislative consultation No. 21-11713-0007-CO, the record shows that it was initially presented by a total of fifteen deputies, of whom Deputy Mario Castillo Méndez withdrew his signature on June 17, and Deputy Zoila Rosa Volio Pacheco retracted on June 18; in turn, Deputy Dragos Dolanescu Valenciano requested to be considered a signatory of the consultation on June 21 of last year, all of the foregoing—withdrawal and presentation of signatures—occurring before the entry of legislative file No. 21.336. In this sense, there is no impediment for both the deputy and the deputy to withdraw their signatures from the facultative consultation they formulated at its procedural moment, as explained above. Neither do I find an impediment to having Deputy Dolanescu Valenciano considered a signatory of the consultation. Said requests were initiated before the receipt of the legislative file on June 25 of last year. Subsequently, as explained further below, Deputy Aracelly Salas Eduarte signs a second legislative consultation (No. 21-11915-0007-CO), which only affects her participation in this legislative consultation). Now, having said the above, the consultation at hand is validly signed by fourteen deputies. Finally, I agree that the request to partially separate from some point of the consultation (conscientious objection, objeción de conciencia) must be rejected if that request is formulated after the entry of the file, as happened with the statements of Deputy Sylvia Patricia Villegas Álvarez and Deputy Walter Muñoz Céspedes, in requests of June 30 of last year.

Regarding legislative consultation No. 21-11915-0007-CO, it is noted that it was filed by ten deputies, although Deputy Aracelly Salas Eduarte had also signed legislative consultation No. 21-11713-0007-CO, it is important to maintain the obligation of the consultant to indicate each and every one of the constitutional defects—both of form and substance—that they believe are present in the bill. The aim is to prevent the facultative legislative consultation from being used to prolong the legislative procedure, inverting its purpose. In this sense, the reasons given in the notes transcribed above must be reiterated. Consequently, for the undersigned, the signature of Deputy Salas Eduarte would be admissible with the first consultation, but not for the second. Consequently, I believe it is admitted with the ten signatures, together with the one presented by Deputy Melvin Núñez Piña, when he presented it on June 23; that is, before June 25 when the legislative file entered the Chamber.

Finally, regarding legislative consultation No. 21-12118-0007-CO, I agree with the majority of the Chamber that it is not possible to admit the withdrawal of the signature of Deputy Paola Valladares Rosado, given that the request was formulated on July 7 of last year, when the legislative file had evidently been provided to the Constitutional Chamber on June 25 of last year. That is, the request for the withdrawal of her signature does not proceed based on the reiterated criterion set forth above. As for the problem of the repetition of the signature of Deputy Zoila Rosa Volio Pacheco (between the first and this last legislative consultation), I believe it is admissible, since it suffices to specify that the petition to have her excluded from the first consultation was filed on June 18, and that the decision to support the last legislative consultation was subsequent to that date, it is valid because it occurred before the entry of the legislative file. Note that this last legislative consultation entered on June 23, after the withdrawal request (June 18), and before the date of entry of the legislative file on the 25th.

For all the foregoing, it is proper to consider them as consultants, except in the case of Deputy Castillo Méndez, in accordance with the reasoning expressed.

• 2)On the admissibility of the facultative consultation filed by the President of the Supreme Court of Justice (art. 96.c of the Ley de la Jurisdicción Constitucional).- (drafted by Magistrate Castillo Víquez) By majority, the special facultative constitutionality consultation filed by the Supreme Court of Justice is declared not issuable for the reasons explained below. In the first place, it must be borne in mind that the Constitutional Chamber has a period of one month set by law to issue the admitted consultation. In that sense, and so that the processing of the advisory opinion does not become an obstacle for Parliament to exercise its legislative power, this Court must establish a moment for the commencement of the period to be certain of the last day to issue it. That is why the Constitutional Chamber has established the receipt of the legislative file or the accumulation as the moment of commencement of the period; from those moments, it is not possible to admit new consultations, whether from deputies or from other bodies external to Parliament. Secondly, it is clear that the Supreme Court of Justice knows this position of the Court—it has been reiterated jurisprudence—, therefore, and especially given that the bill in its original and final version was subject to constitutional consultation by this branch of the State in accordance with numeral 167 of the Fundamental Charter, it is clear that the Supreme Court of Justice had sufficient time to make the consultation before the receipt of the legislative file or the accumulation of consultations. Finally, if the commencement of the period defined by the Chamber were to be shifted due to new special facultative constitutionality consultations by external bodies, the period could be extended by up to five months, all of which would entail not only a violation of numeral 101 of the Ley de la Jurisdicción Constitucional, but also constitute an undue interference in the iter of the bill in the parliamentary procedure, with the aggravating factor that the political times and moments in the Legislative Assembly are changing and volatile, and thus could, in many cases, undermine the agreements reached in the Legislative Assembly. Hence, for the reasons noted above, the consultation filed by the Supreme Court of Justice is not issuable for being untimely.

Dissenting vote of Magistrates Garro Vargas and Picado Brenes who admit the consultation (with drafting by the latter) This consultation filed by the Supreme Court of Justice is made based on art. 96.c) of the Ley de la Jurisdicción Constitucional. According to that rule, it must meet the following requirements for its admissibility: it must be a consultation on a legislative bill (object), it must be filed by the body legitimized to do so (subject), it must be filed after the bill is approved in the first debate (moment), it must be formulated in a reasoned memorial expressing the questioned aspects (form), and the matter consulted must refer to aspects related to its constitutional competence. In this case, the consultation formulated by the Supreme Court of Justice fully complies with all the previous requirements: the consultation is filed on the bill called "LEY MARCO DE EMPLEO PÚBLICO", processed under legislative file number 21.336; it is filed by the President of the Supreme Court of Justice pursuant to article I of the agreement of the Court in Full Session (Corte Plena) number 27-2021 of June 30, 2021. Furthermore, it is filed after the bill was approved in the first debate (given on June 17, 2021) and in a reasoned memorial. Likewise, the matter consulted refers to aspects of the bill related to the constitutional competences of the Supreme Court of Justice. It is relevant to delve into the importance of this type of consultation for Constitutional Law. Through the prior constitutionality review (control previo de constitucionalidad), the legislator has allowed several bodies—relevant to our democratic system—to raise the consultation and thereby prevent bills vitiated constitutionally in substance or form from becoming part of the positive legal order. Thus, in addition to the deputies, the legislator enabled the following bodies to file consultations in which the Chamber would exercise prior review: the Supreme Court of Justice, the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones), the Comptroller General of the Republic (Contraloría General de la República), and the Office of the Ombudsman (Defensoría de los Habitantes). In the specific case of the Supreme Court of Justice, it is understood that the consultation may be made on bills or motions incorporated into them, in whose processing, content, or effects it is estimated that the principles or rules relating to its respective constitutional competence were unduly ignored, interpreted, or applied. Note that it involves granting one of the Branches of the Republic the possibility of preventing a bill from being approved against what they consider are their constitutional competences. As Alexander Hamilton (one of the founding fathers of the United States) said back then in his essay The Federalist No. 78, and as doctrine supports today, the Judicial Branch is the weakest of the three Branches, because "it has no influence over either the sword or the purse... It may truly be said to have neither FORCE nor WILL, but merely judgment." Thus, then, this is one of the few powers the legislator has granted to the Judicial Branch to enforce its constitutional competences, prior to the norm being approved as a law of the Republic. Now, there is an aspect that is relevant to emphasize. A situation had been arising in practice: several groups of deputies were filing multiple legislative consultations on the same bill, deferred in time, causing the one-month period the Constitutional Chamber has to decide to run almost ad infinitum. In this way, given the legal vacuum regulating the maximum period deputies had to file consultations and the moment from which the one-month period to decide the consultation began to run, this Chamber determined, through constitutional jurisprudence, to regulate such a situation and established that, after the date on which the certified copy of the legislative file is considered received, the period to issue the consultation begins to run, and therefore, from that point on, it was not possible to consider new facultative consultations admitted.

However, note that such limitation proved applicable only to consultations submitted by deputies (art. 96.b), since almost all the consultations filed over more than 30 years of this Constitutional Chamber’s history were submitted by deputies. Furthermore, note that the moment from which the one-month period this Chamber has to resolve the consultation begins to run has been held to start from receipt of the legislative file, but also from joinder (see ruling no. 2017-009690) or from receipt of the request for evidence to better resolve (see ruling no. 2014-003969). Therefore, the moment at which the Chamber deems the legislative file received cannot be taken as the sole criterion for beginning to count the one-month period, nor can it be applied as a limiting factor or statute of limitations for the admissibility of other types of consultations filed based on other subsections of art. 96 of the Law of Constitutional Jurisdiction. First, establishing the date on which the legislative file is deemed received as a limiting factor for receiving new legislative consultations was determined thus by case law and due to the practical situation indicated regarding deputies; therefore, it is not applicable to other scenarios that are unrelated to legislative consultations raised by deputies. Note that the start date of the one-month period to resolve is one thing, and the expiration of the power to file new consultations is another. The start date of the one-month period can be from the moment the legislative file is received, but also, in other cases, from the date of the Chamber’s resolution on joinder or from the date of receipt of evidence ordered to better resolve. Certainly, by case law, this Chamber has indicated the moment from which the one-month period it has to resolve the consultation begins to run, but it has done so, as stated, on the occasion of the particular situation that had been occurring with consultations submitted by deputies. Thus, for example, it proceeded when the following was stated in ruling no. 2007-009469:

“… this Chamber must state that the petition filed at folio 841 of the file, whereby the consulting deputies seek to expand the arguments of the consultation to other aspects not consulted in their initial brief, is inadmissible. The foregoing, not only due to the absence of a legal norm authorizing them to make such expansion, but also because the one-month period this Court has to rule would become impossible to meet if it were permitted that new arguments or aspects to be addressed be presented at any time. Note that the consulting parties are not citing supervening aspects occurring after the presentation of the initial document, but rather seek that the Chamber assess new arguments that they did not initially present, which is improper for the reasons indicated.” In the second place, the maximum period in which another Branch of the Republic, such as the Judicial Branch, may itself make use of this legal power to file a facultative consultation of constitutionality cannot be made to depend on an act of the President of the Legislative Assembly (the date on which a copy of the legislative file is sent to the Constitutional Chamber). Note that, very easily, if such an argument were admitted, one Branch of the Republic (Legislative Assembly) would be preventing another (Judicial Branch) from raising this prior constitutionality review, and the legal power granted to the Judicial Branch would be rendered nugatory in practice. This, in the eventual case where, once the legislative consultation is filed on a given date, the Legislative Assembly simultaneously submits a certified copy of the legislative file. Moreover, this minority does not overlook what could occur in reality regarding the time needed to draft a consultation, since several days may pass from the moment the bill is voted on in the first debate until the Drafting Committee has it ready for the public, making immediate access to the text as approved difficult, and thereby delaying the consultation that any other authorized body might wish to file, since to do so, the text as approved must be available. Additionally, note that the ruling made by the Presidency of the Constitutional Chamber, when it deems a consultation received, is notified only to the Legislative Assembly, and not to the other bodies authorized by the Law of Constitutional Jurisdiction to file consultations on their own. Therefore, there is no formal communication to these other bodies regarding the receipt of the consultation filed. In the third place, since it is a consultation whose legitimized subject is a body of complex composition, such as the Supreme Court of Justice, it is understood that the decision to consult the Constitutional Chamber requires its internal procedure, ranging from discussion in the Full Court to the approval of the respective agreement, drafting, signing, and filing of the consultation. This entire set of acts requires time, and it is not possible to rush the Court to do so before the legislative file is sent. Note that the only maximum period that the legislator has set is that the consultation be made before the definitive approval of the project in question, as provided in the last paragraph of art. 98 of the Law of Constitutional Jurisdiction (“In the other scenarios, the consultation must be filed before definitive approval.”). This Chamber could not now act against such a legal provision to deny the admissibility of the consultation made by the Court. In the fourth place, in this case, it is evident that, certainly, the consultation was made on July 1, 2021, after the project was approved in the first debate (on June 17, 2021) and before its definitive approval. Additionally, since it was joined by resolution 2021-015240 of July 2, 2021, on the same day the other consultations submitted by deputies were joined, the “one-month” period the Chamber has to resolve runs from the date of these joinder resolutions. Therefore, the fact that this consultation of the Supreme Court of Justice is admitted in no way shifts the start of the one-month period to resolve, which is July 2, 2021. That is, the Court’s consultation in this case does not delay the period this Chamber has to resolve the consultation. It is not valid for this Chamber to admit running the start date of the month period from July 2, 2021, and not from the date of receipt of the file, yet still maintain the latter date to limit the filing of the consultation made by the Supreme Court of Justice. In the fifth place, in the same sense as occurred in the precedent resolved by ruling no. 2016-018351 of 11:15 a.m. on December 14, 2016, the facultative consultation made by the Office of the Ombudsman (Defensoría de los Habitantes) (filed on November 14, 2016) was deemed admitted, even after the date of receipt of the legislative file (provided on November 4, 2016). This situation should be no different from the present one, regarding admitting the consultation of the Supreme Court of Justice, even after the legislative file was received. In the sixth place, in this matter and when there is a legal gap, an interpretation favoring the possibility of review must prevail—not excessively formalistic, nor restrictive—in consideration of the principle of constitutional supremacy. As this Chamber has stated in a prior case where there was a legal gap regarding the admissibility of legislative consultations:

“Given the normative gap on the admissibility of the consultation (…), this Constitutional Court, in furtherance of the principles of constitutional supremacy contained in articles 10 of the Political Constitution and 1 of the Law of Constitutional Jurisdiction, the direct and immediate effectiveness of the Constitution, according to which legislative development of constitutional principles, values, and precepts is unnecessary, the stronger binding force of fundamental rights, the hermetic completeness of the legal system, and legal certainty, opts to admit them so that they may be addressed on the points to be determined below. The constitutional jurisdiction must be a reflection of the open and flexible texture of Constitutional Law, and its interpretation must be spiritual and not formal. On this matter, article 14 of the Law of Constitutional Jurisdiction provides that “(…) In the absence of an express provision, the principles of Constitutional Law, as well as those of general Public and Procedural Law, shall be applied (…).” It is clear that (…) This competence could not be interpreted restrictively, taking into consideration the principle of constitutional supremacy. For the foregoing reasons, this Court deemed it proper to proceed with the consultations on constitutionality filed, because given the existence of a legal gap, it must be interpreted in favor of the possibility of review…” (see ruling no. 2007-009469).

In conclusion, in accordance with the prior case law of flexibility in admissibility and pursuant to the arguments given, we proceed to dissent by considering that this consultation filed by the Supreme Court of Justice must also be deemed admitted. In this sense, as we deem this consultation admissible, it is our duty to rule on what was consulted in accordance with article 99 governing this jurisdiction.

• a)The consultation is addressed, and articles 13, 32, 33, 34, and 36 of the bill are considered unconstitutional with respect to the Judicial Branch.

Regarding article 13 of the Public Employment Framework Law bill: The Supreme Court of Justice considers that article 13 of the bill grants Mideplán the power to fill the content of the regulations specific to the families created in the bill, through a simple administrative act, despite the fact that the regulation of the functioning of the Judicial Branch is a legal reserve (reserva de ley) and, therefore, since the article does not determine how these “families” and their specific regulations are to be filled with content, it could be contrary to Constitutional Law for such filling to be carried out through an administrative act of Mideplán. It is stated that the regulation of the indicated families in article 13 of the bill is very poor, so it is understood that it will be carried out through the exercise of regulatory power, via regulation (reglamento), and even through lower-ranking norms, given that the distinction between families implies a singular treatment depending on the type of service provision involved, which is contrary to article 154 of the Political Constitution. The consultation indicates that the possibility of defining the different employment relationships in the Judicial Branch is transferred to regulations specific to lower-ranking norms issued by Mideplán, thereby emptying the self-regulatory power of the Judicial Branch of its content and transferring the possibility of regulation through autonomous regulations (reglamentos autónomos) to the adoption of other types of regulations and, worse yet, of provisions of general scope, directives, circulars, manuals, and resolutions by Mideplán. It is considered that, with the foregoing, the very purpose of the indicated constitutional norm, based on judicial independence, may be put at risk, since Mideplán will have full powers to determine the specific regulation of each family through a simple regulation or, even more seriously, through an administrative act, without respecting that the regulation of the Judicial Branch, regarding its organization and functioning, is a legal reserve. It is noted that the legal reserve of article 154 of the Constitution is broad because it seeks to safeguard judicial independence, and consequently, matters related to the functioning of the Judicial Branch cannot be left to a simple administrative act of Mideplán.

On this matter, after a respective analysis of the arguments in the Judicial Branch’s consultation regarding article 13, it is concluded that this norm indeed encroaches upon the Constitution. Upon reviewing the comprehensiveness of the bill and what can be foreseen will occur with the specific application of this article, it is clear that if the content of the phrase “job families (familias de puestos)” as well as the regulations that would make it applicable are issued through the exercise of regulatory power, via regulation, and even through lower-ranking norms such as provisions of general scope, directives, circulars, manuals, and resolutions, all issued by Mideplán, which will be the governing body on public employment matters.

On this matter, the Constitutional Chamber has been very clear in establishing that the independence of the Judicial Branch translates, in economic matters and through the irremovability of its personnel, as well as, functionally, through the real possibility of making its decisions according to its own criteria and not as a result of pressure from certain groups, institutions, or persons (see judgment number 2000-5493). It should be recalled that the independence of the Judicial Branch refers to the existence of a set of guarantees aimed at preventing it from becoming controlled by other governmental bodies, such as the Executive and Legislative branches. The State of the Justice report states that: “The greater the influence of those other actors on the selection of personnel and cases to handle, on administrative decisions, jurisdiction, and law enforcement, the lesser the independence of the Judicial Branch” (Estado de la Justicia Report 1, 2015, page 92). In this sense, the justice administration system is autonomous insofar as it depends on itself and not on other branches; externally, that independence is the absence of external pressure or influences that make the institution vulnerable, as a result of threats to the availability of resources allowing it to carry out its work with autonomy, to job stability and promotion opportunities for its officials, to its integrity and assets, and to its infrastructure capacities to meet citizen demands.

It is also of interest to recall that in Advisory Opinion no. 2018-019511, in which the legislative consultation regarding the “Public Finance Strengthening Law” bill (legislative file no. 20.580) was heard, this Chamber concluded—after performing interpretive work regarding the content of the bill—that, specifically, what was provided in articles 46, 47, and 49, concerning the “governing authority of Mideplán on public employment matters” and “the mandatory nature of the technical and methodological guidelines of the General Directorate of Civil Service,” did not apply to the Judicial Branch; an interpretation made considering the principle of independence of the Judicial Branch. Later, moreover, based on the prior Advisory Opinion, the Chamber has endorsed the existence, appropriateness, and necessity of a particular public employment regime for Judicial Branch employees.

Consequently, what is established in article 13 of the Public Employment Framework Law bill is unconstitutional because the broad powers granted to Mideplán, so that through sub-legal norms, it can develop the content of the job families that would apply in the Judicial Branch, is injurious to the principle of judicial independence.

Regarding article 32 of the Public Employment Framework Law bill: Article 32 of the bill establishes that each labor family will be composed of a series of grades, each representing a group of positions with a similar profile, with Mideplán defining the number of grades required within each labor family as well as their characteristics; grades that will consist of a range of remuneration points. On this matter, the consultation filed by the Supreme Court of Justice states that very broad powers are also derived from this article, granted to Mideplán regarding the possibility of filling the content of the families, as well as their characteristics, leaving that determination subject to the criteria and interpretation of Mideplán, considering that the deliberate gap in the regulation of families benefits the mere administrative act through which Mideplán will regulate it. The consultation deems that the foregoing is provided to the detriment of the independence the Judicial Branch holds to regulate everything related to the management of its human resources, but also to the detriment of legal certainty in the employment relationship of judicial employees.

On this matter, it is concluded that the Supreme Court of Justice is correct in considering that this norm also harms Constitutional Law because, once again, its content leaves it to the discretion of the incumbent head of Mideplán to issue the corresponding regulation for the grades of the labor families, as well as to establish the groups of positions within the Judicial Branch with a similar profile, their characteristics, the methodology for evaluating jobs, and the evaluation itself that will determine the remuneration points for each grade and the salary progression of the points to be paid to the employee, which will be based on a satisfactory professional performance evaluation, also conducted by Mideplán. Consequently, it is more than evident that powers that were formerly the Judicial Branch’s own, exclusive, and excluding will now belong to a body of the Executive Branch, with the consequent violation of the principle of judicial independence that this implies, but also, it is true that employees will be subjected to a constant uncertainty regarding those aspects, which will ultimately result in a violation of the principle of legal certainty to their detriment.

From the content of article 32 under study, it is evident that here, once again, constitutional powers that belonged to the governing body of the Judicial Branch, which is the Supreme Court of Justice, would be transferred to a body of the Executive Branch, which would undoubtedly harm judicial independence, but will also cause an imbalance in the relationship of branches to the detriment of the Judicial Branch because Mideplán will have broad powers in open interference in the functioning of the Judicial Branch, with the consequent violation of the principle of separation of branches, according to which one Branch of the Republic cannot interfere with or impose itself upon another Branch in the exercise of its own functions and attributions. Consequently, article 32 of the Public Employment Framework Law bill is unconstitutional.

Regarding article 33 of the Public Employment Framework Law bill: The Supreme Court of Justice deems article 33 of the bill under study unconstitutional because, once again, it grants broad powers to Mideplán which, according to this article, will be the body that classifies jobs into labor families and grades, since all public service positions must have a detailed job manual that will be prepared by that body of the Executive Branch. According to this article, job descriptions will reflect the duties actually performed and, once each job has been described, analyzed, and evaluated, Mideplán will assign it to a labor family and a grade within that family. The consultation considers that such possibility of defining the different employment relationships in the Judicial Branch through regulations specific to lower-ranking norms made by Mideplán would violate the legal reserve in this matter and, thus, would empty the self-regulatory power of the Judicial Branch of its content, with the consequent harm to judicial independence, since Mideplán will have full powers to determine the specific regulation of each family through a simple regulation or administrative act. The consultation warns of the seriousness of this situation, particularly with reference to prosecutors, since they would be incorporated as part of a common family, without distinguishing and taking into account their own characteristics and the particularities of the position, all at the discretion of Mideplán, but to the detriment of the independence of the Judicial Branch, because it opens the possibility of open interference in its functioning, which could perfectly be done through a simple administrative act by the person in charge of Mideplán. The consultation considers there is a risk because a series of Judicial Branch positions—such as judges, prosecutors, defenders, members of the Superior Council—which should be barred from interference by other Branches of the Republic for legal certainty, judicial independence, and protection of public freedoms, will now, with this bill, be subjected to Mideplán’s control; it is deemed that this represents a risk of becoming an instrument hostile to the separation of Branches and a means in the hands of a potential Executive Branch that wishes to use it to affect the democratic system towards authoritarian alternatives.

In this regard, we consider that, on this point, the questioning raised by the Supreme Court of Justice in the consultation under study is correct, since it is true that article 33 of the Public Employment Framework Law bill also grants broad powers to Mideplán regarding the power to classify jobs into labor families and grades. From a reading of article 33 of the bill, it is easy to deduce that the separation of branches, the legal reserve constitutionally established in favor of the Judicial Branch, and judicial independence will be violated, since—again—it attributes to Mideplán a power regarding human talent management that has always been the governing body of the Judicial Branch’s own, and which can now be exercised, even through simple administrative acts that will produce their own effects on the organization and functioning of the Judicial Branch. Based on such broad powers to be granted to Mideplán, only scant residual powers would remain for the Judicial Branch, which would be insignificant in light of everything that would be transferred to that body of the Executive Branch, as observed in the bill under consultation. Mideplán would be left with broad powers that it can exercise unilaterally and vertically from its side, in open violation of the independence of branches, since it is eliminating constitutional powers from the Supreme Court of Justice in favor of a body of the Executive Branch that is, moreover, subject to free removal and appointment by the President of the Republic. Consequently, article 33 is harmful to Constitutional Law and is so declared.

Regarding article 34 of the Public Employment Framework Law bill: Article 34 of the bill under study establishes the global salary scale (columna salarial global) to be prepared by Mideplán, the Technical Secretariat of the Budgetary Authority, and the General Directorate of Civil Service. On this matter, the consultation of the Supreme Court of Justice recalls that the Judicial Branch has constitutional powers assigned regarding its governmental function, recognized by this Constitutional Chamber itself in judgment no. 2017-009551, where it was indicated that articles 153 and 154 of the Constitution contain essential attributions, that is, explicit and implicit authorizations of the Judicial Branch related to its governmental function, and within these lies the power of organization of Judicial Branch personnel; a governmental function that makes the Supreme Court of Justice the first interpreter of the norms applicable to its personnel as it concerns matters corresponding to its organization and functioning, and it is not acceptable that, through a simple administrative act, it be imposed how to regulate its public employment relationship, as is intended with the bill under consultation, and with article 33, in particular. The consultation further argues that although this norm, in principle, establishes a cooperative relationship to create the global salary scale, what the Judicial Branch indicates in no way obligates the bodies of the Ministry of the Presidency, the Ministry of Finance, and Mideplán. Coupled with this, it is established that Mideplán's relationship will be with the Human Resources Management Office (Dirección de Gestión Humana) of the Judicial Branch and not with the Supreme Court of Justice; therefore, there is a serious defect of unconstitutionality, since Mideplán will “coordinate” with that Office the definition of the Judicial Branch’s global salary scale, entirely ignoring the supreme governing body of the Judicial Branch, which is the Full Court. Therefore, they deem that with this article, there is a regression and an impact on the principle of progressivity in the right that all persons have to a Judicial Branch not exposed to risks of interference from other branches, that is, to judicial independence..." LBH10/22 ... See more Content of Interest:

Content Type: Majority Ruling Branch of Law: 3. CONSTITUTIONALITY CONTROL MATTERS Topic: LABOR Subtopics:

NOT APPLICABLE.

017098-21. LABOR. FACULTATIVE LEGISLATIVE CONSULTATION ON CONSTITUTIONALITY, REGARDING THE BILL ENTITLED “PUBLIC EMPLOYMENT FRAMEWORK LAW.” LEGISLATIVE FILE NO. 21.336.

We deem that regarding this article, it must be said that the Constitutional Chamber was very clear in Advisory Opinion no. 2018-019511 in stating that the “governing authority of Mideplán on public employment matters” and “the mandatory nature of the technical and methodological guidelines of the General Directorate of Civil Service,” which were contained in the “Public Finance Strengthening Law” bill (legislative file no. 20.580), did not apply to the Judicial Branch; an interpretation made considering the principle of independence of the Judicial Branch. However, in the bill under study, it is observed that the legislator ignored that criterion and, instead, now submits for the consideration of this Court norms that evidently harm the principles of separation of branches and judicial independence, since, with norms such as this article 34, it intends that Mideplán, together with the Technical Secretariat of the Budgetary Authority and the General Directorate of Civil Service, be the ones to prepare the global salary scale to be applied to Judicial Branch employees, in absolute contradiction with what is provided in article 152 of the Constitution, which states that “the Judicial Branch is exercised by the Supreme Court of Justice,” and in articles 9 and 154, which provide, respectively, the principle of separation of branches and the principle of independence of that Branch of the Republic. It should be recalled that the Chamber has made express reference to the impropriety of an external body assuming the governing authority or imposing criteria on the Judicial Branch in these matters and, conversely, has emphasized that the functional independence and autonomy expressly recognized for the Judicial Branch in the constitutional text itself (articles 9, 152 et seq., and 177), materialized and guaranteed in its own organic norms, imposes on the heads of the Judicial Branch the competence and responsibility to decide—without undue interference—on the various matters, among them, those that are currently subject to regulation in the Public Employment Framework Law bill under consultation (see judgments no. 2019-25268 and 550-91).

Likewise, it must be said that this Court was very clear in Advisory Opinion no. 2018-019511 in stating that the independence of the Judicial Branch is one of the cardinal foundations of the Costa Rican Rule of Law and that, based on articles 9, 154, and 156 of the Political Constitution, a profuse normative framework specifically designed to regulate the Judicial Branch has been created, such as the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), the Organic Law of the Public Prosecutor's Office (Ley Orgánica del Ministerio Público), the Organic Law of the Judicial Investigation Agency (Ley Orgánica del Organismo de Investigación Judicial), the Judicial Branch Salary Law (Ley de Salarios del Poder Judicial), the Judicial Service Statute (Estatuto de Servicio Judicial), among others, which have the intention of regulating this Branch and ensuring that its independence vis-à-vis the other Branches of the Republic is guaranteed. It was also stated in that resolution that decision-making in labor matters, whether general or specific:

“… are already regulated by the aforementioned normative framework of the Judicial Branch, making it impossible for an external body to assume the ‘governing authority’ or impose criteria on that Branch. Moreover, said normative framework is designed to guarantee the efficiency of the judicial function and protect judicial employees from external interference.” In this way, the Chamber has recognized that the Judicial Branch is key to Costa Rican democracy, so much so that “The fact that Costa Rica today has the oldest and most stable democracy in Latin America is unimaginable without the functioning of a robust justice administration system and without the recent efforts to modernize it.” (see ruling no. 2018-005758).

Therefore, "if the Judicial Branch is not given importance in the social and democratic Rule of Law for its correct functioning, its weakening leads to anti-democratic forms of government; proof of this is that one of the functions that authoritarian or totalitarian governments first control is the judicial function, hence the importance of every democratic system having a robust Judicial Branch." (see Voto n°2017-09551). This Article 34 of the bill, as drafted, would harm the Judicial Branch and its independence —as the key to this Branch's robustness— as well as the principle of separation of powers, but even more seriously, it would cause its weakening to the detriment of democracy.

On the other hand, it must be said that, regarding public employment, the Judicial Branch is clearly subject to the fundamental principles of the public employment regime of Article 191 of the Constitution, including in concordance with Article 11 of the Constitution, since it is also subject to the respective procedure of results evaluation and accountability. Additionally, the Chamber has understood it as valid and justified that the Judicial Branch has its own regulatory framework that specifically, particularly, and differently regulates the employment relations between said Branch and its servants and the evaluation of their performance, and, as stated supra, it has been recognized that said regulatory framework —composed, among others, of the Ley Orgánica del Poder Judicial, the Ley Orgánica del Ministerio Público, the Ley Orgánica del Organismo de Investigación Judicial, the Ley de Salarios del Poder Judicial, and the Estatuto de Servicio Judicial— is specifically designed to guarantee the efficiency of the judicial function and the independence of the Judicial Branch, to the point that it has been established, as jurisprudential criteria, that we are in the presence of special regulations that have preponderance over general provisions and cannot be repealed, at least not tacitly, by a later general rule. Consequently, Article 34 of the Ley Marco de Empleo Público bill is injurious to Constitutional Law and is so declared.

Regarding Article 36 of the Ley Marco de Empleo Público bill: The consultation indicates that the bill subordinates the remuneration policy of the Judicial Branch to a definition by the Dirección General de Servicio Civil, Mideplán, and the Autoridad Presupuestaria of the Ministerio de Hacienda, as well as the respective approval by the Consejo de Gobierno. They estimate that this numeral creates a competence for these three bodies, subordinating it to the respective approval of the Consejo de Gobierno, ignoring the constitutional competences of the governing body of the Judicial Branch, which is the Corte Suprema de Justicia, thereby creating a tacit repeal of the competences of the Corte Suprema de Justicia in matters of defining the remuneration of judicial servants and an open interference by the Executive Branch in the decisions implemented in this regard within the Judicial Branch, annulling the constitutional competences of the Corte Suprema de Justicia and attributing to the Executive Branch decisions that have an open impact on the functioning of the Judicial Branch. It is further argued that the vertical and absolute relationship with the Consejo de Gobierno based on the action of the Executive Branch's own bodies violates the coordination-cooperation relationship that must exist between the Branches of the Republic and establishes a directing relationship that implies a vice of unconstitutionality as it is an open interference by the Executive Branch in the most elemental decisions regarding the remuneration of judiciary staff, prosecutors, etc., without taking into consideration, in any way, the opinion of the Corte Suprema de Justicia or the Consejo Superior del Poder Judicial. The consultation recalls that in the system of checks and balances regulated by the Constitution, in accordance with a democratic State, only a Law with a vote of 38 deputies can supersede the Court's criteria, and not through a mere interpretation by the Executive Branch determining how its functioning should be. The consultation recalls that the Corte Suprema de Justicia has exclusive and excluding competences regarding the governance of the Judicial Branch in matters of salary setting for its staff.

In relation to this Article 36, it must be remembered that the Sala Constitucional, in judgment number n°550-91, stated that in light of the principle of judicial independence, in the specific case of the Judicial Branch, it is fully justified for it to have a special, separate, and differentiated regulation regarding the salary remuneration of its employees, subject to the fundamental constitutional principles provided for in Articles 191 and 192 regarding proven suitability:

"(…) in the case of the branches of government, their own constitutional independence, guaranteed in general by Article 9 of the Constitution and, for the Judicial Branch and the Tribunal Supremo de Elecciones, by Articles 99 et seq., 152 et seq., and 177 of the same, as well as their own organic laws, impose on their heads the attribution and responsibility of setting the remuneration, representation expenses, and other facilities inherent to the positions, for their own members and subordinates, within, naturally, their budgetary availabilities, independently, of course, of whether their amounts may or may not coincide with those of the deputies." From this perspective then, it will be up to the Judicial Branch to establish everything related to the salary remuneration of its employees, so that any interference on this matter by another Branch of the Republic concerning the Judicial Branch would imply an injury to its independence, but also to the separation of powers. The Sala Constitucional, in judgment n°03575-1996, has been very clear in establishing that, regarding public employment:

"… it is possible to conclude that the competent state body in this matter is each branch of the Republic, given that it is these—Executive, Legislative, Judicial, and Tribunal Supremo de Elecciones—that are most capable of determining their needs and understanding their particular conditions." Without a doubt, the preceding quote is correct, for who is better equipped than each Branch of the Republic to determine what its personnel needs are or are expected to be, in which areas it needs them, under what conditions contracts can be made and what requirements to request, and what the correct remuneration to pay would be, among other aspects that, in the case of the Judicial Branch, are inherent to its nature and the functions it is called upon to carry out. From this perspective, it is not valid, therefore, for an external body from the Executive Branch, such as Mideplán, to determine the remuneration policy for Judicial Branch employees when it does not even have full and timely knowledge about the characteristics of its employees, institutional needs, and the type of remuneration applicable to them in light of the dangerousness of their functions, the responsibility they bear in their exercise, the urgency of their action, among other aspects that the Judicial Branch must recognize and validate. Allowing an external body from the Executive Branch to determine the remuneration policy for Judicial Branch employees, without it having knowledge of institutional needs, implies not only a violation of the principle of independence of the Judicial Branch but also of the separation of powers.

At this point, it is pertinent to highlight what the Sala Constitucional stated in judgment nº 2017-009551 regarding the importance of the Judicial Branch in the Rule of Law and the exercise of its administrative function with independence:

"The Judicial Branch today is not an 'empty' or 'devalued' power (as it was considered at the beginnings of the modern State); it is precisely one of the clear objectives of dictators to lower the profile of its independence, to undermine economic independence, or to pack the courts with 'ideologically oriented' judges (court-packing, which fortunately did not happen in the USA despite a large partisan majority in Congress in tune with its president F. D. Roosevelt, but with grim criticism within its own ranks); if the Judicial Branch is not given importance in the social and democratic Rule of Law for its correct functioning, its weakening leads to anti-democratic forms of government; proof of this is that one of the functions that authoritarian or totalitarian governments first control is the judicial function, hence the importance of every democratic system having a robust Judicial Branch." (…) "both legislative and judicial functions require an administrative support structure for the achievement of their essential or primary function, such as the administrative function that helps channel all their activity; which, logically, reaches the human resources or personnel of the Branches of the Republic, meanwhile, behind the fundamental function is the administrative function of personnel, agents, and public servants, etc." Nor can it be overlooked that this Tribunal, in advisory opinion n°2018-019511, indicated that the special norms regulating the Judicial Branch ensure that its independence from the other branches is guaranteed, and the systematic constitutional interpretation prevents indirect regulation of the judicial service through directives or guidelines from other instances:

"… Among the norms of this framework are the Ley Orgánica del Poder Judicial, the Ley Orgánica del Ministerio Público, the Ley Orgánica del Organismo de Investigación Judicial, the Ley de Salarios del Poder Judicial, the Estatuto de Servicio Judicial (including its reform by the Ley de Carrera Judicial), etc. Clearly, the norms stated above intend to concretely regulate the Judicial Branch, ensuring that its independence from the other Branches of the Republic is guaranteed." (…) "Furthermore, this regulatory framework is designed to guarantee the efficiency of the judicial function and protect judicial servants from external interference, as indicated in Article 1 of the Estatuto de Servicio Judicial: 'Article 1.- This Statute and its regulations shall regulate the relations between the Judicial Branch and its servants, in order to guarantee the efficiency of the judicial function and to protect those servants.' Note that the norm determines that the employment relations between the Judicial Branch and its servants are regulated by the Statute and its regulations. The systematic interpretation required by this article prevents an indirect regulation of the judicial service through directives or guidelines from other instances. This is verified because the issuance of the regulations referred to in the norm is, in turn, the exclusive competence of the Court, as indicated by the same Statute: 'Article 5.- Before issuing an internal work regulation, whether of a general nature for all judicial servants or applicable only to a group of them, the Court shall make the respective draft known to those servants, through the most appropriate means, so that they may submit their observations in writing, within a period of fifteen days. The Court shall take these observations into account to resolve accordingly, and the regulation it issues shall be mandatory without further procedure, eight days after its publication in the "Boletín Judicial".' A further guarantee of the independence of the Judicial Branch in employment matters is that the Head of the Personnel Department is linked to the President of the Court, excluding interference from external instances: 'Article 6.- The Personnel Department of the Judicial Branch shall operate under the direction of a Head who shall report directly to the President of the Court and shall be appointed by the Corte Plena." Thus, it is more than evident that Article 36 of the Ley Marco de Empleo Público bill under study is unconstitutional because it injures the principles of separation of powers and judicial independence, since it follows from its content that the salary remuneration of Judicial Branch employees would come from directives or guidelines from other instances external to the Judicial Branch, specifically from the Executive Branch, with the consequent interference of one Branch of the Republic in the Judicial Branch.

In conclusion, we consider that Articles 13, 32, 33, 34, and 36 of the Ley Marco de Empleo Público bill are unconstitutional insofar as they refer to their application to the Judicial Branch. This is considered so because, as stated supra, all these articles establish powers for Mideplán that interfere with the independence of the Judicial Branch and with the principle of separation of powers, keeping in mind once again that no body of the Executive Branch, and therefore external to the Corte Suprema de Justicia, can issue directives or orders regarding public employment.

• b)The consultation is answered and referred to the opinion rendered in the "Por tanto" of this file, regarding Articles 6, 7, 9, 13.f, 17, 18, and 21 of the bill.

As for this point, just as this Tribunal unanimously indicated when analyzing each of Articles 6, 7, 9, 13.f, 17, 18, and 21 of the Ley Marco de Empleo Público bill with respect to the Judicial Branch, this minority considers them unconstitutional for the same reasons stated therein, therefore referring to each specific point of the general judgment and the respective nuances in the separate votes that were recorded in each section. In general terms, it is worth mentioning that, under these articles of the bill under study, they are considered unconstitutional because they affect the independence of the Judicial Branch by subjecting it to the directing and regulatory authority of Mideplán, as well as to the verification of whether or not they comply with the task of performance evaluation, and it is not excluded from the directing authority. It must be emphasized that the directing and regulatory authority attributed in this bill to the Executive Branch is incompatible with the principle of separation of powers or functions, since it does not correspond to it to order its activity by establishing goals and objectives. Regarding performance evaluation, it must be reserved to each branch of the State, since this matter is consubstantial to the exercise of their constitutional competences. Consequently, such an obligation for the Human Resources Department of the Judicial Branch would imply a violation of the principle of separation of powers and of judicial independence, according to the scope that constitutional jurisprudence has given to such basic principles in Costa Rican democracy. Recall that the principle of division of powers, or as it is more recently known, the principle of separation of functions, is enshrined in Article 9 of the Constitution and stands as "one of the fundamental pillars of the Democratic State, as it establishes a system of checks and balances that guarantees respect for constitutional values, principles, and norms for the direct benefit of the country's inhabitants." (judgment n°2006-013708). This principle makes it possible for each Branch of the State to exercise its function independently of the others (judgment n°6829-1993), not only as a principle of internal application for the proper functioning of the Rule of Law, but also because the principle of judicial independence, in its external dimension, ensures a set of guarantees aimed at preventing the Judicial Branch from being controlled by other governmental bodies. The absence of external pressures or influences allows it to carry out its work autonomously, to meet citizen demands. On the other hand, in its internal dimension, judicial independence is more than a guarantee for judges, as it also constitutes "a guarantee for private individuals (parties to the process), in the sense that their cases will be decided in strict adherence to the Constitution and the laws" (judgment n°5795-1998). Thus, "we are facing the right of citizens to have independent judges" (judgment n°2001-006632). The independence of the Judicial Branch translates, in economic matters and through the lifetime tenure (irreductibilidad) of its staff, as well as, functionally, in the real possibility of making its decisions according to its own criteria and not as a result of pressures from certain groups, institutions, or persons (see judgment n°2000-005493). Therefore, it is fully justified that in the specific case of the Judicial Branch, it has a special, separate, and differentiated regulation, although subject to the fundamental constitutional principles provided for in Articles 191 and 192 (see judgment n°1991-550), but not under the general provisions, directives, and regulations of a body from another Branch of the Republic, as is intended with this bill. It must be considered that the special regulations governing the Judicial Branch "prevent an indirect regulation of the judicial service through directives or guidelines from other instances." (advisory opinion n°2018-019511); as well as that "the constitutional powers to order, plan, or program, for example, the administrative function of personnel management" (judgment n°2017-009551) are an essential part of the administrative function of the Judicial Branch that contributes to the effective exercise of its judicial function, since "both legislative and judicial functions require an administrative support structure for the achievement of their essential or primary function, such as the administrative function that helps channel all their activity; which, logically, reaches the human resources or personnel of the Branches of the Republic, meanwhile, behind the fundamental function is the administrative function of personnel, agents, and public servants, etc." (judgment n°2017-009551). Finally, note that in resolution n°2018-019511, which dealt with the legislative consultation regarding the "Ley de Fortalecimiento de las Finanzas Publicas" bill (legislative file no. 20.580), this Chamber concluded —after conducting interpretative work regarding the bill's content— that, specifically, the provisions in articles 46, 47, and 49, concerning the "governing role of Mideplán in the matter of public employment" and "the mandatory nature of the technical and methodological guidelines of the Dirección General del Servicio Civil," did not apply to the Judicial Branch; an interpretation made taking into consideration the principle of independence of the Judicial Branch. Furthermore, it is not valid for some officials of the Judicial Branch to be included in a category of the Estatuto de Servicio Civil, since this affects the independence of the Judicial Branch, based on the fact that judicial governance is exercised by the Corte Suprema de Justicia, exclusively and excludely regarding its constitutional competences. Under Article 154 of the Constitution, the Judicial Branch is subject only to the Constitution and the law, but not to provisions of the Executive Branch, and positions of great relevance within the Judicial Branch must be particularly protected from interference by other Branches of the Republic. It must also be taken into account that, in the Judicial Branch, personnel stability is required, and this is necessary for an adequate and impartial performance of the duties, which is incompatible with subordination to the provisions issued in this regard by Mideplán.

In addition to the above, it must be said that the exercise of the disciplinary authority over Judicial Branch servants is an essential part of judicial independence, and this Branch already has internal regulations providing for the exercise of disciplinary authority; therefore, the norms of the bill under study referring to this matter would not be applicable to the Judicial Branch, as this Chamber indicated through Voto n°2009-004849. Thus, in keeping with the principle of judicial independence, the entity with disciplinary competence shall be exclusively the Judicial Branch itself.

• c)The consultation is declared unanswerable, due to lack of substantiation, regarding Articles 1, 5.a, 11, 12, 14, 16, 23, 24, 26, 28, 30, 31, 35, 46, Transitorio II, Transitorio IV, IX, and X.

In the consultation by the Corte Suprema de Justicia, reference is made to Articles 1, 5.a, 11, 12, 14, 16, 23, 24, 26, 28, 30, 31, 35, 46, Transitorio II, Transitorio IV, IX, and X, all of the Ley Marco de Empleo Público bill, as part of the articles regarding which it was deemed necessary to file a formal consultation with this Tribunal.

Notwithstanding the foregoing, this minority considers that the arguments raised in relation to these articles completely lack the legal substantiation required by Article 99 of the Ley de la Jurisdicción Constitucional for admitting this type of procedural action, since in addition to not providing a clear explanation of the reasons why it is considered there might be conflicts with constitutionality in those articles and transitory provisions, there is also no express reference to the constitutional principles that are considered infringed by the norms under study, nor the reasons justifying the concerns that led the Corte Suprema de Justicia to consult regarding those articles. In this sense, it must be remembered that the Chamber's jurisprudence has been emphatic in pointing out that the consultation must be formulated in a reasoned manner, with a clear indication of what is questioned and the motives for which there are doubts or objections to the bill.

Under this order of considerations, upon finding in the present case that these requirements have been omitted, we consider that the consultation of constitutionality on the "LEY MARCO DE EMPLEO PÚBLICO" bill processed under legislative file n° 21.336 is unanswerable regarding Articles 1, 5.a, 11, 12, 14, 16, 23, 24, 26, 28, 30, 31, 35, 46, Transitorio II, Transitorio IV, IX, and X, all of the Ley Marco de Empleo Público bill, due to lack of substantiation of what was consulted.

In conclusion, regarding the substance of what was consulted by the Corte Suprema de Justicia, we consider that: a) Articles 13, 32, 33, 34, and 36 of the bill are unconstitutional, regarding the Judicial Branch; b) Reference must be made to the opinion rendered in the "Por tanto" of this file, regarding Articles 6, 7, 9, 13.f, 17, 18, and 21 of the bill; c) The consultation is unanswerable, due to lack of substantiation, regarding Articles 1, 5.a, 11, 12, 14, 16, 23, 24, 26, 28, 30, 31, 35, 46, Transitorio II, Transitorio IV, IX, and X.

Note by Magistrate Rueda Leal regarding the consultation filed under file n.° 21-012714-0007-CO by the Corte Suprema de Justicia.

In the case at hand, I concur with the majority opinion, as I believe that an interpretation of the regulations governing legislative consultation obliges limiting the deadline for filing such a consultation. On this topic, I point out that in judgment n.° 2016-18351 at 11:15 a.m. on December 14, 2016, the Chamber rejected a motion for coadjuvancy by the Defensora de los Habitantes and, ex officio, proceeded to process it as a new optional consultation, which was then consolidated with the original one. Such intervention by the Defensora de los Habitantes occurred after the return of the legislative file in the case. Regarding that precedent, I clarify that I was not part of the Tribunal on that occasion and, therefore, did not subscribe to such criterion. I believe, in any case, that the reasoning developed in this resolution must prevail, as it allows the Chamber's decision to be issued within a reasonable time, avoiding indirect interference in the legislative procedure. Furthermore, I reject the possibility of the Chamber converting a coadjuvancy into a new consultation ex officio, since there is no norm authorizing such a procedure and, besides, it disregards the formalism of constitutionality review processes. Note that the Ley de la Jurisdicción Constitucional does allow the conversion of a habeas corpus petition into an amparo petition (Article 28), given that such processes seek the protection of fundamental rights and, for that reason, are based on informality for their processing. By contrast, the constitutionality consultation process has another purpose, which consists—as its name indicates—in the Chamber reviewing the constitutionality of a bill and others under the terms of Article 96 of the Law cited. The decision rendered in these processes can affect the validity of the legal system, meaning its processing is subject to strict formalities, which leads to denying both the aforementioned coadjuvancy and its ex officio conversion.

Note by Magistrate Garro Vargas regarding the admissibility of the legislative consultation filed by the Corte Suprema de Justicia In addition to what was stated in the dissenting vote signed jointly with Magistrate Picado Brenes, I deemed it opportune to make an additional note to complete my ideas regarding the admissibility of the constitutionality consultation filed by the Corte Suprema de Justicia.

Firstly, as I stated in the note to advisory opinion n.°2020-013837, in our regulatory design, the law-making process is subject to constitutionality review, exercised through the Sala Constitucional. This review system can be a priori or a posteriori. In both cases, and with their specific regulations, it is the duty of this Tribunal to examine —if so submitted for its consideration— the regulatory proposal and the legislative procedure, in order to compare it with the norms, principles, and values that comprise Constitutional Law. In a priori constitutionality review, it is the responsibility of the Sala Constitucional to supervise and "hear consultations on draft constitutional amendments, approval of international conventions or treaties, and other bills, as provided by law." All of the above, as a manifestation of the principle of constitutional supremacy enshrined in Article 10, subsection b) of the Constitution and in Articles 96 et seq. of the Ley de la Jurisdicción Constitucional (LJC). This form of constitutionality review, equally as strong and valid as a posteriori review, has an objective or abstract purpose, but also a preventive and precautionary one. Its purpose is to prevent bills containing any vice of unconstitutionality from becoming part of the legal system. Indeed, the purpose of constitutionality consultations is none other than to uphold the "supremacy of constitutional norms and principles and of International or Community Law in force in the Republic, their uniform interpretation and application, as well as the fundamental rights and freedoms enshrined in the Constitution or in international human rights instruments in force in Costa Rica" (Article 1 of the LJC).

Once the importance of this type of process is recognized, it is necessary to distinguish that a priori constitutionality consultations may be mandatory legislative consultations —on draft constitutional amendments or the approval of international conventions or treaties— or optional —any other bill—. In this second case, other constitutional or legally-configured bodies with institutional or organic standing can participate in the constitutionality review to consult "bills or specific motions incorporated therein whose processing, content, or effects they deem to have improperly ignored, interpreted, or applied the principles or norms relating to their respective constitutional competence" (Article 96, subsection c) of the LJC). It is an extremely exceptional remedy —as in the history of the Sala Constitucional, there are practically no precedents for its use— which seeks to allow these constitutional bodies, which are vital in the configuration of the Rule of Law, to have standing precisely to safeguard the essential competences and powers recognized exclusively and excludely. Emphasis must be placed precisely on the fact that the recognition of this standing derives from the defense of their respective constitutional competence, so it is an instrument inspired by the principle of separation of functions itself, derived from Article 9 of the Constitution, which must be interpreted jointly with the provisions recognizing the governance and judicial administration functions to the Corte Suprema de Justicia (Articles 152, 153, and 156 of the Constitution), with those that establish the competences of the Tribunal Supremo de Elecciones regarding the organization, direction, and supervision of acts relating to suffrage (Article 99 idem), and with the one referring to the supervision and oversight of the Public Treasury in the case of the Contraloría General de la República (CGR) (Article 183 idem).

Now, regarding the requirements for their submission, it is important to highlight that the LJC does not distinguish, and in its Article 98 stipulates that it must be filed "after approval (of the bills) in the first debate and before it is approved in the third," and its Article 101 orders, equally for all consultations, that the Chamber shall evacuate it within the month following its receipt. That is, the requirements are the same for all the cases examined, without these timeframes or demands depending on each other. Therefore, it is not admissible for this Court to distinguish where the law does not, and this would be occurring if it is affirmed that it is a common timeframe. Thus, if it is considered that a normative omission exists, because it does not contemplate cases where several consultations are filed simultaneously —the optional legislative consultations and the organic ones?—, this gap cannot be filled to the detriment of the prerogatives given to the aforementioned bodies for the defense of their respective constitutional powers and, concomitantly, to the detriment of the prerogative entrusted to this Court of ensuring the supremacy of constitutional norms and principles. Likewise, I believe that the interpretation and the limits for the admission of this type of consultation cannot be so severe as to constrain a branch of the republic and a body that holds such rank, or a constitutional body such as the CGR. Therefore, facing the factual situation under examination, I do not share the technique employed in the sense that, to fill the void, an interpretation was used regarding limits and requirements that were established for optional legislative consultations and extrapolating it to organic consultations, which are so exceptional in the work of this Constitutional Chamber.

In this case, the majority indicates that "the Constitutional Chamber has established the moment of receipt of the legislative file or the accumulation as the starting point of the timeframe; from those moments onward, it is not possible to admit new consultations, whether from the deputies or from other bodies external to Parliament." Such an assertion is imprecise, because the Chamber has established said timeframe or limit for the Legislative Assembly itself, the body responsible for sending the certified copy of the legislative file, not for other bodies of the republic that should not have to be subject to a limit that was designed for Parliament. As is known, due to a well-known and long-standing practice of presenting several legislative consultations on certain bills, this Chamber established that limit with the purpose of restricting the continuous presentation of multiple consultations that could hinder both the parliamentary process and the advisory competence itself entrusted to this Court. Again, although it is a matter of "reiterated jurisprudence"—as pointed out by the majority of the Chamber—it has been a line of jurisprudence applied to legislators and not to other bodies legally empowered to formulate legislative consultations of constitutionality in defense of their constitutional powers. The situation would be different if one organic consultation or several organic consultations had been filed. In such a case, it would indeed be feasible to affirm that a normative integration can be carried out and specify that, from the moment an organic consultation is filed, the one-month timeframe governs all other bodies, being that, furthermore, it is something absolutely atypical, since several organic consultations of constitutionality have never been filed.

Nor do I share the view that it is an "undue interference in the iter of the bill," to the extent that we are facing a power granted by the legislator itself to other branches of the republic and to other authorities to refine the constitutionality of a specific bill regarding their respective constitutional powers.

Furthermore, the fact that the bill had been previously consulted with the Supreme Court of Justice does not imply that it cannot undergo modifications in the legislative iter itself that justify an appropriate wait to conduct a formal consultation on the definitive text, which, moreover, cannot be approved unilaterally by the President of said Court, but required a formal decision by the governing body of the Judicial Branch, that is, the Supreme Court of Justice (see Articles 156 and 167 of the Political Constitution).

Finally, as noted in our dissenting vote, the fact of admitting this legislative consultation for review did not entail any anomalous benefit in favor of the Supreme Court of Justice, precisely because the timeframe governing the Chamber was that of the accumulation of the other legislative consultations. Note that this organic consultation was filed on July 1, 2021, and the vote by which the legislative consultations of the legislators were accumulated is dated July 2, 2021 (see resolutions numbers 2021-015137 and 2021-015105). Therefore, it would not have harmed the parliamentary process of the consulted bill at all if this legislative consultation had been admitted, and, therefore, the Chamber was adjusting to the one-month evacuation timeframe after the accumulation of the consultations it did consider admissible. That is, if the Chamber itself has one month to resolve this advisory opinion, it in no way implied hindering the parliamentary procedure, since precisely the Court's consultation was filed prior to the accumulation and, therefore, to the extension of the timeframe for the resolution of the constitutional doubts raised.

Consequently, I reiterate my consideration that this organic consultation of constitutionality is admissible.

III.- Regarding the denial of the briefs filed on June 22, 25, 28, 29 and July 5, 13, 15, and 20, 2021.- Several briefs have been filed in this legislative consultation file: On June 22, 2021, the Secretary General of the Health and Social Security Union (Sindicato de la Salud y la Seguridad Social) makes various statements against the consulted bill. On June 25, 2021, several deputies file what they call "passive joinder (coadyuvancia pasiva)" and state their views on the constitutionality of the consulted project. On June 28, 2021, several representatives of union and community organizations and civil society request that the consulted bill be declared unconstitutional. On June 29, 2021, several deputies make statements on the constitutional conformity of the consulted project. On July 5, 2021, representatives of the Costa Rican Chamber of Industries Association file what they call "joinder (coadyuvancia)" and request that the filed consultation be rejected. Then, on July 13 and 15, 2021, the president of the National Episcopal Conference of Costa Rica and the Secretary General of the Rerum Novarum Workers' Confederation, respectively, file what they call passive joinder and refer to the issue of conscientious objection. Finally, on July 20, 2021, several deputies appear to argue about the inadmissibility of the Optional Consultation of Constitutionality filed by the Supreme Court of Justice. Regarding all these proceedings, with statements for and against the consulted project, it is appropriate to note that active or passive joinder intervention is not provided for in legislative consultation mechanisms, in which simple opposing legal opinions about the constitutional regularity of a bill may exist, which is indeed appropriate in amparo proceedings or unconstitutionality actions (acciones de inconstitucionalidad)—Articles 34 and 83 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional); as this Chamber has indicated in previous cases because it involves an optional consultation of constitutionality of a bill, being a process where joinders are not admitted, neither for nor against the consulted project, what is appropriate is the denial of the processing of all these briefs (see in this regard votes n°2019-020596, n°2008-15760, n°2007-009469, n°2005-009618, n°2004-1603, among others).

IV.- Regarding the timeframe for resolving this consultation.- When it comes to optional consultations on constitutionality, and in application of the provisions of Article 101 of the Law of Constitutional Jurisdiction, the Constitutional Chamber evacuates the consultation within the following month. As the starting date for counting the beginning of this month, it has been indicated that it is, in principle, from the date of receipt of the legislative file. In this case, the certified copy of the consulted legislative file was considered received by Chamber resolution at 11:54 a.m. on June 25, 2021. However, upon the subsequent accumulation of three consultations through resolutions dated July 2, 2021, the one-month timeframe began to run from this latter date. Thus, the timeframe this Chamber has for resolving would expire on August 2, 2021.

• B)REGARDING THE MATTER CONSULTED V.- Regarding the object of the consultation.- From the three admissible consultations filed, it is established that the consultation concerns the project called "PUBLIC EMPLOYMENT FRAMEWORK LAW (LEY MARCO DE EMPLEO PÚBLICO)", which is processed in legislative file No. 21,336, both regarding procedural and substantive matters. In summary, the following aspects are consulted:

Regarding the consulted PROCEDURAL defects:

• 1)Substantial procedural defects (violation of the right of amendment and democratic participation): The consulting parties state that the Presidency incurred in substantial procedural defects due to violation of the right of amendment and democratic participation for the following reasons:

a. When issuing the Resolution on the admissibility of Reiteration Motions on the Public Employment Framework Law bill, file 21,336; b. When declaring inadmissible motions that reiterated substantive motions that had been approved in Committee, but admitting others; c. For accumulating motions by considering them identical, similar, or reasonably equivalent, but without accumulating others that were so, without a valid objective criterion to proceed in that manner; and, d. For not bringing a duly admitted motion to the knowledge of the Plenary.

Regarding the consulted SUBSTANTIVE defects:

• 2)Violation of judicial independence: they consult on the constitutionality of several articles, considering that they violate Articles 9, 154, and 156 of the Political Constitution, Article 10 of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights, and Article 8 of the American Convention on Human Rights. This is because the consulted provisions seek to subject the Judicial Branch to the provisions issued by the Ministry of National Planning and Economic Policy (Ministerio de Planificación Nacional y Política Económica, Mideplán) and the General Directorate of the Civil Service (Dirección General del Servicio Civil), in matters of public employment.
• 3)Violation for including the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones): they consult on the constitutionality of Article 2.a and others, considering that it violates Articles 9 and 99 of the Political Constitution, by forcing the TSE to apply and execute the provisions of general scope, guidelines, and regulations issued by Mideplán (Articles 6, 7.d, 9, 13.b, 14, 17, and 18) in violation of its independence, allowing interference by the Executive Branch in a matter forbidden to it by constitutional mandate and in regression of the Rule of Law.
• 4)Violation of University Autonomy: they consult on the constitutionality of Article 6 and others, considering that it violates the principle of university autonomy contained in Articles 84, 85, and 87 of the Political Constitution. They consider that university autonomy is violated by subjecting the employment regime of teaching and research staff of higher education institutions to development plans, salary regimes, performance evaluations, guidelines, orders, instructions, and circulars issued by Mideplán and, in some cases, by the General Directorate of the Civil Service and the Budgetary Authority (Autoridad Presupuestaria).
• 5)Violation for including the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social): they consult on the constitutionality of Article 2.b and others, considering that it violates the autonomy of the CCSS and Articles 73, 188, 11, 33, and 140.18 of the Political Constitution. They consider it unconstitutional to subject the CCSS to the guidelines, directives, and regulations issued by Mideplán on topics related to public employment, namely: work planning, work organization, employment management, performance management, compensation management, and labor relations management, as well as the set of project provisions set forth below.
• 6)Violation of the Autonomy of Municipalities: they consult on the constitutionality of Article 2.c and others, considering that it violates the autonomy of the Municipalities. This is because it is unconstitutional to subject the Municipal Corporations to applying and executing the provisions of general scope, guidelines, and regulations issued by Mideplán on topics related to work planning, work organization, employment management, performance management or evaluation, compensation management, and labor relations management, the subjection of human resources offices to the General Public Employment System, among others.
• 7)Violation of the autonomy of Autonomous Institutions: they consult on the constitutionality of Article 2.b and others, considering that it violates the autonomy of autonomous institutions.
• 8)Violation of the principle of legal certainty, equality, proportionality, and reasonableness (conscientious objection): They consult on the constitutionality of Article 23.g, insofar as it includes conscientious objection, considering that it violates the possibility for public officials to invoke conscientious objection in order not to receive training and instruction that the State has deemed mandatory. They consider it unconstitutional for violating the principles of legality and legal certainty, proportionality, and reasonableness by not regulating the conditions, parameters, and restrictions that prevent the violation of fundamental human rights included in Conventional Law and fully recognized by our legal system. In that sense, they consider that it is not possible to invoke conscientious objection to promote inequality, mistreatment, and discrimination from a position of power, for example.
• 9)Violation of the right to unionization and collective bargaining: they consult on the constitutionality of Article 43 and Transitory Provision XV of the bill, because collective bargaining on salary matters is prohibited, and other topics, which would cover practically everything negotiable, emptying of content the possibility of any agreement that seeks to improve the working conditions of workers, in contrast to the provisions of Article 62 of the Constitution, Convention concerning the Right to Organise and Collective Bargaining, 1949, No. 98 of the International Labour Organization (ILO), Articles 4 and 6; American Convention on Human Rights, Pact of San José, Costa Rica, Article 2; International Covenant on Economic, Social and Cultural Rights, Articles 2 and 8; the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of San Salvador, Article 5; numeral 7 of the Political Constitution; in addition to Article 690 of the Labor Code. All in violation also of the principle of progressivity.
• 10)Violation of the principles of reasonableness and proportionality (general disqualification sanction): they consult on the constitutionality of Article 4.a of the bill because it includes a general disqualification sanction, in contravention of the principles of reasonableness and proportionality. They indicate that it is a generic and automatic sanction, which would apply to any type of dismissal, regardless of whether it involves serious or minor offenses, without the sanctioning body assessing the seriousness of the conduct and without a weighing of the rights that will be affected.
• 11)Violation of the right to salary and the principle of equality (global salary): they consult on the constitutionality of Transitory Provisions XI and XII, which include rules for the application of the "global salary (salario global)", considering that this violates the right to salary (Article 57), the principle of non-discrimination in salary matters (Article 68), the State's obligation not to establish conditions contrary to human dignity (Article 56), and the inalienability of rights (Article 74). In addition, Articles 23 and 28 of the Universal Declaration of Human Rights, Article 14 of the American Declaration of the Rights and Duties of Man, Article 6 of the International Covenant on Economic, Social and Cultural Rights, Article 7 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of San Salvador. ILO Convention 131 on Minimum Wage Fixing (Law 5851), ILO Convention 95 on the Protection of Wages (Law 2561). ILO Convention 100 on Equal Remuneration for Men and Women Workers for Work of Equal Value (Law 2561). Article 1 of Convention No. 111 concerning Discrimination in Respect of Employment and Occupation, ILO (Law 2848). This is because the transitory provision allows the coexistence of three different salaries for people performing identical functions and under identical conditions; and it seeks to give equal treatment to those who are not in equal or legally identical conditions.
• 12)Violation of due process (single dismissal procedure): The consultation concerns Articles 21 and 22 of the bill, insofar as a special administrative procedure for dismissal is established, as they consider there is no clarity regarding timeframes, receipt of evidence, right of defense, among others. All in violation of the constitutional principle of due process and legal certainty.
• 13)Violation of the principle of fiscal sustainability due to the possibility of leaves of absence: The consultation concerns Articles 39, 40, 41, and 42 of the bill regarding the establishment of the possibility of an unpaid leave to reduce the working day, paternity leave, and the extension of maternity leave. They consider that all this is done without any cost study or identification of funding sources. Without having the criteria of the CCSS in this regard, despite the fact that it directly affects its finances.
• 14)Violation due to the exclusion of public enterprises in competition: It is indicated that, although public enterprises in competition, mainly telecommunications and insurance, must seek to increase their competitiveness, making an exclusion from the principles of transparency, excellence in service, and citizen participation lacks objective and substantiated reasons for their exclusion from the public employment regime. Furthermore, the Benemérito Fire Department (Benemérito Cuerpo de Bomberos) is excluded, which they say is governed by Private Law, but others, such as Recope and the National Institute of Learning (Instituto Nacional de Aprendizaje), were not excluded.

Each of the preceding defects is examined separately below. We proceed to review only the aspects specifically questioned by the consulting parties and not general aspects of the constitutionality of the consulted regulations, as provided in Article 99 of the law governing this jurisdiction. In this sense, it must be clear that, for those norms of the bill in question on which this Chamber does not rule (either because they were not consulted or due to insufficient substantiation by the consulting parties), it is not being indicated that they are or are not constitutional, so it must be understood that they were not analyzed by this Chamber and no criterion has been expressed on their constitutionality. Furthermore, it is also clarified that the text this Chamber has before it to conduct the examination of each consulted norm is the "Final Draft (Redacción Final)" dated June 23, 2021.

VI.- Regarding the consulted PROCEDURAL defects.- The consulting parties consider that the Presidency incurred in substantial procedural defects due to violation of the right of amendment and democratic participation, for the following reasons: when issuing the resolution on the admissibility of reiteration motions on the bill in question; when declaring inadmissible motions that reiterated substantive motions that had been approved in Committee, but admitting others; for accumulating motions by considering them identical, similar, or reasonably equivalent, but without accumulating others that were so, without a valid objective criterion to proceed in that manner; and, finally, for not bringing a duly admitted motion to the knowledge of the Plenary. To proceed with the examination of these procedural defects, we will first indicate the chronology that the consulted project has followed (1), we will review the jurisprudence of this Chamber on substantial procedural defects and motions (2), to finally examine what was consulted on the procedural defects (3).

• 1)Chronology of the legislative procedure of the "PUBLIC EMPLOYMENT FRAMEWORK LAW" bill, processed in legislative file No. 21,336.- From the various volumes of the legislative file, it is determined that, in summary, the consulted bill followed the following procedure:
• 1)On April 8, 2019, the Minister of the Presidency submitted the "PUBLIC EMPLOYMENT FRAMEWORK LAW" bill, file No. 21,336, to the Secretariat of the Legislative Assembly (see folio 1, Volume 1 of the legislative file).
• 2)On April 29, 2019, the Department of Archives, Research, and Processing sent the legislative file to the National Printing Office (Imprenta Nacional) for publication in the Official Gazette (see folio 110, Volume 1 of the legislative file).
• 3)On May 30, 2019, the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly received the project for study.
• 4)By official letter No. AL-DEST-CO-069-2019 dated June 6, 2019, the Department of Studies, References, and Technical Services of the Legislative Assembly sent the list of mandatory consultations related to file No. 21,336 to the Permanent Ordinary Committee on Government and Administration (see folio 118, Volume 1 of the legislative file).
• 5)By official letter No. TSE-1388-2019 dated July 2, 2019, the President of the Supreme Electoral Tribunal issued a criterion on bill No. 21,336, requested by the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly (see folio 450, Volume 2 of the legislative file).
• 6)By official letter No. SP-146-2019 dated July 3, 2019, the Supreme Court of Justice responded to the request for criteria from the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly, regarding bill No. 21,336 (see folio 496, Volume 2 of the legislative file).
• 7)By official letter No. SJD-885-2019 dated July 5, 2019, the Board of Directors of the Costa Rican Social Security Fund sent to the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly the requested criterion regarding bill No. 21,336 (see folio 592, Volume 2 of the legislative file).
• 8)By official letter No. DJ-1110 dated August 30, 2019, the Office of the Comptroller General of the Republic (Contraloría General de la República) sent to the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly the requested criterion regarding bill No. 21,336 (see folio 1541, Volume 6 of the legislative file). (See folio 5802, Volume 20, criterion on the substitute text).
• 9)By official letter No. OJ-132-2019 dated November 12, 2019, the Office of the Attorney General of the Republic (Procuraduría General de la República) sent to the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly the requested criterion regarding bill No. 21,336 (see folio 1975, Volume 7 of the legislative file and folio 3133, Volume 11). (see folio 5672, Volume 19, criterion on the substitute text).
• 10)On March 3, 2020, the Department of Technical Services of the Legislative Assembly sent to the Permanent Ordinary Committee on Government and Administration the legal report on legislative file No. 21,336 "PUBLIC EMPLOYMENT FRAMEWORK LAW" (see folio 1993, Volume 7 of the legislative file).
• 11)By official letters Mideplán-DM-OF-0663-2020 and DM-620-2020, both dated May 18, 2020, the Ministries of the Presidency and of National Planning and Economic Policy sent to the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly the substitute text for the "PUBLIC EMPLOYMENT FRAMEWORK LAW" bill, legislative file No. 21,336 (see folio 2069, Volume 7 of the legislative file).
• 12)On June 16, 2020, the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly approved a substantive motion for a substitute text for file No. 21,336 "PUBLIC EMPLOYMENT FRAMEWORK LAW" (see folios 2142 and 2255, Volume 8 of the legislative file).
• 13)In Ordinary Session No. 03 of the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly, dated June 16, 2020, a motion was approved to consult the substitute text of bill No. 21,336 with the public institutions and organizations indicated in the minutes (see folio 2256, Volume 8 of the legislative file).
• 14)On November 3, 2020, the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly approved another substantive motion for a substitute text for file No. 21,336 "PUBLIC EMPLOYMENT FRAMEWORK LAW" (see folios 4472 and 4589, Volume 15 of the legislative file).
• 15)On November 4, 2020, the Department of Studies, References, and Technical Services of the Legislative Assembly issued Report No. AL-CJU-066-2020, called the Consultation Report "Publicity of Sessions" (see folio 4643, Volume 16 of the legislative file).
• 16)According to minutes No. 21 of November 4, 2020, the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly approved another substitute text (see folios 4648 and 4768 of Volume 16).
• 17)In Ordinary Session No. 22 of November 10, 2020, the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly approved a motion to publish the text of file No. 21,336 "Public Employment Framework Law." Likewise, for the mandatory consultations to be carried out with the institutions and organizations (see folios 4859 to 4862, Volume 16 of the legislative file).
• 18)On November 10, 2020, the Department of Studies, References, and Technical Services of the Legislative Assembly issued Consultation Report No. AL-CJU-068-2020, called "Application of the Principle of Formal Correction of Procedure to Correct Essential and Non-Essential Defects in the Legislative Process" (see folio 4870, Volume 16 of the legislative file).
• 19)On November 10, 2020, the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly issued the affirmative minority opinion (folio 5263 and subsequent ones, Volume 18 of the legislative file) and the affirmative majority opinion (folios 5432 and subsequent ones, Volume 18 of the legislative file).
• 20)By official letter No. AL-DEST-CO-346-2020 dated November 12, 2020, the Department of Studies, References, and Technical Services of the Legislative Assembly indicated to the Permanent Ordinary Committee on Government and Administration the list of institutions with which mandatory consultations on bill No. 21,336 should be made (see folio 5187, Volume 17 of the legislative file).
• 21)On November 18, 2020, the Permanent Committee on Government and Administration delivered bill No. 21,336 "Public Employment Framework Law" to the Legislative Directorate (see folio 5567, Volume 18 of the legislative file).
• 22)In Ordinary Plenary Session No. 28 of January 21, 2021, the substantive discussion began in the processing of the first debate of file No. 21,336 "PUBLIC EMPLOYMENT FRAMEWORK LAW" (see folio 6851, Volume 25 of the legislative file).
• 23)On February 4, 2021, the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly delivered to the Secretariat of the Directorate the first report of motions via 137 for file No. 21,336 "PUBLIC EMPLOYMENT FRAMEWORK LAW" (see folio 6910, Volume 25 of the legislative file).
• 24)In Plenary Session No. 38 of February 18, 2021, 474 substantive motions were filed, which were forwarded to the Reporting Committee (see folios 7574 and 7576, Volume 28 of the legislative file).
• 25)On March 10, 2021, the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly delivered to the Secretariat of the Directorate the second report of motions via 137 for file No. 21,336 "PUBLIC EMPLOYMENT FRAMEWORK LAW" (see folio 7661, Volume 28 of the legislative file).
• 26)In Ordinary Session No. 50 of the Legislative Plenary, dated March 16, 2021, the Presidency asked the female and male deputies whether they would file reiteration motions (Article.

138 of the Regulations), which was confirmed by several female and male deputies (see folio 8895, Volume 35 of the legislative record).

• 27)In ordinary session No. 51 of the Legislative Plenary, on March 18, 2021, the Presidency issued a resolution on the admissibility of the reiteration motions (see folios 8997 to 9004, Volume 35 of the legislative record).
• 28)In extraordinary session of the Plenary No. 83 on March 22, 2021, the appeal motion regarding the Presidency's resolution on the admissibility of the reiteration motions was heard, which was dismissed. Likewise, the discussion of the reiteration motions began (see folio 9341 to 9351, Volume 36 of the legislative record).
• 29)In extraordinary session of the Plenary No. 84 on March 23, 2021, the hearing of the reiteration motions continued (see folio 9554 and 9731, Volume 38 of the legislative record).
• 30)In extraordinary session of the Plenary No. 85 on March 24, 2021, the hearing of the reiteration motions continued (see folios 10046 and 10126, Volume 40 of the legislative record).
• 31)In ordinary session of the Plenary No. 052 on April 5, 2021, the presentation of review motions was announced, and the hearing of the reiteration motions continued (see folios 10329 and 10361, Volume 41 of the legislative record).
• 32)In extraordinary session of the Plenary No. 86 on April 6, 2021, the hearing of the reiteration motions continued (see folios 10446, Volume 41 and folio 10497, Volume 42 of the legislative record).
• 33)In extraordinary session of the Plenary No. 87 on April 6, 2021, the hearing of the reiteration motions continued (see folios 10616, Volume 42 and 10670, Volume 43 of the legislative record).
• 34)On April 6, 2021, the Department of Studies, References and Technical Services of the Legislative Assembly issued the "Report on the Text under Discussion in the Plenary of File No. 21336 Public Employment Framework Law: Connectedness, Constitutionality and Procedural Aspects" (see folio 10799, Volume 43 of the legislative record).
• 35)In extraordinary session of the Plenary No. 88 on April 7, 2021, the hearing of the reiteration motions continued (see folios 10996, Volume 44 and 11264, Volume 45 of the legislative record).
• 36)In extraordinary session of the Plenary No. 89 on April 7, 2021, the hearing of the reiteration motions continued (see folio 11204, Volume 45 and folio 11250, Volume 46 of the legislative record).
• 37)In extraordinary session of the Plenary No. 90 on April 8, 2021, the hearing of the reiteration motions continued (see folios 11345 and 11375, Volume 46 of the legislative record).
• 38)In extraordinary session of the Plenary No. 91 on April 8, 2021, the hearing of the reiteration motions continued (see folios 11476 and 11532, Volume 47 of the legislative record).
• 39)In extraordinary session of the Plenary No. 92 on April 12, 2021, the hearing of the reiteration motions continued (see folios 11648, Volume 47 and 11699, Volume 48 of the legislative record).
• 40)In extraordinary session of the Plenary No. 93 on April 12, 2021, the hearing of the reiteration and review motions continued (see folios 12062 and 12212, Volume 50 of the legislative record).
• 41)In extraordinary session of the Plenary No. 94 on April 13, 2021, the hearing of the review motions continued (see folios 12359 and 12412, Volume 51 of the legislative record).
• 42)In extraordinary session of the Plenary No. 95 on April 13, 2021, the hearing of the review motions continued (see folios 12521, Volume 51 and 12583, Volume 52 of the legislative record).
• 43)In extraordinary session of the Plenary No. 96 on April 14, 2021, the hearing of the review motions continued (see folios 12761 and 12813, Volume 53 of the legislative record).
• 44)In extraordinary session of the Plenary No. 97 on April 14, 2021, the hearing of the review motions continued (see folios 12920 and 12981, Volume 54 of the legislative record).
• 45)In ordinary session of the Plenary No. 053 on April 15, 2021, review and order motions were heard, and the substantive discussion of bill No. 21336 continued (see folios 13071 and 13090, Volume 54 of the legislative record).
• 46)In extraordinary session of the Plenary No. 99 on April 20, 2021, the hearing of the review motions continued (see folios 13133 and 13207, Volume 55 of the legislative record).
• 47)In extraordinary session of the Plenary No. 101 on April 21, 2021, the hearing of the review motions continued (see folios 13346 and 13389, Volume 56 of the legislative record).
• 48)In ordinary session of the Plenary No. 06 on May 18, 2021, a postponement order motion was presented and approved (see folio 13498, Volume 57 of the legislative record).
• 49)In extraordinary session of the Plenary No. 002 on May 19, 2021, an order motion was presented and approved authorizing an extraordinary session to be held on May 20, 2021 (see folios 13506 and 13508, Volume 57 of the legislative record).
• 50)In extraordinary session of the Plenary No. 003 on May 20, 2021, the hearing of the review motions continued (see folios 13514 and 13611, Volume 57 of the legislative record).
• 51)In ordinary session of the Plenary No. 07 on May 24, 2021, the hearing of all substantive and review motions of file No. 21.336 was concluded. Finally, the Secretariat of the Directorio was instructed to carry out the mandatory consultations and order the publication of the bill (see folios 13770, 13773 and 13852, Volume 58 of the legislative record).
• 52)On May 25, 2021, the Department of Document Management and Legislative Archive sent the updated text of bill No. 21.336 to the Imprenta Nacional for its publication (see folio 13949, Volume 58 of the legislative record).
• 53)By official letter No. AL-DSDI-OFI-0053-2021 of May 25, 2021, an opinion was requested on the updated text of legislative file No. 21.336 from the following public authorities: Corte Suprema de Justicia, Tribunal Supremo de Elecciones, Caja Costarricense de Seguro Social, Consejo Nacional de Rectores, public universities, Consejo Superior de Educación, and municipalities (see folio 13909, Volume 58 of the legislative record).
• 54)The updated text of bill No. 21.336 was published in the Diario Oficial La Gaceta No. 100, Alcance No. 105 of May 26, 2021 (see folio 13951, Volume 58 of the legislative record).
• 55)By official letter of May 28, 2021, the Contraloría General de la República responded to the request for an opinion regarding the updated text of bill No. 21.336 (see folio 14354, Volume 60 of the legislative record).
• 56)By official letter No. SCI-544-2021 of June 2, 2021, the Instituto Tecnológico de Cartago provided the requested opinion regarding the updated text of bill No. 21.336 (see folio 14436, Volume 61 of the legislative record).
• 57)By official letter No. OF-CNR-14-2021 of June 2, 2021, the Consejo Nacional Rectores provided the requested opinion regarding the updated text of bill No. 21.336 (see folio 14538, Volume 61 of the legislative record).
• 58)By official letter No. SP-62-2021 of June 3, 2021, the Corte Suprema de Justicia responded to the request for an opinion regarding the updated text of bill No. 21.336 (see folio 14504, Volume 61 of the legislative record).
• 59)By official letter No. UNA-SCU-ACUE-136-2021 of June 3, 2021, the Universidad Nacional responded to the request for an opinion regarding the updated text of bill No. 21.336 (see folio 14566, Volume 61 of the legislative record).
• 60)By official letter TSE-1226-2021 of June 3, 2021, the Tribunal Supremo de Elecciones responded to the request for an opinion regarding the updated text of bill No. 21.336 (see folio 14642, Volume 62 of the legislative record).
• 61)By official letter No. REF-CU-2021-181 of June 4, 2021, the Universidad Estatal a Distancia responded to the request for an opinion regarding the updated text of bill No. 21.336 (see folio 14631, Volume 62 of the legislative record).
• 62)In ordinary session of the Plenary No. 14 on June 10, 2021, an agenda alteration motion was approved, so that legislative file No. 21.336 would occupy the first place before second debates, until its final vote (see folios 14751 and 14754, Volume 63 of the legislative record).
• 63)In ordinary session of the Plenary No. 15 on June 14, 2021, a postponement order motion was approved. The substantive discussion, in the first debate, of bill No. 21.336 continued (see folio 14794, Volume 63 of the legislative record).
• 64)In ordinary session of the Plenary No. 16 on June 15, 2021, a postponement order motion was approved. The substantive discussion, in the first debate, of bill No. 21.336 continued (see folios 14849 and 14851, Volume 63 of the legislative record).
• 65)In ordinary session of the Plenary No. 17 on June 17, 2021, a postponement order motion was approved. The discussion in the first debate of bill No. 21.336 continued and concluded, resulting in approval with 32 votes in favor and 15 against (see folios 14922, 14926 and 14947, Volume 64 of the legislative record).
• 66)On June 17, 2021, the optional consultation of constitutionality No. 21-011713-0007-CO, related to legislative file No. 21.336 “Public Employment Framework Law” (“Ley Marco del Empleo Público”), was filed with the Secretariat of the Constitutional Chamber (Sala Constitucional) (see folio 14965, Volume 64 of the legislative record).

Now, the specific objections of constitutionality raised in this regard are the following:

-Violation of the right of amendment, by having declared reiteration motions 18, 231, and 250 inadmissible, as they were substantive motions that, even though they were approved by the reporting committee, were subsequently modified: The deputies consider, for example, that motion 138-231 was declared inadmissible despite the fact that the proponent indicated to the Presidency in her appeal that, although the substantive motion that was reiterated was approved, another motion was subsequently approved that rendered the previous one without effect. The proponent deputy of motion 138-18 expressed himself in the same sense; however, the Presidency did admit motion 138-345, which reiterated motion 122-137, which was also approved by the Government and Administration Committee in extraordinary session No. 02 on January 26, 2021. That deputy was able to defend the motion and it was approved again in extraordinary session of the Plenary No. 93.

-They consider that the resolution by which it was ordered to partially group the reiteration motions exceeds the provisions of articles 27 and 138 of the Legislative Regulations and violates the right of democratic participation, amendment, and reasonableness: The deputies consider that motions that did coincide were not grouped, such as: reiteration motions 184 and 251 that reiterate substantive motion 102, reiteration motions 194 and 270 that reiterate substantive motion 355, motions 138-195 and 138-271 that reiterate substantive motion 310, and motions 138-130, 138-273 that reiterate substantive motion 433, and motion 344 that should have been grouped with reiteration motions 198 and 272. They consider the grouping in paragraph 4 of motion 138-154 to be improper, since this sought to modify Article 2 and add Article 3, while the others only proposed adding Article 3. They add that, at the end of the hearing of the reiteration motions, the president brought motion 138-154 to the floor, giving the floor to the proponent for its defense and submitting it to a vote of the Plenary, thereby modifying the resolution unilaterally.

-Violation of the right of amendment and democratic participation of Deputy Paola Vega Rodríguez: They argue that, although reiteration motion 138-210 was admitted, since it does not appear in the questioned resolution that it was not, nor that it was grouped with other motions, the Presidency did not bring it to the attention of the Plenary, so its subsequent vote was omitted. They state that, the appropriate course of action was to hear motion 138-210, after motion 138-207 (since motions 13-208 and 138-209 were withdrawn by their proponents) in extraordinary session No. 88, held on April 7, 2021.

• 2)Regarding the jurisprudence of this Chamber concerning substantial procedural defects and the rejection of motions.- The issue of substantial defects in parliamentary procedure has been analyzed on several occasions by this Chamber. The constitutional jurisprudence has generally indicated that the internal regulatory power of the Legislative Assembly can be exercised freely and autonomously, as long as, of course, it does not contravene constitutional provisions, principles, or values. The power of Parliament to dictate the rules of its own internal governance (interna corporis) is not only provided for in the Political Constitution in its article 121, paragraph 22, but is also consubstantial to the democratic system and specific to the Legislative Assembly as a constitutional power, under Title IX of the Constitution. This power is intrinsic to the Legislative Assembly, which it exercises with absolute independence from the other organs of the State, by virtue of the principle established in article 9 of the Constitution. However, like any power, its exercise is subject to limitations, which are: adherence to Constitutional Law, that is, to the set of constitutional values, principles, and norms. In recognition of this “interna corporis,” this Chamber has recognized that its function in matters of legislative procedure is solely to declare those substantial defects that violate the constitutional principles and values applicable to the matter, because otherwise it would be affecting the self-regulatory and functional capacity of parliament (interna corporis), distorting its role as guardian of constitutional supremacy into that of a kind of ad hoc senate. Thus, only in the face of evident or gross violations of the constitutional principles that govern parliamentary law, would the intervention of this Constitutional Jurisdiction be legitimate. Therefore, the defects controllable by this Chamber are those that refer to the violation of a "substantial" requirement or procedure provided for in the Constitution or, where applicable, established in the Regulations of the Legislative Assembly. The intervention of the Chamber in matters of legislative procedure, as stated, should only occur in the case of the use of these powers with evident abuse of power, resulting in the annulment of a right and not in its harmonization with the rest of the constitutional principles of parliamentary law. Subsequently, specifically regarding the right of amendment of deputies, this Chamber has stated that the participation of deputies in the Ordinary Permanent Committees is regulated in articles 123 and 124 of the Regulations of the Legislative Assembly, which recognize the right of any deputy to present written motions "that they consider as amendments to each bill," and substantive motions may be processed from the day the bill is published and as long as it has not been voted on in the corresponding Committee. Substantive motions are those proposals by deputies aimed at modifying the bill on the merits. That is, the contribution of each deputy in the law-making process is exercised through a written proposal, seeking to improve, clarify, modify, suppress, or add the normative propositions included in paragraphs, articles, sections, chapters, or titles of a bill, which means the possibility of influencing and determining the contents that are finally approved by the Legislative Assembly, and which constitutes the exercise of a right of all members of said Power, the right of amendment, which in turn defines one of the essential aspects of legislative activity and of our democratic regime. Like any right, it has its limits, among which is respect for the principle of connectedness (conexidad), which in turn guarantees the right to initiative in the formation of the law and the due publicity of the proposal. Now, specifically regarding the rejection of motions, this Chamber has resolved the following:

-The power to file motions that the Regulations of the Legislative Assembly grants to all deputies has the purpose of ensuring the possibility of participation of all the groups that comprise it, allowing them to broadly exercise their role as shapers of the law, whether they are in the "majority" or the "opposition" with respect to the opinion of the majority, due to their character as representatives of the people (article 105 of the Constitution). The only admissible limits to this power are those expressly stated in the Political Constitution or in the Regulations of the Legislative Assembly, provided that in the latter case they do not excessively restrict the right of every deputy to file motions, affecting the essential core of said power (see ruling No. 2000-003220).

-The Presidency of the Committee may, in the interest of rationalizing the discussion and debate, even ex officio, group motions that have an intimate connection, identity of content, or when they are reasonably equivalent or reiterations of others pending resolution or already resolved, as well as reject those that do not conform to the established rules. In the event that the resolution lacks a statement of reasons, the Deputy may file the corresponding appeal so that the defect can be cured (see rulings numbered 2007-002901 and 2007-009699).

-The power of the president to reject motions must be understood restrictively and only regarding matters of form, timing, or reasons of evident inadmissibility (see ruling No. 2005-007428).

-A substantial defect in the legislative procedure that harms the right of amendment and participation is configured when admitted motions are not submitted to a vote (see ruling No. 2008-004569).

In conclusion, from all the above it follows that the power of all deputies of the Legislative Assembly to file motions admits as its only limits those expressly stated in the Political Constitution or in the Regulations of the Legislative Assembly, provided they do not excessively restrict or affect the essential core of said power (right of amendment of the deputy). Therefore, it is possible for the president of the Legislative Assembly to proceed to group motions by means of a reasoned resolution.

• 3)Regarding the matter consulted.- On the basis of the preceding jurisprudence, we proceed to examine the matter consulted regarding procedural defects. Specifically, the following three points are consulted regarding the resolution adopted by the Presidency on the admissibility of reiteration motions, adopted in ordinary session No. 51 on March 18, 2021:

-To declare reiteration motions inadmissible because they were substantive motions already approved in Committee.

-To group some reiteration motions by considering them identical, but not to group others that were.

-Not to bring an admitted motion to the attention of the Plenary.

In this regard, the following is observed from the legislative record:

Certainly, in ordinary plenary session No. 51 on March 18, 2021, the President of the Legislative Assembly issued a resolution on the admissibility of the reiteration motions, in which he develops three points (see folios 8997 to 9017, Volume 35 of the legislative record), this analysis referring only to the first two, of interest to this study”:

I.The reiteration motions identified with numbers 18, 231, and 250 were deemed inadmissible, as they correspond to substantive motions that were approved in the reporting committee.

II.The discussion of several reiteration motions was grouped, considering them to be "identical, similar, or reasonably equivalent." They would be discussed in a single act but voted on individually.

-On the reiteration motions declared inadmissible on grounds of being considered approved in Committee: After reviewing the record, the appeal filed against the rejection of motion 138-231 by Deputy Vega Rodríguez and motion 138-18 by Deputy Abarca Mora is confirmed, as well as the general appeal of Deputy Welmer Ramos (proponent deputy of motion 138-250). The foregoing is relevant because the Chamber has determined that procedural defects must be noted at the time they occur in order to subsequently consult on them in the consultation of constitutionality that is presented. Given the appeal filed against these motions, their examination is appropriate. There would indeed be an arbitrariness and consequent substantial defect if it were demonstrated that motions 138-18, 138-231, and 138-250 were approved in Committee, but that another motion approved subsequently in committee "overrode" them, and then the possibility of reiterating them was rejected. Now, in the case of motions 138-231 and 138-250, the written submission of the consultation does not clearly indicate which was that other motion that overrode them or at what procedural moment it happened. A total of 777 substantive motions were heard and 352 reiteration motions were filed. This would imply that it is the Chamber that must review all the substantive motions approved after the substantive motion referred to in reiteration motion 138-231 and 138-250 were approved, in order to find, according to its content, the supposed motion that later rendered them without effect, a review that is, by all accounts, inappropriate for this Chamber to conduct. This Tribunal has, on repeated occasions, indicated that in the submission brief, not only the articles of the bill whose constitutionality is questioned or consulted must be expressed, but also the reasons why it is considered that a norm of the bill may be unconstitutional must be stated clearly and sufficiently, as otherwise the consultation would be inadmissible (see, in this sense, rulings numbered 1995-5399-95, 1995-5544, 1999-7085, 2001-11643, and 2012-9253). Regarding the case of motion 138-18, the consulted parties substantiate the defect when they cite what Deputy Abarca Mora stated when appealing, as follows:

“…That motion refers to motion 329 from the second day of motions and that if 80 or 81 from the second day of motions were approved, it would basically be left out of the text even though it was approved, and that is why you are excluding it. On repeated occasions in the Plenary, approved motions have been accepted and admitted precisely to preserve the spirit of the legislator, and in this case, I call your attention to the fact that if you reject that motion and 80 or 81 from the second day are approved, we could do damage to the bill and we would erase something that is in the base text today…”.

That is, the admission of a reiteration motion for a motion already approved in Committee is requested to ensure that it will not be modified afterward. However, although in this case the argument was substantiated, this Chamber cannot base a procedural defect on an uncertain assumption, namely, that motions will end up being approved that could probably override it. The appropriate course of action in those cases is for the interested deputy, during the reiteration motion of the motion that could override it, to defend the approved text so that this reiteration motion is rejected. And if the Plenary decides to go against it, that would be the majority decision. It should be noted that it has not been proven that it is a parliamentary custom to admit reiteration motions based on the fear that another motion will replace it. Furthermore, as recorded in folio 11458 of the legislative record, Deputy Abarca himself voted in favor of the motion that he stated affected his own.

On the improper grouping of reiteration motions: Only the possible defect of improper grouping of motion 138-154 is examined, as it is an aspect directly related to the right of amendment of the deputies. The other arguments, regarding the fact that other motions should have been grouped and were not, are a decision of the Presidency that rather favors the right of amendment and therefore cannot be considered a substantial defect, so their examination in this venue is not appropriate. Having said the above, it is recorded that reiteration motion 154 was filed by Deputy Villalta (see folio 9308, Volume 36 of the legislative record). This motion was grouped together with motions 13, 138, 179, 180, 181, 246, 247, 248, and 349 by the presidency of the Legislative Assembly, "because there is an evident connectedness (conexidad) in the aims intended by the proponents" (see folio 8983, Volume 35). The appeal against the grouping of motion 138-154 is recorded, based on the fact that it proposes modifying two articles (Art. 2 and Art. 3). As the proponent pointed out in the appeal, said motion proposes reiterating the substantive motion seeking to modify Article 2 and add Article 3 of the bill, while the rest of the grouped motions only propose adding Article 3. In this sense, it is confirmed that the president of the Assembly decided to bring it to the floor, indicating that: “this is a reinstatement that must be done due to an improper grouping of motions. Therefore, we must proceed to hear motion 154, by Mr. José María Villalta Flórez-Estrada//. Consequently, motion 154 is under discussion and Deputy Villalta Flórez-Estrada will take the floor.” Thus, in this case, despite the initial improper grouping, it was later put to discussion separately, and the proponent deputy was able to take the floor to defend it. Therefore, no procedural defect whatsoever is evidenced for this aspect because the situation was cured at the time, as the same consulted parties indicate in their submission brief.

-On the failure to put reiteration motion 138-210 to discussion: The violation of the right of amendment and democratic participation of Deputy Paola Vega Rodríguez is alleged, given that, although reiteration motion 138-210 was admitted, and it does not appear in the questioned resolution that it was not admitted, nor that it was grouped with other motions, the Presidency did not bring it to the attention of the Plenary, so its subsequent vote was omitted. Once the resolution of the presidency of that body was reviewed, it is found that, indeed, motion 138-210 was not rejected nor grouped, but from this Chamber's examination of the legislative record, a doubt arises as to whether there was a will on the part of the proponent to have it put to discussion. The motion sought to modify paragraph c) of Article 13 or its equivalent article in case the numbering varied, so that it would read:

“ARTICLE 13- General Public Employment Regime c) Public servants who perform police functions, in accordance with article 6 of the Ley General de Policía, No. 7410, of May 26, 1994, article 2 of the Ley Orgánica del Organismo de Investigación Judicial (OIJ), No. 5524, of May 7, 1974, and chapter IX of the Código Municipal, No. 7794, of April 30, 1998.” It could be confirmed that in volume 45, folios 11214 and 11215, this motion appears with a stamp reading "withdrawn" and signed by Deputy Vega, dated April 7. Then, upon reviewing extraordinary session No. 88 of the Plenary, held on April 7, 2021, the president only mentioned that Deputy Vega had withdrawn motions 166, 195, 201, 224, 172, 192, 194, 195, 196, 199, 200, 205, 206, 208, 209, 211, 212, 213, 214, 224, 228, 229, 230, 169, 175, 176, 177, 184, 202, and 221. In this way, a contradiction is observed between the motion with the "withdrawn" stamp bearing the signature of Deputy Vega herself, and then what is recorded in the minutes where reference to such motion as withdrawn is omitted. Beyond the fact that it is a matter foreign to this Chamber to determine in this case which act has greater validity, whether the withdrawn stamp with the deputy's signature or what is recorded in the minutes, it is not observed that Deputy Vega evidenced or manifested the situation before the Plenary. As stated supra, procedural defects must be noted at the time they occur in order to be subsequently raised via a consultation of constitutionality. In this case, as stated, there is no record that Deputy Vega noted the defect; on the contrary, her signature is observed on the "withdrawn" stamp of the motion.

Therefore, its lack of discussion cannot be considered a substantial procedural defect.

• 4)Conclusions 1) No substantial procedural defect is found regarding the argument of the inadmissibility of motions 138-231 and 138-250, because the brief for this consultation did not substantiate which motion modified them and "was superimposed on them"; and regarding the inadmissibility of motion 138-18, because it was based on an uncertain fact (the probability that another motion would be superimposed on it).
• 2)No substantial procedural defect is found regarding the argument of the improper joinder (indebida acumulación) of motion 138-154 because, although it was improperly joined at the outset, the President of the Assembly later severed it (desacumuló) and allowed its separate discussion.
• 3)No substantial procedural defect is found regarding the argument of the lack of discussion of motion 138-210 by Deputy Paola Vega, because said motion appears in the legislative record with a withdrawal stamp and the signature of the proposing deputy.

VII.- Regarding the SUBSTANTIVE defects consulted and in general regarding the consulted bill.- Regarding the consulted bill, called "PUBLIC EMPLOYMENT FRAMEWORK LAW" (LEY MARCO DE EMPLEO PÚBLICO), which is being processed in legislative file No. 21.336, the three optional legislative consultations filed by the deputies were admitted. All of which were joined (acumuladas) to this main file. Grouping all the substantive aspects consulted, six of them refer to the scope of coverage of the bill (regarding the inclusion of the Judicial Branch, the Supreme Electoral Tribunal, the Public Universities, the Costa Rican Social Security Fund, the Municipalities, and the Autonomous Institutions) and to other issues such as conscientious objection (objeción de conciencia), the right to collective bargaining, the sanction of disqualification (inhabilitación), the global salary (salario global), and due process. Each of these issues will be analyzed separately in the following recitals (considerandos). However, by way of contextualization, a general explanation of the consulted bill is appropriate. Regarding the justification given in the statement of motives for this bill (see base text), it is indicated that it "has the purpose of being a cornerstone to guide the public service towards a more homogeneous legal system among itself, aimed at reducing the distortions generated by fragmentation, in a context of effectiveness and efficiency." This is because it is considered that: "The State must regulate the relationship with public servants, under general rules and principles that govern all public institutions, safeguarding the independence of powers and the particularities of the public employment sub-regimes (subregímenes de empleo público), … but always, seeking at all times the satisfaction of the public interest, ensuring citizens receive goods and services with quality and timeliness." It is also indicated that Law No. 9635, Law for the Strengthening of Public Finances (Ley de Fortalecimiento de las Finanzas Públicas), already granted the stewardship (rectoría) of public employment to the Ministry of National Planning and Economic Policy, in Article 46 of Title III, thereby seeking to revive the spirit of the constituent. Finally, it is indicated in this statement of motives that, "This Public Employment Framework Law Bill seeks to jointly address the recommendations issued by different national and international bodies, such as the Comptroller General of the Republic (Contraloría General de la República) and the Organization for Cooperation and Development." Whereupon, reference is subsequently made to those recommendations, indicating in the case of the OECD the recommendation to gradually migrate towards a single-salary scheme for new officials; and in the case of "the Comptroller General of the Republic (Contraloría General de la República) has drawn attention to the need to review the remuneration scheme, mainly those salary incentives that generate disparities between the same types of positions, as is the case of annuities." Additionally, "the need to link incentives to performance evaluation mechanisms and their continuous review." Subsequently, based on those reasons, the bill intends to create a Public Employment Framework Law, in a text of 50 articles and 15 transitional provisions, to take effect one year after its publication. In 10 chapters, aspects such as the following are regulated:

· CHAPTER I. GENERAL PROVISIONS · CHAPTER II. GOVERNANCE OF PUBLIC EMPLOYMENT · CHAPTER III. PUBLIC EMPLOYMENT PLANNING · CHAPTER IV. WORK ORGANIZATION · CHAPTER V. EMPLOYMENT MANAGEMENT · CHAPTER VI. DEVELOPMENT MANAGEMENT · CHAPTER VII. PERFORMANCE MANAGEMENT · CHAPTER VIII. COMPENSATION MANAGEMENT · CHAPTER IX. LABOR RELATIONS MANAGEMENT · CHAPTER X. MISCELLANEOUS PROVISIONS Within the articles, the following are highlighted. The objective of the law would be "to regulate the statutory relations, public employment relations, and mixed employment relations, between the Public Administration and public servants (…) in accordance with the constitutional imperative of a single public employment regime (…)" (Art. 1). Including, within its scope of coverage, the entire state apparatus, centralized and decentralized (Art. 2). Proceeding to exclude, basically, non-state public entities, the Fire Department (Cuerpo de Bomberos), and public enterprises in competition (Art. 3). Then, in Chapter II, a General Public Employment System is created, whose stewardship (rectoría) will be in charge of the Ministry of National Planning and Economic Policy (Mideplán), establishing in Art. 7 all of its competencies (competencias) in a broad list that includes, from establishing public policies, programs, and national public employment plans; issuing provisions of general scope, directives, and regulations; issuing guidelines and general principles for performance evaluation; establishing a single and unified remuneration system for the public function; among others. Then, in Chapter IV, the existence of a single general public employment regime is indicated, composed of eight job families (familias de puestos) (Art. 8). General rules are established for the entire new entry recruitment and selection process (Art. 15) and a single dismissal procedure (Art. 21). Likewise, some general rules on performance evaluation (Art. 29) and on salary (Art. 30), with the establishment of a unified salary regime for the entire public service (Art. 35). Finally, general rules are established for issues such as vacations (Art. 38), and leaves of absence; in addition to various provisions, such as, for example, regarding collective bargaining (Art. 43).

VIII.- General Recital (Considerando general).- (drafted by Justice Castillo Víquez) In the Constitutional State of Law, all infra-constitutional norms must be read, interpreted, and applied in accordance with the Law of the Constitution (values, principles, and norms). Starting from this perspective, the analysis of the consulted bill will be carried out adopting the foregoing as a frame of reference, in such a way that an integral reading will be made, keeping very much in mind the principle of separation of powers or functions, as well as the constitutional principles that regulate administrative decentralization, especially the degrees of autonomy that entities decentralized by region and service possess to achieve their constitutionally assigned purposes.

A good part of the consulted questions implies carrying out an analysis of the relationship between the law - the exercise of legislative power - and the principle of separation of powers, their independence in the exercise of their exclusive and exclusionary competencies, university autonomy, and municipal autonomy. It must not be lost sight of that there is no compartment or area of exclusion from the law regarding the exclusive and exclusionary competencies of the Supreme Court of Justice, the Supreme Electoral Tribunal, the State Universities, and the municipalities. Proof of what we affirm is the existence of the constitutional consultation regulated in numerals 88, 98, 167, and 190 of the Fundamental Charter. In other words, if the original constituent had wished to exclude the powers of the State and the decentralized entities from the power to legislate, it would not have established the constitutional consultation when the Legislative Assembly, in the exercise of legislative power, intends to regulate the organization and functioning of those powers and entities. In the case of the municipalities, although it did not expressly institute the constitutional consultation - for the majority of this Court it did -, the fact of the matter is that in local matters, in which political autonomy applies in accordance with constitutional numerals 169 and 170, the Parliament, in the exercise of the power to legislate, can regulate municipal organization and competencies.

Another question that must necessarily be addressed, starting from the fact that the Legislative Assembly, in the exercise of the power to legislate, has a constitutional competence to regulate the organization and functions of the powers and decentralized entities, not to suppress their self-organizational or self-normative autonomies (autonomías autoorganizativa o autonormativa)—in the case of state universities—, political autonomy—in the case of municipalities and the CCSS—, and administrative autonomy—in the case of autonomous institutions—, is whether, regarding a typically administrative function—public employment—in relation to certain job positions directly linked to exclusive and exclusionary competencies, it can or cannot affect them, those derived from those degrees of independence, that is, the positions related to competence in matters in which there is exclusivity in their exercise, which must be defined exclusively and exclusionarily by the constitutional bodies and the entities with constitutionally assigned purposes and for which they are endowed with degrees of autonomy with a constitutional basis. This means that the legislator has a limit in the exercise of the power to legislate, as it cannot suppress them, or affect them, in their essential elements, nor transfer them to other entities or bodies.

It must be kept in mind that in a unitarily concentrated State like Costa Rica, all public entities are subject to the principle of state unity, since autonomy does not mean sovereignty, but simply and plainly independence in the exercise of exclusive and exclusionary competencies. Regarding the principle of state unity, it has been affirmed that regardless of the degree of autonomy a decentralized entity may have, it is closely linked to the State by a series of principles and norms that are in the Law of the Constitution, for example, numerals 11, 48, 49, 182, 184, and 192 of the Fundamental Charter, which establish the principles of legality, accountability, and transparency, the unrestricted respect for fundamental rights and subjective public rights and their effective judicial protection in the constitutional and contentious-administrative jurisdictions, the principles and procedures of administrative contracting, the approval and supervision of budgets by the Comptroller General of the Republic and control by this organ of constitutional relevance over the use of public funds, submission to the core principles of the civil service, etc. In this direction, it is not unconstitutional for the legislator to subject the entire Public Administration to a public employment framework law, provided it rigorously observes the principles of separation of powers and does not empty of content the degrees of autonomy that the Law of the Constitution grants to the state universities, the CCSS, and the municipalities.

It is not possible to overlook the fact that all activity related to appointments, evaluations, disciplinary regime, salary caps, work valuation, compensation management, job classification, salary columns (columnas salariales), etc., is a typically administrative activity. Nor can it be ignored that the powers of the State with the exclusion of the executive—following a subjective criterion it is the one that carries out administrative activity by nature, Article 1 of the General Law of Public Administration (Ley General de la Administración Pública)—, exceptionally carry out administrative activity—objective criterion, Article 2, subsection b) of the Contentious-Administrative Procedure Code (Código Procesal Contencioso-Administrativo)—, as occurs with the matter of public employment. The keystone lies in determining whether there are administrative activities in this area that are indispensable to guarantee the exclusive and exclusionary competencies of the powers of the State. The answer is affirmative, in the sense that, although it concerns an administrative activity, its exercise corresponds to the constitutional bodies and public entities that enjoy level three and level two autonomy. This means that those bodies and entities are called upon to comply with the principles and postulates established in the Law, but with the particularity that it is these to whom it corresponds to apply it and strictly adhere to what is established. This position makes it inadmissible, from a constitutional viewpoint, for the Executive Branch or any of its other bodies to exercise a power of hierarchy, direction, or internal regulation over the powers of the State, the state universities, the CCSS, and the municipalities.

According to the design of the distribution of competencies, which responds to the principle of separation of powers and the degrees of autonomy established by the original constituent in favor of the constitutional bodies—powers of the State—and decentralized public entities by region—municipal corporations—and services—state universities and the CCSS—, it is clear that the power of direction that corresponds to the Executive Branch or one of its bodies—Mideplán—is incompatible with that constitutional principle and the degrees of autonomy that certain entities enjoy. Stated differently, the power to issue directives—special mandates that order the activity of a body or entity by setting its goals and objectives, but not a specific act—is not constitutional when it affects or influences the exclusive and exclusionary competencies of the other powers of the State or the constitutionally assigned purposes of the corporate-based or institutional entities that enjoy a level three autonomy—self-organizational or normative—or level two—political—or in those administrative activities necessary for the exercise of those competencies. Starting from this cardinal idea, it is clear that in matters of public employment, regarding the personnel of the powers of the State and the entities decentralized by region and service, those who exercise such competencies—jurisdictional, para-jurisdictional, electoral—or participate in the public management related to the constitutionally assigned purposes of the cited entities, as well as the administrative support, professional, or technical personnel, defined, exclusively and exclusionarily, by each power and entity, cannot, in any way, fall under the power of direction of the Executive Branch or Mideplán. There is, therefore, a hard core, an area unavailable to the Executive Branch, that cannot be ordered in its activity, much less through the exercise of regulatory power, which corresponds exclusively to each power of the State and each public entity.

However, the foregoing does not mean that all the civil servants of the powers of the State and the entities cited above are excluded from the power of direction. In the case of basic, auxiliary administrative services that do not affect the exclusive and exclusionary competencies or administrative functions necessary for their fulfillment, each power of the State and entity must define exclusively and exclusionarily which of these may be subject to the power of direction. Therefore, based on the principle of independence of powers or functions and the degrees of autonomy constitutionally guaranteed to each entity, it corresponds exclusively and exclusionarily to their highest bodies—Full Court, Superior Council of the Judicial Branch, Supreme Electoral Tribunal, University Councils, Rectorates, Board of Directors and Executive Presidency of the Costa Rican Social Security Fund, Municipal Council, and Mayors—to establish which are those basic, auxiliary, common administrative services similar to the entire Public Administration that would indeed be subject to the powers of direction and regulation of the Executive Branch.

Ergo, by not establishing the bill that safeguard—a clear and precise norm—in this sense, this Court concludes, as will be explained later, that there is a series of unconstitutionality defects that violate judicial and electoral independence and the autonomies of the state universities, the CCSS, and the Municipalities.

In another order of ideas, the deputies must also be clear that everything that pertains to the civil servants of the powers of the State and entities with assigned constitutional purposes established as part of their competencies—constitutional or administrative—regarding the construction of the job family (familia), the grades thereof, the job valuation methodology, the relevant job factors to assign, the minimum and maximum salary of each column (columna), the technical grounds for setting salaries, the descriptive manual for each position, performance evaluation, etc., corresponds, exclusively and exclusionarily, to each of these to define, as will be explained when analyzing the norms challenged as unconstitutional in the admitted consultations.

No less important is the fact that matters regarding performance evaluation and the exercise of disciplinary power are reserved to each power of the State and the entities cited above, since these powers are consubstantial with the exercise of their constitutional competencies or the fulfillment of the constitutionally established purposes. This means that, regarding these issues, all the civil servants of each power and entity are subject to the internal provisions that each of these issues in this regard.

One last question, before referring to each grievance raised by the consulting parties, is that in judgments number 1992-1696 of 3:30 p.m. on August 23, 1992, 2018-14905 of 12:30 p.m. on September 7, 2018, and 2018-231 of 11:00 a.m. on January 10, 2018, reiterated in 2019-14347, it was reaffirmed that the existence of different labor regimes in the public administration is feasible, provided they are governed by the common principles of suitability (idoneidad) and stability in employment (estabilidad en el empleo), such as the statutory regime. This Court has indicated that our original constituents enshrined in the Political Constitution of 1949 that there should be an administrative labor regime that regulated the relations between public servants and the State, in order to protect the former from arbitrary dismissals (stability in employment) and to professionalize the public function (seeking efficiency in the service and suitability of the official). The purpose of such an aim was to ensure that the Public Administration possessed organizational factors that would allow it to satisfy the right of citizens to the proper functioning of public services. In view of this, it was constitutionally provided that the procedure for selecting and appointing a servant in the Public Administration must comply with the fundamental principles set forth in Articles 191 and 192, with which suitable personnel are sought to occupy a public position, with the purpose of guaranteeing efficiency and effectiveness in the public function.

A civil service regime can be visualized, not as a corporate privilege, but as a guarantee of institutional impartiality, which regulates the public function, guarantees the selection of personnel based on criteria of merit and capacity, as well as a fair balance between the rights and responsibilities of public employees. It has also been indicated that said legislation must provide instruments to the different administrations that facilitate the planning, organization, and most efficient use of their personnel. Hence, the public employment labor relationship is subject to certain specificities and principles, such as merit and capacity in access, and also to certain public law norms, such as the incompatibility regime, that guarantee objectivity and impartiality in the provision of the public service.

It was established that the original Constituents, when discussing the titles referring to the Autonomous Institutions and the Civil Service, deemed it appropriate to elevate them to the constitutional level with the desire—on the one hand—to deconcentrate executive power regarding the new functions entrusted to the State, and their political-electoral influences on its functioning. On the other hand, they considered the serious effects that changes of government caused on the personnel of the Public Administration in the absence of an adequate legal instrument to protect them. In those precedents, the following analysis was highlighted, carried out based on the minutes of the Constituent Assembly:

"The Representative Facio expressed that everyone agrees that one day the employees of the Public Administration must be covered by an adequate Civil Service Law. They also agree that a law of this nature is very complex and cannot be enacted overnight, or all at once. It is necessary to adapt it little by little to the national reality and conveniences. He added that in the 1949 Draft they incorporated a special chapter on the Civil Service, some of whose provisions they will submit to the knowledge of the Chamber in due course. In the Draft, the administrative career (carrera administrativa) is constitutionally established, so that the past events do not recur in our country, when employees were removed from their positions by simple political maneuvers. However, those on the Drafting Committee of the Draft realized the difference of establishing the Civil Service Law in Costa Rica. That is why they solved the problem through a transitional provision, drafted in the following terms:

' The provisions of Title XIII shall enter into force on the same day as the Civil Service Law, which shall be applied gradually, in such a way that within a period (sic) of no more than ten years, it shall cover the totality of public servants.' (Volume III, Minutes of the National Constituent Assembly No. 132, pp. 120 and 121). - Said motion—to include two subsections in Article 140 of the Political Constitution—was put to a vote, resulting in a tie, so it had to be heard and voted on in the following session. Regarding the second subsection proposed, it was rejected. - III In accordance with the foregoing, after extensive discussions, Article 140, subsection 1 was approved… For all the foregoing, it was provided for Article 140, subsections 1) and 2) of the Political Constitution, the definitive approval of Article 140.-X of the Transitory Provisions, by establishing that:

'The Civil Service Law shall not enter into force before November 8, nineteen fifty, nor after June 1, nineteen fifty-three, as agreed by the Legislative Assembly. Said law may also provide that its norms be gradually applied to the various departments of the Public Administration; in any case, said law must protect the totality of public servants included in the second subsection of Article 140, no later than November 8, nineteen fifty-nine. As long as the Civil Service Law is not in force, the President of the Republic and the respective Minister of Government may freely appoint and remove all officials of their dependency, including the Directors and Managers of the Autonomous Institutions and the members of the Boards and official bodies, whose appointments had been made prior to the date of validity of this Constitution, even when such designations were for a fixed term.' V After approving the Chapter on Autonomous Institutions, the constituents began to hear the Title and Sole Chapter of the Civil Service, articles that defined the scope of application and its principles. At that time, many public servants were removed from their positions to make way for supporters of the new government, damaging the functioning of the public administration. Precisely to attack this evil, a group of constituents advocated for the creation of that legal instrument in order to provide the Public Administration with greater administrative and functional efficiency. The first article proposed established that 'A Civil Service Statute shall regulate the relations between the State and public servants, with the purpose of guaranteeing the efficiency of the services, which shall be performed with a technical criterion and by the strictly necessary personnel.' Deputy Fournier summarized the purpose of the statute, saying it was to regulate relations between the State and its public servants. This had—as is to be expected—reactions of support and resistance from some deputies, including Representative Esquivel, who considered its inclusion unnecessary because Article 140, subsections 1) and 2) of the Political Constitution existed, a numeral that had already been approved by the National Constituent Assembly. Notwithstanding the cited resistance, it is clear that the matter had not been exhausted with the mere approval of those subsections, since even the statutory regime was expanded in its concept. Thus, on the occasion of the discussion of Article 192, Deputy Fournier highlighted:

'It is essential to state the essential part of the Civil Service Law, that is, that no employee may be removed from their position, except for grounds for dismissal (causales de despido) established by the Labor Code, or in the case of forced reduction of services due to an absolute lack of funds or to achieve a more effective and economical organization thereof. Both the employee and the State are guaranteed.'" It was highlighted in the supra-referenced discussion that the mere statement of the Civil Service Law in the Political Constitution was insufficient, but that it was necessary to cite the fundamental principles of the statute of the public function, the form of appointment based on verified suitability, and their removal, by means of predetermined legislation such as labor legislation, or for cases of forced reduction of services, whether due to lack of funds or to achieve a better organization thereof. However, this Chamber warned that what was proposed by the Executive Branch to the Legislative Assembly on April 14, 1953, according to file No. 1581, was a bill that only circumscribed its officials within its jurisdictional scope, even though the will of the Constituent was to approve a statute for the State, which produced the consequences and applicative interpretations of a regulation alien to what was intended by the Constituent. The following was explicitly warned:

“VI… It is clear that the intention of the constituent was to create an administrative labor regime. From the reading of the minutes of the National Constituent Assembly, the figure of the public employee and the private worker is distinguished. It is unquestionable that the absence of a legal regime that appropriately regulates the relations between the State and its servants violates Article 191 of the Political Constitution, which also leads to the violation of Article 11 of the Magna Carta…

VII.On the one hand, the Law that was issued (Civil Service Statute) has partial scope, since the initiative taken by the Executive Branch in this regard only had the purpose of regulating relations with its servants, that is, within its jurisdictional scope. From this angle of approach, the regulation of service relations between minor public entities has been left out, as it was something in which the Executive had no interest, or simply it was not what it considered most urgent. On the other hand, the Civil Service Statute regulated only some of the aspects of the relationship of servants with the State, such as those relating to rights, duties of servants, their selection, classification, promotion, transfers, discipline, and dismissal regime—among the most important—, which evidently pertain to one of the concerns expressed in the National Constituent Assembly, that is, that which relates to the suitability and efficiency of the service, but it did not touch on other no less important aspects, such as those underlying the approach of this action, that is, the regulation of the very economic regime of that relationship and the subjection of the other administrative entities to the public labor regime."

This void, however, does not authorize using mechanisms designed for a private relationship for a public employment relationship that must be governed by its own, different principles." (The text in bold does not correspond to the original).

The Chamber was clear in those precedents that, from the examination of the Constituent Assembly's discussions, there is a mandate and not a mere recommendation to apply to this employment relationship between the public administration and its servants their own or special criteria, for which, in accordance with the referred transitory provision, the Legislative Assembly was required to enact, between November 8, 1950, and June 1, 1953, the Civil Service Law, whose main characteristic would be its gradual application in offices of different natures within the Public Administration, which was not fully complied with at that time.

As stated in the initial jurisprudential line, since 1949, the legal system regulating the employment relationship between the public administration and its servants in our country has been governed by public law. This regime necessarily implies that this relationship, by its very nature, is based on its own general principles, not only different from those of the private labor sector but even, many times, opposed to them.

As indicated, the "legislator… chose to regulate the service not in a general manner, but by sectors, thus enacting the Civil Service Statute (which applies to the servants of the Executive Branch) and subsequently other statutes to regulate the provision of services in the remaining branches of the State and in some decentralized institutions." (see judgments No. 1990-1119 of 14:00 hours on September 18, 1990, and No. 2004-7476 of 14:04 hours on April 30, 2004, among others). And this, as this Court acknowledged, is consistent with a systematic interpretation of the Political Constitution, which also recognizes the autonomy of autonomous institutions and the degree of independence of each of the Branches of the State.

In judgment No. 1999-5966 of 10:30 hours on July 30, 1999, this Court stated the following:

"SIXTH: THE EMPLOYMENT REGIME OF THE SERVANTS OF THE COMMISSION CREATED BY THE LAW. The consultation indicates that 'the fact that regular officials are subjected to a special employment regime' violates Article 191 of the Constitution and although the Chamber has already established in its jurisprudence that when the fundamental norm refers to 'a civil service statute' it does not mean a single statute, as the different Branches that exercise the government of the Republic (Article 9 of the Constitution) may have their own statutory regime. Regarding this topic, the abundant jurisprudence of this Chamber can be consulted, in particular the grounds of judgments numbers 1148-90, of seventeen hours on September twenty-first, nineteen ninety, and 1696-92, of 15 hours and thirty minutes on August twenty-third, nineteen ninety-two. What does constitute a violation of the said constitutional provisions is that an organ attached to the Executive Branch, regardless of the appointments that could or should be made due to and to attend to an emergency, may have a 'special employment regime' in which the role of the General Directorate of Civil Service is limited to coordinating and inspecting it.

In that sense, therefore, the consultants are correct, and the norm, in the terms it was conceived, must be eliminated. It should only be added here that, due to an emergency, exceptional personnel contracting mechanisms could be used, but this would be authorized in principle and not even based on a norm that authorized it." Thus, other statutes regulating this public employment relationship have been accepted; however, imposing in each of those regulations as an essential limit, the fulfillment of the principle of suitability (idoneidad) and stability (estabilidad) in the labor relationship in the public sector, regardless of the differentiated regime adopted, in accordance with the provisions of Articles 191 and 192 of the Constitution. This was reaffirmed by this Chamber in judgments numbers 2001-5694 of 16:23 hours on June 26, 2001, 2011-014624 of 15:50 hours on October 26, 2011, and 2006-17746 of 14:36 hours on December 11, 2006.

Therefore, the constitutional principles and norms governing the Civil Service extend to the public employment regime of administrative entities, as the intention of the constituent was to create an administrative labor regime, with its own principles, derived from the statutory nature of the relationship between public officials and the State, and although conceived generally, Article 192 of the Constitution also anticipated the need to establish exceptions to that single regulation. This was evidenced by this Court in judgment No. 1990-1119, by stating the following:

"…The legislator, however, chose to regulate the service not in a general manner, but by sectors, thus enacting the Civil Service Statute (which applies to the servants of the Executive Branch) and subsequently other statutes to regulate the provision of services in the remaining branches of the State and in some decentralized institutions. Despite the fact that the legislator did not adopt the constituent's idea and only partially regulated the public service, it is true that the basic principles of the regime (selection by suitability, stability in employment) cover all officials serving the State, both from the central administration and from decentralized entities. But, this is in principle, because Article 192 of the Constitution introduces other important elements by providing at the beginning 'with the exceptions that this Constitution and the civil service statute determine,' a phrase that forces us to qualify the previous conclusions regarding the scope of application of the civil service regime or statute. It is obvious that in the constituent's mind was the idea that not all public servants could be covered by the special regime, since the method of selection, the special capabilities, the functions of each position, the relationships of trust and dependence are not the same in all cases, hence the principles derived from Article 192 are applicable to certain officials –the majority– not to all. The Constitution itself pointed out several cases of freely appointed and removable officials such as government ministers, members of the public force, directors of autonomous institutions, diplomatic representatives, and in general, 'the employees and officials who hold positions of trust' (art. 140 subsection 1), leaving to the law (Civil Service Law, says Article 140) the determination of other officials who, in very qualified cases, could be excluded from the general regime. This possibility of excluding certain officials is reiterated by Article 192. It is repeated that the constituent's intention was that there be a single law, a Statute, regulating all public service. However, what is important is that the ordinary legislator was left, through law, the detailed regulation of the coverage of the special regime, which could be done, as it was, in separate laws, without detriment to the constitutional mandate. By means of law, the legislator has excluded several cases from the common regime. The Civil Service Statute in its Articles 3, 4, and 5 mentions a good number of officials who are not considered within the regime. Also, by special law, executive presidents of autonomous institutions, who are appointed by the executive, have been excluded, and in general, a series of officials, almost always appointed for a fixed term, whose common denominator is being in a service relationship that is not typically labor-related, under a regime of hierarchical subordination, but rather of direction or collaboration, where orders do not mediate, but rather directives, in some cases; or, in a relationship of trust that requires granting greater freedom for the appointment and eventual removal of the official; this independently of the permanent nature of the function. This relationship of trust can be based, according to the requirements of the position, on purely subjective aspects, of a personal nature; but it can also derive from objective elements born from an ideological community (political in the good sense of the term), necessary for the good management of public affairs according to plans and programs. The exception cases, it is clear, must be very qualified, with the special characteristics indicated that justify unequal treatment. This must be so, because by way of unjustified exception the legislator could render nugatory the constitutional provision that tends towards the employment stability of the public employee and the rationality of recruitment, as a general rule. But if the position has some special characteristic that justifies it, the exception will be valid." (The emphasis is not from the original) As can easily be deduced from what we have said, the intention of the original constituent was to subject all public employment relationships to an Administrative Law regime - statutory - that is, no organ or entity of the Public Administration, central or decentralized, was exempt from this duty. Hence, although there may be special statutes - specific to decentralized organs and entities - provided they respond to the cardinal principles enshrined in the Fundamental Charter, it is also true that it is constitutionally valid for there to be a single statute regulating the relations between the Public Administration, central and decentralized, and its servants. The foregoing means that the Legislative Assembly is enabled by the Law of the Constitution to establish a single statute encompassing all public servants, with the exceptions that the Constitution - subsections 1 and 2 of Article 140 - and the cited statute determine, so, in this respect, the bill of law consulted is not contrary to the said Law and, logically, provided that the exclusive and excluding powers corresponding to the branches of the State and to the decentralized entities are not suppressed, affected in their essence, or transferred to other organs and entities according to the principle of separation of powers or functions or the degree of autonomy, respectively.

Now, the analysis of the grievances - doubts or defects of unconstitutionality - invoked by the consultants is in order.

Particular considerations of Magistrate Garro Vargas on this general whereas clause (considerando general) I fully agree with what the general whereas clause signed by the majority states:

"It is not unconstitutional for the legislator to subject the entire Public Administration to a framework law on public employment, provided it rigorously observes the principles of separation of powers and does not empty the content of the degrees of autonomy that the Law of the Constitution grants to the State universities, the CCSS, and the municipalities." Therefore, as reflected in the notes I have recorded in this resolution, I consider that the legislator can certainly establish a general normative framework on this matter, containing an employment model for all public servants, which includes guidelines on compensation, performance evaluation, demonstration of suitability and responsibility in the exercise of functions, etc. That is, this framework could well embody and develop the constitutional principles of suitability, employment stability, efficiency and immovability, results evaluation, accountability, and responsibility for fulfilling duties (all in accordance with arts. 9, 11, 191, and 192 of the Political Constitution).

However, in the terms in which the consulted bill of law is drafted, serious frictions with the Constitution are noted. One of them refers to the scope of the powers of the governing authority (rectoría) exercised by Mideplan. That ministerial portfolio of the Executive Branch is granted certain powers without considering the independence of the branches of the republic or the governmental autonomies constitutionally recognized.

In these particular considerations, I intend to explain, with the utmost respect, why I also do not share some arguments contained in the general whereas clause, referring to the conditions under which the powers of said governing authority are deemed unconstitutional.

That whereas clause, in the first place, makes a distinction between officials, according to the type of work they perform:

"The keystone is determining whether there are administrative activities in this area that are essential to guarantee the exclusive and excluding powers of the branches of the State." This means that the Constitutional Chamber, without any constitutional normative basis, divides public officials into those who perform work that affects the exclusive and excluding powers of the branch or institution with constitutionally recognized autonomy, and those who perform work that supposedly does not affect them. It makes this distinction to indicate that the latter could indeed be subject to such governing authority:

"[T]he power to issue directives (…) is not constitutional when it affects or impacts the exclusive and excluding powers of the other branches of the State or the constitutionally assigned purposes of the corporate or institutional entities that enjoy a degree of autonomy of level three - self-organizational or normative - or level two - political - or in those administrative activities necessary for the exercise of those powers.

Ergo, according to that whereas clause, subjection to those directives would be constitutional when it does not affect such powers. That is why it adds:

Now, the foregoing does not mean that all the employees of the branches of the State and of the entities cited above are excluded from the directive power. In the case of basic, auxiliary administrative services, which do not affect the exclusive and excluding powers nor administrative functions necessary for their fulfillment, each branch of the State and entity must define, in an exclusive and excluding manner, which of these may be subject to the directive power. Therefore, based on the principle of independence of powers or functions and the degrees of autonomy constitutionally guaranteed to each entity, it corresponds exclusively and in an excluding manner to their highest organs – Full Court, Superior Council of the Judiciary, Supreme Electoral Tribunal, University Councils, Rectors' Offices, Board of Directors and Executive Presidency of the Costa Rican Social Security Fund, Municipal Council and Mayors – to establish which are those basic, auxiliary, common, and similar administrative services throughout the Public Administration that would indeed be subject to the directive and regulatory powers of the Executive Branch.

Recapping: First, it introduces the distinction between public servants who perform functions related to the competence assigned to the branch (or institution with constitutionally recognized autonomy) and others who do not. Then, it indicates that the respective highest organs are responsible for making this distinction. The above is intended to clarify which services within each branch or institution will indeed be subject to the directive and regulatory powers exercised by Mideplan.

In this regard, firstly, it is noteworthy that in said whereas clause, the majority of the Constitutional Chamber introduces an element that is not in the bill of law submitted for consultation, and presents it as a condition of constitutionality: that there be a distinction of officials and that the distinction be made by each branch or institution with constitutionally granted autonomy. On this point, it must be remembered that the role of this Court is to note the alleged defects of constitutionality consulted and not to propose or make considerations on aspects that are not expressly questioned in the consultation or provided for in the bill of law.

Secondly, with such arguments, it would obviously be said that what would be unconstitutional is for the officials who perform work that directly affects the powers of the branch or institution in question to be under the mentioned governing authority. And what would also be unconstitutional is for the distinction between one type and another of officials to be made by the legislator or Mideplan. Furthermore, it endorses the existence of two regimes within each branch: those subject to the governing authority and those not. Then, the officials who do not perform work that is supposedly directly linked to the exclusive powers could, according to that general whereas clause, without grievance to the Constitution, be subject to the mentioned governing authority. However, I consider that the powers granted to that governing authority exercised by Mideplan over those other officials are also not constitutional, because it affects the independence or autonomy of the respective organizations in question (branches of government, Supreme Electoral Tribunal, Costa Rican Social Security Fund, public universities, or municipalities). In this respect, it must be borne in mind that independence and autonomy are organic qualities, constitutionally recognized to the branches or institutions – as the case may be. They are not characteristics of the subjects who work there. At the same time, the work of all the officials who are part of that branch or institution, without exception or distinction, is integrated into the achievement of its own and exclusive purpose. It is true that within each of the branches or institutions that enjoy constitutionally recognized autonomy, there are officials who only contribute more or less directly to the exercise of the organization's own powers; however, they perform their work as part of a unitary whole, which has specific purposes. For example, an economist can work as a legislative advisor, as an advisor in a ministry, etc.; the same for a secretary: she could be one for a municipality or a branch of the republic. However, although the work of each one is materially very similar to that of a colleague who works in another institution, the truth is that it is exercised not unlinked but integrated into the specific purposes of the branch or institution in question.

Furthermore, it should be added that in the exercise of that work, that servant has access to information and is required to establish relationships inherent to their position. This last point, which seems trivial, is not, and the legislator has taken it very much into account when establishing prohibitions and impediments, both for officials and former officials. And it has taken it into account precisely because it knows that, although independence or autonomy – I repeat – are organic qualities and not qualities of the officials of the branches or institutions, a normative framework must govern that ensures that the subjects who make up those organizations do not harm, with their acts, the respective independence or autonomy, as the case may be. If that is so, it does not seem legally reasonable either to understand as constitutionally valid that within each branch or institution with autonomy granted by the Constitution, there are officials subject to a ministerial portfolio of the Executive Branch, as if they were subjects who are not fully integrated into the organization to which they belong. This would consummate, by this means, what the Constituent Assembly sought to avoid and what the legislator to date has tried to safeguard: the non-interference of one branch in another or in an institution with constitutionally recognized autonomy.

Therefore, as it is an organic characteristic, independence covers the entire branch of the republic. The same could be said of institutions endowed with governmental autonomy. Now, precisely because it is an organic quality, it is true, as the majority states:

"[I]t is 'unacceptable, from a constitutional standpoint, for the Executive Branch or any of its organs to exercise a power of hierarchy, direction, or internal regulation over the branches of the State, the State universities, the CCSS, and the municipalities.'" But bear in mind that this is unacceptable regarding the organization as a whole and those who comprise it, and this latter part without making the distinction among officials.

Therefore, there are essential activities because they directly affect those powers and others that do not; but that does not mean that the latter can be regulated, controlled, or subjected to a power different from that branch – or from that institution with constitutionally recognized autonomy – in which they work. The fact that some tasks are not "indispensable" does not separate the officials who perform them from their link to the hierarchy within that branch or institution, as applicable. That is, the subjection of public servants to their own branch or autonomous institution makes possible, effective, the independence or autonomy granted by the Constitution.

The general whereas clause also states:

"Nor can it be ignored that the branches of the State, excluding the executive – following a subjective criterion, it is the one that carries out administrative activity by nature, Article 1 of the General Law of Public Administration – exceptionally carry out administrative activity – objective criterion, Article 2, subsection b) of the Contentious-Administrative Procedure Code –, as occurs with the matter of public employment." I believe this statement must be qualified. In fact, the Contentious-Administrative Procedure Code states:

Art. 1. (…) 3) For the purposes of this Law, Public Administration shall be understood as:

• a)The Central Administration.
• b)The Legislative, Judicial Branches, and the Supreme Electoral Tribunal, when performing administrative duties.
• c)The decentralized, institutional, and territorial Administration, and other public law entities.

So it is not so accurate to assert that the branches – excluding the Executive – only exceptionally perform an administrative function. The truth is that all perform an administrative function, but only one (the Executive Branch, at the central level) has the administrative function as its main responsibility. That is, in the organic distribution (branches, organs, institutions with autonomy recognized by the Constitution, local governments, etc.) all exercise an administrative function. Moreover, they also perform the normative and judicial functions (although the latter in a broad sense: they administer administrative justice). However, the Executive Branch is attributed par excellence the administrative or governmental function, the Legislative Branch the normative function, and the Judicial Branch the judicial function, which, in its case, is jurisdictional justice (although also, internally, administrative justice). But it is clear that in all of them, the three functions essential for the operation and achievement of the respective branch's purposes are exercised. The same could be pointed out regarding local governments, public universities, and the Costa Rican Social Security Fund. Therefore, for what matters here, it must be emphasized that the administrative function is exercised by all the mentioned branches and institutions, although with varying intensity and scope. For this reason, if all exercise an administrative function, it does not seem that the one referring to the regime of their own officials should be removed from them, and what this entails, which – as the general whereas clause well states – is a "typically administrative activity." In light of the foregoing, I have serious reservations about the proposal of said whereas clause. Even if it were said that, in principle, each branch or institution could have the power to define which officials perform a so-called "indispensable" work, what becomes unconstitutional is that this distinction is made with the purpose of transferring that sector of public servants to the subjection of another branch of the republic, because this would imply breaking the republican model designed by the Political Constitution. Accepting such a proposal would mean understanding that only the Executive Branch exercises a true administrative function and that this would give rise to the other branches, at least in matters of public employment, being able – or perhaps obliged – to abdicate from administration (from its government and even from its regulation).

Therefore, it is not appropriate for this distinction to empty the very effectiveness of the independence of the branches and the constitutionally recognized autonomies of their content. For this reason, if the legislator made that distinction, it would disrespect those organic characteristics, and thus it would be unconstitutional. Granting that power of distinction to Mideplan itself is also, from a constitutional point of view, absolutely unacceptable. However, although it is not unconstitutional in itself to legally grant the heads of the branches themselves – or of the institutions endowed with governmental autonomy – the power to distinguish the servants who do perform functions that affect their own exclusive and excluding powers, from those who supposedly do not, the truth is that such power does not cure the root constitutional infractions of the bill of law submitted for consultation, especially if such a distinction aims to authorize the governing authority of Mideplan over these latter officials.

Furthermore, leaving that definition in the hands of the respective heads – transitory per se – subjects them to enormous pressure from the subordinate servants themselves, because it is not difficult to imagine that many of them will consider, rightly or wrongly, that their work directly affects the ultimate purpose of the institution itself. Therefore, it cannot be ruled out that the exercise of that power could have the effect of exacerbating disparities and inequities, which is precisely what the bill of law aims to eliminate. This is not only because, as I have said, it would be endorsing the existence of two regimes within each organization, but also because there would be the possibility that the heads do not make such a distinction or practically render it ineffective. So, the fact that the heads have the power to make that distinction does not necessarily achieve the desired effect of the bill. Therefore, the proposal seems to harm the principles of reasonableness and legal certainty.

The spirit of the establishment of a civil service statute, as can be recalled from the records of the constituent assembly and from the reading of arts. 191 and 192 of the Political Constitution, is that there would be no political interference from the respective Executive Branch in the relations between the State and public servants. However, the establishment of a governing authority of the General System of Public Employment under the charge of Mideplan, with the express possibility of issuing provisions of general scope, directives, and regulations concerning planning, work organization, employment management, performance management, compensation management, and labor relations over other branches of the republic and institutions with constitutionally recognized autonomy, allows what the Constituent Assembly sought to avoid: that political interference. This is so because it is a governing authority in the hands of a portfolio of the Executive Branch, whose head is freely removable by the President of the Republic, and its powers have transversal effects, as they do not recognize the boundaries that mark the independence of branches and the constitutionally established autonomies.

Particular considerations of Magistrate Picado Brenes on this general whereas clause From my point of view, the subject of public employment has an evident transcendence over Costa Rican democracy, over the organization of the state apparatus, and in general over the Rule of Law. For this reason, I consider it opportune to underline some aspects that the Jurisprudence of this Chamber has established regarding public employment and the Civil Service Statute. Public employment in Costa Rica, as a particular statutory regime of Public Law, has its constitutional bases in Articles 191 and 192 of the Political Constitution. Before 1949, public employment in Costa Rica was basically regulated by private law (Civil Code initially and Labor Code later). That is why the constitutional regulation of this matter that occurred in 1949 is so transcendental. From the debate in the National Constituent Assembly of said articles, it is concluded that public employment in Costa Rica is regulated by a special legal framework, Public Law, constituting a true statutory regime. Our Constituent members, when discussing the titles referring to the Autonomous Institutions and the Civil Service, considered elevating them to a constitutional level with the desire - on the one hand - to deconcentrate the power of the Executive in terms of the new functions entrusted to the State, and its political-electoral influences over its functioning.

On the other hand, they considered the serious effects that changes of government caused on public administration personnel given the lack of an adequate legal instrument to protect them (see vote no. 1992-001696). As this Chamber has stated on previous occasions (see vote no. 2018-00231), our original framers enshrined in the 1949 Political Constitution that there must be an administrative labor regime regulating the relations between public servants and the State, in order to protect the former from arbitrary dismissals (job stability) and to professionalize the public function (pursuit of efficiency in service and the suitability of the official). The object of such a task was to ensure that the Public Administration had organizational factors allowing it to satisfy the right of citizens to the proper functioning of public services. The civil service regime is not established, then, as a corporate privilege, but as a guarantee of institutional impartiality. Now, regarding this issue, in relation to several aspects that are being consulted, it is relevant to determine whether the Civil Service Statute, mentioned in Article 191 of the Constitution, refers to a SINGLE statute and whether it covers all State servants (Central Public Administration and Decentralized Public Administration). Based on constitutional jurisprudence, I consider that it is consistent with the mandate of the Framer that there may be a general public employment law in Costa Rica. The foregoing, provided that it is a law containing only general principles, general provisions, guiding criteria, and that it respects the rest of the principles safeguarded in the Constitution, such as the principle of separation of functions and the degree of autonomy of the different decentralized institutions. These general principles or guidelines would serve to develop the depoliticization of public employment, by ensuring compliance with the principles of entry through proven suitability and permanence through the principle of stability, as established in Articles 191 and 192 of the Constitution. Which then implies that, anything that exceeds the foregoing would be outside the constitutional framework, for example, if such a law sought the creation of a governing body in public employment matters headed by an organ that operates over the rest of the Branches of the Republic and over the decentralized Administration (territorial and functional); and furthermore, if norms are established that seek to regulate aspects of the internal jurisdiction of the independence of Branches and autonomies. In these cases, both the Executive Branch and the Legislative Branch have their competencies barred.

This issue of which public officials are covered by the Civil Service and which are not has already been addressed by this Chamber (see judgment number 1990-01119), where it was initially stated as follows:

"II.- Regarding the first point: which officials does the Civil Service Regime cover? A study of the minutes of the Constituent Assembly reveals that the deputies wished to adopt, with constitutional rank, the special public service regime they called civil service, which already existed in other Latin American constitutions at that time. However, the framer avoided being excessively detailed or regulatory in this matter, and instead resolved to include in the Constitution only the fundamental principles that would define said regime, namely: speciality for the public servant, requirement of proven suitability for appointment, and guarantee of stability in service, all for the purpose of achieving greater efficiency in administration, leaving the development of the institution to the law. (Minutes No. 167, art. 3, T. III). Article 191 uses the term 'statute' of civil service instead of 'regime' of civil service, which had its meaning, since over the minority opinion that advocated for scattered regulation, the thesis prevailed that it should be a statute, a single legal body that would regulate public service, developing the minimum guarantees established by the Constitution. (Minutes No. 167, art.3, T. III, p. 477). The legislator, however, opted to regulate the service not in a general manner, but by sectors, thus promulgating the Civil Service Statute (which applies to servants of the Executive Branch) and subsequently other statutes to regulate the provision of services in the remaining branches of the State and in some decentralized institutions. Nevertheless, despite the fact that the legislator did not adopt the framer's idea and regulated public service only partially, the truth is that the basic principles of the regime (selection by suitability, employment stability) cover all officials serving the State, both in the central administration and in the decentralized entities. But this is in principle, because Article 192 of the Constitution introduces other important elements by providing at the outset 'with the exceptions that this Constitution and the civil service statute determine,' a phrase that forces the previous conclusions to be nuanced regarding the scope of application of the civil service regime or statute. It is obvious that in the framer's mind was the idea that not all public servants could be covered by the special regime, since the method of selection, the special capacities, the functions of each position, the relations of trust and dependence are not the same in all cases, hence the principles derived from Article 192 are applicable to certain officials—the majority—not to all. The Constitution itself indicated several cases of officials of free selection and removal such as government ministers, members of the public force, directors of autonomous institutions, diplomatic representatives, and in general, 'the employees and officials who hold positions of trust' (art. 140 subsection 1), leaving to the law (the Civil Service Law says Article 140) the determination of other officials, which in very qualified cases, could be excluded from the general regime. This possibility of excluding certain officials is reiterated by Article 192. It is repeated that the intention of the framer was that there should be a single law, a Statute, that would regulate all public service. However, what is important is that the ordinary legislator was left, through law, the detailed regulation of the coverage of the special regime, which it could do, as it did, in separate laws, without detriment to the constitutional mandate. By way of law, the legislator has excluded several cases from the common regime. (...)." Later, the Chamber clarifies the previous position on the existence of a single legal body in order to perform a systematic interpretation of the Constitution, through judgment number 2018-00231, when it indicates the following:

"III.- Regarding the statutory regime. Our original framers enshrined in the 1949 Political Constitution that there must be an administrative labor regime regulating the relations between public servants and the State, in order to protect the former from arbitrary dismissals (job stability) and to professionalize the public function (pursuit of efficiency in service and the suitability of the official). The object of such a task was to ensure that the Public Administration had organizational factors allowing it to satisfy the right of citizens to the proper functioning of public services. To that end, the procedure for selecting and appointing a servant in the Public Administration must comply with the fundamental principles provided in Articles 191 and 192 of the Constitution, thereby seeking suitable personnel to occupy a public position, with the purpose of guaranteeing efficiency and effectiveness in the public function. The civil service regime is not established, then, as a corporate privilege, but as a guarantee of institutional impartiality.

(...)

VI… It is clear that the intention of the framer was to create an administrative labor regime. From the reading of the minutes of the National Constituent Assembly, the figure of the public employee and the private worker is distinguished. It is undeniable that the absence of a legal regime that appropriately regulates the relations between the State and its servants violates Article 191 of the Political Constitution, which also entails the violation of Article 11 of the Magna Carta…

(...) XI In the opinion of the Chamber, then, Articles 191 and 192 of the Political Constitution substantiate the existence, in principle, of an employment regime governed by Public Law within the public sector, as has become clear from the debate in the National Constituent Assembly and is incipiently captured by the General Law of Public Administration. This public employment regime necessarily implies consequences derived from the nature of that relationship, with its own general principles, which are now not only different from those of labor law (private), but often opposed to them…" Having set forth the above, it is clear and evident that, as of 1949, the legal system regulating the employment relationship between the public administration and its servants in our country is governed by public law, a principle reiterated in Article 112 of the General Law of Public Administration (see in this regard, Judgment No. 1995-3125 of 4:24 p.m. on June 14, 1995). This regime necessarily implies—as indicated in the aforementioned precedent—that this relationship, by its very nature, is based on its own general principles, not only different from those of labor law (private), but often even opposed to them. Now, as this Tribunal has evidenced in its jurisprudence, the "legislator,…, opted to regulate the service not in a general manner, but by sectors, thus promulgating the Civil Service Statute (which applies to servants of the Executive Branch) and subsequently other statutes to regulate the provision of services in the remaining branches of the State and in some decentralized institutions." (see Judgments No. 1990-1119 of 2:00 p.m. on September 18, 1990, and 2004-7476 of 2:04 p.m. on April 30, 2004, among others). The foregoing is consistent with a systematic interpretation of the Political Constitution, which also recognizes the autonomy of autonomous institutions and the degree of independence of each of the Branches of the State. This was also clarified by the Chamber in Judgment No. 1999-5966 of 10:30 a.m. on July 30, 1999, when resolving the optional consultation on constitutionality of the Bill "Reform of the National Emergency Law No. 4374 of August 14, 1969," stating the following: "The consultation indicates that 'the fact that regular officials are subject to a special employment regime' violates Article 191 of the Constitution and although the Chamber has already established in its jurisprudence that when the fundamental norm refers to 'a civil service statute' it does not say a single statute, since the different Branches that exercise the government of the Republic (Article 9 of the Constitution) may have their own statutory regime…".

(...) According to what was stated by the Chamber in Judgment No. 2003-10615, the wording finally given to Article 191, together with the process of profound decentralization that the Costa Rican State underwent from 1949 onwards, led to the situation that currently the existence of various statutory relations in the Administration is valid, in consideration of the functional independence and administrative autonomy that the legal system ensures for several public institutions. However, "what is not legitimate – as was stated – is that the relations between each Administration-employer and its officials are governed by concerted (contractual) rules between both parties, as validly occurs in private employment relations." (...)

Corollary to the foregoing, the public employment relationship that applies to public servants is a special public-law or statutory relationship, which by such legal nature has limitations regarding the application of common labor law. Likewise, its regulation is subject to ordinals 11, 191, and 192 of the Political Constitution. (...)" Based on the foregoing, I consider that the following conclusions can be reached:

-FIRST: A single public regime of public employment, but not a SINGLE Statute, which must be interpreted in light of the Principles of independence of branches and of autonomies: The regulation of public employment by sectors, "is consistent with a systematic interpretation of the Political Constitution, which also recognizes the autonomy of autonomous institutions and the degree of independence of each of the Branches of the State." (see judgment no. 2018-00231). Thus then, "when the fundamental norm refers to 'a civil service statute' it does not say a single statute, since the different Branches that exercise the government of the Republic (Article 9 of the Constitution) may have their own statutory regime…" (see judgment no. 1999-005966). Therefore, "one" cannot be understood as a single legal instrument, but as a single regime of principles and guarantees: "when the Constitution speaks of a single regime applicable to public servants, it did not restrict the concept of 'statute' to that of a single legal instrument, but rather seeks to specify the uniform regime of principles and guarantees that regulate the protection of the labor rights of the public servant, especially attending to their right to stability" (see judgment no. 1993-06240). What the Framer refers to, then, is a single public regime covering all officials serving the State, that is, a Public Law regime (where entry by suitability and permanence with stability are guaranteed), distinct from private or contractual law. But it does not refer to a single normative body, since it is "valid that various statutory relations exist in the Administration, in consideration of the functional independence and administrative autonomy that the legal system ensures for several public institutions." (see judgment no. 2018-00231).

-SECOND: Principles of the civil service regime (only norms with general principles) mandatorily applicable to the entire State: The basic principles of the civil service regime (selection by suitability, employment stability) cover all officials serving the State, both in the central administration and in the decentralized entities. For the legislator opted to regulate the service not in a general manner, but by sectors, thus promulgating the Civil Service Statute (which applies to servants of the Executive Branch) and subsequently other statutes to regulate the provision of services in the remaining branches of the State and in some decentralized institutions. For example, the promulgation of the Personnel Law of the Legislative Assembly No. 4556 of April 29, 1970. Despite that diversity of laws, it is evident that the constitutional principles of the civil service apply to all public officials and to all existing sectors. These principles, and not the specific norms of the Civil Service Statute, are mandatory for the entire state apparatus, because the Framer wished to put an end to the practice of many public servants being removed from their positions to make room for supporters of the new government. That is, the Framer wished to depoliticize the appointment and removal of public officials from their positions, by establishing these two main principles that are listed in Article 192 of the Constitution (suitability and stability).

-THIRD: Recognition of several cases excluded by the Framer itself: In the framer's mind was the idea that not all public servants could be covered by the special regime, since the method of selection, special capacities, the functions of each position, the relations of trust and dependence are not the same in all cases (see vote no. 2018-0231). Thus, several cases excluded from the common regime are left in the hands of the Constitution itself and the legislator, as indicated by the phrase with which Article 192 of the Constitution begins: "With the exceptions that this Constitution and the civil service statute determine." -FOURTH: Recognition of a differentiated employment regime, in several cases: In diverse jurisprudence, this Chamber has recognized a differentiated regime that regulates, for example, judicial officials (see judgment no. 2001-005694 and no. 2018-019511), the Caja Costarricense de Seguro Social (see judgment no. 2011-014624), and the Instituto Costarricense de Electricidad (see judgment no. 2006-017746). It is clear, then, that the Framer makes reference to a single public employment regime (of Public Law and based on the principles of suitability and stability), but not to a single Statute or legal framework for the entire state apparatus.

-FIFTH: The only way to understand "A Statute" applicable to the entire State is to understand it as "A regime": The only way to correctly interpret the constitutional text when it says "A statute" is in the sense of understanding that there exists a single statutory regime, with its own principles and norms, distinct from private law, to safeguard suitability and stability, but not to subject the entire state apparatus, above the principle of independence of branches and the limitations of administrative oversight (tutela administrativa), to a series of norms coming from a single normative body. A single statutory regime, guaranteeing the principles of suitability and stability in the entire employment regime of the entire state apparatus, is something very different from centralizing in a single normative body, which grants all competencies and powers in the matter of public employment to an organ of the Executive Branch. For understanding it in that way is completely contrary to the Framer's intention to depoliticize public employment. It is clear that in the framer's mind was the idea that NOT all public servants could be covered by a single normative body, much less, a normative body managed and centralized by the Executive Branch.

-SIXTH: Regime of autonomies established by the Framer to avoid the concentration of power.— The 1949 Framer established a system of division of powers and a regime of autonomies as the basis of our Constitutional Law. All of this was embodied in different articles of the current constitutional text. The principle of separation of powers (Art. 9 of the Constitution), the governmental autonomy of the Municipalities (Art. 170), the governmental autonomy of the Caja Costarricense del Seguro Social (Art. 73), the full autonomy of public universities (Arts. 84 and 85), the autonomy of autonomous institutions (Art. 188). In this regard, Deputy Rodrigo Facio Brenes was clear when he stated within the National Constituent Assembly that: "(…) what the regime of autonomies seeks is to decentralize the fundamental economic functions of the State in such terms that the administrative growth typical of the modern world does not imply a corresponding extension of the political power of the Executive. The thesis according to which the President, or the Executive, must have all the attributions in the last instance; the theory according to which the President must exercise the single hierarchy of the Administration, that is the statist or totalitarianizing [sic] theory; the one of autonomies, the one that seeks to multiply the hierarchs to avoid the concentration of power and resources, is the democratic thesis. (…)" (Minutes No. 166, 13/X/1949, p.5). All of which is complemented, moreover, by a regime of decentralization of power and depoliticization of public employment, which is incompatible with a single normative body centralizing competencies in the Executive Branch.

Furthermore, I consider it necessary to make these two additional reflections regarding the Independence of Branches and the regime of autonomies:

-SEVENTH: The exclusion of Branches operates both for the Executive Branch and for the Legislative Branch.— In the specific case of the Judicial Branch, there is an area barred to the Executive Branch, but also to the Legislative Branch. I do not share the arguments indicated in the general recital (considerando) of this judgment, to the effect that, "there is no compartment or area of exclusion to the law regarding the exclusive and excluding competencies of the Supreme Court of Justice, the Supreme Electoral Tribunal, the State Universities, and the municipalities." Quite the contrary, regarding the exclusive and excluding competencies of the Supreme Court of Justice, the Supreme Electoral Tribunal, the State Universities, the CCSS, and the municipalities, there IS an area of exclusion, but not only from the Executive, but also from the Legislator. The Executive Branch, through Mideplán, could never operate as a hierarch with respect to the Human Resources Departments of the Supreme Court of Justice, the Supreme Electoral Tribunal, the State Universities, the CCSS, and the municipalities. But furthermore, the Legislative Branch, through the exercise of its legislative power, could also never venture into aspects of the internal competencies of those same institutions. The foregoing, by virtue of the scope of protection afforded by the constitutional principle of separation of powers and administrative decentralization. For instance, the legislator could not dictate norms to tell the Supreme Court of Justice which parameters to follow and which not in the process of selection, recruitment, evaluation, salaries, dismissal, among others. It can establish general guidelines that address the content of constitutional norms (suitability, employment stability, efficiency, transparency, control of accounts), but it cannot venture into how the Judicial Branch must proceed to operationalize all those aspects, which fall within the scope of its administrative independence. I consider that it is inadmissible, from the constitutional perspective, to issue legal norms (Legislative Branch) in relation to the internal competencies of the rest of the Branches of the State. In summary, just as it is inadmissible for the Executive Branch to exercise hierarchical power, direction, or internal regulation over the branches of the State, the state universities, the CCSS, and the municipalities; it is likewise inadmissible for the Legislative Branch to issue laws containing norms that order the other Branches of the State or the decentralized entities the way to proceed with their competencies.

-EIGHTH: There is an area of exclusion for the Legislative Branch and the Executive Branch regarding ANY of the competencies: Regarding any of the competencies of the Supreme Court of Justice, the Supreme Electoral Tribunal, the State Universities, the CCSS, and the municipalities, an area of exclusion operates for the Legislative Branch and for the Executive Branch. I do not share the majority's thesis of dividing the competencies of a Branch of the Republic into exclusive competencies and non-exclusive competencies, as if one could only speak of the principle of separation of powers with respect to the former and not the latter. Clearly, in any of the competencies assigned to a Branch of the Republic, no other may intervene. I consider that those divisions endanger the foundations of a State of Law, by considering that, in the so-called "non-exclusive and non-excluding competencies," interference by one Branch over another is then permissible. Nothing could be more dangerous and removed from what should be considered as the principle of separation of powers. In this sense, proceeding to dissect, dismember, divide, or differentiate the services each Branch of the Republic provides into: exclusive and excluding services, and auxiliary administrative services, in order to permit the interference of Branches in the latter, is an odious distortion of the most basic foundations of our State of Law. It would be tantamount to admitting that it is not permitted for one Branch to insert "its entire arm" over another Branch, but the insertion of "a hand of that arm" is permitted—which in this case would be precisely those auxiliary administrative services. Interference is interference, much or little, but ultimately it is interference. Pursuant to Article 16 of the Declaration of the Rights of Man and of the Citizen:

"A Society in which the guarantee of Rights is not assured, nor the separation of Powers determined, has no Constitution." In this sense, we would cease to have a Constitution if a mitigation of the principle of separation of Powers were to be admitted. Clearly, our Article 9 of the Constitution indicates that the Government of the Republic "is exercised by the people and three Branches distinct and independent from each other. The Legislative, the Executive, and the Judicial." Thus, the three Branches of the Republic are distinct and independent. There cannot be independence if one Branch has interference over another, even if that interference is only with respect to the so-called "auxiliary administrative services." This would be the case, then, where Mideplán could have interference over the "auxiliary administrative services" of the Judicial Branch. Deputy ESQUIVEL already stated this in the Constituent Assembly (minutes no. 88) when he expressed that "the classic concept of the independence of the Branches constitutes a balance among the different organisms of the State. Furthermore, it comes to be a guarantee for the citizens." It is not, then, a matter of defending a special jurisdiction (fuero) of the Judicial Branch, for example, but of defending the true independence of Branches as a guarantee for citizens, for the Constitution, and for the State of Law. I agree that it is not unconstitutional for the legislator to subject the entire Public Administration to a framework law on public employment, but only as to general principles and guidelines and, furthermore, as the general recital (considerando) states, "provided it rigorously observes the principles of separation of powers and does not empty the content of the degrees of autonomy that Constitutional Law grants to the state universities, the CCSS, and the municipalities." But this condition is emptied of content if it is accepted that, in public employment matters, Mideplán (an organ of the Executive Branch) could have interference, competencies, decision-making, and hierarchy over the "auxiliary administrative services" of the Supreme Court of Justice, the Supreme Electoral Tribunal, the State Universities, the CCSS, and the municipalities. Even if the general recital (considerando) indicates that it is each branch of the State and each entity that defines which are those "auxiliary administrative services," this does not eliminate the fact that it would be a kind of "consented interference," and therefore, always "interference." On this point, it is not understood how this could be operationalized in practice, since the Judicial Branch could perfectly well then indicate that it has no auxiliary administrative services, but rather that all services are of its exclusive and excluding competence, and in that way, veto the intervention of Mideplán over those services. Moreover, it must be noted that the Judicial Branch, for example, could not carry out all its functions if it did not have all the personnel it has, in all areas and with total independence, for each person, from the most humble position to the highest on the hierarchical scale, is part of a gear that allows the institution to carry out its functions every day and provide the constitutionally assigned services.

In summary, I consider that the Framer, when referring to a Civil Service Statute, was referring to a general regime of Public Law, with its two fundamental pillars (suitability and stability), but not to a single normative framework. Should the legislator desire the existence of a single law to regulate public employment, it would be limited to regulating only general aspects of Articles 191 and 192, but not, as was attempted with the bill under consultation, venturing into aspects that fall within the competence of the different Branches of the State and the decentralized entities. Furthermore, for the real effectiveness of the constitutional principle of separation of Branches, each Branch of the Republic is completely barred from venturing into the competencies of another Branch, even when dealing with competencies considered "auxiliary administrative services." IX.- On the consultation regarding the violation of judicial independence.- 1) Aspects consulted The consulting deputies consider that the following articles of the draft "LEY MARCO DE EMPLEO PÚBLICO" (Public Employment Framework Law), being processed under legislative file No. 21.336, are in violation of the principle of judicial independence and therefore of articles 9, 154, and 156 of the Political Constitution, art. 10 of the Universal Declaration of Human Rights, art. 14 of the International Covenant on Civil and Political Rights, and art. 8 of the American Convention on Human Rights. Specifically, they consult on the indicated articles, whether in the heading of the general title or in the rest of the text of the submission:

· 2.a (scope of coverage), · 6.b (stewardship of Mideplan), · 7 (competencies of Mideplan), · 9.a (Human Resources offices), · 12 (database), · 13 (job families), · 14 (recruitment and selection), · 15 (postulates of recruitment and selection), · 17 (Senior Management personnel), · 18 (probationary period and appointment period), · 19 (mobility or transfers), · 21 (single dismissal regime), · 22 (dismissal process), · 31 (work methodology), · 49 subsections a, b, g, and h (amendment to regulations).

First of all, regarding articles 12 (database), 13.h (confidential position job family), 15 (postulates of recruitment and selection), 19 (mobility or transfers), and 31 (work methodology), given that the sufficient grounding that would allow this Chamber to have clarity on the matter consulted has not been provided, the consultation is declared inadmissible for lack of grounding. The Chamber observes that despite what they indicated in the consultation, the truth of the matter is that they did not properly ground it, and with that omission, they do not allow this Tribunal to have certainty as to what the questioning is that they are raising and the reasons why they could have deemed that such norms, eventually, could have problems of constitutionality in general or, specifically, in relation to the Poder Judicial and the Tribunal Supremo de Elecciones. In this regard, one must recall the provisions of article 99 of the Law of Constitutional Jurisdiction, which states:

"Article 99.- Except in the case of the mandatory consultation provided for in subsection a) of article 96, the consultation must be formulated in a reasoned brief, expressing the questioned aspects of the draft, as well as the reasons why there are doubts or objections regarding its constitutionality." In light of this situation, since the Chamber does not have further elements to carry out the analysis of this numeral, the appropriate course of action is, unanimously, to declare the consultation of constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed under legislative file No. 21.336 inadmissible, with respect to articles 12 (database), 13.h (confidential position job family), 15 (postulates of recruitment and selection), 19 (mobility or transfers), and 31 (work methodology), for lack of grounding of the matter consulted, regarding the Poder Judicial and the Tribunal Supremo de Elecciones. Thus, it must be understood that this Chamber omits making any pronouncement on the constitutionality or unconstitutionality of these norms.

Now, regarding the remaining norms, the consultants consider them unconstitutional in that they attempt to subject the Poder Judicial to the provisions issued by the Ministerio de Planificación Nacional y Política Económica (Mideplán) and the Dirección General del Servicio Civil, in matters of public employment. They indicate that the draft allows an agency of the Poder Ejecutivo to meddle in the employment management of the Poder Judicial, including issuing resolutions or circulars (art. 7), allowing intrusions that go beyond the purely administrative or salary-related. They consider the violation of the principles of separation of powers, autonomy, and independence of the Poder Judicial to be evident. They indicate that the draft violates the principle of separation of powers, the autonomy and independence of the Poder Judicial, the principles of legality, legal certainty, proportionality, and reasonableness, in that it attempts to regulate the employment relationships between the serving persons and the Poder Judicial (art. 2.a), subjecting it to the application of the Civil Service Statute according to the amendment to art.1 of its legal body (art. 49.B), by including the Human Management Department of that Power under the stewardship of Mideplán (art. 6), being obligated to apply and execute the general provisions, directives, and regulations in relation to work planning, employment, performance, compensation, and labor relations management issued by Mideplán (art. 9), by establishing a single public employment regime of which persons who administer justice will form part (art. 13), by providing for the recruitment and selection of the Poder Judicial's personnel according to general provisions, directives, regulations, circulars, manuals, and resolutions of Mideplán for each job family (art. 14), as well as for senior technical management personnel for whom there is a 6-month probationary period and a 6-year appointment (arts. 17 and 18), with the possibility of annual renewal subject to performance evaluation, and the subjection of Poder Judicial bodies, whose competencies are assigned in the Judicial Service Statute and the Law of Salaries of the Poder Judicial, to coordinate everything concerning public employment with Mideplán in its capacity as the governing body. Furthermore, the establishment of a single dismissal procedure when one already exists regulated in the special legislation (arts. 21 and 22).

Thus, the examination of the indicated articles proceeds. First, a jurisprudential summary on the subject of judicial independence is made, which will serve as context for the examination of each article consulted.

• 2)Jurisprudential Background on the Constitutional Principle of Separation of Powers and the Constitutional Principle of Judicial Independence To understand how transcendental the issue of judicial independence is for a Rule of Law State like ours, one must start from another basic principle in every democratic system, the principle of separation of powers. From the Declaration of the Rights of Man and of the Citizen of 1789, in article 16, the following is stated:

"Article 16.- Any society in which the guarantee of rights is not assured, nor the separation of powers determined, has no Constitution." Which means that one of the two fundamental pillars for the true existence of a Constitution is the safeguarding of the principle of separation of powers. According to reiterated constitutional jurisprudence on this principle, the Government of the Republic is exercised by the people and three distinct and independent Powers: The Legislative, the Executive, and the Judicial. Enshrined in article 9 of the Political Constitution and stands as "one of the fundamental pillars of the Democratic State, as it establishes a system of checks and balances that guarantees respect for constitutional values, principles, and norms for the direct benefit of the inhabitants of the country." (ruling No. 2006-013708). Since ruling No. 6829-1993 it was indicated that the theory of the separation of Powers is interpreted as the need for each State Body to exercise its function independently of the others (article 9 of the Political Constitution). While interference or invasions of the assigned function cannot occur, collaborations between Powers must necessarily take place. Currently, constitutional doctrine and practice affirm that it is advisable to speak of a separation of functions, that is, of the distribution of these among the different state bodies. Specifically on the independence of the Poder Judicial and the independence of judges, there is also abundant jurisprudence from this Chamber. In general, it has been affirmed that, in democratic political regimes, the principle of independence of the judge, in particular, and of the Poder Judicial, in general, has fundamental value because upon it rests the legitimacy of the judge and the impartiality of the judicial decision. It has been indicated that it is essential for the proper functioning of the democratic Rule of Law – understood under its postulate of the primacy of law – that the jurisdictional function can be exercised without undue pressure, within the bosom of a truly independent Poder Judicial. A principle that, in the Costa Rican case, not only has due constitutional support but is also contemplated in multiple international instruments. This Chamber has highlighted since its inception the importance of judicial independence by reaffirming that the administration of justice is an exclusive competence of the Poder Judicial (see ruling No. 1991-0441 and 1994-2358, 1996-6989, 1999-4555, 2006-7965). The Inter-American Court of Human Rights – the jurisdictional body of the Inter-American System of Protection – has determined:

"(…) one of the main objectives of the separation of public powers is the guarantee of the independence of judges" (IACHR Court. Case of the Constitutional Court vs. Peru. Merits, Reparations, and Costs. Judgment of January 31, 2001. Series C No. 71, para. 73).

It has also indicated that "Such autonomous exercise must be guaranteed by the State both in its institutional facet, that is, in relation to the Poder Judicial as a system, as well as in connection with its individual aspect, that is, in relation to the specific person of the judge. The objective of the protection lies in preventing that the judicial system in general and its members in particular see themselves subjected to possible undue restrictions in the exercise of their function by bodies outside the Poder Judicial or even by those magistrates who exercise review or appeal functions. Additionally, the State has the duty to guarantee an appearance of independence of the judiciary that inspires legitimacy and sufficient confidence not only to the litigant but to the citizens in a democratic society." (IACHR Court. Case of Apitz Barbera et al. ("First Court of Administrative Litigation") vs. Venezuela. Preliminary Objection, Merits, Reparations, and Costs. Judgment of August 5, 2008. Series C No. 182, para. 55.).

In ruling No. 1999-1807, the constitutional and conventional basis of the principle of judicial independence was indicated, highlighting the external independence (of the Poder Judicial as a body) and the internal independence (of the judge):

"VIII.- The independence of the Poder Judicial is constitutionally guaranteed in articles 9 and 154. The American Convention on Human Rights, a norm of international rank of direct application in our country, also refers to the issue. The American Convention on Human Rights establishes the judge's independence as a human right, by providing in article 8.1 that: «1. Every person has the right to be heard, with the proper guarantees and within a reasonable time, by a competent, independent, and impartial judge or tribunal, previously established by law, in the substantiation of any criminal accusation formulated against them, or for the determination of their rights and obligations of a civil, labor, or any other character. 2.- ...». The independence of the Judicial Body is presented externally. The Judicial Body is independent vis-à-vis the other Powers of the State, not so the judge whose independence must be analyzed in a more complex manner. But when it is assured that a Poder Judicial is independent, the same must be predicated of its judges, for they are the ones who must make the function entrusted to the former a reality. The independence that truly must matter – without detracting from that of the Judicial Body – is that of the judge, related to the specific case, for it is this that functions as a citizen's guarantee, in the terms of the American Convention on Human Rights. The effective independence of the Poder Judicial helps so that the judges that comprise it can also be independent, but it may well occur that the Body as a whole has its independence normatively guaranteed, but that its members are not independent, for multiple reasons" (cited in rulings No. 2006-15252, 2008-9495, 2008-16529).

Regarding the relationship between independence of the judge and the principle of impartiality, in ruling No. 1998-2378 it was indicated: "The independence and impartiality of the judge constitute interrelated concepts and are undoubtedly constitutional principles in a political regime like ours. Independence determines that the judge is solely subject to the Constitution and the Law, and impartiality means that for the resolution of the case, the judge will not be led by any other interest other than the correct application of the law and the just solution of the case." Regarding judicial independence as a guarantee for judges and a fundamental right (a guarantee for the parties in the proceeding), ruling No. 1998-5795 stated: "From the provisions of article 154 of the Political Constitution, which says: 'The Poder Judicial is only subject to the Constitution and the law, and the resolutions it issues in matters of its competence impose no other responsibilities than those expressly indicated by legislative precepts,' derives the principle of independence of the Poder Judicial, which encompasses both the body or institution as a whole, and the Judge in the knowledge of the matters submitted to their judgment. In relation to this official, it must also be recognized that there is a double protection for their investiture, since the independence of the judge – as a guarantee for the parties involved in the sub judice matter – is both externally and internally, in the sense that they are protected from influences and incidences – both external and internal – that may have one impact or another on the decision of a specific case submitted to their knowledge, so that they rule with strict adherence to the provisions of the current legislation; in other terms, the judge is protected so that neither the parties intervening in the process, nor third parties, nor superior grade judges, nor 'influential' members of the Powers of the State, including the Judiciary, can influence their decision, and therefore, even less permissible would be the obligation – imposed by a superior in grade – to rule in a certain manner on a specific case, or to coerce the judge in that sense. The guarantee of independence of judges, more than a guarantee for these officials – which it effectively is –, constitutes a guarantee for private individuals (the parties to the proceeding), in the sense that their cases will be decided with strict adherence to the Constitution and the laws." From which it follows that, in the definition of Judicial Independence, the following two types are included:

• External judicial independence: refers to the existence of a set of guarantees that seek to prevent a Court from being controlled by other governmental bodies, such as the Executive and Legislative powers. It is the relationship of the Poder Judicial with other actors in the political system. In this sense, the justice administration system is autonomous to the extent that it depends on itself and not on other powers. External independence is the absence of external pressures or influences that make the institution vulnerable, as a result of threats to the availability of resources that allow it to carry out its work with autonomy, to the job stability and promotion possibilities of its officials, to their integrity and assets, and to its infrastructure capacities to meet citizen demands.

• Internal judicial independence: relates to the ability of judges to issue rulings without fear of retaliation.

The "independence of exercise" (the fact that a judge resolves a conflict free from improper interference) becomes "structural independence" (the set of formal guarantees and structural conditions that protect the judge and the Poder Judicial from any type of intervention or control). In ruling No. 2001-6632, the importance and constitutional rank of the principle of independence of the Poder Judicial was emphasized, also as a right of the citizens, by stating: "No one can today detract from the transcendental value that the independence of judges plays in the real functioning of the democratic rule of law. It is clearly accepted that more than a principle, and even beyond what could be pointed out as a privilege granted to the Judge, we are facing the right of citizens to have independent judges." Subsequently, in ruling No. 2015-15726, the principle of judicial independence is emphasized, also as a fundamental value of the democratic regime: "III.- REGARDING THE PRINCIPLE OF INDEPENDENCE OF THE JUDGE. Within democratic political regimes, the principle of independence of the judge, in particular, and of the Poder Judicial, in general, has a fundamental value because upon it rest the legitimacy of the judge and the impartiality of the judicial decision." One can also mention ruling No. 2000-5493, where it was indicated that the independence of the Poder Judicial translates, in economic matters and by the irremovability of its personnel, as well as, functionally, by the real possibility of making its decisions according to its own criteria and not as a result of pressures from certain groups, institutions, or persons:

"Regarding the principle of judicial independence, we must point out that constitutionally this principle derives from article 153 of the Political Constitution which states: 'It corresponds to the Poder Judicial, in addition to the functions that this Constitution assigns to it, to hear civil, criminal, commercial, labor, and administrative-litigation cases, as well as others established by law, whatever their nature and the status of the persons involved; to definitively resolve them and to execute the resolutions it pronounces, with the help of public force if necessary.' Article 154 of the Constitution, in this same sense, indicates: 'The Poder Judicial is only subject to the Constitution and the law, and the resolutions it issues in matters of its competence impose no other responsibilities than those expressly indicated by legislative precepts.' The legal framework constitutionally established related to judicial independence is complemented by articles 1 through 8 of the Organic Law of the Poder Judicial, which develop constitutional premises. We must also refer to articles 162 through 173 of the Organic Law of the Poder Judicial which mention the jurisdiction and competence of judges, and it is especially important to cite the following: 'Article 162. The power to administer justice is acquired with the position to which it is annexed and is lost or suspended for all matters when, for any reason, the judge ceases to be one or is temporarily suspended from their duties.' 'Article 165. Every judge's competence is limited to the territory and the class of matters assigned to them to exercise it; the proceedings that the processes they hear require be carried out in the territory of another judge may only be carried out through the latter, unless legal authorization to the contrary exists. The judge may only hear matters not subject to their competence when it is legally extended or delegated to them. Taking into consideration the above legal framework, this Chamber considers that the principle of independence of the judge could be defined as that power given by the Constitution and the law through which the judge, fulfilling their scope of competence and jurisdiction, exercises the power delegated to them by the State to resolve a conflict raised by private individuals or by the Administration itself. This principle is directly linked to the principles of unity and monopoly of jurisdiction, as well as impartiality and competence.

Judicial independence manifests itself on various planes. On the external plane, it translates into the autonomy of the Poder Judicial in economic matters and by the irremovability of its personnel, as well as, functionally, by the real possibility of making its decisions according to its own criteria and not as a result of pressures from certain groups, institutions, or persons. Now, on the internal plane, independence consists of the autonomy that lower judicial instances must enjoy in their decisions with respect to those of higher rank. Furthermore, in a Democratic and Rule of Law State like ours, the other side of independence is the responsibility of judicial personnel, as well as control over their activities. Regarding the content and nature of internal judicial independence, the judicial apparatus supposes that lower tribunals enjoy autonomy in their jurisdictional decisions with respect to those of higher rank. However, legally, the existence of the remedies traditionally provided for by law (appeal, review, cassation, and others) does not constitute a violation of this principle, unless they are used in an irregular manner." All the above is contemplated in the following sources, some of which are not current norms in Costa Rica, but are documents that reflect a clear doctrine on the subject:

• Political Constitution. Art. 9 (independent), 154 ("The Poder Judicial is only subject to the Constitution and the law..."), and 177 (financial autonomy). • Art. 8.1 of the American Convention on Human Rights ("by a competent, independent, and impartial judge or tribunal"). • "Basic Principles on the Independence of the Judiciary," adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan from August 26 to September 6, 1985, and endorsed by the General Assembly in its resolutions 40/32 of November 29, 1985, and 40/146 of December 13, 1985, in principle 11. • "European Charter on the Statute for Judges," adopted in Strasbourg, between July 8 and 10, 1998, paragraphs 6.1 and 6.4. • "Statute of the Ibero-American Judge," approved at the VI Ibero-American Summit of Presidents of Supreme Courts and Tribunals of Justice, held in Santa Cruz de Tenerife, Canary Islands, Spain, on May 23, 24, and 25, 2001, in article 32 ("Art. 32. Remuneration. Judges must receive sufficient, lifetime tenure (irreductible), and in accordance with the importance of the function they perform and the demands and responsibilities it entails.") • Report No. 1 of November 23, 2001, rendered by the Consultative Council of European Judges (CCJE), when examining the issue of the independence and irremovability of judges, regarding the issue of judges' salaries. • The Statute of Justice and Rights of the Users of the Judicial System, approved by the Corte Plena, in whose articles 19, 20, 21, 22, 23, and 24, reference is made to the independence of the Poder Judicial and of the judges. Article 49 of the cited Statute also enshrines, like the examined international instruments, the principle of the lifetime tenure (irreductibilidad) of the judge's salary.

On the other hand, in addition to what has been said on the subject of public employment, it must be indicated that the basic principles derived from articles 191 and 192 of the Political Constitution are not alien to the Poder Judicial. Thus, for example, the Chamber has expressly referred to the principles derived from such numerals when resolving on the appointment system in the Poder Judicial (ruling No. 2001-05694). Which must be complemented, necessarily, with the provisions of article 156 of the Political Constitution, which, regarding the Poder Judicial, establishes:

"ARTICLE 156.- The Corte Suprema de Justicia is the superior court of the Poder Judicial, and the tribunals, officials, and employees in the judicial branch depend on it, without prejudice to what this Constitution provides regarding the civil service." Now then - and what is of interest to this consultation - it must be indicated that there are several precedents from the Chamber in which, expressly, it is understood as fully justified that in the specific case of the Poder Judicial it has a special, separate, and differentiated regulation - although, subject to the fundamental constitutional principles provided for in articles 191 and 192. One can cite, in the first place, ruling No. 550-1991, which indicates:

"(…) in the case of the powers, their own constitutional independence, guaranteed in general by article 9 of the Constitution and, for those of the Poder Judicial and the Tribunal Supremo de Elecciones by articles 99 et seq., 152 et seq., and 177 thereof, as well as their own organic norms, impose on their hierarchs the attribution and responsibility of setting the compensation, representation expenses, and other facilities inherent to the positions, of their own members and subordinates, within, naturally, their budgetary availabilities, independently, of course, of whether their amounts may coincide or not with those of the deputies." Later, in ruling No. 01472-1994, the Chamber indicated that, in effect, articles 191 and 192 of the Political Constitution underpin the existence of "an employment regime governed by Public Law, within the public sector," with "its own general principles," whereby "the labor relations existing between the State and its servants must be conceived as a whole, regulated by general principles, provisions, and policies, without distinction, except for the exceptions expressly contemplated by law, regarding the functional centers on which those servants depend." Now, in that same ruling, it was added:

"(…) this Chamber has established that the indiscriminate equalization of compensations among members of the public powers is not possible, since imposing equal treatment on situations or officials who are objectively in circumstances of inequality, would violate, in general, the principle of equality and specifically, in matters of salaries and working conditions, article 57 of the Constitution, given that the requirements, limitations, prohibitions, or conditions for exercising the position of officials or employees of the executive branch are not the same as those of the members of the other powers or constitutional bodies. In effect, the principle of equality before the law is not absolute, for it does not grant a right to be equated with any individual, but rather to demand that the law not make differences between two or more persons who are in the same legal situation or in identical conditions; that is, equal treatment cannot be claimed when the conditions or circumstances are unequal." On the other hand, regarding the exception of the Poder Judicial to the single employment regime and to the salary policy as government policy, in ruling No. 1994-3309, the Chamber expressed:

"VII.- Having defined salary policy as part of government policy, it is necessary to reiterate that when the constituent decentralized the Poder Ejecutivo, it sought to prevent arbitrary and anti-technical interference in the management of each one of those institutions, as defined by law. But the constituent legislator did not opt to create a salary or labor regime segregated from the central Poder Ejecutivo, for there is no doubt that Title XV, Single Chapter of the Political Constitution has as its immediate antecedent the previous practice of massively dismissing state officials and employees on the occasion of each change of government. The antithesis of this practice, therefore, is a system of stable, professional, permanent public service, governed by an integrated and coherent regulatory body, establishing a single employment regime for public servants that includes the entirety of the state institutions, with the exception made in article 156 of the Magna Carta regarding the Poder Judicial." Meanwhile, in ruling No. 1996-03575, the Chamber pointed out that the competent state body in matters of public employment is each power of the Republic, given that it is these - Ejecutivo, Legislativo, Judicial, and Tribunal Supremo de Elecciones - that are most capable of determining their needs and knowing their particular conditions:

"(…) From the cited jurisprudence, it emerges, in addition to the existence of the Public Employment Regime, that the ordinary legislator, when practically developing articles 191 and 192 of the Political Constitution, did not do so through the enactment of a single law but did so through the approval of several laws related to the subject in question, and an example of this is the Civil Service Statute, which is a partial legislation applicable only to the servants of the Poder Ejecutivo. In this order of ideas and in accordance with article 9 of the Constitution, in relation to the principle of separation of powers, interpreted by this Chamber in ruling No. 6829-93 of eight thirty-three hours of December twenty-fourth, nineteen ninety-three, as a separation of functions by providing:

"II.- THE THEORY OF THE SEPARATION OF POWERS.

The theory of the separation of Powers is traditionally interpreted as the need for each State Organ to exercise its function independently of the others (Article 9 of the Political Constitution). Although there can be no interference or invasion of the assigned function, collaborations between Powers must necessarily occur. Currently, constitutional doctrine and practice affirm that there is no absolute separation; furthermore, nothing prevents the same function—non-primary—from being exercised by two Powers or by all, which is why one cannot speak of a rigid distribution of competencies based on function and subject matter. The State is a unity of action and power, but that unity would not exist if each Power were an independent, isolated body, with broad decision-making freedom, so in reality one cannot speak of a division of Powers in the strict sense; the Power of the State is unique, although state functions are several. It is appropriate to speak of a separation of functions, that is, of the distribution of them among the different state organs. This separation of functions stems from the technical problem of the division of labor: the State must fulfill certain functions and these must be carried out by the most competent state organ..." Furthermore, and for greater amplification, this Chamber in judgment number 990-92 of sixteen hours thirty minutes of April fourteenth, nineteen ninety-two, ordered: "Second: The positivization of the 'democratic principle' in Article 1 of the Constitution constitutes one of the pillars, the core so to speak, on which our republican system rests, and in this character as a supreme value of the Constitutional Rule of Law, it must have direct efficacy over the rest of the sources of the infra-constitutional legal order and obviously over the Regulations, from which it follows that the power of parliament to dictate the norms of its own internal governance (interna corporis), is not only provided for by the Political Constitution in its Article 121 subsection 22, but is consubstantial to the democratic system and specific to the Legislative Assembly as a constitutional power, pursuant to Title IX of the Fundamental Charter..." Thus, applying the preceding principle to the subject matter under study, namely the Public Employment Regime, it is possible to conclude that the competent state organ in this matter is each power of the Republic, given that it is these—Executive, Legislative, Judicial, and Supreme Electoral Tribunal—that are best equipped to determine their needs and understand their particular conditions." The foregoing does not prevent the Judicial Branch from being included within a Public Employment Law, as explained supra, in the general considerando of this judgment.

Then, in vote no. 1999-919, this Court heard the consultation on constitutionality formulated regarding the then bill of the Law of Financial Administration of the Republic and Public Budgets, which, even, contained—and contains—a provision analogous to the one introduced in the bill now under consultation, which reads:

"Article 1.- Scope of application This law regulates the economic-financial regime of the organs and entities administering or holding public funds. It shall be applicable to:

(…)

• b)The Legislative and Judicial Branches, the Supreme Electoral Tribunal, their dependencies and auxiliary organs, without prejudice to the principle of separation of Powers established in the Political Constitution.

(…)" On that occasion, this Chamber considered that, in effect, the principle of separation of powers was not infringed, given that—as derived from the rest of the articles of the bill—the guidelines and directives issued by the Executive Branch necessarily required the approval of the heads of the organs mentioned in the cited subsection b, who are "possessors of constitutional functional independence vis-à-vis the Executive Branch." Specifically, it was noted:

"Regarding the separation of powers, this Chamber considers that, from a careful reading of the cited numerals, it is evident that the consulted bill intends to grant the Budgetary Authority competencies to prepare, in a preliminary phase—since they later require approval by the Executive Branch—the guidelines and directives that will determine the functioning of the Administration in budgetary matters. The Chamber will refer to the efficacy of such provisions later in this same considerando. With respect strictly to the organs covered by subsection b) of Article 1 of the bill, all of which are characterized as possessors of constitutional functional independence vis-à-vis the Executive Branch, the very text of Articles 21 subsection b) and 23 in fine provides that the approval of such directives is the responsibility of the heads of such organs, with the Budgetary Authority having only the function of proposing such guidelines. That is, the text itself provides a device that respects the functional independence granted to the organs of subsection b) of Article 1° in budgetary matters, since the fact that the heads of the mentioned organs do not approve said guidelines carries no legal consequence. Due to the foregoing, it can be concluded that the cited articles do not represent any form of affront to the separation of powers, enshrined in Article 9 of the Constitution." LBH10/22 ... See more Content of Interest:

Content type: Majority Vote Branch of Law: 3. MATTERS OF CONSTITUTIONALITY CONTROL Topic: LABOR Subtopics:

NOT APPLICABLE.

017098-21. LABOR. OPTIONAL LEGISLATIVE CONSULTATION ON CONSTITUTIONALITY, REFERRING TO THE BILL CALLED "FRAMEWORK LAW ON PUBLIC EMPLOYMENT". LEGISLATIVE FILE No. 21,336.

Subsequently, when this Chamber ruled, specifically on the disciplinary regime in the case of the Judicial Branch and on its special regulations, in vote no. 1995-01265, it was indicated:

"(…) the claimant must bear in mind that the Judicial Branch, despite being a Power of the State and governed by Administrative Law, has a special regime due to the function it performs; and in matters of public employment relations, although the general principles are set forth in Administrative Law and Labor Law—as parameters—, the specifications are regulated in accordance with the regulations that refer specifically to the Judicial Branch, thus, it is governed in accordance with the provisions of the Organic Law of the Judicial Branch, the Judicial Service Statute, the Regulation on background competitions to appoint officials who administer justice, the Organic Law of the Judicial Investigation Agency, the Regulation on Evaluation for Employees of the Judicial Branch, etc. As observed, this is a special regulation, which cannot be tacitly repealed by a later general rule, as the claimant asserts." (reiterated in vote no. 2017-003450).

There are multiple votes of the Chamber highlighting the particular relevance that the proper regulation and application of the disciplinary regime holds for safeguarding judicial independence. The Chamber has highlighted the intimate relationship between judicial independence and the system of appointment, removal, and disciplinary regime of judges. Thus, for example, in vote no. 2009-4849, an extensive development on this subject was made:

"(…) It is fundamental for the proper functioning of the democratic Rule of Law—understood under its postulate of the primacy of law—that the jurisdictional function can be exercised without undue pressure, within the bosom of a truly independent Judicial Branch, as this Chamber has repeatedly established:

“A) PRINCIPLE OF INDEPENDENCE.- The Political Constitution, in its Article 9, establishes that the Government of the Republic is exercised by three distinct and independent Powers among themselves: Legislative, Executive, and Judicial. Moreover, the third paragraph of this article indicates the existence of the Supreme Electoral Tribunal with the rank and independence of the Powers of the State. The note of independence of the Judicial Branch in relation to the other Powers of the State must be emphasized. This independence must be present in the judges, who have the mission of administering justice.

Independence is the absence of subordination to another, the non-recognition of a greater power or authority. The independence of the judge is a legal concept, relative to the absence of legal subordination. The guarantee of tenure (inamovilidad) and the regime of incompatibilities have the purpose of ensuring the total independence of the members of the Judicial Branch. (…)

Thus, independence is a guarantee of the jurisdictional function itself. Independence is esteemed in relation to the judge as such, as he is the one who holds jurisdictional power. The aim is to prevent ties and relationships that could lead to a factual reduction of the judge's freedom.” (judgment #2883-96 of 5:00 p.m. on June 13, 1996) Of course, the principle postulated in the abstract needs to be concretized in the person of each and every judge. In other words, the merely organic principle defended for the Judicial Branch is, at the same time, the independence guaranteed to each judge in their particular case, translated, additionally and above all, into the fundamental right of the parties to any proceeding to have an impartial arbitrator who pronounces the law of the case submitted to their knowledge:

“VIII.- The independence of the Judicial Branch is constitutionally guaranteed in Articles 9 and 154. Also the American Convention on Human Rights, a regulation of international rank with direct application in our country, refers to the matter. The American Convention on Human Rights establishes the independence of the judge as a human right, by providing in Article 8.1 that:

«1. Every person has the right to be heard, with due guarantees and within a reasonable time, by a competent, independent, and impartial judge or tribunal, previously established by law, in the substantiation of any criminal accusation formulated against them, or for the determination of their rights and obligations of a civil, labor, or any other nature.

2.- ...» The independence of the Judicial Organ is posited externally. The Judicial Organ is independent vis-à-vis the other Powers of the State, unlike the judge, whose independence must be analyzed in a more complex way. But when it is affirmed that a Judicial Branch is independent, the same must be predicated of its judges, for they are the ones who must make the function entrusted to the former a reality. The independence that should truly matter—without diminishing the importance of that of the Judicial Organ—is that of the judge, related to the specific case, because it is this that functions as a citizen guarantee, under the terms of the American Convention on Human Rights. The effective independence of the Judicial Branch contributes to the judges that comprise it also being independent, but it may well happen that the Organ as a whole has its independence normatively guaranteed, yet its members are not independent, for a multitude of reasons.” (judgment #5790-99 of 4:21 p.m. on August 11, 1999) On this subject, pronouncement #5795-98 of 4:12 p.m. on August 11, 1998, can also be cited:

“From that established in Article 154 of the Political Constitution, which reads:

'The Judicial Branch is subject only to the Constitution and the law, and the resolutions it issues in matters of its competence impose no other responsibilities than those expressly indicated by legislative precepts' derives the principle of the independence of the Judicial Branch, which encompasses both the organ or institution as a whole and the Judge in the knowledge of the matters submitted to his judgment. In relation to this official, it must also be recognized that there exists double protection for his investiture, since the independence of the judge—as a guarantee for the parties involved in the sub judice matter—is both external and internal, in the sense that he is protected from influences and incidences—both external and internal—that could sway his decision in one direction or another in a specific case submitted to his knowledge, so that he rules in strict adherence to that established in the current legislation; in other words, the judge is protected so that neither the parties intervening in the process, third parties, higher-grade judges, 'influential' members of the Powers of the State, including the Judicial Branch itself, can influence his decision, therefore, much less would the obligation—imposed by a higher-grade superior—to rule in a specific manner on a particular case, or to coerce the judge in that sense, be permissible. The guarantee of judicial independence, more than a guarantee for these officials—which indeed it is—, constitutes a guarantee for the individuals (parties to the proceeding), in the sense that their cases will be decided in strict adherence to the Constitution and the laws.” And in decision #2001-6632 of 4:21 p.m. on July 10, 2001, the importance and constitutional rank of the principle of independence of the Judicial Branch was emphasized:

“No one today can detract from the transcendental value that the independence of judges plays in the real functioning of the democratic rule of law. It is clearly accepted that more than a principle, and even beyond what might be pointed out as a privilege granted to the Judge, we are before the right of citizens to have independent judges. But, simultaneously with this consideration of fundamental value, it can be affirmed that we are before a task, if not unfinished, that at least demands an attitude of permanent vigilance, for the true endeavor to achieve independence in this field is historically recent. Moreover, being frank, it could be said that this right of persons (citizen, justiciable, user, or however styled) is not yet well received—incorporated and applied—in legal systems. As some authors point out, the formula whereby the judge 'only' must be subject to the law (similar to how our Article 154 of the Constitution collects it) was conceived entirely aimed at excluding the intervention or interference of the sovereign (monarch) in jurisdictional decisions. Certainly, in the interest of placing the judge well beyond the reach of the sovereign, he was abruptly assigned to the conception of a mechanical or quasi-mechanical application of the law as an expression of popular sovereignty, a matter which, fortunately, is today totally superseded. Therefore, in a correct understanding of the institutional benefits of having—yesterday, today, and always—independent judges, we must retain the concept of 'sovereign' to apply it to anyone who, from outside or beyond the procedurally provided means for reviewing judges' resolutions, wishes to unduly impose criteria or forms of action upon them. In the modern design of the Costa Rican legal order, sovereign is not even the law, since the judge is not bound by the law, whatever it may be, but by the law that is, in turn, legitimately constitutional, but ultimately, there will even be hypotheses in which he will be bound, above a Constitutional provision, by a norm or principle contained in some international Human Rights instrument in force in the country. This is enshrined at the highest level of our legal order, and in this sense we can refer to Article 48 of the Political Constitution. As mentioned, Article 154 of the Constitution collects the principle of judicial independence, but additionally, despite not having all the legal force one might wish, we can finally cite the Code of Judicial Ethics, definitively approved by our Supreme Court of Justice on February twenty-eighth, year two thousand, whose Article 2, where pertinent, provides:

'Article 2°. A PRIORI PRINCIPLES OF THE NORMS OF THIS CODE.

The following are understood as a priori principles, necessary for the proper development of the administration of justice:

… 2. The independence of the Judge, who is subject only to the Constitution and the law, that is, to the legal order, its superior values and principles…' In accordance with the foregoing, it must be affirmed that the judge has no sovereigns over him in jurisdictional performance, and for that very reason, he is protected through prohibitions or incompatibilities against performing other types of activities, given that, also from that angle of analysis, independence becomes a guarantee of impartiality, a note that must accompany the exercise of jurisdiction on a daily basis.” IV.- In harmony with the foregoing jurisprudential line, the Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan from August 26 to September 6, 1985, and confirmed by the General Assembly in its resolutions 40/32 of November 29, 1985, and 40/146 of December 13, 1985, provide:

“Independence of the judiciary “1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. (…)” Text confirming that it is with respect to judges considered in their individual sphere that the difference between external and internal independence is especially pertinent, understanding the former as independence from other state organs or entities, as well as from pressure groups in general, while the latter warns about the coercion that may be exercised within the judicial organization itself, whether by jurisdictional authorities of later instances or by administrative officials in a position of power over the judges.

V.- Relationship of judicial independence with the appointment, removal, and disciplinary regime of judges. It is no coincidence that the different instruments and declarations dealing with the subject of judicial independence address administrative aspects such as the appointment of judges, their dismissal, and the application of disciplinary sanctions. In this practical and individualized dimension, the protection of their jurisdiction in the face of all kinds of pressures is ultimately at stake. A judge who can be appointed through opaque mechanisms, or whose dismissal or sanction can be imposed without sufficient justification by any type of authority, is a judge in a frankly vulnerable situation. The United Nations Basic Principles on the Independence of the Judiciary, cited above, stipulate:

“Disciplinary measures, suspension and removal from office.

“17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.

18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.

19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.

20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.” In the same way, the Statute of the Ibero-American Judge, adopted by the International Union of Magistrates, deals with the exercise of the sanctioning power over judges:

“6.- DISCIPLINARY REGIME.

The Law shall define, as concretely as possible, the acts that constitute disciplinary infractions for Judges.

The entity with disciplinary competence shall be, exclusively, the Judicial Branch itself.

The disciplinary procedure, which may be initiated by any person, organ of sovereignty, or of the State, shall allow the use of all means of defense and specifically be adversarial.

The most serious disciplinary sanctions may only be adopted by a qualified majority.” The same trend is followed by the Universal Statute of the Judge, approved at the meeting of the Central Council of the International Union of Magistrates in Taipei, Taiwan, on November 17, 1999:

“Art. 11: Administration and principles in disciplinary matters.

The administrative management and disciplinary action concerning members of the judiciary must be exercised under conditions that preserve their independence, and is based on the implementation of objective and suitable criteria.

When this is not sufficiently ensured by other means resulting from a proven tradition, judicial administration and disciplinary action must fall within the competence of an independent body composed of a substantial and representative portion of judges.

Disciplinary sanctions against judges may only be imposed for reasons previously provided for by law, and observing predetermined procedural rules.” Additionally, for purely illustrative purposes, it is considered relevant to bring up that the European Commission for Democracy through Law, known as the Venice Commission (advisory body of the Council of Europe on constitutional matters), when rendering an opinion on the Law on the liability and disciplinary procedures of ordinary judges in Georgia, in March 2007, emphasized the necessary balance between the disciplinary liability of judges and the guarantees of their independence, without compromising the latter by uselessly limiting it. On that occasion, provision 5.1 of the European Charter on the statute for judges was recalled, which states:

“The dereliction by a judge of one of the duties expressly defined by the statute may only give rise to a sanction upon a decision, following the proposal, recommendation, or agreement of a court or body composed of at least one half of judges; within the framework of an adversarial procedure where the judge under investigation may be assisted by a defender. The range of sanctions which may be imposed must be specified by the statute, and their imposition must be subject to the principle of proportionality. (…)” Thus, the disciplinary regime could become a threatening tool for judicial independence and, indirectly, for the Rule of Law. A judge cannot be removed from office during the term of their mandate, nor sanctioned, except for weighty reasons (ethical violation, ineptitude, for example), following the guarantees of due process. Appropriate procedures for appointment, promotion, and disciplinary matters—which are not only stated on paper but also complied with in practice—are essential to protect what has been called the security of tenure of judges. In the specific case of the sanctioning power, a well-structured disciplinary procedure, due process protections, and proportionality between sanction and infraction reduce vulnerability to abuses that harm judicial independence.” For its part, in vote no. 2017-009551, the Chamber analyzed the constitutionality of subsection g) of Article 2 of the Worker Protection Law, insofar as it provided: "Supervised entities. All authorized entities, the CCSS with respect to the Disability, Old Age, and Death Regime, and all entities administering pension regimes created by laws or collective agreements, before the effective date of this law." It was questioned, in particular, that SUPEN could oversee the Judicial Branch's Pensions and Retirement Fund. In that precedent, the content of the principle of separation of functions was analyzed, in relation to the principles of unity, coordination, and unity of the State. Finally, it was concluded that the regulation was constitutional, since for it to be unconstitutional, it must:

"actually interfere with the constitutional powers to organize, plan, or program, for example, the administrative function of personnel management, of imparting justice, or related thereto, which will be beyond the reach of the legislator, but this is not the case. Moreover, the problem does not seem to lie in the interference that an excess of regulation by the legislator would produce over the forms and means that the Superior Council of the Judicial Branch must use to achieve the ends set for the fund; if that were the case, it could be judicially challenged on that ground." In that same vote, the importance of the Judicial Branch in the Rule of Law and the exercise of its administrative function with independence was emphasized:

“The Judicial Branch is not today an 'empty' or 'devalued' power (as it was considered at the beginnings of the modern State); it is precisely one of the clear objectives of dictators to lower the profile of its independence, undermine economic independence, or fill courts with 'ideologically oriented' judges (court-packing which fortunately did not occur in the U.S.A. despite a broad partisan majority in Congress in tune with its president F. D. Roosevelt, but with somber criticisms within his own ranks); if importance is not given to the Judicial Branch in the social and democratic Rule of Law for its correct functioning, its weakening leads to forms of anti-democratic government, proof of this is that one of the functions that authoritarian or totalitarian governments first control is the judicial one, hence the importance of every democratic system having a robust Judicial Branch.” (…) “both legislative and judicial functions require an administrative support structure for the achievement of their essential or primary function, such as the administrative function that helps channel all their activity; which, logically, extends to the human resource or personnel of the Powers of the Republic, meanwhile, behind the fundamental function is the administrative function of personnel, public agents, and servants, etc.” Thus, in vote no. 2018-019511, in which the legislative consultation regarding the bill for the "Law to Strengthen Public Finances" (legislative file no. 20.580) was heard, this Chamber concluded—after carrying out interpretive work regarding the content of the bill—that, specifically, what was provided in numerals 46, 47, and 49, concerning the "governing authority of Mideplán over public employment matters" and "the mandatory nature of the technical and methodological guidelines of the General Directorate of (sic) Civil Service," did not apply to the Judicial Branch. An interpretation made, taking into consideration the principle of independence of the Judicial Branch. In particular, it was indicated:

"The reading of the constitutional framework begins with the recognition of the independence of the Judicial Branch, one of the cardinal foundations of our Rule of Law:

“ARTICLE 9º-The Government of the Republic is popular, representative, participatory, alternative, and responsible. It is exercised by the people and three distinct and independent Powers among themselves: the Legislative, the Executive, and the Judicial.

None of the Powers may delegate the exercise of functions that are proper to them. (…)” “ARTICLE 154.- The Judicial Branch is subject only to the Constitution and the law, and the resolutions it issues in matters of its competence impose no other responsibilities than those expressly indicated by legislative precepts.” “ARTICLE 156.- The Supreme Court of Justice is the superior court of the Judicial Branch, and under it depend the courts, officials, and employees in the judicial branch, without prejudice to what this Constitution provides regarding civil service.” These constitutional provisions have given rise to the development of a profuse regulatory framework, specifically designed to regulate the Judicial Branch.

Among the norms of this framework are counted the Ley Orgánica del Poder Judicial, the Ley Orgánica del Ministerio Público, the Ley Orgánica del Organismo de Investigación Judicial, the Ley de Salarios del Poder Judicial, the Estatuto de Servicio Judicial (including its reform by the Ley de Carrera Judicial), etc.

Clearly, the norms set forth above are intended to regulate the Judicial Branch concretely, ensuring that its independence from the other Branches of the Republic is guaranteed.

The fact that the Judicial Branch enjoys particular regulation brings to the forefront the second point of analysis in the systematic interpretation (interpretación sistemática). In this sense, it must be studied whether there are particular norms for the Judicial Branch and verify their relationship with the questioned articles.

Independently of the fact that ordinal 47 of the bill speaks of "exceptions (salvedades)", it is observed that performance evaluation (evaluación del desempeño) and competence in labor decision-making, whether general or specific, are already regulated by the aforementioned normative framework of the Judicial Branch, preventing an external body from assuming "governing authority (rectoría)" or imposing criteria on that Branch. Moreover, said normative framework is designed to guarantee the efficiency of the judicial function and to protect judicial employees (servidores judiciales) from external interference, as indicated by Article 1 of the Estatuto de Servicio Judicial:

"Article 1.- This Estatuto and its regulations shall regulate the relations between the Judicial Branch and its employees, in order to guarantee the efficiency of the judicial function and to protect said employees." Note that the norm determines that employment relations between the Judicial Branch and its employees are regulated by the Estatuto and its regulations. The systematic interpretation required by that numeral prevents an indirect regulation of the judicial service through directives or guidelines coming from other bodies. This is verified because the issuance of the regulation to which the norm refers is, in turn, the exclusive competence of the Court, as indicated by the same Estatuto:

"Article 5.- Before issuing an internal labor regulation, whether of a general nature for all judicial employees or applicable only to a group of them, the Court shall make the respective draft known to said employees, by the most appropriate means, so that they may make the relevant observations in writing, within a term of fifteen days.

The Court shall take these observations into account to resolve as appropriate, and the regulation it issues shall be binding without further proceeding, eight days after its publication in the \"Boletín Judicial\"." A further guarantee of the Judicial Branch's independence in the matter of employment is that the Chief of the Personnel Department is linked to the President of the Court, excluding interference from external bodies:

"Article 6.- The Personnel Department of the Judicial Branch shall function under the direction of a Chief who shall report directly to the President of the Court and shall be appointed by the Corte Plena." Then, the detailed regulations of the Estatuto de Servicio Judicial distinguish the different competences in matters of performance evaluation, which corroborates the existence of special regulations for that Branch. Thus, for example, numerals 8 and 10 of the Estatuto de Servicio Judicial state:

"Article 8.- The Chief of the Personnel Department is responsible for:

• c)Establishing the technical procedures and instruments necessary for greater staff efficiency, including the periodic rating of services (calificación periódica de servicios), the personnel file and service record (prontuario) of each employee, and the forms that are of technical utility; (…)

Article 10.- The periodic rating of services shall be carried out annually by the Chief of each judicial office with respect to the subordinates who work there, using special forms that the Chief of the Personnel Department shall send to the different offices in the months that he determines. (…)" That is, the periodic ratings of judicial staff, such as the annual evaluation, are carried out through the procedures established by the Chief of the Personnel Department of the Judicial Branch. These are special norms, pertaining exclusively to the Judicial Branch, which would prevail over the general norms of the bill, in the event they were to enter into force.

The Chamber (Sala) emphasizes that the bill of law does not repeal or modify in any way the provisions previously transcribed, nor any other provision of the Estatuto de Servicio Judicial. This Estatuto governs the matter of employment in the Judicial Branch and represents a guarantee for judicial employees, in line with the constitutional postulates that safeguard judicial independence; its modification or repeal could not be tacit nor stem from a mere inference, as this would denote ignorance of hermeneutic rules.

On the other hand, faced with the questioning that Article 49 of the bill orders the Judicial Branch to comply obligatorily with the guidelines of the Dirección General de Servicio Civil, the truth is that the relationship between said Directorate and the Judicial Branch is addressed by a specific norm, as is evident from the cited ordinal 8:

"(…) The Chief of the Personnel Department may make the necessary inquiries to the Dirección General de Servicio Civil and request the corresponding advice from this Directorate, for the better performance of his functions. (…)" That is, the legal framework of the Judicial Branch provides for the power of the Chief of its Personnel Department (today called Gestión Humana) to consult the Dirección General de Servicio Civil and request its advice for the performance of its functions. Said functions include, as seen, the obligation to determine the technical procedures and instruments for the periodic rating of staff (numeral 8 cited above). Such a provision of special law renders the questioned norms of bill No. 20.580 inapplicable to the Judicial Branch.

Again, it is recalled that this is a special norm that takes precedence over the general provision. Furthermore, it is highlighted that the norms of the Estatuto de Servicio Judicial would remain unscathed after the reform proposed through bill No. 20.580, as it neither modifies nor repeals it.

In conclusion, given that Chapter VI of the intended modification to the Ley de Salarios de la Administración Pública contemplates an exception for the Judicial Branch, coupled with the fact that the latter has special legislation of legal rank related to the performance evaluation of its officials, it is not observed that the bill of law consulted actually affects the organization or functioning of the Judicial Branch." In that same vote (voto), it was indicated that the special norms regulating the Judicial Branch ensure that its independence from the other branches is guaranteed, and the systematic constitutional interpretation prevents an indirect regulation of the judicial service through directives or guidelines coming from other bodies:

"The reading of the constitutional framework begins with the recognition of the independence of the Judicial Branch, one of the cardinal foundations of our Rule of Law: "ARTICLE 9.- The Government of the Republic is popular, representative, participatory, alternative, and accountable. It is exercised by the people and three distinct and independent Branches among themselves: The Legislative, the Executive, and the Judicial. None of the Branches may delegate the exercise of functions that are proper to it. (…)" "ARTICLE 154.- The Judicial Branch is subject only to the Constitution and the law, and the resolutions it issues in matters of its competence do not impose on it responsibilities other than those expressly indicated by legislative precepts." "ARTICLE 156.- The Supreme Court of Justice (Corte Suprema de Justicia) is the superior court of the Judicial Branch, and the courts, officials, and employees in the judicial branch depend on it, without prejudice to what this Constitution provides regarding civil service." These constitutional provisions have given rise to the development of a profuse normative framework, specifically designed to regulate the Judicial Branch. Among the norms of this framework are counted the Ley Orgánica del Poder Judicial, the Ley Orgánica del Ministerio Público, the Ley Orgánica del Organismo de Investigación Judicial, the Ley de Salarios del Poder Judicial, the Estatuto de Servicio Judicial (including its reform by the Ley de Carrera Judicial), etc. Clearly, the norms set forth above are intended to regulate the Judicial Branch concretely, ensuring that its independence from the other Branches of the Republic is guaranteed." (…) "Moreover, said normative framework is designed to guarantee the efficiency of the judicial function and to protect judicial employees from external interference, as indicated by Article 1 of the Estatuto de Servicio Judicial: "Article 1.- This Estatuto and its regulations shall regulate the relations between the Judicial Branch and its employees, in order to guarantee the efficiency of the judicial function and to protect said employees." Note that the norm determines that employment relations between the Judicial Branch and its employees are regulated by the Estatuto and its regulations. The systematic interpretation required by that numeral prevents an indirect regulation of the judicial service through directives or guidelines coming from other bodies. This is verified because the issuance of the regulation to which the norm refers is, in turn, the exclusive competence of the Court, as indicated by the same Estatuto: "Article 5.- Before issuing an internal labor regulation, whether of a general nature for all judicial employees or applicable only to a group of them, the Court shall make the respective draft known to said employees, by the most appropriate means, so that they may make the relevant observations in writing, within a term of fifteen days. The Court shall take these observations into account to resolve as appropriate, and the regulation it issues shall be binding without further proceeding, eight days after its publication in the \"Boletín Judicial\"." A further guarantee of the Judicial Branch's independence in the matter of employment is that the Chief of the Personnel Department is linked to the President of the Court, excluding interference from external bodies: "Article 6.- The Personnel Department of the Judicial Branch shall function under the direction of a Chief who shall report directly to the President of the Court and shall be appointed by the Corte Plena." (The underlining does not correspond to the original).

Regarding the special nature of the Estatuto de Servicio Judicial, its salary scale (escala salarial), and its relationship with judicial independence in this matter, the following was indicated:

"The Estatuto governs the matter of employment in the Judicial Branch and represents a guarantee for judicial employees, in line with the constitutional postulates that safeguard judicial independence; its modification or repeal could not be tacit nor stem from a mere inference, as this would denote ignorance of hermeneutic rules." (…) "The Chamber does not omit to underline that the norms of the Ley Orgánica del Poder Judicial, Ley de Salarios del Poder Judicial, and the Estatuto de Servicio Judicial are not affected by the proposed reform. Said norms enable the autonomy of the Judicial Branch regarding changing its salary scale or varying base salaries." Specifically, the matter of salaries was analyzed, stating:

"Regarding the matter of salaries.

Pertaining to this point, the aforementioned agreement states:

"2.) In accordance with the prior report, it is determined that the bill does affect the organization and functioning of the Judicial Branch, and that there is opposition to it, provided that what refers to the following is not eliminated:

(…)

d.- The restrictions established in the bill of law on the matter of salaries and their respective components for the male and female officials of the Judicial Branch." After analyzing the articles of bill No. 20.580, concerning the modifications to the Ley de Salarios de la Administración Pública, the Chamber recalls that the impact on the salary of judicial officials can affect judicial independence. As expressed briefly in the cited voto No. 2018-5758 of 3:40 p.m. on April 12, 2018:

"(…) What is part of judicial independence is that judges have dignified economic sufficiency, both active and inactive, (…)" However, it must be highlighted that the questioned legislation is not particular to judicial officials but broadly covers the Public Administration. The importance of this point lies in the fact that the Chamber has upheld a solid criterion regarding the inadmissibility of mandatory institutional consultations (as provided for in numerals 167 and 190 of the Political Constitution), when a bill is of a national or general nature:

(…)

In the case at hand, the norms of the bill related to the matter of salaries have general application, without this Court having elements to consider that these will affect the financial sustenance of the officials dedicated to the administration of justice to such a degree that it fails to assure at least "dignified economic sufficiency." The Chamber does not omit to underline that the norms of the Ley Orgánica del Poder Judicial, Ley de Salarios del Poder Judicial, and the Estatuto de Servicio Judicial are not affected by the proposed reform. Said norms enable the autonomy of the Judicial Branch regarding changing its salary scale or varying base salaries. In this sense, note what was stated by the Minister of Finance to the Corte Plena:

"Regarding the possibility that the bill affects the independence of the Judicial Branch by regulating the application of certain bonuses, I would respectfully like to point out that the bill does not affect or eliminate the power of the Judicial Branch to modify its salary scale or modify base salaries. So, if the Judicial Branch considered it necessary to increase the salary of any official, it has full power and autonomy to do so. Particularly, if the Judicial Branch considers that, given the regulation of exclusive dedication or seniority bonuses, it is necessary to increase the salary of any official, it can do so under the protection of its independence in salary matters." This observation is not only shared by the Chamber but also determines with indisputable clarity that the consulted bill does not affect the organization or functioning of the Judicial Branch in the matter of salaries.

Based on what has been explained above, the Chamber determines that the questioned regulations of legislative bill 20.580 do not affect, in the expressed sense, the organization or functioning of the Judicial Branch." Finally, more recently, in voto No. 2019-25268, in which respective agreements of the Corte Plena related to the salary increase for judges, prosecutors, and public defenders (as well as Courtroom Secretaries and assistant lawyers) were questioned, the Chamber resolved:

"Equally, this Court, in judgment number 550-91 of 6:50 p.m. on March 15, 1991, mentioned that, "in the case of the branches of government, their own constitutional independence, guaranteed in general by Article 9 of the Constitution and, in those of the Judicial Branch and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones) by Articles 99 and following, 152 and following, and 177 of the same, as well as their own organic norms, impose upon their heads the attribution and responsibility of setting the remuneration, representation expenses, and other facilities inherent to the positions, for their own members and subordinates, within, naturally, their budgetary availabilities, independently, of course, of whether their amounts may or may not coincide with those of the deputies." From the above, it is deduced that the salaries in the Judicial Branch must set the remuneration, representation expenses, and other facilities inherent to the positions, for their own members and subordinates, within, naturally, their budgetary availabilities, with the understanding that there are positions that will hold different remunerations, which does not violate the principle of equality.

Likewise, the challenged agreements do not harm the principles of reasonableness or proportionality, as well as other principles such as those of legality and legitimate expectations, since those agreements were approved by the Corte Plena, that is, by the body normatively enabled for such a situation. The foregoing, in attribution of its constitutional and legal competences that have been attributed to it. In this regard, it is necessary to recall that Article 9 of the Political Constitution indicates that "the Government of the Republic is popular, representative, participatory, alternative, and accountable. It is exercised by the people and three distinct and independent Branches among themselves: The Legislative, the Executive, and the Judicial." Likewise, numeral 152 of the Political Constitution indicates that "the Judicial Power is exercised by the Supreme Court of Justice (Corte Suprema de Justicia) and by the other courts established by law." In a similar sense, Article 154 of the same constitutional text establishes that "the Judicial Branch is subject only to the Constitution and the law, and the resolutions it issues in matters of its competence do not impose on it responsibilities other than those expressly indicated by legislative precepts." Following the line imposed by the Magna Carta, the Ley Orgánica del Poder Judicial, in its Article 2, mentions that "the Judicial Branch is subject only to the Political Constitution and the law. The resolutions it issues, in matters of its competence, do not impose on it more responsibilities than those expressly indicated by legislative precepts. However, the superior authority of the Court shall prevail over its performance, to guarantee that the administration of justice is prompt and fulfilled." Likewise, numeral 59 of that same law indicates that "the Supreme Court of Justice is responsible for: (…) 3.- Approving the draft budget of the Judicial Branch, which, once enacted by the Legislative Assembly, it may execute through the Council." In this same line, the Estatuto de Servicio Civil, in Article 8, determines that "the Chief of the Personnel Department is responsible for: a) Analyzing, classifying, and evaluating the positions of the Judicial Branch included in this law, and assigning them the respective category within the Salary Scale of the Ley de Salarios, all subject to the subsequent approval of the Corte Plena." Likewise, numeral 62 of that normative body establishes that "the Personnel Department shall carry out studies to determine the possible amount of benefits that should be recognized to judicial employees in accordance with the Ley de Salarios, so that the Corte Plena makes the necessary allocations in the budget of each year." In summary, the challenged agreements do not harm the principles of reasonableness, proportionality, legality, or legitimate expectations, since these agreements were approved by the Corte Plena, that is, by the body normatively enabled for such a situation. The foregoing, in attribution of its constitutional and legal competences that have been attributed to it." In this way, with support in the precedents previously transcribed, it can be derived that this Chamber has recognized that the Judicial Branch is key to Costa Rican democracy, so much so that, "The fact that Costa Rica today has the oldest and most stable democracy in Latin America is unimaginable without the functioning of a robust system of justice administration and without the recent efforts to modernize it." (see voto No. 2018-005758). Thus, "if importance is not given to the Judicial Branch in the social and democratic Rule of Law for its correct functioning, its weakening leads to antidemocratic forms of government, proof of which is that one of the functions that authoritarian or totalitarian governments first control is the judicial one, hence the importance of every democratic system having a robust Judicial Branch." (see voto No. 2017-09551). The principle of judicial independence being precisely key to this robustness. Regarding public employment (empleo público), the subjection of the Judicial Branch to the fundamental principles of the public employment regime of Art. 191 is clear. Indeed, in accordance with Article 11 of the Political Constitution, it is clear that the Judicial Branch is subject to the respective procedure for evaluating results and accountability. However, the Chamber has understood as valid and justified that the Judicial Branch has its own normative framework, which regulates in a specific, particular, and differentiated manner the employment relations between said Branch and its employees and the evaluation of their performance. Moreover, it has been indicated that said normative framework (composed, among others, of the Ley Orgánica del Poder Judicial, the Ley Orgánica del Ministerio Público, the Ley Orgánica del Organismo de Investigación Judicial, the Ley de Salarios del Poder Judicial, and the Estatuto de Servicio Judicial), is specifically designed to guarantee the efficiency of the judicial function and the independence of the Judicial Branch. To the point that it has been established, as jurisprudential criterion, that one is in the presence of special legislation that has preponderance over general provisions and cannot be tacitly repealed by a later general norm. Likewise, the Chamber has made express reference to the inadmissibility of an external body assuming governing authority or imposing criteria on the Judicial Branch in these matters. On the contrary, it has highlighted that the independence and functional autonomy expressly recognized to the Judicial Branch in the constitutional text itself (Articles 9, 152 and following, and 177) and materialized and guaranteed in its own organic norms, impose on the heads of the Judicial Branch the competence and responsibility to decide - without undue interference - on the distinct matters that are the object of regulation in the bill of law consulted.

Finally, regarding Comparative Law (Derecho Comparado), it is opportune to mention Article 64 of the French Constitution of 1958, which says that the President of the Republic is the primary guarantor of the independence of the judicial authority, and that it is an Organic Law, particular to the Judicial Branch, which shall regulate the legal status of magistrates. Thus it states:

"ARTICLE 64.

Le Président de la République est garant de l'indépendance de l'autorité judiciaire.

Il est assisté par le Conseil supérieur de la magistrature.

Une loi organique porte statut des magistrats.

Les magistrats du siège sont inamovibles." (Free translation: "Article 64. The President of the Republic is the guarantor of the independence of the judicial authority. For this purpose, the President of the Republic is assisted by the High Council of the Judiciary. An organic law shall regulate the legal status of Magistrates. Elected magistrates are irremovable.") Now, what was indicated in the different precedents cited above, in the sense that this Chamber has understood as valid and justified that the Judicial Branch has its own normative framework, which regulates in a specific, particular, and differentiated manner the employment relations between said Branch and its employees, does not exclude recognizing that the Legislative Assembly is enabled by the Law of the Constitution - according to the intention of the original constituent, as developed in Considerando VIII of this vote (voto) - to establish a single statute that encompasses all public employees (servidores públicos), including officials of the Judicial Branch, as long as such legislation, by its content or its effects, does not suppress, essentially affect, or entail transferring the exclusive and exclusionary competences that correspond to the Judicial Branch to other organs and entities, in violation of the principle of separation of powers or functions (principio de separación de poderes o funciones) and, very particularly, of the principle of judicial independence, as will be analyzed below, regarding the different norms consulted.

• 3)On the examination of the Consulted Articles On Article 2.a (scope of coverage (ámbito de cobertura)), regarding the Judicial Branch (Drafted by Magistrate Castillo Víquez) The following norm is consulted:

"ARTICLE 2- Scope of coverage This law is applicable to public employees of the following entities and organs under the principle of the State as sole employer (Estado como patrono único):

• a)The Branches of the Republic (Executive, Legislative, and Judicial), their auxiliary and attached organs, and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones, TSE), without prejudice to the principle of separation of Branches established in the Political Constitution.

(…)" Faced with such a panorama, and returning to what was set forth above, in the sense that it is plausible to subject all the state branches to a single public employment statute, whereby the subjection of the Judicial Branch to this law is not unconstitutional, it is unconstitutional for not excluding the officials who exercise jurisdictional functions - judges - or quasi-jurisdictional functions - prosecutors, public defenders, and professionals and specialized personnel of the Organismo de Investigación Judicial, etc. - and officials at the managerial or high political leadership level as the bill of law calls them, as well as the officials of the Supreme Electoral Tribunal who exercise electoral functions - lawyers (letrados), department directors, professionals, etc., and those who hold high political leadership positions, as well as the administrative, professional, and technical staff, that each head of the respective branch defines exclusively and exclusionarily, because, in these cases, it is not possible to subject them to directives, provisions, circulars, manuals issued by Mideplán. The foregoing means that the Judicial Branch would indeed be subject to those powers that the law grants to Mideplán when it concerns the rest of the officials - those that each head of the Judicial Branch and the Supreme Electoral Tribunal define exclusively and exclusionarily -, who form part of the administrative staff, auxiliary or support personnel. It could be argued against what we are stating that numeral 49 of the consulted bill of law, in subsection g) which adds Article 85 to Law No. 5155, Estatuto Judicial, of January 10, 1973, states that the competences in the bill of law, for the organs of the Judicial Branch, shall be carried out in coordination with Mideplán, regarding the topics referred to in the cited bill; and subsection h), which adds Article 17 to Law No. 2422, Ley de Salarios del Poder Judicial, of August 11, 1959, states that the competences defined in the bill of law, for the organs of the Judicial Branch, are also carried out in coordination with the cited ministry, in the same direction, as well as the fact that subsection a) of Article 2 establishes that the scope of coverage of the bill of law is without prejudice to the principle of separation of Branches established in the Political Constitution, the Judicial Branch shall do it through institutional coordination with MIDEPLAN, so it is not true that the former is subject to the directives, provisions, circulars, manuals issued by the latter in what pertains to it; however, such an objection is unjustified due to the imprecision of the legislation intended to be approved, because in a matter of such importance, the Law must be clear and precise, an aspect that, in many cases, is missed. Hence, it is pertinent to conclude that there are indeed unconstitutionality defects. Note that in numeral 3 of the consulted bill of law, which regulates the exclusion of entities from this legislation, no safeguard is made in favor of the Judicial Branch and the Supreme Electoral Tribunal.

On Article 6 (governing authority of Mideplán), regarding the Judicial Branch (Drafted by Magistrate Castillo Víquez) The following norm is consulted:

"ARTICLE 6- Creation of the General Public Employment System (Sistema General de Empleo Público) The governing authority (rectoría) of the General Public Employment System shall be in charge of the Ministry of National Planning and Economic Policy (Ministerio de Planificación Nacional y Política Económica, Mideplán). Said system shall be composed of the following:

• a)The Ministry of National Planning and Economic Policy (Mideplán).
• b)The offices, departments, areas, directorates, units, or homologous denominations for Human Resources Management of the entities and organs under the scope of application of this law. (…)" In relation to Article 6, subsection b, of the consulted bill of law, it is unconstitutional, since it subjects the Judicial Branch and the Supreme Electoral Tribunal to the directive authority of the Executive Branch, which is contrary to the principles of judicial and electoral independence.

Therefore, the offices, departments, areas, directorates, and Human Resources Management units of these branches cannot be subject to the aforementioned authority, except with regard to those who provide basic, auxiliary administrative services that do not affect the exclusive and exclusionary powers or the administrative functions necessary for their fulfillment, defined exclusively by the heads of the Judicial Branch and the Supreme Electoral Tribunal.

  Regarding Article 7 (powers of Mideplán), with respect to the Judicial Branch (Drafted by Magistrate Castillo Víquez)   Consultation is made on the following provision:

  “ARTICLE 7- Powers of Mideplán   The powers of the Ministry of National Planning and Economic Policy (Mideplan) are the following:

• a)Establish, direct, and coordinate the issuance of public policies, programs, and national public employment plans, in accordance with Law 5525, National Planning Law, of May 2, 1974.
• b)Establish mechanisms for discussion, participation, and agreement with municipal corporations through the Union of Local Governments and state university higher education institutions, in matters of public employment.
• c)Issue provisions of general scope, directives, and regulations aimed at the standardization, simplification, and coherence of public employment, as prescribed in Law 6227, General Law of Public Administration, of May 2, 1978, and Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.
• d)Advise the entities and bodies included under the coverage scope of this law, for the correct implementation of public policies, provisions of general scope, directives, and regulations issued within the framework of the political stewardship (rectoría política) in public employment and Law 6227, General Law of Public Administration, of May 2, 1978, and Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.
• e)Administer and keep updated the integrated public employment platform.
• f)Publish the public employment offer through the virtual platform that will be fed by the entities and bodies included within the coverage scope of this law.
• g)Issue the guidelines and general principles for performance evaluation (evaluación del desempeño).
• h)Administer and implement research, innovation, and proposal formulation actions for public employment.
• i)Direct and coordinate the execution of inherent powers in matters of public employment with the Ministry of Finance, the Ministry of Labor and Social Security, the Budgetary Authority, and the General Directorate of Civil Service, among other technical dependencies in the matter of public employment, concerning the subject of public employment.
• j)Collect, analyze, and disseminate information on public employment from entities and bodies for their improvement and modernization. To this end, it shall establish a system of indicators, through the establishment of coordination criteria, to homogenize data collection and dissemination.
• k)Prepare a coherent and comprehensive strategy for learning and development throughout the public service, establishing how long-term capacity for higher management standards and professional competence will be developed and providing guidance to public institutions on how to plan and apply activities within the strategy.
• l)Coordinate with the Procuraduría de la Ética Pública to issue provisions of general scope, directives, and regulations for the instruction of public servants on the duties, responsibilities, and functions of the position, as well as the ethical duties governing public service, as appropriate according to Law 6227, General Law of Public Administration, of May 2, 1978, and Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.
• m)Establish a single and unified remuneration system for the public service in accordance with this law and specific to the salary and benefits of all public officials.
• n)Conduct diagnostics on human resources matters of the included entities and bodies to achieve an adequate resizing of existing payrolls and the development of general criteria that delimit the sectors whose activity, due to its strategic institutional value, as well as its link to substantive activity, should be reserved to be performed exclusively by public servants. Furthermore, analyze those that serve as guidance to delimit the provision of those that could be outsourced and the conditions for their provision.
• o)Prospect global trends in the future of public employment, for the purpose of informing its planning.
• p)Analyze the efficiency and effectiveness of the evaluation mechanisms, in order to determine whether or not they fulfill their purpose.
• q)Evaluate the general public employment system in terms of efficiency, effectiveness, economy, simplicity, and quality.”   In relation to Article 7, subsections d), g), and p) are unconstitutional, as they affect the independence of the Judicial Branch and the Supreme Electoral Tribunal, insofar as they subject them to the directive and regulatory authority (potestad de dirección y reglamentaria) of Mideplán, as well as to the verification of whether or not they fulfill the purpose of the performance evaluation and are not excluded from the directive authority. It must be emphasized that the principle of separation of powers or functions is incompatible with the directive and regulatory authority exercised by the Executive Branch, since it cannot order its activity by establishing goals and objectives. Regarding the performance evaluation, it is reserved to each branch of the State, since this matter is consubstantial to the exercise of their constitutional powers. This means that, with respect to this point, all the officials of each branch would be subject to the internal provisions that each of them dictates in this regard.

      Regarding Article 9.a.- Human Resources Offices with respect to the Judicial Branch (Drafted by Magistrate Picado Brenes)   Consultation is made on the following article:

  “ARTICLE 9- Functions of the active administrations   a) The offices, departments, areas, directorates, units, or homologous denominations of human resources management of the institutions included in Article 2 of this law shall continue to perform their functions in accordance with the relevant regulatory provisions in each public dependency.

Likewise, they shall apply and execute the provisions of general scope, directives, and regulations in relation to planning, work organization, employment management, performance management (gestión del rendimiento), compensation management (gestión de la compensación), and labor relations management, which the Ministry of National Planning and Economic Policy (Mideplán) sends to the respective institution, according to Law 6227, General Law of Public Administration, of May 2, 1978, and Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.

• b)It is the responsibility of the offices, departments, areas, directorates, units, or homologous denominations of human resources management to prepare and apply knowledge, competency, and psychometric tests for the purposes of recruitment and selection processes of personnel, to conduct internal and external competitions by opposition and merits (concursos internos y externos por oposición y méritos), which must always meet at least the standards established by the General Directorate of Civil Service for each position, according to its scope of competence, and the guidelines issued according to Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.

Furthermore, incorporate said competitions into the public employment offer of the Public Administration and verify that public servants receive due induction on the duties, responsibilities, and functions of the position, as well as the general and specific ethical duties of public service for the institution and position.

• c)The institutional human resources management offices of ministries and institutions or bodies attached under the scope of application of the Civil Service Statute are technical dependencies of the General Directorate of Civil Service which, for all purposes, must coordinate the preparation of personnel recruitment and selection tests with such offices and perform their advisory, training, and technical support functions.”   As observed, Article 9 consulted establishes certain functions for all offices, departments, areas, directorates, or human resources units of all institutions included in the bill, including the Department of Human Management of the Judicial Branch. Thus, with respect specifically to the consultation made regarding the Judicial Branch, the second paragraph of subsection a) imposes on the Department of Human Management of said Branch of the Republic the obligation to apply and execute the provisions of general scope, directives, and regulations in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management, which Mideplán sends to it. This would imply that a body of the Executive Branch, such as Mideplán, imposes on the Judicial Branch the application and execution of its provisions, directives, and regulations, and in matters that are the exclusive purview of the Judicial Branch, such as planning, work organization, employment management, performance management, compensation or salary management, and labor relations management. This obligation for the Department of Human Management of the Judicial Branch is clearly a violation of the principle of separation of powers and judicial independence, according to the scope that constitutional jurisprudence has given to such basic principles of our democracy. It must be remembered that the principle of division of powers, or as it is more recently known, the principle of separation of functions, is enshrined in Article 9 of the Political Constitution and stands as "one of the fundamental pillars of the Democratic State, as it establishes a system of checks and balances that guarantees respect for constitutional values, principles, and norms for the direct benefit of the country's inhabitants." (ruling no. 2006-013708). Making it possible for each Branch of the State to exercise its function independently of the others (ruling no. 6829-1993), and not only as a principle of internal application for the proper functioning of the Rule of Law, but also because the principle of judicial independence, in its external dimension, ensures a set of guarantees that aim to prevent a Court from being controlled by other governmental bodies; it is the absence of external pressures or influences that make the institution vulnerable, as a result of threats to the availability of resources that allow it to carry out its work with autonomy, to the job stability and promotion possibilities of its officials, to its integrity and assets, and to its infrastructure capacities to meet citizen demands. On the other hand, in its internal dimension, judicial independence is more than a guarantee for judges, as it also constitutes "a guarantee for individuals (parties to the process), in the sense that their cases will be decided with strict adherence to the Constitution and the laws" (ruling no. 5795-1998), "we are faced with the right of citizens to have independent judges" (ruling no. 2001-006632). The independence of the Judicial Branch translates, in economic matters and by the irremovability of its personnel, as well as, in functional terms, by the real possibility of making its decisions according to its own criteria and not as a result of pressures from specific groups, institutions, or persons (see ruling no. 2000-005493). Thus, it is fully justified that in the specific case of the Judicial Branch, it has a special, separate, and differentiated regulation, although subject to the fundamental constitutional principles provided for in Articles 191 and 192 (see ruling no. 1991-550), but not under the general provisions, directives, and regulations of a body of another Branch of the Republic, as this provision of the consulted bill intended. For, the special regulations governing the Judicial Branch "prevent an indirect regulation of the judicial service through directives or guidelines from other instances." (ruling no. 2018-019511). This is because, "...the Public Employment Regime, it is possible to conclude that the competent state body in this matter is each branch of the Republic, given that these—Executive, Legislative, Judicial, and Supreme Electoral Tribunal—are the most capable of determining their needs and knowing their particular conditions." (ruling no. 03575-1996). Being "the constitutional powers to order, plan, or program, for example, the administrative function of personnel management" (ruling no. 2017-009551), an essential part of the administrative function of the Judicial Branch that contributes to the effective exercise of its judicial function, since "both legislative and judicial functions require an administrative support structure to achieve their essential or primary function, such as the administrative function that helps channel all its activity; which, logically, reaches the human resources or personnel of the Branches of the Republic, meanwhile, behind the fundamental function is the administrative function of personnel, agents, and public servants, etc." (ruling no. 2017-009551). Finally, it should be noted that, in ruling no. 2018-019511, in which the legislative consultation on the bill for the "Law for the Strengthening of Public Finances" (legislative file no. 20,580) was heard, this Chamber concluded—after carrying out an interpretative task regarding the content of the bill—that, specifically, what was provided for in numerals 46, 47, and 49, concerning the “stewardship of public employment matters by Mideplán” and “the binding nature of the technical and methodological guidelines of the General Directorate of Civil Service”, did not apply to the Judicial Branch. This interpretation was made taking into consideration the principle of independence of the Judicial Branch. In this sense, and in accordance with all the foregoing, the second paragraph of subsection a) of Article 9 is unconstitutional with respect to its application to the Judicial Branch.

  Regarding Article 13 (families of positions), with respect to the Judicial Branch (Drafted by Magistrate Castillo Víquez)   Consultation is made on the following provision:

  “ARTICLE 13- General regime of public employment   There shall be a single general regime of public employment, which in turn shall be composed of the following eight families of positions that shall apply in the bodies and entities of the Public Administration, according to the functions performed by their personnel:

• a)Public servants under the scope of application of Title I and Title IV of the Civil Service Statute, as well as those who work in the institutions indicated in Article 2 of this law, who are not included in the remaining families of positions.
• b)Public servants who perform functions in health sciences.
• c)Public servants who perform police functions.
• d)Teaching personnel covered by the Civil Service Statute, under Title II and Title IV.
• e)Teaching and academic personnel of technical and higher education.
• f)Persons who administer justice and the magistrates of the Supreme Electoral Tribunal (TSE).
• g)Public servants who perform functions in the foreign service.
• h)Public servants who hold positions of trust (cargos de confianza).

The creation of families of public employment positions is reserved to law and must be justified by technical and legal criteria consistent with efficient and effective public management.

In all the categories described above, the higher public administration, through the occupational health offices or departments, must have in each public entity, as established by Article 300 of the Labor Code and its regulations, the diagnosis of its working conditions, the occupational health program, and when working conditions adverse to health exist, the respective safety protocols must be created to safeguard life, which will be validated internally and with the respective endorsement of the Occupational Health Council, for which the necessary human resources will be provided. Said instance shall depend administratively directly on the head of the entity.

  Regarding subsection f) of Article 13, it is unconstitutional because it does not exclude officials who perform para-jurisdictional functions—prosecutors, public defenders, and professionals and specialized personnel of the Judicial Investigation Agency, etc.—and officials at the managerial or high political management level, as well as officials of the Supreme Electoral Tribunal who perform electoral functions—law clerks, Department directors, professionals, etc.—and those who hold high political management positions. Furthermore, it does not exclude all the administrative support, professional, and technical officials that the highest bodies of the aforementioned branches of the State define, exclusively and exclusionarily, as indispensable or consubstantial for the exercise of their constitutional powers. Especially since, in accordance with that same article, subsection a), all those officials would be included in a category of the Civil Service Statute, which affects the independence of both the Judicial Branch and the Supreme Electoral Tribunal, based on the fact that judicial and electoral governance is exercised exclusively and exclusionarily by the Supreme Court of Justice and the Supreme Electoral Tribunal with respect to their constitutional powers. Finally, it must be borne in mind that the construction of the family, as explained supra, corresponds exclusively and exclusionarily to each branch of the State.

    Regarding Article 14.- Recruitment and selection with respect to the Judicial Branch (Drafted by Magistrate Picado Brenes)     The consultants challenge the constitutionality of Article 14 of the bill under consultation, since, in their view, it could harm the principles of separation of powers, autonomy, and independence of the Judicial Branch, as it subjects itself to the provisions issued by a body of the Executive Branch regarding employment management, which includes matters relating to the recruitment and selection of its personnel. The Article 14 in question provides the following:

  “ARTICLE 14- Recruitment and selection The recruitment and selection of newly entering public servants shall be carried out based on their proven suitability, for which the Ministry of National Planning and Economic Policy (Mideplán) shall issue, in absolute compliance with Law 6227, General Law of Public Administration, of May 2, 1978, the provisions of general scope, directives, and regulations, according to the respective family of positions.

In recruitment and selection processes, an applicant may not be chosen who is in any of the following situations:

• a)Being related by consanguinity or affinity in a direct or collateral line, up to the third degree inclusive, to the immediate superior or to that superior's immediate superiors in the respective dependency.
• b)Being listed in the register of ineligible persons on the integrated public employment platform.”   As already indicated supra, the Judicial Branch, as a branch of the Republic, must not only be independent of the other branches, as provided in constitutional Article 9, but must also guarantee the independence of judges, as established by Article 154 of the Political Constitution, as a guarantee for individuals that their cases will be decided with strict adherence to the Constitution and the laws. In view of this, it is essential that this Branch of the Republic dispose of everything relating to the recruitment and selection of its personnel, without any external interference. This was specifically reiterated by this Tribunal in ruling no. 2018-19511, stating, as relevant, the following:

“…These constitutional provisions have given rise to the development of a profuse regulatory framework, specifically designed to regulate the Judicial Branch. Among the norms of this framework are the Organic Law of the Judicial Branch, the Organic Law of the Public Ministry, the Organic Law of the Judicial Investigation Agency, the Salary Law of the Judicial Branch, the Judicial Service Statute (including its reform by the Judicial Career Law), etc.

Clearly, the norms stated above are intended to specifically regulate the Judicial Branch, ensuring that its independence from the other Branches of the Republic is guaranteed.

The fact that the Judicial Branch enjoys a particular regulation brings the second point of analysis of systematic interpretation to the fore. In this sense, it must be studied whether there are particular norms for the Judicial Branch and verify their relationship with the challenged articles.

Regardless of whether Article 47 of the bill speaks of “exceptions”, it is observed that performance evaluation and competence in labor-related decision-making, whether general or specific, are already regulated by the aforementioned regulatory framework of the Judicial Branch, making it impossible for an external instance to assume “stewardship” or impose criteria on that Branch. Moreover, said regulatory framework is designed to guarantee the efficiency of the judicial function and protect judicial servants from external interference, as indicated by Article 1 of the Judicial Service Statute:”   Specifically regarding Article 1 of the Judicial Service Statute, the Chamber indicated in said ruling that: “Note that the provision determines that the employment relationships between the Judicial Branch and its servants are regulated by the Statute and its regulations. The systematic interpretation required by that numeral prevents an indirect regulation of the judicial service through directives or guidelines from other instances. This is verified because the issuance of the regulation referred to in the provision is, in turn, the exclusive competence of the Court,” It also adds that: “A further guarantee of the independence of the Judicial Branch in employment matters is that the Head of the Personnel Department is linked to the President of the Court, excluding interference from external instances.”   Now, in this case, this Tribunal considers that the bill challenged here affects the own powers of this Branch of the Republic, since beyond establishing general principles or guidelines on public employment that respect the principle of separation of functions, Article 14 under study is clear in stating that it will be the Ministry of National Planning and Economic Policy (Mideplán) that will issue the provisions of general scope, directives, and regulations, according to the respective family of positions, that will regulate the recruitment and selection of newly entering public servants. This is because, according to the provisions of Articles 13 and 2 of the same bill, what is stated in Article 14 would apply to the Judicial Branch. That being the case, regardless of whether the referred Article 2 limits the coverage scope to "without prejudice to the principle of separation of Powers established in the Political Constitution," Article 14 would apply to the Judicial Branch, and in that sense, it is considered that such provision is unconstitutional, by authorizing a body of the Executive Branch to be the one that directly issues provisions of general scope, directives, and regulations, circulars, manuals, and resolutions related to public employment matters, which empty the content of the powers recognized to the Supreme Court of Justice by the original and derived Constituent Power. Even more so when a regulatory framework pertaining to the Judicial Branch already exists that regulates these aspects, in the terms mandated by constitutional Article 192. For the reasons stated, the consulted norm exceeds any framework of cooperation that may establish a general public employment policy, as it is not appropriate for a dependency of the Executive Branch—Mideplán—to obligatorily dictate to another Branch, in this case the Judicial Branch, the guidelines or criteria for the selection and recruitment of its personnel. This constitutes a clear external interference and the intrusion of the Executive Branch into aspects that are the exclusive competence of the Judicial Branch. Consequently, this Tribunal considers that the consulted Article 14 contains a vice of unconstitutionality, for harming the principle of independence of functions that Articles 9 and 154 of the Political Constitution guarantee to the Judicial Branch.

    Regarding Article 17.- Senior Management Personnel with respect to the Judicial Branch (drafted by Magistrate Picado Brenes)   Consultation is made on the following article:

  “ARTICLE 17- Senior public management personnel   The Ministry of National Planning and Economic Policy (Mideplán) shall issue the provisions of general scope, directives, and regulations regarding senior public management personnel, consistent with Law 6227, General Law of Public Administration, of May 2, 1978, to provide the Public Administration with profiles of integrity and proven capacity for management, innovation, and leadership, to seek the improvement of the provision of public goods and services. (…)”     The consultants point out the harm to the principle of separation of functions and the independence of the Judicial Branch, because this provision states that, in the case of senior management positions, it will be Mideplán that issues the provisions of general scope, directives, and regulations in this regard. In the same vein in which this Chamber has been resolving these aspects, the interference of this Ministry, which is a body of the Executive Branch, issuing provisions of general scope, directives, and regulations to the Judicial Branch regarding senior management positions, is violative of the principle of separation of powers and judicial independence. Furthermore, the regulation of everything relating to senior management positions in the Judicial Branch already has the special regulations of that branch of the Republic. There are several precedents of the Chamber in which it is expressly understood as fully justified that, in the specific case of the Judicial Branch, it has a special, separate, and differentiated regulation—although subject to the fundamental constitutional principles provided for in Articles 191 and 192. One can cite, in the first place, ruling no. 2019-25268 (reiterating what was said in ruling no. 550-1991), which indicates:

“(…) in the case of the branches, their own constitutional independence, guaranteed in general by Article 9 of the Constitution and, for the Judicial Branch and the Supreme Electoral Tribunal, by those of Articles 99 and following, 152 and following, and 177 thereof, as well as their own organic laws, imposes on their heads the power and responsibility to set the remuneration, representation expenses, and other facilities inherent to the positions, for their own members and subordinates, within, naturally, their budgetary availabilities, independently, of course, of whether their amounts may or may not coincide with those of the deputies.”   Given that constitutional Article 154 itself subjects the Judicial Branch only to the Constitution and the law, but not to provisions of the Executive Branch. Note that these are positions of great importance, as they would refer, at least, to those who make up the Superior Council of the Judicial Branch, and the heads of the Public Defense, the Public Ministry, and the Judicial Investigation Agency. Positions that are of great relevance, which must be particularly protected from interference by other Branches of the Republic, and which require the stability of the personnel necessary for an adequate and impartial performance of the position, which is incompatible with subordination to the provisions issued in this regard by Mideplán, as the norm in question provides.

Being competent in this respect, the same Judicial Branch, as this Chamber has indicated before: “… be it the Public Employment Regime, it is possible to conclude that the competent state body in this matter is each branch of the Republic, given that these are—Executive, Legislative, Judicial, and the Supreme Electoral Tribunal—the most qualified to determine their needs and understand their particular conditions.” (judgment No. 03575-1996). Note that, in judgment No. 2018-019511, in which the legislative consultation regarding the draft “Law for the Strengthening of Public Finances” (legislative file No. 20.580) was heard, this Chamber concluded—after performing an interpretive task regarding the content of the draft—that, specifically, the provisions in numerals 46, 47, and 49, concerning the “governing authority for the public employment matter of Mideplán” and “the mandatory nature of the technical and methodological guidelines of the General Directorate of (sic) Civil Service,” did not apply to the Judicial Branch. An interpretation that was made, taking into consideration the principle of independence of the Judicial Branch. Therefore, it is considered that there is a defect of unconstitutionality in Article 17 under consultation, in the terms set forth.

Regarding Article 18.—Probationary period and appointment term for Senior Management regarding the Judicial Branch (drafted by Magistrate Picado Brenes) In relation to this provision, the consultants again point out the injury to the principle of separation of functions and the independence of the Judicial Branch, because it provides that, in the case of senior technical management positions, the appointment shall be for 6 years with a probationary period of 6 months, renewable annually, subject to performance evaluation, which, according to them, affects matters that are the Judicial Branch’s own regulatory domain. Article 18 under consultation provides as follows:

“ARTICLE 18- Appointment and probationary period for senior public management Every public servant who is appointed to senior public management positions shall be on probation for a period of six months, and their appointment shall be made for a maximum of six years, with the possibility of annual renewal, which shall be subject to the results of the performance evaluation. (…)” As in previous sections, it is necessary to reiterate that the regulation of aspects related to the appointment and selection of personnel, as also occurs with senior technical management positions, the probationary period, term, or conditions for the renewal of appointments, are regulations inherent to and concerning the organizational and administrative autonomy of the Judicial Branch, since these are strategic positions of great importance for its administration, whose definition must correspond to it, in accordance with the constitutional purposes of that institution. Note that, regarding the Judicial Branch, these positions would refer, at least, to those who make up the Superior Council of the Judicial Branch, and the heads of the Public Defense, the Public Ministry, and the Judicial Investigation Agency. These are highly relevant positions that must be particularly protected from interference by other Branches of the Republic, and that require the staff stability necessary for an adequate and impartial performance of the duties, which is incompatible with an appointment whose renewal must be reviewed annually as the rule in question provides. A provision in that sense would be inoperative for this branch of the Republic, in the case of positions of such relevance, whose appointment merits different competitions and a careful verification of credentials prior to their selection; therefore, far from benefiting the administration of justice, it would create such instability that it would affect the good governance of the Judicial Branch. Thus, requiring the periodicity and renewal that this Article 18 provides for the case of the Judicial Branch not only threatens the principle of independence, by contradicting the special regulations that the Judicial Branch already has in this regard, but is also unreasonable and disproportionate, since the means chosen by the legislator would not be the most suitable to achieve the intended purpose—assessing the suitability of personnel—given that the Judicial Branch already has a profuse regulatory framework, specifically designed for its regulation, which not only intends to specifically regulate the Judicial Branch, ensuring that its independence from the other Branches of the Republic is guaranteed, but also ensures the principle of suitability that must prevail in the selection of its officials. Therefore, the rule under consultation, far from favoring that constitutional principle, would unreasonably and disproportionately alter the organization of positions that are fundamental for the administration of justice in the Judicial Branch, even putting at risk the impartiality in the exercise of duties that must prevail in those positions, given the continuous pressure of an annual renewal of their appointment. Likewise, it is worth noting that, as with Article 14 under consultation and as indicated in Article 2 of this draft, numeral 18 does not establish any exception regarding the application of this rule to the Judicial Branch, as it does in this case for public universities, by stating that, in their case, the terms and periods determined in their organic statutes and regulations shall be respected. Hence, the Judicial Branch is not excluded from its application either. Therefore, it is considered that there is a defect of unconstitutionality in Article 18 under consultation, in the terms set forth.

Regarding Article 21 (single dismissal regime) and Article 22 (dismissal process) regarding the Judicial Branch (drafted by Magistrate Picado Brenes) The articles under consultation provide as follows:

“ARTICLE 21- Dismissal Procedure It shall be grounds for immediate dismissal, applicable to every public servant, to obtain two consecutive performance evaluations below a score of seventy percent (70%), which have become final, once the procedure for challenging the rating has been exhausted and provided that the responsibility of the public servant for said deficient evaluation has been accredited. Said rating must be duly justified by the immediate superior who assigns it and by the hierarchical authority that confirms it, if it has been appealed.

The included entities and bodies must apply remedial plans agreed upon with the public servant, and with human resources advice, that allow them to determine the causes for which public servants obtain a rating below seventy percent (70%) and apply actions to improve their performance. If, despite the application of the remedial plan, the public servant fails to improve their performance and obtains another consecutive rating below seventy percent (70%), the grounds for immediate dismissal shall be configured.

The included entities and bodies must apply remedial plans that allow them to determine the causes for which public servants obtain a rating below seventy percent (70%) and apply actions to improve their performance. If, despite the application of the remedial plan, the public servant fails to improve their performance and obtains another consecutive rating below seventy percent (70%), the grounds for immediate dismissal shall be configured.

Any justified dismissal shall be understood as without responsibility for the Public Administration and shall cause the public servant to lose all the rights that this law and the applicable regulations in each job family grant them, except for the proportional labor benefits that correspond and those acquired under the current pension regimes, provided it is carried out in observance of the following rules:

• a)In all departments under the scope of application of this law, a single special administrative dismissal procedure shall be applied, guaranteeing the satisfaction of due process and its principles, which must be concluded by a final act within a term of two months, from its initiation. The preliminary investigation, in cases where it is required, shall not commence the procedure indicated in the preceding paragraph; however, it must begin, under penalty of statute of limitations, no later than within one month from when the head (jerarca) becomes aware, either ex officio or by complaint, of the possible commission of a fault by one of their servants. The same one-month statute of limitations period shall apply if, once the mentioned preliminary investigation has begun, it remains paralyzed due to fault of the Administration.

For the purposes of the two-month term indicated in the first paragraph of this subsection, the ordinary dismissal procedure shall begin from when the institutional head adopts the decision to commence said procedure with the appointment of the directing body of the process.

• b)Received, by the institutional head, a complaint or report of an alleged fault that, in their judgment, merits the initiation of a dismissal procedure, they shall appoint a directing body for the process, which shall formulate the charges in writing and give a transfer to the public servant for a term of fifteen days, to discharge all the evidence offered in an oral and private hearing, which shall be personally notified via the official’s institutional email, certified mail, or by means of a single publication in the official gazette La Gaceta, when it is shown that there is no way to locate the alleged offender. Within the indicated period, the public servant must submit, in writing, their defense and may offer all the evidence they deem appropriate to support their defense, whether documentary, testimonial, or of any other nature in support thereof, as well as the exceptions or incidental matters they deem appropriate.
• c)If, after the term determined in the preceding subsection has expired, the servant has not presented opposition or has expressly stated their conformity with the attributed charges, the institutional head shall issue the dismissal resolution without further procedure, unless it is proven that they were not notified by the directing body of the process or were prevented by just cause from opposing.
• d)If the charge or charges against the employee or public servant imply their criminal liability, or when necessary for the successful outcome of the disciplinary administrative dismissal procedure or to safeguard the decorum of the Public Administration, the institutional head may decree, in a reasoned resolution, the provisional suspension of the public servant from the exercise of their duties. If criminal proceedings are initiated against the public servant, said suspension may be decreed at any time as a consequence of a detention order or pretrial detention, or a final sentence with a custodial penalty.
• e)If the interested party opposes within the legal term, the directing body of the process shall resolve the preliminary exceptions that have been presented and shall convene an oral and private hearing, before the Administration, in which all pertinent evidence and arguments of the parties shall be admitted and received. Likewise, ocular inspections and expert inspections may be carried out before the hearing. A second hearing may be convened only when it has been impossible in the first to have the file ready for its final decision, and the pending proceedings so require.
• f)If the public servant incurs a new cause for dismissal during the investigation period, the charges shall be accumulated in the pending file, and the procedure shall continue in accordance with the provisions of this chapter.
• g)Once the evidence has been discharged, the preliminary exceptions presented within the ten-day period granted to oppose the transfer of charges have been resolved, and the conclusions have been presented by the parties or the period for doing so has expired, the file shall be deemed duly investigated, and the respective report shall be elevated to the institutional head for a definitive resolution.
• h)The institutional head shall resolve the dismissal of the public servant or declare the lack of merit and order the archiving of the file in this latter case. However, if they consider that the fault exists but that its severity does not warrant dismissal, they shall order an oral reprimand, a written warning, or a suspension without pay for up to one month, depending on the severity of the fault.
• i)Against the resolution ordering an oral reprimand, written warning, or suspension without pay for up to one month, the ordinary remedies of reconsideration (revocatoria) with appeal (apelación) in subsidio, when the latter is applicable, may be filed within a period of five days, counted from the day after said resolution is notified. Both remedies may be filed jointly or separately before the body issuing the resolution, which shall resolve the reconsideration remedy.

In the case of public servants working in an institution covered by Law 1581, Civil Service Statute, of May 30, 1953, the appeal remedy shall be resolved by the Civil Service Tribunal. The head shall forward on appeal, to the Civil Service Tribunal, the file of the corresponding administrative procedure containing the sanction resolution as well as the resolution of the reconsideration remedy, with an expression of the legal reasons and facts on which both resolutions are based.

• j)Cases not provided for in this procedure, insofar as they do not contradict the text and the procedural principles contained in this procedure, shall be resolved by applying, in the following order: Law 6227, General Law of Public Administration, the rules of public law, the general principles of public law, the Labor Code, the Civil Procedure Code, the principles and laws of common law, equity, local customs and usages.

State university higher education institutions shall issue internal regulations governing this matter, in accordance with Articles 84, 85, and 87 and the principle of due process contained in the Political Constitution; in the absence of institutional regulations in this regard, Law 6227, General Law of Public Administration, of May 2, 1978, the rules of public law, the general principles of public law, the Labor Code, and the Civil Procedure Code shall apply supplementarily.

ARTICLE 22- Recourse Phase Against the dismissal resolution issued by the head, there shall be a non-extendable period of five business days, counted from the notification of the resolution, to file the reconsideration remedy and/or the appeal remedy in subsidio, when the latter is applicable, which shall be resolved in accordance with the following provisions:

• a)If, after the five-day period indicated above, the resolution is not appealed, it shall become final and shall exhaust the administrative channel.
• b)If only the reconsideration remedy was filed, the decision by the head shall be definitive, the resolution shall become final, and it shall exhaust the administrative channel.
• c)If both ordinary remedies are filed at the same time, the appeal shall be processed once the reconsideration has been declared without merit.
• d)In the case of public servants working in an institution covered by Law 1581, Civil Service Statute, of May 30, 1953, the appeal remedy shall be granted with suspensive and devolutive effect before the Civil Service Tribunal. The head shall forward on appeal, to the Civil Service Tribunal, the file of the administrative dismissal procedure, containing the public servant’s dismissal resolution, as well as the resolution of the reconsideration remedy, with an expression of the legal reasons and facts on which both resolutions are based.

If only the appeal remedy was filed, the head shall forward on appeal, to the Civil Service Tribunal, the file of the administrative dismissal procedure containing the public servant’s dismissal resolution, with an expression of the legal reasons and facts on which said resolution is based.

The resolution adopted by the Civil Service Tribunal on appeal shall be definitive, the resolution shall become final, and it shall exhaust the administrative channel. Said ruling is binding on the institutional head.

Once the dismissal is authorized by final resolution, the institutional head shall have a caducity period of one month, counted from the notification of said resolution, to make it effective. For the execution of the dismissal by the head, no additional agreement is required; merely communicating the cessation of their status as a public servant based on the final resolution issued suffices.

If the Civil Service Tribunal revokes the decision issued by the institutional head, it shall issue a new ruling in the same act and shall decide whether the reinstatement of the employee to their position, with full enjoyment of their rights and the payment of back wages in their favor, is appropriate.

If the Civil Service Tribunal considers that the fault exists but that its severity does not warrant dismissal, it may order an oral reprimand, a written warning, or a suspension without pay for up to one month.

State university higher education institutions shall issue internal regulations governing this matter, in accordance with Articles 84, 85, and 87 and the principle of due process contained in the Political Constitution; in the absence of institutional regulations in this regard, Law 6227, General Law of Public Administration, of May 2, 1978, the rules of public law, the general principles of public law, the Labor Code, and the Civil Procedure Code shall apply supplementarily.” The deputies consult on Articles 21 and 22 of the draft, referring to the disciplinary and sanctioning regime applicable to the Judicial Branch. They indicate that Article 21 establishes a new cause for immediate dismissal when the public servant obtains two consecutive performance evaluations below 70%. They indicate that the Judicial Branch has special laws that regulate the sanctioning regime for its servants. They add that the new established causes pertain more to administrative matters than to jurisdictional aspects, which causes an odious and dangerous interference in our Social State of Law and judicial independence. They consider that the new cause for immediate dismissal consisting of obtaining two consecutive performance ratings below 70% contained in Article 21, as well as the two new serious causes created through the reform to Article 48 of the Law on Salaries of the Public Administration, which is reformed in Article 49:A) of the draft law, violate the constitutional principles of legality, legal certainty, reasonableness, proportionality, separation of powers, autonomy, and independence of the Judicial Branch and its auxiliary bodies, also allowing the interference of Mideplán in matters that are the exclusive competence of that Branch of the Republic, as provided by Articles 9, 154, and 156 of the Political Constitution, and the numerous cited international legislation. Then, regarding the single dismissal procedure in relation to the Judicial Branch, they indicate that, under the scope of application of this proposed law, there will be a single special dismissal procedure (Article 21). Regarding the recourse regime, the power is given to the Civil Service Tribunal to resolve all appeals filed against resolutions determining any type of disciplinary sanction (Article 21:i) and Article 22). They consider that it also violates the independence and autonomy of the Judicial Branch, given that it has its own regulations and that, due to the special nature of the function it performs, it contains particular provisions regarding competences, terms, faults, sanctions, and remedies, as established by Articles 174 to 215 of its Organic Law.

In this regard, this Chamber considers that:

-The creation of a new cause for dismissal, for failing the performance evaluation on two consecutive occasions (according to the first paragraph of Article 21 of the draft), is not unconstitutional as long as it is applied by the Judicial Branch and the Supreme Electoral Tribunal in accordance with their internal regulations. The establishment of this new cause for justified dismissal does not violate the Constitutional Law, especially if it is understood that this new cause would be applied according to the internal provisions of the Judicial Branch, where Mideplán would not have any interference.

-Articles 21 and 22 of the consulted draft are unconstitutional regarding their application to the Judicial Branch—and to the Supreme Electoral Tribunal as will be seen—because the exercise of disciplinary power over the servants of the Judicial Branch is an essential part of judicial independence. Therefore, everything established in these rules regarding the procedure and recourse phase could not be applied to the Judicial Branch, which already has internal regulations providing for the exercise of disciplinary power. As this Chamber indicated through vote No. 2009-004849, all procedures for adopting disciplinary measures, suspension, or separation from office must be resolved in accordance with the established rules of judicial behavior. Thus, consistent with the principle of judicial independence, the entity with disciplinary competence shall be, exclusively, the Judicial Branch itself.

Regarding Article 49 subsections a, b, g, and h (reform of regulations) regarding the Judicial Branch (drafted by Magistrate Picado Brenes) The article under consultation provides as follows:

“ARTICLE 49- Amendments The following regulatory provisions are amended, as described below:

• A)Articles 12 and 48 of Law 2166, Law on Salaries of the Public Administration, of October 9, 1957, are amended. The text is as follows:

Article 12- The seniority bonus (incentivo por anualidad) shall be recognized in the month immediately following the anniversary of the entry or reentry of the public servant who works under the composite salary scheme and in accordance with the following rules:

• a)If the servant is transferred to a position of equal or lower category than the position they are currently occupying, there shall be no interruption in the computation of time for the salary increase.
• b)If the servant is promoted, they shall begin to receive the minimum number of seniority bonuses for the new category; under no circumstances shall already recognized bonuses be revalued.
• c)For public servants, whether permanent (en propiedad) or interim, the time of service rendered in other entities of the public sector shall be counted for purposes of recognizing the seniority bonus.

Article 48- Criteria for performance evaluation Each head of the Public Administration, at the beginning of the year, must assign and distribute all officials among the processes, projects, products, and services of the unit, establishing delivery deadlines and estimated time for their preparation. It shall be the responsibility of each hierarchical superior to monitor this annual work plan; non-compliance shall be considered a serious fault in accordance with the applicable regulations.

For the regular and frequent monitoring of the activities of the work plan, each administration must establish a computer system for this purpose, fed by each official with the daily activities linked to said processes, projects, and products, and the fulfillment of deadlines and times. It shall be the responsibility of each official, including all management level, to update and keep current the information necessary for the evaluation of their performance, in accordance with the processes, projects, products, and services particularly assigned, their delivery deadlines, and estimated times for their preparation, in said computer system that the administration shall make available to them. Non-compliance shall be considered a serious fault in accordance with the applicable regulations.

The seniority bonus shall be granted only through performance evaluation for those public servants who work under the composite salary scheme, who have achieved a minimum rating of "very good" or its numerical equivalent, according to the defined scale, in accordance with the following rules:

• a)Eighty percent (80%) of the annual rating shall be made on the fulfillment of the annual goals defined for each official, in accordance with the provisions of this chapter.
• b)Twenty percent (20%) shall be the responsibility of the head or superior, which shall be evaluated according to good performance in accordance with the competencies necessary for the performance of the position.
• B)Subsection l) is added to Article 13, and Articles 1 and 7 bis of Law 1581, Civil Service Statute, of May 30, 1953, are amended. The texts are as follows:

Article 13- The powers and functions of the Director General of Civil Service are:

[…]

• l)To exhaust the administrative channel for matters submitted to the competence of the General Directorate of Civil Service.

Article 1- This statute and its regulations shall govern the relations between the State and public servants, for the purpose of guaranteeing the efficiency of the Public Administration.

Article 7 bis- The General Directorate of Civil Service is endowed with instrumental legal personality solely for the purposes of managing its own budget and so that it fulfills its objectives in accordance with Law 1581, Civil Service Statute, of May 30, 1953, and other related laws, and administers its assets.

• C)Article 704 of Law 2, Labor Code, of August 27, 1943, is amended. The text is as follows:

(…)

• D)Articles 7, 8, 9, and 10 of Law 8777, Creation of the Administrative Tribunals for the Pension and Retirement Regime of the National Teachers and the Civil Service, of October 7, 2009, are amended. The texts are as follows:

(…)

• E)Articles 7 bis and 35 of Law 1581, Civil Service Statute, of May 30, 1953, are amended. The texts are as follows:

(…)

• F)Subsection 5) of Article 112 of Law 6227, General Law of Public Administration, of May 2, 1978, is amended. The text is as follows:

(…)

• G)Article 85 is added to Law 5155, Judicial Service Statute, of January 10, 1973. The text is as follows:

Article 85.- The competencies defined in this law for the bodies of the Judicial Branch shall be carried out in coordination with the Ministry of National Planning and Economic Policy (Mideplán), regarding the matters referred to in the General Law of Public Employment.

• H)Article 17 is added to Law 2422, Law on Salaries of the Judicial Branch, of August 11, 1959. The text is as follows:

Article 17.- The competencies defined in this law for the bodies of the Judicial Branch shall be carried out in coordination with the Ministry of National Planning and Economic Policy (Mideplán), regarding the matters referred to in the General Law of Public Employment.

• I)Article 11 of Law 6877, Law for the Creation of the National Service of Water, Irrigation, and Drainage (Senara), of July 18, 1983, is amended. The text is as follows:

(…)

• J)Subsection f) of Article 11 of Law 7800, Creation of the Costa Rican Institute of Sport and Recreation and the Legal Regime of Physical Education, Sport, and Recreation, of April 30, 1998, is amended. The text is as follows:

(…)

• K)Subsection k) of Article 42 of Law 9694, Law of the National Statistics System, of June 4, 2019, is amended. The text is as follows:

(…)

• L)Subsection ch) of Article 11 of Law 4716, Law on the Organization and Operation of the Institute for Municipal Development and Advisory (IFAM), of February 9, 1971, is amended. The text is as follows:

(…)

• M)Subsection I) of Article 17 of Law 2726, Constitutive Law of the Costa Rican Institute of Aqueducts and Sewers, of April 14, 1961, is amended. The text is as follows:

(…)

• N)Subsection ñ) of Article 53 of Law 7593, Law of the Regulatory Authority of Public Services (Aresep), of August 9, 1996, is amended. The text is as follows:

(…)

• Ñ)Subsection t) of Article 28 of Law 7558, Organic Law of the Central Bank of Costa Rica, of November 3, 1995, is amended. The text is as follows: (…)

The consultants consider that Article 49 of the consulted draft is unconstitutional.

They specifically argue against subsection a), subsection b), and subsections g) and h). Regarding subsection a), they refer to the new grounds for dismissal with just cause, referring, according to the consultants, to performance ratings below 70% and to not populating the database. On the first ground, this Chamber already ruled in the preceding recital, and regarding the second ground on populating the database, note that it is not clearly substantiated; therefore, this Chamber refrains from issuing a ruling.

Regarding subsection b), the consultation is made because the Judicial Branch would be subjected to the Civil Service Statute (Estatuto de Servicio Civil). In this regard, this Chamber observes that the article in question adds to and amends certain articles of the Civil Service Statute, particularly Article 1, as observed in the following manner:

Thus, then, based on the consulted bill, the Civil Service Statute would govern relations not only of the Executive Branch, but of the entire State in general, including the Judicial Branch. This per se would not be unconstitutional, of course, if it is understood that the subjection of the Judicial Branch is to general principles of public employment and that this does not imply that the special regulations of the Judicial Branch in these matters are being repealed, since on this matter of public employment of officials, this special regulation would prevail over the Civil Service Statute. Furthermore, the General Directorate of Civil Service could not have competence regarding matters pertaining to the Judicial Branch. Under this interpretation, Article 49 subsection b) is not unconstitutional, provided it is interpreted in accordance with what has been indicated.

Now, in the case of subsections g) and h) of Article 49, these are unconstitutional for violating the independence of the Judicial Branch. The foregoing is because, through such subsections, the intention was to make respective additions to the Judicial Service Statute (Estatuto de Servicio Judicial) and the Judicial Branch Salary Law, in order to include the interference of Mideplán in the powers defined in this special regulation, indicating that the bodies of the Judicial Branch must exercise the powers defined in those laws in coordination with said ministry. This is evidently a violation of the constitutional principle of judicial independence, since it would involve a body of the Executive Branch with which the competent authorities of the Judicial Branch would be obligated to coordinate the exercise of their powers regarding the public employment of judicial officials. Thus, the Full Court, the President of the Supreme Court of Justice, the Personnel Council, the Judicial Council, and the Personnel Department would be in mandatory coordination with Mideplán before adopting actions on topics related to public employment contained in the bill, such as: work planning, work organization, employment management, performance management, compensation management, and labor relations management. In matters that are the exclusive competence of the Judicial Branch, such as the internal management of its personnel, any type of mandatory coordination with another State body is exclusionary. While it concerns coordination and not direction, the truth is that, in this matter, which is proper to the internal jurisdiction of judicial independence, not even coordination would be admissible for the exercise of exclusive powers of the Judicial Branch. "Judicial independence manifests on various levels; on the external level, it is translated as the autonomy of the Judicial Branch in economic matters and the irremovability of its personnel, as well as, in the functional sense, the real possibility of making its decisions according to its own criteria and not as a result of pressures from certain groups, institutions, or persons." (judgment no. 2000-005493). Furthermore, what Article 154 of the Constitution indicates must be remembered: "The Judicial Branch is only subject to the Constitution and the law…", there is no submission, not even on the level of coordination, to another body of another branch of the Republic. Note that even beyond the legislator's reach are "the constitutional powers to order, plan, or schedule, for example, the administrative function of personnel management" (judgment no. 2017-009551); with even greater reason, they would be beyond the reach of another branch of the Republic. This is because it even prevents "an indirect regulation of the judicial service through directives or guidelines from other instances" (judgment no. 2018-019511). Consequently, this Tribunal finds that subsections g and h of Article 49 contain a defect of unconstitutionality for damaging the principle of independence of functions guaranteed to the Judicial Branch by Articles 9 and 154 of the Political Constitution.

• 4)Conclusion -On Articles 12 (database), 13.h (family of positions of trust (familia en puestos de confianza)), 15 (recruitment and selection postulates), 19 (mobility or transfers (movilidad o traslados)), and 31 (work methodology), given that the petitioners did not provide sufficient grounds for this Chamber to have clarity on the matter consulted, the consultation is declared unanswerable due to lack of substantiation.

-In the terms indicated and in accordance with the jurisprudence of this Chamber, the following articles of the bill for the "PUBLIC EMPLOYMENT FRAMEWORK LAW" ("LEY MARCO DE EMPLEO PÚBLICO"), being processed in legislative file no. 21,336, are unconstitutional.

Having analyzed all the consulted aspects regarding Article 2 (subsection a), 6 (subsection b), 7 (subsections d, g, and p), 9 (second paragraph of subsection a), 13 (subsection f), 14, 17, 18, 21, and 22, 49 (subsection b, g, and h), of the bill for the Law called "PUBLIC EMPLOYMENT FRAMEWORK LAW," legislative file no. 21,336, this Chamber verifies that such provisions are contrary to Constitutional Law, due to violation of the principle of separation of functions, the principle of judicial independence, the particular employment regime of the Judicial Branch, and the constitutional administrative powers of the Supreme Court of Justice. The economic, personal, functional, organic, and institutional independence of the Judicial Branch itself, and of judges and judicial assistants, is essential in a Constitutional State of Law. In accordance with this principle, each branch is independent of the other; each State body must be able to exercise its function independently of the others (Article 9 of the Constitution). There can be interrelation between them, but never subordination, nor mandatory coordination in matters proper to the exclusive and exclusionary competence of the Judicial Branch. The fact is that a comprehensive reading of the bill leads to the conclusion that the principle of separation of powers is not duly guaranteed, not only due to subjection to Mideplán (Articles 6, 7, and 9, for example), but also due to the imposition of certain matters that are of the exclusive and exclusionary competence of the Judicial Branch (Articles 14, 17, 18, 21, and 22, for example). Furthermore, it is not just a violation of the principles of separation of functions and judicial independence, but of the entire democratic system and the organization of Power that the Constituent Assembly created in our State of Law. "One more guarantee of the independence of the Judicial Branch regarding employment is that the Head of the Personnel Department is linked to the President of the Court, excluding interference from external instances" (vote no. 2018-019511).

Finally, this Chamber observes from the legislative file that the Supreme Court of Justice issued an unfavorable opinion on the bill in the consultation made to it by the Legislative Assembly, when it indicated the following, through official communication no. SP-62-2021 of June 3, 2021:

"As stated, although the new text of the bill ... the latent opposition to including the Judicial Branch in a regulation that implies a clear interference of the Executive Branch in matters that -constitutionally and legally- are proper to this other institution persists. (...) the regulatory basis of the previous text is maintained, and it intends to regulate a public employment regime that does not consider differentiating aspects of the entities and bodies it subjects to its scope of coverage. Thus, the Judicial Branch continues to be part of the bill, with the consequences this implies for its internal structure and functioning, according to the observations made in the previous reports." (underlining does not correspond to the original) (The individual notes of the magistrates on this section, being issued jointly with the Supreme Electoral Tribunal, are included at the end of the following section).

X.- On the consultation regarding violation of the independence of the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones).- 1) Consulted aspects The petitioning deputies consider that the following articles of the bill for the "PUBLIC EMPLOYMENT FRAMEWORK LAW," being processed in legislative file no. 21,336, violate the principle of separation of powers. Specifically, they consult on the following articles, indicated either in the header of the general title or in the rest of the text of the filing brief:

· 2.a (scope of coverage), · 6.b (governing body role (rectoría) of Mideplan), · 7 (powers of Mideplan), · 9.a (Human Resources offices), · 12 (database), · 13 (job families (familias de puestos)), · 14 (recruitment and selection), · 15 (recruitment and selection postulates), · 17 (Senior Management personnel), · 18 (probationary period and appointment period (plazo de prueba y plazo de nombramiento)), · 19 (mobility or transfers), · 21 (single dismissal regime), · 22 (dismissal process), · 31 (work methodology), In the first place, regarding Articles 12 (database), 13.h (family of positions of trust), 15 (recruitment and selection postulates), 19 (mobility or transfers), and 31 (work methodology), given that the petitioners did not provide sufficient grounds for this Chamber to have clarity on the matter consulted, the consultation is declared unanswerable due to lack of substantiation.

As for the rest of the articles, the petitioners consider that Articles 2.a, 6, 7, 9, 13, 14, 17, 18, 21, and 22 of the bill for the "PUBLIC EMPLOYMENT FRAMEWORK LAW," being processed in legislative file no. 21,336, violate the independence of the TSE and therefore, Articles 9 and 99 of the Constitution. They consider them unconstitutional because it obligates the TSE to apply and execute the general provisions, directives, and regulations issued by Mideplán in violation of its independence, allowing an interference of the Executive Branch in a matter forbidden to it by constitutional mandate and in regression of the State of Law. They indicate that Article 9 of the Constitution guarantees the independence of the TSE, placing it at the rank of the other Branches of the State, and not only regarding acts related to suffrage but also regarding the functions established by the Constitution itself and other laws. Thus, the existence of aspects that compromise the legal and constitutional powers of the TSE is noted: Article 13.a.f, which establishes a single public employment regime for the employees and Magistrates of the TSE; the obligation to apply recruitment and selection processes for individuals with the general provisions, directives, and regulations issued by Mideplán (Article 14); subjection to Mideplán in recruitment and selection of senior technical management personnel (personal de alta dirección técnica); an obligation of 6 months of probation and 6 years of appointment (Articles 17 and 18); a single special administrative dismissal procedure. In addition to the inclusion in Article 2.a, the obligation to apply and execute the general provisions, directives, and regulations issued by Mideplán violates the independence of the TSE (Articles 9 and 99) and proposes the subjection and interference of the Executive Branch in a matter forbidden to it by constitutional mandate, coupled with the regression this implies for the State of Law.

Thus, then, we proceed to the examination of the indicated articles. First, a jurisprudential summary on the topic of the independence of the TSE is provided, which will serve as context for the examination of each consulted article.

• 2)Jurisprudential Background on the Constitutional Principle of Separation of Powers regarding the Supreme Electoral Tribunal Regarding the Supreme Electoral Tribunal (TSE), it must be indicated that there is also extensive jurisprudence on the basis, justification, and relevance of its independence. In vote no. 3194-1992, the Chamber resolved:

"In the case of electoral matters, the 1949 Constitution gave special importance to the need to segregate everything related to suffrage, principally from the sphere of the political branches of the State. In this direction, it established a series of principles and adopted eminently formal mechanisms to guarantee the independence of suffrage, above all through the full autonomy of the body called to organize, direct, and oversee it. Originally in Article 99 of the Constitution, and later also in Article 9 -by the addition introduced by Law 5704 of June 5, 1975- the Supreme Electoral Tribunal was not only attributed the organization, direction, and oversight of acts related to suffrage, but was also granted the rank and independence proper to a branch of the State." While in vote no. 00495-1998, it was added that "although (the TSE) is not a Branch of the State in the strict sense, it does fulfill a fundamental function in the Costa Rican State - which is to deal with electoral matters -, and by constitutional norm - transcribed second paragraph of Article 9 - it is conferred the rank and independence of a branch of the State". For its part, in vote no. 2000-06326, this Chamber stated:

"III.- OF THE LEGAL-CONSTITUTIONAL NATURE OF THE SUPREME ELECTORAL TRIBUNAL. On the occasion of the electoral problems that motivated the 1948 revolution, the members of the 1949 National Constituent Assembly took special care over electoral matters, segregating everything relative to suffrage, principally from the sphere of the Branches of the State, especially the Executive and the Legislative Assembly, without setting aside the Judicial Branch. They established a series of basic principles on which the exercise of suffrage is developed:

'The law shall regulate the exercise of suffrage in accordance with the following principles: 1. Autonomy of the electoral function; 2. Obligation of the State to register citizens ex officio in the Civil Registry and to provide them with an identity card to exercise suffrage; 3. Effective guarantees of freedom, order, purity, and impartiality on the part of governmental authorities; 4. Guarantees that the system for casting the suffrage facilitates citizens' exercise of that right; 5. Identification of the elector by means of a card with a photograph or other adequate technical means provided by law for such effect; 6. Guarantees of representation for minorities; 7. Guarantees of political pluralism; 8. Guarantees for the designation of authorities and candidates of political parties, according to democratic principles and without discrimination (Article 95 of the Political Constitution);' and they adopted eminently formal mechanisms to guarantee the independence of suffrage, endowing the body called to organize, direct, and oversee it (the Supreme Electoral Tribunal) with full autonomy, originally in the terms of Article 89 of the Political Constitution, and later in those of Article 9 (added by Law Number 5704, of June 5, 1975), by virtue of which, this Tribunal was delegated not only the competence over electoral matters – as noted previously – but was also granted the rank and independence proper to a branch of the State. From what has been said, it is clear that the Supreme Electoral Tribunal is a constitutional body specialized in electoral matters, which by constitutional provision enjoys the same independence of the Branches of the State in the exercise of its powers; that is, it has full autonomy to organize, direct, and oversee electoral processes and all acts related to suffrage, with the independence and rank proper to a State Branch, which has been previously considered in constitutional jurisprudence in the following terms:

'The Tribunal as a constitutional body specialized in electoral matters, with the rank and independence of the public branches, can be invested, only within its specific sphere, with any of the functions of the State, and in fact it is invested with all three [which it has assigned], to be in charge of "the organization, direction, and oversight of acts related to suffrage, as well as the other functions attributed to it by the Constitution and the laws"' (judgment number 0980-91, at 1:30 p.m. on May 24, 1991).

In this sense, and due to its importance, mention must be made of the interpretive power that constitutional jurisprudence recognized for this constitutional tribunal, obviously in matters within its own competence: electoral matters, in the following terms:

'[...] the powers of Articles 97, second paragraph, and 121, subsection 1) exclude even the Legislative Assembly, and Article 102 finishes reinforcing this with an unmatched breadth, above all by attributing to it such broad powers as "interpreting in an exclusive and obligatory manner the constitutional and legal provisions referring to electoral matters" subsection 3º)' (judgment number 0980-91, supra cited).

By virtue of this special competence, of the prerogatives and powers of the Supreme Electoral Tribunal, this Constitutional Chamber concluded that the sphere of electoral matters is 'a special constitutional sphere, to which the same rules as those applied to the other Public Branches are not suited' (judgment number 3194-92, at 4:00 p.m. on October 27, 1992). By way of example, we must make mandatory reference to the regulatory power that constitutional jurisprudence has recognized for it solely in relation to the matter of its own competence, obviously electoral activity:

(…)

IV.- OF THE SCOPE OF COMPETENCE OF THE SUPREME ELECTORAL TRIBUNAL: ELECTORAL MATTER IN LIGHT OF CONSTITUTIONAL JURISPRUDENCE. On repeated occasions this Chamber has pronounced on the special competence of the Supreme Electoral Tribunal, which is defined by a constitutional provision itself – Articles 9 and 99 of the Political Constitution – as electoral matter; and in this sense, consult judgments numbers 0980-91, 2150-92, 3194-92, 2430-94, 2456-96, 0034-98, 0466-98, 0563-98, and 0969-98. In all these resolutions, it recognizes the exclusive competence it has in electoral matters; it is only when it denies its competence that the Constitutional Chamber considered it could hear that matter, provided it is alleged that the challenged acts harm fundamental rights:

(…) In this manner, it has indicated that electoral activity includes those of organizing, directing, and overseeing all acts related to the process of national elections (judgment number 0653-98), which is carried out in activities such as the following, that is, without this implying a limited list, by way of example: the regulation of rules governing the political debt, as well as the control the Supreme Electoral Tribunal has over this matter (0980-91, 3666-93, 0515-94, 0428-98); the control of statutory regulations relating to the right to elect and be elected in the internal processes of political parties (judgment number 3294-92); the integration of the Municipal Council, the declaration of the election, and subsequent substitutions for the loss of credentials of municipal council members (regidores) and district representatives (síndicos) (judgment number 2430-94); the processing of the electoral contentious process to hear the cancellation or annulment of credentials of municipal council members (judgment number 0034-98); the closure of commercial establishments where liquor is sold and which are located in the center of the city of San José as a consequence of the public rallies held by political parties (judgment number 0466-98); and the determination by the Supreme Electoral Tribunal of where the solemn celebration on election day will be held for the initial count of the national election results (0563-98)." Now, regarding specifically the public employment regime (régimen de empleo público) applicable to the TSE, the truth is that there are no specific precedents on this matter. However, it is fitting to refer again to vote no. 550-1991, insofar as it provided:

"(...) in the case of the branches, their own constitutional independence, guaranteed in general by Article 9 of the Constitution and, in those of the Judicial Branch and the Supreme Electoral Tribunal, by Articles 99 et seq., 152 et seq., and 177 thereof, as well as their own organic rules, impose on their leaders the power and responsibility to set the remuneration, representation expenses, and other benefits inherent to the positions, for their own members and subordinates, naturally within their budgetary availabilities, independently, of course, of whether their amounts may or may not coincide with those of the deputies."

It is also fitting to cite vote no. 2005-14298 (which heard an action against the appointment term of the Chief Officer of the Civil Registry). In said vote, the Chamber resolved the action with express support in Articles 191 and 192 of the Political Constitution. It reiterated that although the Constitution refers to a civil service statute, the truth is that:

"(...) The derived legislator, however, opted to regulate the service not in a general manner, but by sectors, thus enacting the Civil Service Statute (which applies to employees of the Executive Branch) and subsequently, other statutes to regulate the provision of services in the remaining branches of the State and in some decentralized institutions. Nevertheless, despite the fact that the legislator did not embrace the constituent assembly's idea and only partially regulated the public service, the truth is that the basic principles of the regime (selection by suitability (idoneidad), stability in employment), cover all officials in the service of the State, both in the central administration and in decentralized entities. (...) It bears repeating that the intention of the original constituent was the existence of a single law, a Statute, to regulate all public employment. However, the important thing is that the detailed regulation of the coverage of the special regime was delegated to the derived legislator, which it could do, as it did, in separate laws, without detriment to the constitutional mandate."

It was also indicated:

"(...) In a Tribunal such as this, where electoral matters are its essence, the constitutional principles of the public employment regime of stability and proven suitability must be safeguarded with greater zeal, because the intention of the constituent assembly in creating this Branch was to completely sever the possibility that electoral officials become involved in any political activity, in order to guarantee an independent Electoral Body."

From all the foregoing, it is concluded that the Supreme Electoral Tribunal, as the constitutional body responsible for organizing, directing, and overseeing the independence of suffrage, was granted the rank and independence proper to a branch of the State. Therefore, it enjoys full independence to fulfill its constitutional duties. Due to the electoral problems that motivated the 1948 revolution, the members of the 1949 National Constituent Assembly took special care over electoral matters, segregating everything relative to suffrage, principally from the sphere of the Branches of the State, shielding the electoral function through various principles and guarantees, such as, in the first place, the autonomy of the electoral function. From what has been said, it is clear that the Supreme Electoral Tribunal is a constitutional body specialized in electoral matters, which by constitutional provision enjoys the same independence of the Branches of the State in the exercise of its powers; that is, it has full autonomy to organize, direct, and oversee electoral processes and all acts related to suffrage, with the independence and rank proper to a State Branch. Thus, this Constitutional Chamber concluded that "the sphere of electoral matters is a special constitutional sphere, to which the same rules as those applied to the other Public Branches are not suited" (judgment no. 2000-06326). While it is true that the constitutional principles of the public employment regime (suitability and stability) also apply to it, it is understood that the TSE has its own organic or special rules that grant exclusive competence to its leaders to set the remuneration, representation expenses, and other benefits inherent to the positions, for their own members and subordinates.

Finally, as indicated supra regarding the Judicial Branch, the foregoing does not prevent the Legislator from issuing a General Law of Public Employment that includes the TSE, provided the principles of separation of powers or functions and electoral independence are respected.

• 3)On the examination of the consulted Articles Regarding Article 2.a (scope of coverage) with respect to the Supreme Electoral Tribunal (Drafted by Magistrate Castillo Víquez) The consulted provision states the following:

"ARTICLE 2- Scope of coverage This law is applicable to the public servants of the following entities and bodies under the principle of the State as single employer:

• b)The Branches of the Republic (Executive, Legislative, and Judicial), their auxiliary and attached bodies, and the Supreme Electoral Tribunal (TSE), without prejudice to the principle of separation of Branches established in the Political Constitution. (…)" As stated for the case of the Judicial Branch, faced with such a panorama, and returning to what was set forth supra, in the sense that it is plausible to subject all branches of the State to a single public employment statute, whereby the subjection of the Judicial Branch and the Supreme Electoral Tribunal to this law is not unconstitutional, it is unconstitutional on account of not excluding those officials who exercise jurisdictional functions -judges- or para-jurisdictional ones -prosecutors, public defenders, and professionals and specialized personnel of the Judicial Investigation Organization, etc.- and the officials at the managerial or senior political management level (alta dirección política), as the bill calls them, as well as the officials of the Supreme Electoral Tribunal who exercise an electoral function -clerks (letrados), department directors, professionals, etc.-, and those who hold a senior political management position, as well as the administrative, professional, and technical personnel, which each head of the respective branch defines exclusively and exclusionarily, since, in these cases, it is not possible to subject them to directives, provisions, circulars, or manuals issued by Mideplán. The foregoing means that the Judicial Branch and the Supreme Electoral Tribunal would be subject to those powers that the law grants to Mideplán when it concerns the rest of the officials - those that each head of the Judicial Branch and the Supreme Electoral Tribunal defines exclusively and exclusionarily -, who form part of the administrative staff, auxiliary staff, or support personnel.

Regarding Article 6 (governing body role of Mideplán), with respect to the Supreme Electoral Tribunal (Drafted by Magistrate Castillo Víquez) Consultation is made on the following provision:

"ARTICLE 6- Creation of the General Public Employment System The governing body role (rectoría) of the General Public Employment System shall be in charge of the Ministry of National Planning and Economic Policy (Mideplán). Said system shall be composed of the following: a) The Ministry of National Planning and Economic Policy (Mideplán). b) The offices, departments, areas, directorates, units, or homologous designations of Human Resources Management of the entities and bodies under the scope of application of this law. (…)" In the same sense as was indicated for the Judicial Branch, in relation to Article 6, subsection b, the consulted bill is unconstitutional, since it subjects the Judicial Branch and the Supreme Electoral Tribunal to the directive power of the Executive Branch, which is contrary to the principles of judicial and electoral independence.

Hence, the offices, departments, areas, directorates, and Human Resources Management units of these branches cannot be subject to the aforementioned authority, except with regard to those who provide basic, auxiliary administrative services that do not affect the exclusive and exclusionary powers or the administrative functions necessary for the fulfillment thereof, as defined exclusively by the heads of the Judicial Branch and the Supreme Electoral Tribunal.

Regarding Article 7 (powers of Mideplán), with respect to the Supreme Electoral Tribunal (Drafted by Justice Castillo Víquez) The following provision is under review:

“ARTICLE 7- Powers of Mideplán The powers of the Ministry of National Planning and Economic Policy (Mideplan) are as follows:

• a)Establish, direct, and coordinate the issuance of public policies, programs, and national plans for public employment, in accordance with Law 5525, National Planning Law, of May 2, 1974.
• b)Establish mechanisms for discussion, participation, and agreement with municipal corporations through the Union of Local Governments and state university higher education institutions, in matters of public employment.
• c)Issue provisions of general scope, directives, and regulations aimed at the standardization, simplification, and coherence of public employment, as prescribed in Law 6227, General Public Administration Law, of May 2, 1978, and Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.
• d)Advise the entities and bodies included within the scope of coverage of this law for the correct implementation of public policies, provisions of general scope, directives, and regulations issued within the framework of political stewardship in public employment and Law 6227, General Public Administration Law, of May 2, 1978, and Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.
• e)Administer and keep updated the integrated public employment platform.
• f)Publish the public employment vacancy announcements through the virtual platform to be populated by the entities and bodies included within the scope of coverage of this law.
• g)Issue the general guidelines and principles for performance evaluation.
• h)Administer and implement research, innovation, and public employment proposal formulation actions.
• i)Direct and coordinate the execution of inherent powers in matters of public employment with the Ministry of Finance, the Ministry of Labor and Social Security, the Budgetary Authority, and the General Directorate of Civil Service, among other technical agencies in the field of public employment, concerning matters of public employment.
• j)Collect, analyze, and disseminate information on public employment from the entities and bodies for their improvement and modernization. For this purpose, it shall establish a system of indicators through the establishment of coordination criteria to standardize data collection and dissemination.
• k)Prepare a coherent and comprehensive strategy for learning and development throughout the public service, establishing how long-term capacity will be developed for higher standards of management and professional competence, and providing guidance to public institutions on how to plan and implement activities within the strategy.
• l)Coordinate with the Office of the Public Ethics Prosecutor to issue provisions of general scope, directives, and regulations for the instruction of public servants on the duties, responsibilities, and functions of the position, as well as the ethical duties governing public service, as may be appropriate under Law 6227, General Public Administration Law, of May 2, 1978, and Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.
• m)Establish a single and unified compensation system for the public service in accordance with this law and specific to the salary and benefits of all public officials.
• n)Conduct diagnostics on human resources matters of the included entities and bodies to achieve an adequate resizing of existing payrolls and the development of general criteria delimiting the sectors whose activity, due to its institutional strategic value and its link to substantive activity, should be reserved to be performed exclusively by public servants. Furthermore, analyze those that serve as guidance to delimit the provision of those that could be outsourced and the conditions for their provision.
• o)Forecast global trends regarding the future of public employment for the purpose of informing its planning.
• p)Analyze the efficiency and effectiveness of the evaluation mechanisms to determine whether they fulfill their purpose.
• q)Evaluate the general public employment system in terms of efficiency, effectiveness, economy, simplicity, and quality.” In the same sense as the Judicial Branch, Article 7, subsections d), g), and p) are unconstitutional, as they affect the independence of the Judicial Branch and the Supreme Electoral Tribunal, in that they subject them to the directive and regulatory authority of Mideplán, as well as to verification of whether or not they fulfill the purpose of performance evaluation, and they are not excluded from the directive authority. It must be emphasized that the principle of separation of branches or functions is incompatible with the directive and regulatory authority exercised by the Executive Branch, since it cannot order its activity, establishing goals and objectives. With respect to performance evaluation, this is reserved to each branch of the State, since this matter is inherent to the exercise of their constitutional powers. This means that, regarding this point, all the personnel of each branch would be subject to the internal provisions that each one of these issues on the matter.

Regarding Article 9.a.- Human Resources Offices with respect to the Supreme Electoral Tribunal (Drafted by Justice Picado Brenes) The provision under review establishes the following:

“ARTICLE 9- Functions of the active administrations a) The offices, departments, areas, directorates, units, or homologous denominations for human resources management, of the institutions included in Article 2 of this law, shall continue performing their functions in accordance with the pertinent regulatory provisions in each public agency.

Likewise, they shall apply and execute the provisions of general scope, the directives, and the regulations, relating to planning, work organization, employment management, performance management, compensation management, and labor relations management, that the Ministry of National Planning and Economic Policy (Mideplán) sends to the respective institution, pursuant to Law 6227, General Public Administration Law, of May 2, 1978, and Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.

• b)It is the responsibility of the offices, departments, areas, directorates, units, or homologous denominations for human resources management to develop and apply knowledge, competency, and psychometric tests for the purposes of personnel recruitment and selection processes, to conduct internal and external competitive examinations based on qualifications and merits, which must always comply at least with the standards established by the General Directorate of Civil Service for each post, according to its scope of competence, and the guidelines issued pursuant to Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.

Furthermore, incorporate said competitive examinations into the public employment vacancy announcement system of the Public Administration and verify that public servants receive the proper induction regarding the duties, responsibilities, and functions of the post, as well as the general and specific ethical duties of the public service for the institution and post.

• c)The institutional human resources management offices of ministries and institutions or bodies attached under the scope of application of the Civil Service Statute are technical agencies of the General Directorate of Civil Service which, for all purposes, shall coordinate the development of recruitment and personnel selection tests with such offices and perform their advisory, training, and technical support functions.” As can be observed, Article 9 under review establishes certain functions for all offices, departments, areas, directorates, or human resources units of all institutions included in the bill, including Human Resources of the TSE. Thus, concerning the consultation specifically made regarding the TSE, the second paragraph of subsection a) imposes on Human Resources the obligation to apply and execute the provisions of general scope, the directives, and the regulations relating to planning, work organization, employment management, performance management, compensation management, and labor relations management, that Mideplán sends to it. This would imply that a body of the Executive Branch, such as Mideplán, imposes on the TSE the application and execution of its provisions, directives, and regulations in matters that are the exclusive domain of that constitutional body, such as planning, work organization, employment management, performance management, compensation or salary management, and labor relations management. Such an obligation for the Human Resources of the TSE clearly constitutes a violation of the principle of separation of branches, according to the scope that constitutional jurisprudence has given to this basic principle of our democracy. It should be recalled that the principle of division of powers, or as it is more recently known, the principle of separation of functions, is enshrined in Article 9 of the Political Constitution and stands as “one of the fundamental pillars of the Democratic State, as it establishes a system of checks and balances that guarantees respect for constitutional values, principles, and norms for the direct benefit of the country’s inhabitants.” (ruling no. 2006-013708), and that the TSE has the rank and independence proper to a branch of the Republic (ruling no. 3194-1992). This implies that each Branch of the State can exercise its function independently of the others (ruling no. 6829-1993). Thus, the TSE, by virtue of its rank as a branch of the State, has its own organizational and directive powers (ruling no. 2000-06326); furthermore, it has “its own organic norms, which impose on its heads the attribution and responsibility of setting the remuneration, representation expenses, and other facilities inherent to the posts, for its own members and subordinates…” (ruling no. 550-1991). This is because, “…the Public Employment Regime makes it possible to conclude that the competent state body in this matter is each branch of the Republic, given that it is these—Executive, Legislative, Judicial, and Supreme Electoral Tribunal—that are most capable of determining their needs and understanding their particular conditions.” (ruling no. 03575-1996). For all the foregoing reasons, it is considered that the first paragraph of Article 9 under review violates the principle of separation of branches, in this case, specifically of the TSE.

Regarding subsection a) of Article 13, Job Family with respect to the Supreme Electoral Tribunal (Drafted by Justice Picado Brenes) We proceed to examine subsection a) of Article 13 of the bill, regarding its application to the TSE, since it was expressly consulted on by the deputies. It should be recalled that this Chamber, in matters of optional consultations on constitutionality, proceeds to rule only on the topics consulted.

As can be observed, Article 13 of the bill establishes a single general public employment regime, consisting of eight job families. Subsection a) includes “those who work in the institutions indicated in Article 2 of this law, who are not included in the remaining job families.” In this case, concerning the TSE, the magistrates are included as one job family (according to subsection f), and all the rest of the TSE’s personnel within this first job family (subsection a) or within the family of confidence posts (subsection h). It should be recalled that subsection h) is not being reviewed in this consultation, and therefore, no specific ruling is issued on this particular provision. However, since only the magistrates have been set apart as a separate family, the remaining personnel who are not confidence employees, corresponding to administrative support, professional, and technical posts, would fall within the same family as the rest of the personnel included under the Civil Service Statute. This is clearly unconstitutional, in view of the following reasons: Firstly, the TSE’s personnel are being divided despite the fact that all contribute to the fulfillment of the electoral function. Only the magistrates would be in the group indicated in subsection f), but all the remaining personnel, who also contribute to the exercise of this function so important for Costa Rican democracy, would be integrated into another job family group. Secondly, all TSE personnel who contribute to the electoral function, directly or through support, need to have complete independence of judgment in their actions. Including a significant part of these personnel together with others who belong to the other branches of the Republic and other institutions is a situation that jeopardizes that independence of judgment. This is especially true if one takes into account that, for this job family group, it would be Mideplán (a body of the Executive Branch) that would issue the guidelines for the recruitment, selection, evaluation, compensation process, etc. That is to say, it would concern almost the entirety of the TSE’s personnel being completely subject to Mideplán’s directives, which is a violation of the independence of Branches, in the terms indicated supra. Clearly, a provision of such a nature is contrary to the Law of the Constitution. The TSE, as a body with the rank of a Branch of the State, must enjoy full independence in the exercise of its functions, which implies independence in the management of its personnel. In this case, with much greater care than the rest of the Civil Service personnel, since “the intention of the constitutional framers in creating this Branch was to completely eliminate the possibility that electoral officials might interfere in any political activity, in order to guarantee an independent Electoral Body.” (ruling no. 2005-14298). This would not be possible if all the TSE’s personnel were included within the same job family group as the rest of the Civil Service personnel. It should be noted that such TSE personnel are assigned functions as important for electoral activity as: organizing, directing, and overseeing all acts related to the national election process; regulating the norms governing political debt, as well as control over this matter; control over statutory regulations relating to the right to elect and be elected in the internal processes of political parties; the integration of the Municipal Council; the declaration of the election and subsequent substitutions for loss of credentials of municipal councilors and district trustees; processing the electoral contentious procedure to hear the cancellation or annulment of credentials of municipal councilors; the closure of commercial businesses where liquor is sold and that are located in the center of San José as a consequence of public rallies held by political parties; determining where the solemn celebration will be held on election day for the initial count of the results of national elections; among many others. All of this requires the guarantee of independence in the management of this personnel, who cannot be joined to the same job family as the rest of the public servants of the Civil Service. It must be considered that, upon becoming part of the civil service, the personnel of the TSE would be subject to the same rules applied to the personnel of the Executive Branch that make up the civil service, including transfers or mobility (Art. 12), among others. This aggravates the situation and undermines the maxim of maintaining the electoral function as an independent function, free from interference by the other Branches. Thus, it is confirmed that Article 13, subsection a) is unconstitutional with respect to the Supreme Electoral Tribunal, since almost all the personnel of that body would be transferred to the Civil Service, with the exception of its magistrates and employees serving in confidence posts. Therefore, this Chamber considers that Article 13, subsection a) is unconstitutional with respect to the TSE—since it was the only body consulted on regarding this subsection—because almost all the personnel of that body would be transferred to the Civil Service.

LBH10/22 ... See more Content of Interest:

Content Type: Majority Opinion Branch of Law: 3. CONSTITUTIONALITY CONTROL MATTERS Topic: LABOR Subtopics:

NOT APPLICABLE.

017098-21. LABOR. OPTIONAL LEGISLATIVE CONSULTATION ON CONSTITUTIONALITY, REGARDING THE BILL CALLED “PUBLIC EMPLOYMENT FRAMEWORK LAW.” LEGISLATIVE FILE No. 21.336.

"... Regarding subsection f) of Article 13 (job families), with respect to the Supreme Electoral Tribunal (Drafted by Justice Castillo Víquez) The following provision is under review:

“ARTICLE 13- General public employment regime There shall be a single general public employment regime, which in turn shall be composed of the following eight job families that shall apply in the bodies and entities of the Public Administration, according to the functions their personnel perform:

• a)Public servants under the scope of application of Title I and Title IV of the Civil Service Statute, as well as those working in the institutions indicated in Article 2 of this law who are not included in the remaining job families.
• b)Public servants performing functions in health sciences.
• c)Public servants performing police functions.
• d)Teaching personnel covered under the Civil Service Statute, Title II and Title IV.
• e)Teaching and academic personnel of technical and higher education.
• f)Persons who administer justice and the magistrates of the Supreme Electoral Tribunal (TSE).
• g)Public servants performing functions in the foreign service.
• h)Public servants serving in confidence posts.

The creation of public employment job families is a matter reserved to law and must be justified by technical and legal criteria consistent with efficient and effective public management.

In all the categories described above, the senior public administration, through the occupational health offices or departments, must have in each public entity, as established in Article 300 of the Labor Code and its regulations, the diagnosis of its working conditions, the occupational health program, and when there exist working conditions adverse to their health, the corresponding safety protocols must be created for the safeguarding of their lives, which shall be validated internally within the entity and with the respective endorsement of the Occupational Health Council, for which the necessary human resources shall be provided. Said body shall depend administratively directly on the head of the entity.

In the same sense as indicated for the Judicial Branch, regarding subsection f) of Article 13, it is unconstitutional because it does not exclude officials performing para-jurisdictional functions —prosecutors, public defenders, and professionals and specialized personnel of the Judicial Investigation Agency, etc.— and officials at the managerial or high political direction level, just as it does not exclude the officials of the Supreme Electoral Tribunal who exercise electoral functions —clerks, Department Directors, professionals, etc.—, and those holding high political direction posts. Furthermore, it does not exclude all administrative support, professional, and technical personnel that the highest bodies of the aforementioned branches of the State define, exclusively and exclusionarily, as indispensable or inherent to the exercise of their constitutional powers. This is especially true given that, in accordance with that same article, subsection a), all those officials would be included in a category of the Civil Service Statute, which affects the independence of both the Judicial Branch and the Supreme Electoral Tribunal, based on the fact that judicial and electoral governance is exercised by the Supreme Court of Justice and the Supreme Electoral Tribunal exclusively and exclusionarily with respect to their constitutional powers. Finally, it must be kept in mind that the construction of the family, as explained supra, corresponds exclusively and exclusionarily to each branch of the State.

Regarding Article 14.- Recruitment and selection with respect to the Supreme Electoral Tribunal (Drafted by Justice Picado Brenes) In the same sense as with respect to the Judicial Branch, the petitioners argue that the principle of independence and the autonomy of the Supreme Electoral Tribunal is harmed by seeking to also subject it to the provisions issued by a body of the Executive Branch, regarding the recruitment and selection of its personnel. The Article 14 in question provides as follows:

“ARTICLE 14- Recruitment and selection The recruitment and selection of newly entering public servants shall be carried out based on their proven suitability, for which the Ministry of National Planning and Economic Policy (Mideplán) shall issue, in strict adherence to Law 6227, General Public Administration Law, of May 2, 1978, the provisions of general scope, the directives, and the regulations, according to the respective job family.

In the recruitment and selection processes, a candidate may not be chosen who finds themselves in any of the following situations:

• a)Being linked by consanguinity or affinity kinship in a direct or collateral line, up to the third degree inclusive, with the immediate supervisor or with the persons immediately superior to said supervisor in the respective agency.
• b)Being listed in the register of ineligible persons on the integrated public employment platform.” In the same sense as was consulted regarding the Judicial Branch, the petitioners argue that the principle of independence and the autonomy of the TSE is harmed by seeking to also subject it to the provisions issued by a body of the Executive Branch, regarding the recruitment and selection of its personnel. As has already been duly established, pursuant to the provisions of Articles 2 and 13 of the same bill, and according to the provisions of this Article 14, the Supreme Electoral Tribunal would also be subject to the provisions of general scope, the directives, and the regulations issued by Mideplán in relation to the recruitment and selection of newly entering personnel, which is unconstitutional. Article 9 of the Constitution clearly states that the TSE was created by the constitutional framers with the rank and independence of the Branches of the State, to which was assigned, exclusively and independently, the organization, direction, and oversight of acts related to suffrage, as well as the other functions attributed to it by the Constitution and the laws, which has been fully recognized in the jurisprudence of this Tribunal (see rulings no. 1992-3194, 1998-495, 2000-6326, and 2012-9139, among others). In this sense, any external intrusion by another branch into the self-governing aspects of the Supreme Electoral Tribunal that harms such independence is equally invalid. The constitutional framers conferred upon this body a degree of autonomy such as to ensure the proper exercise of its electoral function and those other essential administrative functions that provide support and impartiality to its main function. Under this understanding, it is not possible to allow a body of the Executive Branch, in this case Mideplán, to impose on the Supreme Electoral Tribunal provisions relating to the recruitment and selection processes of its personnel, a matter that, as has been indicated, is inherent to the degree of autonomy and independence that these constitutional bodies enjoy. As in other cases within this bill, even though Article 2 states that the scope of coverage is “without prejudice to the principle of separation of Branches established in the Political Constitution,” Article 14 would apply to the Supreme Electoral Tribunal. Consequently, this provision contains a vice of unconstitutionality insofar as it is applicable to the Supreme Electoral Tribunal.

Regarding Article 17.- High Direction Personnel with respect to the Supreme Electoral Tribunal (drafted by Justice Picado Brenes) The provision under review establishes the following:

“ARTICLE 17- Senior public management personnel The Ministry of National Planning and Economic Policy (Mideplán) shall issue the provisions of general scope, the directives, and the regulations, regarding senior public management personnel, that are consistent with Law 6227, General Public Administration Law, of May 2, 1978, to endow the Public Administration with profiles of integrity and proven capacity for management, innovation, and leadership, to seek the improvement of the provision of public goods and services. (…)” The petitioners indicate the harm to the principle of separation of functions and to the independence of the TSE, because this provision states that, in the case of high direction posts, it will be Mideplán that issues the provisions of general scope, directives, and regulations in this regard. In the same sense that this Chamber has been resolving these issues, the interference by this Ministry, which is a body of the Executive Branch, in issuing provisions of general scope, directives, and regulations to the TSE regarding high direction posts, is a violation of the principle of separation of branches. It should be noted that these are strategic posts of great importance for its proper organization, such as could be the Executive Directorate, the General Directorate of the Civil Registry, the General Directorate of the Electoral Registry and Financing of Political Parties, among others. In light of this and the impartiality that must characterize this constitutional body, it is the TSE itself that is responsible for assessing the needs of the service it provides and determining the conditions under which those posts must be filled, to fulfill the constitutional purposes assigned to it. These are posts of great relevance, which must be particularly protected from interference by other Branches of the Republic and which require the stability of personnel necessary for an adequate and impartial performance of the duties, which is incompatible with subordination to the provisions issued by Mideplán in this regard, as the provision in question dictates. The same TSE being competent in this respect, as this Chamber has previously indicated: “… be it the Public Employment Regime, it is possible to conclude that the competent state body in this matter is each branch of the Republic, given that it is these—Executive, Legislative, Judicial, and Supreme Electoral Tribunal—that are most capable of determining their needs and understanding their particular conditions.” (ruling no. 03575-1996). Therefore, it is considered that there exists a vice of unconstitutionality in Article 17 under review, in the terms set forth.

Regarding Article 18.- Probationary period and appointment term for High Direction personnel with respect to the Supreme Electoral Tribunal (drafted by Justice Picado Brenes) In the petitioners' view, Article 18 under review is unconstitutional because it affects a matter that falls under the competence of the Supreme Electoral Tribunal, by establishing that, in the case of senior technical management posts, the appointment shall be for 6 years with a probationary period of 6 months, annually renewable, subject to performance evaluation.

The consulted Article 18 provides as follows:

“ARTICLE 18- Appointment and probationary period of senior public management Any public servant who is appointed to a senior public management position shall be on probation for a period of six months, and their appointment shall be made for a maximum of six years, with the possibility of an annual extension, which shall be subject to the results of the performance evaluation. (…)” Regarding this matter, what has already been indicated in relation to the Judicial Branch applies, in the sense that the regulation of aspects related to the appointment and selection of personnel, as also occurs with senior technical management positions, the probationary period, the term or conditions for extending appointments, are regulations specific and pertinent to the organizational and administrative autonomy of the TSE. It is understood that the senior technical management positions, defined by the TSE itself, are strategic positions of great importance for its proper organization, such as could be the Executive Directorate, the General Directorate of the Civil Registry, the General Directorate of the Electoral Registry and Financing of Political Parties, among others. In light of this and the impartiality that this constitutional body must possess, it is for it to assess the needs of the service it provides and determine the conditions under which those positions must be held, in order to fulfill the constitutional purposes assigned to it, respecting the recognized independence, provided that it adheres to the principle of suitability. In its case, for example, the appropriateness of the appointment period for those positions or the conditions of extension could be subject or not to electoral periods, or address a condition of greater stability in the position such as that guaranteed in constitutional article 192. All in accordance with its internal regulations, and not with generic regulations such as those intended in this bill. The definition of such conditions is the exclusive competence of this specialized constitutional body. Therefore, in the terms in which the consulted Article 18 is drafted, it contains a defect of unconstitutionality, for violating the principle of independence of the TSE, which is exclusively responsible for defining the conditions under which its senior management positions must be performed.

Regarding Article 21 (single dismissal regime) and Article 22 (dismissal process) with respect to the Supreme Electoral Tribunal (drafted by Magistrate Picado Brenes) The consulted articles establish the following:

“ARTICLE 21- Dismissal Procedure It shall be grounds for immediate dismissal, applicable to any public servant, to obtain two consecutive performance evaluations below a score of seventy percent (70%), which are final, once the procedure for challenging the score has been exhausted and provided that the responsibility of the public servant for said deficient evaluation has been demonstrated. Said score must be duly justified by the immediate supervisor who assigns it and by the hierarchical authority that confirms it, in the event it has been appealed.

The included entities and bodies must apply remedial plans agreed upon with the public servant, and with the advice of human resources, that allow them to determine the causes for which public servants obtain a score below seventy percent (70%) and apply actions to improve their performance. If, despite the application of the remedial plan, the public servant fails to improve their performance and consecutively obtains another score below seventy percent (70%), the grounds for immediate dismissal shall be established.

The included entities and bodies must apply remedial plans that allow them to determine the causes for which public servants obtain a score below seventy percent (70%) and apply actions to improve their performance. If, despite the application of the remedial plan, the public servant fails to improve their performance and consecutively obtains another score below seventy percent (70%), the grounds for immediate dismissal shall be established.

Any justified dismissal shall be understood without liability for the Public Administration and shall cause the public servant to lose all the rights that this law and the applicable regulations in each job family grants them, except the proportional parts of the labor entitlements that correspond and those acquired under the current pension regimes, provided that it is carried out in observance of the following rules:

• a)In all units under the scope of application of this law, a single special administrative dismissal procedure shall be applied, which guarantees the satisfaction of due process and its principles, which must be concluded by a final act within a period of two months, from its initiation. The preliminary investigation, in cases where it is required, shall not initiate the procedure indicated in the preceding paragraph; however, it must begin, under penalty of statute of limitations, no later than within a period of one month from when the head of the entity becomes aware, either ex officio or by complaint, of the possible commission of a fault by one of their servants. The same one-month statute of limitations period shall apply if, once the aforementioned preliminary investigation has begun, it remains halted due to the fault of the Administration.

For the purposes of the two-month period indicated in the first paragraph of this subsection, the ordinary dismissal procedure shall begin from when the institutional head makes the decision to initiate said procedure with the appointment of the directing body of the process.

• b)Upon receipt, by the institutional head, of a complaint or report or upon being informed of an alleged fault that, in their judgment, warrants the initiation of a dismissal procedure, they shall appoint a directing body of the process, which shall formulate the charges in writing and give notice to the public servant for a term of fifteen days, to present all the evidence offered in an oral and private hearing, which shall be notified personally through the official's institutional email, certified mail, or by means of a single publication in the official gazette La Gaceta, when it is demonstrated that there is no way to locate the alleged offender. Within the indicated period, the public servant must submit, in writing, their defense and may offer all the evidence they deem appropriate to support their defense, be it documentary, testimonial, or of any other nature in support thereof, as well as the exceptions or motions they deem appropriate.
• c)If, after the period established in the preceding subsection has expired, the servant has not filed an opposition or has expressly expressed their agreement with the charges attributed to them, the institutional head shall issue the dismissal resolution without further procedure, unless it is proven that they were not notified by the directing body of the process or that they were prevented for just cause from opposing.
• d)If the charge or charges made against the employee or public servant imply criminal liability or when necessary for the proper success of the administrative disciplinary dismissal procedure or to safeguard the decorum of the Public Administration, the institutional head may order, in a reasoned resolution, the provisional suspension of the public servant in the exercise of their position. If criminal proceedings are initiated against the public servant, said suspension may be ordered at any time as a consequence of a detention order or pretrial detention, or a final sentence with a custodial penalty.
• e)If the interested party opposes within the legal term, the directing body of the process shall resolve the preliminary exceptions that have been filed and shall convene an oral and private hearing, before the Administration, in which all pertinent evidence and arguments of the parties shall be admitted and received. Likewise, visual inspections and expert examinations may be conducted before the hearing. A second hearing may only be convened when it has been impossible in the first one to have the file ready for its final decision, and the pending proceedings so require.
• f)If the public servant incurs new grounds for dismissal during the instructional period, the charges shall be accumulated in the pending file and shall proceed in accordance with the provisions of this chapter.
• g)Once the evidence has been presented, the preliminary exceptions filed within the ten-day period granted to oppose the notification of charges have been resolved, and the conclusions have been submitted by the parties or the period for doing so has expired, the file shall be considered duly completed and the respective report shall be submitted to the institutional head so that they may issue a final resolution.
• h)The institutional head shall resolve the dismissal of the public servant or declare the lack of merit and order the archiving of the file in this latter case. However, if they consider that the fault exists but that its gravity does not warrant dismissal, they shall order an oral reprimand, a written warning, or a suspension without pay for up to one month, depending on the gravity of the fault.
• i)Against the resolution ordering the oral reprimand, the written warning, or the suspension without pay, for up to one month, the ordinary remedies of revocation with subsidiary appeal may be filed, when the latter is applicable, within a period of five days, counted from the day after said resolution is notified. Both remedies may be filed jointly or separately before the body issuing the resolution, which shall resolve the remedy of revocation.

In the case of public servants who work in an institution covered by Law 1581, Civil Service Statute, of May 30, 1953, the appeal remedy shall be resolved by the Civil Service Tribunal. The head of the entity shall forward on appeal, to the Civil Service Tribunal, the file of the corresponding administrative procedure containing the sanction resolution as well as the resolution of the revocation remedy, with an expression of the legal reasons and facts on which both resolutions are based.

• j)Cases not provided for in this procedure, as long as they do not contradict the text and the procedural principles contained in this procedure, shall be resolved by applying subsidiarily, in the following order: Law 6227, General Law of the Public Administration, the norms of public law, the general principles of public law, the Labor Code, the Civil Procedure Code, the principles and laws of common law, equity, customs, and local practices.

State university higher education institutions shall issue internal regulations governing this matter, in accordance with Articles 84, 85, and 87 and the principle of due process contained in the Political Constitution; in the event that no institutional regulations exist in this regard, Law 6227, General Law of the Public Administration, of May 2, 1978, the norms of public law, the general principles of public law, the Labor Code, and the Civil Procedure Code shall apply subsidiarily.

ARTICLE 22- Appellate Phase Against the dismissal resolution issued by the head of the entity, there shall be a non-extendable period of five business days, counted from the notification of the resolution, to file the remedy of revocation and/or the remedy of appeal in subsidy, when the latter is applicable, which shall be resolved in accordance with the following provisions:

• a)If, after the five-day period indicated above has expired, the resolution is not appealed, it shall become final and shall exhaust the administrative channel.
• b)If only the remedy of revocation was filed, the decision of the head of the entity shall be final, the resolution shall become final, and shall exhaust the administrative channel.
• c)If both ordinary remedies are filed simultaneously, the appeal shall be processed once the revocation has been declared without merit.
• d)In the case of public servants who work in an institution covered by Law 1581, Civil Service Statute, of May 30, 1953, the appeal remedy shall be granted with both effects before the Civil Service Tribunal. The head of the entity shall forward on appeal, to the Civil Service Tribunal, the file of the administrative dismissal procedure, containing the public servant's dismissal resolution, as well as the resolution of the revocation remedy, with an expression of the legal reasons and facts on which both resolutions are based.

If only the appeal remedy was filed, the head of the entity shall forward on appeal, to the Civil Service Tribunal, the file of the administrative dismissal procedure containing the public servant's dismissal resolution, with an expression of the legal reasons and facts on which said resolution is based.

The resolution adopted by the Civil Service Tribunal on appeal shall be final, the resolution shall become final, and shall exhaust the administrative channel. Said ruling is binding on the institutional head.

Once the dismissal is authorized by a final resolution, the institutional head shall have a statute of limitations period of one month, counted from the notification of said resolution, to make it effective. For the execution of the dismissal by the head of the entity, no additional agreement is required; the communication of the cessation of their status as an official to the public servant, based on the final resolution issued, is sufficient.

If the Civil Service Tribunal revokes the sentence issued by the institutional head, it shall issue a new ruling in the same act and resolve whether the restitution of the employee to their position is appropriate, with full enjoyment of their rights and the payment in their favor of lost wages.

In the event that the Civil Service Tribunal considers that the fault exists but that its gravity does not warrant dismissal, it may order an oral reprimand, a written warning, or a suspension without pay for up to one month.

State university higher education institutions shall issue internal regulations governing this matter, in accordance with Articles 84, 85, and 87 and the principle of due process contained in the Political Constitution; in the event that no institutional regulations exist in this regard, Law 6227, General Law of the Public Administration, of May 2, 1978, the norms of public law, the general principles of public law, the Labor Code, and the Civil Procedure Code shall apply subsidiarily.” The deputies consult on Articles 21 and 22 of the bill, referring to the disciplinary and sanctioning regime applicable to the Judicial Branch and the TSE. They indicate that Article 21 establishes a new ground for immediate dismissal when the public servant obtains two consecutive performance evaluations below 70%. They add that the new established grounds relate more to administrative matters, so subjecting a purely administrative breach, which could lead to their dismissal, to criteria unrelated to their function causes a hateful and dangerous interference for our Social State of Law. They consider that the new ground for immediate dismissal consisting of obtaining two consecutive performance scores below 70% contained in Article 21, as well as the two new serious grounds created by the reform of Article 48 of the Public Administration Salary Law, which is reformed in Article 49:A) of the bill, violate the constitutional principles of legality, legal certainty, reasonableness, proportionality, and separation of powers. Then, regarding the single dismissal procedure, they indicate that the Public Employment Framework Law bill establishes that a single special dismissal procedure shall be applicable to all public servants under the scope of application of this legislative proposal (Article 21). Regarding the appellate regime, the Civil Service Tribunal is given the power to resolve all appeal remedies filed against resolutions determining any type of disciplinary sanction (Article 21:i) and Article 22). In relation to the single procedure created in Articles 21, starting from subsection a), and 22 of the bill that is the subject of this consultation, we consider that it also violates independence.

In this regard, this Chamber considers that:

-The creation of a new ground for dismissal, for failing the performance evaluation on two consecutive occasions (according to the first paragraph of Article 21 of the bill), is not unconstitutional insofar as it is applied by the Judicial Branch and the Supreme Electoral Tribunal in accordance with their internal regulations. The establishment of this new ground for justified dismissal does not violate the Law of the Constitution, especially if it is understood that this new ground would be applied according to the internal provisions of the TSE, where Mideplán would have no interference.

-Articles 21 and 22 of the consulted bill are unconstitutional regarding their application to the TSE -and to the Judicial Branch as stated supra-, since the exercise of the disciplinary power over the servants of the TSE is an essential part of electoral independence. Thus, everything established in those norms regarding the procedure and appellate phase could not be applied to the TSE, which already has internal regulations providing for the exercise of the disciplinary power. The adoption of disciplinary measures, suspension, or separation from the position must be resolved in accordance with the internal norms for the safeguarding of the electoral function. Thus, in keeping with the principle of separation of powers, the entity with disciplinary competence shall be, in this case, exclusively the TSE itself.

• 4)Conclusion -Regarding Articles 12 (database), 13.h (family in trust positions), 15 (recruitment and selection principles), 19 (mobility or transfers), and 31 (work methodology), given that no sufficient reasoning is provided to allow this Chamber clarity on the matter consulted, the consultation is declared unevacuable for lack of reasoning.

-In the terms indicated and in accordance with the jurisprudence of this Chamber, the following articles of the "LEY MARCO DE EMPLEO PÚBLICO" bill, processed in legislative file No. 21.336, are unconstitutional.

All the aspects consulted regarding Article 2 (subsection a), 6 (subsection b), 7 (subsections d, g and p), 9 (second paragraph of subsection a), 13 (subsections a and f), 14, 17, 18, 21, and 22, of the bill called "LEY MARCO DE EMPLEO PÚBLICO" legislative file No. 21.336 having been analyzed, this Chamber finds that such norms are contrary to the Law of the Constitution, due to violation of the principle of separation of functions. The independence of powers is essential in a Constitutional State of Law. In accordance with this principle, each power is independent of the other; each State body must be able to exercise its function independently of the others (Article 9 of the Constitution). There may be interrelation among them, but never subordination. Furthermore, it is not only a violation of the principles of separation of functions but of the entire democratic system and the organization of the Powers that the Constituent created in our State of Law. In the specific case of the TSE, it is possible to replicate -as relevant- the same conclusions already issued regarding the Judicial Branch. Although the fundamental principles of the public employment regime also apply to the TSE, the truth is that, to protect its independence, it must continue to have its own regulatory framework, which specifically, particularly, and differentially regulates the employment relations with its servants and the evaluation of their performance. The foregoing, in order to duly guarantee the independence of said body, for the proper exercise of its electoral function and those other essential administrative functions that support its primary function. Hence, it is unconstitutional to admit that the Executive Branch, through Mideplán, has governing competencies regarding the officials of the TSE. Despite the fact that, as in the case of the Judicial Branch, in the aforementioned Article 2, it is stated that the law would apply to the TSE “without prejudice to the principle of separation of Powers established in the Political Constitution” -an imperative imposed, in itself, by the Constitution itself-. The truth is that a comprehensive reading of the bill leads to the conclusion that such a principle is not duly guaranteed, not only due to the subjection to Mideplán, but due to the imposition of certain matters that are of exclusive and excluding competence of the TSE. The norms of the bill do not demonstrate, nor ensure, the existence or the proper operability of an effective cooperation/coordination relationship between the Executive Branch and the TSE and, quite the contrary, what is revealed is that the general objective of the consulted bill is to subject the TSE to the governance of Mideplán and to the technical criteria of the Dirección General de Servicio Civil. In fact, Mideplán is granted broad competencies to issue “general provisions, directives, and regulations,” to develop and regulate the different aspects covered -in generic terms- in the bill. Finally, it is noted from the legislative file that the Supreme Electoral Tribunal issued an unfavorable opinion on the bill in the consultation made by the Legislative Assembly, when it indicated the following, through official letter TSE-1226-2021 of June 3, 2021:

“the existence of a series of aspects that would compromise the competencies legally and constitutionally entrusted to this Tribunal is noted. (...) In our judgment, providing for the inclusion of electoral officials in a sub-regime of public servants in general and thereby the subordination of the Tribunal to a body of the Executive Branch that would exercise governance in matters of public employment and its various aspects, would seriously damage the design conceived by the Constituent and the own independence with the rank of a State Power granted to this Tribunal in constitutional article 9, in order to avoid any influence from the Executive in the conduct of electoral processes. (...) Conclusion. Based on the foregoing, believing that the initiative in the terms currently proposed would breach the principle of separation of powers and would imply an undermining of the independence constitutionally granted to the electoral bodies, this Tribunal objects to the consulted bill, in the terms and with the consequences indicated in constitutional article 97; a constitutional breach that could only be overcome by introducing the changes suggested in this agreement. FIRM AGREEMENT.” 017098-21. TRABAJO. CONSULTA LEGISLATIVA FACULTATIVA DE CONSTITUCIONALIDAD, REFERENTE AL PROYECTO DE LEY DENOMINADO "LEY MARCO DE EMPLEO PÚBLICO". EXPEDIENTE LEGISLATIVO N° 21.336.

CO10/21 RE/CO "... A) PRELIMINARY MATTERS:

I.- As a preliminary matter.- (drafted by Magistrate Castillo Víquez) We who subscribe this advisory opinion place on record that in this case there are justified reasons for not raising any recusal, despite the fact that the consulted bill affects us. In the first place, we are dealing with a law of a general nature that affects all public employees, except those who work in public companies that are under a competition regime, such that it affects us in our capacity as magistrates -proprietary and substitute- as well as those who teach classes at public universities. Secondly, since the regulations contained in the bill affect both proprietary magistrates and substitute magistrates, the latter because they are paid a salary for the substitution starting from one day, it is logical to assume in advance that all of us have grounds for recusal, so that, in application of article 29 of the Organic Law of the Judicial Branch, the Tribunal must be composed of the same proprietary and substitute magistrates who originally comprised it. In other words, it makes no sense for all of us to recuse ourselves, a process that could take three to five months, to arrive at the same starting point; especially since in this case Article 101 of the Law of Constitutional Jurisdiction establishes a period of one month to carry out the facultative constitutionality consultation starting from the receipt of the legislative files or their accumulation, except for causes of interruption. It is also logical to assume that the majority of the proprietary and substitute magistrates have close relatives -children, siblings, brothers/sisters-in-law, etc.-, so they would also have grounds for recusal, which would again mean that the Tribunal would be almost entirely disbanded. On the other hand, in session No. 22-2021 of the Supreme Court of Justice, held on June 2, 2021, Sole Article, substitute magistrates José Paulino Hernández Gutiérrez, Mauricio Chacón Jiménez, and Ronald Salazar Murillo participated in the discussion of the bill being consulted, just as in session No. 27-2021 of June 30, 2021 of said body, Article I, substitute magistrate and substitute magistrates Lucila Monge Pizarro, José Paulino Hernández Gutiérrez, Mauricio Chacón Jiménez, Alejandro Delgado Faith, and Hubert Fernández Argüello participated in the session in which it was agreed to raise a facultative constitutionality consultation to the Constitutional Chamber, so they already advanced an opinion and, consequently, could not and should not compose the Tribunal that will resolve the accumulated constitutionality consultations. Finally, and no less important for it, it must be borne in mind that in the case of substitute magistrates who are practicing lawyers, this fact does not detract from what has been stated, for the elementary reason that they are public officials and, when they exercise the magistracy, the consulted regulations also affect them, since they receive a salary starting from one day of substitution. Therefore, the appropriate course is for all proprietary magistrates to hear this matter; the only recusal presented and accepted being that of proprietary magistrate Fernando Cruz Castro, on the grounds that, due to his position as president of the Supreme Court of Justice, he has already issued an opinion on the consulted bill. Furthermore, it is noted that this same magistrate has presented, on behalf of the entire Supreme Court of Justice, a facultative consultation on its part. Thus, he cannot act simultaneously as a party and as a judge, in this case. To replace Magistrate Cruz Castro, the substitute magistrate Ana María Picado Brenes was appointed.

II.- On the admissibility of the facultative constitutionality consultations raised.- In accordance with the provisions of the Law of Constitutional Jurisdiction, this Constitutional Tribunal may exercise a prior advisory opinion on legislative bills. Among the different types of constitutionality consultation, we find the facultative consultation contemplated in subsection b) of Article 96 of the cited law, raised by deputies of the Legislative Assembly, with the requirements that will be stated. Also, with the facultative consultation contemplated in subsection c) of Article 96 of the cited law, raised by the Supreme Court of Justice, in aspects related to its constitutional competence. In this case, we have three facultative consultations presented by deputies and one consultation presented by the President of the Supreme Court of Justice. The four consultations were accumulated to this file by means of resolutions numbers 2021-15105, 2021-15137, and 2021-15240, of July 2, 2021. We proceed to examine the admissibility of each of these cases separately.

• 1)On the admissibility of the facultative consultations presented by the deputies (Art.96.b of the Law of Constitutional Jurisdiction).- Three facultative legislative consultations presented by deputies of the Legislative Assembly were submitted to the Constitutional Chamber through three different writs. The admissibility of each of these consultations is examined individually.
• a)Facultative consultation file No. 21-011713-0007-CO:

On June 17, 2021, a writ signed by 15 deputies (with 14 signatures remaining valid) presented the first facultative constitutionality consultation, being assigned file number 21-011713-0007-CO.

This consultation, filed under Article 96(b) of the Law of Constitutional Jurisdiction, must meet two requirements for admissibility: it must be filed by no fewer than ten deputies and must be filed after the consulted bill has been approved in the first debate (or before, if the Legislative Assembly has a constitutional or regulatory deadline to vote on it). Given that the first debate took place in regular session No. 17 on June 17, 2021, and this consultation was filed in the afternoon of that day; and given that 14 deputies ultimately signed the consultation, it fully complies with the aforementioned requirements. It should be noted that the initial brief was signed by 15 deputies. Subsequently, before the date of receipt of the legislative file (June 25, a date this Chamber has considered as the deadline for this type of brief, pursuant to rulings No. 2018-019511 and 2014-012887), on June 17 and 18, two deputies requested that their signatures be withdrawn (Deputy Mario Castillo Méndez and Deputy Zoila Rosa Volio Pacheco), a withdrawal deemed valid. Later, a new deputy (Deputy Dragos Dolanescu Valenciano) requested on June 21 (also before the date of receipt of the legislative file) that his signature be added to the consultation, an addition deemed valid. At that moment, there was a total of 14 valid signatures. It must be taken into account that Deputy Aracelly Salas Eduarte's signature appears on this consultation and on the second one; given that it cannot be admitted on both—according to this Chamber's jurisprudence—it is admitted as valid only on this first consultation. The partial withdrawals of signatures made on June 30, submitted by three deputies (Sylvia Patricia Villegas, Walter Muñoz, and Shirley Díaz Mejías), are not admitted, since, regardless of when they are made, partial withdrawals of signatures are inadmissible for this Chamber. When a consultation is signed, it is signed in its entirety; therefore, neither a partial signature nor a partial withdrawal is admitted, neither before nor after receipt of the legislative file.

Therefore, this consultation is deemed admitted with the signature of 14 deputies, a number that meets the aforementioned requirement of being filed by a minimum of 10 deputies.

• b)Optional consultation, file No. 21-011915-0007-CO:

The second optional consultation filed by deputies was received by this Chamber at 08:11 on June 22, 2021. The filing brief bears the signature of 10 deputies (10 signatures remaining valid). Processed under file No. 21-011915-0007-CO and consolidated with this file by ruling No. 2021-015105 at 9:15 on July 2, 2021. Now, the following facts are observed: the consultation was initially filed by 10 deputies. Given that one of the deputies (Aracelly Salas Eduarte) also signed the first consultation, No. 21-011713-0007-CO, this Chamber considers the first signature as valid and, therefore, it is deemed not filed in this second consultation, thus nine signatures remained valid. However, subsequently, one deputy (Melvin Núñez Piña) joined this consultation by written brief filed on June 23, prior to the receipt of the legislative file. Thus, this consultation is deemed filed with the signature of 10 deputies, a number that meets the aforementioned requirement of being filed by a minimum of 10 deputies.

• c)Optional consultation, file No. 21-012118-0007-CO:

The third optional consultation filed by deputies was received by this Chamber at 18:47 on June 23, 2021, with the signature of 10 deputies. Processed under file No. 21-012118-0007-CO and consolidated with this file by ruling No. 2021-015137 at 9:15 on July 2, 2021. Therefore, the minimum number of 10 deputies is met. A number that does not change due to the fact that one deputy (Zoila Rosa Volio) signed the first consultation, since her signature on that first consultation was deemed withdrawn (by brief dated June 18, before receipt of the legislative file) and, therefore, nothing prevented her from being admitted to this one. Furthermore, the withdrawal of another deputy's signature (Paola Valladares), due to the fact that it was filed on July 7, after the submission of the legislative file, means her withdrawal cannot be admitted, and that, therefore, this consultation retains the signature of 10 deputies.

Thus, the first two consultations are considered admissible by unanimous vote, and the third consultation is considered admissible by majority vote. This is because the three filed consultations meet the two aforementioned requirements. All were filed by at least 10 deputies, and all were filed after the bill was approved in the first debate. Furthermore, regarding the order requirement established by this Chamber in these cases, all were filed before the legislative file was submitted to this Chamber, that is, before June 25, 2021. In conclusion, the three preceding consultations are deemed admitted..." "... III.- On the rejection of the briefs filed on June 22, 25, 28, 29 and July 5, 13, 15, and 20, 2021.- Several briefs have been filed in this legislative consultation file: On June 22, 2021, the Secretary General of the Health and Social Security Union (Sindicato de la Salud y la Seguridad Social) made several statements against the consulted bill. On June 25, 2021, several deputies filed what they call "passive coadjuvancy" and expressed their views on the constitutionality of the consulted bill. On June 28, 2021, several representatives of union and community organizations and civil society requested that the consulted bill be declared unconstitutional. On June 29, 2021, several deputies made statements regarding the constitutional conformity of the consulted bill. On July 5, 2021, representatives of the Costa Rican Chamber of Industries Association (Asociación Cámara de Industrias de Costa Rica) raised what they call "coadjuvancy" and requested that the filed consultation be dismissed. Then, on July 13 and 15, 2021, the president of the National Episcopal Conference of Costa Rica (Conferencia Episcopal Nacional de Costa Rica) and the Secretary General of the Rerum Novarum Workers' Confederation (Confederación de Trabajadores Rerum Novarum), respectively, filed what they call passive coadjuvancy and referred to the issue of conscientious objection (objeción de conciencia). Finally, on July 20, 2021, several deputies appeared to argue about the inadmissibility of the Optional Consultation of Constitutionality (Consulta Facultativa de Constitucionalidad) filed by the Supreme Court of Justice. Regarding all these procedures, with statements for and against the consulted bill, it is appropriate to note that active or passive joinder is not provided for in legislative consultation mechanisms, in which there may be simple opposing legal opinions about the constitutional regularity of a bill, which does proceed in amparo proceedings or actions of unconstitutionality - Articles 34 and 83 of the Law of Constitutional Jurisdiction; as this Chamber has indicated in previous cases because the optional consultation of constitutionality of a bill is a proceeding where coadjuvancies are not admitted, neither for nor against the consulted bill, what proceeds is the rejection of the processing of all these briefs (see in this regard rulings No. 2019-020596, No. 2008-15760, No. 2007-009469, No. 2005-009618, No. 2004-1603, among others).

IV.- On the deadline to resolve this consultation.- In the case of optional consultations of constitutionality, and in application of the provisions of Article 101 of the Law of Constitutional Jurisdiction, the Constitutional Chamber resolves the consultation within the following month. As the starting date for counting the beginning of this month, it has been indicated that it is, in principle, from the date of receipt of the legislative file. In this case, the certified copy of the consulted legislative file was deemed received by Chamber ruling at 11:54 on June 25, 2021. However, upon the subsequent consolidation of three consultations by rulings dated July 2, 2021, the one-month period began to run from this latter date. Thus, the deadline that this Chamber has to resolve would expire on August 2, 2021..." "...

• B)ON THE MATTER CONSULTED V.- On the object of the consultation.- Based on the three admissible consultations filed, it is understood that the consultation concerns the bill entitled "LEY MARCO DE EMPLEO PÚBLICO," processed in legislative file No. 21.336, both on procedural matters and on substantive matters. In summary, the consultations concern the following aspects:

On the consulted PROCEDURAL defects:

• 1)Substantial procedural defects (violation of the right of amendment and democratic participation): The consultants indicate that the Presidency incurred substantial procedural defects due to violation of the right of amendment and democratic participation for the following reasons:

When issuing the Admissibility Ruling on Motions of Reiteration (Mociones de Reiteración) regarding the Public Employment Framework Law bill, file 21.336; By declaring inadmissible motions that reiterated substantive motions that had been approved in Committee, but admitting others; By consolidating motions for considering them identical, similar, or reasonably equivalent, but without consolidating others that were, without a valid objective criterion to proceed in that manner; and, By not bringing a duly admitted motion to the knowledge of the Plenary.

On the consulted SUBSTANTIVE defects:

• 2)Violation of judicial independence: they consult on the constitutionality of several articles, considering that they violate Articles 9, 154, and 156 of the Political Constitution, Article 10 of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights, and Article 8 of the American Convention on Human Rights. This is because the consulted provisions intend to subject the Judicial Branch to the provisions issued by the Ministry of National Planning and Economic Policy (Ministerio de Planificación Nacional y Política Económica, Mideplán) and the General Directorate of the Civil Service, in matters of public employment.
• 3)Violation by including the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones): they consult on the constitutionality of Article 2.a and others, considering that it violates Articles 9 and 99 of the Political Constitution, by obligating the TSE to apply and execute the general provisions, directives, and regulations issued by Mideplán (Art. 6, 7.d, 9, 13.b, 14, 17, and 18) in violation of its independence, allowing interference by the Executive Branch in a matter forbidden to it by constitutional mandate and in regression of the Rule of Law.
• 4)Violation of University Autonomy: they consult on the constitutionality of Article 6 and others, considering that it violates the principle of university autonomy contained in Articles 84, 85, and 87 of the Political Constitution. They consider that university autonomy is violated by subjecting the employment regime of teaching and research staff of higher education institutions to development plans, salary regimes, performance evaluations (evaluaciones de desempeño), directives, orders, instructions, and circulars issued by Mideplán and, in some cases, by the General Directorate of the Civil Service and the Budget Authority.
• 5)Violation by including the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social): they consult on the constitutionality of Article 2.b and others, considering that it violates the autonomy of the CCSS and Articles 73, 188, 11, 33, and 140.18 of the Political Constitution. They consider it unconstitutional to subject the CCSS to the directives, guidelines, and regulations issued by Mideplán on topics related to public employment, be they: work planning, work organization, employment management, performance management, compensation management, and labor relations management, as well as the set of provisions of the bill set forth below.
• 6)Violation of the Autonomy of Municipalities (Municipalidades): they consult on the constitutionality of Article 2.c and others, considering that it violates the autonomy of Municipalities. This is because it is unconstitutional to subject Municipal Corporations to applying and executing the general provisions, directives, and regulations issued by Mideplán on topics related to work planning, work organization, employment management, performance management or performance evaluation, compensation management, and labor relations management, the subjection of human resources offices to the General Public Employment System, among others.
• 7)Violation of the autonomy of Autonomous Institutions (Instituciones Autónomas): they consult on the constitutionality of Article 2.b and others, considering that it violates the autonomy of autonomous institutions.
• 8)Violation of the principles of legal certainty, equality, proportionality, and reasonableness (conscientious objection): They consult on the constitutionality of Article 23.g, insofar as it includes conscientious objection, considering that it violates the possibility for public officials (personas funcionarias públicas) to invoke conscientious objection in order not to receive education and training that the State has deemed mandatory. They consider it unconstitutional for violating the principles of legality and legal certainty, proportionality, and reasonableness by not regulating the conditions, parameters, and restrictions that prevent the violation of fundamental human rights encompassed in Conventional Law and fully recognized by our legal system. In this sense, they consider that it is not possible to appeal to conscientious objection to promote inequality, mistreatment, and discrimination from a position of power, for example.
• 9)Violation of the right to unionization and collective bargaining: they consult on the constitutionality of Article 43 and Transitory Provision XV of the bill, since collective bargaining on salary matters is prohibited, and other topics, which would cover practically everything negotiable, emptying the possibility of any agreement seeking to improve the working conditions of workers of its content, in contrast to the provisions of Article 62 of the Constitution, of the Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, 1949, No. 98 of the International Labour Organization (ILO), Articles 4 and 6; American Convention on Human Rights, Pact of San José, Costa Rica, Article 2; International Covenant on Economic, Social and Cultural Rights, Articles 2 and 8; the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of San Salvador, Article 5; numeral 7 of the Political Constitution; in addition to Art. 690 of the Labor Code. All in further violation of the principle of progressivity.
• 10)Violation of the principles of reasonableness and proportionality (general disqualification sanction): they consult on the constitutionality of Article 4.a of the bill insofar as it includes a general disqualification sanction, in contravention of the principles of reasonableness and proportionality. They indicate that it is a generic and automatic sanction, which would apply to any type of dismissal, regardless of whether it involves serious or minor offenses, without the sanctioning body evaluating the seriousness of the conduct and without a weighing of the rights that will be affected.
• 11)Violation of the right to salary and the principle of equality (global salary): they consult on the constitutionality of Transitory Provisions XI and XII, which include rules for the application of the "global salary" (salario global), considering that this violates the right to salary (Art. 57), the principle of non-discrimination in salary matters (Art. 68), the State's obligation not to establish conditions contrary to human dignity (Art. 56), and the non-waivability of rights (Art. 74). Furthermore, Articles 23 and 28 of the Universal Declaration of Human Rights, Article 14 of the American Declaration of the Rights and Duties of Man, Article 6 of the International Covenant on Economic, Social and Cultural Rights, Article 7 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of San Salvador. ILO Convention 131 concerning Minimum Wage Fixing (Law 5851), ILO Convention 95 concerning the Protection of Wages (Law 2561). ILO Convention 100 concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (Law 2561). Art. 1 of Convention No. 111 concerning Discrimination in Respect of Employment and Occupation, ILO (Law 2848). This is because the transitory provision allows the coexistence of three different salaries for people performing identical functions and under identical conditions; and it seeks to give equal treatment to those who are not in conditions of equality or juridically identical.
• 12)Violation of due process (single dismissal process): They consult on Articles 21 and 22 of the bill, insofar as a special administrative procedure for dismissal is established, as they consider that there is no clarity regarding deadlines, receipt of evidence, right of defense, among others. All in violation of the constitutional principle of due process and legal certainty.
• 13)Violation of the principle of fiscal sustainability due to the possibility of leaves: They consult on Articles 39, 40, 41, and 42 of the bill insofar as the possibility of an unpaid leave to reduce the working day, paternity leave, and the extension of maternity leave are established. They consider that all of this is done without any study of costs or sources of resources. Without having the opinion of the CCSS in this regard, even though it directly impacts its finances.
• 14)Violation due to the exclusion of public enterprises in competition: It is indicated that, although public enterprises in competition, mainly telecommunications and insurance, must seek to increase their competitiveness, making an exclusion from the principles of transparency, service excellence, and citizen participation lacks objective and substantiated reasons for their exclusion from public employment. Furthermore, the Benemérito Fire Department (Cuerpo de Bomberos), which they say is governed by Private Law, is excluded, but others such as Recope and the National Learning Institute (Instituto Nacional de Aprendizaje) were not excluded.

Each of the above defects is examined separately below. Only the aspects specifically questioned by the consultants are reviewed, and not general aspects of constitutionality of the consulted regulations, as provided in Article 99 of the law governing this jurisdiction. In this sense, it must be clear that, regarding those norms of the bill in question on which this Chamber does not rule (whether because they were not consulted or due to insufficient reasoning by the consultants), it is not indicated that they are or are not constitutional, so it must be understood that they were not analyzed by this Chamber and no opinion has been expressed on their constitutionality. On the other hand, it is also clarified that the text before this Chamber for conducting the examination of each consulted norm is the "Final Draft" (Redacción Final) dated June 23, 2021.

VI.- On the consulted PROCEDURAL defects.- The consultants consider that the Presidency incurred substantial procedural defects due to violation of the right of amendment and democratic participation, for the following reasons: when issuing the admissibility ruling on motions of reiteration regarding the bill in question; by declaring inadmissible motions that reiterated substantive motions that had been approved in Committee, but admitting others; by consolidating motions considering them identical, similar, or reasonably equivalent, but without consolidating others that were, without a valid objective criterion to proceed in that manner; and, finally, by not bringing a duly admitted motion to the knowledge of the Plenary. To proceed with the examination of these procedural defects, the chronology followed by the consulted bill will first be indicated (1), the jurisprudence of this Chamber on substantial procedural defects and motions will be reviewed (2), to finally examine what was consulted on the formal defects (3).

• 1)Chronology of the legislative procedure of the "LEY MARCO DE EMPLEO PÚBLICO" bill, processed in legislative file No. 21.336.- Based on the various volumes of the legislative file, it is understood that, in summary, the consulted bill followed the following procedure:
• 1)On April 8, 2019, the Minister of the Presidency submitted the "LEY MARCO DE EMPLEO PÚBLICO" bill, file No. 21.336, to the Secretariat of the Legislative Assembly (see folio 1, Volume 1 of the legislative file).
• 2)On April 29, 2019, the Department of Archives, Research, and Processing sent the legislative file to the National Press (Imprenta Nacional) for publication in the Official Gazette (see folio 110, Volume 1 of the legislative file).
• 3)On May 30, 2019, the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly received the bill for study.
• 4)By official communication No. AL-DEST-CO-069-2019 of June 6, 2019, the Department of Studies, References, and Technical Services of the Legislative Assembly sent the list of mandatory consultations related to file No. 21.336 to the Permanent Ordinary Committee on Government and Administration (see folio 118, Volume 1 of the legislative file).
• 5)By official communication No. TSE-1388-2019 of July 2, 2019, the President of the Supreme Electoral Tribunal issued an opinion on bill No. 21.336 requested by the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly (see folio 450, Volume 2 of the legislative file).
• 6)By official communication No. SP-146-2019 of July 3, 2019, the Supreme Court of Justice responded to the request for opinion from the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly, regarding bill No. 21.336 (see folio 496, Volume 2 of the legislative file).
• 7)By official communication No. SJD-885-2019 of July 5, 2019, the Board of Directors of the Costa Rican Social Security Fund sent the requested opinion regarding bill No. 21.336 to the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly (see folio 592, Volume 2 of the legislative file).
• 8)By official communication No. DJ-1110 of August 30, 2019, the Comptroller General of the Republic (Contraloría General de la República) sent the requested opinion regarding bill No. 21.336 to the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly (see folio 1541, Volume 6 of the legislative file). (See folio 5802, Volume 20, opinion on the substitute text).
• 9)By official communication No. OJ-132-2019 of November 12, 2019, the Attorney General's Office (Procuraduría General de la República) sent the requested opinion regarding bill No. 21.336 to the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly (see folio 1975, Volume 7 of the legislative file and folio 3133, Volume 11). (See folio 5672, Volume 19, opinion on the substitute text).
• 10)On March 3, 2020, the Department of Technical Services of the Legislative Assembly sent the legal report on legislative file No. 21.336 "LEY MARCO DE EMPLEO PÚBLICO" to the Permanent Ordinary Committee on Government and Administration (see folio 1993, Volume 7 of the legislative file).
• 11)By official communications Mideplán-DM-OF-0663-2020 and DM-620-2020, both dated May 18, 2020, the Ministries of the Presidency and of National Planning and Economic Policy sent the substitute text of bill "LEY MARCO DE EMPLEO PÚBLICO," legislative file No. 21.336, to the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly (see folio 2069, Volume 7 of the legislative file).
• 12)On June 16, 2020, the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly approved a substantive motion for a substitute text of file No. 21.336 "LEY MARCO DE EMPLEO PÚBLICO" (see folios 2142 and 2255, Volume 8 of the legislative file).
• 13)In regular session of the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly No. 03 of June 16, 2020, a motion was approved to consult the substitute text of bill No. 21.336 with the institutions and public organizations indicated in the minutes (see folio 2256, Volume 8 of the legislative file).
• 14)On November 3, 2020, the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly approved another substantive motion for a substitute text of file No. 21.336 "LEY MARCO DE EMPLEO PÚBLICO" (see folios 4472 and 4589, Volume 15 of the legislative file).
• 15)On November 4, 2020, the Department of Studies, References, and Technical Services of the Legislative Assembly issued report No. AL-CJU-066-2020, called "Publicity of Sessions" Consultation Report (see folio 4643, Volume 16 of the legislative file).
• 16)According to minutes No. 21 of November 4, 2020, the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly approved another substitute text (see folios 4648 and 4768 of Volume 16).
• 17)In regular session No. 22 of November 10, 2020, the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly approved a motion to publish the text of file No. 21.336 "Ley Marco de Empleo Público." Likewise, for mandatory consultations to be conducted with the institutions and organizations (see folios 4859 to 4862, Volume 16 of the legislative file).
• 18)On November 10, 2020, the Department of Studies, References, and Technical Services of the Legislative Assembly issued Consultation Report No. AL-CJU-068-2020, called "Application of the Principle of Formal Correction of Procedure to Correct Essential and Non-Essential Defects in Legislative Proceedings" (see folio 4870, Volume 16 of the legislative file).
• 19)On November 10, 2020, the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly issued the minority affirmative report (folio 5263 and following, Volume 18 of the legislative file) and majority affirmative report (folios 5432 and following, Volume 18 of the legislative file).
• 20)By official communication No. AL-DEST-CO-346-2020 of November 12, 2020, the Department of Studies, References, and Technical Services of the Legislative Assembly indicated to the Permanent Ordinary Committee on Government and Administration the list of institutions to which mandatory consultations on bill No. 21.336 should be made (see folio 5187, Volume 17 of the legislative file).
• 21)On November 18, 2020, the Permanent Committee on Government and Administration delivered bill No. 21.336 "Ley Marco de Empleo Público" to the Legislative Directorate (see folio 5567, Volume 18 of the legislative file).
• 22)In regular session of the Plenary No. 28 of January 21, 2021, the substantive discussion in the proceedings of the first debate of file No. 21.336 "LEY MARCO DE EMPLEO PÚBLICO" began (see folio 6851, Volume 25 of the legislative file).
• 23)On February 4, 2021, the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly delivered to the Secretariat of the Directorate the first report on motions via Article 137 of file No. 21.336 "LEY MARCO DE EMPLEO PÚBLICO" (see folio 6910, Volume 25 of the legislative file).
• 24)In plenary session No. 38 of February 18, 2021, 474 substantive motions were presented, which were transferred to the Reviewing Committee (see folios 7574 and 7576, Volume 28 of the legislative file).
• 25)On March 10, 2021, the Permanent Ordinary Committee on Government and Administration of the Legislative Assembly delivered to the Secretariat of the Directorate the second report on motions via Article 137 of file No. 21.336 "LEY MARCO DE EMPLEO PÚBLICO" (see folio 7661, Volume 28 of the legislative file).
• 26)In regular session No. 50 of the Legislative Plenary, of March 16, 2021, the Presidency consulted the deputies whether they would present motions of reiteration (Art. 138 of the Regulations), which was confirmed by several deputies (see folio 8895, Volume 35 of the legislative file).
• 27)In regular session No. 51 of the Legislative Plenary, of March 18, 2021, the Presidency issued a ruling on the admissibility of the motions of reiteration (see folios 8997 to 9004, Volume 35 of the legislative file).
• 28)In extraordinary session of the Plenary No. 83 of March 22, 2021, the procedural motion of appeal on the Presidency's ruling regarding the admissibility of the motions of reiteration was heard, and it was dismissed.

Likewise, the discussion of the motions for reiteration began (see folio 9341 to 9351, Volume 36 of the legislative record).

• 29)At extraordinary session of the Plenary No. 84 of March 23, 2021, consideration of the motions for reiteration continued (see folio 9554 and 9731, Volume 38 of the legislative record).
• 30)At extraordinary session of the Plenary No. 85 of March 24, 2021, consideration of the motions for reiteration continued (see folios 10046 and 10126, Volume 40 of the legislative record).
• 31)At ordinary session of the Plenary No. 052 of April 5, 2021, the presentation of motions for review was announced and consideration of the motions for reiteration continued (see folios 10329 and 10361, Volume 41 of the legislative record).
• 32)At extraordinary session of the Plenary No. 86 of April 6, 2021, consideration of the motions for reiteration continued (see folios 10446, Volume 41 and folio 10497, Volume 42 of the legislative record).
• 33)At extraordinary session of the Plenary No. 87 of April 6, 2021, consideration of the motions for reiteration continued (see folios 10616, Volume 42 and 10670, Volume 43 of the legislative record).
• 34)On April 6, 2021, the Department of Studies, References and Technical Services of the Legislative Assembly issued the "Report on the Text under Discussion in the Plenary of Legislative Record No. 21336 Public Employment Framework Law: Relatedness, Aspects of Constitutionality and Procedure" (see folio 10799, Volume 43 of the legislative record).
• 35)At extraordinary session of the Plenary No. 88 of April 7, 2021, consideration of the motions for reiteration continued (see folios 10996, Volume 44 and 11264, Volume 45 of the legislative record).
• 36)At extraordinary session of the Plenary No. 89 of April 7, 2021, consideration of the motions for reiteration continued (see folio 11204, Volume 45 and folio 11250, Volume 46 of the legislative record).
• 37)At extraordinary session of the Plenary No. 90 of April 8, 2021, consideration of the motions for reiteration continued (see folios 11345 and 11375, Volume 46 of the legislative record).
• 38)At extraordinary session of the Plenary No. 91 of April 8, 2021, consideration of the motions for reiteration continued (see folios 11476 and 11532, Volume 47 of the legislative record).
• 39)At extraordinary session of the Plenary No. 92 of April 12, 2021, consideration of the motions for reiteration continued (see folios 11648, Volume 47 and 11699, Volume 48 of the legislative record).
• 40)At extraordinary session of the Plenary No. 93 of April 12, 2021, consideration of the motions for reiteration and review continued (see folios 12062 and 12212, Volume 50 of the legislative record).
• 41)At extraordinary session of the Plenary No. 94 of April 13, 2021, consideration of the motions for review continued (see folios 12359 and 12412, Volume 51 of the legislative record).
• 42)At extraordinary session of the Plenary No. 95 of April 13, 2021, consideration of the motions for review continued (see folios 12521, Volume 51 and 12583, Volume 52 of the legislative record).
• 43)At extraordinary session of the Plenary No. 96 of April 14, 2021, consideration of the motions for review continued (see folios 12761 and 12813, Volume 53 of the legislative record).
• 44)At extraordinary session of the Plenary No. 97 of April 14, 2021, consideration of the motions for review continued (see folios 12920 and 12981, Volume 54 of the legislative record).
• 45)At ordinary session of the Plenary No. 053 of April 15, 2021, motions for review and order were heard and the substantive discussion of bill No. 21336 continued (see folios 13071 and 13090, Volume 54 of the legislative record).
• 46)At extraordinary session of the Plenary No. 99 of April 20, 2021, consideration of the motions for review continued (see folios 13133 and 13207, Volume 55 of the legislative record).
• 47)At extraordinary session of the Plenary No. 101 of April 21, 2021, consideration of the motions for review continued (see folios 13346 and 13389, Volume 56 of the legislative record).
• 48)At ordinary session of the Plenary No. 06 of May 18, 2021, a motion for the order of postponement was presented and approved (see folio 13498, Volume 57 of the legislative record).
• 49)At extraordinary session of the Plenary No. 002 of May 19, 2021, a motion for order was presented and approved authorizing an extraordinary session to be held on May 20, 2021 (see folios 13506 and 13508, Volume 57 of the legislative record).
• 50)At extraordinary session of the Plenary No. 003 of May 20, 2021, consideration of the motions for review continued (see folios 13514 and 13611, Volume 57 of the legislative record).
• 51)At ordinary session of the Plenary No. 07 of May 24, 2021, consideration of all substantive and review motions of legislative record No. 21.336 was concluded. Finally, the Secretariat of the Board was instructed to carry out the mandatory consultations and order the publication of the bill (see folios 13770, 13773 and 13852, Volume 58 of the legislative record).
• 52)On May 25, 2021, the Department of Document Management and Legislative Archives sent the updated text of bill No. 21.336 to the National Printing Office for its publication (see folio 13949, Volume 58 of the legislative record).
• 53)By official letter No. AL-DSDI-OFI-0053-2021 of May 25, 2021, an opinion was requested on the updated text of legislative record No. 21.336 from the following public authorities: Supreme Court of Justice, Supreme Electoral Tribunal, Costa Rican Social Security Fund, National Council of Rectors, public universities, Superior Council of Education, and municipalities (see folio 13909, Volume 58 of the legislative record).
• 54)The updated text of bill No. 21.336 was published in the Official Gazette La Gaceta No. 100, Supplement No. 105 of May 26, 2021 (see folio 13951, Volume 58 of the legislative record).
• 55)By official letter of May 28, 2021, the Office of the Comptroller General of the Republic responded to the request for an opinion regarding the updated text of bill No. 21.336 (see folio 14354, Volume 60 of the legislative record).
• 56)By official letter No. SCI-544-2021 of June 2, 2021, the Technological Institute of Costa Rica provided the requested opinion regarding the updated text of bill No. 21.336 (see folio 14436, Volume 61 of the legislative record).
• 57)By official letter No. OF-CNR-14-2021 of June 2, 2021, the National Council of Rectors provided the requested opinion regarding the updated text of bill No. 21.336 (see folio 14538, Volume 61 of the legislative record).
• 58)By official letter No. SP-62-2021 of June 3, 2021, the Supreme Court of Justice responded to the request for an opinion regarding the updated text of bill No. 21.336 (see folio 14504, Volume 61 of the legislative record).
• 59)By official letter No. UNA-SCU-ACUE-136-2021 of June 3, 2021, the National University responded to the request for an opinion regarding the updated text of bill No. 21.336 (see folio 14566, Volume 61 of the legislative record).
• 60)By official letter TSE-1226-2021 of June 3, 2021, the Supreme Electoral Tribunal responded to the request for an opinion regarding the updated text of bill No. 21.336 (see folio 14642, Volume 62 of the legislative record).
• 61)By official letter No. REF-CU-2021-181 of June 4, 2021, the State Distance Learning University responded to the request for an opinion regarding the updated text of bill No. 21.336 (see folio 14631, Volume 62 of the legislative record).
• 62)At ordinary session of the Plenary No. 14 of June 10, 2021, a motion to alter the order of the day was approved so that legislative record No. 21.336 would occupy the first place before the second debates, until its final vote (see folios 14751 and 14754, Volume 63 of the legislative record).
• 63)At ordinary session of the Plenary No. 15 of June 14, 2021, a motion for the order of postponement was approved. The substantive discussion, in the first debate of bill No. 21.336, continued (see folio 14794, Volume 63 of the legislative record).
• 64)At ordinary session of the Plenary No. 16 of June 15, 2021, a motion for the order of postponement was approved. The substantive discussion, in the first debate, of bill No. 21.336 continued (see folios 14849 and 14851, Volume 63 of the legislative record).
• 65)At ordinary session of the Plenary No. 17 of June 17, 2021, a motion for the order of postponement was approved. The discussion in the first debate of bill No. 21.336 continued and concluded, having been approved with 32 votes in favor and 15 against (see folios 14922, 14926 and 14947, Volume 64 of the legislative record).
• 66)On June 17, 2021, the optional consultation of constitutionality No. 21-011713-0007-CO was filed with the Secretariat of the Constitutional Chamber, concerning the legislative record No. 21.336 “Public Employment Framework Law” (see folio 14965, Volume 64 of the legislative record).

Now, the specific objections of constitutionality raised in this regard are as follows:

-Violation of the right to amend, by having declared inadmissible the motions for reiteration 18, 231 and 250, as they were substantive motions that, even though approved by the reporting committee, were subsequently modified: The deputies consider, for example, that motion 138-231 was declared inadmissible despite the fact that the proponent indicated to the Presidency in her appeal that, although the substantive motion being reiterated was approved, another motion was subsequently approved that nullified the former. The proposing deputy of motion 138-18 expressed himself in the same sense; however, the Presidency did admit motion 138-345, which reiterated motion 122-137, which was also approved by the Commission on Government and Administration at the extraordinary session No. 02 of January 26, 2021. That deputy was able to defend the motion and it was newly approved at the extraordinary session of the Plenary No. 93.

-They consider that the resolution by which it was ordered to partially consolidate the motions for reiteration exceeds the provisions of articles 27 and 138 of the Legislative Regulations and violates the right to democratic participation, amendment, and reasonableness: The deputies consider that motions that did coincide were not consolidated, such as: motions for reiteration 184 and 251 which reiterate substantive motion 102, motions for reiteration 194 and 270 which reiterate substantive motion 355, motions 138-195 and 138-271 which reiterate substantive motion 310, and motions 138-130, 138-273 which reiterate substantive motion 433 and motion 344 which should have been consolidated with motions for reiteration 198 and 272. They deem the consolidation in clause 4 of motion 138-154 improper, because it sought to modify article 2 and add article 3, while the others only proposed to add article 3. They add that, at the end of the consideration of the motions for reiteration, the president brought motion 138-154 to the floor, giving the floor to the proponent for its defense and submitting it to a vote of the Plenary, modifying the resolution unilaterally.

-Violation of the right to amend and democratic participation of Deputy Paola Vega Rodríguez: They argue that, although the motion for reiteration 138-210 was admitted, since the challenged resolution does not state that it was not, nor that it was consolidated with other motions, the Presidency did not bring it to the attention of the Plenary, so its subsequent vote was omitted. They state that, the proper course was to hear motion 138-210, after 138-207 (since motions 13-208 and 138-209 were withdrawn by their proponents) at the extraordinary session No. 88, held on April 7, 2021.

• 2)Regarding the jurisprudence of this Chamber concerning substantial procedural defects and the rejection of motions.- The issue of substantial defects in parliamentary procedure has been analyzed on several occasions by this Chamber. The constitutional jurisprudence has generally indicated that the internal regulatory power of the Legislative Assembly can be exercised freely and autonomously, as long as, of course, it does not contradict constitutional provisions, principles, or values. The power of Parliament to issue the norms of its own internal governance (interna corporis) is not only provided for by the Political Constitution in its article 121 clause 22, but is inherent to the democratic system and specific to the Legislative Assembly as a constitutional power, pursuant to Title IX of the Fundamental Charter. This power is intrinsic to the Legislative Assembly, which it exercises with absolute independence from the other organs of the State, by virtue of the principle established in article 9 of the Fundamental Charter. However, like any power, its exercise is subject to limitations, which are: compliance with the Law of the Constitution, that is, the set of constitutional values, principles, and norms. In recognition of that "interna corporis," this Chamber has recognized that its function in matters of legislative procedure is only to declare those substantial defects that violate the constitutional principles and values applicable to the matter, since otherwise it would be affecting the self-regulatory and functional capacity of parliament (interna corporis), distorting its role as guardian of constitutional supremacy, for that of a kind of ad hoc senate. Thus, only in the face of evident or gross violations of the constitutional principles governing parliamentary law would the intervention of this Constitutional Jurisdiction be legitimate. Therefore, the defects controllable by the Chamber are those that refer to the violation of some "substantial" requirement or procedure provided for in the Constitution or, where applicable, established in the Regulations of the Legislative Assembly. The intervention of the Chamber in matters of legislative procedure, as indicated, should only occur in the event of the use of these powers with evident abuse of power, which results in the annulment of a right and not in its harmonization with the rest of the constitutional principles of parliamentary law. Subsequently, specifically regarding the right to amend of deputies, this Chamber has stated that, the participation of deputies in the Ordinary Standing Committees is regulated by articles 123 and 124 of the Regulations of the Legislative Assembly, which recognize the right of any deputy to present written motions "that they consider as a reform to the case for each bill," and substantive motions may be processed from the day of publication of the bill and as long as it has not been voted on in the corresponding Committee. Substantive motions are those proposals by deputies intended to modify the bill on its merits. That is, the contribution of each deputy in the process of law formation is exercised through a written proposal, which seeks to improve, clarify, modify, delete, or add the normative propositions included in clauses, articles, sections, chapters, or titles of a bill, which means the possibility of influencing and determining the contents that are finally approved by the Legislative Assembly, and which constitutes the exercise of a right of all members of said Power, the right to amend, which in turn defines one of the essential aspects of legislative activity and of our democratic regime. Like any right, it has its limits, among which is respect for the principle of relatedness, which in turn guarantees the right to initiative in the formation of the law and the due publicity of the proposal. Now, specifically regarding the rejection of motions, this Chamber has resolved the following:

-The power to make motions (facultad de mocionar) that the Regulations of the Legislative Assembly grant to all deputies has the purpose of ensuring the possibility of participation for all the groups that comprise it, allowing them to broadly exercise their role as formers of the law, whether they are in the "situation" or in the "opposition" regarding the majority's opinion, due to their character as representatives of the people (article 105 of the Constitution). The only admissible limits to this power are those expressly stated in the Political Constitution, or in the Regulations of the Legislative Assembly, provided that in the latter case they do not excessively restrict the right of every deputy to make motions, affecting the essential core of said attribution (see judgment No. 2000-003220).

-The Presidency of the Committee may, in the interest of rationalizing discussion and debate, even ex officio, group motions that have an intimate connection, identity of content, or when they are reasonably equivalent or a reiteration of others pending resolution or already resolved, as well as reject those that do not conform to the established provisions. In the event that the resolution lacks reasoning, the Deputy may raise the corresponding appeal so that the defect may be corrected (see judgments numbers 2007-002901 and 2007-009699).

-The power to reject motions by the president must be understood restrictively and only regarding matters of form, timeliness, or reasons of evident inadmissibility (see judgment No. 2005-007428).

-A substantial defect in the legislative procedure occurs, violating the right to amend and to participate, when admitted motions are not submitted to a vote (see judgment No. 2008-004569).

In conclusion, from all the foregoing it follows that the power of all deputies of the Legislative Assembly to make motions admits as its only limits those expressly stated in the Political Constitution, or in the Regulations of the Legislative Assembly, provided that they do not excessively restrict or affect the essential core of said attribution (the deputy's right to amend). Therefore, it is possible for the president of the Legislative Assembly to proceed to consolidate motions, by means of a reasoned resolution.

• 3)Regarding the matter consulted.- Based on the preceding jurisprudence, we proceed to the examination of the matter consulted regarding procedural defects. Specifically, the following three points are consulted regarding the resolution adopted by the Presidency on the admissibility of motions for reiteration, adopted at ordinary session No. 51 of March 18, 2021:

-Declaring inadmissible motions for reiteration because they were substantive motions already approved in Committee.

-Consolidating some motions for reiteration considering them identical, but not consolidating others that were.

-Not bringing an admitted motion to the attention of the Plenary.

In this regard, the following is observed from the legislative record:

Certainly, at plenary ordinary session No. 51 of March 18, 2021, the President of the Legislative Assembly issued a resolution on the admissibility of the motions for reiteration, in which he develops three points (see folios 8997 to 9017, Volume 35 of the legislative record), this analysis referring only to the first two, of interest for this study”:

Motions for reiteration identified with numbers 18, 231 and 250 were deemed inadmissible, because they corresponded to substantive motions that were approved in the reporting committee. The discussion of several motions for reiteration was grouped, considering them to be "identical, similar or reasonably equivalent." They would be discussed in a single act, but voted on individually.

-On the motions for reiteration declared inadmissible, on the grounds of being considered approved in Committee: After reviewing the record, the appeal filed against the rejection of motion 138-231 by Deputy Vega Rodríguez and 138-18 by Deputy Abarca Mora is verified, as well as the general appeal by Deputy Welmer Ramos (proposing deputy of motion 138-250). The foregoing is relevant because the Chamber has determined that procedural defects must be pointed out at their opportune moment, in order to later be consulted on them in the consultation of constitutionality that is filed. Given the appeal filed for these motions, their examination proceeds. Certainly, there would be an arbitrariness and consequent substantial defect, if it were demonstrated that motions 138-18, 138-231 and 138-250 were approved in Committee, but that another motion subsequently approved in committee "overrode them" and then the possibility of reiterating them was rejected. However, in the case of motions 138-231 and 138-250, the filing brief for the consultation does not clearly indicate which that other motion that overrode them was or at which procedural moment it happened. In total, 777 substantive motions were heard and 352 motions for reiteration were filed. This would imply that it is the Chamber which must review all the substantive motions approved after the substantive motion referenced in the motions for reiteration 138-231 and 138-250 were approved, in order to find, according to their content, the supposed motion that later nullified them, a review which, quite clearly, is inappropriate for this Chamber to undertake. This Court has repeatedly indicated that the filing brief must state not only the articles of the bill whose constitutionality is questioned or consulted, but also clearly and sufficiently express the reasons why it is estimated that a provision of the bill may be unconstitutional, otherwise the consultation would be inadmissible (see, in this sense, judgments numbers 1995-5399-95, 1995-5544, 1999-7085, 2001-11643 and 2012-9253). Regarding the case of motion 138-18, the consultants base the defect when they cite what Deputy Abarca Mora indicated upon appealing the following:

“…That motion refers to motion 329 of the second day of motions and if 80 or 81 from the second day of motions are approved, it would basically fall outside the text even though it was approved and that is why you are excluding it, already on repeated occasions in the Plenary, approved motions have been accepted and admitted precisely to preserve the spirit of the legislator and in this case I call your attention to the fact that if you reject that motion for me and 80 or 81 from the second day are approved, we could harm the bill and we would erase something that is in the base text today…”.

That is, the admission of a motion for reiteration of a motion already approved in Committee is requested, to ensure that it is not subsequently modified. However, although in this case the argument was substantiated, this Chamber cannot support a procedural defect on an uncertain supposition, namely, that motions that could probably override it may be approved. What would be appropriate in those cases is for the interested deputy, during the motion for reiteration of the motion that could override it, to defend the approved text so that said motion for reiteration is rejected. And if the Plenary already decides to go against it, that would be the majority decision. It should be noted that it has not been demonstrated that admitting motions for reiteration based on the fear that another motion may replace it is a parliamentary custom. Furthermore, as recorded in folio 11458 of the legislative record, the same Deputy Abarca voted in favor of the motion that he says affected his own.

-On the improper consolidation of motions for reiteration: Only the possible defect of improper consolidation of motion 138-154 is examined as it is an aspect directly related to the deputies' right to amend. The other arguments, regarding other motions that should have been consolidated and were not, constitute a decision of the Presidency that rather favors the right to amend and therefore cannot be considered a substantial defect, so its examination in this forum does not proceed. Having said that, it is recorded that the motion for reiteration 154 was filed by Deputy Villalta (see folio 9308, Volume 36 of the legislative record). This motion was consolidated along with motions 13, 138, 179, 180, 181, 246, 247, 248 and 349, by the presidency of the Legislative Assembly, "as there is an evident relatedness in the aims intended by the proponents" (see folio 8983, Volume 35). The appeal against the consolidation of motion 138-154 is recorded, based on the fact that it proposes to modify two articles (art. 2 and art. 3). As the promoter pointed out in the appeal, said motion proposes to reiterate the substantive motion seeking to modify article 2 and add article 3 of the bill, while the rest of the consolidated motions only propose to add article 3. In this sense, it is verified that the president of the Assembly decided to bring it to the floor, indicating that: "it is a correction that must be made due to an improper consolidation of motions. So we must proceed to hear motion 154, by Mr. José María Villalta Flórez-Estrada//. Consequently, motion 154 is under discussion and Deputy Villalta Flórez-Estrada will take the floor." Thus then, in this case, despite the initial improper consolidation, it was later brought up for separate discussion and the proposing deputy was able to take the floor to defend it. Therefore, no procedural defect whatsoever is evidenced for this aspect, because the situation was corrected at the time, as the same consultants indicate in their filing brief.

-On the failure to bring motion for reiteration 138-210 up for discussion: A violation of the right to amend and democratic participation of Deputy Paola Vega Rodríguez is alleged, given that, although the motion for reiteration 138-210 was admitted, the challenged resolution does not state that it was not, nor that it was consolidated with other motions, the Presidency did not bring it to the attention of the Plenary, so its subsequent vote was omitted. After reviewing the resolution of the presidency of that body, it is found that, indeed, motion 138-210 was neither rejected nor consolidated, but from the examination that this Chamber makes of the legislative record, doubt arises as to whether there was a will on the part of the proponent for it to be brought up for discussion. The motion intended to modify clause c) of article 13 or its equivalent article in case the numbering varied, to read:

“ARTICLE 13- General Public Employment Regime c) Public servant persons who perform police functions, in accordance with article 6 of the General Police Law, No. 7410, of May 26, 1994, article 2 of the Organic Law of the Judicial Investigation Agency (OIJ), No. 5524, of May 7, 1974, and chapter IX of the Municipal Code, No. 7794, of April 30, 1998.” It was possible to verify that in volume 45, folios 11214 and 11215, said motion appears with a stamp that says "withdrawn" and signed by Deputy Vega, dated April 7. Subsequently, after reviewing the extraordinary session No. 88 of the Plenary, held on April 7, 2021, the president only mentioned that Deputy Vega had withdrawn motions 166, 195, 201, 224, 172, 192, 194, 195, 196, 199, 200, 205, 206, 208, 209, 211, 212, 213, 214, 224, 228, 229, 230, 169, 175, 176, 177, 184, 202 and 221. Thus, a contradiction is verified, between the motion with the "withdrawn" stamp bearing the signature of the same Deputy Vega, and then, what is recorded in the minutes where reference to such motion as withdrawn is omitted. Beyond the fact that it is a matter outside the purview of this Chamber to determine in this case which act has greater validity, whether the stamp of withdrawn with the deputy's signature or what is recorded in the minutes, it is not observed that Deputy Vega evidenced or stated the situation before the Plenary. As stated supra, procedural defects must be pointed out at their opportune moment, in order to subsequently be raised via a consultation of constitutionality. In this case, as stated, it is not recorded that Deputy Vega pointed out the defect; on the contrary, her signature is observed on the "withdrawn" stamp of the motion.

As such, the lack of discussion thereof cannot be considered a substantial procedural defect.

• 4)Conclusions 1) No substantial procedural defect is found regarding the argument of the inadmissibility of motions 138-231 and 138-250, because the brief for this consultation did not substantiate which motion modified them and "superseded them"; and regarding the inadmissibility of motion 138-18, because it was based on an uncertain fact (the probability that another motion would supersede it).
• 2)No substantial procedural defect is found regarding the argument of the improper joinder of motion 138-154 because, although it was improperly joined at the outset, the President of the Assembly subsequently severed it and allowed its separate discussion.
• 3)No substantial procedural defect is found regarding the argument of the lack of discussion of motion 138-210 by Deputy Paola Vega, because said motion appears in the legislative record with a withdrawal stamp and the signature of the proposing deputy.

VII.- On the SUBSTANTIVE defects consulted upon and in general on the consulted bill.- Regarding the consulted bill, titled "PUBLIC EMPLOYMENT FRAMEWORK LAW," processed under legislative file No. 21.336, the three optional legislative consultations filed by the deputies were admitted. All of which were joined to this main file. Grouping all the substantive aspects consulted, it is found that six of them refer to the scope of coverage of the bill (regarding the inclusion of the Judicial Branch, the Supreme Electoral Tribunal, the Public Universities, the Costa Rican Social Security Fund, the Municipalities, and the Autonomous Institutions) and to other topics such as conscientious objection, the right to collective bargaining, the sanction of disqualification, the global salary, and due process. Each of these topics will be analyzed separately in the following recitals. However, by way of contextualization, it is appropriate to provide a general explanation of the consulted bill. Regarding the justification given in the bill's statement of motives (see base text), it is indicated that it "aims to be a cornerstone for guiding the public service towards a more homogeneous legal framework, aimed at reducing the distortions generated by fragmentation, within a context of efficacy and efficiency." This is because it is considered that: "The State must regulate the relationship with public servants, under general rules and principles governing all public institutions, safeguarding the independence of branches of government and the particularities of public employment sub-regimes, … but always seeking, at all times, the satisfaction of the public interest, ensuring citizens receive quality goods and services in a timely manner." It is also indicated that Law No. 9635, the Law on Strengthening Public Finances, already granted the authority over public employment to the Ministry of National Planning and Economic Policy, in Article 46 of Title III, thereby seeking to revive the spirit of the constituent power. Finally, it is stated in this statement of motives that, "This Public Employment Framework Law bill seeks to jointly address the recommendations issued by various national and international bodies, such as the Comptroller General of the Republic and the Organization for Cooperation and Development." Following this, reference is made to those recommendations, noting in the case of the OECD the recommendation to gradually migrate towards a single-salary scheme for new officials; and in the case of "the Comptroller General of the Republic has drawn attention to the need to review the remuneration scheme, mainly those salary incentives that generate disparities among the same types of positions, as is the case of seniority bonuses." Furthermore, "the need to link incentives to performance evaluation mechanisms and their continuous review." Then, based on these reasons, the bill seeks to create a Public Employment Framework Law, in a text of 50 articles and 15 transitory provisions, to take effect one year after its publication. Across 10 chapters, it regulates aspects such as:

CHAPTER I. GENERAL PROVISIONS CHAPTER II. GOVERNANCE OF PUBLIC EMPLOYMENT CHAPTER III. PUBLIC EMPLOYMENT PLANNING CHAPTER IV. WORK ORGANIZATION CHAPTER V. EMPLOYMENT MANAGEMENT CHAPTER VI. DEVELOPMENT MANAGEMENT CHAPTER VII. PERFORMANCE MANAGEMENT CHAPTER VIII. COMPENSATION MANAGEMENT CHAPTER IX. LABOR RELATIONS MANAGEMENT CHAPTER X. MISCELLANEOUS PROVISIONS Within the articles, the following stand out. The objective of the law would be "To regulate statutory, public employment, and mixed employment relationships between the Public Administration and public servants (…) in accordance with the constitutional imperative of a single public employment regime (…)" (Art. 1). Including, within its scope of coverage, the entire state apparatus, centralized and decentralized (Art. 2). Proceeding to exclude, basically, non-state public entities, the Fire Department, and public enterprises operating in competition (Art. 3). Then, in Chapter II, a General Public Employment System is created, the authority over which will be vested in the Ministry of National Planning and Economic Policy (Mideplán), establishing in Art. 7 all its functions in a broad list that includes, from establishing public policies, programs, and national public employment plans; issuing provisions of general scope, directives, and regulations; issuing guidelines and general principles for performance evaluation; and establishing a single and unified remuneration system for the public function; among others. Then, Chapter IV indicates the existence of a single general public employment regime, composed of eight job families (Art. 8). Establishing general rules for the entire new-hire recruitment and selection process (Art. 15) and a single dismissal procedure (Art. 21). Likewise, some general rules on performance evaluation (Art. 29) and on salary (Art. 30), with the establishment of a unified salary regime for the entire public service (Art. 35). Finally, general rules are established for topics such as vacations (Art. 38) and leaves of absence; in addition to miscellaneous provisions, such as, for example, regarding collective bargaining (Art. 43).

VIII.- General Recital.- (drafted by Magistrate Castillo Víquez) In the Constitutional Rule of Law, every infra-constitutional norm must be read, interpreted, and applied in accordance with the Law of the Constitution (values, principles, and norms). Starting from this perspective, the analysis of the consulted bill will be conducted by adopting the foregoing as a frame of reference, such that an integrated reading will be made, keeping very much in mind the principle of separation of powers or functions, as well as the constitutional principles regulating administrative decentralization, especially the degrees of autonomy possessed by decentralized entities by region and by service to achieve their constitutionally assigned purposes.

A good part of the issues consulted involves analyzing the relationship between the law—the exercise of legislative power—and the principle of separation of powers, the independence of these in the exercise of their exclusive and excluding competencies, university autonomy, and municipal autonomy. It must not be lost sight of that there is no compartment or area of exclusion from the law concerning the exclusive and excluding competencies of the Supreme Court of Justice, the Supreme Electoral Tribunal, the State Universities, and the municipalities. Proof of what we are stating is the existence of the constitutional consultation regulated in articles 88, 98, 167, and 190 of the Constitution. In other words, if the original constituent power had wanted to exclude the branches of State and the decentralized entities from the power to legislate, it would not have established the constitutional consultation when the Legislative Assembly, in the exercise of legislative power, intends to regulate the organization and functioning of those branches and entities. In the case of the municipalities, although it did not expressly institute the constitutional consultation—for the majority of this Court, it did—the truth of the matter is that regarding local matters, in which political autonomy applies in accordance with constitutional articles 169 and 170, the Parliament, in the exercise of the power to legislate, may regulate municipal organization and competencies.

Another question that must necessarily be addressed, starting from the fact that the Legislative Assembly, in the exercise of the power to legislate, has a constitutional competence to regulate the organization and functions of the branches of government and the decentralized entities, not to suppress their self-organizational or self-regulatory autonomies—in the case of the state universities—, political autonomy—in the case of the municipalities and the CCSS—, and administrative autonomy—in the case of the autonomous institutions—, is whether, regarding a typically administrative function—public employment—in relation to certain job positions directly linked to exclusive and excluding competencies, it may or may not affect them, those derived from these degrees of independence, that is, positions related to competence in matters where there is exclusivity in their exercise, which must be defined exclusively and on an excluding basis by the constitutional bodies and entities with constitutionally assigned purposes and for which they are endowed with degrees of autonomy based on constitutional grounds. This means that the legislator has a limit in the exercise of the power to legislate, as it cannot suppress them, or affect them, in their essential elements, nor transfer them to other entities or bodies.

It must be borne in mind that in a unitarily concentrated State like Costa Rica, all public entities are subject to the principle of state unity, since autonomy does not mean sovereignty, but simply and plainly independence in the exercise of exclusive and excluding competencies. Regarding the principle of state unity, it has been affirmed that regardless of the degree of autonomy a decentralized entity may have, it is closely linked to the State by a series of principles and norms that are in the Law of the Constitution, for example, articles 11, 48, 49, 182, 184, and 192 of the Constitution, which establish the principles of legality, accountability, and transparency; unrestricted respect for fundamental rights and subjective public rights and their effective judicial protection in the constitutional and contentious-administrative jurisdictions; the principles and procedures of administrative contracting; the approval and oversight of budgets by the Comptroller General of the Republic and this body of constitutional relevance's control over the use of public funds; submission to the core principles of the civil service, etc. In this direction, it is not unconstitutional for the legislator to subject the entire Public Administration to a public employment framework law, provided it rigorously observes the principles of separation of powers and does not empty the degrees of autonomy that the Law of the Constitution grants to the State universities, the CCSS, and the municipalities of their content.

It is not possible to overlook that all activity related to appointments, evaluations, disciplinary regime, salary caps, work valuation, compensation management, job classification, salary columns, etc., is a typically administrative activity. Nor can it be ignored that the branches of State, excluding the Executive Branch—following a subjective criterion, it is the one that carries out administrative activity by nature, Article 1 of the General Law of Public Administration—, exceptionally perform administrative activity—objective criterion, Article 2, subsection b) of the Contentious-Administrative Procedure Code—, as occurs with the subject of public employment. The keystone lies in determining whether there are administrative activities in this area that are indispensable to guarantee the exclusive and excluding competencies of the branches of State. The answer is affirmative, in the sense that, although it concerns an administrative activity, its exercise corresponds to the constitutional bodies and public entities that enjoy autonomy grades three and two. This means that these bodies and entities are called upon to comply with the principles and postulates established in the Law, but with the particularity that it is they who are responsible for applying it and strictly adhering to what is established. This position makes it inadmissible, from a constitutional perspective, for the Executive Branch or another of its bodies to exercise a power of hierarchy, of direction, of internal regulation over the branches of State, the State universities, the CCSS, and the municipalities.

According to the design of the distribution of competencies, which responds to the principle of separation of powers and the degrees of autonomy established by the original constituent power in favor of the constitutional bodies—branches of State—and public entities decentralized by region—municipal corporations—and by service—state universities and the CCSS—, it is clear that the power of direction corresponding to the Executive Branch or one of its bodies—Mideplán—is incompatible with that constitutional principle and the degrees of autonomy that certain entities enjoy. Stated differently, the power to issue directives—special mandates that order the activity of a body or entity, setting goals and objectives, but not a specific act—is not constitutional when it affects or impinges upon the exclusive and excluding competencies of the other branches of State or on the constitutionally assigned purposes of entities with a corporate or institutional basis that enjoy a degree of autonomy of grade three—self-organizational or normative—or two—political—or on those administrative activities necessary for the exercise of those competencies. Starting from this cardinal idea, it is clear that in the matter of public employment, regarding the personnel of the branches of State and the entities decentralized by region and service, who exercise such competencies—jurisdictional, para-jurisdictional, electoral—or participate in public management relating to the constitutionally assigned purposes of the aforementioned entities, as well as the administrative support, professional, or technical personnel, which each branch and entity defines, on an exclusive and excluding basis, cannot, in any way, fall under the power of direction of the Executive Branch or Mideplán. There is, therefore, a hard core, an element unavailable to the Executive Branch, that cannot be ordered in its activity, much less through the exercise of regulatory power, which corresponds exclusively to each branch of State and each public entity.

Now then, the foregoing does not mean that all the civil servants of the branches of State and the entities cited above are excluded from the power of direction. In the case of basic, auxiliary administrative services that do not affect the exclusive and excluding competencies or administrative functions necessary for fulfilling these, each branch of State and entity must define, on an exclusive and excluding basis, which of these may be subject to the power of direction. Therefore, based on the principle of independence of branches of government or functions and the degrees of autonomy constitutionally guaranteed to each entity, it corresponds exclusively and on an excluding basis to their highest bodies—Full Court, Superior Council of the Judicial Branch, Supreme Electoral Tribunal, University Councils, Rectorates, Board of Directors and Executive Presidency of the Costa Rican Social Security Fund, Municipal Council and Mayors—to establish which are those basic, auxiliary administrative services, common and similar to the entire Public Administration, that would indeed be subject to the powers of direction and regulation of the Executive Branch.

Ergo, since the bill does not establish this safeguard—a clear and precise rule—in this sense, this Court concludes, as will be explained later, that there are a series of unconstitutionality defects that violate judicial and electoral independence and the autonomies of the State universities, the CCSS, and the Municipalities.

In another vein, the deputies must also be clear that everything concerning the civil servants of the branches of State and the entities with assigned constitutional purposes established as part of their competencies—constitutional or administrative—regarding the construction of the job family, the grades thereof, the work valuation methodology, the relevant work factors to be assigned, the minimum and maximum salary for each column, the technical foundations for setting salaries, the descriptive manual for each position, the performance evaluation, etc., corresponds, on an exclusive and excluding basis, to each one of them to define, as will be explained when analyzing the norms challenged as unconstitutional in the admitted consultations.

No less important is the fact that matters pertaining to performance evaluation and the exercise of disciplinary power are reserved for each branch of State and the entities cited above, since these powers are consubstantial to the exercise of their constitutional competencies or to the achievement of their constitutionally established purposes. This means that regarding these topics, all the civil servants of each branch and entity are subject to the internal provisions that each one of them issues in this regard.

One last question, before referring to each grievance raised by the consulting parties, is that in judgments number 1992-1696 of 3:30 p.m. on August 23, 1992; 2018-14905 of 12:30 p.m. on September 7, 2018; and 2018-231 of 11:00 a.m. on January 10, 2018, reiterated in ruling 2019-14347, it was reaffirmed that different labor regimes in the public administration are feasible, provided they are governed by the common principles of suitability and stability in employment, such as the statutory regime. This Court has indicated that our original constituent framers enshrined in the 1949 Political Constitution that there should be an administrative labor regime to regulate the relations between public servants and the State, in order to protect the former from arbitrary dismissals (stability in employment) and to professionalize the public function (pursuit of efficiency in the service and suitability of the official). The purpose of this task was to ensure that the Public Administration had organizational factors that would allow it to satisfy the right of citizens to the proper functioning of public services. In light of this, it was constitutionally provided that the procedure for selecting and appointing a servant in the Public Administration must comply with the fundamental principles set forth in Articles 191 and 192, with which suitable personnel are sought to occupy a public position, with the purpose of guaranteeing efficiency and effectiveness in the public function.

A civil service regime is envisioned, not as a corporate privilege, but as a guarantee of institutional impartiality, which regulates the public function, guarantees the selection of personnel based on criteria of merit and capacity, as well as a fair balance between the rights and responsibilities of public employees. It has also been indicated that such legislation must provide instruments that facilitate the planning, organization, and most efficient use of their personnel for the different administrations. Hence, the employment relationship of public employment is subject to certain specificities and principles, such as those of merit and capacity in access, and also to certain public law norms, such as the regime of incompatibilities, that guarantee objectivity and impartiality in the provision of public service.

It was established that the original constituent framers, when discussing the titles regarding Autonomous Institutions and the Civil Service, considered elevating them to the constitutional level with the desire—on the one hand—to deconcentrate the power of the Executive Branch regarding the new functions entrusted to the State, and its political-electoral influences on its functioning. On the other hand, they considered the serious effects that changes in government caused on the personnel of the Public Administration due to the lack of an adequate legal instrument to protect them. In these precedents, the following analysis conducted from the records of the Constituent Assembly was highlighted:

"Representative Facio expressed that everyone agrees that someday the employees of the Public Administration must be covered by an adequate Civil Service Law. They also agree that a law of this nature is very complex and cannot be enacted overnight, or in a single stroke. It is necessary to gradually adapt it to national reality and conveniences. He added that in the 1949 Bill, they incorporated a special chapter on the Civil Service, some of whose provisions they will submit to the knowledge of the Chamber in due course. The Bill establishes the administrative career constitutionally, so that the past events in our country, when employees were removed from their positions by mere political maneuvers, do not recur. However, the members of the Bill's Drafting Committee realized the difficulty of establishing the Civil Service Law in Costa Rica. That is why they solved the problem through a transitory provision, drafted in the following terms:

'The provisions of Title XIII shall enter into force on the same day as the Civil Service Law, which shall be applied gradually, so that within a period (sic) of no more than ten years, it covers all public servants.' (Volume III, Records of the National Constituent Assembly No. 132, pp. 120 and 121). - Said motion—to include two subsections in Article 140 of the Political Constitution—was put to a vote, resulting in a tie, so it had to be heard and voted on in the following session. Regarding the second proposed subsection, it was rejected. - III In accordance with the foregoing, after extensive discussions, Article 140, subsection 1 was approved… For all of the above, it was provided for Article 140, subsections 1) and 2) of the Political Constitution, the definitive approval of Article 140-X of the Transitory Provisions, by establishing that:

"The Civil Service Law shall not enter into force before November eighth, nineteen hundred fifty, nor after June first, nineteen hundred fifty-three, as agreed by the Legislative Assembly. Said law may also provide that its norms be gradually applied to the various departments of the Public Administration; in any case, said law must protect all public servants included in the second subsection of Article 140, no later than November eighth, nineteen hundred fifty-nine. As long as the Civil Service Law is not in force, the President of the Republic and the respective Minister of Government may freely appoint and remove all officials of their dependency, including the Directors and Managers of Autonomous Institutions and the members of Boards and official bodies, whose appointments had been made prior to the effective date of this Constitution, even if such appointments were for a fixed term." V After the Chapter on Autonomous Institutions was approved, the constituent framers proceeded to consider the Title and Sole Chapter on the Civil Service, articles that defined its scope of application and its principles. In those times, many public servants were removed from their positions to make way for the supporters of the new government, damaging the functioning of the public administration. Precisely to attack this evil, a group of constituent framers advocated the creation of that legal instrument to endow the Public Administration with greater administrative and functional efficiency. The first proposed article stated that "A Civil Service Statute shall regulate the relations between the State and public servants, with the purpose of guaranteeing the efficiency of services, which shall be performed with a technical criterion and by strictly necessary personnel." Deputy Fournier summarized the purpose of the statute, saying it was to regulate the relations between the State and its public servants. This had—as expected—reactions of support and resistance from some deputies, including Representative Esquivel, who considered its inclusion unnecessary because of the existence of Article 140, subsections 1) and 2) of the Political Constitution, a article that had already been approved by the National Constituent Assembly. Notwithstanding the cited resistance, it is clear that the issue had not been exhausted by the mere approval of those subsections, since even the statutory regime was expanded in its concept. Thus, during the discussion of Article 192, Deputy Fournier highlighted:

"It is essential to state the core of the Civil Service Law, that is, that no employee may be removed from their position, except for the grounds for dismissal established in the Labor Code, or in the case of forced reduction of services due to an absolute lack of funds or to achieve a more effective and economical organization thereof. Both the employee and the State are guaranteed." It was highlighted in the discussion referred to above that the mere enunciation of the Civil Service Law in the Political Constitution was not enough, but it was necessary to cite the fundamental principles of the public function statute, the form of appointment based on proven suitability, and their removal, through predetermined legislation such as labor legislation, or for cases of forced reduction of services, whether due to a lack of funds or to achieve a better organization thereof. However, this Chamber warned that what was proposed by the Executive Branch before the Legislative Assembly on April 14, 1953, according to file No. 1581, was a bill that limited its scope of competence solely to its officials, even though the will of the Constituent Power was to approve a statute for the State, which produced the consequences and applicative interpretations of a regulation alien to what was intended by the Constituent Power. The following was explicitly warned:

"VI… It is clear that the intention of the constituent power was to create an administrative labor regime. From a reading of the records of the National Constituent Assembly, the figure of the public employee and the private worker can be distinguished. There is no doubt that the absence of a legal regime that properly regulates the relations between the State and its servants violates Article 191 of the Political Constitution, which also entails the violation of Article 11 of the Magna Carta…

VII.On the one hand, the Law that was issued (Civil Service Statute) has partial scope, since the initiative taken by the Executive Branch in this regard only had the purpose of regulating relations with its servants, that is, within its scope of competence. From this angle, the regulation of service relations among minor public entities has been left out, as it was something the Executive Branch had no interest in, or simply it was not what it considered most urgent. On the other hand, the Civil Service Statute regulated only some of the aspects of the servants' relationship with the State, such as those relating to the servants' rights, duties, selection, classification, promotion, transfers, discipline, and dismissal regime—among the most important—, which evidently concern one of the concerns expressed in the National Constituent Assembly, that is, that related to the suitability and efficiency of the service, but it did not touch upon other equally important aspects, such as that which underlies the approach of this action, that is, the regulation of the economic regime of that relationship and the subjection of the other administrative entities to the public labor regime."

This gap, however, does not authorize using mechanisms designed for a private relationship for a public employment relationship, which must be governed by its own distinct principles.” (The text in bold does not correspond to the original).

The Chamber was clear in those precedents that, from the examination of the Constituent Assembly’s discussions, there exists a mandate and not a mere recommendation to apply specific or special criteria to that employment relationship between the public administration and its servants. To this end, pursuant to the referenced transitory provision, the Legislative Assembly was required to enact, between November 8, 1950, and June 1, 1953, the Civil Service Law whose main characteristic would be its gradual application in the various offices of the Public Administration, a mandate which was not fully complied with at the time.

As set forth in the initial jurisprudential line, as of 1949, the legal framework governing the employment relationship between the public administration and its servants in our country is governed by public law. This regime necessarily implies that this relationship, by its very nature, is based on its own general principles, not only distinct from those of the private labor sector but often even opposed to them.

As indicated, the “legislator… chose to regulate the service not in a general manner, but by sectors, thus enacting the Civil Service Statute (applicable to servants of the Executive Branch) and subsequently other statutes to regulate the provision of services in the remaining branches of the State and in some decentralized institutions.” (see judgments No. 1990-1119 of 2:00 p.m. on September 18, 1990, and No. 2004-7476 of 2:04 p.m. on April 30, 2004, among others). And this, as this Court recognized, is consistent with a systematic interpretation of the Political Constitution, which also recognizes the autonomy of autonomous institutions and the degree of independence of each Branch of the State.

In Judgment No. 1999-5966 of 10:30 a.m. on July 30, 1999, this Court stated the following:

“SIXTH: THE EMPLOYMENT REGIME OF THE SERVANTS OF THE COMMISSION CREATED IN THE LAW. The consultation indicates that ‘the fact that regular officials are subject to a special employment regime’ violates Article 191 of the Constitution, and although the Chamber has already established in its jurisprudence that when the fundamental norm refers to ‘a civil service statute’ it does not mean a single statute, since the different Branches that exercise the government of the Republic (Article 9 of the Constitution) may have their own statutory regime. Regarding this topic, one may consult the abundant jurisprudence of this Chamber, particularly the grounds of judgments number 1148-90, of five p.m. on September twenty-first, nineteen ninety, and 1696-92, of 3:30 p.m. on August twenty-third, nineteen ninety-two. What does constitute a violation of the aforementioned constitutional provisions is that an agency attached to the Executive Branch, regardless of appointments that could or should be made due to and to address an emergency, may have ‘a special employment regime’ in which the role of the General Directorate of Civil Service is limited to coordinating and inspecting it.

In that sense, then, the consultants are correct and the norm, in the terms it was conceived, must be eliminated. It should only be added here that, due to an emergency, exceptional staff hiring mechanisms could be used, but this would be authorized in principle and not even based on a norm that authorizes it.” Thus, other statutes regulating this public employment relationship have been accepted; however, imposing in each of those regulations, as an essential limit, compliance with the principle of suitability and stability in the employment relationship in the public sector, regardless of the differentiated regime adopted, in accordance with the provisions of Articles 191 and 192 of the Constitution. This was reaffirmed by this Chamber in Judgments No. 2001-5694 of 4:23 p.m. on June 26, 2001, No. 2011-014624 of 3:50 p.m. on October 26, 2011, and No. 2006-17746 of 2:36 p.m. on December 11, 2006.

As matters stand, the constitutional principles and norms governing the Civil Service extend to the public employment regime of administrative entities, as the Constituent Assembly’s intention was to create an administrative labor regime, with its own principles derived from the statutory nature of the relationship between public officials and the State, and although it conceived of it in a general manner, in Article 192 of the Constitution it also foresaw the need to establish exceptions to that single regulation. This was evidenced by this Court in Judgment No. 1990-1119, when stating the following:

“…The legislator, however, chose to regulate the service not in a general manner, but by sectors, thus enacting the Civil Service Statute (applicable to servants of the Executive Branch) and subsequently other statutes to regulate the provision of services in the remaining branches of the State and in some decentralized institutions. Nevertheless, despite the fact that the legislator did not adopt the Constituent Assembly’s idea and only partially regulated public service, it is true that the basic principles of the regime (selection by suitability, stability in employment) cover all officials serving the State, both from the central administration and from decentralized entities. But this, in principle, because Article 192 of the Constitution introduces other important elements by stating at the beginning ‘with the exceptions that this Constitution and the civil service statute determine,’ a phrase that requires tempering the previous conclusions regarding the scope of application of the civil service regime or statute. It is obvious that in the mind of the constituent was the idea that not all public servants could be covered by the special regime, since the method of selection, the special capabilities, the functions of each position, and the relationships of trust and dependence are not the same in all cases; hence the principles derived from Article 192 are applicable to certain officials –the majority– not to all. The Constitution itself designated several cases of officials subject to free appointment and removal, such as government ministers, members of the public force, directors of autonomous institutions, diplomatic representatives, and in general, ‘the employees and officials who hold positions of trust’ (Art. 140 subsection 1), leaving to the law (Civil Service Law, states Article 140) the determination of other officials who, in very qualified cases, could be excluded from the general regime. This possibility of excluding certain officials is reiterated by Article 192. It is repeated that the intention of the constituent was that there be a single law, a Statute, regulating all public service. However, what is important is that the ordinary legislator was left, by means of law, the detailed regulation of the coverage of the special regime, which could be done, as it was done, in separate laws, without detriment to the constitutional mandate. By means of law, the legislator has excluded several cases from the common regime. The Civil Service Statute, in its Articles 3, 4, and 5, mentions a good number of officials not considered within the regime. Also, by special law, executive presidents of autonomous institutions, who are appointed by the executive, have been excluded, and in general, a series of officials, almost always appointed for fixed terms, whose common denominator is being in a service relationship that is not typically labor-based, under a regime of hierarchical subordination, but rather one of direction or collaboration, where orders are not mediated but rather directives, in some cases; or, in a relationship of trust that requires granting greater freedom for the appointment and eventual removal of the official; this independently of the permanent nature of the function. This relationship of trust may be based, according to the requirements of the position, on purely subjective, personal aspects; but it can also derive from objective elements born from an ideological community (political in the good sense of the term), necessary for the proper management of public affairs according to plans and programs. The cases of exception, it is clear, must be very qualified, with the special characteristics mentioned that justify unequal treatment. So it must be, for by way of unjustified exception the legislator could render nugatory the constitutional provision aimed at the labor stability of the public employee and the rationality of recruitment, as a general rule. But if the position has some special characteristic that justifies it, the exception will be valid.” (The emphasis is not from the original) As can easily be deduced from what we have said, the intention of the original constituent was to subject all public employment relationships to an administrative law –statutory– regime, meaning no agency or entity of the Public Administration, centralized or decentralized, was exempt from this duty. Hence, while special statutes –specific to decentralized agencies and entities– may exist, provided they respond to the cardinal principles enshrined in the Fundamental Charter, it is also true that it is constitutionally valid to have a single statute regulating relations between the Public Administration, centralized and decentralized, and its servants. The foregoing means that the Legislative Assembly is empowered by the Law of the Constitution to establish a single statute encompassing all public servants, with the exceptions that the Constitution –subsections 1 and 2 of Article 140– and the cited statute determine. Therefore, on this point, the consulted bill is not contrary to said Law and, logically, provided that the exclusive and preclusive powers corresponding to the branches of the State and the decentralized entities are not suppressed, essentially affected, or transferred to other agencies and entities, according to the principle of separation of powers or functions, or the degree of autonomy, respectively..." "...

IX.- Regarding the consultation on violation of judicial independence.- 1) Aspects consulted The consulting deputies consider that the following articles of the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW," being processed in legislative file No. 21,336, violate the principle of judicial independence and therefore Articles 9, 154, and 156 of the Political Constitution, Art. 10 of the Universal Declaration of Human Rights, Art. 14 of the International Covenant on Civil and Political Rights, and Art. 8 of the American Convention on Human Rights. Specifically, they consult on the indicated articles, whether in the heading of the general title or in the rest of the text of the filing brief:

2.a (scope of coverage), 6.b (governing authority of Mideplan), 7 (powers of Mideplan), 9.a (Human Resources offices), 12 (database) 13 (job families), 14 (recruitment and selection), 15 (postulates of recruitment and selection) 17 (Senior Management personnel), 18 (probationary period and appointment term), 19 (mobility or transfers) 21 (single dismissal regime), 22 (dismissal process), 31 (work methodology) 49 subsections a, b, g, and h (amendment to regulations).

In the first place, regarding Articles 12 (database), 13.h (job family of trust positions), 15 (postulates of recruitment and selection), 19 (mobility or transfers), and 31 (work methodology), given that sufficient reasoning is not provided to allow this Chamber clarity on what was consulted, the consultation is declared unanswerable for lack of reasoning. The Chamber observes that despite what they indicated in the consultation, the truth of the matter is that they did not reason it adequately, and with that omission, they do not allow this Court to have certainty about what the questioning is that they raise and the reasons why they might have considered that such norms could potentially have problems of constitutionality in general or, specifically, in relation to the Judicial Branch and the Supreme Electoral Tribunal. On this point, one must recall what is stipulated by Article 99 of the Law of Constitutional Jurisdiction, which states:

"Article 99.- Except in the case of the mandatory consultation provided for in subsection a) of Article 96, the consultation must be formulated in a reasoned memorial, stating the questioned aspects of the bill, as well as the reasons for which there are doubts or objections regarding its constitutionality." Faced with that panorama, given that the Chamber lacks further elements to conduct the analysis of this numeral, it is appropriate, unanimously, to declare unanswerable the constitutionality consultation on the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW" being processed in legislative file No. 21,336, regarding Articles 12 (database), 13.h (job family of trust positions), 15 (postulates of recruitment and selection), 19 (mobility or transfers), and 31 (work methodology), for lack of reasoning of what was consulted, with respect to the Judicial Branch and the Supreme Electoral Tribunal. Thus, it must be understood that this Chamber refrains from making any pronouncement on the constitutionality or not of these norms.

Now, regarding the rest of the norms, the consultants consider them unconstitutional because they seek to subject the Judicial Branch to the provisions issued by the Ministry of National Planning and Economic Policy (Mideplán) and the General Directorate of Civil Service, in matters of public employment. They indicate that the bill allows an agency of the Executive Branch to meddle in the employment management of the Judicial Branch, even issuing resolutions or circulars (Art. 7), allowing intrusions that go beyond the purely administrative or salary-related. They consider the violation of the principles of separation of powers, autonomy, and independence of the Judicial Branch to be evident. They indicate that the bill violates the principle of separation of powers, the autonomy and independence of the Judicial Branch, the principles of legality, legal certainty, proportionality, and reasonableness, because it seeks to regulate the employment relations between the serving persons and the Judicial Branch (Art. 2.a), subjecting it to the application of the Civil Service Statute according to the amendment to Art. 1 of its legal body (Art. 49.B), by including the Department of Human Management of that Branch under the governing authority of Mideplán (Art. 6), being obligated to apply and execute the provisions of general scope, directives, and regulations regarding work planning, employment, performance, compensation, and labor relations management issued by Mideplán (Art. 9), by establishing a single public employment regime of which persons administering justice will form part (Art. 13), by providing for the recruitment and selection of Judicial Branch personnel according to provisions of general scope, directives, regulations, circulars, manuals, and resolutions of Mideplán for each job family (Art. 14), the same as for senior technical management personnel for which it stipulates a 6-month probationary period and a 6-year appointment (Arts. 17 and 18), with the possibility of annual renewal subject to performance evaluation, and the subjection of the agencies of the Judicial Branch whose powers are assigned in the Judicial Service Statute and the Judicial Branch Salary Law, to coordinate everything concerning public employment with Mideplán in its capacity as governing body. Furthermore, the establishment of a single dismissal procedure when one already exists and is regulated in the special legislation (Arts. 21 and 22).

Thus, we proceed to the examination of the indicated articles, with a prior jurisprudential summary on the subject of judicial independence, which will serve as context for the examination of each consulted article.

• 2)Jurisprudential Background on the Constitutional Principle of Separation of Powers and the Constitutional Principle of Judicial Independence To understand the transcendence of the subject of judicial independence for a State of Law like ours, one must start from another basic principle in any democratic system: the principle of separation of powers. Since the Declaration of the Rights of Man and of the Citizen of 1789, Article 16 states the following:

“Article 16.- Any society in which the guarantee of rights is not assured, nor the separation of powers determined, has no Constitution.” Which means that one of the two fundamental pillars for the true existence of a Constitution is the safeguarding of the principle of separation of powers. According to reiterated constitutional jurisprudence on this principle, the Government of the Republic is exercised by the people and three distinct and independent Powers among themselves: The Legislative, the Executive, and the Judicial, enshrined in Article 9 of the Political Constitution and erected as “one of the fundamental pillars of the Democratic State, insofar as it establishes a system of checks and balances that guarantees respect for constitutional values, principles, and norms for the direct benefit of the country’s inhabitants.” (Judgment No. 2006-013708). Since Judgment No. 6829-1993, it was indicated that the theory of the separation of Powers is interpreted as the need for each State Body to exercise its function independently of the others (Article 9 of the Political Constitution). Although there can be no interference or invasion of the assigned function, collaborations must necessarily occur between Powers. Currently, constitutional doctrine and practice affirm that it is appropriate to speak of a separation of functions, that is, the distribution of them among the different state bodies. Specifically, regarding the independence of the Judicial Branch and the independence of judges, there is also abundant jurisprudence of this Chamber. In general, it has been affirmed that, in democratic political regimes, the principle of the independence of the judge, in particular, and of the Judicial Branch, in general, has fundamental value because the legitimacy of the judge and the impartiality of the judicial decision rest upon it. It has been indicated that it is crucial for the proper functioning of the democratic State of Law –understood under its postulate of the primacy of law– that the jurisdictional function can be exercised without undue pressures, within the bosom of a truly independent Judicial Branch. A principle that, in the Costa Rican case, not only has due constitutional support but is also contemplated in multiple international instruments. This Chamber has highlighted since its inception the importance of judicial independence by reaffirming that the administration of justice is an exclusive competence of the Judicial Branch (see Judgments No. 1991-0441, 1994-2358, 1996-6989, 1999-4555, 2006-7965). The Inter-American Court of Human Rights –the jurisdictional body of the Inter-American Protection System– has determined:

“(…) one of the main objectives of the separation of public powers is the guarantee of the independence of judges” (I/A Court H.R. Case of the Constitutional Court vs. Peru. Merits, Reparations, and Costs. Judgment of January 31, 2001. Series C No. 71, para. 73).

It has also indicated that “Such autonomous exercise must be guaranteed by the State both in its institutional facet, that is, in relation to the Judicial Branch as a system, as well as in connection with its individual aspect, that is, in relation to the person of the specific judge. The objective of the protection lies in preventing the judicial system in general and its members in particular from being subjected to possible undue restrictions in the exercise of their function by bodies outside the Judicial Branch or even by those magistrates who exercise review or appellate functions. Additionally, the State has the duty to guarantee an appearance of independence of the magistracy that inspires legitimacy and sufficient confidence not only in the litigant but in the citizens of a democratic society.” (I/A Court H.R. Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) vs. Venezuela. Preliminary Objection, Merits, Reparations, and Costs. Judgment of August 5, 2008. Series C No. 182, para. 55.).

In Judgment No. 1999-1807, the constitutional and conventional foundation of the principle of judicial independence was indicated, highlighting external independence (of the Judicial Branch as a body) and internal independence (that of the judge):

“VIII.- The independence of the Judicial Branch is constitutionally guaranteed in Articles 9 and 154. The American Convention on Human Rights, a norm of international rank directly applicable in our country, also refers to the subject. The American Convention on Human Rights establishes the independence of the judge as a human right, by providing in Article 8.1 that: ‘1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, or any other nature. 2. ...’ The independence of the Judicial Body is posited externally. The Judicial Body is independent vis-à-vis the other Branches of the State, but not so the judge, whose independence must be analyzed in a more complex manner. But when it is assured that a Judicial Branch is independent, the same must be predicated of its judges, for it is they who must make the function entrusted to the former a reality. The independence that truly ought to matter –without detracting from the importance of that of the Judicial Body– is that of the judge, related to the concrete case, for it is this that functions as a citizen guarantee, in the terms of the American Convention on Human Rights. The effective independence of the Judicial Branch contributes to the ability of its constituent judges to also be independent, but it may well occur that the Body as a whole has its independence normatively guaranteed, but that its members are not independent, for multiple reasons” (cited in votes No. 2006-15252, 2008-9495, 2008-16529).

Regarding the relationship between the independence of the judge and the principle of impartiality, in Vote No. 1998-2378 it was indicated: “The independence and impartiality of the judge constitute related concepts and are undoubtedly constitutional principles in a political regime like ours. Independence determines that the judge is solely subject to the Constitution and the Law, and impartiality means that for the resolution of the case, the judge will not be swayed by any interest other than the correct application of the law and the just solution of the case.” Regarding judicial independence as a guarantee for judges and a fundamental right (guarantee for the parties to the process), in Judgment No. 1998-5795 it was held: “From the provisions of Article 154 of the Political Constitution, which states: ‘The Judicial Branch is subject only to the Constitution and the law, and the resolutions it issues in matters within its competence impose no other responsibilities upon it than those expressly indicated by legislative precepts,’ derives the principle of the independence of the Judicial Branch, which comprises both the body or institution as a whole and the Judge in the knowledge of the matters submitted to his judgment. In relation to this official, it must also be recognized that there exists a double protection of his investiture, since the independence of the judge –as a guarantee for the parties involved in the matter sub judice– relates to both the external and the internal, in the sense that he is protected from influences and incidences –both external and internal– that may have one effect or another on the decision of a concrete case submitted to his knowledge, so that they may rule with strict adherence to the provisions of the legislation in force; in other terms, the judge is protected so that neither the parties involved in the process, third parties, judges of higher grade, ‘influential’ members of the Branches of the State, including the Judicial Branch, can influence his decision. Thus, even less permissible would be the obligation –imposed by a superior in grade– to rule in a particular manner in a concrete case or to coerce the adjudicator in that sense. The guarantee of independence of judges, more than a guarantee for these officials –which indeed it is–, constitutes a guarantee for individuals (parties to the process), in the sense that their cases will be decided with strict adherence to the Constitution and the laws.” From which it follows that the definition of Judicial Independence includes the following two types:

• External judicial independence: refers to the existence of a set of guarantees aimed at preventing a Court from being controlled by other governmental bodies, such as the Executive and Legislative branches. It is the relationship of the Judicial Branch with other actors in the political system. In this sense, the justice administration system is autonomous insofar as it depends on itself and not on other branches. External independence is the absence of external pressures or influences that make the institution vulnerable, as a result of threats to the availability of resources allowing it to carry out its work autonomously, to the labor stability and promotion possibilities of its officials, to their integrity and assets, and to its infrastructure capacities to meet citizen demands.

• Internal judicial independence: relates to the ability of judges to issue rulings without fear of reprisals.

The “independence of exercise” (the fact that a judge resolves a conflict free from improper interference) becomes “structural independence” (the set of formal guarantees and structural conditions protecting the judge and the Judicial Branch from any type of intervention or control). In Vote No. 2001-6632, the importance and constitutional rank of the principle of independence of the Judicial Branch was emphasized, also as a right of citizens, by stating: “No one today can detract from the transcendental value that the independence of judges plays in the real functioning of the democratic State of law. It is clearly accepted that more than a principle, and even beyond what could be pointed out as a privilege granted to the Judge, we are facing the right of citizens to have independent judges.” Subsequently, in Judgment No. 2015-15726, the principle of judicial independence is underscored, also as a fundamental value of the democratic regime: “III.- REGARDING THE PRINCIPLE OF INDEPENDENCE OF THE JUDGE. Within democratic political regimes, the principle of the independence of the judge, in particular, and of the Judicial Branch, in general, has fundamental value because the legitimacy of the judge and the impartiality of the judicial decision rest upon it.” Mention can also be made of Judgment No. 2000-5493, where it was indicated that the independence of the Judicial Branch translates, in economic matters, through the tenure (inamovilidad) of its personnel, as well as, functionally, through the real possibility of making its decisions according to its own criteria and not as a result of pressures from specific groups, institutions, or persons:

“Regarding the principle of judicial independence, we must point out that constitutionally this principle derives from Article 153 of the Political Constitution, which states: ‘It is the responsibility of the Judicial Branch, in addition to the functions assigned to it by this Constitution, to hear civil, criminal, commercial, labor, and administrative dispute cases, as well as any others established by law, whatever their nature and the status of the persons involved; to resolve them definitively and to execute the resolutions it pronounces, with the assistance of the public force if necessary.’ Article 154 of the Constitution, in this same sense, indicates: ‘The Judicial Branch is subject only to the Constitution and the law, and the resolutions it issues in matters within its competence impose no other responsibilities upon it than those expressly indicated by legislative precepts.’ The legal framework constitutionally established regarding judicial independence is complemented by Articles 1 through 8 of the Organic Law of the Judicial Branch, which develop the constitutional assumptions. We must also refer to Articles 162 through 173 of the Organic Law of the Judicial Branch, which mention the jurisdiction and competence of judges, and it is especially pertinent to cite the following: “Article 162.

The authority to administer justice is acquired with the office to which it is attached and is lost or suspended for all matters when, for any reason, the judge ceases to be a judge or is temporarily suspended from their duties." "Article 165. Every judge has their jurisdiction limited to the territory and the class of matters designated for them to exercise it; the procedures that the cases they hear require to be carried out in the territory of another judge may only be executed through the latter, unless legally authorized otherwise. A judge may only hear matters not subject to their jurisdiction when jurisdiction is legally extended or delegated to them. Taking into consideration the foregoing legal framework, this Chamber considers that the principle of judicial independence could be defined as that power granted by the Constitution and the law through which the judge, acting within their jurisdictional and competence sphere, exercises the power delegated to them by the State to resolve a dispute raised by individuals or by the Administration itself. This principle is directly linked to the principles of unity and monopoly of jurisdiction, as well as impartiality and competence.

Judicial independence manifests on various levels. On the external level, it translates into the autonomy of the Judicial Branch in economic matters and the lifetime tenure (inamovilidad) of its personnel, as well as, functionally, the real possibility of making decisions according to their own criteria and not as a result of pressures from certain groups, institutions, or persons. Now, on the internal level, independence consists of the autonomy that lower judicial instances should enjoy in their decisions with respect to those of higher rank. Furthermore, in a Democratic State governed by the Rule of Law like ours, the other side of independence is the responsibility of judicial personnel, as well as control over their activities. Regarding the content and nature of internal judicial independence, the judicial apparatus implies that lower courts enjoy autonomy in their jurisdictional decisions with respect to those of higher rank. However, legally, the existence of remedies traditionally provided for by law (appeal, review, cassation, and others) does not constitute a violation of this principle, unless they are used irregularly." All of the foregoing is contemplated in the following sources, some of which are not norms in force in Costa Rica, but are documents reflecting a clear doctrine on the subject:

• Political Constitution. Art. 9 (independent), 154 ("The Judicial Branch is subject only to the Constitution and the law...") and 177 (financial autonomy).

• Art. 8.1 of the American Convention on Human Rights ("by a competent, independent, and impartial judge or tribunal").

• "Basic Principles on the Independence of the Judiciary," adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan from August 26 to September 6, 1985, and confirmed by the General Assembly in its resolutions 40/32 of November 29, 1985 and 40/146 of December 13, 1985, in principle 11.

• "European Charter on the Statute for Judges," adopted in Strasbourg, between July 8 and 10, 1998, paragraphs 6.1 and 6.4.

• "Statute of the Ibero-American Judge," approved at the VI Ibero-American Summit of Presidents of Supreme Courts and Supreme Tribunals of Justice, held in Santa Cruz de Tenerife, Canary Islands, Spain, on May 23, 24, and 25, 2001, in Article 32 ("Art. 32. Remuneration. Judges must receive sufficient, irreducible remuneration commensurate with the importance of the function they perform and the demands and responsibilities it entails") • Report No. 1 of November 23, 2001, rendered by the Consultative Council of European Judges (CCJE), when examining the issue of the independence and lifetime tenure (inamovilidad) of judges. Regarding the issue of judges' salaries.

• The Statute of Justice and Rights of Users of the Judicial System, approved by the Full Court, in Articles 19, 20, 21, 22, 23, and 24 of which reference is made to the independence of the Judicial Branch and of judges. Article 49 of the cited Statute also enshrines, like the international instruments examined, the principle of the irreducible salary of the judge.

On the other hand, in addition to what has been said regarding the topic of public employment, it must be indicated that the basic principles derived from Articles 191 and 192 of the Political Constitution are not foreign to the Judicial Branch. Thus, for example, the Chamber has expressly referred to the principles derived from such articles when deciding on the appointment system in the Judicial Branch (vote no. 2001-05694). This must necessarily be complemented by the provisions of Article 156 of the Political Constitution, which, regarding the Judicial Branch, establishes:

"ARTICLE 156.- The Supreme Court of Justice is the superior court of the Judicial Branch, and the courts, officials, and employees in the judicial branch depend on it, without prejudice to what this Constitution provides regarding civil service." Now—and as it pertains to this consultation—it must be indicated that there are several precedents from the Chamber in which it is expressly understood as fully justified that, in the specific case of the Judicial Branch, it have a special, separate, and differentiated regulation—although subject to the fundamental constitutional principles provided for in Articles 191 and 192. First, vote no. 550-1991 can be cited, which states:

"(…) in the case of the branches of government, their own constitutional independence, generally guaranteed by Article 9 of the Constitution and, in those of the Judicial Branch and the Supreme Electoral Tribunal, by those of Articles 99 et seq., 152 et seq. and 177 thereof, as well as their own organic norms, impose upon their heads the attribution and responsibility to set the remuneration, representation expenses, and other facilities inherent to the offices, for their own members and subordinates, within, naturally, their budgetary availability, independently, of course, of whether their amounts may or may not coincide with those of the deputies." Later, in vote no. 01472-1994, the Chamber indicated that, indeed, Articles 191 and 192 of the Political Constitution underpin the existence of "an employment regime governed by Public Law, within the public sector," with "its own general principles," such that "the labor relations existing between the State and its servants must be conceived as a whole, regulated by general principles, provisions, and policies, without distinction, save for the exceptions expressly contemplated by law, regarding the functional centers on which those servants depend." Now, in that same vote, it was added:

"(…) this Chamber has established that it is not possible to indiscriminately equate remunerations among members of the public branches, because imposing equal treatment on situations or officials who are objectively in circumstances of inequality would violate, in general, the principle of equality and specifically in matters of salaries and working conditions, Article 57 of the Constitution, given that the requirements, limitations, prohibitions, or conditions for exercising the office are not the same for officials or employees of the executive branch as they are for members of the other branches or constitutional organs. Indeed, the principle of equality before the law is not absolute in nature, as it does not grant a right to be equated to any individual, but rather to demand that the law not make distinctions between two or more persons who are in the same legal situation or identical conditions, meaning that equal treatment cannot be demanded when the conditions or circumstances are unequal." Furthermore, regarding the exception of the Judicial Branch to the single employment regime (régimen único de empleo) and to wage policy (política salarial) as government policy, in judgment no. 1994-3309, the Chamber expressed:

"VII.- Having defined wage policy as part of government policy, it is necessary to reiterate that when the constituent decentralized the Executive Branch, it sought to avoid arbitrary and anti-technical interference regarding the management of each of those institutions, defined by law. But the constituent legislator did not opt to create a wage or labor regime segregated from the central Executive Branch, because there is no doubt that Title XV, Single Chapter of the Political Constitution has as its immediate antecedent the prior practice of massively dismissing state officials and employees on the occasion of each change of government. The antithesis of this practice, then, is a stable, professional, permanent public service system, governed by an integrated and coherent normative body, establishing a single employment regime for public servants that includes all State institutions, with the exception made in Article 156 of the Magna Carta regarding the Judicial Branch." Meanwhile, in vote no. 1996-03575, the Chamber indicated that the competent state organ in matters of public employment is each branch of the Republic, given that it is these—Executive, Legislative, Judicial, and Supreme Electoral Tribunal—that are best equipped to determine their needs and understand their particular conditions:

"(…) From the cited jurisprudence, it follows, in addition to the existence of the Public Employment Regime, that the ordinary legislator, when developing Articles 191 and 192 of the Political Constitution in practice, did not do so by promulgating a single law but rather by approving several laws related to the topic in question, and an example of this is the Civil Service Statute, which is partial legislation applicable only to servants of the Executive Branch. In this order of ideas and in accordance with Article 9 of the Constitution, in relation to the principle of separation of powers, interpreted by this Chamber in judgment No. 6829-93 at eight thirty-three on December twenty-four, nineteen hundred ninety-three, as a separation of functions, by providing:

"II.- THE THEORY OF SEPARATION OF POWERS. The theory of the separation of Powers is traditionally interpreted as the need for each Organ of the State to exercise its function independently of the others (article 9 of the Political Constitution). Although interference or invasion of the assigned function cannot occur, collaborations between Powers must necessarily be produced. Currently, constitutional doctrine and practice affirm that there is no absolute separation; moreover, nothing prevents the same function—not primary—from being exercised by two Powers or by all, which is why one cannot speak of a rigid distribution of competences based on function and subject matter. The State is a unity of action and power, but that unity would not exist if each Power were an independent, isolated organism, with broad freedom of decision, which is why in reality one cannot speak of a division of Powers in a strict sense; the Power of the State is unique, although the state functions are several. It is advisable to speak of a separation of functions, that is, the distribution of them among the different state organs. This separation of functions stems from the technical problem of the division of labor: the State must fulfill certain functions and these must be carried out by the most competent state organ..." Furthermore, and for greater elaboration, this Chamber in judgment number 990-92 at sixteen thirty on April fourteenth, nineteen hundred ninety-two, provided: "Second: The positivization of the 'democratic principle' in Article 1 of the Constitution constitutes one of the pillars, the core, so to speak, on which our republican system rests and, in that character of supreme value of the Constitutional State of Law, it must have direct efficacy over the rest of the sources of the infra-constitutional legal system and obviously over the Regulation, from which it follows that the power of parliament to issue norms for its own internal governance (interna corporis) is not only provided for by the Political Constitution in its Article 121 subsection 22, but is consubstantial with the democratic system and specific to the Legislative Assembly as a constitutional power, pursuant to Title IX of the Fundamental Charter..." Thus, applying the preceding principle to the subject under study, namely, the Public Employment Regime, it is possible to conclude that the competent state organ in this matter is each branch of the Republic, given that it is these—Executive, Legislative, Judicial, and Supreme Electoral Tribunal—that are best equipped to determine their needs and understand their particular conditions." The foregoing does not preclude the inclusion of the Judicial Branch within a Public Employment Law, as has been explained supra, in the general recital (considerando) of this judgment.

Subsequently, in vote no. 1999-919, this Tribunal heard the constitutional consultation formulated regarding the then bill for the Law of Financial Administration of the Republic and Public Budgets, which even contained—and contains—a provision analogous to the one introduced in the bill now under consultation, which reads:

"Article 1.- Scope of application This law regulates the economic-financial regime of the organs and entities administering or custodians of public funds. It shall be applicable to:

(…)

• b)The Legislative and Judicial Powers, the Supreme Electoral Tribunal, their dependencies and auxiliary organs, without prejudice to the principle of separation of Powers established in the Political Constitution.

(…)

On that occasion, this Chamber considered that, in effect, the principle of separation of powers was not infringed, given that—as derived from the rest of the articles of the bill—the guidelines and directives issued by the Executive Branch necessarily required the approval of the heads of the organs mentioned in the cited subsection b, who are "holders of constitutional functional independence with respect to the Executive Branch." Specifically, it was stated:

"Regarding the separation of powers, this Chamber considers that, from a careful reading of the cited articles, it follows that the consulted bill seeks to give the Budgetary Authority powers to elaborate in a preliminary phase—since they later require approval from the Executive Branch—the guidelines and directives that will determine the Administration's operation in budgetary matters. The Chamber will refer to the efficacy of such provisions later in this same recital (considerando). With regard strictly to the organs covered by subsection b) of Article 1 of the bill, all of them characterized as holders of constitutional functional independence with respect to the Executive Branch, the same text of Articles 21 subsection b) and 23 in fine provides that the approval of such directives is the responsibility of the heads of such organs, with the Budgetary Authority having only the function of proposing such guidelines. That is, the same text provides a device that respects the functional independence granted to the organs of subsection b) of Article 1 in budgetary matters, since the fact that the heads of the mentioned organs do not approve said guidelines carries no legal consequence. Due to the foregoing, it is fitting to conclude that the cited articles do not represent any form of affront to the separation of powers, enshrined in Article 9 of the Constitution." Later, when this Chamber ruled specifically on the disciplinary regime (régimen disciplinario) in the case of the Judicial Branch and on its special regulations, in vote no. 1995-01265, it was indicated:

"(…) the claimant must take into account that the Judicial Branch, despite being a Branch of the State, and governed by Administrative Law, has a special regime due to the function it performs; and in matters of public employment relations, although the general principles are set forth in Administrative Law and Labor Law—as parameters—the specifications are regulated in accordance with the regulations that specifically refer to the Judicial Branch, thus, it is governed in accordance with the provisions of the Organic Law of the Judicial Branch, the Judicial Service Statute, the Regulation on background assessments for appointing officials who administer justice, the Organic Law of the Judicial Investigation Agency, the Regulation on Evaluation for Employees of the Judicial Branch, etc. As can be observed, it is a matter of special regulations, which cannot be tacitly repealed by a later general provision, as the claimant asserts." (reiterated in vote no. 2017-003450).

There are multiple votes from the Chamber highlighting the particular relevance that the proper regulation and application of the disciplinary regime (régimen disciplinario) holds for the protection of judicial independence. The Chamber has highlighted the intimate relationship between judicial independence and the system of appointment, removal, and disciplinary regime of judges. Thus, for example, in vote no. 2009-4849, an extensive development on this topic was undertaken:

"(…) It is crucial for the proper functioning of the democratic State of Law—understood under its postulate of the primacy of law—that the jurisdictional function can be exercised without undue pressure, within a truly independent Judicial Branch, as has been repeatedly established by the Chamber:

"A) PRINCIPLE OF INDEPENDENCE.- The Political Constitution, in its Article 9, establishes that the Government of the Republic is exercised by three distinct and independent Powers: Legislative, Executive, and Judicial. Furthermore, the third paragraph of this article indicates the existence of the Supreme Electoral Tribunal with the rank and independence of the Powers of the State. The note of independence of the Judicial Branch in relation to the other Powers of the State must be emphasized. This independence must concur in the judges, who have the mission of administering justice.

Independence is the absence of subordination to another, the non-recognition of a greater power or authority. The independence of the judge is a legal concept, relative to the absence of legal subordination. The guarantee of lifetime tenure (inamovilidad) and the regime of incompatibilities aim to ensure the total independence of the members of the Judicial Branch. (…)

It is thus how independence is a guarantee of the jurisdictional function itself. Independence is deemed in relation to the judge as such, as it is they who hold jurisdictional power. It is a matter of preventing ties and relationships that could lead to a de facto reduction of the judge's freedom." (judgment #2883-96 of 17:00 hours, June 13, 1996) Of course, the principle postulated in the abstract requires being made concrete in the person of each and every judge. In other words, the merely organic principle defended for the Judicial Branch is, at the same time, the independence guaranteed to each judge in their particular case, translated, additionally and above all, into the fundamental right of the parties in any proceeding to have an impartial arbiter who declares the law of the case submitted to their knowledge:

"VIII.- The independence of the Judicial Branch is constitutionally guaranteed in Articles 9 and 154. The American Convention on Human Rights, a regulation of international rank with direct application in our country, also refers to the topic. The American Convention on Human Rights establishes the independence of the judge as a human right, by providing in Article 8.1 that:

«1.- Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial judge or tribunal, previously established by law, in the substantiation of any criminal accusation made against them, or for the determination of their rights and obligations of a civil, labor, or any other nature.

2.- ...» The independence of the Judicial Organ is posited externally. The Judicial Organ is independent vis-à-vis the other Powers of the State, not so the judge, whose independence must be analyzed in a more complex manner. But when it is assured that a Judicial Branch is independent, the same must be predicated of its judges, for it is they who must realize the function entrusted to the former. The independence that should truly matter—without diminishing the importance of that of the Judicial Organ—is that of the judge, related to the specific case, for it is this that functions as a citizen guarantee, under the terms of the American Convention on Human Rights. The effective independence of the Judicial Branch contributes to the ability of its judges to also be independent, but it may well be that the Organ as a whole has its independence normatively guaranteed, yet its members are not independent, for multiple reasons." (judgment #5790-99 of 16:21 hours, August 11, 1999) On the topic, pronouncement #5795-98 of 16:12 hours, August 11, 1998, can also be cited:

"From the provision in Article 154 of the Political Constitution, which states:

"The Judicial Branch is subject only to the Constitution and the law, and the resolutions it issues in matters within its competence impose no other responsibilities than those expressly indicated by legislative precepts" derives the principle of the independence of the Judicial Branch, which encompasses both the organ or institution as a whole, and the Judge in hearing the matters submitted for their judgment. In relation to this official, it must also be recognized that there is a double protection of their investiture, since the judge's independence—as a guarantee for the parties involved in the matter sub judice—is both external and internal, in the sense that they are protected from influences and incidences—both external and internal—that may have one or another direction on the decision of a specific case submitted to their knowledge, so that they rule in strict adherence to the provisions of the applicable regulations; in other terms, the judge is protected so that neither the parties involved in the proceeding, third parties, judges superior in grade, 'influential' members of the State Powers, including the Judicial Branch, can influence their decision, which much less allows for the obligation—imposed by a superior in grade—to rule a specific case in a determined manner or coerce the decision-maker in that sense. The guarantee of independence of judges, more than a guarantee for these officials—which it indeed is—constitutes a guarantee for individuals (the parties to the proceeding), in the sense that their cases will be decided in strict adherence to the Constitution and the laws." And in decision #2001-6632 of 16:21 hours, July 10, 2001, the importance and constitutional rank of the principle of independence of the Judicial Branch was emphasized:

"No one today can detract from the transcendental value that the independence of judges plays in the real functioning of the democratic State of law. It is clearly accepted that more than a principle, and even beyond what could be pointed to as a privilege granted to the Judge, we are before the right of citizens to have independent judges. But, simultaneously with this consideration of fundamental value, it can be affirmed that we are facing a task, if not unfinished, that at least demands an attitude of permanent vigilance, for the true endeavor to achieve independence in this field is historically recent. Moreover, being honest, it could be said that this right of persons (citizen, litigant, user, or however termed) is still not well received—incorporated and applied—in legal systems. As some authors point out, the formula according to which the judge 'only' must be subject to the law (similar to how our Article 154 of the Constitution captures it) was conceived entirely directed at excluding the intervention or interference of the sovereign (monarch) in jurisdictional decisions. Of course, in the interest of placing the judge safe from the sovereign, they were abruptly ascribed to the conception of a mechanical or quasi-mechanical application of the law as an expression of popular sovereignty, a matter which, fortunately, is today totally overcome. Therefore, in a correct understanding of the institutional benefits of counting—yesterday, today, and always—on independent judges, we must retain the concept of 'sovereign' to apply it to anyone who, from outside or beyond the procedurally established means for reviewing judges' resolutions, wishes to unduly impose criteria or forms of action upon them. In the modern design of the Costa Rican legal system, not even the law is sovereign, since the judge is not bound by the law, whatever it may be, but by the law that is also legitimately constitutional, but ultimately, there will even be hypotheses in which they will be bound, above a Constitutional provision, by a norm or a principle contained in some international instrument of Human Rights in force in the country. This is enshrined at the highest level of our legal system, and in this sense, we can refer to Article 48 of the Political Constitution. As mentioned, Article 154 of the Constitution captures the principle of the judge's independence, but furthermore, despite not having the legal strength one would wish, one may finally cite the Judicial Ethics Code, definitively approved by our Supreme Court of Justice on February twenty-eighth, year two thousand, whose second article, as relevant, provides:

"Article 2". A PRIORI PRINCIPLES OF THE RULES OF THIS CODE.

The following are understood as a priori principles, necessary for the proper functioning of the administration of justice:

… 2. The independence of the Judge, who is only subject to the Constitution and the law, that is, to the legal system, its higher values and principles…" In accordance with the foregoing, it must be affirmed that the judge has no sovereigns over them in jurisdictional performance and for that very reason, they are protected through prohibitions or incompatibilities from performing other types of activities, given also, from that angle of analysis, that independence becomes a guarantee of impartiality, a note that must accompany the exercise of jurisdiction day by day." IV.- In harmony with the previous jurisprudential line, the Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan from August 26 to September 6, 1985, and confirmed by the General Assembly in its resolutions 40/32 of November 29, 1985 and 40/146 of December 13, 1985, provide:

"Independence of the judiciary "1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. (…)" Text confirming that it is with respect to judges considered in their individual sphere that the difference between external and internal independence is especially pertinent, understanding the former as independence from other state organs or entities, as well as from pressure groups in general, while the latter warns about coercion that may be exercised within the judicial organization itself, whether by jurisdictional authorities of higher instances or by administrative officials who are in a position of power vis-à-vis the judges.

V.- Relationship of judicial independence with the appointment, removal, and disciplinary regime (régimen disciplinario) of judges. It is no coincidence that the different instruments and declarations dealing with the subject of judicial independence address administrative aspects such as the designation of judges, their dismissal, and the application of disciplinary sanctions. In that practical and individualized dimension, ultimately, their protective jurisdiction against all kinds of pressures is at stake. A judge who can be designated through opaque mechanisms, or whose dismissal or sanction can occur without sufficient justification by any type of authority, is a judge in a frankly vulnerable situation. The United Nations Basic Principles on the Independence of the Judiciary, previously cited, stipulate:

"Disciplinary measures, suspension and removal from office.

"17.

Any accusation or complaint made against a judge concerning their judicial and professional conduct shall be processed promptly and fairly in accordance with the relevant procedure. The judge shall have the right to be heard impartially. During this initial stage, the examination of the matter shall be confidential, unless the judge requests otherwise.

18. Judges may only be suspended or removed from office for incapacity or conduct that renders them unfit to continue performing their duties.

19. Any procedure for the adoption of disciplinary measures, suspension, or removal from office shall be resolved in accordance with established standards of judicial conduct.

20. Decisions adopted in disciplinary, suspension, or removal proceedings shall be subject to independent review. This principle may not apply to decisions of the supreme court and to those of the legislative body in recusal or similar proceedings." In the same vein, the Statute of the Ibero-American Judge, adopted by the International Union of Magistrates, addresses the exercise of disciplinary authority over judges:

"6.- DISCIPLINARY REGIME.

The law shall define, as concretely as possible, the acts that constitute disciplinary infractions for Judges.

The entity with disciplinary competence shall be exclusively the Judiciary itself.

The disciplinary procedure, which may be initiated by any person, organ of sovereignty, or organ of the State, shall give rise to the use of all means of defense and shall be specifically adversarial.

The most serious disciplinary sanctions may only be adopted by a qualified majority." The Universal Statute of the Judge, approved at the meeting of the Central Council of the International Union of Magistrates in Taipei, Taiwan, on November 17, 1999, follows the same trend:

"Art.11: Administration and principles regarding discipline.

The administrative and disciplinary management of members of the judiciary must be exercised under conditions that preserve their independence, and is based on the implementation of objective and suitable criteria.

When this is not sufficiently ensured through other means resulting from a proven tradition, judicial administration and disciplinary action must be the competence of an independent body composed of a substantial and representative portion of judges.

Disciplinary sanctions against judges may only be adopted for grounds initially provided for by law, and observing predetermined procedural rules." Additionally, on a purely illustrative basis, it is considered relevant to bring up that the European Commission for Democracy through Law, known as the Venice Commission (advisory body of the Council of Europe on constitutional matters), when rendering an opinion on the Law on Liability and Disciplinary Proceedings for Ordinary Judges in Georgia in March 2007, emphasized the necessary balance between the disciplinary liability of judges and the guarantees of their independence, without compromising the latter or uselessly limiting it. On that occasion, provision 5.1 of the European Charter on the Statute for Judges was recalled, stating:

"A failure by a judge to fulfill one of the duties expressly established in the statute may only give rise to a sanction if it is imposed by means of a decision, based on a proposal, recommendation, or agreement of a jurisdiction or body composed of at least half judges; and within the framework of an adversarial procedure where the judge under investigation may be assisted by counsel. The scale of sanctions that may be applied must be specified by the statute and its application subject to the principle of proportionality. (…)" Thus, the disciplinary regime could become a threatening tool for the judge's independence and, indirectly, for the Rule of Law. A judge cannot be removed from office during the duration of their term, nor sanctioned, except for weighty reasons (ethical violation, ineptitude, for example), following due process guarantees. Appropriate procedures for appointment, promotion, and disciplinary matters—which are not only set forth on paper but also complied with in practice—are essential for protecting what has been called the security of tenure of judges. In the specific case of disciplinary authority, a well-structured disciplinary procedure, due process protections, and proportionality between sanction and infraction reduce vulnerability to abuses that harm judicial independence." For its part, in ruling no. 2017-009551, the Chamber analyzed the constitutionality of subsection g) of Article 2 of the Worker Protection Law (Ley de Protección al Trabajador), insofar as it provided: "Supervised entities. All authorized entities, the CCSS with respect to the Disability, Old Age, and Death Regime, and all entities administering pension regimes created by laws or collective agreements prior to the entry into force of this law." It was questioned, in particular, that SUPEN could oversee the Judicial Branch’s Pension and Retirement Fund (Fondo de Pensiones y Jubilaciones del Poder Judicial). In that precedent, the content of the principle of separation of functions was analyzed in relation to the principles of unity, coordination, and unity of the State. Finally, it was concluded that the regulation was constitutional, because for it to be unconstitutional it must:

"interfere, in effect, with the constitutional powers to order, plan, or program, for example, the administrative function of personnel management, of administering justice, or functions related thereto, which would be beyond the legislator's reach, but this is not the case. On the other hand, the problem does not seem to lie in the interference that an excess of legislative regulation would produce over the forms and means that the Superior Council of the Judiciary must use to achieve the ends set for the fund; if that were so, it could be challenged judicially on that ground." In that same ruling, the importance of the Judiciary in the Rule of Law and the exercise of its administrative function with independence was emphasized:

"The Judiciary is not today an 'empty' or 'devalued' power (as it was considered in the beginnings of the modern State); it is precisely one of the clear objectives of dictators to lower the profile of its independence, to undermine economic independence, or by packing the courts with 'ideologically oriented' judges (court-packing that fortunately did not occur in the USA despite a large partisan majority in Congress in tune with its president F. D. Roosevelt, but with somber criticism within his own ranks); if importance is not given to the Judiciary in the social and democratic Rule of Law for its correct functioning, its weakening leads to forms of anti-democratic governments. Proof of this is that one of the functions that authoritarian or totalitarian governments first control is the judicial function, hence the importance of every democratic system having a robust Judiciary." (…) "both legislative and judicial functions require an administrative support structure for the achievement of their essential or primary function, such as the administrative function that helps channel all their activity; which, logically, extends to the human resources or personnel of the Branches of the Republic, meanwhile, behind the fundamental function is the administrative function of personnel, agents, and public servants, etc." Thus, in ruling no. 2018-019511, which addressed the legislative consultation regarding the bill for the "Public Finance Strengthening Law (Ley de Fortalecimiento de las Finanzas Públicas)" (legislative file no. 20.580), this Chamber concluded—after conducting interpretive work on the content of the bill—that, specifically, the provisions in articles 46, 47, and 49, concerning the "steering authority over public employment held by Mideplán" and "the mandatory nature of the technical and methodological guidelines of the Directorate General of the Civil Service (Dirección General del Servicio Civil)", did not apply to the Judiciary. This interpretation was made taking into consideration the principle of independence of the Judiciary. In particular, it was stated:

"The reading of the constitutional framework begins with the recognition of the independence of the Judiciary, one of the cardinal foundations of our Rule of Law:

"ARTICLE 9 – The Government of the Republic is popular, representative, participatory, alternative, and responsible. It is exercised by the people and three distinct and independent Branches. The Legislative, the Executive, and the Judicial.

No Branch may delegate the exercise of the functions that are its own. (…)" "ARTICLE 154.- The Judiciary is subject only to the Constitution and the law, and the resolutions it issues in matters within its competence impose no responsibilities upon it other than those expressly set forth by legislative precepts." "ARTICLE 156.- The Supreme Court of Justice is the highest court of the Judiciary, and the courts, officials, and employees in the judicial branch depend upon it, without prejudice to what this Constitution provides regarding the civil service." These constitutional provisions have given rise to the development of a profuse normative framework, specifically designed to regulate the Judiciary. Among the norms of this framework are the Organic Law of the Judiciary (Ley Orgánica del Poder Judicial), the Organic Law of the Public Ministry (Ley Orgánica del Ministerio Público), the Organic Law of the Judicial Investigation Organization (Ley Orgánica del Organismo de Investigación Judicial), the Salary Law of the Judiciary (Ley de Salarios del Poder Judicial), the Statute of Judicial Service (Estatuto de Servicio Judicial) (including its reform by the Judicial Career Law (Ley de Carrera Judicial)), etc.

Clearly, the norms set forth above are intended to specifically regulate the Judiciary, ensuring that its independence from the other Branches of the Republic is guaranteed.

The fact that the Judiciary enjoys a particular regulatory framework brings to the fore the second point of analysis of the systematic interpretation. In this regard, it must be studied whether there are particular norms for the Judiciary and verify their relationship with the articles under question.

Regardless of whether Article 47 of the bill speaks of 'exceptions,' it is observed that performance evaluation and competence in labor-related decision-making, whether general or specific, are already regulated by the aforementioned normative framework of the Judiciary, making it impossible for an external body to assume 'steering authority' or impose criteria over that Branch. Moreover, said normative framework is designed to guarantee the efficiency of the judicial function and protect judicial servants from external interference, as indicated in Article 1 of the Statute of Judicial Service:

"Article 1.- This Statute and its regulations shall regulate the relations between the Judiciary and its servants, with the aim of guaranteeing the efficiency of the judicial function and of protecting those servants." Note that the norm determines that the employment relations between the Judiciary and its servants are regulated by the Statute and its regulations. The systematic interpretation required by that article prevents indirect regulation of the judicial service through directives or guidelines from other bodies. This is verified because the issuance of the regulation to which the norm refers is, in turn, the exclusive competence of the Court, as the same Statute indicates:

"Article 5.- Before issuing an internal work regulation, whether of a general character for all judicial servants or applicable only to a group of them, the Court shall make the respective project known to those servants, by the most suitable means, so that they may make the relevant observations in writing, within a period of fifteen days.

The Court shall take those observations into account to resolve accordingly, and the regulation it issues shall be mandatory without further procedure, eight days after its publication in the 'Boletín Judicial'." A further guarantee of the independence of the Judiciary in employment matters is that the Head of the Personnel Department is linked to the President of the Court, excluding interference from external bodies:

"Article 6.- The Personnel Department of the Judiciary (Departamento de Personal del Poder Judicial) shall function under the direction of a Head who shall report directly to the President of the Court and shall be appointed by the Full Court (Corte Plena)." Then, the detail of the Statute of Judicial Service's regulations distinguishes the different competencies regarding performance evaluation, which corroborates the existence of special regulation for that Branch. Thus, for example, articles 8 and 10 of the Statute of Judicial Service read:

"Article 8.- It is the responsibility of the Head of the Personnel Department:

• c)To establish the procedures and technical instruments necessary for greater efficiency of the personnel, among them the periodic performance rating (calificación periódica de servicios), the file and record (expediente y prontuario) of each servant, and the forms that are of technical utility; (…)

Article 10.- The periodic performance rating shall be carried out annually by the Head of each judicial office with respect to the subordinates who work therein, using special forms that the Head of the Personnel Department will send to the different offices in the months he determines. (…)" That is to say, the periodic performance ratings of judicial personnel, such as the annual evaluation, are carried out through the procedures set by the Head of the Personnel Department of the Judiciary. These are special norms, pertaining exclusively to the Judiciary, which would prevail over the general norms of the bill, should they enter into force.

The Chamber emphasizes that the bill neither repeals nor modifies in any way the provisions transcribed above, nor any others in the Statute of Judicial Service. This Statute governs the matter of employment in the Judiciary and represents a guarantee for judicial servants, in line with the constitutional postulates that safeguard judicial independence; its modification or repeal could not be tacit nor come from a mere inference, as that would denote ignorance of hermeneutic rules.

On the other hand, in the face of the question that Article 49 of the bill orders the Judiciary to mandatorily comply with the guidelines of the Directorate General of the Civil Service, the truth is that the relationship between said Directorate and the Judiciary is governed by a specific norm, as follows from the cited Article 8:

"(…) The Head of the Personnel Department may make necessary inquiries to the Directorate General of the Civil Service and request from this Directorate the relevant advice for the better performance of his functions. (…)" That is to say, the legal framework of the Judiciary provides for the power of the Head of its Personnel Department (now called Human Resources Management) to consult the Directorate General of the Civil Service and request its advice for the performance of its functions. Those functions include, as was seen, the obligation to determine the procedures and technical instruments for the periodic performance rating of personnel (article 8 cited above). Such a provision of special law renders the questioned norms of bill no. 20.580 inapplicable to the Judiciary.

Again, it is recalled that this is a special norm that takes precedence over the general provision. Furthermore, it is highlighted that the norms of the Statute of Judicial Service would remain intact after the reform proposed through bill no. 20.580, as it neither modifies nor repeals them.

In conclusion, given that Chapter VI of the intended modification to the Salary Law of the Public Administration (Ley de Salarios de la Administración Pública) contemplates an exception for the Judiciary, coupled with the fact that the latter has special legal-rank regulations related to the performance evaluation of its officials, it is not observed that the consulted bill actually affects the organization or functioning of the Judiciary".

In that same ruling, it was indicated that the special norms that regulate the Judiciary ensure that its independence from the other branches is guaranteed, and constitutional systematic interpretation prevents indirect regulation of the judicial service through directives or guidelines from other bodies:

"The reading of the constitutional framework begins with the recognition of the independence of the Judiciary, one of the cardinal foundations of our Rule of Law: "ARTICLE 9 – The Government of the Republic is popular, representative, participatory, alternative, and responsible. It is exercised by the people and three distinct and independent Branches. The Legislative, the Executive, and the Judicial. No Branch may delegate the exercise of the functions that are its own. (…)" "ARTICLE 154.- The Judiciary is subject only to the Constitution and the law, and the resolutions it issues in matters within its competence impose no responsibilities upon it other than those expressly set forth by legislative precepts." "ARTICLE 156.- The Supreme Court of Justice is the highest court of the Judiciary, and the courts, officials, and employees in the judicial branch depend upon it, without prejudice to what this Constitution provides regarding the civil service." These constitutional provisions have given rise to the development of a profuse normative framework, specifically designed to regulate the Judiciary. Among the norms of this framework are the Organic Law of the Judiciary, the Organic Law of the Public Ministry, the Organic Law of the Judicial Investigation Organization, the Salary Law of the Judiciary, the Statute of Judicial Service (including its reform by the Judicial Career Law), etc. Clearly, the norms set forth above are intended to specifically regulate the Judiciary, ensuring that its independence from the other Branches of the Republic is guaranteed." (…) "Moreover, said normative framework is designed to guarantee the efficiency of the judicial function and protect judicial servants from external interference, as indicated in Article 1 of the Statute of Judicial Service: "Article 1.- This Statute and its regulations shall regulate the relations between the Judiciary and its servants, with the aim of guaranteeing the efficiency of the judicial function and of protecting those servants." Note that the norm determines that the employment relations between the Judiciary and its servants are regulated by the Statute and its regulations. The systematic interpretation required by that article prevents indirect regulation of the judicial service through directives or guidelines from other bodies. This is verified because the issuance of the regulation to which the norm refers is, in turn, the exclusive competence of the Court, as the same Statute indicates: "Article 5.- Before issuing an internal work regulation, whether of a general character for all judicial servants or applicable only to a group of them, the Court shall make the respective project known to those servants, by the most suitable means, so that they may make the relevant observations in writing, within a period of fifteen days. The Court shall take those observations into account to resolve accordingly, and the regulation it issues shall be mandatory without further procedure, eight days after its publication in the 'Boletín Judicial'." A further guarantee of the independence of the Judiciary in employment matters is that the Head of the Personnel Department is linked to the President of the Court, excluding interference from external bodies: "Article 6.- The Personnel Department of the Judiciary shall function under the direction of a Head who shall report directly to the President of the Court and shall be appointed by the Full Court." (The underlining does not correspond to the original).

Regarding the special character of the Statute of Judicial Service, its salary scale, and its relationship with judicial independence in this matter, the following was indicated:

"The Statute governs the matter of employment in the Judiciary and represents a guarantee for judicial servants, in line with the constitutional postulates that safeguard judicial independence; its modification or repeal could not be tacit nor come from a mere inference, as that would denote ignorance of hermeneutic rules." (…) "The Chamber does not fail to underscore that the norms of the Organic Law of the Judiciary, Salary Law of the Judiciary, and the Statute of Judicial Service are not affected by the proposed reform. Said norms enable the autonomy of the Judiciary in relation to changing its salary scale or varying the base salaries." Specifically, the matter of salaries was analyzed, stating:

"Regarding the matter of salaries.

Concerning this point, the aforementioned agreement states:

"2.) In accordance with the previous report, it is determined that the bill does affect the organization and functioning of the Judiciary, and that there is opposition to it, provided that the elements referring to:

(…)

d.- The restrictions established in the bill on salary matters and their respective components for officials of the Judiciary are not eliminated." After analyzing the articles of bill no. 20.580 concerning the modifications to the Salary Law of the Public Administration, the Chamber recalls that affecting the salary of judicial officials can impact judicial independence. As was briefly expressed in the cited ruling no. 2018-5758 of 3:40 p.m. on April 12, 2018:

"(…) What is part of judicial independence is that judges have dignified economic sufficiency, both when active and inactive, (…)" Now, it must be highlighted that the questioned regulation is not particular to judicial officials but broadly covers the Public Administration. The importance of this point lies in the fact that the Chamber has maintained a solid criterion regarding the inadmissibility of mandatory institutional consultations (such as those provided for in articles 167 and 190 of the Political Constitution (Constitución Política)), when a bill is of a national or general character:

(…)

In the case at hand, the norms of the bill related to salary matters have general application, without this Tribunal having elements to consider that these will affect the financial sustenance of the officials dedicated to the administration of justice to such a degree that at least 'dignified economic sufficiency' is not ensured.

The Chamber does not fail to underscore that the norms of the Organic Law of the Judiciary, Salary Law of the Judiciary, and the Statute of Judicial Service are not affected by the proposed reform. Said norms enable the autonomy of the Judiciary in relation to changing its salary scale or varying the base salaries. In this sense, note what was stated by the Minister of Finance to the Full Court:

"Regarding the possibility that the bill might affect the independence of the Judiciary by regulating the application of certain bonuses, I would like to respectfully point out that the bill does not affect or eliminate the power of the Judiciary to modify its salary scale or modify base salaries. Thus, if the Judiciary were to consider it necessary to increase the salary of any official, it has full authority and autonomy to do so. Particularly, if the Judiciary considers that, in light of the regulation of exclusive dedication (dedicación exclusiva) or seniority bonuses (anualidades), it is necessary to increase the salary of any official, it may do so under the protection of its independence in salary matters." This observation is not only shared by the Chamber but also determines with indisputable clarity that the consulted bill does not affect the organization or functioning of the Judiciary in salary matters.

Based on what has been explained above, the Chamber determines that the questioned regulation of legislative bill 20.580 does not affect, in the sense stated, the organization or functioning of the Judiciary." Finally, more recently, in ruling no. 2019-25268, which questioned various agreements of the Full Court related to the salary increase for judges, prosecutors, and public defenders (as well as Court Clerks (Secretarios de Sala) and assistant lawyers), the Chamber resolved:

"Likewise, this Tribunal, in judgment number 550-91 of 6:50 p.m. on March 15, 1991, mentioned that, 'in the case of the branches, their own constitutional independence, guaranteed in general by Article 9 of the Constitution, and, in the cases of the Judiciary and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones), by those of Articles 99 et seq., 152 et seq., and 177 thereof, as well as their own organic norms, impose upon their heads the attribution and the responsibility to set the remuneration, representation expenses, and other facilities inherent to the positions, for their own members and subordinates, within, naturally, their budgetary availabilities, independently, of course, of whether their amounts may coincide or not with those of the deputies.' From the foregoing, it follows that salaries in the Judiciary must set the remuneration, representation expenses, and other facilities inherent to the positions for their own members and subordinates, within, naturally, their budgetary availabilities, given that there are positions that will hold different remunerations, which does not violate the principle of equality.

Likewise, the challenged agreements do not violate the principles of reasonableness or proportionality, nor other principles such as those of legality and legitimate expectations (confianza legítima), since those agreements were approved by the Full Court, that is, by the body normatively empowered for such a situation. The foregoing, in attribution to its constitutional and legal competencies that have been attributed to it. In this regard, it is necessary to recall that Article 9 of the Political Constitution indicates that 'the Government of the Republic is popular, representative, participatory, alternative, and responsible. It is exercised by the people and three distinct and independent Branches. The Legislative, the Executive, and the Judicial.' Likewise, Article 152 of the Political Constitution states that 'the Judiciary is exercised by the Supreme Court of Justice and by the other courts established by law.' In a similar sense, Article 154 of the same constitutional text establishes that 'the Judiciary is subject only to the Constitution and the law, and the resolutions it issues in matters within its competence impose no responsibilities upon it other than those expressly set forth by legislative precepts.' Following the line imposed in the Magna Carta, the Organic Law of the Judiciary, in its Article 2, mentions that 'the Judiciary is subject only to the Political Constitution and the law. The resolutions it issues, in matters within its competence, impose no responsibilities upon it other than those expressly set forth by legislative precepts. However, the higher authority of the Court shall prevail over its performance, to guarantee that the administration of justice is prompt and fulfilled.' Likewise, Article 59 of that same law states that 'it is the responsibility of the Supreme Court of Justice: (…) 3.- To approve the budget project of the Judiciary, which, once enacted by the Legislative Assembly, may be executed through the Council.' Along the same lines, the Statute of Civil Service, in Article 8, determines that 'it is the responsibility of the Head of the Personnel Department: a) To analyze, classify, and evaluate the positions of the Judiciary covered by this law, and assign them the respective category within the Salary Scale of the Salary Law, all subject to the subsequent approval of the Full Court.' Also, Article 62 of that normative body establishes that 'the Personnel Department shall conduct studies to determine the possible amount of benefits that must be recognized to judicial servants in accordance with the Salary Law, so that the Full Court makes the necessary allocations in the budget for each year.' In summary, the challenged agreements do not violate the principles of reasonableness, proportionality, legality, or legitimate expectations, since these agreements were approved by the Full Court, that is, by the body normatively empowered for such a situation. The foregoing, in attribution to its constitutional and legal competencies that have been attributed to it." In this manner, based on the precedents previously transcribed, it can be derived that this Chamber has recognized that the Judiciary is key to Costa Rican democracy, to such an extent that, “The fact that Costa Rica today has the oldest and most stable democracy in Latin America is unimaginable without the functioning of a robust justice administration system and without the recent efforts to modernize it.” (see ruling no. 2018-005758).

Thus, "if the Judicial Branch is not given due importance in the social and democratic State of Law for its proper functioning, its weakening leads to anti-democratic forms of government; proof of this is that one of the functions that authoritarian or totalitarian governments first control is the judicial function, hence the importance of every democratic system having a robust Judicial Branch." (see Voto n°2017-09551). The principle of judicial independence being precisely key to this robustness. Regarding public employment, the Judicial Branch's subjection to the fundamental principles of the public employment regime of Art. 191 is clear. Indeed, in accordance with Article 11 of the Political Constitution, it is clear that the Judicial Branch is subject to the respective procedure for evaluation of results and accountability. However, the Chamber has understood as valid and justified that the Judicial Branch has its own regulatory framework, which specifically, particularly, and distinctively regulates the employment relations between said Branch and its servants and the evaluation of their performance. Moreover, it has been indicated that said regulatory framework (composed, among others, of the Ley Orgánica del Poder Judicial, the Ley Orgánica del Ministerio Público, the Ley Orgánica del Organismo de Investigación Judicial, the Ley de Salarios del Poder Judicial, and the Estatuto de Servicio Judicial), is specifically designed to guarantee the efficiency of the judicial function and the independence of the Judicial Branch. To the point that it has been established, as jurisprudential criterion, that one is in the presence of special regulations that have preponderance over general provisions and cannot be tacitly repealed by a later general rule. Likewise, the Chamber has made express reference to the impropriety of an external instance assuming stewardship or imposing criteria on the Judicial Branch in these matters. On the contrary, it has emphasized that the independence and functional autonomy expressly recognized to the Judicial Branch in the constitutional text itself (Articles 9, 152 et seq., and 177) and materialized and guaranteed in its own organic norms, imposes on the heads of the Judicial Branch the competence and responsibility to decide—without undue interference—on the different matters that are the object of regulation in the consulted bill.

Finally, regarding Comparative Law, it is appropriate to mention Article 64 of the French Constitution of 1958, which states that the President of the Republic is the principal guarantor of the independence of the judicial authority, and that an Organic Law, particular to the Judicial Branch, shall regulate the legal statute of magistrates. It reads as follows:

“ARTICLE 64.

Le Président de la République est garant de l'indépendance de l'autorité judiciaire.

Il est assisté par le Conseil supérieur de la magistrature.

Une loi organique porte statut des magistrats.

Les magistrats du siège sont inamovibles.” (Free translation: "Article 64. The President of the Republic is the guarantor of the independence of the judicial authority. For this purpose, the President of the Republic is assisted by the Superior Council of the Magistracy. An organic law shall regulate the legal statute of Magistrates. Elected magistrates shall be irremovable.") Now then, what has been indicated in the various precedents cited above, in the sense that this Chamber has understood as valid and justified that the Judicial Branch has its own regulatory framework, which specifically, particularly, and distinctively regulates the employment relations between said Branch and its servants, does not exclude recognizing that the Legislative Assembly is empowered by the Law of the Constitution—according to the intention of the original constituent, as developed in Considerando VIII of this vote—to establish a single statute that covers all public servants, including officials of the Judicial Branch, provided that such regulations, by their content or effects, do not suppress, essentially affect, nor entail transferring the exclusive and excluding competencies that correspond to the Judicial Branch to other organs and entities, in violation of the principle of separation of powers or functions and, very particularly, of the principle of judicial independence, as will be analyzed below, regarding the different consulted norms.

• 3)On the Examination of the Consulted Articles On Article 2.a (scope of coverage), regarding the Judicial Branch (Drafted by Magistrate Castillo Víquez) The following norm is consulted:

“ARTÍCULO 2- Ámbito de cobertura This law is applicable to public servants of the following entities and organs under the principle of State as single employer:

• a)The Branches of the Republic (Executive, Legislative, and Judicial), their auxiliary and attached organs, and the Tribunal Supremo de Elecciones (TSE), without prejudice to the principle of separation of Branches established in the Political Constitution.

(…)” Faced with this panorama, and returning to what was set forth above, in the sense that it is plausible to subject all branches of the State to a single public employment statute, meaning that the subjection of the Judicial Branch to this law is not unconstitutional, it is unconstitutional for failing to exclude officials who exercise jurisdictional functions—judges—or para-jurisdictional functions—prosecutors, public defenders, and specialized professionals and personnel of the Organismo de Investigación Judicial, etc.—and officials at the managerial or high political leadership level, as the bill calls them, just as with the officials of the Tribunal Supremo de Elecciones who exercise electoral functions—legal advisors, department directors, professionals, etc.—and those who hold high political leadership positions, as well as the administrative, professional, and technical personnel, which each respective branch head may define in an exclusive and excluding manner. This is because, in these cases, it is impossible to subject them to the directives, provisions, circulars, and manuals issued by Mideplán. The foregoing means that the Judicial Branch would indeed be subject to those powers that the law grants to Mideplán when it concerns the rest of the officials—those defined by each head of the Judicial Branch and the Tribunal Supremo de Elecciones in an exclusive and excluding manner—who form part of the administrative staff, auxiliary, or support personnel. One may argue against what we are stating that clause 49 of the consulted bill, in subsection g) which adds Article 85 to Law No. 5155, Estatuto Judicial, of January 10, 1973, indicates that the competencies in the bill, for the organs of the Judicial Branch, will be carried out in coordination with Mideplán, concerning the topics referred to in said bill; and subsection h), which adds Article 17 to Law No. 2422, Ley de Salarios del Poder Judicial, of August 11, 1959, indicates that the competencies defined in the bill, for the organs of the Judicial Branch, are also carried out in coordination with the cited ministry, in the same direction; as well as the fact that subsection a) of Article 2 establishes that the scope of coverage of the bill is without prejudice to the principle of separation of Branches established in the Political Constitution, so the Judicial Branch will do so through institutional coordination with MIDEPLAN, meaning it is not true that the former is subjected to the directives, provisions, circulars, and manuals issued by the latter in this respect; however, such an objection is unjustified due to the imprecision of the regulations intended to be approved, since in a matter of such importance the Law must be clear and precise, an aspect that, in many cases, is lacking. Hence, it is pertinent to conclude that there are indeed defects of unconstitutionality. Note that in clause 3 of the consulted bill, which regulates the exclusion of entities from these regulations, no safeguard is made in favor of the Judicial Branch and the Tribunal Supremo de Elecciones.

On Article 6 (stewardship of Mideplán), regarding the Judicial Branch (Drafted by Magistrate Castillo Víquez) The following norm is consulted:

“ARTÍCULO 6- Creación del Sistema General de Empleo Público The stewardship of the Sistema General de Empleo Público will be in charge of the Ministerio de Planificación Nacional y Política Económica (Mideplán). Said system will be composed of the following: a) The Ministerio de Planificación Nacional y Política Económica (Mideplán). b) The offices, departments, areas, directorates, units, or homologous designations of Human Resources Management of the entities and organs under the scope of application of this law. (…)” In relation to Article 6, subsection b, of the consulted bill is unconstitutional, given that it subjects the Judicial Branch and the Tribunal Supremo de Elecciones to the directive authority of the Executive Branch, which is contrary to the principles of judicial and electoral independence. Hence, the offices, departments, areas, directorates, and units of Human Resources Management of these branches cannot be under the cited authority, except concerning those who provide basic administrative or auxiliary services, which do not affect the exclusive and excluding competencies nor the administrative functions necessary for their fulfillment, as defined, exclusively, by the heads of the Judicial Branch and the Tribunal Supremo de Elecciones.

On Article 7 (competencies of Mideplán), regarding the Judicial Branch (Drafted by Magistrate Castillo Víquez) The following norm is consulted:

“ARTÍCULO 7- Competencias del Mideplán The competencies of the Ministerio de Planificación Nacional y Política Económica (Mideplan) are the following: a) Establish, direct, and coordinate the issuance of public policies, national programs, and plans on public employment, in accordance with Law 5525, Ley de Planificación Nacional, of May 2, 1974. b) Establish mechanisms for discussion, participation, and agreement with municipal corporations through the Unión de Gobiernos Locales and state higher university education institutions, in matters of public employment. c) Issue provisions of general scope, directives, and regulations, aimed at the standardization, simplification, and coherence of public employment, as prescribed in Law 6227, Ley General de la Administración Pública, of May 2, 1978, and Article 46 of Law 2166, Ley de Salarios de la Administración Pública, of October 9, 1957. d) Advise the entities and organs included under the scope of coverage of this law, for the correct implementation of public policies, provisions of general scope, directives, and regulations issued within the framework of political stewardship in public employment and Law 6227, Ley General de la Administración Pública, of May 2, 1978, and Article 46 of Law 2166, Ley de Salarios de la Administración Pública, of October 9, 1957. e) Administer and keep updated the integrated platform of public employment. f) Publish the public employment offer, through the virtual platform that will be fed by the entities and organs included in the scope of coverage of this law. g) Issue the general guidelines and principles for performance evaluation. h) Administer and implement research, innovation, and formulation actions for public employment proposals. i) Direct and coordinate the execution of inherent competencies in public employment matters with the Ministerio de Hacienda, the Ministerio de Trabajo y Seguridad Social, the Autoridad Presupuestaria, and the Dirección General de Servicio Civil, among other technical dependencies in the field of public employment, concerning public employment matters. j) Collect, analyze, and disseminate information on public employment from the entities and organs for their improvement and modernization. To this end, it shall establish a system of indicators, through the establishment of coordination criteria, to homogenize the collection and dissemination of data. k) Prepare a coherent and comprehensive strategy for learning and development throughout the public service, establishing how long-term capacity will be developed for higher standards of leadership and professional competence and providing guidance to public institutions on how to plan and apply activities within the strategy. l) Coordinate with the Procuraduría de la Ética Pública to issue the provisions of general scope, directives, and regulations, for the instruction of public servants on the duties, responsibilities, and functions of the position, as well as the ethical duties governing the public function, that are appropriate according to Law 6227, Ley General de la Administración Pública, of May 2, 1978, and Article 46 of Law 2166, Ley de Salarios de la Administración Pública, of October 9, 1957. m) Establish a single and unified remuneration system for the public function in accordance with this law and specific salary and benefits provisions for all public officials. n) Carry out diagnostics in human resources matters of the entities and organs included to achieve an adequate resizing of existing payrolls and the development of general criteria that define the sectors whose activity, due to its strategic institutional value, as well as its link to the substantive activity, should be reserved to be carried out exclusively by public servants. Furthermore, analyze those that serve as guidance to define the provision of services that could be outsourced and the conditions for their provision. o) Prospect the global trends of the future of public employment, with the purpose of informing its planning. p) Analyze the efficiency and effectiveness of the evaluation mechanisms, in order to determine whether or not they fulfill their purpose. q) Evaluate the general public employment system in terms of efficiency, effectiveness, economy, simplicity, and quality.” In relation to Article 7, subsections d), g) and p) are unconstitutional, as they affect the independence of the Judicial Branch and the Tribunal Supremo de Elecciones, insofar as they subject them to the directive and regulatory authority of Mideplán, as well as to the verification of whether or not they fulfill the purpose of performance evaluation, and do not exclude them from the directive authority. It must be emphasized that the principle of separation of powers or functions is incompatible with the directive and regulatory authority exercised by the Executive Branch, since it cannot order its activity, establishing goals and objectives. Regarding performance evaluation, it remains reserved to each branch of the State, since this matter is consubstantial to the exercise of its constitutional competencies. This means that, concerning this point, all officials of each branch would be subject to the internal provisions that each one of these issues in this regard.

On Article 9.a.- Human Resources Offices regarding the Judicial Branch (Drafted by Magistrate Picado Brenes) The following article is consulted:

“ARTÍCULO 9- Funciones de las administraciones activas a) The offices, departments, areas, directorates, units, or homologous designations of human resources management, of the institutions included in Article 2 of this law, will continue carrying out their functions in accordance with the pertinent regulatory provisions in each public agency. Likewise, they will apply and execute the provisions of general scope, directives, and regulations, in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management, that the Ministerio de Planificación Nacional y Política Económica (Mideplán) sends to the respective institution, according to Law 6227, Ley General de la Administración Pública, of May 2, 1978, and Article 46 of Law 2166, Ley de Salarios de la Administración Pública, of October 9, 1957. b) It is the responsibility of the offices, departments, areas, directorates, units, or homologous designations of human resources management to develop and apply knowledge, competency, and psychometric tests, for the purposes of personnel recruitment and selection processes, to conduct internal and external competitive examinations by merit and qualifications, which must always comply with at least the standards established by the Dirección General de Servicio Civil for each position, according to its scope of competence, and the guidelines issued according to Article 46 of Law 2166, Ley de Salarios de la Administración Pública, of October 9, 1957. Furthermore, to incorporate said competitive examinations into the public employment offer of the Public Administration and verify that public servants receive due induction on the duties, responsibilities, and functions of the position, as well as the general and particular ethical duties of the public function of the institution and position. c) The institutional human resources management offices, of ministries and institutions or organs attached under the scope of application of the Estatuto de Servicio Civil, are technical dependencies of the Dirección General de Servicio Civil which, for all purposes, must coordinate the development of personnel recruitment and selection tests with such offices and perform their advisory, training, and technical support functions.” As observed, consulted Article 9 establishes certain functions for all offices, departments, areas, directorates, or human resources units, of all institutions included in the bill, specifically, for the Human Resources Management Department of the Judicial Branch. Thus, concerning strictly the consultation made regarding the Judicial Branch, the second paragraph of subsection a) imposes upon the Human Resources Management Department of said Branch of the Republic the obligation to apply and execute provisions of general scope, directives, and regulations, in relation to planning, work organization, employment management, performance management, compensation or salary management, and labor relations management, sent to it by Mideplán. This would imply that an organ of the Executive Branch, such as Mideplán, imposes upon the Judicial Branch the application and execution of its provisions, directives, and regulations, and in matters that are the exclusive purview of the Judicial Branch, such as planning, work organization, employment management, performance management, compensation or salary management, and labor relations management. Such an obligation for the Human Resources Management Department of the Judicial Branch is clearly a violation of the principle of separation of powers and judicial independence, according to the scope that constitutional jurisprudence has given to such basic principles of our democracy. It should be remembered that the principle of division of powers, or as it is more recently known, the principle of separation of functions, is enshrined in Article 9 of the Political Constitution and stands as "one of the fundamental pillars of the Democratic State, insofar as it establishes a system of checks and balances that guarantees respect for constitutional values, principles, and norms for the direct benefit of the country's inhabitants." (Judgment n°2006-013708). Making it possible for each Branch of the State to exercise its function independently of the others (Judgment n°6829-1993), and not only as a principle of internal application for the proper functioning of the Rule of Law, but also because the principle of judicial independence, in its external dimension, ensures a set of guarantees aimed at preventing a Court from being controlled by other governmental organs; it is the absence of external pressures or influences that make the institution vulnerable, as a result of threats to the availability of resources that allow it to carry out its work with autonomy, to the job stability and promotion possibilities of its officials, to its integrity and assets, and to its infrastructure capacities to meet citizen demands. On the other hand, in its internal dimension, judicial independence is more than a guarantee for judges, as it also constitutes "a guarantee for private individuals (parties to the process), in the sense that their cases will be decided in strict adherence to the Constitution and the laws" (Judgment n°5795-1998), "we are faced with the right of citizens to have independent judges" (Judgment n°2001-006632). The independence of the Judicial Branch translates, in economic matters, into the irremovability of its personnel, as well as, in functional terms, into the real possibility of making its decisions according to its own criteria and not as a result of pressures from certain groups, institutions, or persons (see Judgment n°2000-005493). Thus, it is fully justified that in the specific case of the Judicial Branch it has a special, separate, and differentiated regulation, although subject to the fundamental constitutional principles provided for in Articles 191 and 192 (see Judgment n°1991-550), but not under the general provisions, directives, and regulations of an organ of another Branch of the Republic, as this consulted norm of the bill intended. For the special regulations governing the Judicial Branch "prevent indirect regulation of the judicial service by means of directives or guidelines from other instances." (Judgment n°2018-019511). This is because, "...the Public Employment Regime, it is possible to conclude that the competent state organ in this matter is each branch of the Republic, given that they—the Executive, Legislative, Judicial, and Tribunal Supremo de Elecciones—are the most capable of determining their needs and knowing their particular conditions." (Judgment n°03575-1996). The "constitutional attributions to order, plan, or program, for example, the administrative function of personnel management" (Judgment n°2017-009551) being an essential part of the administrative function of the Judicial Branch that contributes to the effective exercise of its judicial function, since "both legislative and judicial functions require an administrative support structure for the achievement of their essential or primary function, such as the administrative function that helps channel all its activity; which, logically, encompasses the human resource or personnel of the Branches of the Republic, meanwhile, behind the fundamental function is the administrative function of personnel, agents, and public servants, etc." (Judgment n°2017-009551). Finally, note that in Judgment n°2018-019511, in which the legislative consultation regarding the bill on "Ley de Fortalecimiento de las Finanzas Publicas" (legislative file no. 20,580) was heard, this Chamber concluded—after conducting an interpretive analysis of the bill's content—that, specifically, what was provided in clauses 46, 47, and 49, concerning the "stewardship of Mideplán in public employment matters" and "the mandatory nature of the technical and methodological guidelines of the Dirección General de Servicio Civil," did not apply to the Judicial Branch. An interpretation made taking into consideration the principle of judicial independence. In this sense, and in accordance with all the foregoing, the second paragraph of subsection a) of Article 9 is unconstitutional with respect to its application to the Judicial Branch.

On Article 13 (job families), regarding the Judicial Branch (Drafted by Magistrate Castillo Víquez) The following norm is consulted:

“ARTÍCULO 13- Régimen general de empleo público There shall exist a single general public employment regime, which in turn shall be composed of the following eight job families that will be applied in the organs and entities of the Public Administration, according to the functions executed by their personnel: a) Public servants under the scope of application of Title I and Title IV of the Estatuto de Servicio Civil, as well as those working in the institutions indicated in Article 2 of this law, who are not included in the remaining job families. b) Public servants performing functions in health sciences. c) Public servants performing police functions. d) Teaching personnel covered by the Estatuto del Servicio Civil, under Title II and Title IV. e) Teaching and academic personnel of technical and higher education. f) Persons administering justice and the magistrates of the Tribunal Supremo de Elecciones (TSE). g) Public servants performing functions in the foreign service. h) Public servants performing trust-based positions.

The creation of public employment job families is reserved to law and must be justified by technical and legal criteria consistent with an efficient and effective public management.

In all the categories described above, the senior public administration, through the occupational health offices or departments, must have in each public entity, as established by Article 300 of the Labor Code and its regulations, the diagnosis of their working conditions, the occupational health program, and when there are working conditions adverse to their health, the respective safety protocols must be created to safeguard their life, which will be validated internally and with the respective endorsement of the Occupational Health Council, and for which the necessary human resources shall be provided. Said instance shall depend administratively directly on the head of the entity.

Regarding subsection f) of Article 13, it is unconstitutional because it does not exclude officials who perform para-jurisdictional functions—prosecutors, public defenders, and specialized professionals and personnel of the Organismo de Investigación Judicial, etc.—and officials at the managerial or high political leadership level, just as with the officials of the Tribunal Supremo de Elecciones who exercise electoral functions—legal advisors, department directors, professionals, etc.—and those who hold high political leadership positions. Furthermore, it does not exclude all the administrative support, professional, and technical officials that the highest bodies of the cited branches of the State may define, in an exclusive and excluding manner, as indispensable or consubstantial for the exercise of their constitutional competencies. Especially since, in accordance with that same article, subsection a), all those officials would be included in a category of the Estatuto de Servicio Civil, which affects the independence of both the Judicial Branch and the Tribunal Supremo de Elecciones, based on the fact that judicial and electoral governance is exercised exclusively and excludingly by the Corte Suprema de Justicia and the Tribunal Supremo de Elecciones concerning their constitutional competencies. Finally, it must be kept in mind that the construction of the family, as explained above, corresponds, exclusively and excludingly, to each branch of the State.

On Article 14.- Recruitment and selection regarding the Judicial Branch (Drafted by Magistrate Picado Brenes) The petitioners question the constitutionality of Article 14 of the bill under consultation, since, in their view, it could harm the principles of separation of powers, autonomy, and independence of the Judicial Branch, insofar as it subjects it to the provisions issued by an organ of the Executive Branch, regarding employment management, which includes matters related to the recruitment and selection of its personnel.

The legal provision 14 in question states the following:

"ARTICLE 14- Recruitment and selection The recruitment and selection of new public servants shall be carried out based on their proven suitability, for which the Ministry of National Planning and Economic Policy (Mideplán) shall issue, with absolute adherence to Ley 6227, Ley General de la Administración Pública, of May 2, 1978, the provisions of general scope, the directives, and the regulations, according to the respective job family.

In the recruitment and selection processes, a candidate may not be chosen who is in any of the following situations:

• a)Being related by consanguinity or affinity in the direct or collateral line, up to the third degree inclusive, to the immediate superior or to the immediate superiors of the latter in the respective unit.
• b)Being listed in the registry of ineligible persons of the integrated public employment platform." As was already indicated above, the Judicial Branch, as a branch of the Republic, must not only be independent from the other branches, as provided in constitutional provision 9, but also guarantee the independence of judges, as stipulated in Article 154 of the Political Constitution, as a guarantee for individuals that their cases will be decided with strict adherence to the Constitution and the laws. In view of this, it is essential that this Branch of the Republic have full authority over all matters related to the recruitment and selection of its personnel, without any external interference. This Court specifically reiterated this in judgment No. 2018-19511, stating, in the relevant part, the following:

"...These constitutional provisions have given rise to the development of a profuse regulatory framework, specifically designed to regulate the Judicial Branch. Among the norms of this framework are the Ley Orgánica del Poder Judicial, the Ley Orgánica del Ministerio Público, the Ley Orgánica del Organismo de Investigación Judicial, the Ley de Salarios del Poder Judicial, the Estatuto de Servicio Judicial (including its reform by the Ley de Carrera Judicial), etc.

Clearly, the aforementioned norms are intended to specifically regulate the Judicial Branch, ensuring that its independence from the other Branches of the Republic is guaranteed.

The fact that the Judicial Branch has its own particular regulation brings to the fore the second point of analysis of systematic interpretation. In this sense, it must be examined whether there are specific norms for the Judicial Branch and verify their relationship with the articles in question.

Regardless of whether provision 47 of the bill speaks of 'exceptions,' it is observed that the evaluation of performance and the competence in labor-related decision-making, whether general or specific, are already regulated by the aforementioned regulatory framework of the Judicial Branch, making it impossible for an external body to assume 'stewardship' or impose criteria on that Branch. Moreover, this regulatory framework is designed to guarantee the efficiency of the judicial function and protect judicial servants from external interference, as indicated in Article 1 of the Estatuto de Servicio Judicial:" Specifically, regarding Article 1 of the Estatuto de Servicio Judicial, the Chamber indicated in that vote that: "Note that the norm determines that the employment relations between the Judicial Branch and its servants are regulated by the Estatuto and its regulation. The systematic interpretation required by that numeral prevents an indirect regulation of the judicial service through directives or guidelines from other bodies. This is verified because the issuance of the regulation referred to in the norm is, in turn, the exclusive competence of the Corte," It further adds that: "One more guarantee of the independence of the Judicial Branch in the matter of employment is that the Head of the Personnel Department is linked to the President of the Corte, excluding the interference of external bodies." Now, in this case, this Court considers that the bill questioned here affects the specific competences of this Branch of the Republic, because beyond establishing general principles or guidelines on public employment that respect the principle of separation of functions, Article 14 under review is clear in stating that it will be the Ministry of National Planning and Economic Policy (Mideplán) which will issue the provisions of general scope, directives, and regulations, according to the respective job family, that will regulate the recruitment and selection of new public servants. This is because, pursuant to the provisions of articles 13 and 2 of the same bill, what is stated in article 14 would apply to the Judicial Branch. Thus, regardless of whether the referenced Article 2 limits the scope of coverage "without prejudice to the principle of separation of Branches established in the Political Constitution," Article 14 would apply to the Judicial Branch, and in that sense, such a provision is considered unconstitutional, by authorizing a body of the Executive Branch to directly issue provisions of general scope, directives and regulations, circulars, manuals, and resolutions related to the matter of public employment, which empty the content of the competences recognized to the Corte Suprema de Justicia by the original and derived Constituent. Even more so when a regulatory framework pertaining to the Judicial Branch already exists that regulates these aspects, in the terms mandated by constitutional Article 192. By reason of the foregoing, the consulted norm exceeds any framework of cooperation that may establish a general public employment policy, as it is not proper for a dependency of the Executive Branch—Mideplán—to dictate to another Branch, in a mandatory manner, in this case to the Judicial Branch, the guidelines or criteria for the selection and recruitment of its personnel. This constitutes clear external interference and the intrusion of the Executive Branch into aspects that are the exclusive competence of the Judicial Branch. Consequently, this Court considers that the consulted Article 14 contains a defect of unconstitutionality, for violating the principle of independence of functions guaranteed to the Judicial Branch by provisions 9 and 154 of the Political Constitution.

Regarding Article 17.—Senior Management Personnel with respect to the Judicial Branch (drafted by Magistrate Picado Brenes) Consultation is made regarding the following article:

"ARTICLE 17- Senior public management personnel The Ministry of National Planning and Economic Policy (Mideplán) shall issue the provisions of general scope, the directives, and the regulations, regarding senior public management personnel, that are consistent with Ley 6227, Ley General de la Administración Pública, of May 2, 1978, to provide the Public Administration with profiles of integrity and proven management, innovation, and leadership capacity, to seek the improvement of the provision of public goods and services. (...)" The petitioners point to a violation of the principle of separation of functions and the independence of the Judicial Branch, because this norm provides that, in the case of senior management positions, it will be Mideplán that issues the provisions of general scope, directives, and regulations on the matter. In the same sense in which this Chamber has been deciding these aspects, the interference of this Ministry, which is a body of the Executive Branch, in issuing provisions of general scope, directives, and regulations to the Judicial Branch regarding senior management positions, violates the principle of separation of powers and judicial independence. Furthermore, the regulation of everything related to the senior management positions of the Judicial Branch is already covered by the special regulations of that branch of the Republic. There are several precedents from the Chamber in which it is expressly understood as fully justified that, in the specific case of the Judicial Branch, it should have a special, separate, and differentiated regulation—although, subject to the fundamental constitutional principles provided for in Articles 191 and 192—. Firstly, we can cite vote No. 2019-25268 (reiterating what was stated in vote No. 550-1991), which indicates:

"(…) in the case of the branches, their own constitutional independence, guaranteed in general by Article 9 of the Constitution and, in those of the Judicial Branch and the Tribunal Supremo de Elecciones by those of Articles 99 and following, 152 and following, and 177 thereof, as well as their own organic norms, impose on their heads the power and the responsibility to set the remuneration, representation expenses, and other facilities inherent to the positions, for their own members and subordinates, within, naturally, their budgetary availabilities, independently, of course, of whether their amounts may or may not coincide with those of the deputies." Given that constitutional Article 154 itself subjects the Judicial Branch solely to the Constitution and the law, but not to provisions of the Executive Branch. Note that these are positions of great importance, as they would refer, at least, to those who make up the Consejo Superior del Poder Judicial, and the heads of the Defensa Pública, Ministerio Público, and the Organismo de Investigación Judicial. These are positions of great relevance, which must be particularly protected from interference by other Branches of the Republic, and which require the stability of personnel necessary for an adequate and impartial performance of the position, which is incompatible with subordination to the provisions issued on the matter by Mideplán, as the norm in question provides. The Judicial Branch itself being competent in this regard, as this Chamber has indicated before: "… be it the Public Employment Regime, it is possible to conclude that the competent state body in this matter is each branch of the Republic, given that it is these—Executive, Legislative, Judicial, and Tribunal Supremo de Elecciones—that are best equipped to determine their needs and know their particular conditions." (judgment No. 03575-1996). Note that, in judgment No. 2018-019511, in which the legislative consultation regarding the bill for the "Ley de Fortalecimiento de las Finanzas Publicas" (legislative file No. 20.580) was heard, this Chamber concluded—after carrying out an interpretative task regarding the content of the bill—that, specifically, the provisions in numerals 46, 47, and 49, pertaining to the "stewardship of the public employment matter by Mideplán" and "the mandatory nature of the technical and methodological guidelines of the Dirección General del (sic) Servicio Civil," did not apply to the Judicial Branch. An interpretation made taking into consideration the principle of independence of the Judicial Branch. Therefore, it is considered that there is a defect of unconstitutionality in Article 17, the subject of the consultation, in the stated terms.

Regarding Article 18.—Probationary Period and Appointment Term for Senior Management with respect to the Judicial Branch (drafted by Magistrate Picado Brenes) In relation to this provision, the petitioners again point to a violation of the principle of separation of functions and the independence of the Judicial Branch, because it establishes that, in the case of senior technical management positions, the appointment shall be for 6 years with a probationary period of 6 months, renewable annually, subject to performance evaluation, which, according to them, affects matters that are the exclusive regulatory domain of the Judicial Branch. The consulted Article 18 states the following:

"ARTICLE 18- Appointment and probationary period of senior public management Every public servant who is appointed to senior public management positions shall be on probation for a period of six months, and their appointment shall be made for a maximum of six years, with the possibility of an annual extension, which shall be subject to the results of the performance evaluation. (...)" As in previous sections, it is necessary to reiterate that the regulation of aspects relating to the appointment and selection of personnel, as also occurs with senior technical management positions, the probationary period, the term or conditions for extending appointments, are regulations proper to and pertaining to the organizational and administrative autonomy of the Judicial Branch, as these are strategic positions of great importance for its administration, the definition of which must correspond to it, in accordance with the constitutional purposes of that institution. Note that, with respect to the Judicial Branch, these positions would refer, at least, to those who make up the Consejo Superior del Poder Judicial, and the heads of the Defensa Pública, Ministerio Público, and the Organismo de Investigación Judicial. These are positions of great relevance, which must be particularly protected from interference by other Branches of the Republic, and which require the stability of personnel necessary for an adequate and impartial performance of the position, which is incompatible with an appointment whose extension must be reviewed annually as the norm in question provides. A provision in that sense would be inoperative for this branch of the Republic, in the case of positions of such relevance, whose appointment warrants different competitions and a careful verification of qualifications prior to selection, so that, far from benefiting the administration of justice, it would create such instability that it would affect the good governance of the Judicial Branch. Thus, requiring the periodicity and extension provided for in this Article 18 for the case of the Judicial Branch not only violates the principle of independence, by being in contradiction with the special regulations that the Judicial Branch already has in this regard, but is also unreasonable and disproportionate, since the means chosen by the legislator would not be the most suitable to achieve the intended goal—assessing the suitability of personnel—given that the Judicial Branch already has a profuse regulatory framework, specifically designed for its regulation, which not only intends to regulate the Judicial Branch specifically, ensuring its independence from the other Branches of the Republic, but also ensures the principle of suitability that must prevail in the selection of its officials. Therefore, the consulted norm, far from favoring such a constitutional principle, would unreasonably and disproportionately alter the organization of positions that are fundamental for the administration of justice of the Judicial Branch, even putting at risk the impartiality in the exercise of the position that must prevail in those roles, given the continuous pressure of an annual extension of their appointment. Likewise, it is worth noting that, as with the consulted Article 14 and what is stated in Article 2 of this project, provision 18 does not establish any exception regarding the application of this norm to the Judicial Branch, as it does in this case for public universities, by stating that, in their case, the time periods and terms determined in their organic statutes and regulations shall be respected. Hence, the Judicial Branch is not excluded from its application either. Therefore, it is considered that there is a defect of unconstitutionality in Article 18, the subject of the consultation, in the stated terms.

Regarding Article 21 (single dismissal regime) and Article 22 (dismissal process) with respect to the Judicial Branch (drafted by Magistrate Picado Brenes) The consulted articles state the following:

"ARTICLE 21- Dismissal Procedure It shall be grounds for immediate dismissal, applicable to every public servant, to obtain two consecutive performance evaluations below a score of seventy percent (70%), which are final, once the procedure for challenging the score is exhausted and provided that the responsibility of the public servant for said deficient evaluation has been proven. Said score must be duly justified by the immediate superior who assigns it and by the hierarchical authority that confirms it, in case it has been appealed.

The included entities and bodies must apply remedial plans agreed upon with the public servant, and with the advice of human resources, that allow them to determine the causes why public servants obtain a score below seventy percent (70%) and apply actions to improve their performance. If, despite the application of the remedial plan, the public servant fails to improve their performance and consecutively obtains another score below seventy percent (70%), the grounds for immediate dismissal shall be configured.

The included entities and bodies must apply remedial plans that allow them to determine the causes why public servants obtain a score below seventy percent (70%) and apply actions to improve their performance. If, despite the application of the remedial plan, the public servant fails to improve their performance and consecutively obtains another score below seventy percent (70%), the grounds for immediate dismissal shall be configured.

Every justified dismissal shall be understood as without liability for the Public Administration and shall cause the public servant to lose all the rights that this law and the applicable regulations in each job family grant them, except for the proportional shares of labor entitlements that correspond and those acquired under the current pension regimes, provided that it is carried out in observance of the following rules:

• a)In all units under the scope of application of this law, a single special administrative dismissal procedure shall be applied, which guarantees the satisfaction of due process and its principles, and which must be concluded by a final act within a period of two months from its commencement. The preliminary investigation, in cases where it is required, shall not initiate the procedure indicated in the preceding paragraph; however, it must commence, under penalty of statute of limitations, no later than one month from when the head of the institution becomes aware, whether ex officio or by complaint, of the possible commission of a fault by one of their servants. The same one-month statute of limitations period shall apply if, once the aforementioned preliminary investigation has begun, it remains stalled due to the fault of the Administration.

For purposes of the two-month period indicated in the first paragraph of this subsection, the ordinary dismissal procedure shall commence from the moment the institutional head adopts the decision to initiate said procedure with the appointment of the directing body of the process.

• b)Once the institutional head has received a complaint or report, or has been informed of an alleged fault that, in their judgment, warrants the initiation of a dismissal procedure, they shall appoint a directing body of the process, which shall formulate the charges in writing and give notice to the public servant for a term of fifteen days, to present all evidence offered in an oral and private hearing, which shall be notified personally through the official's institutional email, certified mail, or by means of a single publication in the official gazette La Gaceta, when it is demonstrated that there is no way to locate the alleged offender. Within the indicated period, the public servant must present, in writing, their defense arguments and may offer all evidence they deem appropriate to support their defense, whether documentary, testimonial, or of any other nature in support thereof, as well as the defenses or procedural issues they deem appropriate.
• c)If, upon expiration of the period determined in the preceding subsection, the servant has not filed an opposition or has expressly stated their conformity with the charges attributed to them, the institutional head shall issue the dismissal resolution without further procedure, unless they prove they were not notified by the directing body of the process or were prevented by just cause from opposing.
• d)If the charge or charges brought against the employee or public servant imply criminal liability, or when it is necessary for the success of the administrative disciplinary dismissal procedure or to safeguard the decorum of the Public Administration, the institutional head may decree, in a reasoned resolution, the provisional suspension of the public servant from the exercise of their position. If criminal proceedings are initiated against the public servant, said suspension may be decreed at any time as a consequence of a detention order or pretrial detention, or a final sentence with a custodial sentence.
• e)If the interested party opposes within the legal term, the directing body of the process shall resolve the preliminary defenses that have been presented and shall convene an oral and private hearing before the Administration, in which all pertinent evidence and arguments of the parties shall be admitted and received. Likewise, ocular inspections and expert examinations may be conducted before the hearing. A second hearing may be convened only when it was impossible in the first to leave the case file ready for its final decision, and the pending proceedings so require.
• f)If the public servant incurs new grounds for dismissal during the investigation period, the charges shall be accumulated in the pending case file and proceeded with in accordance with the provisions of this chapter.
• g)Once the evidence has been presented, the preliminary defenses presented within the ten-day period granted to oppose the notification of charges have been resolved, and the conclusions have been submitted by the parties or the period for doing so has expired, the case file shall be considered duly prepared, and the respective report shall be submitted to the institutional head for a final decision.
• h)The institutional head shall decide on the dismissal of the public servant or declare the lack of merit and order the archiving of the file in this latter case. However, if they consider that the fault exists but that its seriousness does not warrant dismissal, they shall order an oral reprimand, a written warning, or a suspension without pay for up to one month, depending on the seriousness of the fault.
• i)Against the resolution ordering an oral reprimand, a written warning, or a suspension without pay for up to one month, the ordinary remedies of revocation with a subsidiary appeal, when the latter is applicable, may be filed within a period of five days, counted from the day following notification of said resolution. Both remedies may be filed jointly or separately before the body issuing the resolution, which shall decide on the revocation remedy.

In the case of public servants working in an institution covered by Ley 1581, Estatuto de Servicio Civil, of May 30, 1953, the appeal remedy shall be decided by the Tribunal de Servicio Civil. The institutional head shall forward, on appeal, to the Tribunal de Servicio Civil, the corresponding administrative procedure file containing the sanction resolution as well as the resolution of the revocation remedy, with an explanation of the legal reasons and the facts on which both resolutions are based.

• j)Cases not provided for in this procedure, insofar as they do not contradict the text and procedural principles contained in this procedure, shall be resolved by applying, in a supplementary manner, according to the following order: Ley 6227, Ley General de la Administración Pública, the norms of public law, the general principles of public law, the Código de Trabajo, the Código Procesal Civil, the principles and laws of common law, equity, customs, and local practices.

State university higher education institutions shall issue internal regulations that regulate this matter, in accordance with Articles 84, 85, and 87 and the principle of due process contained in the Political Constitution; in the event that no institutional regulation exists on the matter, Ley 6227, Ley General de la Administración Pública, of May 2, 1978, the norms of public law, the general principles of public law, the Código de Trabajo, and the Código Procesal Civil shall apply in a supplementary manner.

ARTICLE 22- Recourse Phase Against the dismissal resolution issued by the institutional head, there shall be a non-extendable period of five working days, counted from the notification of the resolution, to file the revocation remedy and/or the subsidiary appeal remedy, when the latter is applicable, which shall be resolved in accordance with the following provisions:

• a)If, upon expiration of the five-day period indicated above, the resolution is not appealed, it shall become final and shall exhaust the administrative channel.
• b)If only a revocation remedy was filed, the decision by the institutional head shall be definitive, the resolution shall become final, and it shall exhaust the administrative channel.
• c)If both ordinary remedies are filed simultaneously, the appeal shall be processed once the revocation has been declared without merit.
• d)In the case of public servants working in an institution covered by Ley 1581, Estatuto de Servicio Civil, of May 30, 1953, the appeal remedy shall be granted with both effects before the Tribunal de Servicio Civil. The institutional head shall forward, on appeal, to the Tribunal de Servicio Civil, the administrative dismissal procedure file containing the dismissal resolution of the public servant, as well as the resolution of the revocation remedy, with an explanation of the legal reasons and the facts on which both resolutions are based.

If only the appeal remedy was filed, the institutional head shall forward, on appeal, to the Tribunal de Servicio Civil, the administrative dismissal procedure file containing the dismissal resolution of the public servant, with an explanation of the legal reasons and the facts on which said resolution is based.

The resolution adopted by the Tribunal del Servicio Civil on appeal shall be definitive, the resolution shall become final, and it shall exhaust the administrative channel. Said ruling is binding for the institutional head.

Once the dismissal is authorized by a final resolution, the institutional head shall have a lapse period of one month, counted from the notification of said resolution, to make it effective. For the execution of the dismissal by the institutional head, no additional agreement is required; the communication of the cessation of their status as an official to the servant, based on the final resolution issued, is sufficient.

If the Tribunal de Servicio Civil revokes the judgment issued by the institutional head, it shall issue a new ruling in the same act and decide whether the reinstatement of the employee to their position, with full enjoyment of their rights and the payment of back wages, is appropriate.

In the event that the Tribunal de Servicio Civil considers that the fault exists but that its seriousness does not warrant dismissal, it may order an oral reprimand, a written warning, or a suspension without pay for up to one month.

State university higher education institutions shall issue internal regulations that regulate this matter, in accordance with Articles 84, 85, and 87 and the principle of due process contained in the Political Constitution; in the event that no institutional regulation exists on the matter, Ley 6227, Ley General de la Administración Pública, of May 2, 1978, the norms of public law, the general principles of public law, the Código de Trabajo, and the Código Procesal Civil shall apply in a supplementary manner." The deputies consult on Articles 21 and 22 of the bill, referring to the disciplinary and sanctioning regime applicable to the Judicial Branch. They indicate that Article 21 establishes a new ground for immediate dismissal when a public servant obtains two consecutive performance evaluations below 70%. They indicate that the Judicial Branch has special laws that regulate the sanctioning regime of its servants. They add that the new grounds established relate more to administrative matters than to jurisdictional aspects, which causes a hateful and dangerous interference for our Social State of Law and judicial independence.

They consider that the new cause for immediate dismissal consisting of obtaining two consecutive performance evaluations below 70% contained in Article 21, as well as the two new serious causes created through the reform to Article 48 of the Public Administration Salary Law (Ley de Salarios de la Administración Pública), which is reformed in Article 49:A) of the bill, violate the constitutional principles of legality, legal certainty, reasonableness, proportionality, separation of powers, autonomy and independence of the Judicial Branch (Poder Judicial) and its auxiliary bodies, also allowing the interference of Mideplan in matters that are the exclusive competence of that Branch of the Republic as provided in Articles 9, 154 and 156 of the Political Constitution (Constitución Política), and the numerous cited international legislation. Then, regarding the sole dismissal procedure in relation to the Judicial Branch, they indicate that, under the scope of application of this proposed law, there will exist a single special dismissal procedure (Article 21). Regarding the appeals regime, the Civil Service Tribunal (Tribunal de Servicio Civil) is given the power to resolve all appeals filed against resolutions that determine any type of disciplinary sanction (Article 21:i) and Article 22). They consider that it also violates the independence and autonomy of the Judicial Branch, given that it has its own regulations and that, due to the specialized nature of the function it performs, it contains particular provisions regarding competencies, deadlines, offenses, sanctions, and appeals, as established in Articles 174 through 215 of its Organic Law (Ley Orgánica).

Regarding this, this Chamber (Sala) considers that:

-The creation of a new cause for dismissal, for failing the performance evaluation on two consecutive occasions (according to the first paragraph of Article 21 of the bill), is not unconstitutional as long as it is applied by the Judicial Branch and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones, TSE) in accordance with their internal regulations. The establishment of this new cause for justified dismissal does not violate the Law of the Constitution (Derecho de la Constitución), especially if it is understood that this new cause would be applied according to the internal provisions of the Judicial Branch, where Mideplán would have no interference.

-Articles 21 and 22 of the consulted bill are indeed unconstitutional, regarding their application to the Judicial Branch —and to the TSE as will be seen—, because the exercise of the disciplinary power over the servants of the Judicial Branch is an essential part of judicial independence. Thus, everything established in those norms regarding procedure and the appeals phase could not be applied to the Judicial Branch, which already has internal regulations that provide for the exercise of disciplinary power. As this Chamber indicated through vote (voto) n°2009-004849, every procedure for the adoption of disciplinary measures, suspension, or separation from the position must be resolved in accordance with the established norms of judicial conduct. Thus, in accordance with the principle of judicial independence, the entity with disciplinary competence will be, exclusively, the Judicial Branch itself.

Regarding Article 49 subsections a, b, g and h (reform to regulations) with respect to the Judicial Branch (drafted by Magistrate Picado Brenes) The consulted article provides the following:

“ARTICLE 49- Amendments (Modificaciones) The following regulatory provisions are amended, in the manner described below:

• A)Articles 12 and 48 of Law 2166, Public Administration Salary Law (Ley de Salarios de la Administración Pública), of October 9, 1957, are reformed. The text is as follows:

Article 12- The annual increment incentive shall be recognized the month immediately following the anniversary of the entry or re-entry of the public servant who works under the composite salary scheme (esquema de salario compuesto) and in accordance with the following norms:

• a)If the servant is transferred to a position of equal or lower category than the position they are occupying, there shall be no interruption whatsoever in the computation of time for the salary increase.
• b)If the servant is promoted, they shall begin to receive the minimum annual increments of the new category; under no circumstances shall the incentives already recognized be revalued.
• c)For public servants, whether permanent (en propiedad) or interim, the time of service provided in other public sector entities shall be computed for purposes of recognizing the annual increment incentive.

Article 48- Criteria for the evaluation of the performance Each head of the Public Administration, at the beginning of the year, must assign and distribute all officials among the processes, projects, products and services of the unit, establishing delivery deadlines and estimated time for their elaboration. It shall be the responsibility of each hierarchical superior to follow up on this annual work plan; its non-compliance shall be considered a serious offense (falta grave) in accordance with the applicable regulations.

For the regular and frequent follow-up of the activities of the work plan, each administration must establish a computer system for this purpose, fed by each official with the daily activities linked to said processes, projects, and products, and the compliance with deadlines and times. It shall be the responsibility of each official, including all the directive level, to update and keep up-to-date the information necessary for the evaluation of their performance, in accordance with the processes, projects, products and services assigned particularly, their delivery deadlines and estimated times for their elaboration, in said computer system that the administration shall make available to them. Its non-compliance shall be considered a serious offense in accordance with the applicable regulations.

The annual increment incentive shall be granted solely through the performance evaluation for those public servants who work under the composite salary scheme, who have achieved a minimum rating of "very good" or its numerical equivalent, according to the defined scale, in accordance with the following rules:

• a)Eighty percent (80%) of the annual rating shall be based on the fulfillment of the annual goals defined for each official, in accordance with the provisions of this chapter.
• b)Twenty percent (20%) shall be the responsibility of the head or superior, which shall be evaluated according to the good performance in accordance with the competencies necessary for the performance of the position.
• B)Subsection l) is added to Article 13 and Articles 1 and 7 bis of Law 1581, Civil Service Statute (Estatuto de Servicio Civil), of May 30, 1953, are reformed. The texts are as follows:

Article 13- The attributions and functions of the general director of Civil Service are:

[…]

• l)To exhaust the administrative channel (vía administrativa) of the matters submitted to the competence of the General Directorate of Civil Service (Dirección General de Servicio Civil).

Article 1- This statute and its regulations shall regulate the relations between the State and the public servants, with the purpose of guaranteeing the efficiency of the Public Administration.

Article 7 bis- The General Directorate of Civil Service is endowed with instrumental legal personality solely for the purposes of managing its own budget and in order for it to fulfill its objectives in accordance with Law 1581, Civil Service Statute, of May 30, 1953, other related laws, and administer its assets.

• C)Article 704 of Law 2, Labor Code (Código de Trabajo), of August 27, 1943, is reformed. The text is as follows:

(…)

• D)Articles 7, 8, 9 and 10 of Law 8777, Creation of the Administrative Tribunals of the Pension and Retirement Regime of the National Teachers and the Civil Service (Creación de los Tribunales Administrativos del Régimen de Pensiones y Jubilaciones del Magisterio Nacional y del Servicio Civil), of October 7, 2009, are reformed. The texts are as follows:

(…)

• E)Articles 7 bis and 35 of Law 1581, Civil Service Statute, of May 30, 1953, are reformed. The texts are as follows:

(…)

• F)Subsection 5) of Article 112 of Law 6227, General Law of Public Administration (Ley General de la Administración Pública), of May 2, 1978, is reformed. The text is as follows:

(…)

• G)Article 85 is added to Law 5155, Statute of Judicial Service (Estatuto de Servicio Judicial), of January 10, 1973. The text is as follows:

Article 85.- The competencies defined in this law, for the bodies of the Judicial Branch, shall be carried out in coordination with the Ministry of National Planning and Economic Policy (Ministerio de Planificación Nacional y Política Económica, Mideplán), in matters pertaining to the subjects referred to in the General Law of Public Employment (Ley General de Empleo Público).

• H)Article 17 is added to Law 2422, Salary Law of the Judicial Branch (Ley de Salarios del Poder Judicial), of August 11, 1959. The text is as follows:

Article 17.- The competencies defined in this law, for the bodies of the Judicial Branch, shall be carried out in coordination with the Ministry of National Planning and Economic Policy (Mideplán), in matters pertaining to the subjects referred to in the General Law of Public Employment.

• I)Article 11 of Law 6877, Law for the Creation of the National Service of Water, Irrigation and Drainage (Ley de Creación del Servicio Nacional de Aguas, Riego y Avenamiento, Senara), of July 18, 1983, is reformed. The text is as follows:

(…)

• J)Subsection f) of Article 11 of Law 7800, Creation of the Costa Rican Institute of Sport and Recreation and the Legal Regime of Physical Education, Sport and Recreation (Creación del Instituto Costarricense del Deporte y la Recreación y del Régimen Jurídico de la Educación Física, el Deporte y la Recreación), of April 30, 1998, is reformed. The text is as follows:

(…)

• K)Subsection k) of Article 42 of Law 9694, Law of the National Statistics System (Ley del Sistema de Estadística Nacional), of June 4, 2019, is reformed. The text is as follows:

(…)

• L)Subsection ch) of Article 11 of Law 4716, Law of Organization and Functioning of the Institute for Municipal Promotion and Advisory (Ley de Organización y Funcionamiento del Instituto de Fomento y Asesoría Municipal, IFAM), of February 9, 1971, is reformed. The text is as follows:

(…)

• M)Subsection I) of Article 17 of Law 2726, Constitutive Law of the Costa Rican Institute of Aqueducts and Sewers (Ley Constitutiva del Instituto Costarricense de Acueductos y Alcantarillados), of April 14, 1961, is reformed. The text is as follows:

(…)

• N)Subsection ñ) of Article 53 of Law 7593, Law of the Regulatory Authority for Public Services (Ley de la Autoridad Reguladora de los Servicios Públicos, Aresep), of August 9, 1996, is reformed. The text is as follows:

(…)

• Ñ)Subsection t) of Article 28 of Law 7558, Organic Law of the Central Bank of Costa Rica (Ley Orgánica del Banco Central de Costa Rica), of November 3, 1995, is reformed. The text is as follows: (…)

The petitioners consider that Article 49 of the consulted bill is unconstitutional. They particularly argue against subsection a), subsection b) and subsections g) and h). Regarding subsection a) they refer to the new causes for dismissal with just cause, referred to, according to the petitioners, to the evaluations below 70% and to not feeding the database. Regarding the first cause, this Chamber already ruled in the preceding recital (considerando), and as for the second cause regarding the feeding of the database, it should be noted that it is not clearly substantiated, therefore this Chamber omits ruling.

Regarding subsection b) the consultation is made because the Judicial Branch would be subjected to the Civil Service Statute. In this regard, this Chamber observes that the article in question adds and reforms some articles of the Civil Service Statute, particularly Article 1, as observed in the following sense:

Civil Service Statute (current version) Civil Service Statute (proposed reform) | --- | --- | | Article 1.- This Statute and its regulations shall regulate the relations between the Executive Branch (Poder Ejecutivo) and its servants, with the purpose of guaranteeing the efficiency of the Public Administration, and protect said servants. | Article 1- This statute and its regulations shall regulate the relations between the State and the public servants, with the purpose of guaranteeing the efficiency of the Public Administration. | As such, based on the consulted bill, the Civil Service Statute would regulate relations, not only for the Executive Branch, but in general for the entire State, including the Judicial Branch. This per se would not be unconstitutional, of course, if it is understood that the subjection of the Judicial Branch is to general principles of public employment and that this does not imply that the special regulations of the Judicial Branch in these matters are being derogated, because on this matter of public employment of officials, this special regulation would prevail over the Civil Service Statute. Furthermore, the General Directorate of Civil Service could not have competence regarding matters referred to the Judicial Branch. Under this interpretation, Article 49 subsection b) is not unconstitutional, provided it is interpreted as indicated.

Now, in the case of subsections g) and h) of Article 49, these are unconstitutional for violating the independence of the Judicial Branch. The foregoing because, through such subsections, the intention was to make respective additions to the Statute of Judicial Service and the Salary Law of the Judicial Branch, for the purpose of including the interference of Mideplán in the competencies defined in this special regulation, indicating that the bodies of the Judicial Branch must carry out the competencies defined in those laws, in coordination with said ministry. This is evidently a violation of the constitutional principle of judicial independence, as it would involve an organ of the Executive Branch with which the competent authorities of the Judicial Branch would be obliged to coordinate the exercise of their competencies, in matters of public employment of judicial officials. Thus, the Full Court (Corte Plena), the president of the Supreme Court of Justice (Corte Suprema de Justicia), the Personnel Council (Consejo de Personal), the Judicature Council (Consejo de la Judicatura) and the Personnel Department (Departamento de Personal) would be in mandatory coordination with Mideplán before the adoption of actions on topics related to public employment contained in the bill, be it: work planning, work organization, employment management, performance management, compensation management and labor relations management. In matters that are the exclusive competence of the Judicial Branch, such as the internal management of its personnel, any type of mandatory coordination with another State organ is excluding. Although it is a matter of coordination and not direction, it is true that, in this matter, which is proper to the internal jurisdiction of judicial independence, not even coordination would be admissible for the exercise of exclusive competencies of the Judicial Branch. "Judicial independence manifests itself on various levels; on the external level, it translates into the autonomy of the Judicial Branch in economic matters and by the lifetime tenure (inamovilidad) of its personnel, as well as, in the functional aspect, by the real possibility of making its decisions according to its own criteria and not as a result of pressures from certain groups, institutions or persons." (ruling n°2000-005493). Furthermore, it must be remembered what Article 154 of the Constitution indicates: "The Judicial Branch is only subject to the Constitution and the law...", there is no submission, not even at the level of coordination, to another organ of another branch of the Republic. Note that even "the constitutional attributions to order, plan or program, for example, the administrative function of personnel management" are beyond the reach of the legislator (ruling n°2017-009551), with even more reason, they would be beyond the reach of another branch of the Republic. This is because even "an indirect regulation of the judicial service through directives or guidelines from other instances" is prevented (ruling n°2018-019511). Consequently, this Tribunal considers that subsections g and h of Article 49 contain a defect of unconstitutionality, for harming the principle of independence of functions that Articles 9 and 154 of the Political Constitution guarantee to the Judicial Branch.

• 4)Conclusion -Regarding Articles 12 (database), 13.h (family in positions of trust (puestos de confianza)), 15 (postulates of recruitment and selection), 19 (mobility or transfers), and 31 (work methodology), given that the sufficient substantiation is not provided to allow this Chamber to have clarity on what was consulted, the consultation is declared unanswerable (inevacuable) for lack of substantiation.

-In the terms indicated and according to the jurisprudence of this Chamber, the following articles of the bill "PUBLIC EMPLOYMENT FRAMEWORK LAW (LEY MARCO DE EMPLEO PÚBLICO)", processed in legislative file (expediente legislativo) n° 21.336, are unconstitutional.

Having analyzed all the aspects consulted regarding Article 2 (subsection a), 6 (subsection b), 7 (subsections d, g and p), 9 (second paragraph of subsection a), 13 (subsection f), 14, 17, 18, 21 and 22, 49 (subsection b, g and h), of the bill called "PUBLIC EMPLOYMENT FRAMEWORK LAW" legislative file n° 21.336, this Chamber verifies that such norms are contrary to the Law of the Constitution, for violation of the principle of separation of functions, the principle of judicial independence, the particular employment regime of the Judicial Branch and the administrative constitutional competencies of the Supreme Court of Justice. The economic, personal, functional, organic and institutional independence, both of the Judicial Branch itself, and of the judges and auxiliaries of justice, is essential in a Constitutional State of Law. According to this principle, each branch is independent of the other, each State organ must be able to exercise its function independently of the others (Article 9 of the Constitution). There can be interrelation among them, but never subordination, nor obligatory coordination in matters proper to the exclusive and excluding competence of the Judicial Branch. It is true that the integral reading of the bill allows concluding that the principle of separation of powers is not duly guaranteed, not only due to the subjection to Mideplán (Articles 6, 7 and 9 for example), but also due to the imposition of certain matters that are of the exclusive and excluding competence of the Judicial Branch (Articles 14, 17, 18, 21 and 22 for example). Furthermore, it is not only a violation of the principles of separation of functions and judicial independence, but of the entire democratic system and organization of Power that the Constituent Assembly (Constituyente) has created in our Rule of Law. "One more guarantee of the independence of the Judicial Branch in the matter of employment is that the Head of the Personnel Department is linked to the President of the Court, excluding the interference of external instances." (vote n°2018-019511).

Finally, this Chamber observes from the legislative file that, the Supreme Court of Justice issued an unfavorable opinion on the bill in the consultation made by the Legislative Assembly (Asamblea Legislativa), when it indicated the following, through official letter n°SP-62-2021 of June 3, 2021:

"As it was said, although the new text of the bill ... maintains the latent opposition to including the Judicial Branch in a regulation that implies a clear interference of the Executive Branch in matters that - constitutionally and legally - are proper to this other institution. (...) the normative basis of the previous text is maintained and it intends to regulate a public employment regime that does not consider differentiating aspects of the entities and bodies that it subjects to its scope of coverage. Thus, the Judicial Branch continues to be part of the bill, with the consequences that this implies for its internal structure and functioning, according to the observations made in the previous reports." (underlining does not correspond to the original) (The particular notes of the magistrates, on this section, as it is carried out jointly with the Supreme Electoral Tribunal, are included at the end of the following section).

X.- Regarding the consultation of violation of the independence of the Supreme Electoral Tribunal.- 1) Aspects consulted The petitioning deputies consider that the following articles of the bill "PUBLIC EMPLOYMENT FRAMEWORK LAW", processed in legislative file n° 21.336, are violative of the principle of separation of powers. Specifically, they consult on the following articles, indicated either in the heading of the general title or in the rest of the text of the filing brief:

2.a (scope of coverage), 6.b (governing authority (rectoría) of Mideplan), 7 (competencies of Mideplan), 9.a (Human Resources offices), 12 (database), 13 (families of positions (familias de puestos)), 14 (recruitment and selection), 15 (postulates of recruitment and selection), 17 (Senior Management personnel), 18 (probationary period (plazo de prueba) and appointment period), 19 (mobility or transfers), 21 (sole dismissal regime), 22 (dismissal process), 31 (work methodology), In the first place, regarding Articles 12 (database), 13.h (family of positions of trust), 15 (postulates of recruitment and selection), 19 (mobility or transfers), and 31 (work methodology), given that the sufficient substantiation is not provided to allow this Chamber to have clarity on what was consulted, the consultation is declared unanswerable for lack of substantiation.

As for the rest of the articles, the petitioners consider that Articles 2.a, 6, 7, 9, 13, 14, 17, 18, 21 and 22 of the bill "PUBLIC EMPLOYMENT FRAMEWORK LAW", processed in legislative file n° 21.336, violate the independence of the TSE and therefore, Articles 9 and 99 of the Constitution. They consider them unconstitutional because they oblige the TSE to apply and execute the provisions of general scope, directives and regulations issued by Mideplán in violation of its independence, allowing interference by the Executive Branch in a matter that is forbidden to it by constitutional mandate and in regression of the Rule of Law. They indicate that Article 9 of the Constitution guarantees the independence of the TSE placing it at the rank of the other Branches of the State, and not only regarding acts related to suffrage but with respect to the functions established by the Constitution itself and other laws. Thus, the existence of aspects that compromise the legal and constitutional competencies of the TSE is warned, Article 13.a.f which establishes a single public employment regime for the servants and Magistrates of the TSE; obligation to apply recruitment and selection processes of persons with the provisions of general scope, directives and regulations issued by Mideplán (Article 14), subjection to Mideplán in recruitment and selection of senior technical management personnel, obligation of 6 months of probation and 6 years of appointment (Article 17 and 18); a single special administrative procedure for dismissal. In addition to the inclusion in Article 2.a, the obligation to apply and execute the provisions of general scope, directives and regulations issued by Mideplán violating the independence of the TSE (Articles 9 and 99) and proposes the subjection and interference of the Executive Branch in a matter that is forbidden to it by constitutional mandate coupled with the regression it implies for the Rule of Law.

Thus, we proceed to the examination of the indicated articles. Previously, a jurisprudential summary on the topic of independence of the TSE is carried out, which will serve as context for the examination of each consulted article.

• 2)Jurisprudential Background on the Constitutional Principle of Separation of Powers regarding the Supreme Electoral Tribunal Regarding the Supreme Electoral Tribunal (TSE), it must be indicated that there is also abundant jurisprudence on the foundation, justification and relevance of its independence. In vote n°3194-1992, the Chamber resolved:

"In the case of electoral matters, the 1949 Constitution gave special importance to the need to segregate everything related to suffrage, mainly from the orbit of the political branches of the State. In that direction, it established a series of principles and adopted eminently formal mechanisms to guarantee the independence of suffrage, above all through the full autonomy of the organ called to organize, direct and oversee it. Originally in Article 99 of the Constitution, and later also in Article 9 —by the addition introduced by law 5704 of June 5, 1975— not only was the Supreme Electoral Tribunal attributed the organization, direction and vigilance of the acts related to suffrage, but also, it was granted the rank and independence proper to a branch of the State." While in vote n°00495-1998, it was added that "although (the TSE) is not a Branch of the State in the strict sense, it does fulfill a primordial function in the Costa Rican State —which is to deal with the electoral matter—, and by constitutional norm —transcribed second paragraph of Article 9— it is conferred the rank and independence of a branch of the State". On its part, in vote n°2000-06326, this Chamber specified:

"III.- OF THE LEGAL-CONSTITUTIONAL NATURE OF THE SUPREME ELECTORAL TRIBUNAL. On the occasion of the electoral problems that motivated the 1948 revolution, the members of the National Constituent Assembly of 1949 took special care to look after the electoral matter, segregating everything related to suffrage, mainly from the orbit of the Branches of the State, especially from the Executive and from the Legislative Assembly, without leaving aside the Judicial. They established a series of basic principles on which the exercise of suffrage is developed:

"The law shall regulate the exercise of suffrage in accordance with the following principles:

Autonomy of the electoral function; Obligation of the State to register, ex officio, the citizens in the Civil Registry and to provide them with an identity card to exercise suffrage; Effective guarantees of freedom, order, purity and impartiality on the part of government authorities; Guarantees that the system for issuing suffrage facilitates the exercise of that right for citizens; Identification of the elector by means of an identity card with a photograph or other adequate technical means provided by law for that purpose; Guarantees of representation for minorities; Guarantees of political pluralism; Guarantees for the designation of authorities and candidates of the political parties, according to democratic principles and without discrimination (Article 95 of the Political Constitution); and they adopted eminently formal mechanisms to guarantee the independence of suffrage, endowing with full autonomy the organ called to organize, direct and oversee it (the Supreme Electoral Tribunal), originally in the terms of Article 89 of the Political Constitution, and then in those of Article 9 (added by Law Number 5704, of June 5, 1975), by virtue of which, it was delegated to this Tribunal, not only the competence of the electoral matter –as noted previously–, but also it was granted the rank and independence proper to a branch of the State. From what has been said it is clear that the Supreme Electoral Tribunal is a constitutional organ specialized in electoral matters, which by constitutional provision enjoys the same independence as the Branches of the State in the exercise of its attributions; that is, it has full autonomy to organize, direct and oversee the electoral processes and all acts related to suffrage, with the independence and rank proper to a State branch, which has been considered previously in constitutional jurisprudence in the following terms:

"The Tribunal as a specialized constitutional organ for electoral matters, with the rank and independence of the public branches, can be invested, only in its specific scope, with any of the functions of the State, and in fact it is with all three [that it has assigned], to have in its charge 'the organization, direction and vigilance of the acts related to suffrage, as well as the other functions attributed to it by the Constitution and the laws'" (ruling number 0980-91, of 1:30 p.m. on May 24, 1991).

In this sense, and due to the importance it holds, mention must be made of the interpretive faculty that constitutional jurisprudence recognized to this constitutional tribunal, obviously in matters proper to its competence: the electoral, in the following terms:

"[...] competencies of Articles 97 second paragraph and 121 subsection 1) exclude even the Legislative Assembly and that 102 ends up reinforcing with an unequaled breadth, above all by attributing to it powers as broad as that of 'interpreting in an exclusive and obligatory manner the constitutional and legal provisions referring to the electoral matter' subsection 3º)" (ruling number 0980-91, cited above).

By virtue of this special competence, of the prerogatives and powers of the Supreme Electoral Tribunal, this Constitutional Chamber concluded that the sphere of the electoral is 'a special constitutional sphere, to which the same rules as to the other Public Branches do not apply' (ruling number 3194-92, of 4:00 p.m. on October 27, 1992). As an example, we must make obligatory reference to the regulatory competence that constitutional jurisprudence has recognized to it only in relation to the matter proper to its competence, obviously the electoral activity:

(…)

IV.- OF THE SCOPE OF COMPETENCE OF THE SUPREME ELECTORAL TRIBUNAL: THE ELECTORAL MATTER IN LIGHT OF CONSTITUTIONAL JURISPRUDENCE.

On repeated occasions this Chamber has pronounced on the special competence of the Supreme Electoral Tribunal, which is defined by constitutional provision itself – articles 9 and 99 of the Political Constitution – as electoral matters; and in this regard, one may consult rulings numbers 0980-91, 2150-92, 3194-92, 2430-94, 2456-96, 0034-98, 0466-98, 0563-98 and 0969-98. In all of these decisions, it recognizes the exclusive competence it has in electoral matters, and it is only when the latter denies its competence that it considered that the Constitutional Chamber may hear such matters, provided that it is alleged that the challenged acts violate fundamental rights:

(…) Thus, it has indicated that electoral activity comprises those of organizing, directing and supervising all acts related to the national election process (ruling number 0653-98), which is carried out in activities such as the following, that is, without this implying an exhaustive list, by way of example: the regulation of the rules governing political debt, as well as the control that the Supreme Electoral Tribunal has over this matter (0980-91, 3666-93, 0515-94, 0428-98); the control of statutory regulations relating to the right to elect and be elected in the internal processes of political parties (ruling number 3294-92); the integration of the Municipal Council, the declaration of the election and the subsequent substitutions due to loss of credentials of municipal council members (regidores) and district trustees (síndicos) (ruling number 2430-94); the processing of the electoral contentious proceeding to hear the cancellation or annulment of credentials of municipal council members (ruling number 0034-98); the closure of commercial businesses where liquor is sold and which are located in the center of the city of San José as a result of the holding of public squares celebrated by political parties (ruling number 0466-98); and the determination by the Supreme Electoral Tribunal of where the solemn celebration will take place on election day, for the initial count of the national election results (0563-98).” Now, regarding specifically the public employment regime (régimen de empleo público), applicable to the TSE, the truth is that there are no specific precedents on this matter. Although one can refer, again, to vote no. 550-1991, in which it was ordered:

“(…) in the case of the branches of government, their own constitutional independence, guaranteed in general by article 9 of the Constitution and, in those of the Judicial Branch and the Supreme Electoral Tribunal by those of articles 99 and following, 152 and following and 177 of the same, as well as their own organic norms, impose upon their heads the authority and responsibility to set the remuneration, representation expenses and other facilities inherent to the positions, of their own members and subordinates, within, naturally, their budgetary availabilities, independently, of course, from whether their amounts may or may not coincide with those of the deputies.” One may also cite vote no. 2005-14298 (which heard an action against the appointment term of the Chief Clerk of the Civil Registry). In said vote, the Chamber resolved the action with express support in articles 191 and 192 of the Political Constitution. It was reiterated that although the Constitution refers to a civil service statute, the truth is that:

“(…) The derived legislator, however, chose to regulate the service not in a general manner, but by sectors, thus enacting the Civil Service Statute (which applies to the servants of the Executive Branch) and subsequently, other statutes to regulate the provision of services in the remaining branches of the State and in some decentralized institutions. Nevertheless, despite the fact that the legislator did not embrace the constituent's idea and regulated public service only partially, the truth is that the basic principles of the regime (selection by suitability, stability in employment), cover all officials at the service of the State, both of the central administration and of the decentralized entities. (…) It is repeated that the original constituent's intention was the existence of a single law, a Statute, that would regulate all public employment. However, the important thing is that the regulation in detail of the coverage of the special regime was delegated to the derived legislator, which it could do, as it did, in separate laws, without detriment to the constitutional mandate.” It was also indicated:

“(…) In a Tribunal such as this one, where electoral matters are its essence, the constitutional principles of the public employment regime of stability and proven suitability, must be safeguarded with greater zeal, because the constituent's intention in creating this Branch of Government was to completely sever the possibility that electoral officials might interfere in any political activity, in order to guarantee an independent Electoral Body.” From all of the foregoing, it is concluded that the Supreme Electoral Tribunal, as the constitutional body charged with organizing, directing and supervising the independence of the suffrage, was granted the rank and independence proper to a branch of the State. Therefore, it enjoys full independence to fulfill its constitutional duties. Due to the electoral problems that motivated the 1948 revolution, the members of the 1949 National Constituent Assembly took special care of electoral matters, segregating everything relating to suffrage, mainly from the orbit of the Branches of State, shielding the electoral function by means of different principles and guarantees, such as, in the first place, the autonomy of the electoral function. From what has been said, it is clear that the Supreme Electoral Tribunal is a specialized constitutional body in electoral matters, which by constitutional provision enjoys the same independence as the Branches of the State in the exercise of its attributions; that is, it has full autonomy to organize, direct and oversee electoral processes and all acts relating to suffrage, with the independence and rank proper to a State Branch of Government. Thus, this Constitutional Chamber concluded that “the sphere of electoral matters is a special constitutional sphere, to which the same rules as the other Public Branches of Government do not apply" (ruling no. 2000-06326). While it is true that the constitutional principles of the public employment regime (suitability and stability) also apply to it, it is understood that the TSE has its own organic or special norms that grant exclusive competence to its heads to set the remuneration, representation expenses and other facilities inherent to the positions, of their own members and subordinates.

Finally, just as was indicated supra regarding the Judicial Branch, the foregoing does not prevent the Legislator from enacting a General Public Employment Law that includes the TSE, provided that the principles of separation of powers or functions and electoral independence are respected.

• 3)On the examination of the Articles consulted On Article 2.a (scope of coverage) regarding the Supreme Electoral Tribunal (Drafted by Magistrate Castillo Víquez) The consulted norm states the following:

“ARTICLE 2- Scope of coverage This law is applicable to public servants of the following entities and bodies under the principle of the State as a single employer:

• b)The Branches of the Republic (Executive, Legislative and Judicial), their auxiliary and attached bodies, and the Supreme Electoral Tribunal (TSE), without prejudice to the principle of separation of Branches established in the Political Constitution.

(…)” As was stated for the case of the Judicial Branch, faced with such a panorama, and taking up what was set forth supra, in the sense that it is plausible to subject all branches of the State to a single public employment statute, whereby the subjection of the Judicial Branch and the Supreme Electoral Tribunal to this law is not unconstitutional, it is unconstitutional by reason of not excluding the officials who exercise jurisdictional functions – judges – or para-jurisdictional functions – prosecutors (fiscales), public defenders and professionals and specialized staff of the Judicial Investigation Agency (Organismo de Investigación Judicial), etc. – and the officials at the managerial or senior political direction level as the bill (proyecto de ley) calls them, as well as the officials of the Supreme Electoral Tribunal who exercise electoral functions – lawyers (letrados), directors of Departments, professionals, etc. -, and those who hold positions of senior political direction (alta dirección política), as well as the administrative, professional and technical staff, defined exclusively and excludably by each head of the respective branch, since, in these cases, it is not possible to subject them to directives, provisions, circulars, manuals issued by Mideplán. The foregoing means that the Judicial Branch and the Supreme Electoral Tribunal would be subject to those powers that the law grants to Mideplán when it concerns the rest of the officials – those defined by each head of the Judicial Branch and the Supreme Electoral Tribunal in an exclusive and excludable manner -, who form part of the administrative, auxiliary or support staff.

On Article 6 (leadership of Mideplán), regarding the Supreme Electoral Tribunal (Drafted by Magistrate Castillo Víquez) The following norm is consulted:

“ARTICLE 6- Creation of the General Public Employment System The leadership (rectoría) of the General Public Employment System will be in charge of the Ministry of National Planning and Economic Policy (Mideplán). Said system will be composed of the following:

• a)The Ministry of National Planning and Economic Policy (Mideplán).
• b)The offices, departments, areas, directorates, units or homologous denominations of Human Resources Management of the entities and bodies under the scope of application of this law. (…)” In the same sense as was indicated for the Judicial Branch, in relation to Article 6, subsection b, of the consulted bill (proyecto de ley) is unconstitutional, since it subjects the Judicial Branch and the Supreme Electoral Tribunal to the directive power of the Executive Branch, which is contrary to the principles of judicial and electoral independence. Hence, the offices, departments, areas, directorates, units of Human Resources Management of these branches cannot be under the cited power, except as concerns those who provide basic administrative, auxiliary services, that do not affect the exclusive and excludable competences nor administrative functions necessary for the fulfillment of these, defined, exclusively, by the heads of the Judicial Branch and the Supreme Electoral Tribunal.

On Article 7 (powers of Mideplán), regarding the Supreme Electoral Tribunal (Drafted by Magistrate Castillo Víquez) The following norm is consulted:

“ARTICLE 7- Powers of Mideplán The powers of the Ministry of National Planning and Economic Policy (Mideplan) are the following:

• a)Establish, direct and coordinate the issuance of public policies, programs and national public employment plans, in accordance with Law 5525, National Planning Law, of May 2, 1974.
• b)Establish mechanisms for discussion, participation and agreement with municipal corporations through the Union of Local Governments and state university higher education institutions, in matters of public employment.
• c)Issue provisions of general scope, directives and regulations, aimed at the standardization, simplification and coherence of public employment, as prescribed in Law 6227, General Law of Public Administration, of May 2, 1978, and Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.
• d)Advise the entities and bodies included under the scope of coverage of this law, for the correct implementation of the public policies, the provisions of general scope, the directives and the regulations issued within the framework of the political leadership in public employment and Law 6227, General Law of Public Administration, of May 2, 1978, and Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.
• e)Administer and keep updated the integrated public employment platform.
• f)Publish the public employment offer, through the virtual platform that the entities and bodies included in the scope of coverage of this law will feed.
• g)Issue the general guidelines and principles for performance evaluation.
• h)Administer and implement the actions of research, innovation and formulation of public employment proposals.
• i)Direct and coordinate the execution of the inherent powers in matters of public employment with the Ministry of Finance, the Ministry of Labor and Social Security, the Budgetary Authority and the General Directorate of Civil Service, among other technical dependencies in the matter of public employment, concerning the subject of public employment.
• j)Collect, analyze and disseminate information on public employment of the entities and bodies for the improvement and modernization thereof. For this purpose, it shall establish a system of indicators, through the establishment of coordination criteria, to homogenize the collection and dissemination of data.
• k)Prepare a coherent and comprehensive strategy for learning and development throughout the public service, establishing how long-term capacity for higher management standards and professional competence will be developed and providing guidance to public institutions on how to plan and implement activities within the strategy.
• l)Coordinate with the Public Ethics Procuratorship (Procuraduría de la Ética Pública) to issue provisions of general scope, directives and regulations, for the instruction of public servants on the duties, responsibilities and functions of the position, as well as the ethical duties governing public service, that are appropriate according to Law 6227, General Law of Public Administration, of May 2, 1978, and Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.
• m)Establish a single and unified remuneration system for the public service in accordance with this law and specific to the salary and benefits of all public officials.
• n)Carry out diagnostics in matters of human resources of the entities and bodies included, in order to achieve an adequate resizing of the existing payrolls and the elaboration of general criteria that delimit the sectors whose activity, due to its strategic institutional value, as well as the link with the substantive activity, should be reserved to be carried out exclusively by public servants. Furthermore, analyze those that serve as orientation to delimit the provision of those that could be outsourced and the conditions for the provision thereof.
• o)Foresee global trends in the future of public employment, with the purpose of informing its planning.
• p)Analyze the efficiency and effectiveness of the evaluation mechanisms, in order to determine whether or not they fulfill their purpose.
• q)Evaluate the general public employment system in terms of efficiency, effectiveness, economy, simplicity and quality.” In the same sense as the Judicial Branch, Article 7, subsections d), g) and p) are unconstitutional, since they affect the independence of the Judicial Branch and the Supreme Electoral Tribunal, insofar as it subjects them to the directive and regulatory power of Mideplán, as well as to the verification of whether or not they fulfill the purpose of the performance evaluation and is not excluded from the directive power. It must be emphasized that the principle of separation of powers or functions is incompatible with the directive and regulatory power exercised by the Executive Branch, since it cannot order its activity, establishing goals and objectives. As concerns the performance evaluation, it is reserved to each branch of the State, since this matter is consubstantial to the exercise of its constitutional powers. This means that, with respect to this point, all the officialdom of each branch would be subject to the internal provisions that each one of these dictates in this regard.

On Article 9.a.- Human Resources Offices regarding the Supreme Electoral Tribunal (Drafted by Magistrate Picado Brenes) The consulted article establishes the following:

“ARTICLE 9- Functions of the active administrations a) The offices, departments, areas, directorates, units or homologous denominations of human resources management, of the institutions included in Article 2 of this law, shall continue to carry out their functions in accordance with the relevant normative provisions in each public dependency.

Likewise, they shall apply and execute the provisions of general scope, the directives and the regulations, in relation to planning, work organization, employment management, performance management, compensation management and labor relations management, that the Ministry of National Planning and Economic Policy (Mideplán) sends to the respective institution, according to Law 6227, General Law of Public Administration, of May 2, 1978, and Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.

• b)It is the responsibility of the offices, departments, areas, directorates, units or homologous denominations of human resources management to elaborate and apply knowledge, competency and psychometric tests, for the purposes of personnel recruitment and selection processes, to carry out internal and external competitive examinations by opposition and merits, which must always comply at least with the standards established by the General Directorate of Civil Service for each post, according to its scope of competence, and the guidelines issued according to Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.

Furthermore, to incorporate said competitive examinations into the public employment offer of the Public Administration and to verify that public servants receive the due induction on the duties, responsibilities and functions of the position, as well as the ethical duties of the public service general and particular to the institution and position.

• c)The institutional human resources management offices, of ministries and institutions or bodies attached under the scope of application of the Civil Service Statute, are technical dependencies of the General Directorate of Civil Service which, for all purposes, must coordinate the elaboration of personnel recruitment and selection tests with such offices and carry out their advisory, training and technical support functions.” As observed, the consulted Article 9 establishes certain functions for all offices, departments, areas, directorates or human resources units, of all institutions included in the project, including the Human Resources of the TSE. Thus, as regards properly the consultation made regarding the TSE, the second paragraph of subsection a) imposes on Human Resources that it apply and execute the provisions of general scope, the directives and the regulations, in relation to planning, work organization, employment management, performance management, compensation management or salaries and labor relations management, that Mideplán sends to it. Which would imply that a body of the Executive Branch, such as Mideplán, imposes on the TSE the application and execution of its provisions, directives and regulations, and in matters that are the exclusive domain of that constitutional body, such as planning, work organization, employment management, performance management, compensation or salary management and labor relations management. Such obligation for the Human Resources of the TSE being clearly a violation of the principle of separation of powers, according to the scope that constitutional jurisprudence has given to such a basic principle of our democracy. Recall that the principle of division of powers, or as it is more recently known, the principle of separation of functions, is enshrined in Article 9 of the Political Constitution and stands as "one of the fundamental pillars of the Democratic State, insofar as it establishes a system of checks and balances that guarantees respect for the values, principles and constitutional norms for the direct benefit of the inhabitants of the country." (ruling no. 2006-013708), and that the TSE has the rank and independence proper to a branch of the Republic (ruling no. 3194-1992). Which implies that each Branch of the State can exercise its function independently of the others (ruling no. 6829-1993). Thus, the TSE, by its rank as a branch of the State, has its own powers of organization and direction (ruling no. 2000-06326); in addition, it has "its own organic norms, impose upon their heads the authority and responsibility to set the remuneration, representation expenses and other facilities inherent to the positions, of their own members and subordinates…" (ruling no. 550-1991). This is because, "…the Public Employment Regime, it is possible to conclude that the competent state body in this matter is each branch of the Republic, given that it is these – Executive, Legislative, Judicial and Supreme Electoral Tribunal – that are the most qualified to determine their needs and know their particular conditions." (ruling no. 03575-1996). For all of the foregoing, it is considered that the first paragraph of the consulted Article 9 is violative of the principle of separation of powers, in this case, properly of the TSE.

On subsection a) of Article 13, Job Families regarding the Supreme Electoral Tribunal (Drafted by Magistrate Picado Brenes) We proceed to examine subsection a) of Article 13 of the project, regarding its application to the TSE, this because it was expressly consulted by the deputies. Recall that this Chamber, in matters of facultative consultations of constitutionality, proceeds to pronounce itself only on the topics consulted.

As observed, Article 13 of the project establishes a single public employment regime, formed by eight job families (familias de puestos). Subsection a) includes "those that are performed in the institutions indicated in Article 2 of this law, that are not included in the remaining job families." In this case, concerning the TSE, the magistrates are included as one job family (according to subsection f), and all the remaining officials of the TSE within this first job family (subsection a) or within the family of trust positions (puestos de confianza) (subsection h). Recall that this subsection h) is not being heard in this consultation, for which reason, no particular pronouncement is issued on this specific norm. Now, having left only the magistrates as a separate family, the remaining officials who are not trust positions, who correspond to support, professional and technical administrative posts, would fall within the same family as the remaining officials included within the Civil Service Statute. This is clearly unconstitutional, in view of the following reasons: In the first place, the TSE's staff is being divided despite the fact that all contribute to the fulfillment of the electoral function. Only the magistrates would be within the group indicated in subsection f), but all the remaining officials, who also contribute to the exercise of this function so important for Costa Rican democracy, would end up forming another job family group. In the second place, all TSE officials who contribute to the electoral function, directly or through support, require full independence of judgment in their actions. Including an important part of these officials together with others, who belong to the other branches of the Republic and other institutions, is a situation that puts that independence of judgment at risk. Especially if one takes into account that, for that job family group, it will be Mideplán (a body of the Executive Branch) who would issue the guidelines for the recruitment process, selection, evaluation, compensation, etc. That is to say, it would concern almost the entirety of TSE officials who would be totally subject to the directives of Mideplán, which is violative of the independence of Branches, in the terms indicated supra. Clearly a provision of such a nature is contrary to the Law of the Constitution. The TSE, as a body with the rank of a Branch of the State, must enjoy full independence in the exercise of its functions, which implies independence for the management of its staff. In this case, with much greater zeal than the rest of the Civil Service staff, since "the constituent's intention in creating this Branch of Government was to completely sever the possibility that electoral officials might interfere in any political activity, in order to guarantee an independent Electoral Body." (ruling no. 2005-14298). That would not be possible if all TSE staff were included within the same job family group as the remaining Civil Service officials. Note that such TSE officials have assigned functions as important for electoral activity as: organizing, directing and supervising all acts related to the national election process; the regulation of the rules governing political debt, as well as control over this matter; the control of statutory regulations relating to the right to elect and be elected in the internal processes of political parties; the integration of the Municipal Council (Concejo Municipal); the declaration of the election and the subsequent substitutions due to loss of credentials of municipal council members (regidores) and district trustees (síndicos); the processing of the electoral contentious proceeding to hear the cancellation or annulment of credentials of municipal council members; the closure of commercial businesses where liquor is sold and which are located in the center of the city of San José as a result of the holding of public squares celebrated by political parties; the determination of where the solemn celebration will take place on election day, for the initial count of the national election results; among many others. All of which requires the guarantee of independence in the management of this staff, which cannot remain united to the same job family as the rest of the Civil Service public servants. One must take into account that, upon becoming part of the civil service, the same rules that apply to Executive Branch officials who make up the civil service would apply to TSE officials, including transfers or mobility (art. 12), among others. This aggravates the situation and threatens the maxim of maintaining the electoral function as an independent function, free from interference by the other Branches of Government. Thus, it is verified that Article 13 subsection a) is unconstitutional, with respect to the Supreme Electoral Tribunal, since almost all the officials of that body would move to the Civil Service, with the exception of its magistrates and employees serving in trust positions (cargos de confianza). Therefore, this Chamber considers that Article 13 subsection a) is unconstitutional, with respect to the TSE – as it was the only body consulted on this subsection -, since almost all the officials of that body would move to the Civil Service.

Regarding subsection f) of Article 13 (job families), with respect to the Supreme Electoral Tribunal (Drafted by Magistrate Castillo Víquez) Consultation is made regarding the following provision:

“ARTICLE 13- General public employment regime There shall be a single general public employment regime, which in turn shall be comprised of the following eight job families that shall be applicable in the organs and entities of the Public Administration, according to the functions carried out by their personnel:

• a)Public servants under the scope of application of Title I and Title IV of the Civil Service Statute, as well as those serving in the institutions indicated in Article 2 of this law, who are not included in the remaining job families.
• b)Public servants who perform functions in health sciences.
• c)Public servants who perform police functions.
• d)Teaching staff contemplated in the Civil Service Statute, of Title II and Title IV.
• e)Teaching and academic staff of technical and higher education.
• f)Persons who administer justice and the magistrates of the Supreme Electoral Tribunal (TSE).
• g)Public servants who perform foreign service functions.
• h)Public servants who perform in positions of trust (cargos de confianza).

The creation of public employment job families is reserved to law and must be justified by technical and legal criteria consistent with efficient and effective public management.

In all the categories described above, the senior public administration, through the occupational health offices or departments, must have in each public entity, as established by Article 300 of the Labor Code and its regulations, the diagnosis of their working conditions, the occupational health program, and when working conditions adverse to their health exist, the respective safety protocols must be created to safeguard their life, which will be validated internally and with the respective endorsement of the Occupational Health Council, for which the necessary human resources will be provided. Said body shall depend administratively and directly on the highest authority (jerarca).

In the same sense as indicated for the Judicial Branch, regarding subsection f) of Article 13, it is unconstitutional because it does not exclude officials who perform para-jurisdictional functions—prosecutors, public defenders, and professionals and specialized personnel of the Judicial Investigation Agency (Organismo de Investigación Judicial), etc.—and officials at the managerial or senior political leadership level, as well as the officials of the Supreme Electoral Tribunal who exercise an electoral function—legal advisors (letrados), Department Directors, professionals, etc.—and those who hold senior political leadership positions. Furthermore, it does not exclude all administrative support, professional, and technical staff that the highest bodies of the aforementioned State powers define, exclusively and excludingly, as indispensable or consubstantial for the exercise of their constitutional powers. Especially since, in accordance with that same article, subsection a), all of those officials would be included in a category of the Civil Service Statute, which affects the independence of both the Judicial Branch and the Supreme Electoral Tribunal, based on the fact that judicial and electoral governance is exercised by the Supreme Court of Justice and the Supreme Electoral Tribunal exclusively and excludingly with respect to their constitutional powers. Finally, it must be kept in mind that the construction of the family, as explained supra, corresponds, exclusively and excludingly, to each power of the State.

Regarding Article 14.- Recruitment and selection with respect to the Supreme Electoral Tribunal (Drafted by Magistrate Picado Brenes) In the same sense as with respect to the Judicial Branch, the petitioners state that the principle of independence and the autonomy of the Supreme Electoral Tribunal is harmed, by attempting to also subject it to the provisions issued by an organ of the Executive Branch, in relation to the recruitment and selection of its personnel. The Article 14 in question provides the following:

“ARTICLE 14- Recruitment and selection The recruitment and selection of newly entering public servants shall be carried out based on their proven suitability, for which the Ministry of National Planning and Economic Policy (Mideplán) shall issue, with absolute adherence to Law 6227, General Law of Public Administration, of May 2, 1978, the provisions of general scope, directives, and regulations, according to the respective job family.

In the recruitment and selection processes, an applicant may not be chosen who is in any of the following situations:

• a)Being related by consanguinity or affinity in a direct or collateral line, up to the third degree inclusive, to the immediate superior or to the persons immediately superior to the latter in the respective unit.
• b)Being listed in the registry of ineligible persons on the integrated public employment platform.” In the same sense as was consulted regarding the Judicial Branch, the petitioners state that the principle of independence and the autonomy of the TSE is harmed by attempting to also subject it to the provisions issued by an organ of the Executive Branch, in relation to the recruitment and selection of its personnel. As has already been duly accredited, pursuant to the provisions of Articles 2 and 13 of the same bill, and as provided in this Article 14, the Supreme Electoral Tribunal would also be subject to the provisions of general scope, directives, and regulations issued by Mideplán in relation to the recruitment and selection of newly entering personnel, which becomes unconstitutional. Article 9 of the Constitution clearly states that the TSE was created by the constituent assembly with the rank and independence of the Powers of the State, to which the organization, direction, and oversight of acts related to suffrage were assigned, exclusively and independently, as well as the other functions attributed to it by the Constitution and the laws, which has been fully recognized in the jurisprudence of this Court (see rulings No. 1992-3194, 1998-495, 2000-6326, and 2012-9139, among others). In this sense, any external interference from another power in the proper aspects of the Supreme Electoral Tribunal that harms such independence is equally invalid. The Constituent Assembly conferred such a degree of autonomy on this organ to ensure the due exercise of its electoral function and of those other essential administrative functions that provide support and impartiality to its main function. Under this understanding, it is not possible to admit that an organ of the Executive Branch, in this case Mideplán, imposes on the Supreme Electoral Tribunal provisions related to the recruitment and selection processes of its personnel, a matter that, as has been indicated, is consubstantial to the degree of autonomy and independence enjoyed by these constitutional organs. As in other cases in this bill, even though Article 2 states that the scope of coverage is “without prejudice to the principle of separation of Powers established in the Political Constitution,” Article 14 would apply to the Supreme Electoral Tribunal. Consequently, such an article contains a defect of unconstitutionality, insofar as it is applicable to the Supreme Electoral Tribunal.

Regarding Article 17.- Senior Management Personnel with respect to the Supreme Electoral Tribunal (drafted by Magistrate Picado Brenes) The consulted article establishes the following:

“ARTICLE 17- Senior public management personnel The Ministry of National Planning and Economic Policy (Mideplán) shall issue the provisions of general scope, the directives, and the regulations regarding senior public management personnel, that are consistent with Law 6227, General Law of Public Administration, of May 2, 1978, to provide the Public Administration with profiles of integrity and proven capacity for management, innovation, and leadership, to seek the improvement of the provision of public goods and services. (…)” The petitioners indicate harm to the principle of separation of functions and to the independence of the TSE, since this rule provides that, in the case of senior management positions, Mideplán shall be the one to issue the provisions of general scope, directives, and regulations in this regard. In the same sense that this Chamber has been resolving these aspects, the interference of this Ministry, which is an organ of the Executive Branch, issuing provisions of general scope, directives, and regulations to the TSE regarding senior management positions, is a violation of the principle of separation of powers. Note that these are strategic positions of great importance for its proper organization, such as the Executive Directorate, the General Directorate of the Civil Registry, the General Directorate of the Electoral Registry and Financing of Political Parties, among others. In view of this and the impartiality that this constitutional organ must possess, it is the TSE itself that is responsible for assessing the needs of the service it provides and determining the conditions under which those positions must be filled, to fulfill the constitutional purposes that have been assigned to it. These are positions of great relevance, which must be particularly protected from the interference of other Powers of the Republic, and which require the stability of personnel necessary for an adequate and impartial performance of the position, which is incompatible with subordination to the provisions issued by Mideplán in this regard, as the rule in question provides. The TSE itself being competent in this respect, as this Chamber has previously indicated: “… be the Public Employment Regime, it is possible to conclude that the competent state organ in this matter is each power of the Republic, given that it is these—Executive, Legislative, Judicial, and Supreme Electoral Tribunal—that are the most capable of determining their needs and knowing their particular conditions.” (ruling No. 03575-1996). Therefore, it is considered that there is a defect of unconstitutionality in Article 17 under consultation, in the terms set forth.

Regarding Article 18.- Probationary period and appointment term for Senior Management Personnel with respect to the Supreme Electoral Tribunal (drafted by Magistrate Picado Brenes) In the petitioners' opinion, the consulted Article 18 is unconstitutional, since it affects a matter that is proper to the competence of the Supreme Electoral Tribunal, by establishing that, in the case of senior technical management positions, the appointment shall be for 6 years with a probationary period of 6 months, annually renewable, subject to performance evaluation. The consulted Article 18 provides the following:

“ARTICLE 18- Appointment and probationary period for senior public management Every public servant who is appointed to senior public management positions shall be under probation for a period of six months and their appointment shall be made for a maximum of six years, with the possibility of annual renewal, which shall be subject to the results of the performance evaluation. (…)” On this point, what was already indicated in relation to the Judicial Branch applies, in the sense that the regulation of aspects related to the appointment and selection of personnel, as also occurs with senior technical management positions, the probationary period, term, or conditions for renewal of appointments, are regulations proper to and pertaining to the organizational and administrative autonomy of the TSE. It is understood that senior technical management positions, defined by the TSE itself, are strategic positions of great importance for its proper organization, such as the Executive Directorate, the General Directorate of the Civil Registry, the General Directorate of the Electoral Registry and Financing of Political Parties, among others. In view of this and the impartiality that this constitutional organ must possess, it is this body that is responsible for assessing the needs of the service it provides and determining the conditions under which those positions must be filled, to fulfill the constitutional purposes that have been assigned to it, in respect of the recognized independence, provided it adheres to the principle of suitability. In its case, for example, the suitability of the appointment period for those positions or the conditions for renewal could be subject or not to electoral periods, or address a condition of greater stability in the position such as that guaranteed in Article 192 of the Constitution. All according to its internal regulations, and not to a generic regulation like the one intended in this bill. The definition of such conditions is the exclusive competence of this specialized constitutional organ. Hence, in the terms in which the consulted Article 18 is drafted, it contains a defect of unconstitutionality, for violating the principle of independence of the TSE, to which corresponds, exclusively, the definition of the conditions under which its senior management positions must be performed.

Regarding Article 21 (single dismissal regime) and Article 22 (dismissal process) with respect to the Supreme Electoral Tribunal (drafted by Magistrate Picado Brenes) The consulted articles establish the following:

“ARTICLE 21- Dismissal procedure It shall be grounds for immediate dismissal, applicable to every public servant, to obtain two consecutive performance evaluations lower than a score of seventy percent (70%), which are final, once the grade challenge procedure has been exhausted and provided that the public servant's responsibility for said deficient evaluation has been accredited. Said grade must be duly justified by the immediate superior who assigns it and by the hierarchical authority that confirms it, if it has been appealed.

The included entities and organs must apply remedial plans agreed upon with the public servant, and with the advice of human resources, that allow them to determine the causes for which public servants obtain a grade lower than seventy percent (70%) and apply actions to improve their performance. If, despite the application of the remedial plan, the public servant does not manage to improve their performance and consecutively obtains another grade lower than seventy percent (70%), the grounds for immediate dismissal shall be configured.

The included entities and organs must apply remedial plans that allow them to determine the causes for which public servants obtain a grade lower than seventy percent (70%) and apply actions to improve their performance. If, despite the application of the remedial plan, the public servant does not manage to improve their performance and consecutively obtains another grade lower than seventy percent (70%), the grounds for immediate dismissal shall be configured.

Any justified dismissal shall be understood as without responsibility for the Public Administration and shall cause the public servant to lose all the rights that this law and the applicable regulations in each job family grant them, except the proportional parts of the employment entitlements that correspond and those acquired in accordance with the pension regimes in force, provided it is carried out in observance of the following rules:

• a)In all units under the scope of application of this law, a single special administrative dismissal procedure shall be applied, which guarantees the satisfaction of due process and its principles, which must be concluded by final act within a period of two months, from its initiation. The preliminary investigation, in cases where required, shall not initiate the procedure indicated in the preceding paragraph; however, it must begin, under penalty of statute of limitations, no later than within a period of one month from when the highest authority (jerarca) becomes aware, whether ex officio or by complaint, of the possible commission of a fault by one of their servants. The same one-month statute of limitations period shall apply if, once the mentioned preliminary investigation has been initiated, it remains paralyzed through the fault of the Administration.

For the purposes of the two-month period indicated in the first paragraph of this subsection, the ordinary dismissal procedure shall begin from the moment the institutional highest authority makes the decision to initiate said procedure with the appointment of the directing body of the process.

• b)Once a complaint or report is received, or the institutional highest authority is informed of an alleged fault that, in their opinion, warrants the initiation of a dismissal procedure, they shall appoint a directing body of the process, which shall formulate the charges in writing and give a hearing to the public servant for a term of fifteen days, to present all the evidence offered in an oral and private hearing, which shall be notified personally through the official's institutional email address, certified mail, or by means of a one-time publication in the official gazette La Gaceta, when it is demonstrated that there is no way to locate the alleged offender. Within the indicated period, the public servant must submit their defense in writing and may offer all the evidence they consider appropriate to support their defense, whether documentary, testimonial, or of any other nature in support thereof, as well as the exceptions or incidents they consider appropriate.
• c)If, upon expiration of the period determined in the preceding subsection, the servant has not submitted an opposition or if they have expressly stated their agreement with the charges attributed to them, the institutional highest authority shall issue the dismissal resolution without further process, unless they prove they were not notified by the directing body of the process or were prevented by just cause from opposing.
• d)If the charge or charges made against the employee or public servant imply criminal responsibility or when necessary for the successful outcome of the administrative disciplinary dismissal proceeding or to safeguard the decorum of the Public Administration, the institutional highest authority may decree, in a reasoned resolution, the provisional suspension of the public servant in the exercise of their position. If criminal proceedings are initiated against the public servant, said suspension may be decreed at any time as a consequence of a detention order or pretrial detention, or a final sentence with a custodial penalty.
• e)If the interested party opposes within the legal term, the directing body of the process shall resolve the preliminary exceptions that have been filed and shall convene an oral and private hearing, before the Administration, in which all pertinent evidence and arguments of the parties shall be admitted and received. Likewise, ocular inspections and expert examinations may be carried out before the hearing. A second hearing may only be convened when it was impossible in the first to have the case file ready for its final decision, and the pending proceedings so require.
• f)If the public servant incurs a new ground for dismissal during the investigation period, the charges shall be accumulated in the pending case file and proceedings shall be in accordance with what is established in this chapter.
• g)Once the evidence has been taken, the preliminary exceptions filed within the ten-day period granted to oppose the notification of charges have been resolved, and the conclusions have been submitted by the parties or the period for doing so has expired, the case file shall be deemed duly instructed and the respective report shall be elevated to the institutional highest authority so that a final resolution can be issued.
• h)The institutional highest authority shall resolve the dismissal of the public servant or shall declare the lack of merit and order the archiving of the case file in the latter case. However, should they consider that the fault exists but that its severity does not warrant dismissal, they shall order an oral reprimand, a written warning, or a suspension without pay for up to one month, depending on the severity of the fault.
• i)Against the resolution ordering an oral reprimand, a written warning, or a suspension without pay for up to one month, the ordinary appeals of revocation with subsidiary appeal, when the latter is appropriate, may be filed within a period of five days, counted from the day following the notification of said resolution. Both appeals may be filed jointly or separately before the body issuing the resolution, which shall resolve the revocation appeal.

In the case of public servants who work in an institution covered by Law 1581, Civil Service Statute, of May 30, 1953, the appeal shall be resolved by the Civil Service Tribunal. The highest authority shall forward, on appeal, to the Civil Service Tribunal, the corresponding administrative procedure case file where the sanction resolution is recorded, as well as the resolution of the revocation appeal, with an expression of the legal reasons and facts on which both resolutions are based.

• j)Cases not provided for in this procedure, as long as they do not contravene the text and the procedural principles contained in this procedure, shall be resolved by applying supplementarily, in the following order: Law 6227, General Law of Public Administration, the rules of public law, the general principles of public law, the Labor Code, the Civil Procedure Code, the principles and laws of common law, equity, customs, and local practices.

The state university higher education institutions shall issue internal regulations governing this matter, in accordance with Articles 84, 85, and 87 and the principle of due process contained in the Political Constitution; in the event that there is no institutional regulation on the matter, Law 6227, General Law of Public Administration, of May 2, 1978, the rules of public law, the general principles of public law, the Labor Code, and the Civil Procedure Code shall apply supplementarily.

ARTICLE 22- Recourse phase Against the dismissal resolution issued by the highest authority, there shall be a non-extendable period of five business days, counted from the notification of the resolution, to file the revocation appeal and/or the subsidiary appeal, when the latter is appropriate, which shall be resolved in accordance with the following provisions:

• a)If, upon expiration of the five-day period indicated above, the resolution is not appealed, it shall become final and shall exhaust the administrative channel.
• b)If only a revocation appeal was filed, what is resolved by the highest authority shall be definitive, the resolution shall become final, and shall exhaust the administrative channel.
• c)If both ordinary appeals are filed at the same time, the appeal shall be processed once the revocation has been declared without merit.
• d)In the case of public servants who work in an institution covered by Law 1581, Civil Service Statute, of May 30, 1953, the appeal shall be granted with both effects before the Civil Service Tribunal. The highest authority shall forward, on appeal, to the Civil Service Tribunal, the administrative dismissal procedure case file, where the public servant's dismissal resolution is recorded, as well as the resolution of the revocation appeal, with an expression of the legal reasons and facts on which both resolutions are based.

If only the appeal was filed, the highest authority shall forward, on appeal, to the Civil Service Tribunal, the administrative dismissal procedure case file where the public servant's dismissal resolution is recorded, with an expression of the legal reasons and facts on which said resolution is based.

The resolution adopted by the Civil Service Tribunal on appeal shall be definitive, the resolution shall become final, and shall exhaust the administrative channel. Said ruling is binding for the institutional highest authority.

Once the dismissal has been authorized by a final resolution, the institutional highest authority shall have a deadline for expiry of one month, counted from the notification of said resolution, to make it effective. For the execution of the dismissal by the highest authority, no additional agreement is required; merely the communication to the public servant of the cessation of their status as an official, based on the final resolution issued, is sufficient.

If the Civil Service Tribunal revokes the judgment issued by the institutional highest authority, it shall issue a new ruling in the same act and resolve whether the restitution of the employee to their position is appropriate, with full enjoyment of their rights and payment of lost wages in their favor.

In the event that the Civil Service Tribunal considers that the fault exists but that its severity does not warrant dismissal, it may order an oral reprimand, a written warning, or a suspension without pay for up to one month.

The state university higher education institutions shall issue internal regulations governing this matter, in accordance with Articles 84, 85, and 87 and the principle of due process contained in the Political Constitution; in the event that there is no institutional regulation on the matter, Law 6227, General Law of Public Administration, of May 2, 1978, the rules of public law, the general principles of public law, the Labor Code, and the Civil Procedure Code shall apply supplementarily.” The deputies consult on Articles 21 and 22 of the bill, referring to the disciplinary and sanctioning regime applicable to the Judicial Branch and the TSE. They indicate that Article 21 establishes a new ground for immediate dismissal when the public servant obtains two consecutive performance evaluations lower than 70%. They add that the new grounds established correspond more to administrative matters, thus attempting to subject an official to criteria foreign to their duties for a purely administrative breach that may lead to their dismissal, which causes an odious and dangerous interference for our Social State of Law. They consider that the new ground for immediate dismissal consisting of obtaining two consecutive performance grades lower than 70% contained in Article 21, as well as the two new serious grounds created by the reform to Article 48 of the Public Administration Salary Law, which is reformed in Article 49:A) of the bill, violate the constitutional principles of legality, legal certainty, reasonableness, proportionality, and separation of powers. Then, regarding the single dismissal procedure, they indicate that the Public Employment Framework Law Bill establishes that a single special dismissal procedure shall be applicable to all public servants under the scope of application of this law proposal (Article 21). Regarding the recourse regime, the Civil Service Tribunal is given the authority to resolve all appeals filed against resolutions that determine any type of disciplinary sanction (Article 21:i) and Article 22). In relation to the single procedure created in Articles 21, starting from subsection a), and 22 of the bill under this consultation, we also consider that it violates independence.

In this regard, this Chamber considers that:

-The creation of a new ground for dismissal, for failing the performance evaluation on two consecutive occasions (according to the first paragraph of Article 21 of the bill), is not unconstitutional provided it is applied by the Judicial Branch and the Supreme Electoral Tribunal in accordance with their internal regulations. The establishment of this new ground for justified dismissal does not violate the Law of the Constitution, especially if it is understood that this new ground would be applied according to the internal provisions of the TSE, where Mideplán would have no interference.

-Articles 21 and 22 of the consulted bill are unconstitutional regarding their application to the TSE—and to the Judicial Branch as stated supra—since the exercise of the disciplinary authority over the servants of the TSE is an essential part of electoral independence. Thus, everything established in these rules regarding procedure and the recourse phase could not be applied to the TSE, which already has internal regulations providing for the exercise of disciplinary authority. The adoption of disciplinary measures, suspension, or separation from the position must be resolved in accordance with internal regulations for the protection of the electoral function.

Thus, in accordance with the principle of separation of powers, the entity with disciplinary competence shall be, in this case, exclusively the TSE itself.

• 4)Conclusion -Regarding articles 12 (database), 13.h (family in trust positions), 15 (recruitment and selection postulates), 19 (mobility or transfers), and 31 (work methodology), given that the petitioners do not provide sufficient reasoning to allow this Chamber to have clarity on the matter consulted, the consultation is declared unevacuable due to lack of reasoning.

-In the terms indicated and in accordance with the jurisprudence of this Chamber, the following articles of the bill “LEY MARCO DE EMPLEO PÚBLICO,” being processed in legislative file No. 21.336, are unconstitutional.

Having analyzed all the aspects consulted regarding article 2 (subsection a), 6 (subsection b), 7 (subsections d, g and p), 9 (second paragraph of subsection a), 13 (subsections a and f), 14, 17, 18, 21 and 22, of the bill called “LEY MARCO DE EMPLEO PÚBLICO” legislative file No. 21.336, this Chamber confirms that such norms are contrary to Constitutional Law, due to violation of the principle of separation of functions. The separation of powers is essential in a Constitutional State of Law. In accordance with this principle, each power is independent of the others; each State organ must be able to exercise its function independently of the others (art. 9 of the Constitution). There may be interrelation among them, but never subordination. Furthermore, it is not only a violation of the principles of separation of functions, but of the entire democratic system and the organization of the Powers that the Constituent created in our State of Law. In the specific case of the TSE, it is possible to replicate – as applicable – the same conclusions already issued regarding the Judicial Branch. Although the fundamental principles of the public employment regime also apply to the TSE, the truth is that, to protect its independence, it must continue to have its own regulatory framework, which specifically, particularly, and differentially regulates the employment relationships with its servants and the evaluation of their performance. The foregoing, in order to duly guarantee the independence of said organ, for the proper exercise of its electoral function and those other essential administrative functions that support its primary function. Hence, it is unconstitutional to admit that the Executive Branch, through Mideplán, has rectoría (governing authority) over TSE officials. Even though, as occurs in the case of the Judicial Branch, in the aforementioned article 2, it is stated that the law would apply to the TSE “without prejudice to the principle of separation of Powers established in the Political Constitution” – an imperative imposed, in itself, by the Constitution itself. The fact is that a comprehensive reading of the bill leads to the conclusion that such principle is not duly guaranteed, not only by the subjection to Mideplán, but by the imposition of certain matters that are the exclusive and excluding competence of the TSE. The norms of the bill do not evidence, nor ensure, the existence or the proper operability of an effective cooperation/coordination relationship between the Executive Branch and the TSE and, quite the contrary, what is evident is that the general objective of the consulted bill is to subject the TSE to the rectoría (governing authority) of Mideplán and the technical criteria of the Dirección General de Servicio Civil. In fact, Mideplán is granted broad powers to issue “general provisions, guidelines and regulations,” to develop and regulate the different aspects covered – in generic terms – in the bill. Finally, it is noted from the legislative file that the Tribunal Supremo de Elecciones issued an unfavorable opinion on the bill in the consultation made by the Asamblea Legislativa, when it indicated the following, through official communication TSE-1226-2021 of June 3, 2021:

“the existence of a series of aspects that would compromise the competences legally and constitutionally entrusted to this Tribunal is observed. (…) In our opinion, providing for the inclusion of electoral officials in a general sub-regime of public servants and with it the subordination of the Tribunal to an organ of the Executive Branch that would exercise the rectoría (governing authority) in matters of public employment and its diverse aspects, would gravely injure the design conceived by the Constituent and the own independence that, with the rank of a State Power, was granted to this Tribunal in article 9 of the Constitution, in order to avoid any influence of the Executive in the conduct of electoral processes. (…) Conclusion. Based on the foregoing, considering that the initiative in the terms currently proposed would violate the principle of separation of powers and would entail an impairment to the independence constitutionally granted to the electoral bodies, this Tribunal objects to the consulted bill, in the terms and with the consequences indicated in article 97 of the Constitution; constitutional violation that could only be overcome by introducing the changes suggested in this agreement. FIRM AGREEMENT.” XI.- On the consultation of violation of University Autonomy.- 1) Aspects consulted The petitioner deputies consider that the following articles of the bill “LEY MARCO DE EMPLEO PÚBLICO,” being processed in legislative file No. 21.336, are violative of university autonomy. Specifically, they consult on the following articles, indicated either in the heading of the general title or in the rest of the text of the filing brief:

6 (rectoría of Mideplan), 7 (competencies of Mideplan), 9.a (Human Resources offices), 11 (employment planning), 13 (job families), 14 (recruitment and selection), 15 and 16 (recruitment and selection postulates and job offer), 17 (Senior Management personnel), 30 (compensation management postulates) 31 (job evaluation) 32 (grades within job families) 33 (job classification) 34 (global salary schedule) 35 (unified salary regime) 36 (remuneration policy) 37.f) (global salary of rectors) In this regard, the first thing that must be indicated is that, regarding articles 11 (employment planning), 15 (recruitment and selection postulates), 16 (job offer), the petitioners do not provide sufficient reasoning to allow this Chamber to have clarity on the matter consulted, which is why the consultation is declared unevacuable in relation to said articles. Upon a detailed reading of this argument made by the petitioners, the conclusion is reached that it is not a question of constitutionality being posed to the Chamber, but rather a kind of complaint that lacks due reasoning on the motives for which the deputies consider it might contain some friction with Constitutional Law. Note that it is a simple statement indicating that such articles of the bill could be contrary to university autonomy, without indicating the motives or reasons why this might be true or not, without mentioning the eventual constitutional principles or norms violated. That is, it does not contain clear reasoning of the arguments that, in the petitioners' opinion, would make the norm unconstitutional. Consequently, the requirement established in article 99 of the Law of Constitutional Jurisdiction, according to which the consultation must be formulated in a reasoned memorial, expressing the questioned aspects in the bill and the motives for which there are doubts or objections of constitutionality, is not met. Therefore, the constitutional consultation on the bill “LEY MARCO DE EMPLEO PÚBLICO” being processed in legislative file No. 21.336 is declared unevacuable, regarding articles 11 (employment planning), 15 (recruitment and selection postulates), 16 (job offer), due to lack of adequate reasoning from a constitutional point of view.

Now, regarding the rest of the articles consulted, the petitioner deputies consider them unconstitutional because they violate the principle of university autonomy contained in articles 84, 85 and 87 of the Political Constitution. They consider that university autonomy is violated by subjecting the teaching and research staff of higher education institutions to the employment regime, to development plans, salary regimes, performance evaluations, guidelines, orders, instructions and circulars issued by Mideplán and in some cases by the Dirección General de Servicio Civil and the Autoridad Presupuestaria. With the establishment of Mideplán as the órgano rector (governing body) (art. 6) and its competencies (art. 7), such Ministry will not be limited to designing the general guidelines of the public employment policy but will give specific orders to organize its employment management, defining the criteria to be used in knowledge, competency and psychometric tests for personnel selection and the precise way in which internal and external competitions must be conducted, how each entity must carry out its evaluation processes, design the internal salary and control policy, which exceeds the powers of direction and coordination. It forces the human resources offices of universities to adjust the knowledge, competency and psychometric tests, internal and external competitions by opposition and merits to the rules of the Dirección General de Servicio Civil. Universities must appoint teaching staff complying with the orders on the matter established by the Dirección General de Servicio Civil. The bill does not incorporate the possibility of salary differences for reasons of merit that include knowledge, experience and knowledge production as a basis for those differences, which are essential for universities. They allege that the bill is unreasonable and disproportionate since there are no studies demonstrating the supposed savings generated in public finances as a consequence of the inclusion of universities in the bill, as their budget is not related to the sustainability of the public finances of the Central Administration. It is impossible not to visualize the magnitude of power that said bill grants to the Executive Branch, to proceed to regulate, supervise and influence the labor relations of universities, which means subjecting critical thinking to the political class.

Next, a separate analysis of each of the questioned articles is undertaken. A jurisprudential summary on the topic of university autonomy is first provided, which will serve as context for the examination of each consulted article.

• 2)Jurisprudential Background on University Autonomy In accordance with article 84 of the Constitution (“ARTICLE 84.- The University of Costa Rica is an institution of higher culture that enjoys independence for the performance of its functions and full legal capacity to acquire rights and contract obligations, as well as to establish its own organization and government. The other state institutions of university higher education shall have the same functional independence and equal legal capacity as the University of Costa Rica. // The State shall provide them with their own patrimony and shall collaborate in their financing.) public universities or state universities enjoy a special degree of autonomy, which can be called university autonomy. According to constitutional jurisprudence, such autonomy encompasses administrative, political, financial and organizational autonomy. Therefore, public universities have all the administrative faculties and powers to carry out their mission. Thus, they can self-determine, in the sense that they are empowered to establish their plans, programs, budgets, internal organization and structure their own government, all within the limits established by the Political Constitution itself and the special laws that regulate their organization and operation (see vote No. 2012-011473). The Political Constitution provides that universities enjoy independence for the performance of their functions and full legal capacity to acquire rights and contract obligations, as well as to establish their own organization and government. The Chamber’s jurisprudential line has been clear in establishing that public universities have the highest degree of autonomy, which is self-organizational autonomy or full autonomy. This autonomy, which has been classified as special, is complete and therefore, distinct from that of the rest of the decentralized entities in our legal system (mainly regulated in another part of the Political Charter: articles 188 and 190), and means that they are outside the direction of the Executive Branch and its hierarchy, that they have all the administrative faculties and powers necessary to carry out the special purpose legitimately entrusted to them. They can self-determine, in the sense that they are enabled to establish their own plans, programs, budgets, internal organization and structure their government. Furthermore, public universities have regulatory power (autonomous and of execution); they can self-structure, distribute their competencies within the internal sphere of the entity, decentralize in what is legally possible and lawful, regulate the service they provide, and freely decide on their personnel. All these are powers of the administrative, political, organizational and financial modalities of autonomy that correspond to public universities. University autonomy has as its main purpose, to provide the entity with all the necessary legal conditions to independently carry out its mission of higher culture and education. (see judgment No. 1992-495, No. 1993-1313, No. 2002-8867 and No. 2008-013091). Thus, it follows from the words of Constituent Fernando Baudrit when he said:

“What we seek is to avoid the University the threat of future Congresses moved by politiquero interests ... Tomorrow, if the University does not adapt to the prevailing political environment, a Congress, with the purpose of liquidating it, can easily achieve it by reducing the State subsidy. I already said that if we were not living under the current regime, the University would have disappeared, or it would have become a docile dependency of the Executive Power. It was already being plotted, in this very chamber, and by the last Congress, in that sense. Even the names of the people who would replace us in the direction of the University were being shuffled. Who assures us that a similar situation might not arise in the future? Precisely to prevent this from occurring. It is necessary, indispensable, to endow the University of Costa Rica with genuine administrative, teaching and economic independence.” (Acta 160, 4/X/1949, tomo III, p.395.)”.

This is intimately related to the academic freedom (libertad de cátedra) of universities and of universities being crucibles (scene of the fusion of very diverse ideas) for the creation of thought, criticism and construction of knowledge. A basic function in any democratic society. Thus, the autonomy of public universities protects them against the Executive Branch and the rest of the Public Administration; but also against the law, to prevent the legislator from delegating to administrative authorities powers capable of imposing on universities decisions on the scope of their competencies, such as the regulation of courses, social action, research, entrance exam, conferring university academic degrees, among others, as this Chamber has repeatedly stated in judgments No. 1993-1313 and No. 1996-276).

University autonomy is necessary for the institution to fulfill its objectives, which would run the risk of being obstructed if the interference of the Executive and Legislative Powers is allowed. This Chamber has warned that public universities are not simple teaching institutions but have higher ends, committed to the development of the country in general and Costa Ricans in particular. Specifically stated: (…) University autonomy has as its main purpose to provide the entity with all the necessary legal conditions to independently carry out its mission of higher culture and education. In this sense, the University is not a simple teaching institution (…), since to it corresponds the complex function, integral to its nature, of carrying out and deepening scientific research, cultivating arts and letters in their maximum expression, analyzing and criticizing, with objectivity, elevated knowledge and rationality, the social, cultural, political and economic reality of its people and the world, proposing solutions to great problems and therefore, in the case of underdeveloped or little developed countries like ours, serving as a driver of ideas and actions to achieve development at all levels (spiritual, scientific and material), contributing with this work to the effective realization of the fundamental values of the Costa Rican identity, which can be summarized ... in those of democracy, the Social State of Law, the essential dignity of the human being and the ‘system of freedom’, in addition to peace (article 12 of the Political Constitution) and Justice (41 idem); in summary ... that the University, as a center of free thought, must and has to be exempt from pressures or measures of any nature that tend to prevent it from fulfilling, or attempt against that its great task (…)” (judgment No. 2008-013091) The Constitutional Chamber, when analyzing the topic of university autonomy, has delved into very specific aspects that affect the materialization of such autonomy, such as that related to the salary of university officials. This is how judgment No. 2015-10248 addresses the issue of salary in the following terms: “…the university autonomy that assists public higher education centers (provided with constitutional rank), suffices for them – through their highest hierarchical bodies – to establish the modality in which they will resolve the remuneration regime of their servants ‘…always attending to elemental constitutional principles that govern the entire public apparatus, such as reasonableness and proportionality, as well as the adequate safeguarding of public finances (…).’” However, in the exercise of its autonomy, the UNED has the possibility of recognizing in a differentiated manner the payment of annuities of persons who come from working outside that institution, since the specific nature of university dynamics and its administration justifies a different valuation between the annuity coming from another public dependency and that developed properly within the university. Thus, it is reasonable that the time served within the organizational structure of the UNED is recognized with a higher salary plus than that worked in other public dependencies.

Now, regarding the limitations of this autonomy, one can cite, in the first place, judgments No. 2016-02419 and No. 2016-18087 in which the Chamber proceeded to address the question of the constitutional principles of public employment and a balancing test is made between two constitutional principles: that of university autonomy (article 84, paragraph 1, of the Constitution) and the principle of the merit system to access public function through proven suitability (article 192 of the Constitution). The Chamber leaned toward the latter and stated that, despite autonomy, public universities are subject to constitutional principles, values, precepts and jurisprudence that interpret them:

“The full or third-degree autonomy recognized to public universities in ordinal 84, paragraph 1, of the Constitution also has insurmountable limits, so that it cannot be understood, under any concept, as an indeterminate legal concept that enables university higher education centers in an indeterminate and open manner. Autonomy is a notion of constitutional Administrative Law that, obviously, must be understood within the coordinates of the Constitutional State of Law. Certainly, as this Tribunal has repeatedly affirmed, such university autonomy enables them to dictate their own fundamental legal norms of organization. However, such power cannot be exceeded, since, without a doubt, it is limited by the Constitutional Law itself, that is, constitutional values, principles, precepts and jurisprudence. Universities certainly enjoy autonomy, but not sovereignty; sovereignty is held only by the State itself. It cannot be understood, under penalty of fragmenting sovereignty, that universities can become a kind of micro-states within the Costa Rican State itself. There is no doubt that public universities, when exercising their autonomy, are also subject to the constitutional principles, values, precepts and jurisprudence that interpret them. Universities cannot abstract themselves from Constitutional Law or the constitutional order. Among the insurmountable limits of university autonomy, fundamental and human rights stand out, which are of direct and immediate application and which, of course, bind all public powers, including, of course, universities. The fundamental and human rights that emanate from the dignity of the person are the basis of the entire legal system, consequently any regulation, including that issued in the exercise of full or university autonomy, must respect them and seek their effective enjoyment. (…) “In the doctrine of neo-constitutionalism, great jurists (Ronald Dworkin, Robert Alexy, Martin Borowsky, etc.) have recommended, to resolve hard cases where opposing principles concur, the application of the so-called ‘balancing test.’ The balancing test requires, through the use of the principles of reasonableness and proportionality in a broad sense, determining which of the principles has greater weight, consistency, value to grant it preference, without this meaning the derogation of the principle that is displaced and that remains in force. Indeed, there are cases that cannot be resolved through the application of classic subsumption, since no clear rule of law is applicable to it. In the present matter it is evident that two constitutional principles can be understood as entering into confrontation or collision (in an opposing sense), namely: a) the university autonomy recognized in article 84, paragraph 1, of the Constitution and b) the principle of the merit system to access public function through proven suitability contemplated in article 192 of the Constitution. Consequently, as both principles act in an opposing sense, a balancing test is required to determine which has, in the specific case to be resolved, greater weight, consistency and, therefore, preference. In our opinion, the principle of the merit system to access public function has greater weight as it is connected with other values, principles or, if you will, constitutional goods that tip the balance in its favor.” From there, the idea was reinforced that state universities enjoy full autonomy, but not sovereignty, which resides solely in the State, and therefore, it must be understood that university regulations must be subject to constitutional values and principles. In this sense, some unconstitutionality actions have been accepted against regulations that may be unreasonable or disproportionate (see vote No. 2007-0055) or due to the primacy of fundamental rights over some decisions (see vote No. 2009-01675). Likewise, when considering that university autonomy was not violated by the entry of the Public Force into the university campus (see votes No. 2010-9339 and No. 2019-03879), and by the maintenance of the control, surveillance and oversight competencies by the Contraloría General de la República (see vote No. 2012-09215, No. 2012-10665). On the other hand, the most abundant criterion is that the autonomy of universities is broad and extends, for example, to modifying, eliminating and creating positions (votes No. 1999-9976 and 2002-7261) or, that the power to freely dispose of human, material and financial resources is part of the administrative autonomy of autonomous entities (vote No. 2002-9076). Furthermore, judgments on university autonomy can be mentioned, specifically referring to the matter of education and related issues (see vote No. 1992-495 and 2012-9215). There are also judgments where it is affirmed that greater interference by the Executive Power or Legislative Power regarding matters that are not part of the central core of the essential functions does not injure its autonomy (see votes No. 94-3309, 96-276, and 2016-18087).

• 3)Concrete analysis of the matter consulted Regarding article 6.- Power of Direction of Mideplán over Public Universities (drafted by Magistrate Castillo Víquez) From the jurisprudence of the Constitutional Chamber, it can be concluded that there are two aspects that the Chamber has consistently indicated in its judgments, regarding universities and their autonomy: 1.- Universities are not micro-states and, in that sense, they must submit to the Constitutional Law; 2.- The Executive Branch cannot exercise the power of direction and regulation in the matter that corresponds to universities, according to the constitutionally assigned purpose - teaching, research and social and cultural extension - and their degree of autonomy.

Concerning the matter of public employment, as explained below, the Chamber has analyzed many of the topics in this regard, such as: competitions, appointment requirements, evaluations, salaries, vacations and leaves, and has established clear and precise jurisprudence. The most abundant criterion is that the autonomy of universities is broad and extends, for example, to modifying, eliminating and creating positions (Votes No. 9976-99 and 7261-2002) or that the power to freely dispose of human, material and financial resources is part of the administrative autonomy of autonomous entities (Vote No. 9076-2002). However, university autonomy refers to the matter of education and related issues (Vote No. 92-495 and 12-9215). The foregoing means that greater interference by the Executive Branch or Legislative Branch with respect to matters that are not part of the central core of the essential functions related to the constitutionally assigned purposes does not injure its autonomy (Votes Nos. 94-3309, 96-276, and 16-18087, this last with a dissenting vote by Magistrate Rueda Leal). Thus, the Political Constitution provides that universities enjoy independence for the performance of their functions and full legal capacity to acquire rights and contract obligations, as well as to establish their own organization and government (article 84). However, the foregoing does not mean that they are not bound by what the legislator provides when dealing with general questions not relating to the constitutionally assigned purposes. In this direction, in the advisory opinion No. 2018-19511, which analyzed the consultation on the Law for Strengthening Public Finances, it was established, as relevant, the following:

“(…) the consulted bill does not injure the Political Constitution, since as already indicated, it is a matter of general economic policy of the State linked to national planning and development, fields in which autonomous institutions are subject to the law because it is a matter of government and whose convenience or opportunity is not for this Tribunal to assess, because it contradicts the principle of self-restraint of the constitutional judge…”.

No less important is to keep in mind that the Political Constitution establishes a normative reserve in favor of the universities of the State. Indeed, in judgment No. 1313-93, the Constitutional Chamber expressed, regarding the Law Creating the Universidad Estatal a Distancia, the following:

“The expressed concepts indicate to us, clearly, that it was the intention of the Constituent to grant state universities a general framework of autonomy according to what article 84 of the Political Constitution expresses, and additionally, special treatment regarding the legislative procedure for the discussion and approval of bills, in matters that, without being within the autonomous sphere, have to do with state universities, according to what article 88 idem provides.” See even what the constituent proponents of the full motion on the text of the cited Article 88 said, from which their intention is clearly deduced, not to exclude the law from the sphere of competence of the University, but, solely and exclusively, to establish that special majority when there is a negative opinion from the entity on the bill, when it is not a matter considered under the regime of Article 84: "Deputy Facio took the floor ... Recall briefly -he said- that corporatism is an anti-democratic regime, which supplants the decisions of a freely elected Assembly by the people, with those of corporations -corporations that are not technical institutions of the State, but representations of guilds, of professional interests- corporations that are formed, manipulated and directed by the single policy of the omnipotent State, of the totalitarian State. Nothing is further from the intention of the motion; nothing is further from its purpose. What we wish, simply, is to combine the sovereign freedom of the popularly elected Assembly with the technical requirements of the modern world. That its pronouncements be free, but that this freedom be exercised rationally, based on the support not of corporations, which represent private interests, but of public institutions, which, being public, also represent the people, and which, being technical, better represent their interests in the field of the functions entrusted to them. Does this formally imply a certain restriction on the activity of Congress? It certainly does, but that, far from being an abandonment of democracy, is simply an adaptation of democracy to problems that exist today... Dr. Jiménez de Aréchega maintains that autonomy cannot mean only independence with respect to the Executive Branch, but also with respect to the Legislative Branch, since if the Constitution establishes it in favor of such and such an organism, it is because it assumes that the corresponding matters should be handled outside of politics and party struggle; that understanding autonomy in another way relativizes it to such an extent that it would be like making it disappear. Well then, the motion does not ask for so much; it asks only that the University Council be heard when it comes to university matters..." - (See: Act number 161 of the 1949 National Constituent Assembly. Volume III, Imprenta Nacional, San José, 1956, pp. 410-414; the underlining is from this judgment).- In other words, and this is the inescapable and undoubtable conclusion of the long but transcendental series of prior citations, the Constituent Power did not remove from the Assembly nor did it prevent the Assembly from having the power to legislate regarding matters placed under the competence of the institutions of higher education, or those directly related to them -to use the very terms of the Fundamental Law-, and the only express condition that it imposed in this regard was that of hearing them previously, to discuss and approve the corresponding bills, except for what pertains to the faculty of organization and of providing their own government, according to the independence clearly granted in Article 84 of the Constitution." The boldface is not from the original.

In relation to the limits of the Legislative Assembly, in the exercise of the power to legislate, on matters placed under the exclusive and excluding competence of the State Universities, this Court established the following position:

"...Although it is true -as has already been proven- the Legislative Assembly may regulate what concerns the matter of universities, it is forbidden from making impossible, subtracting, or diminishing for those institutions those powers that are necessary for them to fulfill their corresponding purpose and that make up their own autonomy. That is to say, to express it in the terms of certain relevant doctrine, these entities have the ownership and the initial, independent, and unrestricted exercise of all administrative and teaching powers for the fulfillment of their material specialization, without this being able to be undermined by the Law. But furthermore, within the explained teaching modality, academic freedom (libertad de cátedra) (Article 87 of the Political Charter), which can be understood as the university's power to decide the content of the teaching it imparts, without being subject to what is ordered by powers external to it, or, in the sense of the faculty of university professors to express their ideas within the institution, allowing the coexistence of different currents of thought (see on legitimate limitations of freedom, the aforementioned vote 3550-92), also serves as a shield to that autonomy. Of course, also, that these entities by constitutional provision (Article 85), are subject to coordination by the 'body in charge' indicated therein, and to take into account the guidelines established by the current National Development Plan." As can easily be deduced, university autonomy is not synonymous with sovereignty, a kind of extraterritoriality. Quite the contrary, the State universities are subject to the legal system, which means that the legislator is authorized by the Law of the Constitution to subject them to the regulations it deems pertinent, especially in those cases when it comes to norms that have a general scope of application. It can even be argued, based on the Law of the Constitution, that although Article 84 establishes a regulatory reserve in favor of the universities, creating a particular legal subsystem, that reserve refers to the "organization of the university service." (see opinion No. C-086-96 of June 5, 1996, of the Procuraduría General de la República). "Therefore, the university is subject to all legal regulations that affect other subjects of the legal system equally, precisely because they are based on reasons common to all, foreign to its functional specialization, although indirectly interfering with the provision of its service and the organization of its means. Likewise, the Procuraduría has considered that in the exercise of its regulatory power, the university is subject to the general legal system, so it cannot affect state provisions that, for example, grant benefits to university workers in their condition as servants of the Public Administration. In the same line of thought, in opinion No. C-191-98 of September 10, 1998, the Procuraduría considered that the university's regulatory power does not mean 'immunity from generic public employment legislative rules for the entire Public Administration.' It is considered that the regulation of public employment is outside the university's own organizational sphere, thus reiterating opinion No. C-184-97 cited above." Thus, the autonomy of university entities -self-regulatory or self-organizing, which logically includes the administrative and governmental aspects of those entities- is strictly referred to the sphere guaranteed by university autonomy: academic activity, research, and social or cultural extension activities. Outside of that sphere, the Universities are subject to the legal regulations directed at all subjects of the legal system as such.

In the matter of their competencies, which entails the organization of the university service, in which university autonomy, and specifically referring to academic activity, research, or social or cultural extension activities, deploys all its force, the directive power of the Executive Branch or one of its organs, in this case Mideplán, is incompatible with it, much less the regulatory power. Put another way, the original constituent power, when assigning constitutional ends to the universities, endowed them with the maximum autonomy, to guarantee independence in the exercise of their competencies, a sphere from which the matter of public employment is not excluded when it is linked to those ends or it involves administrative, professional, and technical functions, necessary for those functions in accordance with what the university authorities order, exclusively and excludely, as will be explained when the consulted regulations are concretely analyzed.

Regarding the specific norms: There are several powers that are regularly mentioned in the bill in relation to Mideplán, in its condition as the governing body of public employment and its relationship with the entities to which this law would apply, indicated in Article 2. This refers to its power to issue provisions of general scope, directives, and regulations (reglamentos). The extent and binding nature of some of these powers and instruments may determine whether or not the bill encounters constitutionality issues.

In relation to Article 6, it is unconstitutional, because the directive power does not exclude officials who participate in academic activity, research, or social or cultural extension activities, and those who hold high-level political direction positions, as well as all that administrative support, professional, and technical staff, established by the highest bodies of the State universities. Ergo, the norm is only constitutional with respect to basic, auxiliary administrative personnel, which would be in the family of positions (familia de puestos) in accordance with numeral 13, subsection a) of the bill. This thesis finds support in judgment 96-0276, in which the Chamber stated:

"II.- It is fitting, first of all, to refer to the autonomy that the Constitution grants to the universities, to point out that this, although very broad, is administrative autonomy... Neither does that autonomy extend to non-university matters, that is, those not related to teaching or research in higher education..."..." LBH10/22 ... See more Content of Interest:

Content Type: Majority vote Branch of Law: 3. MATTERS OF CONSTITUTIONAL CONTROL Topic: LABOR Subtopics:

NOT APPLICABLE.

017098-21. LABOR. OPTIONAL LEGISLATIVE CONSULTATION ON CONSTITUTIONALITY, REGARDING THE BILL CALLED "LEY MARCO DE EMPLEO PÚBLICO". LEGISLATIVE FILE N° 21,336. "... Regarding Article 7.- Powers of Mideplán with respect to the Public Universities (drafted by Judge Castillo Víquez) In relation to Article 7, the same criterion expressed regarding numeral 6 is maintained; furthermore, it subjects to the regulatory power of Mideplán matters where there is an exclusive and excluding power in favor of the State universities to achieve the constitutional end assigned by the original constituent power.

Regarding Article 9.a.- Human Resources Office in the Public Universities (drafted by Judge Picado Brenes) The consulted norm establishes the following:

"ARTICLE 9- Functions of the active administrations a) The offices, departments, areas, directorates, units, or homologous human resources management denominations of the institutions included in Article 2 of this law, shall continue performing their functions in accordance with the relevant regulatory provisions in each public agency.

Likewise, they shall apply and execute the provisions of general scope, the directives, and the regulations (reglamentos), in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management, that the Ministry of National Planning and Economic Policy (Mideplán) sends to the respective institution, pursuant to Ley 6227, Ley General de la Administración Pública, of May 2, 1978, and Article 46 of Ley 2166, Ley de Salarios de la Administración Pública, of October 9, 1957.

• b)It is the responsibility of the offices, departments, areas, directorates, units, or homologous human resources management denominations to develop and apply knowledge, competency, and psychometric tests, for the purposes of personnel recruitment and selection processes, to conduct internal and external competitive examinations based on qualifications and merits (concursos por oposición y méritos), which must always comply at least with the standards established by the Dirección General de Servicio Civil for each position, according to its scope of competence, and the guidelines issued pursuant to Article 46 of Ley 2166, Ley de Salarios de la Administración Pública, of October 9, 1957.

Furthermore, to incorporate said competitive examinations into the public employment offer of the Public Administration and verify that public servants receive the proper induction regarding the duties, responsibilities, and functions of the position, as well as the general ethical duties of the public function and those particular to the institution and position.

• c)The institutional human resources management offices of ministries and institutions or attached bodies under the scope of application of the Estatuto de Servicio Civil, are technical units of the Dirección General de Servicio Civil which, for all purposes, must coordinate the development of personnel recruitment and selection tests with such offices and perform their advisory, training, and technical support functions." As observed, the consulted Article 9 establishes certain functions for all offices, departments, areas, directorates, or human resources units, of all the institutions included in the bill, including, for the human resources offices of the Public Universities. So then, regarding what strictly refers to the consultation made regarding the Public Universities, the second paragraph of subsection a) imposes on the different human resources offices of said universities the obligation to apply and execute the provisions of general scope, the directives, and the regulations (reglamentos), in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management, that Mideplán sends to them. Which would imply that an organ of the Executive Branch, such as Mideplán, imposes on the Public Universities the application and execution of its provisions, directives, and regulations (reglamentos), and in matters that are their exclusive domain, given their full autonomy, such as planning, work organization, employment management, performance management, compensation or salary management, and labor relations management. Such an obligation for the human resources offices of the Public Universities is clearly a violation of the content of the full autonomy enjoyed by the State universities. It should be recalled that this Chamber has established the scope of this autonomy, indicating that it extends to establishing their plans, programs, budgets, internal organization, and structure of their government (see judgment No. 2008-013091). Thus, the Public Universities are empowered to establish their plans, programs, budgets, internal organization, and structure their own government, all within the limits established by the Political Constitution itself and the special laws that regulate their organization and functioning (see judgment No. 2012-011473). It means that the Public Universities are outside the direction of the Executive Branch and its hierarchy, that they have all the necessary administrative faculties and powers to carry out the special end legitimately entrusted to them; that they can self-determine; they have regulatory power (autonomous and of execution); they can self-structure, distribute their competencies within the internal sphere of the entity, deconcentrate themselves in whatever is juridically possible and lawful, regulate the service they provide, and freely decide about their personnel (see judgment No. 2002-008867 and No. 2008-13091). Thus, it is fully justified that it is incompatible with their degree of autonomy to be under the general provisions, directives, and regulations (reglamentos) of an organ of another Branch of the Republic, as this consulted norm of the bill intended. In this sense, the second paragraph of subsection a of Article 9 is unconstitutional regarding its application to the public universities.

Regarding Article 13.e.- Family of Positions (Familia de Puestos) with respect to the Public Universities (drafted by Judge Castillo Víquez) Regarding Article 13, subsection e), the petitioners allege that the constitutional power that the universities have to establish their own education plans could be affected if university personnel is subjected to the control, direction, planning, and orders of the government in power. Said norm is unconstitutional, for not including in the cited subsection the servants who carry out research, social and cultural action, as well as the administrative, professional, and technical personnel, necessary to achieve the ends constitutionally assigned to the State universities, in the terms explained in the general recital.

Regarding Article 14.- Recruitment and selection in the Public Universities (drafted by Judge Picado Brenes) The petitioners question the constitutionality of Article 14 of the bill under consultation, given that, in their view, it could violate university autonomy, insofar as it subjects the public universities to the provisions issued by an organ of the Executive Branch, regarding employment management, which includes matters relating to the recruitment and selection of their personnel. The Article 14 in question orders the following:

"ARTICLE 14- Recruitment and selection The recruitment and selection of newly hired public servants shall be carried out based on their proven suitability, for which the Ministry of National Planning and Economic Policy (Mideplán) shall issue, with absolute adherence to Ley 6227, Ley General de la Administración Pública, of May 2, 1978, the provisions of general scope, the directives, and the regulations (reglamentos), according to the respective family of positions (familia de puestos).

In recruitment and selection processes, an applicant who is in any of the following situations may not be chosen:

• a)Being related by consanguinity or affinity kinship in a direct or collateral line, up to the third degree inclusive, with the immediate head nor with the immediate superiors of the latter in the respective unit.
• b)Being listed in the register of ineligible persons on the integrated public employment platform." As already indicated above, the Costa Rican public universities enjoy a privileged autonomous status in the decentralized public sector, since this independence extends to the administrative, political, financial, and organizational spheres (judgment No. 2002-008867). In light of this, it is essential that they order everything related to the recruitment and selection of their personnel, without any external interference. See what was indicated in judgment No. 2008-013091, when it states that the public universities: "…are outside the direction of the Executive Branch and its hierarchy, that they have all the necessary administrative faculties and powers to carry out the special end legitimately entrusted to them; that they can self-determine, in the sense that they are enabled to establish their plans, programs, budgets, internal organization, and structure their own government. They have regulatory power (autonomous and of execution); they can self-structure, distribute their competencies within the internal sphere of the entity, deconcentrate themselves in whatever is juridically possible and lawful, regulate the service they provide, and freely decide about their personnel…" In this case, this Court considers that the consulted bill impacts the own competencies of the Public Universities, because beyond establishing general principles or guidelines regarding public employment that respect the principle of separation of functions, the Article 14 under study is clear in stating that it will be the Ministry of National Planning and Economic Policy (Mideplán) that will issue the provisions of general scope, the directives, and the regulations (reglamentos), according to the respective family of positions (familia de puestos), that will regulate the recruitment and selection of newly hired public servants. This is because, in accordance with the provisions of Articles 13 and 2 of the same bill, what is stated in Article 14 would apply to the Public Universities. Thus, as things stand, Article 14 is unconstitutional, in authorizing an organ of the Executive Branch to be the one who directly issues provisions of general scope, directives, and regulations (reglamentos), circulars, manuals, and resolutions related to public employment matters, which empty the content of the competencies recognized to the Public Universities by the Constituent Power. Even more so when there is already a regulatory framework relevant to each of the universities that regulates those aspects. By reason of the foregoing, the consulted norm exceeds any framework of cooperation that may establish a general public employment policy, since it is not appropriate for an agency of the Executive Branch -Mideplán- to dictate to the Public Universities, which enjoy full autonomy, and in a mandatory manner, the guidelines or criteria for the selection and recruitment of their personnel. This constitutes clear external interference and the intrusion of the Executive Branch into aspects that are the exclusive competence of the Public Universities. Consequently, this Court considers that the consulted Article 14 contains a defect of unconstitutionality, by violating the university autonomy safeguarded in Article 84 of the Constitution.

Regarding Article 17.- High-Level Management Positions (Puestos de Alta Dirección) in the Public Universities (drafted by Judge Picado Brenes) The consulted norm establishes the following:

"ARTICLE 17- Senior public management personnel The Ministry of National Planning and Economic Policy (Mideplán) shall issue the provisions of general scope, the directives, and the regulations (reglamentos), regarding senior public management personnel, that are consistent with Ley 6227, Ley General de la Administración Pública, of May 2, 1978, to endow the Public Administration with profiles possessing integrity and proven capacity for management, innovation, and leadership, to strive for the improvement of the provision of public goods and services. (…)" The petitioners point out the violation of university autonomy, because this norm orders that, in the case of high-level management positions (puestos de alta dirección), it shall be Mideplán that issues the provisions of general scope, directives, and regulations (reglamentos) in this regard. In the same sense in which this Chamber has been resolving these aspects, the interference of this Ministry, which is an organ of the Executive Branch, issuing provisions of general scope, directives, and regulations (reglamentos) to the Public Universities regarding high-level management positions (puestos de alta dirección), is violative of university autonomy. The regulation of everything pertaining to high-level management positions (puestos de alta dirección) already has special regulations in the Public Universities. It should be recalled that the Public Universities are empowered to establish their own internal organization and structure their own government, all within the limits established by the Political Constitution itself and the special laws that regulate their organization and functioning (see judgment No. 2012-011473). It means that the Public Universities are outside the direction of the Executive Branch and its hierarchy, that they have all the necessary administrative faculties and powers to carry out the special end legitimately entrusted to them and that they can regulate the service they provide, and freely decide about their personnel (see judgment No. 2002-008867 and No. 2008-13091). Note that these are positions of great importance as they would refer, at least, to those who direct the different Vice-Rector's Offices and Dean's Offices, among others. Positions that are of great relevance for academic work and the faithful fulfillment of the rest of the functions assigned to public universities, which must be particularly protected from the interference of other Branches of the Republic, and that require the stability of personnel necessary for an adequate and impartial performance of the position, which is incompatible with subordination to the provisions issued in this regard by Mideplán, as the norm in question orders. Therefore, it is considered that there is a defect of unconstitutionality in the Article 17 subject to consultation, in the terms set forth.

Regarding Article 30.- Postulates for compensation in the Public Universities (drafted by Judge Castillo Víquez) As for Article 30, it is unconstitutional, insofar as it does not exclude officials who perform substantive tasks -specific to university activity-, and because it does not establish that -in consideration of university autonomy-, the construction of the salary column family and its characteristics corresponds exclusively and excludely to the highest bodies of the university entities. Following the argumentative line of the consultative opinion, it is clear that this is an essential element that affects university autonomy in relation to the staff that works in teaching, research, social and cultural extension, as well as those professional and technical officials who perform administrative tasks related to university matters. Hence, the competent bodies for constructing the family and its characteristics, from the constitutional perspective, do so independently of the directives and regulatory provisions that Mideplán or the Executive Branch issues in this area. In this direction, in judgment No. 15-10248, the Chamber referred to the setting of salaries in universities. The Court indicated that universities can establish the remuneration regime for their servers. Specifically, the Court indicated: "…the university autonomy that assists public higher education centers (established with constitutional rank), extends so that these -through their highest hierarchical bodies- establish the modality by which they will resolve the remuneration regime for their servers '…always attending to elementary constitutional principles that govern the entire public apparatus, such as reasonableness and proportionality, as well as the adequate safeguarding of public finances (…).'" This case, attending to the principles and postulates found in the bill, those that are transversal to the entire Public Administration.

Regarding Article 30.b- Salary of the President of the Republic as a salary cap in the Public Universities (drafted by Judge Castillo Víquez) Regarding numeral 30, subsection b, of the consulted bill, by majority, the Court concludes that it is not unconstitutional to establish the salary of the President of the Republic as a cap for university officials. In the first place, because the salary for the position of President of the Republic, according to what is established by Article 37 of the same bill, must be set based on technical studies, responsibilities, and position profiles; in addition to taking into account the parameters established by numeral 36 of the bill for setting salary policy. Ergo, it will be from that technical determination made by the Autoridad Presupuestaria that the salary of the position of President of the Republic will be the cap for the salaries of university officials. Secondly, the majority of the Constitutional Chamber understands that any reduction in the salary of the President of the Republic to serve as a cap must also be based on technical studies, responsibilities, and position profiles, in which case the reduction voluntarily made by the person occupying the position of President of the Republic for personal, political, or other reasons, would not apply for cap purposes. Likewise, if a President of the Republic decides to renounce all or part of their salary, such individual actions would not affect the salary cap, which has been technically set. Finally, it must be kept in mind that in compliance with the principle of financial or budgetary balance in this case, the existence of the aforementioned cap is in accordance with the Law of the Constitution. In this direction, in consultative opinion No. 2018-18505, we expressed the following:

"On this matter, faced with a critical condition in public finances (duly supported by technical studies), which puts at risk the effective or adequate execution of constitutionally relevant services, the decision of the competent authorities to define and apply suitable measures to alleviate or solve the problem is not only reasonable, but furthermore, is unavoidable.

Now then, it is not for the Chamber to define concretely what type of remedies should be applied or which is the most adequate, since this forms part of the economic policy of the State, which in turn constitutes a matter of governance.

In reality, constitutional review is constrained to ensuring that solutions are adopted while safeguarding the fundamental rights enshrined in the Political Constitution and the international human rights instruments ratified by Costa Rica, as well as the essential qualities of the country's political regime (in a democratic, free, independent, multiethnic, and pluricultural republic, whose Government is popular, representative, participatory, alternative, and responsible), all of which entails an exercise of balancing and optimizing the various constitutional principles, rights, and values at stake.

In this context, a harmonious interpretation of the principle of budgetary balance and the Social State of Law is of special importance. The Chamber notes that, for a Social State of Law to persist and fulfill its constitutional and legal purposes, it becomes necessary to carry out sound management of public finances; that is, there must inexorably be a balance between entitlement rights and state economic solvency, since the former depend on the material possibilities provided by the latter, while the purpose of the latter is to strengthen the development of a supportive political system, one in which the least favored strata of society find protection for their human dignity and their right to progress. Stated differently, the "ideal" Social State of Law is the "possible" Social State of Law, against which precisely one acts when the principle of budgetary balance is breached, given that, in the medium term, this seriously jeopardizes or entirely prevents obtaining the necessary resources to sustain a "real" Social State of Law, one from which the most vulnerable can truly and effectively benefit. Monitoring, then, that we do not fall into a failed or paper Constitution, where entitlement rights of constitutional rank cannot be effective, is a fundamental task of this Chamber, strictly within what the framework of its competencies allows.

It must be noted, however, that all constitutional principles, values, and precepts must be observed under any circumstances, which the constitutional jurisdiction is permanently responsible for monitoring. Now, by reason of the exercise of balancing or optimization that the constitutional judge performs to resolve some collision between such principles, values, and precepts, the context surrounding the conflict cannot go unnoticed.

Corollary of the foregoing: the non-observance of the principle of budgetary balance has been one of the causes of the current deteriorated state of public finances, a reason that leads this Chamber to underscore the transversal nature of said principle and to emphasize its real implementation for the sake of the principle of the Social State of Law. The observation of the State of the Nation Program is reiterated: ‘This [referring to the structural imbalance in public finances] has put the future of the social welfare State built throughout the second half of the 20th century in check, since its financing and the efficiency of its spending are not sufficient.’ Precisely, the hermeneutics of the general principles for resolving the sub examine, such as that of budgetary balance and that of the Social State of Law, cannot be detached from the parameters of constitutional relevance inferred from the measures consulted and the abundant technical references to the economic juncture, which are fundamental elements for discarding arbitrary or unreasonable action.” Regarding Articles 31, 32, and 34.- Valuation of work, grades within job families, and global salary column in the Public Universities (drafted by Judge Castillo Víquez) In relation to Articles 31, 32, and 34, the petitioners indicate that it prevents establishing salary differences based on knowledge, experience, and production of knowledge, matters that are essential for universities, while Article 32 grants the power to Mideplán to define the required grades within each job family and, finally, Article 34 regulates the preparation of the global salary column. The Chamber concludes that they are unconstitutional, insofar as they do not exclude officials who perform substantial tasks—proper to university activity—that is, those who perform teaching, research, social and cultural extension functions, as well as those who perform administrative, professional, and technical functions necessary to fulfill the constitutionally assigned purposes with criteria of efficacy and efficiency, and because the definition of the relevant work factors, their relative weight, the number of grades required within each family and their characteristics, and the preparation of the salary column correspond exclusively and excludibly to the highest bodies of the university entities. In this matter, in relation to the employees who are in the job family relative to these entities, established by the hierarchical body of each university, all these aspects, being linked to the employees necessary to achieve the constitutionally established purpose, the competence is exclusive and excluding and, consequently, Mideplán or the Executive Branch has no power to define or elaborate any of those extremes.

Regarding Article 33.- Classification of jobs in the Public Universities (drafted by Judge Castillo Víquez) With respect to Article 33, the Constitutional Chamber finds that it is unconstitutional, insofar as it does not exclude officials who perform substantial tasks—proper to university activity—that is, those who perform teaching, research, social and cultural extension functions, as well as those who perform administrative, professional, and technical functions necessary to fulfill the constitutionally assigned purposes with criteria of efficacy and efficiency, and subjects the job manual of said officials to the analysis and evaluation of Mideplán, which—in attention to university autonomy—corresponds exclusively and excludibly to the highest bodies of the university entities for the reasons explained supra.

Regarding Articles 35 and 36.- Unified salary regime and remuneration policy in the Public Universities (drafted by Judge Castillo Víquez) Articles 35 and 36 are challenged by the petitioners. In relation to the former, a unified regime is established for the entire public service, including the universities, which in the judgment of the petitioners, harms their autonomy. However, such a situation does not arise, because the global salary and a unified regime are constitutionally possible, given that what the Fundamental Charter establishes is the right to a salary—Article 56—that is, an economic consideration for the service rendered, hence there is no fundamental right to a salary plus or pluses, and therefore this is a matter of free configuration by the legislator and, consequently, the legislator, in the exercise of the power to legislate, may establish a certain salary modality, be it: a composite, global, or mixed salary, etc. On the other hand, the Constitutional Chamber concludes that the setting of a global salary by the legislator in the case of universities does not affect the exclusive and excluding competencies.

Regarding the latter, which regulates the remuneration policy and provides for the intervention of MIDEPLAN, the General Directorate of Civil Service, and the Budgetary Authority, the petitioners challenge its constitutionality because it subjects the remuneration policy to the state of available public funds. According to their criterion, in accordance with constitutional Article 85, the universities have guaranteed their revenues and financing, which could never be diminished by the central Government.

This assertion is not legally correct. In judgment No. 2019-08620, the Chamber declared WITHOUT MERIT an action filed in relation to the “Agreement for the Special Fund for Higher Education (FEES) 2018, signed on August 29, 2017,” because what was challenged was an agreement, not a provision with general effects, such that it could not be considered as the object of an action in the terms of Article 73, subsection a) of the Law on Constitutional Jurisdiction. In the report that the Office of the Attorney General of the Republic rendered in that matter, it was established that there is no provision establishing a specific percentage for state higher education.

Likewise, in advisory opinion No. 2018-18505 (legislative consultation on Law No. 9635), the Chamber stated:

“(...) What the aforementioned principles do demand is that the general trend be to always and preferentially aspire to increase the coverage of human rights and likewise of entitlement rights for the sake of the Social State of Law; however, such a goal is not alien to the socioeconomic context of a given historical juncture nor to the obligation to carry out an exercise of balancing and optimizing the various constitutional principles, rights, and values at stake (for example, between the principle of the Social State of Law and that of Budgetary Balance), so that in the context of a particularly serious financial unsustainability of the State, duly accredited from a technical point of view, measures may be taken to alleviate the situation, provided that these are adopted safeguarding the fundamental rights enshrined in the Political Constitution and the international human rights instruments ratified by Costa Rica, as well as the essential qualities of the country's political regime…”. (Boldface not in the original).

Finally, it should be noted that the definition of salary policy is a competence that the legislator attributes to the Executive Branch, which is in accordance with the powers of Administration and Government that the Political Constitution assigns to that branch in relation to its officials and other entities that do not enjoy exclusive and excluding competencies or degrees of autonomy that prevent the power of direction. Ergo, it is the university entities that are called upon to set their remuneration policy, as well as the minimum starting salary of the single salary column and the financial value assigned to each point of the global salary column, adopting as a parameter the principles and postulates provided in the challenged norm, with the exception of those officials whom the heads of these entities decide to exclude from the column because they perform basic, auxiliary administrative functions, which are not linked to the constitutionally assigned purposes.

Regarding Article 37.f).- Global salary applied to rectors of the Public Universities (drafted by Judge Picado Brenes) The petitioners indicate that the consulted bill seeks to grant mechanisms to the administration in power to exert pressure on university budgets, through the limitation of salaries in accordance with Article 37 of the bill in question. In this regard, this Chamber notes that subparagraph f) of Article 37 of the bill establishes that the salary of the rectors of the Public Universities may not only be higher than that held by the Presidency of the Republic, but also that it will be established by the Budgetary Authority, based on technical studies, responsibilities, and job profiles, as well as the salary caps established in the Public Administration Salary Law. This is evidently unconstitutional, for violating university autonomy. According to this autonomy, it is the public universities themselves that must establish for themselves the remunerative regime of their servants (see judgment No. 2015-010248), including the salary of the rectors. In this sense, it is unconstitutional to establish that the salary of the rectors be set by the Budgetary Authority, which is a body of the Central Public Administration, and not by the university itself. It should be recalled that public universities or state universities enjoy a special degree of autonomy, which can be called university autonomy. According to constitutional jurisprudence, it has been indicated that such autonomy encompasses administrative, political, financial, and organizational autonomy. Therefore, public universities are outside the direction of the Executive Branch and have all the faculties and administrative powers to carry out their mission.

• 4)Conclusion -Regarding Articles 11 (employment planning), 15 (recruitment and selection postulates), and 16 (job offer), given that sufficient reasoning is not provided to allow this Chamber to have clarity on what was consulted, the consultation is declared unevacuable for lack of reasoning.

-In the terms indicated and in accordance with the jurisprudence of this Chamber, the following articles of the bill “PUBLIC EMPLOYMENT FRAMEWORK LAW,” processed under legislative file No. 21.336, are unconstitutional.

Having analyzed all the aspects consulted regarding Articles 6, 7, 9 (second paragraph of subparagraph a), 13 (subparagraph e), 14, 17, 30 (except subparagraph b), 31, 32, 33, 34, 37 (subparagraph f), of the bill called “PUBLIC EMPLOYMENT FRAMEWORK LAW,” legislative file No. 21.336, this Chamber verifies that such norms are contrary to the Law of the Constitution, for violation of the university autonomy of the public universities. Articles 30.b, 35, and 36 of the bill in question being constitutional, for the reasons already indicated.” “...

XII.- On the consultation regarding violation of the autonomy of the Caja Costarricense de Seguro Social.- 1) Aspects Consulted The petitioner deputies consider that the following articles of the bill “PUBLIC EMPLOYMENT FRAMEWORK LAW,” processed under legislative file No. 21.336, violate the political autonomy of the Caja Costarricense de Seguro Social (CCSS). Specifically, they consult on the following articles, indicated either in the heading of the general title or in the rest of the text of the filing brief:

2.b (scope of coverage), 6 (steering role of Mideplan), 7 (competencies of Mideplan), 9.a (Human Resources offices), 13.b (job families), 14 (recruitment and selection), 17 (Senior Management personnel), 18 (probationary period and appointment term), They consider such articles unconstitutional, in that they violate the autonomy of the CCSS and Articles 73, 188, 11, 33, and 140.18 of the Political Constitution. They consider it unconstitutional to subject the CCSS to the directives, guidelines, and regulations issued by Mideplán in matters related to public employment, namely: work planning, work organization, employment management, performance management, compensation management, and labor relations management.

In this regard, before proceeding with the examination of the constitutionality of the challenged norms, it is timely to recall the constitutional scope and limitations of the autonomy of the Caja Costarricense de Seguro Social, as established by constitutional jurisprudence.

• 2)Jurisprudential Background on the Government Autonomy of the Caja Costarricense de Seguro Social On repeated occasions, as indicated in judgment No. 2011-14624 of 3:50 p.m. on October 26, 2011, this Court pointed out that the Caja Costarricense de Seguro Social (CCSS) enjoys administrative and government autonomy, in accordance with Article 73 of the Political Constitution, and therefore it may issue the provisions related to its internal regime. The Constituent Law of the Caja Costarricense de Seguro Social, No. 17 of October 22, 1943, published in La Gaceta No. 329 of October 27, 1943, in Article 70 establishes the following:

“The Administrative Career of the Caja Costarricense de Seguro Social is created, to regulate which (sic), the Board of Directors shall establish the conditions regarding the entry of employees into the service of the Institution, guarantees of stability, their duties and rights, the manner of filling vacancies, promotions, causes for removal, scale of sanctions, procedure for judging infractions, and other necessary provisions…”.

Furthermore, Article 14, subparagraph f) endows the Board of Directors of the CCSS with the power to regulate the functioning of the institution, in such a way that it confers the power to issue norms, including to regulate the regime of the officials that the institution requires for the fulfillment of the responsibilities assigned to it by the Political Constitution and its Constituent Law, and this is constitutional, as indicated in said precedent:

“…In this context, the possibility that the Institution establishes for itself the different types of labor relations with its officials, whether by statutory relationship or subject to special figures, as in the case of the Recruitment and Selection Regulation for Professionals in Pharmacy, Dentistry, and Social Work, is not unconstitutional. The Caja Costarricense de Seguro Social may establish the rules for the selection of officials holding positions in said institution, but respecting the specific purposes in the provision of the public service of the Caja Costarricense de Seguro Social (Articles 73, 191, and 192 of the Political Constitution). By virtue of this, Article 21 of the Constituent Law establishes the following: 'Article 21.- The Personnel of the Caja shall be composed based on proven suitability, and category promotions shall be granted taking into account the merits of the worker in the first place and then, seniority in the service.' Based on the foregoing, as well as a reading of constitutional Article 191, it is clear that the inescapable rule consists precisely of the fact that public officials must be governed by a statutory labor relationship, that is, by norms imposed by the Administration in its capacity as employer, in attention to the efficient and effective provision of the public services that each administrative instance is called upon to offer. Even if the constituent assembly envisioned a single statutory system, the truth is that the wording finally given to Article 191, as well as the process of profound decentralization that the Costa Rican State underwent starting in nineteen forty-nine, makes the existence of various statutory relationships in the Administration valid today, in attention to the functional independence and administrative autonomy that the legal system ensures for several public institutions.” The foregoing is consistent with the very autonomy granted by the Constituent Assembly to certain institutions, in the specific case, that conferred upon the Caja Costarricense de Seguro Social in Article 73, defined as government autonomy, which is necessary in order for it to fulfill the special duties assigned and without interference from the Executive Branch.

In judgment No. 2011-15665 of 12:40 p.m. on November 11, 2011, reiterated in 2017-4797, particularly in relation to the C.C.S.S., the following was indicated:

“…In this case, we are facing a decentralized entity created by the Constitution, and whose degree of autonomy, also defined by the same Magna Carta, is of degree two, which must be understood to include the powers to formulate plans or set the entity's purposes and goals, the power to establish its own internal mechanisms for functional and financial planning through budgets, and the exercise of autonomous regulatory power. This translates, in the specific case of the administration of the pension regime under the responsibility of the Caja Costarricense de Seguro Social -at least- into the power to define for itself, to the exclusion of all legislative power, three fundamental aspects of pensions: the amount of the contribution fees, the number of fees that workers must pay to access the pension, and the age for retirement. Precisely this higher degree of autonomy that the Caja Costarricense de Seguro Social has with respect to the rest of the autonomous institutions is what explains how it has been excluded from the application of laws such as the 'Financial Administration of the Republic and Public Budgets Law,' Law No. 8131 of September 18, 2001. See Article 1 of said law:

“Article 1.- Scope of application This Law regulates the economic-financial regime of the bodies and entities administering or safeguarding public funds. It shall be applicable to: a) The Central Administration, constituted by the Executive Branch and its dependencies. b) The Legislative and Judicial Branches, the Supreme Electoral Tribunal, their dependencies, and auxiliary bodies, without prejudice to the principle of separation of Branches established in the Political Constitution. c) The Decentralized Administration and public enterprises of the State. d) State universities, municipalities, and the Caja Costarricense de Seguro Social, only with respect to compliance with the principles established in Title II of this Law, in matters of responsibilities, and to provide the information required by the Ministry of Finance for its studies. In all other respects, they are excepted from the scope and application of this Law (…)” This shows that the Caja Costarricense de Seguro Social is always placed in a special category within the autonomous institutions, because unlike these, it is not only of constitutional creation but also has a higher degree of autonomy, comparable to the degree of autonomy enjoyed by municipalities, which is government autonomy. This means a degree of protection against interference from the Executive Branch, but also limitations on the intervention of the Legislative Branch. Although, indeed, the CCSS does not escape the law, the latter cannot 'modify or alter' the competence and autonomy constitutionally given to the CCSS, defining aspects that are its exclusive purview. The Caja Costarricense de Seguro Social, being basically an autonomous institution of constitutional creation, the matter of its competence, constitutionally given, is outside the action of the law. Stated differently, the legislator, in the case of the administration and government of social security, has limitations, and must respect what the Constituent Assembly established. Just as the legislator would be prohibited from issuing a law providing that the administration and government of social security no longer corresponds to the Caja Costarricense de Seguro Social, likewise, it cannot issue a law that ventures into aspects proper to or corresponding to the definition of the CCSS, in the administration and government of social security. In this regard, see what this Chamber ordered through resolution No. 2001-010545 of 2:58 p.m. on October 17, 2001:

“…It is clear that the law cannot interfere in matters of government of the Caja Costarricense de Seguro Social by virtue of the full autonomy that this institution enjoys…” (Criterion reiterated in resolution No. 2001-011592 of 9:01 a.m. on November 9, 2011).

As an additional argument, it should be highlighted that the norm defining the functions and purposes of the Caja Costarricense de Seguro Social is located in our Magna Carta in the chapter on social rights and guarantees, while what pertains to Autonomous Institutions is located in another Title XIV; the difference in location reflects, from a systematic and systemic interpretation, that the fundamental norm itself, by creating the social security institution, seeks to provide supportive and priority protection to the person for their very condition; evidently, it is an institution that assumes the spirit of solidarity that inspires Articles fifty and seventy-four of the Constitution. What is intended is that each person has the guarantee that the supportive State ensures health, pension, disability benefits, and everything related to social security. This provision becomes not only a purpose or guide for State action but also a limit in itself, by ensuring that neither the Executive Branch nor the Legislative Branch could undermine said constitutional competence.” Later, in judgment No. 2007-18484, reiterated in 2018-6549, this Court referred to the scope of the different types of autonomy, in the following sense:

“A) Scope of the administrative autonomy of autonomous institutions, and their subjection to the law in matters of government (…). The degree of administrative autonomy -minimum and of the first degree- is characteristic of autonomous institutions; of government -of the second degree-, characteristic of municipalities and of the Caja Costarricense de Seguro Social regarding the administration of social security; and of organization - full or of the third degree, characteristic of the State universities. The decentralized entity created by ordinary law is subordinated to its content and involves the legislative power to modify and even extinguish it; but because decentralization implies that all the powers of the administrative superior correspond to the entity, it means that its legal personality encompasses the totality of the administrative powers necessary to achieve its purpose independently. Thus then, the Political Constitution guarantees, in its Article 188, to every minor public entity, distinct from the State, a minimum or first-degree administrative autonomy, that is, the power to self-administer, without subjection to any other public entity and without the need for a legal norm that so provides, to dispose of its human, material, and financial resources in the manner it deems most convenient for the effective and efficient fulfillment of the duties and purposes assigned to it. In this way, the central power has several limitations regarding its interference over autonomous institutions, thus it cannot act as the superior of the decentralized entity: it cannot control it by limiting the entity's activity for reasons of opportunity; and, it cannot, either, act as the director of the management of the autonomous entity through the imposition of guidelines or basic programs. However, as expressed in the same constitutional Article 188, autonomous institutions are subject to the law in matters of government. In accordance with the foregoing, administrative autonomy is not incompatible with the subjection of autonomous institutions to the law, thus, the objectives, purposes, and goals of the entity are given by the legislator” (Emphasis not in the original).

As indicated in the cited jurisprudential text, the CCSS, in addition to enjoying administrative autonomy, also holds political or government autonomy. Hence, the Executive Branch has several limitations regarding its interference over the CCSS. It cannot act as its superior; it cannot control it by limiting its activity for reasons of opportunity; and, neither can it act as the director of the management of that entity through the imposition of guidelines or basic programs. Likewise, regarding the autonomy of this particular institution, the Chamber, in judgment No. 1994-6256, issues a criterion reiterated in judgments 2011-15665 and 2017-4797, which reads:

“III.- THE CAJA COSTARRICENSE DE SEGURO SOCIAL.- The National Constituent Assembly, as recorded in Acts Nos. 125 and 126, approved the inclusion of the Caja Costarricense de Seguro Social, following, basically, the original text of the 1871 Constitution; that is, the institution was transplanted from the 1871 Constitution, according to the 1943 modifications to the 1949 Constitution. However, for the purposes of the consultation, the contributions of Constituent member Volio Jiménez on the subject are suggestive. From page 34 of Volume III of the Acts of the National Constituent Assembly, the following is transcribed: 'Furthermore, the Caja, sooner or later, would have to assume the risk of unemployment, which will come to solve the serious problem posed by layoffs. He insisted that it did not seem appropriate to weaken the Caja. The prudent thing is to strengthen it. Hence, the most advisable thing is to leave things as they are, giving the Caja full autonomy in order to make it independent from the Executive Branch'; and on page 36 idem it is added: 'In that sense, the most adequate thing is to maintain the wording of Article 63, which is good at least for the trial period. Anything that means limiting the resources of Social Security will undoubtedly be an inexplicable setback.' When the article was approved, a second paragraph was included that literally read: 'The administration and government of social security shall be under the responsibility of an autonomous institution,' a text that was later reformed by Law No. 2737 of May 12, 1961, today reading as follows: 'The administration and government of social security shall be under the responsibility of an autonomous institution, called the Caja Costarricense de Seguro Social.'” In conclusion, the framers of the Constitution attributed the administration and government of social insurance to the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social), as an autonomous institution created by the Political Constitution itself, with the special characteristics that the Constitution itself has granted it and sharing the general principles derived from its condition as a decentralized entity…

…Doctrinally, there is consensus in affirming that any form of preventive intervention prior to the issuance of an act by the autonomous entity is prohibited, except for prior control functions, as a requirement for the validity of those acts (authorizations); the Central Government cannot act as the hierarch of the decentralized entity: it cannot control it by limiting the entity's activity for reasons of opportunity; and it also cannot act as director of the autonomous entity's management through the imposition of guidelines or basic programs. All these characteristic features of decentralized entities, which originate in a reinforced law (Article 189, section 3) of the Political Constitution), are equally applicable, where pertinent, to the autonomous institutions created by the Political Constitution itself, except that the conditions that the Constitution, in a special and exclusive manner, has given to the entity prevail." Hence, even regarding the hiring of its personnel, it has this power of self-administration, because the fulfillment of the constitutionally assigned goals also depends on it. As an example of the particularities and needs of the service, in judgment 2019-11130 of 10:30 a.m. on June 19, 2019, this Tribunal stated the following:

"In this regard, this Tribunal verifies that indeed that article states that 'for the qualification of credentials and assignment of scores, the Technical Nursing Commission shall qualify the competitions in accordance with (…) One point shall be given for each year of service or fraction greater than six months, up to a maximum of ten points in areas outside the Central Plateau (…)'. However, it is not considered that this provision violates the principle of equality and, therefore, becomes unconstitutional, but rather that this decision has a reasonable justification, which consists of incentivizing nursing professionals to accept positions outside the Central Plateau, with the incentive that in future competitions for positions located in more coveted areas, they will have a better score. Thus, what the regulation seeks is not solely the position of best suitability, but rather it seeks to incentivize nursing professionals to agree to work in remote and less desired locations and, in this way, promote the provision of nursing services, necessary for adequate provision of medical services, in all sectors of the country. This is in accordance with the principles of social solidarity.

It is clear, then, that the framers of the Constitution granted it such autonomy, allowing it the selection of its personnel under the precepts it requires to fulfill its goals, while always respecting the constitutional principles established in Articles 191 and 192 of the Constitution. This criterion has been reiterated by this Chamber in judgments numbers 03065-98, 10545-01, and 12494-11, stating:

'…it is permissible for the different establishments of the Caja, in application of the constitutional principle of autonomy of administration and government, to dictate the necessary reorganization measures for its services for their improvement, in order to achieve the best satisfaction of its users and the general interest, which by its nature could never fail to prevail over particular interests.' The autonomy that the original legislator grants to the Costa Rican Social Security Fund protects it from intrusion by the Executive Branch and the Legislative Branch, as evidenced in Judgment 03065-98 of 6:18 p.m. on May 6, 1998 (reiterated in 2001-10545), stating:

'…This shows that the Costa Rican Social Security Fund is always placed in a special category within the autonomous institutions, because unlike these, it is not only of constitutional creation, but it also has a higher degree of autonomy, comparable to the degree of autonomy enjoyed by municipalities, that is, autonomy of government. This signifies a degree of protection against interference from the Executive Branch, but also limitations on the intervention of the Legislative Branch. Although certainly the CCSS is not beyond the reach of the law, the latter cannot "modify or alter" the competence and autonomy constitutionally granted to the CCSS, defining aspects that are its exclusive domain. The Costa Rican Social Security Fund, being fundamentally an autonomous institution of constitutional creation, the matters of its competence, constitutionally granted, are beyond the action of the law. In other words, the legislator, in the case of the administration and government of social insurance, has limitations and must respect what the framers of the Constitution established. Just as the legislator would be prohibited from issuing a law stating that the administration and government of social insurance no longer corresponds to the Costa Rican Social Security Fund, likewise, it cannot issue a law that encroaches on aspects inherent to or corresponding to the definition of the CCSS, in the administration and government of social insurance… As an additional argument, it must be highlighted that the norm defining the functions and goals of the Costa Rican Social Security Fund is located in our Magna Carta in the chapter on social rights and guarantees, while matters referring to Autonomous Institutions are located in another Title XIV; the difference in location reflects, from a systematic and systemic interpretation, that the fundamental norm itself, upon creating the social security institution, intends to provide it with solidary and priority protection for the person by their very condition; it is clearly an institution that assumes the solidary spirit that inspires Article seventy-four of the Constitution. The aim is for every person to have the guarantee that the solidary State assures them health, pension, disability benefits, and everything related to social security. This provision becomes not only a goal or guide for State action, but also a limit in itself, by ensuring that neither the Executive Branch nor the Legislative Branch could diminish said constitutional competence.' From the foregoing, it follows that the Costa Rican Social Security Fund (CCSS), by constitutional provision (Art. 73), enjoys administrative and government autonomy. This means that, as a functionally decentralized entity, it can establish the rules for the selection of its personnel, it being valid in this case the existence of a special regulatory framework for its statutory relationship, which attends to and ensures its degree of autonomy. That degree of autonomy also allows it to self-administer (dispose of its human, material, and financial resources); to give itself its own internal organization; the setting of goals, objectives, and types of means to achieve them; the issuance of autonomous service or activity regulations, in accordance with the provisions normally called general policy. Thus then, as an autonomous institution of constitutional creation and with a higher degree of autonomy (administrative and government), it is allowed to be protected against interference from the Executive Branch and from limitations when the Legislative Branch legislates (which cannot modify its degree of autonomy via law). Thus, the Executive Branch cannot act as director or in a hierarchical relationship regarding this institution, cannot impose guidelines, give orders, or control the appropriateness of its activities.

• 3)Specific analysis of the matter consulted Regarding Article 2.b.- Scope of coverage regarding the CCSS (drafted by Justice Picado Brenes) The petitioners claim that subsection b) of Article 2 of the consulted bill, insofar as it includes the CCSS within its scope of application, violates Articles 73 and 188 of the Constitution, by subjecting this institution, which has constitutional administrative and government autonomy in matters of public employment, to it. In this regard, in the same sense that the constitutionality of this norm has been upheld regarding other institutions, Article 2 subsection b) is not in itself unconstitutional, insofar as it includes the CCSS in a general regulatory framework for public employment, but it is unconstitutional due to its effects because some of the norms of this bill empty its government autonomy of content, as will be seen concretely in the following sections. It should be recalled that, as established by Article 3 of the Law of the Constitutional Jurisdiction, "The Political Constitution shall be deemed infringed when this results from the confrontation of the text of the questioned norm or act, its effects, or its interpretation or application by public authorities, with the constitutional norms and principles." That is, a norm can be unconstitutional, not because of what it textually says, but because of the effects it produces or would produce. Returning to what was stated supra, it is plausible to subject all powers and institutions of the State to a single public employment statute. However, to the extent that such subjection goes beyond general principles and encroaches on matters proper to the government autonomy of the CCSS, such subjection is unconstitutional due to its effects, because it is not possible to subject a constitutional institution with a degree of autonomy such as that held by the CCSS to directives, provisions, circulars, and manuals issued by Mideplán. The special degree of protection of the CCSS, which arises from its degree of autonomy, makes the subjection of the CCSS to this general public employment bill unconstitutional due to its effects. "Although certainly the CCSS is not beyond the reach of the law, the latter cannot "modify or alter" the competence and autonomy constitutionally granted to the CCSS, defining aspects that are its exclusive domain." (judgment No. 2011-12494). In conclusion, although the CCSS may be subjected by law to general public employment regulations, to the extent that such regulations violate its government autonomy, as Articles 6, 7, 9, 13, 14, 17, and 18 of the bill indeed do, these being the norms that were consulted, said subsection b) of Article 2 of the bill would be unconstitutional due to its effects.

Regarding Article 6.- Power of Direction of Mideplán regarding the CCSS (drafted by Justice Castillo Víquez) Article 73 of the Political Constitution assigns the CCSS the administration and government of social insurance. For this purpose, as can easily be deduced, matters related to this area - the setting of goals and objectives -, as well as the setting of worker-employer contributions, have the logical consequence, from a legal perspective, that the Executive Branch or one of its bodies - Mideplán - cannot exercise the power of direction - issuing directives - or the regulatory power. This posture is constitutionally valid concerning the matter of public employment, specifically that personnel indispensable for fulfilling the constitutionally assigned goals, as well as the administrative, professional, and technical personnel, whom the highest authorities of the CCSS define in the respective job family (familia de puesto) that they will be responsible for constructing exclusively and preclusively. This means that some public employees of that entity, those who perform basic, auxiliary administrative functions, could indeed fall under the stewardship of the Executive Branch or Mideplán. Adopting these premises as a roadmap, after reviewing the case law of this Tribunal, an analysis of the norms that are consulted will be carried out.

On repeated occasions, as indicated in judgment No. 2011-14624 of 3:50 p.m. on October 26, 2011, this Tribunal has pointed out that the CCSS enjoys administrative and government autonomy, in accordance with Article 73 of the Political Constitution, and therefore can issue provisions related to its internal regime. The Constitutive Law of the Costa Rican Social Security Fund, number 17 of October 22, 1943, published in La Gaceta number 329 of October 27, 1943, states the following in Article 70:

"The Administrative Career of the Costa Rican Social Security Fund is hereby created, to regulate which (sic), the Board of Directors shall establish the conditions regarding the entry of employees into the service of the Institution, guarantees of stability, their duties and rights, the manner of filling vacancies, promotions, causes for removal, scale of sanctions, procedure for judging infractions, and other necessary provisions…".

Furthermore, Article 14 subsection f) endows the Board of Directors of the CCSS with the power to regulate the functioning of the institution, in such a way that it confers the power to dictate norms, including to regulate the regime of the officials the institution requires for fulfilling the responsibilities indicated by the Political Constitution and its Constitutive Law, and this is not unconstitutional, as indicated in that precedent:

"…In that context, the possibility for the Institution to establish by itself the different types of labor relations with its officials, whether by statutory relationship or subject to special figures, as in the case of the Regulation for the Recruitment and Selection of Professionals in Pharmacy, Odontology, and Social Work, is not unconstitutional. The Costa Rican Social Security Fund can establish the rules for the selection of officials who occupy positions in said institution, while respecting the specific goals in the provision of the public service of the Costa Rican Social Security Fund (Articles 73, 191, and 192 of the Political Constitution). By virtue thereof, Article 21 of the Constitutive Law establishes the following: "Article 21.- The Personnel of the Caja shall be integrated on the basis of proven suitability (idoneidad comprobada), and category promotions shall be granted taking into account the worker's merits in the first instance and then, seniority in service." Based on the foregoing, as well as a reading of constitutional provision 191, it is clear that the unavoidable rule consists precisely in that public officials must be governed by a statutory employment relationship, that is, by norms imposed by the Administration in its capacity as employer, attending to the efficient and effective provision of the public services that each administrative instance is called upon to offer. Even though the framers of the Constitution may have envisioned a single statutory system, the fact is that the wording finally given to Article 191, as well as the process of profound decentralization that the Costa Rican State underwent starting in nineteen forty-nine, means that in our days the existence of diverse statutory relationships in the Administration is valid, attending to the functional independence and administrative autonomy that the legal system assures to several public institutions." (vote No. 12494 of 12:48 p.m. on November 11, 2011).

A corollary of the foregoing is that the original framers of the Constitution foresaw the issuance of a single statute that would regulate public employment relationships; however, the legislator opted to approve different statutes, which, according to precedents from this Tribunal, are valid provided the principle of suitability and stability in public employment is respected. In the consulted bill, the legislator opts for creating a single statute that regulates service relationships throughout the entire Public Administration, which is also in accordance with Constitutional Law. However, in relation to certain entities, such as the CCSS, due to its degree of autonomy, even the same legislator cannot subject it to orders, directives, and regulations from a body of the Executive Branch, because that goes against the degree of autonomy and protection conferred by the Political Constitution on this institution.

The framers of the Constitution themselves established the existence of exceptions to that single regulation, precisely because what is not equal cannot be equated, nor can the sphere of autonomy held by certain institutions be harmed, such as the CCSS, since these possess certain special characteristics that reasonably differentiate them from the rest of the administration, precisely to comply with the goals constitutionally entrusted to them.

In relation to Article 6, it is unconstitutional, because the power of direction does not exclude officials who participate in activities linked to the goals constitutionally assigned to the CCSS, and those who exercise senior political management positions, as well as all those administrative, professional, and technical officials established by the highest bodies of the insuring entity. Ergo, the norm is only constitutional with respect to basic administrative, auxiliary personnel, who would be in the job family in accordance with provision 13, subsection a) of the bill.

Regarding Article 7.- Competencies of Mideplán regarding the CCSS (drafted by Justice Castillo Víquez) In relation to Article 7, the same criterion expressed regarding provision 6 is maintained; furthermore, it subjects the CCSS to the regulatory power of Mideplán in matters where there is an exclusive and preclusive power in favor of the CCSS to achieve the constitutional goal assigned by the original framers of the Constitution.

Regarding Article 9.- Human Resources Office in the CCSS (drafted by Justice Picado Brenes) The consulted norm indicates the following:

"ARTICLE 9- Functions of the active administrations a) The offices, departments, areas, directorates, units, or homologous denominations of human resources management, of the institutions included in Article 2 of this law, shall continue performing their functions in accordance with the relevant regulatory provisions in each public entity.

Likewise, they shall apply and execute the provisions of general scope, the directives, and the regulations, in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management, that the Ministry of National Planning and Economic Policy (Mideplán) sends to the respective institution, in accordance with Law 6227, General Law of Public Administration, of May 2, 1978, and Article 46 of Law 2166, Law of Salaries of the Public Administration, of October 9, 1957.

• b)It is the responsibility of the offices, departments, areas, directorates, units, or homologous denominations of human resources management to develop and apply knowledge, competency, and psychometric tests, for the purposes of personnel recruitment and selection processes, to carry out internal and external competitive examinations based on merits and qualifications, which must always comply at least with the standards established by the General Directorate of Civil Service for each position, according to its scope of competence, and the guidelines issued according to Article 46 of Law 2166, Law of Salaries of the Public Administration, of October 9, 1957.

Furthermore, incorporate said competitive examinations into the public employment offer of the Public Administration and verify that public servants receive the due induction regarding the duties, responsibilities, and functions of the position, as well as the general ethical duties of public service and the specific ones of the institution and position.

• c)The institutional human resources management offices, of ministries and institutions or bodies attached under the scope of application of the Civil Service Statute, are technical units of the General Directorate of Civil Service which, for all purposes, must coordinate the development of personnel recruitment and selection tests with such offices and perform their advisory, training, and technical support functions." As observed, consulted Article 9 establishes certain functions for all offices, departments, areas, directorates, or human resources units, of all institutions included in the bill, including the Personnel Management Directorate and Administration of the CCSS. Thus then, regarding properly the consultation made in relation to the CCSS, the second paragraph of subsection a) imposes on said department the obligation to apply and execute the provisions of general scope, directives, and regulations, in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management, that Mideplán sends to it. This would imply that a body of the Executive Branch, such as Mideplán, imposes on this Institution with political autonomy the application and execution of its provisions, directives, and regulations, in matters that are the exclusive domain of said institution, such as planning, work organization, employment management, performance management, compensation or salary management, and labor relations management. Such an obligation for the human resources directorate of the CCSS is clearly a violation of its political autonomy, according to the scope that constitutional case law has given it. It should be recalled that, properly regarding the CCSS, this Chamber has indicated: "regarding a decentralized entity created by the Constitution, and whose degree of autonomy, also defined by the same Magna Carta, is degree two, which must be understood to include the powers to formulate plans or set the goals and objectives of the entity, to provide itself with the internal mechanisms for functional and financial planning through budgets, and the exercise of the autonomous regulatory power." For this reason, "the Costa Rican Social Security Fund is always placed in a special category within the autonomous institutions, because unlike these, it is not only of constitutional creation, but it also has a higher degree of autonomy, comparable to the degree of autonomy enjoyed by municipalities, that is, autonomy of government. This signifies a degree of protection against interference from the Executive Branch, but also limitations on the intervention of the Legislative Branch." (judgment No. 2011-15665 and No. 2017-004797). Within those limitations that both the Executive Branch and the Legislative Branch have with respect to the CCSS, it is found that the "Costa Rican Social Security Fund can establish the rules for the selection of officials who occupy positions in said institution…" (judgment No. 2011-14624). Given that "the central government has several limitations regarding its interference over autonomous institutions, thus it cannot act as the hierarch of the decentralized entity: it cannot control it by limiting the entity's activity for reasons of opportunity; and it also cannot act as director of the autonomous entity's management through the imposition of guidelines or basic programs." (judgment No. 2007-18484 and No. 2018-006549). This is because, "although certainly the CCSS is not beyond the reach of the law, the latter cannot 'modify or alter' the competence and autonomy constitutionally granted to the CCSS, defining aspects that are its exclusive domain. The Costa Rican Social Security Fund, being fundamentally an autonomous institution of constitutional creation, the matters of its competence, constitutionally granted, are beyond the action of the law. In other words, the legislator, in the case of the administration and government of social insurance, has limitations and must respect what the framers of the Constitution established." (judgment No. 2011-12494). Thus, the Executive Branch cannot act as director or in a hierarchical relationship regarding this institution, and cannot impose guidelines, give orders, or control the appropriateness of its activities. Therefore, Article 9 in question is unconstitutional for attempting to subject the human resources department of the CCSS to applying and executing the provisions of general scope, directives, and regulations, in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management, that Mideplán sends to it.

Regarding Article 13.b.- Job Family regarding the CCSS (drafted by Justice Castillo Víquez) Regarding Article 13, subsection b) is unconstitutional, for not including in the cited subsection the servants who perform substantive, administrative, professional, and technical tasks necessary to achieve the goals constitutionally assigned to the CCSS, in the terms explained in the general whereas clause and supra.

Regarding Article 14.- Recruitment and selection in the CCSS (drafted by Justice Picado Brenes) The petitioners assert that the political autonomy of the CCSS is harmed by attempting to subject it to the provisions issued by a body of the Executive Branch regarding the recruitment and selection of its personnel. The provision 14 in question states the following:

"ARTICLE 14- Recruitment and selection The recruitment and selection of newly entering public servants shall be carried out based on their proven suitability (idoneidad comprobada), for which the Ministry of National Planning and Economic Policy (Mideplán) shall issue, with absolute adherence to Law 6227, General Law of Public Administration, of May 2, 1978, the provisions of general scope, directives, and regulations, according to the respective job family (familia de puestos).

In the recruitment and selection processes, an applicant who is in any of the following situations may not be chosen:

• a)Being linked by consanguinity or affinity kinship in the direct or collateral line, up to the third degree inclusive, with the immediate supervisor or with the immediate superiors of the latter in the respective unit.
• b)Being listed in the register of ineligible persons on the integrated public employment platform." As has already been duly accredited, in accordance with the provisions of provisions 2 and 13 of the same bill, and according to the provisions of this Article 14, the CCSS would also be subject to the provisions of general scope, directives, and regulations issued by Mideplán in relation to the recruitment and selection of newly entering personnel, which becomes unconstitutional. Article 73 of the Constitution clearly expresses that "the Costa Rican Social Security Fund is always placed in a special category within the autonomous institutions, because unlike these, it is not only of constitutional creation, but it also has a higher degree of autonomy, comparable to the degree of autonomy enjoyed by municipalities, that is, autonomy of government. This signifies a degree of protection against interference from the Executive Branch, but also limitations on the intervention of the Legislative Branch." (judgment No. 2011-15665 and No. 2017-004797). Furthermore, this Chamber has clearly indicated that the "Costa Rican Social Security Fund can establish the rules for the selection of officials who occupy positions in said institution,…" (judgment No. 2011-14624). In this sense, any external intrusion by another power into the proper aspects of the CCSS, harming its autonomy, is invalid. Under that understanding, it is not possible to admit that a body of the Executive Branch, in this case Mideplán, imposes on the CCSS provisions related to the recruitment and selection processes of its personnel, a matter which, as has been pointed out, is consubstantial to the degree of autonomy enjoyed by this constitutional institution. Consequently, said provision contains a vice of unconstitutionality, insofar as it is applicable to the CCSS.

Regarding Article 17.- Senior Management Positions in the CCSS (drafted by Justice Picado Brenes) The consulted article establishes the following:

"ARTICLE 17- Senior public management personnel The Ministry of National Planning and Economic Policy (Mideplán) shall issue the provisions of general scope, the directives, and the regulations, regarding senior public management personnel, that are in accordance with Law 6227, General Law of Public Administration, of May 2, 1978, to provide the Public Administration with profiles possessing integrity and proven capacity for management, innovation, and leadership, to seek the improvement of the provision of public goods and services." The petitioners point to an injury to the CCSS's autonomy of government, because this provision states that, in the case of senior management positions, Mideplán shall be the one to issue generally applicable provisions, directives, and regulations on the matter.

In that regard, in the same manner in which this Chamber has been resolving these issues, the interference of this Ministry, which is an agency of the Executive Branch, in issuing generally applicable provisions, directives, and regulations to the CCSS regarding senior management positions is violative of its autonomy of government. The regulation of all matters pertaining to senior management positions is already specifically regulated in the CCSS's own internal regulations. Recall that this Chamber has indicated that the CCSS "may establish the rules for the selection of officials who occupy positions in said institution, but respecting the specific purposes in the provision of the public service of the Caja Costarricense de Seguro Social (Articles 73, 191, and 192 of the Political Constitution)." (judgment No. 201114624). The Executive Branch, "...has several limitations regarding its interference in autonomous institutions, thus it cannot act as the hierarchical superior of the decentralized entity: it cannot control it by limiting the entity's activity for reasons of expediency; and it cannot, either, act as the director of the management of the autonomous entity through the imposition of guidelines or basic programs." (judgment No. 2018-6549). Note that these are positions of great importance as they would refer, at least, to those who direct the various Managements and Directorates, among others. These positions are of great relevance for the faithful fulfillment of the social security purposes assigned to the CCSS, which must be particularly protected from the interference of other Branches of the Republic, and which require the stability of personnel necessary for an adequate and impartial performance of the duties of the office, which is incompatible with a subordination to the provisions that Mideplán issues on the matter, as the provision in question states. Therefore, it is considered that there is a vice of unconstitutionality in Article 17 under consultation, in the terms set forth.

Regarding Article 18.- Terms for Senior Management Personnel in the CCSS (drafted by Justice Picado Brenes) In the opinion of the petitioners, Article 18 under consultation is unconstitutional, since it affects a matter that is within the CCSS's own competence, by establishing that, in the case of technical senior management positions, the appointment shall be for 6 years with a probationary period of 6 months, extendable annually, subject to the performance evaluation. Article 18 under consultation provides the following:

"ARTICLE 18- Appointment and probationary period for public senior management Every public servant who is appointed to a public senior management position shall be on probation for a period of six months and their appointment shall be made for a maximum of six years, with the possibility of an annual extension, which shall be subject to the results of the performance evaluation. (...)" On this particular matter, the regulation of aspects related to the appointment and selection of personnel, as also occurs with technical senior management positions, the probationary period, the term or conditions for extending appointments, are regulations proper to and pertaining to the CCSS's political autonomy. It is understood that technical senior management positions, defined by the institution itself, are strategic positions of great importance for its proper organization, such as the various Directorates of Planning, Actuarial, Personnel Management; and the various Administrative, Financial, and Medical Managements, among others. In view of this and the specific purposes of this constitutional institution, it is for it to assess the needs of the service it provides and to determine the conditions under which those positions must be filled, in order to fulfill the constitutional purposes that have been assigned to it, in respect of the recognized degree of autonomy, as long as it adheres to the principle of suitability. In its case, for example, the appropriateness of the term of appointment for those positions or the conditions for extension could be subject to a condition of greater stability in the position such as that guaranteed in constitutional Article 192. All in accordance with its internal regulations, and not a generic regulation like the one intended in this bill. The definition of such conditions is the exclusive competence of this specialized constitutional institution. Thus, in the terms in which Article 18 under consultation is drafted, it contains a vice of unconstitutionality, for violating the political autonomy of the CCSS, which is exclusively responsible for defining the conditions under which its senior management positions must be performed.

• 4)Conclusion In the terms indicated and in accordance with the jurisprudence of this Chamber, the following articles of the bill "LEY MARCO DE EMPLEO PÚBLICO," being processed in legislative file No. 21,336, are unconstitutional.

Having analyzed all the aspects consulted regarding Article 2 (subsection b), 6, 7 (subsection d), 9 (second paragraph of subsection a), 13 (subsection b), 14, 17, and 18 of the bill called "LEY MARCO DE EMPLEO PÚBLICO," legislative file No. 21,336, this Chamber verifies that these provisions are contrary to Constitutional Law, due to a violation of the constitutionally protected autonomy of government of the CCSS (Constitutional Art. 73) of this institution. Articles referring to the following: 6 (stewardship of the General Public Employment System under Mideplan), 7 (broad powers of Mideplan to turn it into a kind of superior hierarchical authority with regulatory powers over the entire state apparatus in public employment matters), 9 (the subjection and subordination of human resources offices to Mideplan and the Dirección General de Servicio Civil), 13 (regarding a single general public employment regime made up of eight job families), 14 (recruitment and selection based on Mideplan's regulatory provisions), 17 and 18 (public senior management personnel subjected to a single probationary period term and a single appointment term). In the case of the Caja Costarricense de Seguro Social, due to its degree of autonomy, even the legislature itself cannot subject it to the orders and regulations of an agency of the Executive Branch, since that is contrary to the degree of autonomy and guarantee conferred by the Political Constitution upon this institution. All these provisions of the bill have an impact on the exercise of the CCSS's functions. This Chamber has established the scope of this autonomy, indicating that the CCSS was given full autonomy to make it independent from the Executive Branch (see vote No. 2011-15665). Indeed, from the examination of the provisions consulted, it is observed that the "General Public Employment System," which places the Ministerio de Planificación Nacional y Política Económica (Mideplán) as its steward, invades the CCSS's sphere of autonomy of government. Evidencing that this stewardship goes beyond the regulation of an activity, to actually constitute a relationship of direction and subordination, with the issuance of specific directives and regulations on the matter..." "...

XIII.- Regarding the consultation on the violation of the autonomy of the Municipalities.- 1) Aspects Consulted The petitioning deputies consider that the following articles of the bill "LEY MARCO DE EMPLEO PÚBLICO," being processed in legislative file No. 21,336, are violative of municipal autonomy. Specifically, they consult on the following articles, indicated either in the heading of the general title or in the rest of the text of the filing brief:

2.c (scope of coverage), 6 (stewardship of Mideplan), 7 (powers of Mideplan), 9.a (Human Resources offices), 13 (job families), 14 (recruitment and selection), 17 (Senior Management personnel), 18 (probationary period and appointment term), The petitioners consider these provisions unconstitutional, since the autonomy of the Municipalities is violated. They indicate that it is unconstitutional to subject the Municipal Corporations to apply and execute the generally applicable provisions, directives, and regulations issued by Mideplan on topics related to work planning, work organization, employment management, performance management or performance evaluation, compensation management, and labor relations management, the subjection of human resources offices to the General Public Employment System (Arts. 6, 7, and 9), the creation of a single public employment regime (Art. 13), subjection to Mideplan in matters of personnel recruitment and selection (Art. 14), including that of technical senior management (Arts. 17 and 18).

Before proceeding to the examination of the constitutionality of the challenged provisions, it is appropriate to recall the constitutional scope and limitations of the autonomy of the municipalities, as established by constitutional jurisprudence.

• 2)Jurisprudential Background on the Autonomy of Government of the Municipalities The first thing that must be indicated is that the municipal regime is a modality of territorial decentralization, in accordance with the very wording of the first paragraph of Constitutional Article 168 (judgment No. 2006-17113). The Municipalities are decentralized entities, by reason of territory, which have been endowed with a certain degree of autonomy. This autonomy is of the second degree, greater than that of autonomous institutions, because in addition to administrative autonomy, they enjoy autonomy of government. Thus, then, one of the greatest guarantees that the municipalities possess vis-à-vis the Central Government is the degree of autonomy that the Constitution has assigned to them. Defined by constitutional jurisprudence as autonomy of government, or degree two autonomy. Although the constitutional text is very brief regarding the scope and limitations of this degree of autonomy, constitutional jurisprudence has provided certain definitions on the matter. It has said that the municipal autonomy contained in Article 170 of the Political Constitution essentially originates in the representative character of being a local government (the only territorial decentralization in the country), responsible for administering local interests. Regarding its scope, it has been indicated that said autonomy includes budgetary autonomy, the creation of taxes, and giving themselves their own regulatory plans. Furthermore, the municipalities can define their development policies (plan and agree on action programs) and issue their own budget, independently and to the exclusion of any other State institution. The municipalities create local tax obligations, in the exercise of their autonomy, and submit them to legislative approval which conditions their effectiveness (judgment No. 2000-010136), as established in Constitutional Article 121.14. Local governments can give themselves their own territorial planning through regulatory plans, but said regulations are subordinated and subjected to environmental protection legislation. Therefore, the Chamber has been indicating that it must be a fundamental requirement—which obviously does not violate the constitutional principle of municipal autonomy—that every urban development regulatory plan must, prior to being approved and implemented, have an examination or environmental impact assessment (EIA) (Judgment No. 2012-001315). On the other hand, regarding the scope of their material competence, it has been indicated that, due to the broadness of the concept of "local interests and services," it must be understood that the territorial decentralization of the municipal regime does not imply the elimination of the powers assigned to other State organs and entities. Specifically, it was said that the degree of municipal autonomy cannot be understood as a full or unlimited autonomy, as it is always subject to certain limits:

"... that autonomy of the Municipalities granted by the Constituent Assembly in Article 170 of the Fundamental Norm, although formally constituting a limit on the interference of the Executive Branch, cannot be understood as being a full or unlimited autonomy, since it is always subject to certain limits, inasmuch as the territorial decentralization of the municipal regime does not imply the elimination of the powers assigned to other State organs and entities. It is for this reason that there are local interests whose custody corresponds to the Municipalities, and alongside them, others coexist whose constitutional and legal protection is attributed to other public organs, including the Executive Branch…" (Constitutional Chamber, judgment No. 2007-013577 and judgment No. 2010-020958).

Thus, for example, municipal autonomy does not permit the town councils to evade what has been declared an interest of a national character, otherwise, territorial autonomy is perverted, transforming the municipalities into micro-states, abstracted from the intersubjective direction or tutelage that the State may exercise, through the constitutional organs (judgment No. 2011-015736).

Municipal autonomy, which "… must be understood as the capacity that the Municipalities have to freely decide and under their own responsibility, everything referring to the organization of a specific locality (the canton, in our case)" (vote No. 5445-1999), implies that the local government has the power of self-regulation and self-administration, meaning that they can issue their own regulations to regulate their internal organization and the services they provide, as well as their capacity to manage and promote local interests and services independently of the Executive Branch. Likewise, in the aforementioned jurisprudence, it has been indicated that no functions of any public entity can subsist that dispute their primacy with the municipalities when it concerns matters that make up the local sphere. To define what is local or distinguish it from what is not, it can be done by means of law, or by jurisprudential interpretation. Thus, full municipal autonomy refers strictly to "the local," but an antagonism cannot be created between local interests and services and national ones, since both are called to coexist. This Tribunal has said that "… concerning what is local, regulations from no other public entity are permissible, unless the law provides otherwise, which implies a well-founded reason for issuing the regulation; or what is the same, the municipality is not coordinated with State policy and only through law can matters that may be linked to the local sphere be regulated, but with the reservation that said legal norm must be reasonable, according to the purposes pursued" (vote No. 5445-1999).

Regarding the autonomy of the municipalities in public employment matters, it is appropriate to cite vote No. 02934-1993 of 3:27 p.m. on June 22, 1993, in which the challenged regulations establishing the interference of the Contraloría General de la República in the internal disciplinary order of local governments were declared unconstitutional. On that occasion the Chamber considered that:

"III.- THE ALLEGED VIOLATION OF MUNICIPAL AUTONOMY.- It is argued that Article 18 of the Law on Illicit Enrichment of Public Servants violates the principles established in Articles 170 and 184, subsection 5, of the Political Constitution, because the norm undermines municipal autonomy, which must be understood not only in the administrative sphere, but also in the sphere of government.

VI.- The fourth paragraph, in particular, and the fifth, are those that have been challenged in this action. The latter, although not the subject of challenge in the action, was challenged in the oral hearing held. The norm provides:

"To comply with the spirit of this law, when the Contraloría deems it necessary, it may rotate the auditors of the different public entities for the time it sets, or may replace them for a limited period to assign them to investigative work, within the Contraloría or at the location it assigns to them." This norm, in the judgment of the Chamber and in accordance with what is stated in Article 89 of the Law of Constitutional Jurisdiction, by connection, is openly unconstitutional for being contrary to Municipal Autonomy, contained in Article 170 of the Political Constitution. Municipal autonomy, which derives from the Political Constitution itself, essentially originates from the representative character of being a local government (the only territorial decentralization in the country), responsible for administering local interests, and for this reason, municipalities can define their development policies (plan and agree on action programs), independently and to the exclusion of any other State institution, a power that also entails the power to issue their own budget. This political autonomy implies, of course, that of issuing the internal regulations for the organization of the corporation, as well as those for the provision of municipal public services. For this reason, it has been said in local doctrine that "it is a true decentralization of the political function in local matters." Within this very general conception of municipal autonomy, the norm being analyzed is contrary to its principles, since understood in its proper dimension, what it states is neither more nor less than that the Municipal Auditor ceases to be an official of the Commune, to depend, hierarchically, on the Contraloría General de la República, which can freely dispose of him, disregarding the criteria of the Municipality itself. This implies, clearly, that the previously transcribed paragraph is, in the Chamber's judgment, unconstitutional and must, therefore, be annulled and eliminated from the legal system. It would not be so, however, if all the auditors of the public entities were officials of the Contraloría General de la República and depended on it, exercising their ex-ante control functions by delegation, as has been suggested on some occasions, but this concept is not the object of this action.

VII.- We must now analyze the paragraph that establishes:

"The dismissal of the auditor of each of the ministries, public entities, and private-law public enterprises, shall require the approval of the Contraloría General de la República." Municipal autonomy does not exclude legality control, which doctrine is unanimous in admitting, in the manifestations of authorizations and approvals (ex-ante and ex-post control, as requirements for the validity and effectiveness of acts, respectively), as compatible with it. The most qualified Costa Rican doctrine has expressed on the point: "We do not deem controls of legality incompatible with municipal autonomy, but rather advisable, with powers of suspension, annulment, and substitution, by the Contraloría General de la República, of fully regulated municipal administrative acts, since this would be supported by the logic of that type of control and the advisability of curbing administrative excesses before the judicial route, which as such, is slow and unfulfilled." That is to say, the control emanating from the Contraloría General de la República, which is also of constitutional origin according to the texts of its Articles 183 and 184, does not contravene municipal autonomy, because its main function is the legality control of the financial administration of the state and municipal public sector, from which it is inferred that regarding local governments, its applicability is based on an express constitutional text (Article 184, subsection 2). This control is reduced to verifying compliance with the applicable legality requirements, disregarding any reference to matters of convenience and expediency. Such being the case, the Chamber considers that the mere approval of the dismissal of a municipal auditor, as a measure to verify compliance with the rules of due process, is not an unreasonable or disproportionate measure capable of violating the administrative integrity of the Municipalities. As a note of the exercise of control powers, the Chamber does not consider that the Contraloría General de la República is supplanting municipal powers. On the contrary, the law is indicating a procedure for verifying the legality of the actions taken, which, in our opinion, is not contrary to Article 170 of the Political Constitution. This legal norm, since it does not require further development for its application to specific cases, is mandatory, even without the existence of the regulation, according to the unconstitutionality now declared." In the same vein, in vote No. 1691-94 of 10:48 a.m. on April 8, 1994, it was ordered that the municipal executive—now the mayor—is responsible for the disciplinary regime of Local Governments, regarding the officials and employees under his authority, so that it is he who issues the final resolution in matters of dismissals. These criteria were reiterated in vote No. 5445-1999 of 2:30 p.m. on July 14, 1999, which has been mentioned in numerous judgments of this Chamber to date. In this vote, the Constitutional Tribunal referred to the administrative tutelage relationship between municipalities and other state institutions, under agreed forms of voluntary coordination (this admits the function of legality control and state oversight powers, as well as the issuance of general directives and guidelines), in addition, to the disciplinary function, the assignment of duties to municipal employees, and the setting of the Mayor's salary, based on the following considerations:

"I.- GENERAL CONCEPTS REGARDING THE MUNICIPAL REGIME. It can be said, in summary, that municipalities or local governments are territorial entities of a corporate and non-state public nature, endowed with independence in matters of government and operation, which means, for example, that municipal autonomy involves tax aspects, which for their validity require legislative authorization, the contracting of loans, and the preparation and allocation of their own revenues and expenses, with generic powers...

II.- MUNICIPAL AUTONOMY. GENERALITIES. Grammatically, it is usual to say that the term "autonomy," can be defined as "the power that, within the State, municipalities, provinces, regions, or other entities thereof may enjoy, to govern their own peculiar inner-life interests, through their own norms and organs of government." From a legal-doctrinal point of view, this autonomy must be understood as the capacity that the Municipalities have to freely decide and under their own responsibility, everything referring to the organization of a specific locality (the canton, in our case). Thus, some sector of doctrine has said that this autonomy implies the free election of their own authorities; free management in matters of their competence; the creation, collection, and investment of their own revenues; and specifically, it refers to encompassing political, normative, tax, and administrative autonomy, defining them, in very general terms, as follows: political autonomy: as that which gives rise to self-government, which entails the election of its authorities through democratic and representative mechanisms, as stated in our Political Constitution in Article 169; normative autonomy: by virtue of which the municipalities have the power to issue their own regulations in matters of their competence, a power that in our country refers only to the regulatory power that internally regulates the organization of the corporation and the services it provides (autonomous organization and service regulations); tax autonomy: also known as the power to impose taxes, and it refers to the fact that the initiative for the creation, modification, extinction, or exemption of municipal taxes belongs to these entities, a power subject to the approval indicated in Article 121, subsection 13, of the Political Constitution when applicable; and administrative autonomy: as the power that implies not only self-regulation, but also self-administration and, therefore, freedom from the State for the adoption of the fundamental decisions of the entity. Our doctrine, for its part, has said that the Political Constitution (Article 170) and the Municipal Code (Article 7 of the former Municipal Code, and 4 of the current one) have not limited themselves to attributing to the municipalities the capacity to manage and promote local interests and services, but rather have expressly provided that this municipal management is and must be autonomous, which is defined as freedom vis-à-vis other State entities for the adoption of their fundamental decisions. This autonomy is directly related to the electoral and representative nature of its Government (Council and Mayor), which are elected every four years, and means the capacity of the municipality to set its action and investment policies independently, and more specifically, vis-à-vis the Executive Branch and the governing party. It is the capacity to set plans and programs for the local government, which is why it is linked to the power of the municipality to issue its own budget, an expression of the policies previously defined by the Council, a capacity that, in turn, is political.

(…)

A. RELATIONSHIPS OF THE MUNICIPALITIES WITH OTHER STATE INSTITUTIONS AND SOCIETY.

X.- THE OBLIGATION OF COORDINATION WITH STATE INSTITUTIONS. municipalities can share their powers with the Public Administration in general, a relationship that must be developed in the terms as defined in the law (Article 5 of the former Municipal Code, Article 7 of the new Code), which establishes the obligation of "coordination" between the municipalities and the public institutions that concur in the performance of their powers, to avoid duplication of efforts and contradictions, above all, because only voluntary coordination is compatible with municipal autonomy, being its expression. In other terms, the municipality is called upon to enter into cooperative relationships with other public entities, and vice versa, given the concurrent or coincident nature—in many cases—of interests around a specific matter. (…) Since there is no hierarchical relationship among decentralized institutions, nor of the State itself in relation to the municipalities, it is not possible to impose certain conducts upon them, whereby the indispensable "concerted action" arises among institutions, in a strict sense, insofar as the autonomous and independent centers of action agree on that preventive and global scheme, in which each one fulfills a role in view of a mission entrusted to the others. Thus, the relationships of the municipalities with other public entities can only be carried out on a plane of equality, resulting in agreed forms of coordination, to the exclusion of any imperative form to the detriment of their autonomy, that would allow subjecting the corporate entities to a coordination scheme without their will or against it; but which does admit the necessary subordination of these entities to the State and in the interest of the State (through the "administrative tutelage" of the State, and specifically, in the function of legality control that corresponds to it, with powers of general oversight over the entire sector).

(…) This obligation of coordination between State institutions and municipalities is implicit in the Political Constitution itself; (…)

"E. MUNICIPAL DISCIPLINARY REGIME.

XXXVII.- THE MUNICIPAL DISCIPLINARY REGIME AND THE OFFICIAL RESPONSIBLE FOR ITS DIRECTION.

(…) Since the disciplinary regime implies a relationship of subordination of the public employee to the institution for which they work, it is evident that it is that institution that is responsible for its direction and application directly, without interference from other administrative dependencies. The case of the municipal disciplinary regime is no exception, inasmuch as the Municipal Executive—now the Mayor—has the disciplinary function over the officials and employees of local governments who do not depend directly on the Council, by virtue of the provisions of Articles 141, 142, 148, 150, and 154 of the former Municipal Code, Article 17, subsection k) of the current Municipal Code; so that the personnel of the municipalities are appointed and administered by this official, except for those who correspond directly to the Council (auditor or accountant and the Council Secretary—subsections f) of Article 13 of the Municipal Code, number 7794), according to what was said in judgment number 1691-94, of ten forty-eight a.m. on February eight, nineteen ninety-four. Likewise, in judgment number 1355-96, of twelve eighteen p.m. on March twenty-two, nineteen ninety-six, it was said regarding the Municipal Executive:

XXXIX.- THE DEFINITION OF DUTIES OF MUNICIPAL EMPLOYEES.

In the preceding Considerandos, it has been indicated that the organizational competence of municipal dependencies is an expression of the administrative autonomy enjoyed by municipal corporations. In this sense, since the Municipal Mayor—formerly Municipal Executive—is the general administrator of local dependencies, it is his responsibility to assign the functions of his employees, as provided by Article 142 of the former Municipal Code:

XL.- ON THE SETTING OF SALARIES. Article 76 of the Municipal Code is challenged insofar as it establishes a categorization of municipalities based on budget and confers upon the Instituto de Fomento y Asesoría Municipal, in coordination with the Contraloría General de la República, the task of setting the salaries of the then Municipal Executives and their increases in relation to the municipalities' budgets, which is deemed violative of municipal autonomy and the principle of reasonableness. Indeed, according to everything stated previously in this judgment, this provision is absolutely unconstitutional, in open violation of the administrative autonomy of the municipalities defined in constitutional Article 170, since the setting of the salary of its Mayor (formerly Executive) is a matter pertaining to its own government and administration, and its determination should correspond to its authorities, in accordance with the functions entrusted to them, which, in any case, must be in proportional relation to the municipality's budget, as defined in Article 20 of the Municipal Code, No. 7794. By virtue of which, the phrase of the third paragraph of Article 76 that states "The Contraloría General de la República and the Instituto de Fomento y Asesoría Municipal shall annually set the salaries of the municipal executives, based on the amount of the municipal budgets referred to in this article"; is unconstitutional.(…)”.

The jurisprudential criterion issued in the partially cited judgment has been reiterated and used to resolve numerous matters to date, related to municipal autonomy, taxing power, municipal police, environmental matters, waste management, municipal assets, and others (see votes numbers 2001-04841 at 15:02 on June 6, 2001, 2002-05832 at 08:58 on June 14, 2002, 2005-02594 at 14:58 on March 9, 2005, 17113-2006 at 14:51 on November 28, 2006, 2007-13577 at 14:40 on September 19, 2007, 2007-15206 at 11:48 on October 19, 2007, 2011-004205 at 17:49 on March 29, 2011, 04621-2016 at 16:20 on April 5, 2016, among many others. On taxing power and business licenses, see votes numbers 9677-2001 at 11:26 on September 26, 2001, 2001-10153 at 14:44 on October 10, 2001, and 2005-02910 at 15:59 on March 15, 2005. On municipal fees and municipal police, votes numbers 2001-01613 at 14:54 on February 27, 2001, and 2001-01614 at 14:55 on February 27, 2001. On municipal competences in environmental matters, votes numbers No. 2015-016362 at 09:30 on October 21, 2015, and 2016-004621 at 16:20 on April 5, 2016. On municipal competences in waste management, vote No. 13577-2007 at 14:40 on September 19, 2007). Among these votes, it is pertinent to highlight vote No. 2007-13577 at 14:40 on September 19, 2007, insofar as it makes clear that despite the autonomy held by municipalities, they cannot exempt themselves from the necessary coordination and harmony they must maintain with other State institutions, in order to achieve compliance with the national development plan of the country. Specifically, it was stated on that occasion:

“Now then, that autonomy of the Municipalities granted by the Constituent in Article 170 of the Fundamental Norm, although it formally constitutes a limit to the interference of the Executive Branch, cannot be understood as being a full or unlimited autonomy, since it is always subject to certain limits, given that the territorial decentralization of the municipal regime does not imply the elimination of competences assigned to other organs and entities of the State. It is for this reason that there exist local interests whose custody corresponds to the Municipalities, and alongside them, others coexist whose constitutional and legal protection is attributed to other public organs, among them the Executive Branch. For this reason, this Chamber has recognized that when the problem exceeds the territorial circumscription to which local governments are subordinated, competences may be exercised by national institutions of the State, since the actions of the former are integrated within the general guidelines that have been drawn up within the national development plan, without this signifying a violation of their autonomy.” Regarding the powers of the legislator to develop the functional legal framework of the mayor, the Chamber has indicated that this obeys the principles of opportunity and convenience, whose limits lie in the reasonableness of the legislative act; in this sense, in vote No. 2008-007685 at 14:48 on May 7, 2008, it was ordered that:

“II.- The jurisprudence of this Chamber on municipal autonomy. The claim of the Municipal Mayor of Aguirre must be elucidated within the jurisprudential framework that this Constitutional Chamber has developed on the issue of municipal autonomy, which has been understood as the capacity that municipalities have to freely decide, and under their own responsibility, everything related to the organization of a specific locality.

(…) As is evident from the previous jurisprudential citation, normative autonomy implies the municipal capacity to issue its own normative system (understood as referring to autonomous regulations of organization and service), but subject to what the Law establishes.

III.- (…), the constituent delegated to the ordinary legislator the development of the functional legal framework of the Municipal Mayor, whereby the Law may restrict or enhance the figure of the Vice-Mayors as collaborators of the Mayor in his functions. In accordance with what is established by the constitutional norm, the legislative development that is carried out obeys the principles of opportunity and convenience of the legislator, whose only limits lie in the reasonableness of the legislative act. (emphasis not in original).

Finally, it is important to highlight as jurisprudential precedent judgment No. 11406-2017 at 10:17 on July 19, 2017, in which several norms of the Water Law (Ley de Aguas) were challenged because they established that the water inspector was an official appointed by MINAE, but that the municipality was responsible for bearing the cost of his salary. In this regard, it was resolved that:

“In this manner, in this line of argument, we can affirm that the figure of the cantonal water inspector finds support in this vision that has been sustained in this judgment that water is not a matter of local interest that qualifies within municipal autonomy, since it is not merely local—but rather of national interest—, nor susceptible to being subjected to territoriality criteria. Therefore, this inspector acts within the logic of coordination among public institutions in environmental matters, since he is an official subordinated to MINAE, an organ that holds the stewardship in the matter of water resources (recurso hídrico), but maintains a close relationship with the municipalities, since he is paid by them with a specific fee provided for in the regulation. In this sense, it is not possible to affirm that this figure injures municipal autonomy, since, as mentioned, in matters of a national character, such as water, this autonomy is not a full or unlimited autonomy, as it is always subject to certain limits, as for example when constitutional principles and rights such as the right to water come into play. Likewise, it cannot be alleged that it infringes upon the budgetary competence of the Municipality, since, as just indicated, a specific fee for its financing is provided for in the regulation. Thus, this Tribunal considers that neither the plaintiff mayor nor the Procuraduría General de la República is correct regarding a possible supervening unconstitutionality, since the figure of the cantonal water inspector does not injure the municipal autonomy enshrined in the Political Constitution, for which reason it is a figure in accordance with the Law of the Constitution. By virtue of the foregoing, what corresponds is to dismiss the action.”.

In conclusion, local governments are "a true decentralization of the political function in local matters." The degree of autonomy of the municipalities, which is administrative and governmental autonomy, allows them to self-administer (dispose of their human, material, and financial resources), carry out their legal competences by themselves, and give themselves their own internal organization. But furthermore, regarding governmental autonomy, it implies that they can set their own goals, objectives, and means; they can also issue autonomous service regulations. Likewise, they can define their development policies (plan and agree upon action programs), create taxes (which must be authorized by law), and provide their own territorial planning through regulatory plans (planes reguladores). But they also have the limitation that they cannot exempt themselves from that which has been declared of national interest.

• 3)Specific analysis of the matter consulted Regarding Article 2.c.- Scope of coverage regarding Municipalities (drafted by Justice Picado Brenes) The consultants accuse that subparagraph c) of Article 2 of the consulted bill, insofar as it includes municipalities within its scope of application, injures the governmental autonomy of these local governments. In this regard, in the same sense in which the constitutionality per se of this norm has been sustained regarding other institutions, Article 2, subparagraph c), is not in itself unconstitutional insofar as it includes the municipalities in a general regulatory framework of public employment, but it is unconstitutional for its effects since some of the norms of this bill empty their governmental autonomy of content, as will be seen specifically in the following sections. Returning to what was stated supra, it is plausible to subject all the powers and institutions of the State to a single public employment statute. However, to the extent that such subjection goes beyond general principles and enters into matters pertaining to the governmental autonomy of the municipalities, such subjection is unconstitutional for its effects, since it is not possible to subject local governments to guidelines (directrices), provisions, circulars, or manuals issued by Mideplán, nor to establish by law obligations that fall within the scope of their degree of autonomy. Let it be remembered that Municipalities are decentralized entities, by reason of territory, that have been endowed with a certain degree of autonomy. Thus then, one of the greatest guarantees that municipalities possess vis-à-vis the Central Government is the degree of autonomy that the Constitution has assigned to them, which is, political or governmental autonomy, or degree two of autonomy. Regarding its scope, it has been indicated that said autonomy includes budgetary autonomy, the creation of taxes, and providing their own regulatory plans. Furthermore, municipalities can define their development policies (plan and agree upon action programs), independently and to the exclusion of any other State institution, a power that also entails the ability to issue their own budget. While it is true that the degree of municipal autonomy cannot be understood as being a full or unlimited autonomy, since it is always subject to certain limits, it is also true that they have a degree of special protection, which arises from their political autonomy, and which makes the subjection of municipalities to this general public employment bill unconstitutional for its effects. In conclusion, subparagraph c) of Article 2 of the bill is unconstitutional for its effects.

Regarding Article 6.- Power of Direction of Mideplán with respect to Municipalities (drafted by Justice Castillo Víquez) Articles 169 and 170 of the Political Constitution assign municipalities the duty to watch over local interests and services, for which purpose they endow them with political autonomy. For such purposes, as can easily be deduced, matters referring to that area—setting of goals and objectives—have as a logical consequence, from a legal perspective, that the Executive Branch or one of its organs—Mideplán—cannot exercise the power of direction—issuing directives—or the regulatory power. This position is constitutionally valid in what pertains to the matter of public employment, specifically that body of officials indispensable to fulfill the constitutionally assigned purposes, as well as the administrative, professional, and technical personnel, that the highest authorities of the Municipal Corporations define, in an exclusive and exclusionary manner. The foregoing means that some public employees of those corporations, those who perform basic, auxiliary administrative functions, could indeed fall under the stewardship of the Executive Branch or Mideplán. Adopting these premises as a roadmap, after reviewing the jurisprudence of this Tribunal, an analysis of the norms that are being consulted will be made.

In accordance with Articles 191 and 192 of the Political Constitution, including municipalities within the Framework Law on Public Employment (Ley Marco de Empleo Público) bill is not unconstitutional. To the contrary, the constituent allows for there to be several or a single statute that regulates the relations between the State and public servants. This, provided that said regulation recognizes the scope of autonomy that local governments have, as established by constitutional Article 170 and as this Constitutional Chamber has developed in the aforementioned jurisprudence.

Municipal autonomy, which "(…) must be understood as the capacity that Municipalities have to freely decide and under their own responsibility, everything related to the organization of a specific locality (the canton, in our case)" (vote No. 5445-1999), implies that the local government has the power of self-regulation (autonormación) and self-administration (autoadministración); this means that they can issue their own regulations to regulate their internal organization and the services they provide, as well as their capacity to manage and promote local interests and services independently from the Executive Branch. However, this normative autonomy is subject to what the Law establishes.

Likewise, the aforementioned jurisprudence has indicated that no functions of any public entity that dispute primacy with the municipalities can subsist, when it concerns matters that make up what is local. To define what is local or distinguish it from what is not, it can be done through law, or by jurisprudential interpretation. Thus, full municipal autonomy refers strictly to "what is local," but an antagonism between local and national interests and services cannot be created, since both are called to coexist. This Tribunal has stated that "... in what pertains to what is local, there is no room for regulations from any other public entity, unless the law provides otherwise, which implies a well-founded reason for issuing the regulation; or what is the same, the municipality is not coordinated with State policy and only through law can matters that may be linked to what is local be regulated, but on the condition that said legal norm is reasonable, according to the purposes pursued" (vote No. 5445-1999).

In relation to Article 6, it is unconstitutional, as the power of direction does not exclude officials who participate in administrative functions linked to the constitutionally assigned purposes, and those who hold high-level political direction positions, as well as all those administrative, professional, and technical officials established by the highest organs of the municipal corporations. Ergo, the norm is only constitutional in what concerns basic, auxiliary administrative personnel, who would fall within the job family (familia de puestos) in accordance with numeral 13, subparagraph a) of the bill.

Regarding Article 7.- Competences of Mideplán with respect to Municipalities (drafted by Justice Castillo Víquez) In relation to Article 7, the same criterion expressed in relation to numeral 6 is maintained; furthermore, it subjects to the regulatory power of Mideplán matters where there is an exclusive and exclusionary power in favor of the municipalities to achieve the constitutional purpose assigned by the original constituent.

Regarding Article 9.- Human Resources Office in Municipalities (drafted by Justice Brenes Picado) The consulted norm establishes the following:

"ARTICLE 9- Functions of active administrations a) The offices, departments, areas, directorates, units, or homologous designations for human resources management, of the institutions included in Article 2 of this law, shall continue performing their functions in accordance with the pertinent normative provisions in each public dependency.

Likewise, they shall apply and execute the provisions of general scope (disposiciones de alcance general), guidelines (directrices), and regulations (reglamentos), in relation to planning, work organization, employment management, performance management (gestión del rendimiento), compensation management (gestión de la compensación), and labor relations management (gestión de las relaciones laborales), that the Ministerio de Planificación Nacional y Política Económica (Mideplán) sends to the respective institution, according to Law 6227, Ley General de la Administración Pública, of May 2, 1978, and Article 46 of Law 2166, Ley de Salarios de la Administración Pública, of October 9, 1957.

• b)It is the responsibility of the offices, departments, areas, directorates, units, or homologous designations for human resources management to prepare and apply knowledge, competency, and psychometric tests, for the purposes of personnel recruitment and selection processes, to conduct internal and external competitive examinations by merit and examination (concursos internos y externos por oposición y méritos), which must always comply at least with the standards established by the Dirección General de Servicio Civil for each position, according to its scope of competence, and the guidelines (lineamientos) issued according to Article 46 of Law 2166, Ley de Salarios de la Administración Pública, of October 9, 1957.

Furthermore, to incorporate said competitive examinations into the public employment offer of the Public Administration and to verify that public servants receive the proper induction regarding the duties, responsibilities, and functions of the position, as well as the general and specific ethical duties of public function for the institution and position.

• c)The institutional human resources management offices of ministries and institutions or assigned organs under the scope of application of the Estatuto de Servicio Civil, are technical dependencies of the Dirección General de Servicio Civil which, for all purposes, must coordinate the preparation of recruitment and selection tests with such offices and perform their functions of advisory, training, and technical accompaniment." As observed, the consulted Article 9 establishes certain functions for all offices, departments, areas, directorates, or human resources units of all institutions included in the bill, including the human resources of all municipalities. Thus then, in what properly refers to the consultation made regarding local governments, the second paragraph of subparagraph a) imposes on all human resources departments that they apply and execute the provisions of general scope, guidelines, and regulations, in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management, that Mideplán sends to them. Which would imply that an organ of the Executive Branch, such as Mideplán, imposes on these local entities with political autonomy the application and execution of its provisions, guidelines, and regulations, and in matters that are the exclusive domain of municipalities, such as planning, work organization, employment management, performance management, compensation or salary management, and labor relations management. Such an obligation on the human resources directorate of the municipalities being clearly a violation of their political autonomy, according to the scope that constitutional jurisprudence has given it. Let it be remembered that municipal autonomy, contained in Article 170 of the Political Constitution, essentially originates in the representative character of being a local government (the only territorial decentralization of the country), tasked with administering local interests. The local government has the power of self-regulation and self-administration; this means that they can issue their own regulations to regulate their internal organization and the services they provide, as well as their capacity to manage and promote local interests and services independently from the Executive Branch. It is clear, then, that the Executive Branch cannot act as a director or in a hierarchical relationship vis-à-vis the municipalities, and cannot impose guidelines (lineamientos), give orders, or control the timeliness of their activities. For this reason, Article 9 in question is unconstitutional for attempting to subject the human resources departments of local governments to apply and execute the provisions of general scope, guidelines, and regulations, in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management, that Mideplán sends to them.

Regarding Article 13.- Job Family (Familia de Puestos) with respect to Municipalities (drafted by Justice Castillo Víquez) Regarding Article 13, it is unconstitutional for not creating a job family for municipal employees and, consequently, including them all in the Civil Service (Servicio Civil). It is not possible to overlook that the Municipal Code, from numeral 124 through 161 inclusive, contains Title V, which regulates the relationship of municipal servants and local public administrations in a detailed manner, on the one hand, and numeral 50 of the bill, which establishes that the express repeals do not even refer to the norms found in the cited Code, nor are the modifications made in Article 49 of the consulted bill.

Regarding Article 14.- Recruitment and selection in Municipalities (drafted by Justice Picado Brenes) The consultants state that the political autonomy of Municipalities is injured by attempting to subject them to the provisions issued by an organ of the Executive Branch, regarding the recruitment and selection of their personnel. The numeral 14 in question provides the following:

"ARTICLE 14- Recruitment and selection The recruitment and selection of newly hired public servants shall be carried out based on their proven suitability, for which purpose the Ministerio de Planificación Nacional y Política Económica (Mideplán) shall issue, with absolute adherence to Law 6227, Ley General de la Administración Pública, of May 2, 1978, the provisions of general scope, the guidelines, and the regulations, according to the respective job family.

In recruitment and selection processes, an applicant who is in any of the following situations may not be chosen:

• a)Being related by consanguinity or affinity in direct or collateral line, up to and including the third degree, to the immediate supervisor or to the immediate superiors of the latter in the respective dependency.
• b)Being listed in the registry of ineligible persons of the integrated public employment platform." Just as has already been duly established, according to the provisions in numerals 2 and 13 of the bill, and as established in this Article 14, all Municipalities would find themselves subjected to the provisions of general scope, the guidelines, and the regulations issued by Mideplán in relation to the recruitment and selection of newly hired personnel, which becomes unconstitutional. This Chamber has stated that municipal autonomy "implies the free election of their own authorities; free management in the matters of their competence; the creation, collection, and investment of their own income; and specifically, it refers to encompassing political, normative, tax, and administrative autonomy." (vote No. 5445-1999). For this reason, "the relations of municipalities with other public entities can only be carried out on a plane of equality, resulting in agreed-upon forms of coordination, excluding any imperative form to the detriment of their autonomy, which would allow subjecting corporate entities to a coordination scheme without their will or against it; but which does admit the necessary subordination of these entities to the State and in the interest of the latter (through the 'administrative supervision (tutela administrativa)' of the State, and specifically, in the function of controlling legality that corresponds to it, with general oversight powers over the entire sector)." That is, coordination and administrative supervision of the State regarding legality control are admitted, but not that an organ of the Executive Branch such as Mideplán can issue provisions of general scope, guidelines, and regulations to Municipalities for their recruitment and selection processes. In that sense, any external intrusion by another power into the proprietary aspects of local governments that injures their autonomy is invalid. Under that understanding, it is not possible to admit that an organ of the Executive Branch, in this case Mideplán, imposes on Municipalities provisions relating to the recruitment and selection processes of their personnel, a matter which, as has been indicated, is consubstantial to the degree of autonomy enjoyed by these local governments. Consequently, such numeral contains a defect of unconstitutionality, insofar as it is applicable to Municipalities.

Regarding Article 17.- Senior Management Positions (Puestos de Alta Dirección) in Municipalities (drafted by Justice Picado Brenes) The consulted norm establishes the following:

"ARTICLE 17- Senior public management personnel (Personal de la alta dirección pública) The Ministerio de Planificación Nacional y Política Económica (Mideplán) shall issue the provisions of general scope, the guidelines, and the regulations, regarding senior public management personnel, that are consistent with Law 6227, Ley General de la Administración Pública, of May 2, 1978, to provide the Public Administration with profiles of integrity and proven capacity for management, innovation, and leadership, to seek the improvement of the provision of public goods and services. (…)" The consultants point to the injury to the governmental autonomy of Municipalities, because this norm provides that, in the case of senior management positions, Mideplán will be the one to issue the provisions of general scope, guidelines, and regulations in this regard. Regarding this consultation, in the same sense that this Chamber has been resolving these aspects, the interference of this Ministry, which is an organ of the Executive Branch, issuing provisions of general scope, guidelines, and regulations to the municipalities regarding senior management positions, is violative of their governmental autonomy. Let it be remembered that this Chamber has indicated that "municipalities are representative governments with competence over a specific territory (canton), with their own legal personality and public powers vis-à-vis their residents (inhabitants of the canton); they operate in a decentralized manner vis-à-vis the Government of the Republic, and enjoy constitutionally guaranteed and reinforced autonomy that manifests itself in political matters, by determining their own goals and the normative and administrative means in fulfillment of all types of public service for the satisfaction of the common good in their community." (judgment No. 5445-1999). Note that these types of positions are of great relevance for the faithful fulfillment of the administration of local interests and services, which must be particularly protected from the interference of the Executive, and which require the stability of personnel necessary for adequate performance of the position, which is incompatible with subordination to the provisions issued in that regard by Mideplán, as the norm in question provides. Therefore, it is considered that there exists a defect of unconstitutionality in Article 17 subject to consultation, in the terms stated.

Regarding Article 18.- Terms for Senior Management Personnel in the Municipalities (drafted by Justice Picado Brenes) In the opinion of the consultants, Article 18 is unconstitutional because it affects matters that fall under the competence of the municipalities, by establishing that, in the case of senior technical management (alta dirección técnica) positions, the appointment shall be for 6 years with a probationary period of 6 months, renewable annually, subject to the performance evaluation. Article 18 under consultation provides the following:

"ARTICLE 18- Appointment and probationary period for public senior management Any public servant who is appointed to a public senior management (alta dirección pública) position shall be on probation for a period of six months and their appointment shall be made for a maximum of six years, with the possibility of annual extension, which shall be subject to the results of the performance evaluation. (...)" In this regard, the regulation of aspects related to the appointment and selection of personnel, as also occurs with senior technical management (alta dirección técnica) positions, the probationary period, the term or conditions for the extension of appointments, are regulations specific to and pertaining to the political autonomy of local governments. It is understood that senior technical management (alta dirección técnica) positions, defined by the municipalities themselves, are strategic positions of great importance for their proper organization and for attending to local interests and services. For this reason, and in accordance with the municipalities' own purposes, it is up to them to assess the needs of the services they provide and to determine the conditions under which these positions should be filled, in order to fulfill the constitutional purposes assigned to them, respecting the degree of autonomy recognized, provided that the principle of suitability is observed. In their case, for example, the suitability of the appointment period for these positions or the conditions for extension could be subject to a condition of greater job stability, such as that guaranteed in constitutional article 192. All of this in accordance with their internal regulations, and not with a generic regulation like the one intended in this bill. The definition of such conditions is the exclusive competence of local governments. Therefore, in the terms in which Article 18 under consultation is drafted, it contains a defect of unconstitutionality for violating the political autonomy of the municipalities, which are exclusively responsible for defining the conditions under which their senior management (alta dirección) positions must be performed.

• 4)Conclusion Having analyzed all the aspects consulted regarding Articles 2 (subsection c), 6, 7, 9 (second paragraph of subsection a), 13, 14, 17, and 18 of the bill entitled "LEY MARCO DE EMPLEO PÚBLICO," legislative file No. 21.336, this Chamber finds that such norms are contrary to Constitutional Law, due to a violation of the governmental autonomy of the municipalities, constitutionally enshrined.

Such norms subject the Municipalities to a relationship of direction and subjection to an organ of the Executive Branch (Mideplán) in matters of public employment, in violation of the governmental or political autonomy constitutionally protected for the Municipalities. These articles refer to the following topics: 6 (governance of the General Public Employment System under the responsibility of Mideplán), 7 (broad powers of Mideplán to turn it into a kind of superior hierarchical authority with regulatory powers over the entire state apparatus in matters of public employment), 9 (the subjection and submission of human resources offices to Mideplán and the Dirección General de Servicio Civil), 13 (on a single general public employment regime composed of eight families), 14 (recruitment and selection based on Mideplán's regulatory provisions), 17 and 18 (public senior management (alta dirección pública) personnel subject to a single probationary period and a single appointment term). All of this is clearly in violation of the municipalities' autonomy, since such norms imply a kind of governance and hierarchical relationship with Mideplán. Moreover, when this autonomy even implies a safeguard against the legislator, who cannot encroach upon matters pertaining to municipal autonomy..." LBH10/22 ... See more Content of Interest:

Type of content: Majority Vote Branch of Law: 3. CONSTITUTIONALITY CONTROL MATTERS Topic: LABOR Sub-topics:

NOT APPLICABLE.

017098-21. LABOR. DISCRETIONARY LEGISLATIVE CONSULTATION ON CONSTITUTIONALITY, REGARDING THE BILL ENTITLED "LEY MARCO DE EMPLEO PÚBLICO". LEGISLATIVE FILE No. 21.336.

XIV.- Regarding the consultation on the violation of the autonomy of the Autonomous Institutions.- 1) Aspects Consulted The consultants consider unconstitutional both Article 2, subsection b) of the Public Employment Framework Law bill being processed in legislative file No. 21.336, for including autonomous institutions within the scope of coverage of that law, as well as articles 6, 7, 9, 13, 14, 17, 18, 21, 22, 24, 30, and 49 for invading their administrative autonomy enshrined in constitutional article 188, because they subject them to the provisions, directives, regulations, circulars, manuals, etc., issued by the Ministry of National Planning and Economic Policy (Ministerio de Planificación Nacional y Política Económica), on topics related to work planning, employment management, performance, compensation, and labor relations.

Upon reviewing the consultation, it has been possible to verify that the opinion expressed by the consultants in relation to those articles lacks adequate substantiation and does not clearly express the grounds or reasoning for which this concern is raised before the Chamber; it is not even observed that a consultation on constitutionality in the strict sense has been formulated, but rather that a mere enunciation is made regarding the clash they believe might occur between the powers being granted to MIDEPLAN and the autonomy of the autonomous institutions. Likewise, no justification is observed for the reasons why they believe such articles would violate Article 188 of the Political Constitution. In this regard, it must be borne in mind that Article 99 of the Ley de la Jurisdicción Constitucional is very clear in establishing that the consultation must express the questioned aspects of the bill and the reasons for which doubts or objections of constitutionality exist; moreover, all of this must be done in a reasoned and duly substantiated manner; a requirement that is not met in this specific case and, therefore, the consultation cannot be processed in the terms intended by the consultants.

• 2)Conclusion Consequently, it is unanimously declared that the consultation on the constitutionality of the bill for "LEY MARCO DE EMPLEO PÚBLICO," being processed in legislative file No. 21.336, is not subject to review, regarding Article 2, subsection b) - specifically in reference to "autonomous institutions and their attached organs, including semi-autonomous institutions and their attached organs" - and Articles 6, 7, 9, 13, 14, 17, 18, 21, 22, 24, 30, and 49, due to a lack of adequate substantiation from a constitutional standpoint.

XV.- Regarding the consultation on the violation of the principle of legal certainty by the figure of Conscientious Objection.- (drafted by Justice Picado Brenes) 1) Aspects Consulted In the Discretionary Legislative Consultation processed in file No. 21-011713-0007-CO, filed by several deputies, considerations are expressed that Article 23, subsection g) of the bill for "LEY MARCO DE EMPLEO PÚBLICO," being processed in legislative file No. 21.336, violates the principles of legality and legal certainty, of proportionality and reasonableness. This article establishes the possibility of conscientious objection (objeción de conciencia) in training and education processes, as indicated verbatim:

"ARTICLE 23- Governing postulates that guide the training and education processes (...)

• g)Public servants may inform the Administration, by means of a sworn statement, of their right to conscientious objection (objeción de conciencia), when their religious, ethical, and moral convictions are violated, for the purposes of training and education programs that are determined to be mandatory for all public servants. (...)" The consultants argue that this norm is unconstitutional because the possibility for public officials to claim conscientious objection (objeción de conciencia) in order to not receive training and education that the State has deemed mandatory is harmful to the principles of legality and legal certainty, proportionality, and reasonableness, given that, in their view, the norm does not regulate the conditions, parameters, and restrictions that must surround this situation and with which the violation of fundamental human rights contained in Conventional Law, as well as others fully recognized by the Costa Rican legal system, can be prevented. They point out that by means of a simple sworn statement, public officials may inform about a right of conscientious objection (objeción de conciencia) when the contents of the training and education programs violate, according to their criteria, their religious, ethical, or moral convictions. They believe it is a completely broad norm that will allow, by appealing to totally subjective criteria, any person to refuse to be trained on core topics of Public Administration. In that sense, they consider it is not possible to appeal to conscientious objection (objeción de conciencia) to promote inequality, mistreatment, and discrimination from a position of power, for example.

In the Discretionary Legislative Consultation, processed in file No. 21-012118-0007-CO, filed by other deputies, they consult on the constitutionality of Article 23, subsection g), as they consider it allows the violation of the constitutional principles of legality, legal certainty, reasonableness, and proportionality, as well as the International Covenant on Civil and Political Rights (art. 18.3) and the American Convention on Human Rights (article 12.3). They state that, in 1948, the Universal Declaration of Human Rights, in its Article 18, recognized that everyone has freedom of thought, conscience, and religion, thus recognizing the individual or collective capacity to freely express their beliefs or religion. They add that the International Covenant on Civil and Political Rights, adopted in 1966, in its Article 18, protects and recognizes the freedom of thought, conscience, and religion of persons, respecting the legal conditions and limitations that allow its full exercise; a norm that, in turn, establishes that the exercise of this right cannot override the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others. For their part, they indicate that, in 1987, resolution number 46 of the United Nations Commission on Human Rights recognized conscientious objection (objeción de conciencia) with respect to military service and, in that particular case, in protection of human rights, conscientious objection (objeción de conciencia) supported the refusal to perform military service by virtue of freedom of thought, conscience, and religion already included in the international framework stemming from the recognition of the right to refuse to perform military service to impose Apartheid; a position reaffirmed in 1989 when the Commission on Human Rights, through resolution 1989/59, recognized the right to have conscientious objections (objeciones de conciencia) in relation to military service as a human right, in compliance with the provisions of the Universal Declaration of Human Rights as well as the International Covenant on Civil and Political Rights. The consultants argue that, at the international level, human rights have recognized and analyzed the friction of conscientious objection (objeción de conciencia) with the right to health, given the possibility that the exercise of the former right might prevent the provision of correct sanitary and health care to service users. They point out that Article 18.3 of the International Covenant on Civil and Political Rights, as well as Article 12.3 of the American Convention on Human Rights, establish that the freedom to manifest one's own religion and beliefs is subject only to the limitations prescribed by law and which are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others. Thus, they state that it must be understood that, for an official providing services in the health area, the exercise of conscientious objection (objeción de conciencia) is only appropriate when such refusal does not imply harm to the human rights of patients (be they men, women, or children). They add that specifically, regarding respect for freedom of conscience in health professionals, the Inter-American Court of Human Rights has resolved that the rights of their patients as users of a public service must be respected, and it is for this reason that there must be a clear way to exercise this right to avoid violations. They recall that, in Costa Rica, the Constitutional Chamber, through resolution No. 2020-001619, has ruled on conscientious objection (objeción de conciencia) and has been consistent with the respect for human rights in the exercise of the right of conscientious objection (objeción de conciencia), as long as there is no friction with other rights. They argue that conscientious objection (objeción de conciencia) is understood as a (recognized) right that allows individuals to reject conduct that is being required of them by law based on reasons that are contrary to them or that affect their beliefs. The consultants argue that, in light of the bill under consultation, what is proposed by Article 23, subsection g), insofar as it includes in an open and unregulated manner the possibility for public officials to refuse to receive technical training and education that is mandatory and necessary for the performance of the position they hold, with mere communication via sworn statement, could be considered an abusive exercise and contrary to the human rights of other citizens. The consultants point out that, analyzing the articles of the bill under consultation, in their view, a cluster of rights comes into conflict, both those of the officials and those of the citizens receiving services from these public officials. They indicate that in resolution No. 2020-002965 of the Constitutional Chamber, this body recognized equality and universality in the treatment that the administration must give to users, so that public officials, in order to perform their duties in a probative, efficient, and effective manner, necessarily need to have the technical and administrative knowledge that allows them to perform their duties. Furthermore, they argue that the State has an obligation to train officials so that state operation conforms to the parameters for the provision of public services that must be guaranteed to citizens. They point out that the necessary training of officials cannot be understood as indoctrination or the imposition of conditions for public servants, but rather is a necessary transfer or exchange of information that must be conveyed to officials so that they perform their duties in accordance with the conditions for which they were hired. The consultants question how a public official can determine, prior to receiving training, that it violates their personal beliefs or convictions. They affirm that the solution the Constitutional Chamber has given to this issue refers to the fact that institutional hierarchies must adopt plans to prevent a dereliction of public service from occurring because, while it is true that the official has that right, the citizen cannot be limited or harmed in relation to a proceeding from which the objecting official excuses themselves from attending. Furthermore, they state that the Constitutional Chamber has said that officials, when they assume a position in which they must perform certain acts, are obligated to comply with them without the right to conscientious objection (objeción de conciencia), insofar as they have agreed to exercise the public position in accordance with the law in force at the time of their appointment. They consider that the approach given to this topic during the processing of the bill, accompanied by the rejection of motions that sought to clarify and delimit the exercise of conscientious objection (objeción de conciencia) so that there would be no impacts on other fundamental rights, ended up being a violation of fundamental rights in itself. They believe that considering conscientious objection (objeción de conciencia) as a mere formality, without further conditions and restrictions, without any technical seriousness, only to polemicize and polarize Costa Rican society, is contrary to human rights recognized by the Inter-American Court of Human Rights, considering that this contradicts the obligation of the State, which the Legislative Assembly must guarantee, regarding the safeguarding of legality and legal certainty that must accompany the laws issued. They believe that the inclusion of conscientious objection (objeción de conciencia) in Article 23, subsection g), of the bill entitled "Ley Marco de Empleo Público," legislative file No. 21.336, could constitute a violation of constitutional principles and human rights in the terms indicated.

• 2)Jurisprudential Background This Constitutional Court has ruled in relation to conscientious objection (objeción de conciencia), and in that sense, has recognized its applicability in various areas. Among the first pronouncements, it recognizes freedom of conscience as an individual subjective public right, enforceable by the administered party against the State. In that sense, judgment No. 1993-3173 of 2:57 p.m. on July 6, 1993, stated:

"VII.- Religious freedom encompasses, in its generic concept, a complex bundle of faculties. In this sense, it first refers to the individual level, that is, freedom of conscience, which must be considered as an individual subjective public right, wielded against the State, to demand abstention and protection from attacks by other persons or entities. It consists of the legally guaranteed possibility of the individual accommodating their religious conduct and way of life to what their own conviction prescribes, without being forced to do anything contrary to it. Secondly, it refers to the social level, freedom of worship, which translates into the right to externally practice the belief made one's own. It is also composed of the freedom of proselytism or propaganda, the freedom of congregation or foundation, the freedom of teaching, the right of assembly and association, and the rights of religious communities, etc.

VIII.- Freedom of worship, as an external manifestation of religious freedom, includes the right to maintain places of worship and to practice it, both inside enclosures and outside, always within the limitations established by the legal system, whether by constitutional norm or legal norm. In this sense, it is the constitutional text itself that permits the free exercise in the Republic of other faiths —other than the Catholic religion—, provided they 'do not oppose universal morality or good customs' (Article 75).

IX.- Article 75 of the Constitution provides that the State must contribute to the 'maintenance' of the Catholic religion; this constitutional norm cannot be interpreted restrictively; on the contrary, it is understood that the State has an obligation, in a general sense, to cooperate with the different religious confessions professed by the inhabitants of the country and specifically with the Catholic Church. This constitutional obligation consists of enabling religious education in public educational centers, in the necessary creation for its development, and not specifically in the assistance of economic financing. With this, the supreme norm considers the satisfaction of religious needs to be of general interest, despite the existence of persons who do not participate in them. Moreover, it must be interpreted not as an indicator of the Constitution's partiality in favor of a specific religious confession, but as an indicator of a sociological reality, which is the express mention of the confession indisputably most deeply rooted and widespread in our country, which in no way implies discrimination by the public authorities against other confessions or against non-confessional citizens." Continuing the same jurisprudential line, through judgment No. 1996-5492 of 4:54 p.m. on October 16, 1996, regarding the exercise of conscientious objection (objeción de conciencia) in the educational field, it was stated:

"(...) it is clear that the interpretation made by the respondent officials of the last paragraph of Article 210 of the Código de Educación, and which was communicated to the appellant by means of a note dated March 13, 1996, in the sense that he had to teach Religious Education lessons, also citing in support thereof Article 3 of the Ley Fundamental de Educación, and Decreto Ejecutivo number 10850-E of October twenty-second, nineteen seventy-nine, violates religious freedom to the detriment of the protected party, contained in Articles 75, 28, 29, and 33 of the Political Constitution and considered by the jurisprudence of this Court, at the individual level, as an individual subjective public right, which can be wielded against the State when considered threatened, as in the case before us, given the petitioner's status as a non-practitioner of the Catholic religion, and to demand from the State itself the necessary protection so that his intimate beliefs are respected at the individual level. Respect and protection that have not occurred in this case, since the note the appellant has received from the respondent officials, as can be deduced from its reading, does not respect his religious convictions, as he is forced to perform an activity contrary to said individual convictions. Consequently, the indicated norm contained in Article 210 of the Código de Educación must be understood in the sense that there must be a willingness of the teacher, in accordance with his religious convictions, to provide that teaching. It is not only a matter of respecting the teacher's freedom of conscience and worship, but also of protecting the student who would be exposed to receiving deficient or even inappropriate religious education. For the foregoing, it is appropriate to grant the appeal."

Similarly, the Constitutional Chamber, in the area of freedom of conscience in the field of education, recognizes the international protection of freedom of conscience. In judgment No. 1999-03914 of 4:27 p.m. on May 20, 1999, it stated, to the extent relevant:

"IX.- Article 75 of the Constitution provides that the State must contribute to the 'maintenance' of the Catholic religion; this constitutional norm cannot be interpreted restrictively; on the contrary, it is understood that the State has an obligation, in a general sense, to cooperate with the different religious confessions professed by the inhabitants of the country and specifically with the Catholic Church. This constitutional obligation consists of enabling religious education in public educational centers, in the necessary creation for its development, and not specifically in the assistance of economic financing. With this, the supreme norm considers the satisfaction of religious needs to be of general interest, despite the existence of persons who do not participate in them. Moreover, it must be interpreted not as an indicator of the Constitution's partiality in favor of a specific religious confession, but as an indicator of a sociological reality, which is the express mention of the confession indisputably most deeply rooted and widespread in our country, which in no way implies discrimination by the public authorities against other confessions or against non-confessional citizens." On the other hand, Article 14 of the Convention on the Rights of the Child establishes:

"1. States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others." From the foregoing, it is concluded that the protected minor has the right not to be forced to practice acts of worship or to receive religious assistance contrary to her personal convictions. Given that one of the protected party's religious beliefs refers to God's commandment not to use images or idols of religious connotation, the obligation to wear a badge with the image of the Virgen de Las Mercedes constitutes an imposition contrary to her convictions and the religious worship she practices. By virtue of the fact that at the Las Mercedes Educational Center, the omission of wearing the institution's badge is sanctioned in the terms indicated in Article 76 of the Reglamento de Evaluación de los Aprendizajes, the protected party has been forced to wear the image of the Virgen de Las Mercedes on her school uniform, a situation that violates religious freedom and freedom of worship, guaranteed in Article 75 of the Political Constitution, Article 14 of the United Nations Convention on the Rights of the Child, Article 24 of the International Covenant on Civil and Political Rights, Article 13.3 of the International Covenant on Economic, Social and Cultural Rights, and Article 36 of the Ley Fundamental de Educación." The protection of the Constitutional Chamber regarding conscientious objection (objeción de conciencia), as a guarantee of the right to freedom of worship, was reiterated in judgment No. 2001-10491 of 3:57 p.m. on October 16, 2001, in which it was stated:

"IV.- Now then, the denial of the request made by the protected party was based on three basic things: that the note by which the referred exemption was requested did not appear signed by the minor's legal representative; that it had been submitted after the beginning of the school year, when the correct thing is to do it at the beginning; And that this is a mandatory subject for all students. None of the three arguments has any legal basis to support it. Article 210 of the Código de Educación is clear in stating that 'Attendance at religion classes is considered mandatory for all children whose parents do not request in writing to the school or high school Director to be exempted from receiving this instruction,' from which it is inferred that the requirement to submit the referred letter at the beginning of the course is simply and plainly an abusive maneuver on the part of the respondent Director to the detriment of the student, as it imposes limits on freedom of worship that the law does not provide. It is also verified from the cited norm that the mandatory nature to which it refers is conditioned solely upon the student's parents not requesting in writing the exemption from it, a situation that in the case at hand has occurred, as can be deduced from folios 10 and 32 of the file, where the note in that sense sent by the protected party's father to the Director of the High School appears. Finally, it is also not true that the aforementioned letter lacks the signature of the protected minor's guardian, since it can clearly be read therein that one of the two signatures appearing there is made under the subtitle 'PARENT OR GUARDIAN,' which should not be diminished by the mere fact that the signature is illegible. Thus, to act as the respondent Director has done is to violate the principles of reasonableness and proportionality that inform the legal system, since they impose limits on freedom of worship that neither the Political Constitution nor the law require, hence, such violation has the consequence of rendering devoid of content the cited freedom of worship established in constitutional Article 75 and developed in Article 210 cited. Therefore, it is appropriate to grant the appeal." In another precedent, the Constitutional Chamber protected a student of the University of Costa Rica whose conscientious objection (objeción de conciencia) was not respected in order to not receive lessons or take tests on Saturdays due to the religion she professes. This precedent was later also applied to the labor sphere.

In this regard, in resolution No. 2002-03018 of 11:12 a.m. on March 22, 2002, it was stated:

“III.— Now, based on the guidelines set forth in the preceding recital, the right to religious freedom has been violated in the case under our examination regarding the scope of the cooperative relations that the State must maintain with the different faiths pursuant to Article 45 (sic) of the Political Constitution. In effect, the refusal of the University of Costa Rica to administer a make-up examination to the petitioner, despite the fact that her religion restricts educational activities on Saturdays, affects the right to practice the acts of worship proper to a belief of the petitioner and, as stated in the preceding recital, this is one of the elements of religious freedom. This Chamber considers that the refusal of the university authorities to administer a make-up examination is unreasonable, given that the administration of an extraordinary or make-up examination for the petitioner not only does not affect the proper functioning of the respondent university center, but is also a usual practice recognized by the entire student and teaching population. Thus, it is evident in the specific case that the University of Costa Rica has disrespected that duty of cooperation and of non-interference by public authorities in the activities of the petitioner's religious belief. To that extent, the exercise of her religious freedom to act in accordance with a particular creed has been restricted, conditioned, and obstructed. The protected party has been prevented from carrying out activities that constitute manifestations or expressions of her religious beliefs. By virtue of this, the Rector of the University of Costa Rica is ordered to accept the petitioner's request so that she is not forced to take examinations on Saturdays, given that this goes against her religious faith and this ultimately limits and restricts her freedom of worship protected under Article 75 of the Political Constitution. Thus, the appropriate course of action is to grant the appeal, as is hereby done.” In judgment No. 2002-08557 of 3:37 p.m. on September 3, 2002, the possibility is recognized for students, in the exercise of the right contained in constitutional numeral 75, to refuse, by reason of conscientious objection (objeción de conciencia), to receive religious education instruction. In that sense, it was stated:

“Freedom of belief, recognized by Article 75 of the Constitution, is a genre that includes not only religious freedom or the freedom to freely exercise one's worship, but also the right to develop and cultivate individual convictions without being disturbed by the State. Religious freedom is inserted within the broader freedom of belief born in the history of humanity from the Peace of Westphalia, as a recognition of tolerance by the Church. The main effect of this recognition is that no one may be harmed or favored because of their beliefs. There is also an underlying respect for equality before the law in this principle. The right to freely profess worship is the freedom to practice a religious belief. This means freedom of religious externalization—not of belief in intimacy, as that escapes the scope of law—provided that it does not affect public order, morals, or security (Article 28 of the Constitution). It also implies the faculty of religious association in communities of that type. Therefore, another immediate consequence of religious freedom is the right of the faithful and adherents to associate in religious or public benefit communities. Freedom of belief is incompatible with any attempt, on the part of teachers (in general, on the part of the State), to influence the religious education of children (in general, of the population); unless the interested party themselves (or their parents on behalf of the children) consents to or requests said type of instruction. Therefore, the expulsion from schools of those students who refused, by reason of conscientious objection (objeción de conciencia), to fulfill the obligation of receiving a specific type of religious training or education is incompatible with Constitutional Law.

IV.— Article 77 of the Political Constitution recognizes the right to public education, which shall be organized as a comprehensive process, correlated in its various cycles, from preschool to university. Furthermore, Constitutional Article 75 establishes freedom of belief, a principle under which Article 210 of the Education Code was drafted, which pertinently states: "Each grade or section of the primary schools of the Republic, without exception, shall receive two weekly teaching hours of religious education. Attendance at religion classes shall be considered mandatory for all children whose parents do not request in writing to the School Director that they be exempted from receiving such education." Thus, conscientious objection (objeción de conciencia) is regulated for students who, due to their beliefs, refuse to receive the religious education provided by the State. In the case at hand, it has been duly accredited that by means of a note dated September 25, 2001, the Director of the Siquirres Night School, (…), accepted the request of the parents of the protected parties to exclude them from their obligation to receive "Christian Ethics" classes (folio 2). Nonetheless, (…), Director of the Siquirres Night School, has prevented the protected parties from continuing to pursue the third year of secondary studies by virtue of the fact that in the 2001 school year they did not pass the subject "Christian Ethics" (folios 2, 3, 4, 22, 23, 24). The Chamber considers that this exclusion from the educational system to which the protected parties (…) have been subjected constitutes a flagrant violation of the right to education and of religious freedom, for which reason the amparo is granted in its entirety. Consequently, the Director of the Siquirres Night School is ordered to immediately re-enroll the protected parties (…), as regular students of the third year of secondary studies, taking the necessary measures so that they can adapt to the current status of the subjects they are taking.” In judgment No. 2003-03018 of 2:48 p.m. on April 22, 2003, this Court protected a student who did not sing the national anthem or salute the flag, considering that said acts of adoration are contrary to his religious beliefs. In this regard, it was stated:

“V.— It is true that the right to adapt one's conduct to one's own convictions cannot be unlimited, since that conduct must not harm public morals, public order, or third parties. However, in this case, none of those scenarios are present. Not singing the National Anthem does not threaten public morals or order, nor does it harm any third party. The text of Article 32 of the Internal Student Regulations must conform to the Political Constitution, which is far superior to it. The duty to sing the National Anthem is subordinate to superior human rights such as freedom of thought and religious freedom.

VI.— The Director also alleges that the parents never requested that the school exempt the child from singing the National Anthem. This argument is not admissible, given that it is recorded in the grade reports, on folios 68 to 70, that the student did not take the religion course. It is clear that the school knew the protected party's religious creed. If the director expected a formal request, he was mistaken. The exercise of a fundamental right cannot be subject to a formality. The person most interested in this matter, precisely the holder of the right, the minor, had already communicated his decision to the school.” In judgment No. 2005-05573 of 4:07 p.m. on May 10, 2005, the Chamber protected the right of a student of the University of Costa Rica not to take examinations on Saturdays, because it is the day that, according to her creed, must be dedicated solely to devotional use. In this sense, it ordered:

“II.— Object of the appeal. The petitioner considers her religious freedom violated to her detriment, since she is enrolled in the Open Education Program of the Ministry of Public Education, in which they intend to force her to take examinations on Saturdays, a day that according to her creed must be dedicated solely to devotional use, which is contrary to her religious freedom and freedom of worship.

III.— On the merits. In a matter similar to the one under study, this Court ordered:

“I.— The complaint made by the petitioner concerns the right to religious freedom recognized in Article 75 of the Political Constitution. In summary, the petitioner argues that by the University of Costa Rica forcing her to take examinations on Saturdays, a day on which, according to her creed, must be dedicated solely to devotional use, it is contrary to her religious freedom and freedom of worship.

II.— Delineating the content of the fundamental right to religious freedom, we can say that it is properly a freedom to decide for oneself one's own ideology, religion, or belief. The freedom we analyze therefore includes: a) the right to profess a religion or not to profess any, b) the right to practice the acts of worship proper to a belief, c) the right to behave in social life in accordance with one's own convictions. Likewise, we have that Article 75 of the Political Constitution guarantees the religious freedom and freedom of worship of individuals and communities without further limitation, in their manifestations, than that necessary for the maintenance of public order protected by law. Now, the content of the right to religious freedom is not exhausted in the protection against external interference in a sphere of individual or collective freedom that allows citizens to act in accordance with the creed they profess, since there is an external dimension of religious freedom that translates into the possibility of exercising, immune to all coercion by public powers, those activities that constitute manifestations or expressions of the religious phenomenon. On this subject, this Chamber, in judgment number 3173-93 of two fifty-seven p.m. on June seven, nineteen ninety-three, ordered:

'...VII.— Religious freedom entails, in its generic concept, a complex bundle of faculties. In this sense, it first refers to the individual level, that is, freedom of conscience, which must be considered an individual subjective public right, wielded against the State, to demand abstention and protection from attacks by other persons or entities. It consists of the juridically guaranteed possibility of the subject accommodating their religious conduct and way of life to what their own conviction prescribes, without being forced to do anything contrary to it. Second, it refers to the social level, freedom of worship, which translates into the right to externally practice the adopted belief...'" In judgment No. 2012-10456 of 5:27 a.m. on August 1, 2012, the Constitutional Chamber resolved an amparo proceeding against the Ministry of Public Education regarding the issue of the Education Program for Affectivity and Sexuality, making it clear that the Ministry of Education must respect the religious and philosophical convictions of parents in the education of their children; that is, the Chamber recognized the right to conscientious objection (objeción de conciencia) in the education of minors related to the subject of sexuality. In what is relevant, the Chamber stated:

“VI.— ON THE RIGHT TO EDUCATION AND THE OBLIGATIONS OF THE STATE IN MATTERS OF SEXUAL EDUCATION. International Human Rights Law recognizes the right to education, in general, for all persons whether they are minors or not, as this Court has pointed out in reiterated jurisprudence —among others, judgment number 1791-2004, of nine hours two minutes on February twenty, two thousand four—. In relation to the object of the present amparo, the right to education imposes a series of obligations on the State in matters of sexual education and health. In this regard, the Convention on the Elimination of All Forms of Discrimination against Women states:

'Article 10: States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women:

• h)Access to specific educational information to help to ensure the health and well-being of families.' Meanwhile, the Ibero-American Convention on the Rights of Youth integrates, as part of the right to education, the right to sexual education of young people, providing as follows:

'Article 23: 1. States Parties recognize that the right to education also includes the right to sexual education as a source of personal development, affectivity, and communicative expression, as well as information relating to reproduction and its consequences. 2. Sexual education shall be imparted at all educational levels and shall foster responsible conduct in the exercise of sexuality, oriented towards its full acceptance and identity, as well as the prevention of sexually transmitted diseases, HIV (AIDS), unwanted pregnancies, and sexual abuse or violence. 3. States Parties recognize the important role and responsibility that falls to the family in the sexual education of young people. 4. States Parties shall adopt and implement sexual education policies, establishing plans and programs that ensure information and the full and responsible exercise of this right.' Finally, the Convention on the Rights of the Child indicates:

'Article 19: 1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parents, legal guardians or any other person who has the care of the child.' The aforementioned international obligations regarding sexual education and health have been embraced by our legal system, especially in the Childhood and Adolescence Code, which provides as follows:

'Article 44.- Competencies of the Ministry of Health.

The Ministry of Health shall ensure that the right to the enjoyment of the highest attainable standard of health, access to disease prevention and treatment services, and the rehabilitation of the health of minors are verified. For this purpose, the Ministry of Health shall have the following competencies:

• c)Guarantee the creation and development of comprehensive care and education programs aimed at minors, including programs on sexual and reproductive health; g) Guarantee comprehensive treatment programs for adolescents regarding prenatal, perinatal, postnatal and psychological care.' 'Article 55.- Obligations of educational authorities.

It shall be the obligation of the directors, legal representatives or managers of preschool, maternal basic general education centers or other public or private organizations dedicated to the care of minors:

• c)To implement the programs on preventive, sexual and reproductive health education formulated by the relevant ministry.' 'Article 58.- National policies.

In the design of national educational policies, the State must:

• f)Promote the inclusion, in educational programs, of topics related to sexual education, reproduction, adolescent pregnancy, drugs, gender-based violence, sexually transmitted diseases, AIDS, and other serious ailments.' As can be inferred from the transcribed norms, both at the international level and from the internal normative development made thereof, there is an obligation for the Costa Rican State to implement sexual education policies for minors. This Court acknowledges that the study program 'Education for Integral Affectivity and Sexuality' prepared by the Ministry of Education responds precisely to that conventional and legal obligation. However, this obligation does not imply, in turn, the possibility for the State —at least not in a constitutional state governed by the rule of law— to affect the rights to freedom of conscience, religion of a part of the population, also established in international human rights instruments, which is why it is necessary to take actions that allow the harmonious coexistence of both rights to be harmonized, as detailed below.

VII.— ON THE CLAIM REGARDING THE AFFECTATION OF PARENTS' CONSTITUTIONAL RIGHT IN RELATION TO THE EDUCATION OF THEIR CHILDREN: In this case, the competence of this Court does not aim to determine what the specific content of the sexual guides to be taught in the national educational system should be; this is a matter that corresponds to the Superior Council of Education in accordance with numeral 81 of the Political Constitution. Rather, the Chamber's competence falls within the protection of the fundamental rights of the justiciable parties, particularly that referred to the legal provisions of the highest legal rank that recognize the possibility for parents that their children be educated in a manner consistent with their moral or religious beliefs. In this regard, it is important to cite what international Human Rights instruments state, starting with the Universal Declaration of Human Rights, which in its Article 26, paragraph 3, specifies that parents have a prior right to choose the kind of education that shall be given to their children. For its part, the International Covenant on Economic, Social and Cultural Rights states, in its numeral 13, paragraph 3), the following:

'Article 13 3. The States Parties to the present Covenant undertake to respect the liberty of parents and, when applicable, legal guardians, to choose for their children schools other than those established by the public authorities, provided those schools conform to the minimum standards laid down or approved by the State in matters of education, and to ensure the religious and moral education of their children in conformity with their own convictions.' Likewise, the International Covenant on Civil and Political Rights, in its Article 18, paragraph 4, establishes the following:

'Article 18.- 4. The States Parties to the present Covenant undertake to respect the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.' This concept is repeated in Article 12, paragraph 4) of the American Convention on Human Rights, which states:

'Article 12.- Freedom of Conscience and Religion 4. Parents or guardians, as the case may be, have the right to provide for the religious and moral education of their children or wards that is in accord with their own convictions.' Finally, and within said international normative framework applicable to the case, mention must be made of the Convention on the Rights of the Child, which establishes:

'1) States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2) States Parties shall respect the rights and duties of the parents and, where applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 3) Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.' Equally, the existence of a state obligation referring specifically to the state activity of education can be inferred from the preceding norms, so that the education officially imparted could not simply impose its power over the essential content of the rights enshrined in the instruments just cited.

VIII.— This issue, in turn, has a jurisprudential development in the jurisprudence of the European Court of Human Rights. This Court has resolved cases of conscientious objection (objeción de conciencia) in the educational field due to the invocation of Article 2 of the first additional Protocol to the European Convention on Human Rights, which imposes on the State the duty to respect the religious and philosophical convictions of parents in the education of their children. The first approach on the issue stands out, which occurred in the Kjeldsen, Busk Madsen and Pedersen vs. Denmark judgment, where a conflict was precisely analyzed between some parents who opposed their children receiving a mandatory subject on integrated sexual education. The Court considered that the aim pursued by the Danish government with the new law was legitimate, since it sought to combat the number of unwanted pregnancies outside marriage, the number of abortions, and venereal diseases. It also pointed out that numeral 2 of the cited Protocol did not prevent States from disseminating, through teaching or education, knowledge or information that has, directly or not, a religious or philosophical character. It did not permit parents to oppose this type of subject matter, since institutionalized teaching risked becoming impracticable, although it did impose on the State the duty of vigilance so that such knowledge inserted in a program is disseminated in an objective, critical, and pluralistic manner, thereby prohibiting pursuing an aim of indoctrination, which could indeed affect the religious and philosophical convictions of parents. In this case, the dissenting vote of Judge Verdross is particularly relevant, which became—over time—the majority position of the Court in subsequent cases. According to the cited Judge, detailed and overly precocious teaching on sexual matters imparted by the State under the monopoly of the State in the domain of education deprives parents of their primary right to ensure the education of their children according to their own religious convictions. He also pointed out that everything concerning the conscience of the children—their moral orientation—is a matter that concerns the parents according to Christian doctrine, so the State cannot interpose itself between parents and children against the will of the former. He asks whether, based on Article 2 of the Protocol, parents can oppose mandatory sexual education in a public school, even when said education does not constitute an attempt at indoctrination. To answer this question, he distinguishes between the facts of human sexuality, which are part of biology, and sexual behaviors, including contraception and contraceptive methods. For the cited Judge, the latter are indeed subsumed within the moral and conscience sphere, which is why it is the parents, not the State, who are responsible for their formation; this right of parents cannot be violated, ignored, or disparaged by the State. Therefore, even when information on sexual behaviors has an objective character, they injure the rights of parents by invading the conscience of minor children, as they may receive an education contrary to the religious convictions of their parents. The doctrine established in that dissenting vote was followed by the cited Court in the Folgero and Zengin v. Turkey judgments. In this last judgment, the Court concludes that the State has the obligation to respect the religious and philosophical convictions of parents throughout the entire public education curriculum. This duty of the State applies to the content of education and the manner of delivering it, and in this context, parents can demand that the State respect their religious and philosophical convictions.

IX.— The Supreme Court of Justice of the United States of America has also pronounced on the nexus between education and freedom of conscience. In this regard, in the Wisconsin v. Yoder (1972) judgment, the Court considered, regarding the education imparted to children of the Amish religion, that ' (...) the essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. We can accept, consequently, that no matter how strong the State's interest in universal compulsory education may be, it is by no means absolute to the exclusion or subordination of all other interests. The enforcement of the State's requirement of compulsory school attendance ... would gravely endanger if not destroy the free exercise of respondents' religious faith.' Thus, religious freedom was considered to prevail over the state interest in compulsory education for the minor children of the Amish.

X.— CONSIDERATIONS ON THE SPECIFIC CASE: In this case, there are sufficient elements of conviction to conclude that the study program 'Education for Integral Affectivity and Sexuality' does not refer only to facts of human sexuality, but also encompasses sexual behaviors. It suffices to point out that in the document where it is set forth, the following is established:

'In Costa Rica, until now, education for sexuality has been raised mostly as an informative process and centered on its biological dimension. This study program, within the framework of the current general policy approved by the Superior Council of Education in 2001, called Comprehensive Education Policy for the Expression of Human Sexuality (Agreement of Article three of Act 2001-12-06 modified in its Section No. 6 by Agreement 02-08-04) integrates that dimension, as an indispensable element of sexuality education, but adds a formative and affective dimension, on which emphasis is placed.' (The bold text does not correspond to the original). Further on, it is specified that what is sought with the content and strategies of this program is '(…) to generate changes in attitude that enhance respect for and the promotion of the human person', that is, the way students act, their behavior regarding sexuality, which logically implies instilling in them values, knowledge, conceptions, skills, and abilities regarding the phenomenon of sexuality. Proof of what we are affirming is that when it is specified what is understood by education for affectivity and integral sexuality, it '(…) starts from the premise that the mission of sexuality is bonding, from affective, corporal, ethical and spiritual dimensions, with the support and promotion of emotional maturity.' What is understood by spiritual relates to values, ethical criteria, and the meaning of life.' Now, if our society has formally recognized pluralism, democracy, and respect for freedom of thought and belief as its purposes, it is to be expected that numerous visions and perspectives on a wide variety of ideological and moral issues will arise, prosper, or decline within it, among which are included the sexual behaviors of individuals, which are often closely related to the religious or philosophical beliefs of persons; similarly, it is also inevitable that those who profess such beliefs will seek to exercise the aforementioned fundamental right to transmit them to their children.— Within this plurality, it is therefore fitting to question the validity of imposing a vision of sexual behaviors by the State, in the sense of asking which among all should be that favored vision: That of the Superior Council of Education or that of the Minister of Public Education? That of the Defender of the Inhabitants or that of the teachers who teach the subject? Should the vision tied to a particular religious practice be imposed, or rather should the criteria of agnostics, atheists, or the amoral be disseminated? Evidently, it is impossible for the content of this type of program to satisfy everyone, that is, to be in accordance with the religious and philosophical beliefs of all parents and their children; hence, the authority of the State to give the content it deems most appropriate is recognized, but given the fact that this type of teaching forms part of the moral heritage of the students and affects their scale of values, their beliefs, and their conscience, parents who consider that the content of sexual guides negatively affects the religious and philosophical beliefs they want for their children do not have the obligation to tolerate an invasion by the State in an area that Constitutional Law and International Human Rights Law reserve for the sphere of the parent-child relationship.” In this regard, it is pertinent to bring up what the Colombian Constitutional Court pointed out in judgment T 662/99, to the effect that:

“(…) it cannot be affirmed that the thought of one of the students or their moral or religious behavior legitimize conduct by the institution oriented toward disregarding fundamental constitutional rights, particularly in the space reserved for their freedom of conscience (libertad de conciencia). As long as it is merely the profession of their ideas or practices consistent with the free exercise thereof, and as long as their conduct does not cause harm to the student community, individual conscience must be free of external impositions”.

A democratic society is a tolerant society and, consequently, both respect for the beliefs of all persons forming part of society is required, as well as the right that such beliefs be translated into reality, independently of what others think about them, and to reject any invasion in the sphere of conscience. Therefore, this Court understands that the appropriate manner of reconciling the rights at play in this case points to the need to establish a mechanism in favor of those parents who consider that the implementation of the study program on “Educación para la afectividad y la sexualidad integral” substantially affects their fundamental right to effectively influence aspects affecting the moral or religious education of their children, according to the formulation contained in the positive law provisions already outlined.- XI.- Now then, this Court considers it important to establish some general ideas regarding that mechanism for exclusion from the study program on “Educación para la afectividad y la sexualidad integral” recognized herein as part of a valid exercise of a fundamental right.- As indicated, the Chamber understands the relevance of sexual education and adopts as its own the concerns regarding the public health and development problems that have been attributed to the lack of sexual education.- This, added to the obligations imposed on the State by International Law, means the succession to the state educational obligation and its responsibility in this regard. For parents to be able to exclude their children from attending the study program on “Educación para la afectividad y la sexualidad integral,” the Ministerio de Educación Pública must establish the manner in which the minor’s representatives may make the respective objection (objeción) through an agile and simple mechanism, in order to guarantee them respect of their fundamental rights related to the education of their children. By way of example, a simple written communication from the parent to the Director of the Educational Center indicating that their children will not receive that educational content might suffice.” In the labor sphere, the Chamber, through judgment No. 2015-008155 of 10:05 a.m. on June 5, 2015, resolved an amparo proceeding in which the dismissal of an official who did not work on Saturdays because he belonged to the Seventh-day Adventist Church was protected; in that sense, it ordered:

“The petitioner claims that, despite it being known by traffic authorities that he belongs to the Seventh-day Adventist Church and, therefore, Saturday is a day of rest, the Traffic Delegate (Delegado de Tránsito) of Cartago changed his schedule to include Saturdays, and that on the following May eleventh he was verbally warned that the report had already been forwarded for his dismissal for not working on Saturdays.

II.- Proven facts. The following facts are deemed duly proven as important for the decision in this matter, either because they have been accredited as such or because the respondent omitted to refer to them as provided in the initial order:

a. On May 10, 2013, the petitioner submitted a letter to the Office of the Ministerio de Obras Públicas y Transportes stating that he is an active member of the religious organization Adventista del Séptimo Día (see official report).

b. On April 7, 2015, the Traffic Delegate (Delegado de Tránsito) of Cartago verbally informed the petitioner that due to personnel needs his schedule had been modified (see official report).

c. On April 14, 2015, the petitioner submitted a petition to the Department of Labor Relations (Departamento de Relaciones Laborales) of the Ministerio de Obras Públicas y Transportes indicating that he disagrees with working on Saturdays due to his religious condition (see official report).

d. On April 15, 2015, through official letter DRL-088-2015, the Department of Labor Relations (Departamento de Relaciones Laborales) of the MOPT informed the petitioner that said department lacks competence to resolve what was requested (see official report).

e. On April 21, through official letter DTC-2015-0240, the petitioner was notified of the schedule change.

f. On April 24, 2015, the Personnel Board (Consejo de Personal) of the MOPT requested the Legal Director (Director Jurídico) to issue a legal opinion regarding the petitioner’s request (see official report).

g. On May 14, 2015, through official letter 20152143, the Legal Directorate of the Ministerio de Obras Públicas y Transportes stated: “It is our legal opinion that the Administration must respect the constitutional right of those officials who profess a religious creed whose observance takes place on Saturdays (…)” (see official report).

h. On May 19, 2015, official letter DGTP-0704-2015 was issued communicating to Mariano Alfaro Mora (Head of the Traffic Police of Cartago) that he should modify the petitioner’s schedule (see official report).

i. On May 20, 2015, the petitioner’s Supervisor, through official letter DTC 2015-0310, indicated: “I inform you that I will immediately proceed with the change of the official’s work role, in accordance with the opinion issued by… the Legal Advisory Office (Asesoría Jurídica)… as well as the Agreement of the Personnel Board (Consejo de Personal) (…)” (see official report).

j. The General Directorate of Traffic of the Ministerio de Obras Públicas y Transportes has not promoted any action for the dismissal of the petitioner (see official report).

III.- Facts not proven. None of relevance for the resolution of this matter.

IV- On the merits. From the report rendered by the respondent authority —which is taken as given under oath with the consequences, even criminal ones, provided for in Article 44 of the Law governing this Jurisdiction— and the evidence provided for the resolution of the matter, although the respondent authorities state they have resolved the petition submitted by the petitioner on April 8, 2015, regarding the schedule change issued by the Traffic Headquarters (Jefatura de Tránsito) of Cartago, it is also true that regarding the request submitted by the petitioner (April 14, 2015), the respondent authority communicated the resolution to him on May 20 of this year, which occurred after the notification of the ruling that admitted this amparo proceeding (05/18/2015). Now then, regarding the dismissal alleged by the petitioner, it is evident from the issued report that no action has been promoted. In this context, it is appropriate to grant the recurso, solely for indemnity purposes.” In judgment No. 2015-011897 of 11:41 a.m. on July 31, 2015, the Constitutional Chamber protected an officer of the Fuerza Pública who professes Judaism, a religion for which the Shabbat "Saturday" is a day of rest; in that sense, it was indicated:

“IV.- Specific case.- Now then, in the particular case, it has been duly accredited that the petitioner, [NAME001], is an active member of the Asociación Toras Jai VeAhavas Jesed, whose activity is of a religious nature, according to a certificate issued by Rabbi Rinjos Dov Fishman on February 17, 2015. Likewise, he is an official of the Ministerio de Seguridad Pública, and is stationed at the Police Station (Delegación Policial) of Alajuelita. The protected party alleges a violation of his religious freedom —enshrined in Article 75 of the Constitución Política—, because on December 9, 2014, he submitted a petition to his superiors in which —due to his religious beliefs— he requested a 5 x 2 work rotation, because he professes Judaism and the Shabbat "Saturday" is a day of utmost importance as a fundamental part of his beliefs and worship practices, as it is a day of rest. For this reason, they abstain from performing activities unrelated to those of worship and adoration, typical of that day. However, he asserts that said petition —as well as subsequent ones— have been denied by his superiors for various administrative reasons. For their part, the Chief of the Police Station (Jefe de la Delegación Policial) of Alajuelita and the Legal Director (Director Jurídico) of the Ministerio de Seguridad Pública indicate, in their report, that said Ministry does not oppose Mr. [NAME001]’s religious beliefs, nor the freedom of worship (libertad de culto) to which he is entitled; however, they argue that the entire operability of a Police Station, which is previously established and involves a whole organization of the available personnel, is at stake, meaning that changing an official’s rotation alters it, since the quantity of personnel available at the time of drafting the daily work plans for said station is no longer available. Likewise, they indicate that through official letter No. 0249-2015-D10 of April 14, 2015, a response was provided to the note of April 11, explaining to the petitioner that assigning him the 5 x 2 rotation was not appropriate, because the functions allowing said rotation are already being performed at the Police Station, and the protected party occupies the position of Communications Agent (Agente de Comunicaciones), in Occupational Analysis (Análisis Ocupacional), class 2. In this regard, it is pertinent to clarify that members of the State’s police forces, like any other person, enjoy fundamental rights, and while it has been recognized that they may be subject to certain limitations of a labor nature due to the function they perform, the truth is that this would only be possible in those cases where the community’s duly proven interest is at stake, as otherwise it would constitute an illegitimate action. Taking the foregoing into account, and after analyzing the elements contributed to the case file, it is considered that the decision of the respondent authority is contrary to law, because if one takes into account that a vast majority of the country’s population belongs to Catholicism, and a minority is Protestant, and within that minority an even smaller percentage keeps Saturday for religious reasons, it is reasonable to argue that in the case of members of the Fuerza Pública, there are few who profess those religious beliefs; hence, allowing these officers to fulfill that precept in no way implies a serious impact on the public service entrusted to them. In this sense, prior to adopting the decision challenged in this recurso de amparo, the respondents were obligated to seek the least burdensome solution for the protected party, so that the provisions of numeral 75 of the Constitución Política would not be affected; however, the respondent authorities did not proceed in that manner, as the measure adopted entailed an injury to the protected party’s religious freedom, and, moreover, it was not proportional to the purpose for which it was adopted, since, as indicated above, allowing the protected party to keep his day of rest would not lead to a serious infringement of the public interest. That is, out of two possible solutions, the one most burdensome for the fundamental right was chosen and, consequently, it is violated, and additionally the measure agreed upon by the respondent authority is neither proportional nor just in itself, so there is no alternative but to grant the recurso de amparo. Consequently, the amparo is appropriate as the injury to Article 75 of the Constitution is confirmed, and the respondent officials are ordered to immediately respect Mr. [NAME001]’s Saturday as a day of worship and adoration, which shall always be given to him as his day of rest.” In judgment No. 2017-000228 of 9:15 a.m. on January 13, 2017, the Constitutional Chamber likewise protected a student of the Universidad de Costa Rica so that tests or evaluations would not be administered to him on Saturdays, and stated that:

“…in the case at hand, it is pertinent to keep in mind that religious freedom, enshrined in Article 75 of the Constitución Política, encompasses, in its generic concept, a complex bundle of faculties. In this sense, first, it refers to the individual plane, that is, freedom of conscience (libertad de conciencia), which must be considered as an individual subjective public right, asserted against the State to demand abstention and protection from attacks by other persons or entities. It consists in the legally guaranteed possibility of the individual accommodating their religious conduct and way of life to what their own conviction prescribes, without being forced to do anything contrary to it. Second, it refers to the social plane, freedom of worship (libertad de culto), which translates into the right to externally practice the belief adopted. Now then, like any fundamental right, the exercise of religious freedom or freedom of worship is not unlimited, as the Constitución Política itself provides, in numeral 75, that it may not oppose universal morality nor good customs (buenas costumbres). Likewise, international treaties such as the International Covenant on Civil and Political Rights provide, in Article 18 thereof, that “freedom to manifest one’s own religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”. From the foregoing, it follows that any manifestation of religious freedom may be possible, as long as it does not prove contrary to the morality and good customs of society, or seriously injure the public interest, as if any of these situations occur, limitation of the cited right would be possible.” Regarding conscientious objection (objeción de conciencia) in the labor sphere, the Constitutional Chamber recently ruled on the case brought by a judge of the Juzgado Notarial of the Poder Judicial, after the respondent authorities denied the exercise of conscientious objection (objeción de conciencia) regarding petitions filed by persons of the same sex. In this regard, judgment No. 2020-001619 of 12:30 p.m. on January 24, 2020, stated:

“IV.- On the right to conscientious objection (objeción de conciencia). Both in the doctrine and in the most authoritative jurisprudence of the Courts that guarantee fundamental rights, conscientious objection (objeción de conciencia) has been conceptualized as a fundamental right of every person to refuse to fulfill a duty existing in the legal system, because the respective norm is incompatible with their beliefs or convictions, which are based, as a rule of principle, on religious, moral, or ideological convictions. It is argued that this right is a logical and necessary derivation of freedom of conscience (libertad de conciencia), and constitutes one of its external manifestations. The recognition and effective protection of this fundamental right is an indisputable distinctive element of a pluralistic society, to the extreme that its non-recognition or its reduction to the minimum expression —a severe impact on its essential content making it unrecognizable or impracticable— not only denotes its violation but also constitutes a worrying sign that the society in such a situation seeks to impose a single vision, an exclusive and exclusionary thought, on topics and issues where diversity of opinions must prevail in accordance with numeral 28 of the Carta Fundamental and Articles 12 and 13 of the Convención Americana sobre Derechos Humanos, as well as its numeral 6, which expressly establishes military service and, in countries where exemption for reasons of conscience is admitted, the national service that the law establishes in lieu thereof. Like the cited Convention, the Convenio Europeo para la Protección de los Derechos Humanos y las Libertades Fundamentales makes express reference to conscientious objection (objeción de conciencia) in the same terms in Article 4.3.b. For its part, the Carta Europea de los Derechos Fundamentales de la Unión Europea, when referring to freedom of thought, conscience, and religion in its numeral 10, paragraph 2, expressly recognizes the right to conscientious objection (objeción de conciencia) according to the national laws regulating its exercise. Unlike the Corte Interamericana de Derechos Humanos, the Tribunal Europeo de Derechos Humanos (hereinafter the TEDH) has indeed ruled on the fundamental right to conscientious objection (objeción de conciencia). Regarding compulsory military service, in the case of Tblimmenos v. Greece, in the year 2000, the TEDH concluded that the cited State had violated the prohibition of discrimination (Article 14 of the Convention) in relation to the right to freedom of thought, conscience, and religion (Article 9 of the Convention), considering that the applicant’s exclusion from the profession of public accountant was disproportionate in relation to guaranteeing adequate punishment for persons refusing to serve the country —it concerned a Jehovah’s Witness who had been sentenced to four years in prison for refusing to enlist in the army—, especially because he had already served the sentence. Six years passed before the TEDH, in the case of Ulke v. Turkey 2006, established limits on the States party to the Convention, by prohibiting the infliction of inhuman and degrading treatment (Article 3 of the Convention) against the objector. The plaintiff was a Turkish citizen who refused to perform military service due to his pacifist beliefs, who had been sentenced to prison nine times. Of great importance in this jurisprudential review is the case of Bayatyan v. Armenia of 2011, in which the Grand Chamber of the TEDH held that although Article 9 of the Convention does not expressly refer to the right to conscientious objection (objeción de conciencia), this is an autonomous right derived from freedom of conscience (libertad de conciencia) and must therefore be guaranteed —like any other freedom under the Convention— from arbitrary interference by the State. Thus, a limitation on the cited right must pass the test of reasonableness and proportionality, since any State action must strictly adhere to the limits defined in that test, that is, it must be a proportional measure that responds to a legitimate purpose necessary in a democratic society. Furthermore, it is important to note that the TEDH warned that this rule does not apply generally, but must always be evaluated in light of the specific circumstances of each case. This criterion was reiterated in the cases of Ercep v. Turkey (2011), Sarda v. Turkey (2012), Tarban v. Turkey (2012), Feti Demitras v. Turkey (2012), and Buldu v. Turkey (2014). The Court has also, on one occasion, ruled on conscientious objection (objeción de conciencia) regarding pharmaceutical products, and another, regarding the right to property. In the case of Pichón and Sajous v. France (2001), the Court held that since the sale of contraceptive products was legal and in that case occurred by medical prescription, the applicants could not prioritize their religious beliefs and impose them on others to justify their refusal to sell this type of product. In the case of Hermann v. Germany (2012), in which the plaintiff was forced to tolerate hunting on his property under German law and raised conscientious objection (objeción de conciencia) based on his pacifist beliefs, the Court ruled in his favor, as there was interference with his property by having to tolerate armed men and hunting dogs on his land. The TEDH reiterates its position in the cases of Chassagnou and Schneider, to the effect that imposing hunting on landowners who oppose it based on ethical beliefs entails a disproportionate burden, incompatible with Article 1 of Protocol No. 1. Regarding conscientious objection (objeción de conciencia) in relation to the use of religious symbols, the TEDH has ruled on several cases concerning its impact in different spheres, specifically in public space, in the educational environment, and in the labor sphere. In this regard, there are four significant cases: Dablab v. Switzerland (2001), Leyla Sabin v. Turkey (2004), Drogu v. France (2008), and Kervanci v. France (2008). From the analysis of them, it is drawn that the TEDH has maintained a line of support for the margin of appreciation of States, authorizing the limitation on the use of religious symbols, in particular, the use of the Islamic veil. A very interesting case was that of Eweida and Others v. the United Kingdom (2013), in which the TEDH protected the first applicant due to a violation of freedom of conscience and religion, but not the three remaining ones. The case of Ladele is of particular interest; she was a registrar in charge of registering marriages, births, and deaths who, following a statutory change, was compelled to register same-sex unions. The TEDH reiterated its position that religious freedom encompasses the freedom to manifest one’s beliefs privately, but also involves practicing them in community with others and in public. Such manifestations may take the form of worship, teaching, practice, and observance. Since the manifestation of a person’s religious beliefs may have an impact on others, their restrictions must be prescribed by Law, be necessary in a democratic society, and pursue a legitimate aim. In turn, to count as a manifestation within the meaning of Article 9 of the Convention, the act in question must be intimately linked to the religion or belief. In this case, it is important to highlight the dissenting opinions of Judges Vucinié and De Gaetano concerning the applicant Ladele, as they view conscientious objection (objeción de conciencia) as a right that facilitates harmonious interaction with other fundamental rights that may come into tension with it. For both, the TEDH erred in denying the violation of the rights to freedom of conscience and religion, as well as the right to non-discrimination of the registrar, who, because of her Christian convictions, refused to register marriages between persons of the same sex. They emphasize the importance for a person of moral judgment or conscience, protected by the right to conscientious objection (objeción de conciencia) and distinct from the specific content of religious freedom. They conclude that the majority of the TEDH erred, because the third applicant’s beliefs did not impact the content of her work, but only its scope. Nor was it proven that she had attempted to impose her beliefs on others, openly or surreptitiously, so the fact that she lost her job was totally disproportionate.

(…)

VI.- Conscientious objection (objeción de conciencia) and the exercise of the jurisdictional function. A not uncontroversial topic is whether a Judge, in the exercise of the jurisdictional function, that is, exercising ownership of a power of the State, may or may not exercise the right to conscientious objection (objeción de conciencia). It is clear that there are certain situations where, by its very nature and generalized character, the right to conscientious objection (objeción de conciencia) is not appropriate. The doctrine has argued that the conscientious objection (objeción de conciencia) of a criminal Judge who claimed that his conscience does not permit him to impose punishments is not possible. The same can be said in the case of a family Judge who objects to divorce. In all these situations —one must also bear in mind that when he opted for the position he voluntarily assumed all its functions— consequently, we would be breaching an elementary rule of good faith if he later sought to exercise the right to conscientious objection (objeción de conciencia). However, there are other cases where conscientious objection (objeción de conciencia) in the jurisdictional function is indeed appropriate. Indeed, the Italian Constitutional Court had the opportunity to hear a case in which a Judge objected to supplanting a minor’s consent to abort, in the year 1987. In this case, the cited court rejected the question, arguing it was not sufficiently grounded, which caused perplexity, criticism, and an intense debate, as a certain doctrinal agreement emerged to the effect that the constitutional question could have been resolved through the extensive interpretation of Article 51 of the Italian Code of Civil Procedure, which permits abstention in the case of a Judge who alleges “serious reasons of convenience,” thus making possible the transfer of the case to another Judge who does not raise conscientious objection (objeción de conciencia). As can be observed from the foregoing, there are those who argue that the right to conscientious objection (objeción de conciencia) of judges can be exercised through the grounds for recusal; however, being in the presence of an autonomous fundamental right and being a right-duty in this case, it must be exercised in a highly personal manner, as it is up to the objector, based on their beliefs or convictions, to determine if these prevent them from resolving the legal controversy before them. The position of the Colombian Constitutional Court is different; in Tutela ruling No. 388/09 of May 28, 2009, it maintained an absolute, maximalist position, to the effect that judicial authorities cannot hide behind the right to conscientious objection (objeción de conciencia) to refuse to process or decide a matter brought before them. This posture empties the essential content of the right to conscientious objection (objeción de conciencia), since for that Court, judges do not enjoy this fundamental right. We shall see that it is possible to guarantee the public service of the Administration of Justice under conditions of equality and non-discrimination, by admitting the right to conscientious objection (objeción de conciencia) in the jurisdictional function, as an important sector of the doctrine has correctly argued.

VII.- On the specific case. Now then, in all these questions, one must keep in mind a fundamental premise, and a historical constant, to the effect that there are no absolute fundamental rights, except the right not to be subjected to cruel, inhuman, or degrading treatment; consequently, the right to conscientious objection (objeción de conciencia) has limits and limitations, and in those cases where it collides with another fundamental right, one must resort to the principle of practical concordance and, consequently, it is necessary to conduct a balancing exercise (juicio de ponderación) between the conflicting rights, as will be developed below. In the case sub judice, the petitioner states that the contested act breaches his right to conscientious objection (objeción de conciencia), since the Consejo Superior del Poder Judicial fails to consider his religious convictions and forces him to act against them, by being compelled to perform the act of marriage between persons of the same sex; the situation is radically different when it concerns merely procedural actions, for example: registration of a marriage, as occurred in the case of Eweida and Others v. the United Kingdom outlined above, where it is not possible to exercise the right to conscientious objection (objeción de conciencia). As can be observed, in the case sub judice, this is not a strictly jurisdictional function —one that resolves a legal controversy with res judicata effect—, but one of a judicial nature, that is, non-jurisdictional functions established by Law. Faced with this situation, the first thing that must be brought up is that this fundamental right is inherent to the adjudicating person. The second is that, when the objecting person raises the impediment, several criteria of extreme importance must be followed. First, that they prove the existence of the ground of conscience and its direct relationship to the legal duty being objected to. Second, that it is a supervening situation, as the exercise of this fundamental right is not possible when the adjudicating person voluntarily accepted the position and, within their functions, the legal duty they now seek to object to was included. And, finally, when the exercise of the fundamental right to conscientious objection (objeción de conciencia) is accepted, the Poder Judicial is under the legal duty to substitute the objector, within a peremptory time limit, in such a way that the structured system provides the user of the Administration of Justice services with the service under conditions of efficacy, efficiency, and equality, that is, the situation is resolved in accordance with the fundamental right to effective judicial protection (tutela judicial efectiva) or prompt and complete justice and without any discrimination. Now then, it could be argued that the fundamental right to conscientious objection (objeción de conciencia) cannot be exercised when it entails discrimination; however, said position starts from an absolute vision and, consequently, empties the essential content of a fundamental right. In that sense, it must be clear that no one, in their right mind, would be against the affirmation that the judiciary must be exercised independently and impartially and without any discrimination whatsoever.

From this perspective, it is inadmissible for a Judge to give preferential treatment to some persons and discriminatory treatment to others for political, racial, religious, sexual preference, etc., reasons. In the exercise of the judiciary, as well as in the exercise of the administrative function, impartiality is the guiding principle and, consequently, the Judicial Branch has the duty to give equal treatment to heterosexual and homosexual persons regarding attention, processing, response time, resolution, and execution of matters, etc. Therefore, it is inadmissible for a judge or an administrative official to refuse to process a person's matter because that person has a worldview or a lifestyle that the official does not share; in these cases, the exercise of the fundamental right to conscientious objection (objeción de conciencia) has no place, for example: refusing to carry out a registration act, process a trial, execute what has been decided, etc. The situation is radically different when it involves exercising an act that is openly contrary to one's deepest religious, moral, or ideological convictions—such as the celebration of the marriage ceremony—in this scenario, to guarantee the exercise of the two conflicting fundamental rights, the principle of practical concordance must be employed. As German doctrine has correctly maintained, when there is a collision of fundamental rights, the principle of practical concordance must be applied, in such a way that one right cannot be sacrificed in favor of the other to such an extent that its essential content is emptied. In this type of situation, the legal operator is, in the first place, called upon to interpret and apply fundamental rights in a manner that allows the greatest degree of exercise by both persons. In the face of a manifest incompatibility, the balancing test (juicio de ponderación) requires that, when sacrificing one right in favor of the other, the right whose exercise is diminished must be restricted only to what is strictly necessary to make the exercise of the other possible. And, finally, it must always be kept in mind that the balancing test pertains to the specific case, which means, neither more nor less, that in another situation, the balancing test may very well lean in favor of the fundamental right that was sacrificed in the previous case. Taking the above as a frame of reference, the Chamber observes the different variables in the present matter. On one hand, one might think that the fundamental right to conscientious objection must be sacrificed in its essential content because it has no place whatsoever in a case of discrimination. In other words, judges are obliged to sacrifice, to set aside their deepest convictions, in this case religious ones, and proceed to perform the marriage. Under that line of thought, if the Judge does not perform the marriage, it would constitute a discriminatory act. On this point, the first thing that must be kept in mind is that the principle of equality and non-discrimination is not violated when there is an objective and reasonable justification. In this regard, the Constitutional Chamber has repeatedly expressed the following:

"The principle of equality, contained in Article 33 of the Political Constitution, does not imply that in all cases, equal treatment must be given regardless of the possible differentiating elements of legal relevance that may exist; or what is the same, not every inequality necessarily constitutes discrimination. Equality, as the Chamber has stated, is only violated when the inequality lacks an objective and reasonable justification. But furthermore, the cause justifying the act considered unequal must be evaluated in relation to its purpose and its effects, such that a reasonable relationship of proportionality must necessarily exist between the means employed and the purpose itself. That is, equality must be understood in light of the circumstances present in each specific case in which it is invoked, such that the universal application of the law does not prohibit contemplating different solutions for different situations, as diverse treatment. All that has been expressed means that equality before the law cannot imply material equality or real and effective economic equality" (see votes no. 1770-94 and 1045-94).

The majority of the Court considers that the fact that a Judge raises a conscientious objection on an issue that, from a religious point of view, is of the greatest significance, does not mean that the Judge is discriminating against a specific person; it constitutes an objective and reasonable justification. What happens is that the Judge has a different vision of a social and religious institution than that which the contracting parties may have, and, consequently, forcing the Judge to celebrate the marriage ceremony lacerates the Judge's deepest religious convictions and leaves the essential content of the judge's fundamental right devoid of meaning. Secondly, it is a public and notorious fact that in a country where there are several notarial judges, the Administration of Justice can very well accept conscientious objection, which, as expressed supra, must meet all the requirements to exercise this fundamental right, and assign the non-objecting judges the task of performing marriages between persons of the same sex and, even, in a State that guarantees all the fundamental rights of persons, establish a system that always ensures the availability of judges who are willing to provide the service to persons of the same sex under conditions of equality with other users of the service. Viewed in this way, there is no such act of discrimination, since there will always be judges who will perform the marriage ceremony, thereby satisfying the rights of the contracting parties. On the other hand, it cannot be ignored either that Costa Rica is a State that has an openly notarial system, in which the various persons may go to a notary public of their free choice to contract marriage, provided that the notary has not raised a conscientious objection in accordance with numeral 3 of the Guidelines for the Exercise and Control of the Notarial Service (see La Gaceta No. 23 of February 5, 2020). Finally, and no less important, is that the right to conscientious objection would apply to those judges who were appointed before the entry into force of marriage between persons of the same sex—whose duties did not include performing the marriage ceremony between persons of the same sex—since for those appointed subsequently, it is clear that they have voluntarily accepted to perform the marriage ceremony for both heterosexual and homosexual persons. Consistent with the position held by the majority of the Court, it is important to bring to mind the words of Justice Neil Gorsuch, to the effect that the place of secular officials is not to judge the religious beliefs—of persons—but only to protect their free exercise, as stated in the famous Case Masterpiece Cakeshop, Ltd., v. Colorado Civil Rights Commission ET AL.—SEVEN VOTES IN FAVOR AND TWO AGAINST PROTECTING FREEDOM OF CONSCIENCE—in which a same-sex couple requested a Colorado baker in the summer of 2012 to make them a wedding cake; the owner, surnamed Phillips, refused to take the special order, which involved creating and selling them a wedding cake for same-sex couples. It is on record that he offered other products from his shop. At the time of the request, no law recognized same-sex marriage, so the wedding was to take place in a State where it was legal, and they would offer the celebration in Denver. Jack Phillips identified himself as a cake artist and a devout Christian, whose main life goal was to be obedient to the teachings of Jesus Christ, and therefore he sought to honor God through his work in his shop at Masterpiece Cakeshop. Precisely, one of his religious beliefs resided in God's intention for marriage to be the union of one man and one woman, such that creating a wedding cake for a same-sex couple would be equivalent to participating in that celebration, which was contrary to his most cherished beliefs. The mother of one of the young men called Phillips the next day for further explanations, and he responded in similar terms, adding that creating a cake would imply celebrating something that would be contrary to the teachings of the Bible and, furthermore, would imply, in his view, a personal approval for the ceremony and the couple's relationship they would constitute.

VIII.- Based on what was expressed above, the majority of the Court considers that in a pluralistic society, it is necessary that the Law of the Constitution—values, principles, and norms—authorizes persons to have different visions regarding political, economic, social, and cultural phenomena, for otherwise we would fall into an authoritarian or totalitarian society in which there is a homogenization or standardization of thought. In that sense, Human Rights Tribunals are not called upon to impose a single way of thinking, but rather, through a balancing test and in application of the principles of reasonableness and proportionality, they must allow the maximum exercise of the fundamental rights that are in collision, so that they coexist respectfully. It must be kept in mind that, in cases of conflict of fundamental rights, the Constitutional Court is not a promoter of a specific ideology or worldview, for when it acts in that manner, it abandons its mission and, consequently, although it may seem paradoxical, ends up trampling the fundamental rights of the person it must protect. Thus, by virtue of what has been set forth above, the appropriate course is to grant the appeal, with the consequences that will be stated in the operative part.

IX.- Conclusion. The principle of equality and non-discrimination is an essential element of the public service of Administration of Justice, and therefore its users must receive equal treatment in the attention, processing, resolution, and execution of the different matters heard in all judicial instances. For its part, the majority of the Court considers that it is possible to exercise the right to conscientious objection in the jurisdictional function—although in the present case it concerns the exercise of a judicial function. In these scenarios, two fundamental rights are reconciled; however, the essential content of the first—equality and non-discrimination—is not emptied, given that in a case of conscientious objection by a judge regarding performing the marriage ceremony, the Superior Council of the Judicial Branch must adopt all necessary measures so that the public service of Administration of Justice is provided to same-sex couples under the same conditions and response times as those given to heterosexual persons. Finally, it is clear that all those persons appointed after the entry into force of same-sex marriage cannot exercise the right to conscientious objection, for they have voluntarily accepted that function when offering and accepting the position." On conscientious objection. In a generic sense, conscientious objection refers to an institute of ancient origin, which has appeared in society since remote times and involves the possibility of departing from a legal duty or mandate when these conflict with or oppose the convictions of the objector, without the objector being held liable. In other words, it could be considered a kind of resistance to the normative precept, insofar as it is based on the apparent conflict between the moral, religious, or justice obligations of the person and the fulfillment of legal provisions. Conscientious objection is understood as an ad extra realization of the right to freedom of conscience, which manifests itself as a limit on public powers so that they do not interfere with personal convictions. As mentioned in the preceding section, from the first pronouncements of this Constitutional Court, it was understood that "...freedom of conscience, which must be considered as an individual subjective public right, wielded against the State, to demand abstention and protection from attacks by other persons or entities. It consists in the legally guaranteed possibility for the subject to accommodate their religious conduct and way of life to what their own conviction prescribes, without being forced to do anything contrary to it. Secondly, it refers to the social plane, the freedom of worship, which translates into the right to externally practice the adopted belief. It is also composed of the freedom of proselytism or propaganda, the freedom of congregation or foundation, the freedom of teaching, the right of assembly and association, and the rights of religious communities, etc." (see judgment No. 3173-93 of 2:57 p.m. on July 6, 1993, doctrine reiterated in judgments No. 5492-96 of 4:54 p.m. on October 16, 1996, No. 2001-10491 of 3:57 p.m. on October 16, 2001, No. 2002-03018 of 11:12 a.m. on March 22, 2002, No. 2002-08557 of 3:37 p.m. on September 3, 2002, No. 2003-03018 of 2:48 p.m. on April 22, 2003, No. 2004-008763 of 12:15 p.m. on August 13, 2004, 2012-10456 of 5:27 a.m. on August 1, 2012, and No. 2014-004575 of 2:30 p.m. on April 2, 2014, among others). From the foregoing, it can be concluded that freedom of conscience is a fundamental right, which must be guaranteed by a State respectful of religious freedom and of a democratic, broad, and pluralistic society with ample respect for the diversity of opinions, beliefs, and moral convictions. Likewise, freedom of thought and conscience stand as fundamental elements that form the identity of believers and their conception of life, as well as for atheistic, agnostic, skeptical, and indifferent persons. Conscientious objection must be differentiated from related concepts such as civil disobedience, given that the objector's intention is not to obstruct the social fulfillment of the legislative precept, but to obtain respect for their own conscience. The difference lies mainly in the purpose of the action. The primary objective of civil disobedience is the modification of a normative precept or public policy, for example, the movement for civil rights for people of African descent undertaken by Martin Luther King to end racial segregation and discrimination in the United States of America. Conscientious objection must also be differentiated from evasion of conscience (evasión de conciencia), as pointed out by John Rawls (A Theory of Justice, 1975), the distinction refers to the publicity of the act and not to its purpose. In that sense, conscientious objection manifests itself publicly, as the objector must communicate their refusal to superiors in order to obtain exemption. Conversely, evasion of conscience is identified by its essentially secret character, for example, a person who separates themselves from normative dogmas to undertake privately an action understood as a moral duty, like one who undertakes justice by their own hand in defense of their convictions. Initially, conscientious objection was conceived as an institute that allowed objectors to exempt themselves from participating in military service without being held liable for desertion. In this way, conscientious objection to military service was founded on the right to freedom of thought, conscience, and religion, established in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The right to conscientious objection to military service is not a right in itself, since the international instruments of the United Nations do not mention it directly; rather, it is classified as a derived right or a manifestation of these, for, as indicated, it derives from an interpretation of the right to freedom of thought, conscience, and religion. It is clear that a progressive and expansive evolution of conscientious objection has allowed for broadening its scope in two aspects; the first, regarding subjective claims, allowing the conscientious objector not only to assert their religious beliefs but also other types of convictions, normally ethical, moral, and philosophical ones; and the second, regarding the field of application, since said instrument is no longer enforceable only against compulsory military service but has been transferred to the fields of education, healthcare, and labor. Of course, the ius-philosophical justification of conscientious objection can be approached from various perspectives. From a natural law perspective, such as that of classical legal realism, as well as from a constructivist or contractarian perspective like that of John Rawls and Ronald Dworkin, influenced by Kantian morality, insofar as they exalt the principle of individual autonomy as that which justifies the exercise of conscientious objection.

On the recognition of conscientious objection in the labor and educational spheres according to the jurisprudence of the Constitutional Chamber. As indicated in the first section of this considerando, the recognition of conscientious objection by this Constitutional Court has its origins in the year 1993 (see judgment No. 3173-93 of 2:57 p.m. on July 6, 1993), referring to the field of education, and from that date to the present, the right of students to conscientious objection in the educational sphere has been recognized, as an instrument derived from freedom of conscience and freedom of worship, indicating that "...It consists in the legally guaranteed possibility for the subject to accommodate their religious conduct and way of life to what their own conviction prescribes, without being forced to do anything contrary to it. Secondly, it refers to the social plane, the freedom of worship, which translates into the right to externally practice the adopted belief. It is also composed of the freedom of proselytism or propaganda, the freedom of congregation or foundation, the freedom of teaching, the right of assembly and association, and the rights of religious communities, etc." This interpretation is common in other latitudes, such as, for example, in the case of Spain, since judgment 15/1982 of April 23, 1982, the Spanish Constitutional Court recognized conscientious objection by interpretation of Article 30.2 of the Constitution, which explicitly mentions conscientious objection for military service in conjunction with the interpretation of Article 16.1, attributing to it a broad content that consists not only in believing or ceasing to believe what one deems appropriate, but also in the possibility of behaving in personal and social life according to one's own convictions, whatever they may be, expressly stating:

"...both doctrine and comparative law affirm the connection between conscientious objection and freedom of conscience. For doctrine, conscientious objection constitutes a specification of freedom of conscience, which entails not only the right to freely form one's own conscience, but also to act in a manner consistent with the imperatives of that conscience. In the Basic Law of Bonn, the right to conscientious objection is recognized in the same article as freedom of conscience, and similarly, in Resolution 337 of 1967 of the Consultative Assembly of the Council of Europe, it is expressly stated that the recognition of conscientious objection logically derives from the fundamental rights of the individual guaranteed in Art. 9 of the European Convention on Human Rights, which obliges Member States to respect individual freedoms of conscience and religion.

And, since freedom of conscience is a realization of ideological freedom, which our Constitution recognizes in Art. 16, it can be affirmed that conscientious objection is a right recognized explicitly and implicitly in the Spanish constitutional order, without the fact that Art. 30.2 uses the expression 'the Law shall regulate' having any value against the argument presented, a phrase which means nothing other than the need for legislator interposition not to recognize, but, as the words themselves indicate, to 'regulate' the right in terms that permit its full applicability and effectiveness." Likewise, the Constitutional Chamber has transferred the applicability of conscientious objection to the labor sphere, to resolve situations in which employees or officials wish to deviate from the fulfillment of obligations. Specifically, in the conception of conscientious objection in the labor sphere, the Constitutional Chamber indicated that "... conscientious objection has been conceptualized as a fundamental right of every person to refuse to fulfill a duty, which is found in the legal system, because the respective norm is incompatible with their beliefs or convictions, which are based, as a matter of principle, on religious, moral, or ideological convictions. It is held that this right is a logical and necessary derivation of freedom of conscience, and constitutes one of its external manifestations." (see judgment No. 2020-001619 of 12:30 p.m. on January 24, 2020). In the cited precedent, the Court assessed the possibility that a judge in their judicial function could invoke a conscientious objection and warned that "...the majority of the Court considers that in a pluralistic society, it is necessary that the Law of the Constitution—values, principles, and norms—authorizes persons to have different visions regarding political, economic, social, and cultural phenomena, for otherwise we would fall into an authoritarian or totalitarian society in which there is a homogenization or standardization of thought. In that sense, Human Rights Tribunals are not called upon to impose a single way of thinking, but rather, through a balancing test and in application of the principles of reasonableness and proportionality, must allow the maximum exercise of the fundamental rights that are in collision, so that they coexist respectfully. It must be kept in mind that, in those cases of conflict of fundamental rights, the Constitutional Court is not a promoter of a specific ideology or worldview, for when it acts in that manner, it abandons its mission and, consequently, although it may seem paradoxical, ends up trampling the fundamental rights of the person it must protect." In the cited ruling, the Constitutional Chamber finally highlighted that the Administration of Justice is governed by the principle of equality and non-discrimination, as an essential element of the public service, which functions as a guarantee so that those administered receive equal treatment in the attention, processing, resolution, and execution of the different matters heard in all judicial instances. Likewise, it specified that it is possible to exercise the right to conscientious objection in the jurisdictional function, although the case it was resolving referred to the exercise of a judicial function. Finally, it emphasized that, in these scenarios, two fundamental rights are reconciled, without neglecting the right to equality and non-discrimination, for in a case of conscientious objection, the Superior Council of the Judicial Branch must adopt all necessary measures so that the public service of Administration of Justice is provided under the same conditions and response times.

International Regulations on conscientious objection at the universal level. Article 18 of the Universal Declaration of Human Rights of 1948, provides that:

"Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance." Almost similarly, Article 18 of the International Covenant on Civil and Political Rights of 1976, prescribes that:

"1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice." Likewise, Article 8 of the International Covenant on Civil and Political Rights of 1976, also states:

"Article 8.

3. (a) No one shall be required to perform forced or compulsory labour (...)

(c) For the purpose of this paragraph the term \"forced or compulsory labour\" shall not include:

(ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors;" In the partially transcribed normative precept, a general right to conscientious objection is not recognized, and an indication is made of the States that legislated on the matter, making reference to substitute service. Similarly, compulsory military service should not be considered as forced labor. The International Convention on the Elimination of All Forms of Racial Discrimination of 1969, indicates in Article 5 the following:

"Article 5.

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

(...)

(d) Other civil rights, in particular:

(...)

(...)

(vii) The right to freedom of thought, conscience and religion." International Regulations on conscientious objection at the regional level. The right to freedom of thought, conscience, and religion is also recognized in regional human rights instruments. The Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, in Article 9 states:

"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others." The Charter of Fundamental Rights of the European Union (2000/C 364/01), explicitly recognizes conscientious objection; thus, in Article 10 it indicates:

"1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.

2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right." For its part, in the American regional sphere, the American Convention on Human Rights of 1969, indicates:

"Article 6. Freedom from Slavery 2. No one shall be required to perform forced or compulsory labor. (...)

3. For the purposes of this article, the following do not constitute forced or compulsory labor:

(...) b. military service and, in countries in which conscientious objectors are recognized, national service that the law may provide for in lieu of military service; Article 12. Freedom of Conscience and Religion 1. Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain or to change one's religion or beliefs, and freedom to profess or disseminate one's religion or beliefs, either individually or together with others, in public or in private.

2. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs.

3.

The freedom to manifest one's religion and beliefs shall be subject only to the limitations prescribed by law and which are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others." "Article 27. Suspension of Guarantees 1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under this Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.

2. The foregoing provision does not authorize any suspension of the rights determined in the following articles: (...) 6 (Freedom from Slavery); (...) 12 (Freedom of Conscience and Religion) (...), or of the judicial guarantees essential for the protection of such rights." Likewise, the African Charter on Human and Peoples' Rights of 1981, in Article 8, provides:

"Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of such freedoms." The American Convention expressly recognizes the right of all persons to freedom of conscience and religion, which implies the entitlement to maintain, change, profess, and disseminate one's religion or beliefs. In the regional American sphere, these rights have been the subject of few pronouncements by the Inter-American Court of Human Rights (IACHR Court). In this way, the high court has ruled in relation to freedom of conscience and religion in the context of human rights violations suffered by persons engaged in religious activities (Juan Gerardi v. Guatemala 1982, Dianna Ortiz v. Guatemala 1997, and Loren Laroye Riebe Star, Jorge Alberto Baro´n Guttlein and Rodolfo Izal Elorz v. Mexico 1998). Likewise, the IACHR Court has ruled on freedom of conscience in relation to the censorship of the exhibition of a cinematographic work (Olmedo Bustos et al. v. Chile 2001). In this ruling, the IACHR Court recognized that the right to freedom of conscience and religion is about the protection so that persons may maintain, change, profess, and disseminate their religion or beliefs. This right is one of the foundations of a democratic society and, in its religious dimension, constitutes a transcendental element in the protection of the convictions of believers and their way of life. In the American sphere, the right to freedom of conscience and religion may not be suspended. However, the freedom to manifest one's religion and beliefs may be limited. For these limitations to be legitimate, it is required that they be prescribed by law, as well as being necessary to protect public safety, order, health, or morals, or the rights and freedoms of others. Similarly, from the pronouncements of the IACHR Court, it is understood that the right to freedom of conscience and religion can be violated through, for example, denial of entry to the country of origin; arbitrary detention and hasty expulsion from a country; violation of the right to due process; surveillance; threats; kidnapping and torture perpetrated by State agents to punish or truncate the religious activities of persons (Juan Gerardi v. Guatemala 1982, Dianna Ortiz v. Guatemala 1997, and Loren Laroye Riebe Star, Jorge Alberto Baro´n Guttlein and Rodolfo Izal Elorz v. Mexico 1998). The American Convention on Human Rights does not recognize the right to conscientious objection as such (although it does mention conscientious objection to mandatory military service), but rather this derives autonomously from the right to freedom of conscience (Article 12 of the American Convention). Conscientious objection derives from the right to freedom of conscience interpreted in conjunction with the provision stating that national or alternative service established by domestic laws that admit conscientious objection does not constitute forced or compulsory labor (Article 6.3.b American Convention). That is, freedom of conscience only protects conscientious objection in the military sphere in cases where domestic legislation admits it (Cristián Daniel Sahli Vera et al. v. Chile 2005, Alfredo Di´az Bustos v. Bolivia 2005, and Xavier Alejandro Leo´n Vega v. Ecuador 2006).

• 3)Specific Analysis of the Matter Consulted The petitioners consider that Article 23, subsection g) of the "PUBLIC EMPLOYMENT FRAMEWORK LAW" bill, being processed under legislative file No. 21.336, which establishes the possibility of conscientious objection in training and education processes, violates the principles of legality and legal certainty, proportionality, and reasonableness. They consider that said precept conflicts with the Law of the Constitution, insofar as it allows public employees to invoke conscientious objection in order to not receive training and instruction that the State has deemed mandatory, violating the principles of legality and legal certainty, proportionality, and reasonableness by not regulating the conditions, parameters, and restrictions that prevent the violation of fundamental human rights encompassed within Conventional Law and fully recognized by our legal system. They point out that, by means of a simple sworn statement (declaración jurada), public employees may inform of a right to conscientious objection when the content of training and education programs violates, in their judgment, their religious, ethical, or moral convictions; it is an entirely broad rule, which will allow, by appealing to entirely subjective criteria, any person to refuse to be trained on core topics of Public Administration. In that sense, they consider that it is not possible to appeal to conscientious objection to promote inequality, mistreatment, and discrimination from a position of power. As noted, this Constitutional Court has ruled on conscientious objection in various areas, encompassing education and the workplace. Among the early pronouncements, a formulation derived from Articles 28 and 75 of the Political Constitution is highlighted, understood as an ad extra manifestation of freedom of conscience and freedom of religion, which, like any exteriorization or manifestation, must be presented within the limitations established by law, whether by constitutional norm or legal norm (see judgment No. 3173-93 of 2:57 p.m. on July 6, 1993). This position has permitted the resolution of conflicts of constitutional significance regarding conscientious objections filed in the educational and labor spheres. In that sense, this Court has held the view that conscientious objections arise from a conflict between a legal precept and a personal conviction. Likewise, it has been admitted that this objection may be formulated against provisions of any nature, whether normative, public policy, or contractual, insofar as they affect a person's convictions. In the bill under consultation, it is clear that the proposed normative precept would allow an employee to invoke a conscientious objection for the purpose of applying an exemption from mandatory training or an educational course, considering it contrary to their religious, ethical, and moral convictions. In that sense, the petitioners (cumulative consultations: file No. 21-011713-0007-CO and file No. 21-012118-0007-CO) state that: 1. The purpose of not receiving training and instruction that the State has deemed mandatory violates the principles of legality and legal certainty, proportionality, and reasonableness by not regulating the conditions, parameters, and restrictions that prevent the violation of fundamental human rights encompassed within Conventional Law and fully recognized by our legal system. 2. That, by means of a simple sworn statement, public employees may inform of a right to conscientious objection when the content of training and education programs violates, in their judgment, their religious, ethical, or moral convictions; it is an entirely broad rule, which will allow, by appealing to entirely subjective criteria, any person to refuse to be trained on core topics of Public Administration. 3. That the formulation allows, in an open and unregulated manner, the possibility for public employees to refuse to receive technical training and instruction that are mandatory and necessary for the exercise of the position they hold with the mere communication via sworn statement, which could be considered an abusive exercise contrary to the human rights of other citizens. Analyzing the articles of the bill under consultation, a cluster of rights conflicts, both those of the employees and those of the citizens who receive services from these public servants. 4. That public employees, in order to exercise their functions in a probative, efficient, and effective manner, necessarily require having the technical and administrative knowledge that allows them to perform their functions. 5. Furthermore, there is an obligation of the State to train employees so that state operation aligns with the parameters of public service provision that must be guaranteed to citizens. 6. They question how a public employee can determine, prior to receiving training, that it violates their personal beliefs or convictions. 7. They allege that including conscientious objection within this bill could render it unconstitutional to the extent that the State would allow employees to disregard the fulfillment of public powers, which are mandatory and which someone must perform. 8. In addition, this constitutional body has also said that employees, when assuming a position in which they must perform certain acts, are obligated to fulfill them without a right to conscientious objection, insofar as they have agreed to exercise the public position in accordance with the law in force at the time of their appointment. 9. The refusal to receive training and to be instructed on topics consistent with their position could violate, for example, the right of the citizen to receive adequate healthcare, a correct service from the bodies that administer justice, or a biased or mistaken message from educational institutions. 10. Considering conscientious objection as a mere procedure without major conditions and restrictions, without any technical seriousness, only to polemicize and polarize Costa Rican society, is contrary to the human rights recognized by the Inter-American Court of Human Rights, and contradicts the obligation that the State has and must guarantee.

Regarding the first claim made. The petitioners indicated that if employees do not receive training that the State has deemed mandatory, the principles of legality and legal certainty, proportionality, and reasonableness are violated by not regulating the conditions, parameters, and restrictions that prevent the violation of fundamental human rights encompassed within Conventional Law and fully recognized by our legal system. In this regard, it should be noted that the scope of the norm is delimited, in this bill, so that the public servant does not receive training they consider contrary to their religious, ethical, and moral convictions. Therefore, the petitioners' reasoning in the indicated sense would not be valid, firstly, because the condition and scope are clearly delimited to a specific situation, in this case, mandatory training, and; secondly, because it does not follow from this that the exercise of conscientious objection violates the fundamental or human rights of persons. In that sense, it should be recalled that conscientious objection has been the valid mechanism for a person to exercise other rights, such as freedom of conscience and freedom of religion (Constitutional Article 75), which, understood in harmony with the legal system, their exercise would be limited by the rights of third parties (Constitutional Article 28). In that sense, in judgment No. 2020-001619 of 12:30 p.m. on January 24, 2020, it was stated: "… conscientious objection has been conceptualized as a fundamental right of every person to refuse to comply with a duty, which is found in the legal system, because the respective norm is incompatible with their beliefs or convictions, which are based, as a general rule, on religious, moral, or ideological convictions. It is maintained that this right is a logical and necessary derivation of freedom of conscience, and constitutes one of its external manifestations." Regarding the second claim made. The petitioners indicate that, by means of a simple sworn statement, public employees may inform of a right to conscientious objection when the content of training and education programs violates, in their judgment, their religious, ethical, or moral convictions; it is an entirely broad rule, which will allow, by appealing to entirely subjective criteria, any person to refuse to be trained on core topics of Public Administration. In relation to the mechanism used for the purpose of communicating conscientious objection, contrary to what the petitioners indicated, this Chamber considers it to be suitable, insofar as the legislative project requires a sufficient action by the public servant, as it imposes the obligation to inform of the conscientious objection by means of a sworn statement. It is not a lax mechanism; on the contrary, it requires action through a declaration, which must be "sworn" (jurada), and therefore has administrative and even criminal consequences when false data are stated under oath. The sworn declaration is an instrument widely used in public administration for matters of varied nature, for example, we find the declaration of assets that public employees annually make before the Contraloría General de la República; it is also used in Public Universities and other entities when professors and/or officials must render information under that format. The Chamber does not consider it to be a weak or inappropriate instrument for the exercise of the right protected in Article 23, subsection g) of the bill under study, since that oath is in reality a promise to tell the truth, and therefore the person making it assumes responsibility in case their statements do not conform to the truth. The use of the sworn statement in public administration has permitted the streamlining of processes and procedures for the benefit of the user but also of Public Administration. It is for this reason that it is not valid to point out that it is a document with completely subjective criteria. Regarding its practical application, it is important to note that, in accordance with the jurisprudential precedents of this Court, considering what was stated in judgment No. 2012-010456 of 5:27 a.m. on August 1, 2012, conscientious objection may be exercised through "...an agile and simple mechanism," and therefore, the Chamber is of the opinion that the sworn statement would perfectly fit because it is an agile and simple mechanism. On the other hand, regarding the subjective scope, this Chamber has already indicated that the objection is appropriate not only in the face of religious convictions, broadening the scope to moral or ideological convictions (see judgment No. 2020-001619 of 12:30 p.m. on January 24, 2020), considering that it is perfectly possible for a person to issue a sworn statement to refer to those moral or ideological convictions in order to object in the terms of subsection g) of Article 23, without having, in that document, the obligation to demonstrate or provide a profuse explanation of such convictions -since that could touch upon their internal and personal sphere- but, at the same time, this does not prevent them from informing the Administration of their objection due to their moral or ideological convictions through a sworn statement. Similarly, it should be recalled that "...the majority of the Court considers that in a pluralistic society, it is necessary for the Law of the Constitution -values, principles, and norms- to authorize persons to have distinct visions of political, economic, social, and cultural phenomena, otherwise an authoritarian or totalitarian society would result, in which there is a homogenization or standardization of thought. In that sense, Human Rights Courts are not called upon to impose a single thought, but rather, through a balancing test and in application of the principles of reasonableness and proportionality, they must allow the maximum exercise of fundamental rights that are in conflict, in such a way that they coexist respectfully. It must be kept in mind that, in cases of conflict of fundamental rights, the Constitutional Court is not a promoter of a particular ideology or worldview, for when it acts in that way, it abandons its mission and, consequently, paradoxically, ends up trampling the fundamental rights of the person it must protect" (see judgment No. 2020-001619 of 12:30 p.m. on January 24, 2020). In light of this jurisprudential citation, it is valid then that a person who thinks differently may express their objection through a sworn statement by which they are not obligated to openly and explicitly expose their convictions because they wish to safeguard their privacy, but this instrument would allow them to defend their position and demand respect for it. Now, if the recipient of that document considers that it might contain false or inaccurate statements, it should be recalled that the system also provides for that possibility, and for this purpose, there exists an entire legally established procedure through which the veracity of the statements may be verified, and it will be there, in the corresponding process, where it must be proven that the person did not tell the truth, and where the corresponding sanctions may be applied, including criminal ones, but that possibility of making false statements likewise cannot become an obstacle to the use of this instrument, since, as stated, it is presumed to be true.

It should also be said that it is a simple mechanism because it does not involve a cumbersome process, while being effective and even discreet, which allows the person to exercise their right to conscientious objection and demand respect for it, but also facilitates safeguarding their confidentiality and privacy, especially considering cases of persons who do not wish to reveal their gender identity, their religious beliefs or agnosticism, their personal convictions, among others.

It is thus considered that the subjective breadth is the guarantee of inclusion and recognition of the diverse worldviews, beliefs, and convictions that arise in a democratic society. Therefore, the mechanism devised by the article under consultation, through the use of the sworn statement, is considered to conform to that subjective breadth without harming other rights of the person, so it is not contrary to the Law of the Constitution.

Regarding the third claim made. The petitioners indicated that the formulation proposed in the bill under study allows, in an open and unregulated manner, the possibility for public employees to refuse to receive technical training and instruction that is mandatory and necessary for the exercise of the position they hold, all with the mere communication via sworn statement, which in the opinion of the petitioners could be considered an abusive exercise contrary to the human rights of other citizens. Analyzing the articles of the bill under consultation, it can be affirmed that several rights come into play, both those of the employees and those of the citizens who receive services from these public servants. In this regard, it should be noted that public servants are hired based on the constitutional principle of proven suitability (idoneidad comprobada), meaning that, in principle, the professional and technical training of the employees is previously verified regarding the requirements to perform in various positions. It should be recalled that the public servant regime is based on two fundamental pillars: proven suitability upon entry and job stability. Therefore, the consideration that a professional not attending a course directly impacts their training would be a situation that should be analyzed in light of a specific case. Now, it is also pertinent to mention that every public servant has a constitutional calling to provide quality service in the exercise of their position, and, should this person fail to comply with that mandate, they could incur a disciplinary infraction and, consequently, bear the corresponding responsibility, for which all specific factual circumstances must be assessed on a case-by-case basis. Hence, if a servant were to engage in abusive or arbitrary conduct, in any situation, including conscientious objection, they could be the direct recipient of the responsibilities indicated by law in all those cases where there is no valid exemption or justification for responsibility; however, all this involves predictions or mere speculations that cannot be determined with certainty at this moment, and which will be established only when the specific situation is assessed; therefore, solely based on the article under study, it cannot be affirmed that the current wording violates the Law of the Constitution.

Regarding the fourth claim made. The petitioners indicated that public employees, in order to exercise their functions in a probative, efficient, and effective manner, necessarily require having the technical and administrative knowledge that allows them to perform their functions. As was indicated, selection and appointment processes are based on the choice of persons qualified to hold public positions, for which a series of academic, technical, and attitudinal requirements, among others, are requested in order to guarantee efficiency in the provision of public services. In the event that a public servant ceased to meet the requirements that were initially requested by the employer—in this case, the State—there is the possibility of initiating the necessary proceedings in order to guarantee maximum efficiency and continuity of services, such as, for example: transfer of personnel, reorganization of services, dismissal of the employee, etc., all of the foregoing in accordance with what is established in the laws through the specific channels, whether administrative or jurisdictional.

Regarding the fifth claim made. The petitioners state that there is an obligation of the State to train employees so that state operation aligns with the parameters of public service provision that must be guaranteed to citizens. As for the training of public employees, it should be noted that Article 1 of Ley 6362, Ley de Capacitación personal Administración Pública, states:

"Article 1.- The professional development and training of Public Administration personnel in administrative sciences and techniques are declared to be of public interest, as the most suitable means to promote its comprehensive improvement." Furthermore, Article 5 of the same regulatory body provides:

"Article 5.- Professional development and training constitute a right and a duty of Public Administration employees. As a right, it implies that every servant who meets the conditions required to participate in professionalization and training programs be given the opportunity to participate in them. As a duty, the obligation to undergo those in-service training and technical improvement programs demanded by the proper performance of the position." There is certainly a recognized public interest in the training of public servants with the intention of promoting the comprehensive improvement of Public Administration. In relation to the bill under consultation, it should be noted that the objection clause is not antagonistic to the provisions of the Ley de Capacitación personal Administración Pública, insofar as it is based on the exercise of the freedoms of conscience and religion of persons who invoke an objection to mandatory training or instruction on the grounds of being contrary to religious, ethical, or moral convictions.

Regarding the sixth claim made. The petitioners question: how can a public employee determine, prior to receiving training, that it threatens their personal beliefs or convictions? In relation to this point, it is clear that the proposed regulation does not establish a temporal condition in which conscientious objection may be raised, which allows the objection to be raised before or during the development of the training or course. It is clear that said objection could only be raised against training or education processes that are mandatory, in which case, upon informing the servant of the obligation and the name of the program or course as well as its contents, they could validly raise the objection, insofar as one could infer from the title or content that it would conflict with their personal convictions. It is not necessary for the servant to begin a course in order to later exercise conscientious objection; this would be as inappropriate as forcing a non-believer to receive religion classes so that they can later indicate whether these are contrary or not to their convictions.

Regarding the seventh claim made. The petitioners allege that including conscientious objection within this bill could render it unconstitutional to the extent that the State would allow employees to disregard the fulfillment of public powers, which are mandatory and which someone must perform. One of the constitutional obligations of public administrations is the swift and efficient provision of public services. In that sense, upon recognizing conscientious objection, the administration is under the obligation to arrange what is necessary so that the administered parties do not see their fundamental rights diminished by objecting employees. This was indicated in judgment 2020-001619 of 12:30 p.m. on January 24, 2020, stating that "...in these cases, two fundamental rights are reconciled; however, the essential content of the first -equality and non-discrimination- is not emptied, since in a case of conscientious objection by a judge regarding performing a marriage ceremony, the Superior Council of the Judicial Branch must adopt all necessary measures so that the public service of the Administration of Justice is provided to same-sex couples under the same conditions and response times as it provides to heterosexual persons." The norm in the bill under consultation does not properly refer to the provision of public services, given that its scope is limited to mandatory courses or training. In that case, it could not be understood as the disregard of constitutional mandates and the obligations of the Administration, since it would only entail the exemption of the objecting person, with the necessity of adopting all necessary measures so that the public service is provided under the same conditions and service response times by non-objecting servants.

Regarding the eighth claim made. The petitioners point out that the Constitutional Chamber has said that employees, when assuming a position in which they must perform certain acts, are obligated to fulfill them without a right to conscientious objection, insofar as they have agreed to exercise the public position in accordance with the law in force at the time of their appointment.

Regarding conscientious objection in the workplace, this Chamber has ruled on several occasions and has protected the freedoms of conscience and religion of public servants in that regard. In judgment No. 2015-011897 of 11:41 a.m. on July 31, 2015, the Constitutional Chamber protected an officer of the Public Force who professes Judaism, stating that “…the respondents were under an obligation to seek the least burdensome solution for the protected individual, so that the provisions of Article 75 of the Political Constitution would not be affected; however, the defendants did not proceed in that manner, since the measure adopted entailed an injury to the religious freedom of the person protected by amparo, and, moreover, was not proportional to the purpose for which it was adopted, since, as indicated above, the fact that the protected individual had been permitted to keep his day of rest did not entail a serious violation of the public interest. That is to say, between two possible solutions, the one most burdensome for the fundamental right was chosen and, consequently, it was violated, in addition to the fact that the measure agreed upon by the appellant authority (SIC) is neither proportional nor just in itself, and therefore there is no alternative but to grant the amparo petition.” The Inter-American Court of Human Rights recognized the right to freedom of conscience and religion, so that individuals may keep, change, profess, and disseminate their religion or beliefs. This right is one of the foundations of democratic society and, in its religious dimension, constitutes a transcendental element in the protection of believers’ convictions and their way of life (Juan Gerardi vs. Guatemala 1982, Dianna Ortiz vs. Guatemala 1997, and Loren Laroye Riebe Star, Jorge Alberto Barón Guttlein and Rodolfo Izal Elorz vs. Mexico 1998). It is clear that freedom of conscience and religion finds protection in Article 12 of the American Convention, which states:

Article 12. Freedom of Conscience and Religion.

“1. Everyone has the right to freedom of conscience and religion. This right implies the freedom to keep one’s religion or beliefs, or to change one’s religion or beliefs, as well as the freedom to profess and disseminate one’s religion or beliefs, individually or collectively, both in public and in private.

(…)” By virtue of the foregoing, while it is true that a public servant, upon assuming a position in which they must perform certain acts, is clearly obligated to fulfill it, the truth is that the performance of their duties does not nullify their fundamental or human rights; thus, it would not be admissible to think that by accepting the position, the servant ipso facto waives these rights. It is clear that these are rights which, by their nature, are inalienable given that they protect human dignity.

Regarding the ninth allegation formulated. The refusal to receive training and to be educated on matters consistent with their position could violate, for example, the right of the citizen to receive adequate health care, correct service from justice-administering bodies, or a biased or mistaken message from educational institutions. As already indicated, conscientious objection must be differentiated from related concepts such as civil disobedience, given that the objector’s intention is not to obstruct the social fulfillment of the legislative precept—as would be the case in ceasing to provide health services or the administration of justice—but rather to obtain respect for their own conscience. The difference lies mainly in the purpose of the action. The main objective of civil disobedience is the modification of a normative precept or public policy. Likewise, a distinction must be made between conscientious objection and evasion of conscience; the distinction refers to the publicity of the act and not to its purpose. In that sense, conscientious objection is manifested publicly, as the objector must communicate their refusal to superiors in order to obtain the exemption. Conversely, evasion of conscience is identified by its essentially secret nature; for example, a person who departs from normative dogmas to secretly undertake an action understood as a moral duty, such as a physician who practices an abortion procedure clandestinely with the intention of helping the mother. As mentioned in the previous section, when faced with the exemption of a public servant, the Administration has a constitutional and legal obligation to take the necessary measures to ensure that the fundamental rights of those administered are not diminished by objecting officials, ensuring the promptness and quality of the services provided. Likewise, it could not be assumed that, in the absence of specific training, the public servant would issue a biased opinion or cease to provide a service, since this could still occur even with training; conversely, the opposite could also not be assumed. Consequently, in this regard as well, no violation of the Law of the Constitution is observed.

Regarding the tenth allegation formulated. Considering conscientious objection as a mere formality without greater conditions and restrictions, without any technical seriousness, solely to polemicize and polarize Costa Rican society, is contrary to the human rights recognized by the Inter-American Court of Human Rights and runs counter to the obligation that the State has and must guarantee. As already mentioned, this Chamber considers that the procedure related to the objection clause is suitable, insofar as the legislative bill requires sufficient action on the part of the public servant, consisting of informing the conscientious objection by means of a sworn statement. This is consistent with what was indicated by this Court in judgment No. 2012-010456 of 5:27 a.m. on August 1, 2012. Contrary to what the consulting parties indicate, the exercise of conscientious objection does not seek to polemicize or polarize society, but rather, on the contrary, seeks respect for the beliefs of the public official and, therefore, on this point, no injury to the Law of the Constitution is observed either.

• 4)Conclusion By virtue of the foregoing, it can be concluded that conscientious objection is understood as an ad extra realization of the freedoms of conscience and religion, which manifests as a limit against public authorities so that they do not interfere with personal convictions. Specifically, it refers to the possibility of departing from a legal duty or mandate when these conflict with or oppose the objector’s convictions, without the objector being held liable. For their part, freedom of thought and conscience stand as fundamental elements that shape the identity of believers and their conception of life, as well as for atheists, agnostics, skeptics, and the indifferent. In the bill under consultation, it is clear that the proposed normative precept would allow an official to allege a conscientious objection so that an exemption is applied to a mandatory training or educational course because it is considered contrary to their religious, ethical, and moral convictions. In that sense, it must be remembered that conscientious objection has been the valid mechanism for a person to exercise other rights, such as freedom of conscience and freedom of religion (Article 75 of the Constitution) which, understood in harmony with the legal system, would have their exercise limited by the rights of third parties. Regarding the mechanism proposed in the norm under consultation for communicating conscientious objection, this Chamber considers it suitable, insofar as the legislative bill requires sufficient action on the part of the public servant, since it imposes on them the duty to inform of the conscientious objection by means of a sworn statement. Therefore, regarding Article 23(g) of the bill for the “LEY MARCO DE EMPLEO PÚBLICO,” being processed in legislative file No. 21.336, the consultation is resolved in the sense that it does not present defects of unconstitutionality, because it adequately guarantees the right to conscientious objection..." LBH10/22 ... See more Content of Interest:

Content type: Majority vote Branch of Law: 3. MATTERS OF CONSTITUTIONALITY CONTROL Topic: LABOR Subtopics:

NOT APPLICABLE.

017098-21. LABOR. OPTIONAL LEGISLATIVE CONSULTATION OF CONSTITUTIONALITY, REGARDING THE BILL CALLED “LEY MARCO DE EMPLEO PÚBLICO.” LEGISLATIVE FILE NO. 21.336.

" XVI.- Regarding the consultation on violation of the right of collective bargaining and the right of unionization.- 1) Aspects Consulted The consulting parties consider that Articles 43 and Transitory Provision XV of the bill for the “LEY MARCO DE EMPLEO PÚBLICO,” being processed in legislative file No. 21.336, violate the fundamental right to negotiation and the right of unionization. Said norms expressly state the following:

“ARTICLE 43- Collective negotiations Through collective negotiation, new obligations or rights may not be generated, nor may labor conditions be varied, regarding:

• a)Salaries or remunerations and varying or modifying matters concerning the salary scale or components of the global salary column.
• b)The creation of incentives, compensations, or salary bonuses.
• c)Matters where an additional disbursement of resources must be made that affects the national budget or that of a public institution, through expenses that do not conform to the principles of reasonableness and proportionality developed by the Constitutional Chamber of the Supreme Court of Justice.
• d)Prohibitive norms contained in this law.
• e)The creation of new positions.

The conditions agreed upon in collective negotiation instruments must respect the constitutional principles of reasonableness, proportionality, legality, equality, and budgetary legality. For each negotiation session, minutes shall be drawn up, which shall be published at the latest upon conclusion of the process, together with closing minutes that shall contain the full text of the clauses that were negotiated and shall indicate which clauses of the draft were discarded or could not be negotiated due to lack of agreement on them.

In the case of norms that, by their nature or their impact on the principle of budgetary legality, require legislative or regulatory approval, their effectiveness shall be conditioned upon inclusion in the budget law or in the respective regulations, as well as upon approval by the Contraloría General de la República, when it affects institutional budgets whose ordinary and extraordinary budgets or budget modifications require approval by the latter entity.” “TRANSITORIO XV- Upon the entry into force of this law, the heads of public entities shall be obligated to denounce collective agreements upon their expiration.

In the event that a decision is made to renegotiate the agreement, it must be adapted in all its aspects to what is established in this law and other regulations issued by the Executive Branch.” The consulting parties consider these norms to be unconstitutional, in that collective negotiation is prohibited in salary matters, and other topics, encompassing practically everything that could be negotiated, thus emptying the content of any possibility of an agreement seeking to improve the working conditions of workers, in contravention of the provisions of Article 62 of the Constitution, Convention No. 98 of the International Labour Organization (ILO) concerning the Right of Organizing and Collective Bargaining, 1949, Articles 4 and 6; the American Convention on Human Rights, Pact of San José, Costa Rica, Article 2; the International Covenant on Economic, Social and Cultural Rights, Articles 2 and 8; the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of San Salvador, Article 5; Article 7 of the Political Constitution. In addition to Article 690 of the Labor Code. All of this also in violation of the principle of progressivity. They maintain that Article 43 of the bill constitutes an excessive and disproportionate restriction on the right of collective bargaining by prohibiting negotiation on any matter, not only salary-related, but also any matter that implies an additional disbursement in budgets, or the creation of positions, or that covers prohibitive matters under this law, as vacations could be understood (the ILO has referred to vacations as part of the matters to be negotiated collectively, see Recommendation No. 7). The provisions contained in Article 43 and Transitory Provision XV of the bill violate its enjoyment by imposing unreasonable and abusive limitations contrary to the principle of conventionality guaranteed by the American Convention on Human Rights and the International Covenant on Economic, Social and Cultural Rights and its Protocol. Although constitutional jurisprudence has recognized that the right to collective bargaining is subject to controls of constitutionality and legality, to the principles of reasonableness and proportionality, and to the proper use of public funds, such controls cannot lead to emptying this fundamental human right of its content, in violation of the principle of freedom of association, as the bill proposes. Regarding the obligation of institutional heads to denounce collective agreements upon their expiration, the Constitutional Chamber already ruled on the unconstitutionality of that provision when resolving the optional consultation regarding the bill for the Ley de Fortalecimiento de las Finanzas Públicas, processed under file 20580, which contained an identical norm; however, they insist on including it again in bill 21336, by stating: “I) In relation to the mandatory denunciation of the collective agreement upon its expiration (Transitory Provision L of Title V ‘Transitory Provisions’), in application of the Political Constitution (Articles 62 and 74), the International Conventions of the International Labour Organization, and the jurisprudence of this Court, it is interpreted that each head of public entities has the authority to denounce or not the respective collective agreement, in accordance with the legal system in force.” (Resolution No. 2018-19511). Thus, they consider that the provisions of Article 62 of the Political Constitution and Convention No. 98 of the International Labour Organization (ILO) concerning the Right of Organizing and Collective Bargaining, 1949, Articles 4 and 6; the American Convention on Human Rights, Pact of San José, Costa Rica, Article 2; the International Covenant on Economic, Social and Cultural Rights, Articles 2 and 8; the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of San Salvador, Article 5; Article 7 of the Constitution, which grants them superior rank over the law, and the constitutional principles of legality and conventionality are violated, since collective bargaining is a fundamental human right.

To examine these arguments, the first thing that must be recalled is what this Chamber has established in reiterated jurisprudence on the scope and limitations of the fundamental right of collective bargaining, for the purpose of examining whether, indeed, the norms of the bill under consultation violate its essential content.

• 2)Jurisprudential Precedents on the Fundamental Right to Collective Bargaining The trilogy of fundamental rights derived from Collective Labor Law are: the right to unionization, the right to collective bargaining, and the right to the effective resolution of collective conflicts (see judgment No. 2006-03002 of 10:40 a.m. on March 9, 2006). These rights aim to achieve and provide a solution to the workers’ need to group together to compensate for the real inferiority in which they find themselves when acting in isolation, vis-à-vis the employer and before the generic regulation of their rights in the Labor Code. Specifically, regarding collective agreements, Article 62 of the Political Constitution contemplates their constitutional recognition, their force of law, and the need for such agreements to conform to what the law provides. Indeed, this constitutional norm states that:

“Article 62. Collective labor agreements concluded, in accordance with the law, between employers or unions of employers and legally organized unions of workers shall have the force of law.” The location of this norm in the Chapter on Social Rights and Guarantees of the Political Constitution and its content indicate that what is sought to be guaranteed is the right to “collective labor bargaining.” On this point, in judgment No. 2020-12800 of 11:01 a.m. on July 8, 2020, this Court highlighted the three aspects derived from this norm, namely: a) the recognition of collective bargaining as a constitutional right; b) that the negotiations thus concluded have the force of law; and c) that such agreements must be concluded in accordance with the law. All of which is, moreover, ratified by the Inter-American Court of Human Rights, through Advisory Opinion OC-27/21 of May 5, 2021, when it states the following:

“94. In consideration of the foregoing, and by way of corollary, the Court deems it pertinent to note that the right to collective bargaining, as an essential part of freedom of association, is composed of various elements, which include, at a minimum: a) the principle of non-discrimination against the worker in the exercise of union activity, since the guarantee of equality is a prerequisite for negotiation between employers and workers; b) the non-interference, direct or indirect, of employers in workers’ unions in the stages of constitution, functioning, and administration, as this may produce imbalances in the negotiation that undermine the objective of workers to improve their living and working conditions through collective negotiations and other lawful means; and c) the progressive encouragement of processes of voluntary negotiation between employers and workers, allowing for the improvement, through collective contracts, of employment conditions.” Specifically regarding the right to collective bargaining in the public sector, one may first cite judgment No. 1696-92 of 3:30 p.m. on August 23, 1992, in which this Chamber declared the unconstitutionality of the mechanisms of direct settlement, conciliation, and arbitration for officials who carry out public administration duties, but recognized that it is valid for laborers, workers, or employees who do not participate in the public administration duties of the Administration to enter into collective labor agreements; thus, entities with an employment regime of a labor (non-public) nature, such as, for example, State companies, may indeed bargain collectively. This criterion is reiterated in several subsequent judgments (see No. 2000-07730 and No. 2000-04453). Later, in judgment No. 2020-008396 of 9:20 a.m. on May 6, 2020, this Court resolved the following regarding collective agreements in the public sector, ratifying that they are permitted only in the case of workers who do not perform public administration duties:

“V.- On collective bargaining in the public sector.- As is clear from the jurisprudence of this Chamber, as a general principle, the labor relationship established between the State (including Municipalities) and its workers is governed by Public Law—and not by the Labor Code—a relationship that has been termed public or statutory employment. Now, it is stated that, as a general principle, State workers are subject to a public employment regime because an exception has been made, namely, workers who do not participate in public administration duties, as they are workers of State enterprises. Thus, it has been established that workers who do not participate in public administration duties, being subject to ordinary law, may resort to the procedures for resolving collective conflicts of an economic and social nature provided for in the Labor Code (Resolution No. 94-3053) and to arbitration under certain limitations (Resolution No. 92-1696); and may conclude collective agreements (Resolution No. 00-4453), although also under certain limitations. Thus, the possibility of collective bargaining for workers who do not participate in the public administration duties of the Administration (employees of State enterprises or economic services, in charge of activities subject to ordinary law), has been repeatedly recognized by this Chamber starting from judgment number 03053-94, a criterion subsequently reiterated or ratified in judgments 2000-07730 and 2000-04453. The rest of the State employees, who therefore do participate in public administration duties (these being, in general, not only the institutional heads and legal and financial control bodies as the Union representative claims, but all those workers who exercise public powers), can neither resolve their collective labor conflicts through arbitration (Resolution No. 92-1696), nor can they conclude collective agreements (Resolution No. 00-4453), making the conclusion of collective agreements celebrated in the public sector unconstitutional when it involves personnel governed by a statutory relationship. This implies that collective bargaining cannot be tolerated in the public sector, in accordance with Articles 191 and 192 of the Constitution. In conclusion, collective agreements are not entirely prohibited in the public sector but are permitted only in the case of workers who do not perform public administration duties, that is, those covered by Articles 3, 111, and 112 of the Ley General de la Administración Pública. The determination in each specific case of which workers are covered by said norms is a matter outside this constitutional jurisdiction and corresponds to legal practitioners.” (judgment No. 2013-14499) IV.- On the challenged regulations. (…) it must be reiterated that there is no absolute prohibition on concluding collective agreements in the public sector or that these are per se unconstitutional, since, as already indicated, there is a group of public sector employees who may validly conclude collective agreements in accordance with the Constitution; specifically, it is “constitutionally possible to apply the institution of collective agreements… in the so-called State enterprises or economic services and in those nuclei of personnel of public institutions and entities in which the nature of the services provided do not participate in public administration duties” (Vote No. 2000-004453. The highlighting does not correspond to the original). Thus, regarding the collective agreements challenged in this action, these are constitutionally valid with respect to the referred nuclei of personnel who work for or provide services to the entities or institutions in question. However, as already indicated in the partially transcribed precedent, it corresponds to:

“(…) each Public Administration to define which are those officials covered by the collective agreement or with the possibility of negotiating or agreeing upon this type of collective agreements, all in accordance with the criteria of the Public Administration, or that of the Courts of Justice, according to the corresponding decision.” (Vote No. 2015-7221).” With regard to the content of collective labor bargaining, this Chamber has referred to so-called normative clauses (which regulate the interaction arising from the worker’s provision of service and the payment of salaries or remunerations by the employer), configuration clauses (which specify the personal, temporal, and spatial scope of the agreement and include the employer’s disciplinary power and the exercise of their right to organization and direction), and obligational clauses (which create rights and obligations between the parties and that primarily concern social peace and the duty to execute the agreement, such as the creation of labor relations boards, installation of training centers), in the following terms:

“Within the specialty of the matter, the parties can only validly agree upon what they can legally fulfill, due to the contractual nature of the collective agreement, and as a general principle, it is admitted that its scope be the working or labor conditions, without this purpose being extended to regulate extra-labor matters. In other words, the collective agreement’s purpose is to regulate, on the one hand, the conditions to which the individual labor relations must be subject, or what is the same, the so-called normative clauses, which regulate the interaction that arises from the worker’s provision of service and the payment of salaries or remunerations by the employer, as stated by the majority of the labor law doctrine, and this leads to the conclusion that everything that could be the subject of an individual employment contract may be the subject of a collective agreement; also, within this content, the so-called configuration clauses may be the subject of collective bargaining; these specify the personal, temporal, and spatial scope of the agreement and include those that limit or establish procedures for the exercise of the employer’s rights, especially with regard to disciplinary power and the exercise of their right to organization and direction. Secondly, the obligational clauses, which are those that create rights and obligations between the parties and that primarily concern social peace and the duty to execute the agreement, such as the creation of labor relations boards, the institution of employer benefits destined for social works within the labor community, installation of training centers, among others. By way of summary, we will say that collective agreements, by constitutional provision, have as their immediate purpose the review, inter partes and with the force of law, of the minimum content of the legal benefits that govern labor relations, all with the aim of improving or exceeding that essential minimum.” (see judgment No. 2007-18485 of 6:02 p.m. on December 19, 2007).

On this same topic, in judgment No. 2020-12800 of 11:01 a.m. on July 8, 2020, this Chamber held that a right greater than that recognized by law can be acknowledged:

“Likewise, it is not possible to argue that through collective bargaining, greater rights can be recognized for the parties, which is certainly the case, but it must be noted that this involves greater concessions regarding validly and legitimately recognized rights, which is not the same as limiting the free negotiation of one of the parties involved. In other words, a collective agreement can recognize a right greater than that recognized by law, but cannot limit it. And, in any case, that greater recognition, in accordance with what was stated in the preceding recital, must also be subject to the Law of the Constitution, in order to achieve the legal harmony upon which a legal system depends.” (highlighting is not part of the original).

For its part, in judgment No. 2008-003935 of 2:48 p.m. on March 12, 2008, this Chamber pointed out that Public Administration entities may grant certain incentives or benefits to their workers, which will be constitutionally valid only when they are based on objective reasons that also translate into improved provision of the public service. In that regard, it stated:

“In other words, this Chamber has not questioned that any Public Administration entity may recognize certain incentives or benefits for its workers, since this may constitute a suitable measure to remunerate a special requirement of the job position, involving certain professional qualifications or skills for those who hold it, or to compensate for a particular risk that characterizes the performance of such functions, be it a material risk (for example, physically dangerous tasks) or one of a legal nature (for example, work liable to generate civil liability).” Now, while the right to collective bargaining in the public sector is recognized, through which rights or benefits may be granted or recognized more broadly than legally predefined, there are also limits to such negotiations, insofar as they must coexist with the exercise of the legal powers of public entities and respect the necessary limitations to harmonize public spending with budgetary availability and the sound management of public funds.

Regarding this matter, the Chamber has referred to the limits of collective bargaining, such as the constitutional principles of reasonableness (razonabilidad), proportionality (proporcionalidad), economy (economía) and efficiency (eficiencia), and the law:

“It has also been indicated that, without any detriment to the fact that collective bargaining is a right recognized constitutionally and by international instruments of the International Labour Organization, the truth is that its content is also subordinated to constitutional norms and principles, insofar as the decisions taken therein, in many cases, imply consequences for public finances. Within this context, its adoption and validity is not only subject to the mere verification of the adoption procedure, but also to an analysis of substance, to the extent that its content must conform to constitutional norms and principles because public funds are involved. Thus, the obligations agreed upon by public institutions with their employees, as occurs in this type of bargaining, may be subject to an analysis of reasonableness, economy and efficiency, in order to prevent the rights of the workers themselves from being disproportionately limited or harmed through a collective agreement, or to prevent an abusive use of public funds” (see judgment No. 2021-009580 of 9:15 a.m. on May 12, 2021).

Of particular interest is the mention of judgment No. 2018-19511, not only because it gathers relevant constitutional jurisprudence on the matter, but also because it ratifies that the right to collective bargaining is based on free and voluntary negotiation; and, furthermore, on a minimum or essential content, which is the possibility of negotiating better socioeconomic conditions for workers. The Chamber stated that:

“(…) the right to collective bargaining is based on the possibility of free and voluntary negotiation; and, furthermore, on a minimum or essential content, which is the possibility of negotiating better socioeconomic conditions for workers.

2.4.- Regarding the limits and control of the content of collective agreements: It is clear that said bargaining capacity cannot be unrestricted, as this Chamber has stated on several occasions, but that restriction cannot imply an emptying, by way of law, of the minimum content of that right. The legal restrictions imposed on the right to collective bargaining must be in accordance with the Political Constitution and the relevant International Instruments.

It is in this sense that the resolution by this Chamber in Judgment No. 2000-004453 of 2:56 p.m. on May 24, 2000, must be understood, in which it was stated:

“Sixth: Notwithstanding what has already been expressed, it is important to clarify that even in the public sector in which the application of the institution of collective agreements is constitutionally possible, that is, in the so-called economic enterprises or services of the State and in those personnel nuclei of public institutions and entities in which the nature of the services provided do not participate in public management (gestión pública), in the terms of subsection 2 of Article 112 of the General Public Administration Law (Ley General de la Administración Pública), the Chamber repeats and confirms its jurisprudence to the effect that the authorization to bargain cannot be unrestricted, that is, comparable to the situation in which any private employer would find itself, since through this avenue, current laws, regulations or government directives cannot be dispensed with or excepted, nor can laws that grant or regulate powers of public entities, attributed by reason of normative hierarchy or the special conditions of the Public Administration in relation to its workers, be modified or derogated, a conclusion inferred from Article 112 subsection 3) of the General Public Administration Law and from considering clause XI of judgment No. 1696-92 of this Chamber.” (See in the same sense judgments numbers 2000-006480, 2000-006481, 2000-006482, 2000-006483, 2000-006435, 2000-007730, 2005-006858, 2006-007261 and 2006-17436).

(...)

Thus, with respect to public sector agreements, the Chamber has indicated that current laws, regulations or government directives must be respected, as well as the legal powers of public entities, attributed based on normative hierarchy or the special conditions of the Public Administration in relation to its workers. Furthermore, the limitations required to harmonize public spending with budgetary availability must be respected for the sake of the citizens' right to sound management of public funds, derived from numeral 11 of the Constitution (see Judgment No. 2017-013443 of 9:15 a.m. on August 25, 2017).

It must also be understood that the bargaining faculty is subject to legality and constitutionality controls, in attention to the principles of reasonableness, proportionality and proper use and management of public funds.

(...)

Hence, as an essential part of union freedom (libertad sindical) —and of its counterpart, union action— is the right of workers to collective bargaining, as an instrument for improving their socioeconomic conditions, through incentives, compensations or salary bonuses. This falls within the four rights comprising union freedom: a) freedom to form union organizations; b) freedom to join a union organization; c) freedom to cease belonging to a union organization; and d) freedom of the member to participate democratically within the union; to which must be added the right of every union organization to develop freely with respect to the State and in relation to society, considered as a whole, always within the respective legal framework.

The foregoing implies, of course, as stated, that all those salary components agreed upon through that valid collective bargaining must conform to the constitutional principles of proportionality and reasonableness, as well as to the rest of the legal order. But it is contrary to the Law of the Constitution, specifically to union freedom and the right to collective bargaining, for the legislator to prevent those points from being agreed upon within a collective bargaining and reserved only to formal law.” (emphasis not in original).

Then, regarding the issue of mandatory termination (denuncia obligatoria) of collective agreements, in the same judgment No. 2018-019511 of 9:45 p.m. on November 23, 2018, the Chamber stated the following:

“(…)

But, it must be insisted, the fact that these controls exist cannot lead to emptying the minimum content of the right to collective bargaining, nor to obliging its termination. And, therefore, it is contrary to the very essence of collective bargaining that, even in those sectors where this is constitutionally and legally possible, incentives or compensations, or salary bonuses can only be created through a formal law, emanating from the Legislative Branch, since this, as stated, would empty the content of that right and, therefore, would violate the principle of union freedom, which has been developed by this Chamber through its jurisprudence. …

(…)

Finally, and in relation to the issue of mandatory termination of collective agreements provided for in Transitory Provision L of the consulted bill, (…)

Making it clear that, according to what the ILO has defined, a legal provision that forced one party to conclude a collective agreement with another would be contrary to the principle of free and voluntary bargaining.

In summary, a provision that forces the termination of collective agreements and, on the other hand, prevents them from achieving better conditions, without any modulation, would be contrary to the Law of the Constitution; therefore, the legislator could not, in advance, restrict the possibility of entering into collective agreements between employers and workers, in the public sector where the application of this institution is constitutionally possible, without violating union freedom.” Also, in judgment No. 2020-12800 of 11:01 a.m. on July 8, 2020, it was indicated in what is relevant:

“Under this understanding, a norm in that sense would no longer be merely contrary to the principle of free bargaining, but would clearly also be antagonistic to the principles of reasonableness and proportionality.

It is in this sense that, in the same judgment 2018-19511, the Chamber stated that:

“[E]ach hierarchical head of public entities has the power to terminate or not the respective collective agreement, in accordance with the current legal system.” - emphasis added - In such a way, if the norm now being questioned states, as it indeed does, that both parties to the Collective Labor Agreement of the National University undertake not to unilaterally terminate said Agreement, it is imposing on both parties, not only on the University, but also on the union, a duty that contradicts the constitutional provision on collective bargaining, by preventing both from the free exercise of the bargaining to which they are entitled within a framework of reasonableness and proportionality, and, on the claimaint party, forcing it to be unable to validate, jointly with the union, situations related to the proper use of public funds.

In this sense, the action must be granted, because the aforementioned phrase of the last paragraph of Article 185 of the Collective Labor Agreement of the National University is contrary to the Law of the Constitution, in the terms indicated.

- Conclusion. - Ultimately, since the first part of the last paragraph of Article 185 of the Collective Labor Agreement of the National University is contrary to the Law of the Constitution, the corresponding action is to grant this action of unconstitutionality, annulling as unconstitutional the phrase “The parties undertake not to unilaterally terminate this Agreement”.” Derived from the constitutional recognition of the right to collective bargaining in the public sector, as well as from the constitutional limits previously indicated, the competence of this jurisdiction to exercise control over the content and scope of collective labor agreements is verified. Thus, in judgment No. 2020-024200 of 12:11 p.m. on December 16, 2020, the Court highlighted that there are no zones of immunity or public actions that escape constitutional subjection, even in the case of public companies, in the following terms:

III.- COLLECTIVE LABOR AGREEMENTS AGAINST THE PARAMETER OF CONSTITUTIONALITY. This Constitutional Court has established solid jurisprudence to the effect that there is a need to subject collective labor agreements to the constitutionality control exercised by this Chamber. Since judgment No. 2006-17441, it was considered that whatever the normative rank recognized for these types of instruments, it is clear that they are subordinated to constitutional norms and principles. It is for the foregoing that, despite the constitutional recognition of the right to collective bargaining and its development in various international instruments, there are no zones of “constitutional immunity” in the Costa Rican legal system, that is, public actions that escape subjection to the principle of constitutional regularity. Based on which the Chamber has been consistent that although they have a constitutional origin, particular collective agreements can be subjected to the assessment of their constitutional conformity, even in the case of public companies. Likewise, emphasis has been placed on the fact that the obligations contracted by public institutions and their employees can be subject to an analysis of reasonableness, economy and efficiency, whether to prevent that the rights of the workers themselves are limited or harmed through a collective agreement, or to prevent an abusive use of public funds (see, among others, judgments 2019-008679, 2019-009222, 2019-016791 and 2019-017398).” From the broad jurisprudential compendium alluded to, it can be concluded that the right to collective bargaining is a constitutional right recognized in Article 62 of our fundamental charter that has as its immediate purpose the review, inter partes and with the character of law, of the minimum content of the legal benefits that govern labor relations, all with the aim of improving or surpassing that essential minimum. This Chamber has recognized that collective bargaining in the public sector can only be admitted for those workers who do not perform public management (gestión pública), employees of economic enterprises or services of the State, and those in charge of activities subject to common law (Derecho común). Regarding the content of collective bargaining in the public sector, it has been indicated that the parties can only validly agree on what they can juridically fulfill, by reason of the contractual nature of the collective agreement, and it is admitted that its scope is the conditions of work or labor, without that purpose being extended to regulate extra-labor matters. In this way, the subject of a collective agreement can be everything that could be the subject of an individual labor contract (that is, those regulating the interaction that arises from the provision of the worker's service and the payment of wages or remunerations by the employer), as well as norms that limit or establish procedures for the exercise of the employer's rights, especially regarding disciplinary power and the exercise of its right to organization and direction, and norms that create rights and obligations between the parties and that have to do primarily with social peace and with the duty of execution of the agreement, such as the creation of labor relations boards. It is not a matter of recognizing other rights different from those validly and legitimately recognized, but of seeking greater concessions on those validly and legally recognized rights, hence a collective agreement can recognize a greater right than the one recognized by law, but cannot limit it. In this sense, the possibility of recognizing salary incentives or extra pay has been admitted, as instruments to encourage greater quality, permanence, efficiency in the service, loyalty and suitability; hence it is contrary to the Law of the Constitution, specifically to union freedom and the right to collective bargaining, for the legislator to prevent those points from being agreed upon within a collective bargaining and reserved only to formal law. As things stand, the Public Administration may grant certain incentives or benefits to its workers, when these are supported by objective reasons that seek a better provision of the public service. There exists “a constitutional doctrine of public sector collective agreements (indispensable in the absence of a formal law regulating them), which can be summarized as follows: all the rights, benefits and advances on the legal minimums (derived from social legislation of the mid-last century) included in a collective labor bargaining must be based on objective reasons that seek a better provision of the public service, while signifying joint and solidary social progress for public servants and the Administration, respectful, yes, of an adequate and reasonable management of public funds.” And that “collective agreements not only have the force of law but also a minimum content intangible for the legislator, among which is the improvement of minimum labor conditions and, therefore, also salary conditions. The foregoing based on the Christian principles of social justice and solidarity, which, as indicated, are contained in Article 74 of the Political Constitution…” (judgment No. 2012-08891 of 4:02 p.m. on June 27, 2012). Since public entities that administer public funds are involved, their content is also subordinated to constitutional norms and principles. Thus, the validity of collective bargaining in the public sector is not only subject to the mere verification of the adoption procedure, but also to a substantive analysis of legality and constitutionality controls, in attention to the principles of reasonableness, proportionality and proper use and management of public funds, the foregoing, in order to prevent that, through a collective agreement, the rights of the workers themselves are disproportionately limited or harmed, or to prevent an abusive use of public funds. In the Public Administration, the authorization to bargain collectively cannot be unrestricted, that is, comparable to the situation in which any private employer would find itself, since current laws, regulations or government directives must be respected, as well as the legal powers of public entities, attributed based on normative hierarchy or the special conditions of the Public Administration in relation to its workers. Thus, the obligations contracted by public institutions and their employees can be subject to an analysis of reasonableness, economy and efficiency, whether to prevent that the rights of the workers themselves are limited or harmed through a collective agreement, or to prevent an abusive use of public funds. The right to collective bargaining is subject to the jurisdictional control of the Chamber, since as indicated, it is subordinated to constitutional norms and principles.

• 3)Specific analysis of the consulted matter (written by Judge Castillo Víquez) The consultants request that the unconstitutionality of Article 43 and Transitory Provision XV of the draft Framework Law on Public Employment (Ley Marco de Empleo Público), file 21336, be declared, for contravening the provisions of Article 62 of the Political Constitution and Convention concerning the Right of Association and Collective Bargaining, 1949, No. 98 of the International Labour Organization (ILO), Articles 4 and 6; American Convention on Human Rights, Pact of San José, Costa Rica, Article 2; International Covenant on Economic, Social and Cultural Rights, Articles 2 and 8; the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of San Salvador, Article 5; constitutional numeral 7 that grants them a rank superior to law and the constitutional principles of legality and conventionality, since collective bargaining is a fundamental human right and operates as an instrument through which working people in the broad public sector, public companies, and public companies and institutions in competition, can agree upon dignified working conditions, for which the State has a dual responsibility, on the one hand, that of permanent vigilance to guarantee its exercise without any discrimination, and, on the other, non-state intervention that harms its effective exercise.

Regarding this point, there is also abundant jurisprudence of the Constitutional Chamber on the matter of collective bargaining. Now, specifically regarding collective bargaining in the public sector, it should be noted that, recently, in ruling No. 2018-019511, this Court reviewed its jurisprudence on the subject and highlighted the following points:

This Chamber has recognized, as a principle thesis, that the relationship between the State and public servants is one of public or statutory employment; in other words, the servant under the public employment regime is in a state of subjection in relation to the Administration; the latter can unilaterally impose the conditions of the organization and provision of the service to guarantee the public good. This conclusion implies that collective bargaining cannot be tolerated in the public sector, in accordance with constitutional articles 191 and 192. However, the possibility of collective bargaining has been admitted with respect to laborers, workers or employees who do not participate in the public management (gestión pública) of the Administration, in such a way that entities with a labor-law employment regime (not public), such as, for example, State enterprises, can indeed bargain collectively in accordance with the provisions that inform Collective Labor Law.

Regarding its content, it has been indicated that the parties can only validly agree on what they can legally fulfill, by reason of the contractual nature of the collective agreement, and as a principle thesis it is admitted that its scope is the conditions of work or labor, without that purpose being extended to regulate extra-labor matters. In other words, the collective agreement aims to regulate, on the one hand, the conditions to which individual labor relations must be subject, or what is the same, the so-called normative clauses, which regulate the interaction arising from the provision of the worker's service and the payment of wages or remunerations by the employer, and this leads to the conclusion that everything that could be included in an individual labor contract can be the subject of a collective agreement; also, within this content, the so-called configuration clauses can be subject to collective bargaining, which are those that specify the personal, temporal, and spatial scope of the agreement, and among which are included those that limit or establish procedures for the exercise of the employer's rights, especially regarding disciplinary power and the exercise of its right to organization and direction. In the second order, the obligatory clauses, which are those that create rights and obligations between the parties and that have to do, primarily, with social peace and the duty of execution of the agreement, such as the creation of labor relations boards, the institution of employer benefits for social works within the labor community, the installation of training centers, among others. In short, collective agreements, by constitutional provision, have as their immediate purpose the review, inter partes and with the character of law, of the minimum content of the legal benefits that govern labor relations, all with the aim of improving or surpassing that essential minimum. Likewise, the possibility of recognizing salary incentives or extra pay has been admitted, as instruments to encourage greater quality, permanence, efficiency in the service, loyalty and suitability. That is, the Public Administration may grant certain incentives or benefits to its workers, when these are supported by objective reasons that seek a better provision of the public service. Furthermore, the content of collective agreements must be subject to norms of a higher hierarchical rank and must respect the framework of fundamental rights enshrined in our Political Constitution. In this way, Collective Labor Agreements are subject to the Law of the Constitution; thus, conventional clauses must be in conformity with the constitutional norms and principles of equality, prohibition of discrimination, legality, reasonableness and proportionality, especially when public funds are involved, subject to the principle of budget legality.

Now, as the consultants themselves point out, the specific issue raised in this consultation was already analyzed in the cited ruling No. 2018-019511, in which the legislative consultation regarding the draft “Law for the Strengthening of Public Finances” (legislative file No. 20,580) was heard. As indicated in that ruling, on that occasion it was alleged:

“h) Regarding the alleged unconstitutionality of Article 55, of Chapter VII, “General Provisions”, of Title III, “Modification to the public administration salary law”, and of Transitory Provision L, of file 20580, for violation of numerals 62 of the Political Constitution, and of Convention No. 98, concerning the Right of Association and Collective Bargaining, of the International Labour Organization (ILO).

1.- Arguments of the consultants: The consultants question the constitutionality of ordinal 55, of Chapter VII, “General Provisions”, of Title III, “Modification to the public administration salary law”, of Legislative Draft 20,580, which establishes:

“Article 55- Law Reservation in the creation of salary incentives and compensations The creation of incentives or compensations, or salary bonuses may only be carried out through law.” They consider that, in this way, despite the fact that the right to collective bargaining is included in numeral 62 of the Political Constitution, it is intended to suppress this right in salary matters, in contrast to the provisions of subsections h), j) and m), of ordinal 690 of the Labor Code (Código de Trabajo).

They add that the character of professional law granted by the legal system to collective agreements consists in that what is agreed in them must be adapted to all existing individual or collective contracts, as well as those subsequently entered into in the companies, industries or regions they affect, that is, that the working conditions agreed therein may not be worsened in the future.

Likewise, they cite numeral 4 of the Convention concerning the Right of Association and Collective Bargaining, of 1949, No. 98, of the International Labour Organization (ILO), which imposes the following on the States Parties:

“Article 4 Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.” Thus, the right to collective bargaining is ratified in the ILO Declaration on Fundamental Principles and Rights at Work, of 1998, which declares that all Members, even if they have not ratified the conventions in question, have an obligation, arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those conventions, namely: a) freedom of association and the effective recognition of the right to collective bargaining; and b) the effective recognition of the right to collective bargaining.

The consultants also question the constitutionality of Transitory Provision L, of Draft No. 20580, which regulates:

“TRANSITORY PROVISION L - As of the entry into force of this law, the hierarchical heads of public entities are obliged to terminate collective agreements upon their expiration. In the event that it is decided to renegotiate the agreement, it must be adapted in all its aspects to the provisions of this Law and other regulations issued by the Executive Branch.” They consider that such an obligation limits the right to renegotiation or to automatic extension under the conditions stipulated in subsection e), of ordinal 58 of the Labor Code.

In which case, after an analysis of the right to collective bargaining, collective agreements in the public sector, and the principle of union freedom, in light of its own jurisprudence and the regulations that make up the Law of the Constitution, it was concluded:

“(…) that the right to collective bargaining is based on the possibility of free and voluntary negotiation; and, furthermore, on a minimum or essential content, which is the possibility of negotiating better socioeconomic conditions for workers.

2.4.- Regarding the limits and control of the content of collective agreements: It is clear that said bargaining capacity cannot be unrestricted, as this Chamber has stated on several occasions, but that restriction cannot imply an emptying, by way of law, of the minimum content of that right.

The legal restrictions imposed on the right to collective bargaining must conform to the Political Constitution and to the International Instruments relating to the matter.

In this regard, the decision of this Chamber in Judgment No. 2000-004453 of 14:56 hours on May 24, 2000, must be understood, in which it stated:

"Sixth: Notwithstanding the above, it is important to clarify that even in the public sector in which the application of the institution of collective agreements is constitutionally possible, that is, in the so-called economic enterprises or services of the State and in those personnel units of public institutions and entities in which the nature of the services provided does not partake of public management, in the terms of subsection 2 of article 112 of the General Public Administration Law (Ley General de la Administración Pública), the Chamber repeats and confirms its case law to the effect that the authorization to negotiate cannot be unrestricted, that is, comparable to the situation in which any private employer would find itself, since by that means, existing laws, regulations, or governmental guidelines cannot be dispensed with or excepted, nor can laws that grant or regulate the competencies of public entities, attributed by reason of normative hierarchy or the special conditions of the Public Administration in relation to its workers, be modified or repealed, a conclusion inferred from article 112 subsection 3) of the General Public Administration Law (Ley General de la Administración Pública) and from considerando XI of judgment No. 1696-92 of this Chamber." (See in the same sense judgments numbers 2000-006480, 2000-006481, 2000-006482, 2000-006483, 2000-006435, 2000-007730, 2005-006858, 2006-007261, and 2006-17436).

(...)

Thus, with respect to public sector collective agreements, the Chamber has indicated that existing laws, regulations, or governmental guidelines must be respected, as well as the legal competencies of public entities, attributed based on normative hierarchy or the special conditions of the Public Administration in relation to its workers. Furthermore, the limitations required to harmonize public spending with budgetary availability must be respected in the interest of the citizen's right to sound management of public funds, derived from numeral 11 of the Constitution (see Judgment No. 2017-013443 of 9:15 hours on August 25, 2017).

It must also be understood that the bargaining power is subject to legality and constitutionality controls, in accordance with the principles of reasonableness, proportionality, and good use and management of public funds. Among others, in Judgment No. 2006-17441 of 19:39 hours on November 29, 2006 (previously cited), this Court ruled on this matter, in the following terms:

(...)

But, it must be insisted, the fact that these controls exist cannot lead to emptying the minimum content of the right to collective bargaining, nor to obligating its denunciation. And, therefore, it is contrary to the very essence of collective bargaining that, even in those sectors where it is constitutionally and legally possible, only through a formal law, emanating from the Legislative Power, can incentives or compensations, or salary bonuses (pluses salariales) be created, since that, as stated, would empty the content of that right and, therefore, would violate the principle of trade union freedom, which has been developed by this Chamber through its case law. ...

(...)

Hence, as an essential part of trade union freedom—and of its counterpart, trade union action—is the right of workers to collective bargaining, as an instrument for improving their socio-economic conditions, through incentives, compensations, or salary bonuses (pluses salariales). This falls within the four rights that comprise trade union freedom: a) freedom to form trade union organizations; b) freedom to join a trade union organization; c) freedom to cease belonging to a trade union organization; and d) freedom of the member to participate democratically within the union; to which must be added the right of every trade union organization to operate freely with respect to the State and in relation to society, considered as a whole, always within the respective legal framework.

The foregoing implies, indeed, according to what has been said, that all those salary components agreed upon through that valid collective bargaining must conform to the principle of proportionality and constitutional reasonableness, as well as to the rest of the legal system. But it is contrary to Constitutional Law, specifically to trade union freedom and the right to collective bargaining, for the legislator to prevent those terms from being agreed upon within a collective bargaining process and to reserve them only to formal law.

Finally, and in relation to the issue of the mandatory denunciation of collective agreements provided for in Transitory Provision L of the legislative bill under consultation (proyecto de ley consultado), the International Labour Organization (ILO), in Report No. 344, of March 2007, Case No. 2460, paragraph 990, expressed:

"990. As regards the court's ruling in the Atkins case, according to which the legal prohibition of collective bargaining is acceptable under the United States Constitution because it contains no provision—including the right of free association, enshrined in the First Amendment—that obliges a party to conclude a contract with another, the Committee, while recalling the importance it attaches to the obligation to bargain in good faith for the maintenance of harmonious development of professional relations, wishes to point out that the voluntary negotiation of collective agreements and, therefore, the autonomy of the social partners in negotiation, constitutes a fundamental aspect of the principles of freedom of association. Collective bargaining, to be effective, must be voluntary in nature and does not imply the use of coercive measures that would alter the voluntary nature of such negotiation. No provision of Article 4 of Convention No. 98 obliges a government to coercively impose a system of collective negotiations on a specific organization, governmental intervention that would clearly alter the nature of such negotiations [see Digest, op. cit., paragraphs 925-927 and 934]. Therefore, while a legal provision that obligated a party to conclude a contract with another would be contrary to the principle of free and voluntary negotiation, provisions such as paragraphs 95-98 of the NCGS, which prohibit public authorities and public employees, including those who do not participate in the administration of the state, from concluding an agreement, even if they wish to do so, are equally contrary to that principle." With which it is clear that, as defined by the ILO, a legal provision that obligated a party to conclude a collective agreement with another would be contrary to the principle of free and voluntary negotiation.

In summary, a provision that obligates the denunciation of collective agreements and, on the other hand, prevents, through these, achieving improved conditions, without any type of modulation, would be contrary to Constitutional Law; such that the legislator could not, in advance, restrict the possibility of entering into collective agreements between employers and workers, in the public sector in which the application of this institution is constitutionally possible, without violating trade union freedom.

Consequently, it must be understood that Article 55 of Law No. 2166 (Public Administration Salary Law, Ley de Salarios de la Administración Pública), as added by the legislative bill under consultation (proyecto consultado), is not unconstitutional, as long as it is understood that it does not apply to Public Sector employees who may validly enter into collective agreements in accordance with the Constitution and the law; without prejudice to the legality and constitutionality controls over the result of the negotiation, in accordance with the principles of reasonableness, proportionality, and the good use and management of public funds. Likewise, in relation to Transitory Provision L of the legislative bill under consultation (proyecto consultado), it must be interpreted that each head of public entities has the power to denounce or not denounce the respective collective agreement, in accordance with the existing legal system." 4) Conclusion In light of the Chamber's case law and, very specifically, of the cited vote no. 2018-019511, it can be concluded that the consulted norms:

a.- Article 43 does not contain defects of constitutionality, as long as the new obligations or rights obtained through collective bargaining conform to the principles of reasonableness, proportionality, and budgetary legality, under the protection of constitutional case law, and as long as they involve collective agreements in which Public Sector employees who may validly enter into collective agreements in accordance with the Constitution and the law participate.

b.- Transitory Provision XV referring to the denunciation of collective agreements is not unconstitutional as long as it is interpreted in the same sense as indicated in vote number 2018-019511 of 21:45 hours on November 23, 2018, that is, in application of the Political Constitution (articles 62 and 74), the International Conventions of the International Labour Organization, and the case law of this Court, it must be interpreted that each head of public entities has the power to denounce or not denounce the respective collective agreement, in accordance with the existing legal system." LBH10/22 ... See more Content of Interest:

Type of content: Majority Vote Branch of Law: 3. MATTERS OF CONSTITUTIONALITY CONTROL Topic: LABOR Subtopics:

NOT APPLICABLE.

017098-21. LABOR. DISCRETIONARY LEGISLATIVE CONSULTATION ON CONSTITUTIONALITY, REGARDING THE LEGISLATIVE BILL CALLED "PUBLIC EMPLOYMENT FRAMEWORK LAW" (LEY MARCO DE EMPLEO PÚBLICO). LEGISLATIVE FILE No. 21.336. "... XVII.- On the consultation raised regarding the sanction of generic disqualification (inhabilitación genérica).- (drafted by Magistrate Picado Brenes) 1) Concrete analysis of the aspects consulted The consultants consider that Article 4.a of the bill for the "PUBLIC EMPLOYMENT FRAMEWORK LAW" (LEY MARCO DE EMPLEO PÚBLICO), being processed in legislative file No. 21.336, by establishing a disqualification sanction in a general manner, violates constitutional principles. Said norm expressly indicates the following:

"ARTICLE 4- Governing Principles The governing principles of public employment are:

• a)Principle of the State as a single employer: it is based on the premise that the State is a single center of imputation of labor rights, regardless of where the public servant works. This implies that, when a public servant moves from one position to another within the public sector, the employment relationship must be computed as a single one for the purposes of recognizing the corresponding labor rights and answering for functional duties, irrespective of the position changes that may occur. Additionally, it entails that sanctions that generate the dismissal without employer liability (despido sin responsabilidad patronal) of the official in one institution, in accordance with the existing legal system, will prevent any other entity or body that is part of the State from hiring them for a period ranging from six months to two years." The consultants consider it unconstitutional, because, in their opinion, it is a generic and automatic disqualification sanction that would apply to any type of dismissal, regardless of whether it involves serious or minor offenses, without the sanctioning body being able to assess the severity of the conduct and without there being a weighing of the rights that will be affected. They consider that, while it is true the Constitutional Chamber has endorsed disqualification sanctions for the exercise of public positions as part of the criteria to guarantee the suitability (idoneidad) of public sector workers, the sanction created in the norm under consultation is generic, that is, it would apply to any type of dismissal, regardless of whether it involves serious or minor offenses, estimating that, therefore, it becomes an automatic sanction, by the simple fact of the person being dismissed without employer liability (sin responsabilidad patronal). In the opinion of those signing the consultation, the offenses that give rise to terminating the employment relationship without employer liability do not all irreparably constitute the existence of a lack of suitability (idoneidad) to hold positions in all Public Administrations, and they consider that the automatic application of such a severe measure must take into account the type of offense committed, weighing the proportionality and reasonableness of the sanctioning administrative act; however, they estimate that the norm in question does not allow for that weighing or assessment.

At this point, it is worth recalling, first of all, that the Constitutional Chamber has ruled, on repeated occasions, regarding the sanction of disqualification (inhabilitación), stating that there is the possibility of temporarily disqualifying a person from holding a public position via administrative means, so it is not a sanction foreign to the administrative sphere. Thus, for example, in judgment no. 2013-04491 of 16:00 on April 3, 2013, it provided the following:

"With which, the pronouncement is not particularly conclusive as to the reasons why the imposition of disqualification (inhabilitación) for public positions in an administrative venue would be unconstitutional. And it is that around this particular type of sanction, the rigid and amply founded limits that oppose, for example, the establishment of a prison sentence by any public authority other than the judicial one, are not raised. In this latter sense, articles 35, 37, and 39 of the Political Constitution; 7 and 8 of the American Convention on Human Rights; 10 and 11 of the Universal Declaration of Human Rights; and 9 of the International Covenant on Civil and Political Rights are unequivocal about the need, among other requirements, for a decision of such gravity as the restriction of personal liberty to be adopted by means of a judge's act. Disqualification (inhabilitación), on the other hand, is not a sanction that is foreign to the administrative field. In our legal system, for example, norms such as 100 subsection a) of the Administrative Contracting Law (Ley de Contratación Administrativa), 3 of the Mining Code, 9 subsection f) of the Regulation to the Civil Service Statute (Reglamento al Estatuto de Servicio Civil), and 13 of the Notarial Code authorize the respective competent bodies to impose an administrative penalty of that nature, the Chamber having systematically rejected the challenges made against some of them (judgment #2000-5525 of 14:58 hours on June 5, 2000, regarding the Administrative Contracting Law; resolutions #2002-6057 of 14:42 hours on June 19, 2002, #2002-10940 of 15:08 hours on November 20, 2002, #2003-3423 of 15:58 hours on April 29, 2003, and #2006-3135 of 10:42 hours on March 10, 2006, on the Regulation to the Civil Service Statute)". (The underlining does not correspond to the original) Regarding its constitutional basis, judgment no. 2006-08493 of 14:43 hours on June 14, 2006, indicated:

"Disqualification (inhabilitación) is justified in:

'the power that the State has to sanction the offenses incurred by its employees in public service, as well as the need to safeguard and protect itself from the irregular behaviors of its officials, which affect the norms of subordination, and public interests, through the sanctioning power, like any employer, against the non-exact fulfillment of the duties of public service. Once the disciplinary regime has been applied, as an executive and executable act, the norm in question comes into operation. Bear in mind that the case law recognizes the existence of reasonable requirements imposed by law, not as a limitation to articles 56 and 57 of the Constitution, but, to guarantee that the provision of public service is in accordance with the provisions of numerals 191 and 192 of the Political Constitution. So that, prior to the appointment of any public employee, it is lawful for the State to implement additional conditions or requirements for the selection of its employees, and even more so, in case the possibility of a new rehiring arises. Thus, the conditions of the challenged norm are lawful limitations—from a constitutional point of view—imposed in a Law of the Republic that provides for the temporary unsuitability (inidoneidad temporal) of former officials for a new public position, in case they have been dismissed without employer liability (sin responsabilidad patronal), as occurs in the matter under examination. See that the Chamber's case law even admits that disciplinary investigations not be archived due to the early cessation of the investigated person in their position, so that it remains on file should they apply again to be appointed by the administration.' And it is asserted, finally, in that judgment:

'From the foregoing, it is concluded that the existence of a norm that fixes the consequences over time of a dismissal is not unconstitutional, because it precisely exists so that officials who have made improper use of their position or of the State's patrimony cannot be appointed again for a specific period, all to guarantee the morality and legality of the Administration.' (In the same sense, see pronouncements #2002-6057 of 14:42 hours on June 19, 2002, and #2003-05262 of 14:40 hours on June 18, 2003. Regarding the possibility of continuing the administrative procedure, despite the servant's resignation, see rulings #1999-2958 and #622-93 of 15:48 hours on February 8, 1993).

More abundantly, in judgment no. 2012-00267 of 15:34 hours on January 11, 2012, the Chamber considered, as relevant:

"In the case of the questioned norm, it is a regulatory provision that determines the consequences of a dismissal without employer liability (despido sin responsabilidad patronal) within the Public Administration, such that public officials who have made improper use of their position or of the State's patrimony cannot be appointed again to a position in the Civil Service for a specific period. In the case of public employees, they must comply with a certain baggage of ethical and moral duties, and it is prudent to subject their appointments to the constitutional principle of suitability (idoneidad), as occurs in this case. Moreover, the Chamber considers it illusory and lacking all legal logic that an official dismissed for the breach of these principles intends to return to public service immediately, ignoring the protection mechanisms established by the legal system against possible abuses of the State's assets, and that directly affect the ethics and morality that every official must demonstrate (judgment 2002-5424 11:10 May 31, 2002). The norm under study establishes a temporary unsuitability (inidoneidad temporal) for public officials who were dismissed from their position without employer liability (sin responsabilidad patronal) and its sole purpose is to protect the Public Administration in relation to the moral aptitude of persons who at some point violated the regulations of the Civil Service Statute (Estatuto de Servicio Civil), so that future appointments in the Executive Branch under that regime are conditioned to a determined period. The Chamber takes into account that, by judgment number 2001-12005, it was indicated that:

'It indeed has a clear meaning to point out that the suitability (idoneidad) of public servants must not only be understood in a specific sense, 'academic' or 'physical' for example, but must rather be assumed as a conjunction of elements or factors of diverse nature that, valued as a whole, result in a person being the most suitable for the position. Furthermore, the Chamber truly does not conceive how one could fail to consider the necessary 'psychological aptitude' not only in general terms of 'stability' or 'normality', but regarding the conditions or 'specific aptitudes' that certain positions necessarily require to be performed efficiently. In the Chamber's judgment, therefore, it is an adequate and proportionate means to achieve the constitutional purpose set forth in Articles 191 and 192 of the Constitution, insofar as it complements, as explained, the other aspects of suitability (idoneidad); and this same reason is what makes it maintain a primacy – in this specific case – over the other constitutional rights that the appellant considers involved in this controversy, namely, the right to equal treatment and the right to work, insofar as psychological aptitude must be considered an integral part of the suitability (idoneidad) required by the Political Constitution itself, as explained. To conclude on this point, it should be noted that, as the Director General of the Civil Service indeed points out, the Statute does incorporate within its rules the need for the demonstration – in a broad sense – of suitability (idoneidad) for the position and with it the requirement of verification of psychological suitability (idoneidad).' Consequently, it is within constitutional parameters for the norm to establish a disqualification (inhabilitación) period for the re-entry into the Civil Service of that public servant who was dismissed without state liability (sin responsabilidad estatal). Bear in mind that it is not an additional sanction to the dismissal, as the plaintiff seems to understand it, but the regulation of the legal consequences of a fact, with which the State protects itself from irregular conduct that undermines the subordination that every servant owes to the State as employer, and to the legal system, so that upon verifying an offense for which the sanctioning power had to be applied, as a means to demand the exact fulfillment of the duties of public service or the breaking of the service relationship according to the existing grounds, this must form part of the requirements for re-entry into the civil service." From this perspective, then, the question raised regarding the possibility of applying a disqualification (inhabilitación) sanction in the context of public employment would not be unconstitutional. In the Chamber's opinion, these are lawful limitations—from a constitutional point of view—imposed in a law of the Republic, which provides for the temporary unsuitability (inidoneidad temporal) of former officials for a new public position, in case they have been subject to dismissals without employer liability (sin responsabilidad patronal), as occurs in the matter under examination. The Chamber has also stated that the existence of a norm that fixes the consequences over time of a dismissal is not unconstitutional, because it precisely exists so that officials who have made improper use of their position or of the State's patrimony cannot be appointed again for a specific period, all to guarantee the morality and legality of the Administration (see judgment no. 2006-08493 of 14:43 hours on June 14, 2006, and in the same sense, pronouncements 2002-6057 of 14:42 hours on June 19, 2002, and 2003-05262 of 14:40 hours on June 18, 2003). For this Court, it is consistent with constitutional principles to impose a disqualification (inhabilitación) on an official dismissed with just cause, since that official cannot be expected to return to public service immediately, ignoring the protection mechanisms established by the legal system (judgment 2002-5424 of 11:10 hours on May 31, 2002). Under this perspective, upon analyzing Article 4.a of the bill under study (proyecto bajo estudio), it is observed that, in view of the legislator's objective being to constitute the State as a single employer, sanctions that generate the dismissal without employer liability (despido sin responsabilidad patronal) of the official in one institution automatically imply an impediment for them to work in any other entity or body that is part of the State, for the period established in that norm. At this point, one cannot lose perspective on the obligation of the State to safeguard the suitability (idoneidad) that must accompany anyone aspiring to a position in the public service, as an integral part of the requirement of numeral 192 of the Political Constitution. Now, regarding the questions raised by the consultants concerning the relationship between the type of offense committed and the sanction, or regarding the proportionality and reasonableness of the sanctioning administrative act, these are issues that must be assessed in each specific case and as part of due process, and that, for that reason, do not render the norm unconstitutional per se. On the other hand, it is of interest to recall that, in the Costa Rican legal system, some norms referring to disqualification (inhabilitación) with content similar to that of Article 4 a. under study can be found. Among them, the following can be cited:

• 1)Regulation of the Civil Service Statute (Reglamento del Estatuto del Servicio Civil):

"Article 9 - Requirements to enter the Civil Service, apart from those established by Article 20 of the Statute, are the following:

• d)Not having been dismissed for infringement of the provisions of the Statute, this Regulation, or the autonomous regulations of the institutions covered by the Statutory Regime, during a period of no less than three nor more than ten years, prior to the entry date, in accordance with the seriousness of the offense and according to the guidelines on this matter to be established by the General Directorate of Civil Service." 2) Organic Law of the General Comptroller of the Republic (Ley Orgánica de la Contraloría General de la República).

"Article 72.- Prohibition of entry or re-entry of the offender. Anyone who has committed a crime or serious offense against the norms that comprise the control system contemplated in this Law or against property or good faith in business may not be appointed to a position in the Public Treasury (Hacienda Pública). This prohibition shall be effective for a period of no less than two years nor more than eight years, at the discretion of the General Comptroller of the Republic, who shall decide in view of the evidence in the case. Likewise, the prohibition shall apply, for the same period, against former public servants who attempt to re-enter the Public Treasury (Hacienda Pública), when they have committed a crime or serious offense such as those mentioned in the preceding numerals, even if their previous service relationship with the Public Treasury (Hacienda Pública) ended without liability on their part. Furthermore, the prohibition established herein shall apply against the public servant who has been dismissed for having committed a crime or serious offense such as those already cited." Thus, the temporary disqualification (inhabilitación temporal) via administrative means of a public servant, to prevent them from accessing public positions, is a figure recognized by this Court, which allows that officials who have breached their ethical and moral duties by making improper use of their position or of State assets may not be appointed again for a defined period, in order to guarantee the principles of efficiency of the Administration and proven suitability (idoneidad comprobada). This principle of suitability (idoneidad) should not be understood solely as the verification of academic, physical, or experiential aptitudes, but also extends to a series of ethical, moral, and even psychological elements that are part of that suitability (idoneidad) required for the exercise of public positions, hence it is an adequate means to the constitutional purposes embodied in articles 191 and 192 of our fundamental charter. In accordance with the foregoing, the disqualification (inhabilitación) provides for the temporary unsuitability (inidoneidad temporal) of former officials for a public position, in case they have been dismissed without employer liability (sin responsabilidad patronal), thereby seeking—as stated supra—to guarantee that the provision of public services is in accordance with the principles of proven suitability (idoneidad comprobada) and efficiency in public service (articles 191 and 192 of the Political Constitution). Likewise, it is important to highlight that the Chamber has indicated that this disqualification (inhabilitación) is not absolute, but is composed of a series of limits that channel its application, among which this Court has highlighted the following: 1) that it has a defined period authorized by law, or that it is imposed for a reasonable period; 2) that it is temporary; 3) that it is duly grounded; 4) that it is imposed only as a consequence of dismissal for proven serious offenses. All of which are extremes that must be assessed in each specific case and as part of due process. Furthermore, all of this must be applied taking into account the special regulations that each institution may have in this regard, with the legal operator performing an interpretive function. In this sense, it must be remembered that, in matters of discretionary consultations (consultas facultativas), this Court only rules on the issues consulted, in such a way that it cannot be interpreted that there is a kind of endorsement of the legislative bill under consultation (proyecto de ley consultado), in that on which there is no pronouncement." If it is considered that on this topic there exist other elements, apart from those consulted, that could violate the supremacy of the Political Constitution, the corresponding avenue would remain open for its due discussion (see in that regard rulings 2001-11643, 2001-12459, 2012-9253, 2019-9220 and 2020-010160, among others).

• 2)Conclusion In accordance with the foregoing considerations, it can be concluded that the existence of a rule that establishes disqualification (inhabilitación), as one of the consequences over time of a dismissal, is not unconstitutional. Thus, in the terms indicated and in accordance with constitutional jurisprudence, regarding what was consulted, article 4.a of the draft "LEY MARCO DE EMPLEO PÚBLICO", being processed in legislative file No. 21.336, is not unconstitutional. As it is a matter that will correspond to the legal operator, everything related to applying due process to the dismissal, assessing the relationship between the type of offense committed and the sanction, or regarding the proportionality and reasonableness of the sanctioning administrative act, and determining the specific rule to apply when special regulations exist in the institution in question..." LBH10/22 ... See more Content of Interest:

Content Type: Majority Vote Branch of Law: 3. CONSTITUTIONALITY CONTROL MATTERS Topic: LABOR Subtopics:

NOT APPLICABLE.

017098-21. LABOR. DISCRETIONARY LEGISLATIVE CONSULTATION OF CONSTITUTIONALITY, REGARDING THE DRAFT LAW CALLED "LEY MARCO DE EMPLEO PÚBLICO." LEGISLATIVE FILE No. 21.336. "... XVIII.- Regarding the consulted violation of the right to salary equality and the global salary 1) Aspects Consulted The consulting deputies question the following three aspects regarding this Global Salary topic:

-Violation of the principle of separation of powers and autonomies, due to the fact that it is a Ministry of the Executive Branch that establishes the global salary column (art. 34) and thereby, the salaries of the entire state apparatus, including the Judicial Branch, universities, municipalities, and decentralized entities.

-Violation of the principle of salary equality, due to the fact that people occupying the same positions under the same conditions would be receiving a different salary (Transitory Provision XI); furthermore, because equal treatment is given to those who are not in equal conditions, such as health sciences officials, those performing police functions of the Ministry of Security with those of the Judicial Investigation Agency, justice administrators, foreign service, positions of trust, etc. (art. 30.a and 34). Likewise, it is consulted that the salaries of deputies are not included within the salary cap (art.37).

-Violation of the principle of human dignity at work, due to the fact that the definition of salary (art. 5.r) excludes the recognition of any other emolument in cash or in kind that, directly or indirectly, the employer recognizes to the workers, as provided by ILO Convention No. 100. Also, because "availability" (disponibilidad) will be considered a relevant factor for work evaluation (art.31.f), particularly to the detriment of women, who usually have work outside the office and, therefore, have little "availability". Furthermore, due to the fact that the salary will be frozen for certain officials and no increase to the base or incentive will be recognized for them (Transitory Provision XII).

Once the consultation filing document has been reviewed, it is possible to verify that the questioning expressed by the consultants in relation to those articles lacks adequate substantiation and does not clearly express the reasons or reasoning for which these doubts are raised before this Chamber. On this matter, it must be borne in mind that Article 99 of the Ley de la Jurisdicción Constitucional is very clear in establishing that the consultation must express the questioned aspects of the project and the reasons for which doubts or objections of constitutionality are held, as well as that all of this must be done in a reasoned and duly substantiated manner; a requirement that is not met in this specific case and, therefore, the consultation cannot be addressed in the terms intended by the consultants. The only two rules that are consulted with substantiation refer to Transitory Provision XI and Transitory Provision XII. Therefore, this Chamber proceeds to rule only on these two ("extremos"). On the understanding that, the conformity or non-conformity with the Political Constitution of the remaining rules is not being examined.

In this regard, before proceeding to the examination of the constitutionality of the challenged rules, it is pertinent to recall the constitutional scope and limitations of constitutional jurisprudence regarding salaries.

• 2)Jurisprudential Background on the fundamental right to salary equality In general, regarding the right to salary, constitutional jurisprudence has indicated that: "The salary as remuneration owed to the servant by virtue of a statutory relationship, for the services rendered, is not only an obligation of the employer, but a constitutionally protected right." (see ruling No. 2015-009504). A fundamental right that, moreover, is inalienable (constitutional art. 74). Then, regarding the fundamental right to salary equality or right to salary equity, it is understood as that right that allows differentiating salaries according to the conditions of the position (negative aspect), but without being able to carry out discrimination (constitutional art. 68: "No discrimination regarding salary may be made, ... with respect to any group of workers"). Conversely, it is that right that allows maintaining the same salaries, if the conditions of the position are equal (positive aspect). The latter, according to constitutional art. 57 which indicates: "The salary will always be equal for equal work under identical conditions of efficiency." Which is ratified by the Universal Declaration of Human Rights (art. 23.2: Everyone has the right, without any discrimination, to equal pay for equal work.), the International Covenant on Economic, Social and Cultural Rights (art. 7.a.i: "Fair and equal wages for work of equal value, without distinction of any kind..."). The Protocol of San Salvador (Art. 7.a: "...and fair and equal wages for equal work, without any distinction..."), just to cite a few.

The Chamber has stated that, although a balanced and fair salary policy must be sought, differences in the functions of each position cannot be ignored. In ruling No. 97-1320 it stated:

"I. It is evident that from the constitutional articles estimated to be infringed (33, 57, 68 and 74) a clear purpose can be derived that, in salary matters, there be a balanced and fair treatment for different labor activities, whether or not they have a professional nature. This Chamber has reiterated this in its various pronouncements. But, as has also been explained, that balanced treatment supposes –as in any other case where an equality dispute is at stake– that the differences that exist between the various activities be recognized, so that those that are different are not equated nor those that are equal differentiated, in such a way that undue privileges result from overvaluing some, or injustices because others are undervalued." In relation to salary equality in particular, in ruling No. 94-6471, it was said: "Nor is impairment observed to the right of equal salary for identical conditions since it is evident that, with the existence of diversity of functions in the Descriptive Position Manual, this logically entails salary differences." Moreover, in ruling No. 15-10348, the Chamber indicated:

"[The PGR]... the advisory body clarifies that although the Constituent's intention was to establish a single and uniform salary regime for the entire Public Administration, the truth is that in the case of other Branches of the State other than the Executive, autonomous entities, decentralized entities and public companies, their superior hierarchical bodies have full power to dictate their own policies regarding job classification and evaluation, as well as to set, in turn, the respective remunerations in exercise of their legal authority. The PGR concludes by affirming that the UNED governs its life and internal organization in accordance with the postulates of its organic law and internal statutes, which are a manifestation of the collective university will, as it enjoys a superlative degree of administrative and governmental autonomy, distinct from the rest of the decentralized entities, in accordance with articles 84 and 85 of the Political Constitution, and therefore it can freely issue –within the limits of the Constitution- the provisions related to its internal regime regarding employment (including remuneration), both for academic and administrative positions. This Constitutional Tribunal shares the position adopted by the advisory body to resolve the merits of this case." For that reason, it was stated, regarding general equality, in ruling No. 4090-94, the following:

"It is of utmost importance to indicate for the purposes of the issue raised, that the principle of equality established by Constitutional Article 33 does not have an absolute character since it does not properly grant a right to be equated to any individual without distinction of circumstances, but rather to demand that the law not make differences between two or more persons who are in the same legal situation or in identical conditions, and equal treatment cannot be expected when the conditions or circumstances are unequal..." The jurisprudential line of the Chamber has been clear, in the sense of recognizing that the indiscriminate equalization of remunerations among members of the public powers is not admissible, because imposing equal treatment on situations or officials who are objectively in circumstances of inequality would violate, in general, the principle of equality and specifically regarding salaries and working conditions, Article 57 of the Constitution. However, if the salary equalization is not indiscriminate, but rather addresses objective and supported technical criteria, there would be no inequality:

"Regarding the invoked discrimination, this Chamber in its reiterated jurisprudence has stated that Article 33 of the Political Constitution does not imply that, in all cases, equal treatment must be given regardless of possible differentiating elements of legal relevance that may exist; or what is the same, not all inequality necessarily constitutes discrimination. The principle of equality, as this Chamber has stated, is only infringed when the inequality is devoid of an objective and reasonable justification." (ruling No. 2000-00953).

Regarding salary increases and human dignity at work, through ruling No. 2003-005374, for the majority of the Chamber at that time, a fundamental right to cost-of-living increases does not exist, in those cases where the salary is above the minimum wage:

"It is further asserted that a fundamental right to cost-of-living increases exists. This latter argument is not acceptable to the majority of the Chamber, since in accordance with the Political Charter, the only thing that exists as a subjective public right is the right to salary, a rule that causes the legal duty of the employer to remunerate the work of its collaborators in a dignified manner. That is, the rule automatically generates a positive obligation on the part of the employer, consisting of its duty to remunerate the salaried worker in a dignified manner. Thus, as provided by constitutional Article 57, every worker has the right to "...a minimum wage, to be periodically set, for a normal workday, that procures well-being and a dignified existence." From such a fundamental guarantee, a fundamental right to cost-of-living increases cannot be derived, as is claimed. The rule guarantees a minimum retribution, a right that translates into the guarantee of seeing work remunerated, through a minimum wage, subject to periodic setting, which is not equivalent, in any way, to a right to an annual salary increase, in those cases where it is above the minimum wage. On the other hand, the majority of this Tribunal does not consider that there is evidence in the record that the rule prohibits the possibility of the claimants being remunerated in a dignified manner, and therefore such allegation must be equally rejected. Not only is such proof lacking, but furthermore, it could not be understood that it is an evident circumstance that does not need to be proven." The foregoing was ratified by ruling No. 2004-013421, insofar as it says that there is no fundamental right whatsoever that refers to salary increases. However, this Tribunal warns that the freezing (congelamiento) of salaries is not only a different situation, but also, it must be temporary and not permanent, as derived from ruling No. 2003-009952, since such freezing, which supposes a sacrifice by the worker, by not seeing their salary increased despite the increase in the cost of living, can be done only for a defined or determined period and only due to extraordinary circumstances or national interest. Indefinite freezing over time would illegitimately affect future consolidated legal situations and would constitute a state abuse ad infinitum, since it would not only harm the official's salary, but also other rights such as retirement.

• 3)Concrete analysis of what was consulted (drafted by Magistrate Castillo Víquez) In the first facultative consultation of constitutionality, the deputies allege that the freezing of salaries established in Transitory Provision XI, subsection b), violates constitutional Articles 11 and 33, because they disregard other existing regulations that recognize rights for this sector of health professionals -referring to the CCSS official-, and because they will receive a different salary from persons who begin working with a higher salary under the same conditions as those already working for the institution. To substantiate the violation in question, they specifically allude to the provisions of the following articles of the draft law: 6, 7 d), 9, 13 b), 14, 17 and 18. Likewise, they argue that it subjects the CCSS to Mideplán provisions regarding public employment management, for example: it imposes the duty to populate and update an employment platform every 6 months. They express that Transitory Provision XI, subsection b), aims to modify the salary system to a global salary, without repealing or modifying other regulations that recognize differentiated salary adjustments, such as the Ley de Incentivos a los Profesionales en Ciencias Médicas and its regulation, nor the Estatuto de Servicios de Enfermería.

In the second facultative consultation of constitutionality, the consultants affirm that Transitory Provision XI, as it is proposed, conceives and promotes the establishment of two different salary scales and remuneration amounts for the same job position, for public officials who perform functions and responsibilities under equal conditions and who will be remunerated in a differentiated manner, without this having a basis in objective and rational elements, which could last for 12 or 15 years. For the deputies, the principles of salary equality, equity and non-discrimination are violated, as well as Articles 33 and 57 of the Fundamental Charter, and Articles 167 and 405 of the Labor Code. Furthermore, they maintain that there are no technical or objective studies or reasonings that justify the prevalence of the salary difference proposed in that transitory provision. Finally, Transitory Provision XI transgresses and violates the principle of salary equity established in subsection 4 c) of the same project.

As can be deduced from this summary of the grievances of both consultations, the dissatisfaction of the deputies centers on the cited transitory provision, but not on other rules of the draft law. The invocation of rules of the draft law, as well as of other current legal regulations -Labor Code and incentive laws in the health area- are supporting arguments that are wielded to maintain that Transitory Provision XI and, to a lesser extent, XII, are unconstitutional. Ergo, the majority will limit itself to the analysis of the questioned transitory rules, and not of other current infra-constitutional regulations -which cannot be subject to prior constitutionality control, but rather to a posteriori constitutionality control-, nor of the draft law rules they invoke.

As is well known, transitory law is a legal technique that seeks to respond to the problems of applying norms over time, which arise as a result of the repeal of one and the effectiveness of another, in which it becomes necessary to adapt the prevailing situations to the new reality created by the recently enacted law. Indeed, as the doctrine has well sustained, transitory provisions form part of Intertemporal Law insofar as they tend to solve conflicts of laws. Faced with the transitoriness problems that the new law causes, the legislator establishes a legal regime applicable to pending legal situations. In that sense, the function of the so-called transitory provisions is to regulate, temporarily, certain situations, with the aim of adjusting or accommodating the new regulations or giving a distinct and temporary treatment, of an exceptional nature, to certain situations. It is important to highlight that at the basis of the transitory rule lies that need to respond to problems posed by the entry into force of the new law; that is its essence. It has been said that the content of transitory provisions seeks to resolve several situations. First, whether the new regulations apply or not to legal situations prior to the law, either declaring the application of the new law, the survival of the old law, or establishing a transitory regime different from that set forth in both laws -the old and the new-. Another option that the legislator has, within a range of alternatives, is to provisionally regulate new legal situations when this is intended to facilitate the definitive application of the new law.

Regarding whether or not there is a violation of the principle of equality due to a transitory rule, it is important to bring up what the Spanish Constitutional Court expressed in order 367/2003, of November 13 -ECl:ES:TC:2003:367A-.

"On the other hand, it is not observed that the questioned precept incurs discriminatory harm to art. 14 CE to which the filing Order alludes by remitting to the arguments, certainly confused, of the plaintiff in the a quo process. At the outset, it must be observed that the application of the calculation rules for the regulatory base of the pension have nothing to do with whether retirement occurs early or by reaching the ordinary age of 65 (age is taken into account for percentage purposes), and therefore there is no valid term of comparison on which to base the judgment of equality regarding the alleged discrimination invoked to question the precept. Indeed, the rules contained in transitory provision five, 1, LGSS, apply, for any type of retirement occurring after the entry into force of the rule, depending on the date on which the retirement occurred. As the plaintiff retired in 2002, the provisions of the last paragraph of transitory provision five, 1, LGSS, which refers to art. 162.1 LGSS (a precept, moreover, not questioned by the proposing judicial body), are applicable, that is, dividing the interested party's contribution bases during the 180 months immediately preceding the triggering event by 210. Certainly, if the plaintiff in the a quo process had been born several years earlier, he could have retired before the year 2002 and other calculation rules, those in force in the year in which the retirement occurred, would have been applied to him. But that the application of the preceding legislation could possibly be more beneficial to the plaintiff in the a quo process does not determine that the new regulation can be considered, for that reason, contrary to art. 14 CE, since the principle of equality cannot constitute a dike against the successive legal reforms that the legislator considers necessary to introduce, as said principle does not require that all situations, regardless of the time in which they originated or produced their effects, must receive equal treatment by law, since this would affect the circle of powers constitutionally attributed to the legislator and, ultimately, the natural and necessary evolution of the Legal Order (SSTC 119/1987, FJ 3; 88/19991, FJ 2; 38/1995, FJ 4).

As this Tribunal already pointed out early in its STC 27/1981, of July 20, FJ 10, on the occasion of a legal reform referring to administrative mutualism, whose arguments can be perfectly transferred to the matter at hand, "the Legal Order, by its very nature, resists being frozen at a historically determined moment: it orders relationships of human coexistence and must respond to the social reality of each moment, as an instrument of progress and improvement. Normally, it does so by establishing relationships for the future. But a norm can hardly prevent the future rule from affecting pre-existing legal relationships, which constitute the foundation of future relationships; and it is for this reason that such norms often must contain transitoriness precautions that regulate the pace of substitution of one legal regime for another.... The change of legal regime that is denounced does not imply the suppression of any already consolidated benefit." (Bold text does not correspond to the original).

In addition to the above, it must be borne in mind that Article 33 of the Political Constitution, which recognizes the principle of equality, implies, as recognized by the Constitutional Chamber in multiple resolutions, that all persons who find themselves in the same situation must be treated equally. On the other hand, "The principle of equality, contained in Article 33 of the Political Constitution, does not imply that in all cases, equal treatment must be given regardless of the possible differentiating elements of legal relevance that may exist; or what is the same, not all inequality necessarily constitutes discrimination. Equality, as the Chamber has stated, is only violated when the inequality is devoid of an objective and reasonable justification. But in addition, the cause of justification for the act considered unequal must be evaluated in relation to its purpose and its effects, in such a way that there must necessarily exist a reasonable relationship of proportionality between the means employed and the purpose itself. That is, that equality must be understood based on the circumstances that concur in each specific case in which it is invoked, in such a way that the universal application of the law does not prohibit contemplating different solutions for different situations, with diverse treatment. All that has been expressed means that equality before the law cannot imply a material equality or real and effective economic equality" (see rulings No. 1770-94 and 1045-94).

The point is to determine whether this differentiation of treatment is based on constitutionally legitimate ends, whether it is objective, that is, whether it is based on a different factual circumstance, whether it is based on relevant differences (tertium comparationis), whether there is proportionality between the constitutional purpose and the differentiated treatment that has been made, and the motive and content of the act, and whether that treatment is suitable to achieve the desired end.

In the first scenario, the difference in treatment presupposes that it is based on constitutionally legitimate objectives, which entails three consequences for the intended purpose. First, laws cannot pursue ends that contradict the Law of the Constitution or the norms found in international Human Rights instruments. Secondly, when pursuing ends not constitutionally protected, but which do not contradict its values and principles, the differentiation of treatment must be strictly monitored in relation to the factual circumstances that justify it and the purpose it pursues. Lastly, when a constitutionally protected end is pursued, the differentiation of treatment will be valid as long as it respects the criteria of reasonableness, proportionality and is necessary.

The Constitutional Chamber, in ruling No. 4883-97, expressed the following regarding this principle:

"The principle of equality, contained in Article 33 of the Political Constitution, does not imply that in all cases, equal treatment must be given regardless of the possible differentiating elements of legal relevance that may exist; or what is the same, not all inequality necessarily constitutes discrimination. Equality, as this Chamber has stated, is only violated when the inequality is devoid of an objective and reasonable justification. But in addition, the cause of justification for the act considered unequal must be evaluated in relation to its purpose and its effects, in such a way that there must necessarily exist a reasonable relationship of proportionality between the means employed and the purpose itself. That is, that equality must be understood based on the circumstances that concur in each specific case in which it is invoked, in such a way that the universal application of the law does not prohibit contemplating different solutions for different situations, with diverse treatment. All that has been expressed means that equality before the law cannot imply a material equality or real and effective economic equality.' (Ruling number 6832-95 of 4:15 p.m. on December 13, 1995)." (Bold text does not correspond to the original).

Finally, it must be emphasized that compliance with the principle of financial or budgetary balance in this case, is an objective and reasonable justification for concluding that the transitory regulation is in accordance with the Law of the Constitution, especially if the highly deteriorated fiscal situation of the central Government is taken into account, which endangers the viability of the Social State of Law and the Costa Rican economy as a whole. In this direction, in advisory opinion No. 2018-18505, we expressed the following:

"On the matter, confronted with a critical condition in public finances (duly supported by technical studies), which puts at risk the effective or adequate execution of constitutionally relevant benefits, the decision of the competent authorities to define and apply apt measures to alleviate or solve the problem is not only reasonable, but, even more so, is unavoidable.

Now, it is not incumbent upon the Chamber to define specifically which type of remedies should be applied or which is the most adequate, since that forms part of the State's economic policy, which in turn constitutes a matter of government. In reality, constitutionality control is constrained to ensuring that the solutions are adopted by safeguarding the fundamental rights protected in the Political Constitution and the instruments of international human rights law ratified by Costa Rica, as well as the essential qualities of the country's political regime (in a democratic, free, independent, multiethnic and pluricultural republic, whose Government is popular, representative, participatory, alternative and responsible), all of which implies an exercise of balancing and optimization of the various principles, rights, and constitutional values at play.

In this context, a harmonious interpretation of the principle of budgetary balance and the Social State of Law is of special importance. The Chamber warns that, for a Social State of Law to be able to persist and fulfill its constitutional and legal purposes, it becomes necessary to carry out sound management of public finances; that is, there must inexorably exist a balance between benefit rights and state economic solvency, since the former depend on the material possibilities afforded by the latter, while the purpose of the latter is to strengthen the development of a supportive political system, one in which the least favored strata of society find protection for their human dignity and their right to progress. Put another way, the "ideal" Social State of Law is the "possible" Social State of Law, against which precisely action is taken when the principle of budgetary balance is broken, since, in the medium term, this seriously risks or entirely prevents obtaining the necessary resources to sustain a "real" Social State of Law, one that the most vulnerable can truly and effectively enjoy." Monitoring therefore that we do not end up with a failed or paper Constitution, where constitutional-level entitlements cannot be effective, is a fundamental task of this Chamber, strictly within what the framework of its powers permits.

It should be noted, indeed, that all constitutional principles, values, and precepts must be observed in any circumstances, which the constitutional jurisdiction is permanently responsible for monitoring. Now, by reason of the exercise of balancing or optimization that the constitutional judge performs to resolve some collision among such principles, values, and precepts, the context surrounding the conflict cannot go unnoticed.

Corollary of the foregoing: the non-observance of the principle of budgetary equilibrium has been one of the causes of the current deteriorated state of public finances, a reason that leads this Chamber to underscore the cross-cutting nature of said principle and to emphasize its real implementation in the interest of the principle of the Social State of Law. The observation of the State of the Nation Program is insisted upon: ‘This [referring to the structural imbalance in public finances] has put in check the future of the social welfare state built throughout the second half of the 20th century, since its financing and the efficiency of its spending are not sufficient’”.

As regards the breach of the principle of legality, the petitioners do not make an adequate argument from the perspective of Constitutional Law. Hence, this Court does not issue further consideration on the matter.

• 4)Conclusion For the foregoing reasons, it is concluded, by majority, that Transitory Provisions XI and XII do not violate the principle of equality—equal pay for equal work under identical conditions of efficiency—nor that of legality and, consequently, are not unconstitutional." "...

XIX.- On the violation of due process (single dismissal procedure).- (drafted by Judge Picado Brenes) 1) Matters consulted The petitioners indicate that both the dismissal procedure regulated in Article 21 of the bill under study, and the appeals phase against dismissal provided for in the subsequent Article 22, infringe a series of constitutional norms and principles relating to due process, and indicate that the content of these sections is related to Article 49, subsection b) —of the same bill— which refers to a series of reforms proposed in relation to the Civil Service Statute. They argue that, in the reform intended to be made to Article 43 of the Civil Service Statute, the aim is to incorporate this dismissal procedure; however, they claim that serious differences, incongruities, and contradictions are found between both texts. These contradictions and antinomies generated in a single text are considered by the petitioners to be violations of the principles of legal certainty and legality, and they add that there is no clarity regarding time limits (plazos), admission of evidence, right of defense, among others, mentioning that this was highlighted by the Civil Service Tribunal. They consider that the dismissal procedure is key in the development of public employment relations in public institutions, therefore they deem that clarity in the process is fundamental for its application because, without a detailed procedure that respects constitutional guarantees, one would be facing a potential nullity and inapplicability, in addition to placing officials in a state of defenselessness and fostering a situation extremely detrimental to the administration, which will not be able to proceed with the dismissal of an official, even if grounds exist, due to the absence of a process that respects legality and due process. The petitioners insist that due process is a constitutional guarantee that must be respected in any procedure, both administrative and judicial, allowing compliance with the right of defense and the corresponding procedural guarantees, and they recall that among the essential components of due process are the right to be heard, the evidentiary and legality principle, the two-instance system, among others, which, the petitioners believe, are being violated in the text of the bill. They claim that both the Supreme Court of Justice and the Office of the Comptroller General of the Republic (Contraloría General de la República) highlighted the failings and shortcomings that the bill contains regarding the procedure for the dismissal of officials.

Specifically, the legislators claim that some of the inconsistencies and contradictions found regarding the dismissal procedure are as follows:

Automatic penalty of disqualification: they indicate that, in subsection a) of Article 4, the principle of the State as Sole Employer is stipulated and it is noted that by virtue of said principle, sanctions that generate the dismissal without employer responsibility of the official in one institution, in accordance with the current legal system, will prevent any other entity or body that forms part of the State from hiring them for a period of six months to two years; however, they argue that the manner in which the period of the established impediment will be determined is not indicated, nor is the competent body to establish said period. In this regard, it must be noted that this aspect was already examined in this judgment in a previous recital (Recital XVII), and therefore reference is made to what was indicated there.

Ground for immediate dismissal (two performance ratings below 70%): they indicate that, in the first paragraph of Article 21, obtaining two performance ratings below 70% in the performance evaluation is established as a ground for immediate dismissal, once said ratings become final. They state that, in addition, the second and third paragraphs establish the obligation of the institutions to apply a remedial plan after the first rating. The petitioners indicate that, in the first three paragraphs of this Article 21, no procedural rules are established, but rather grounds for dismissal, so in reality —in their view— they should be included in the previous article, referring to the cessation of public employment. They warn that the third paragraph of this Article 21 repeats the same provision established in the second paragraph, generating confusion, ambiguity, and possible interpretations, which leads to a lack of clarity regarding the rule. Furthermore, they note that although both paragraphs refer to the preparation of remedial plans resulting from the performance evaluation, the second paragraph establishes that this plan must be agreed upon with the public servant, while the third does not establish that condition. They also consider that there is a contradiction regarding whether the remedial plan should be generated with the advice of human resources or not. In this regard, in the opinion of this Court, it must be stated that, indeed, there seems to be confusion, insofar as the second and third paragraphs appear to be replicated, with some differences. However, despite the fact that this may be a matter of possibly poor legislative technique, the fact of the matter is that, for this Court, this does not imply its unconstitutionality and, therefore, the argument raised by the petitioners on this point is rejected.

Time limit (plazo) of 15 days or 10 days: They indicate that, in subsections b) and c) of this Article 21, a period of 15 days is granted for the respondent official to oppose the formal statement of charges; however, they claim that, conversely, in subsection g) of this same article, it is indicated that said period is 10 days, which they consider to be an evident contradiction in the time limits stated for the formal statement of charges that entails a violation of the principle of legal certainty. In this regard, for the Chamber, although a possible contradiction and possibly poor legislative technique is observed, this does not imply that the consulted text is unconstitutional, and the arguments raised on this specific point must be rejected.

Appeals (Recursos): They argue that subsection i) of the same Article 21 establishes the appeals for revocation (recurso de revocatoria) and appeal in subsidio (recurso de apelación en subsidio) against the resolution ordering an oral reprimand, written warning, or suspension without pay, and they warn of the existence, in the legislative file, of a note signed by the Clerk of the Civil Service Tribunal, which states: "In addition to the evident contradiction between what is proposed in subsection i of Article 22 of the bill and in the reform proposed to subsection i) of Article 43 of the Civil Service Statute, in which the appeal is established for resolutions ordering an oral reprimand, written warning, and suspension without pay, and what is proposed in the reform to Article 75 of the Civil Service Statute, in which it is provided in the second paragraph that the resolution ordering an oral reprimand, written warning, or suspension without pay for up to one month, will only have an appeal for revocation." In this regard, for this Court, what was consulted is not clear, nor is it observed that the consultation on this point is duly substantiated or developed so as to understand the scope of the challenge that was intended to be raised. In that sense, it must be taken into account that the bill does not contain a reform to Article 75 of the Civil Service Statute; nor does it include a reform to Article 43 of that regulatory body, but rather, on the contrary, what is observed from the complete reading of the bill under study is its derogation. Therefore, it is not appropriate to proceed to examine this consulted aspect.

Absence of body that will hear appeal (apelación): The petitioners state that the second paragraph of subsection i) of Article 21 under study limits the power of the Civil Service Tribunal to hear appeals filed by public servants working in an institution covered by the Civil Service Statute (Law No. 1581); however, it is argued that this subsection does not indicate which body will hear appeals filed by public servants working in institutions not covered by said law, considering that, once again, the principle of legal certainty is violated. In this regard, this Court must state that the issue raised, concerning the lack of clarity of the rule, is not a matter of constitutionality. It will fall to the legal operator to determine, in each case, which rule is applicable to the specific situation being analyzed at that moment. Consequently, this allegation must be dismissed.

Contradictory subsections: The consulting legislators claim that Article 21 of the bill under study grants competence to resolve dismissals in the first instance to institutional heads and indicates that the process of investigation (instrucción) and resolution of dismissals is carried out internally within each institution. In turn, they add that Article 22 grants the Civil Service Tribunal jurisdiction in the second instance over appeals against dismissal resolutions; however, they claim that "a subsection is established that contradicts all of the foregoing and says that the first instance of dismissals is heard by the Tribunal, and that the investigation is carried out by the General Directorate of Civil Service, likewise, the investigation by the General Directorate of Civil Service is excepted when dismissal proceedings are against officials of the Ministry of Public Education (teaching or administrative staff), when said officials have incurred the grounds of Article 66, subsection a), of the Code of Children and Adolescents, Law No. 7739, indicating that in these cases the investigation will be carried out internally within the Ministry of Public Education, according to the provisions of Title II, Chapter IV, Articles 59 and following of the Civil Service Statute. This provision makes no sense if in all previous provisions the Ministers and Institutional Heads are granted the power to investigate and resolve dismissals in the first instance, and the Tribunal the competence to resolve in the second instance." In this regard, it is evident that what was consulted is not clear, nor is the grievance duly substantiated or developed. Likewise, from the consultation brief, it is not identified which is the "subsection that contradicts everything above." A general reading of the bill does not allow locating a rule like the one described by the petitioners; and, consequently, in the absence of adequate substantiation of the consultation on this point, the Chamber cannot rule on it.

Administrative Tribunals of the Pensions and Retirements Regime of the National Teaching Profession and the Civil Service: The petitioners consider that the study of the competencies and bodies responsible for resolving matters related to the dismissal procedure should be taken into account, in relation to what is established in the Law on the Creation of the Administrative Tribunals of the Pensions and Retirements Regime of the National Teaching Profession and the Civil Service (Law No. 8777 of October 7, 2009), through which the Administrative Tribunal of the Civil Service is created, which is granted functions to hear appeals in matters of dismissals of workers subject to the employment regime of the Civil Service Statute, as well as other matters that by law or regulation must be heard by this Tribunal. The petitioners argue that, despite the foregoing, in the bill under study, no integration was made with that Law, nor were competencies granted or modified to said tribunal, and this omission could generate a conflict of competencies, or else, that this Tribunal has no assigned functions, promoting duplication of tasks or, in the worst case, a body with staff and resources without functions. In this regard, it is observed that the bill under consultation, in addition to what is provided in its Articles 21 and 22, provides for a series of modifications and reforms to the Civil Service Statute and to the aforementioned Law on the Creation of the Administrative Tribunals of the Pensions and Retirements Regime of the National Teaching Profession and the Civil Service, to the point of substantially varying the dismissal procedure existing to date for officials covered by said statute. However, notwithstanding the foregoing, in relation to the consultation raised on this point, the Chamber observes that there is no record of any duly substantiated argument from the petitioners linking such changes to constitutional problems; consequently, in the absence of substantiation of this aspect, a ruling on the matter is omitted.

Different time limits and appeals (recursos): It is argued that there are time limits and appeals that are processed differently between what is indicated in the bill and Law No. 8777 (on the Creation of the Administrative Tribunals of the Pensions and Retirements Regime of the National Teaching Profession and the Civil Service). In this regard, it is observed that this consulted point is not duly developed or substantiated, so this Chamber cannot proceed to hear the challenge.

Confusion in areas of competence: It is indicated that the bill creates absolute confusion regarding the dismissal procedure and the areas of competence in each of the instances; furthermore, it is noted that it is evident that the Civil Service Tribunal cannot be, on the one hand, the competent body to hear dismissals in the first instance and, on the other hand, the one responsible for analyzing these dismissals in the second instance. On this matter, what was consulted is not developed or duly substantiated, therefore the Chamber cannot proceed to hear this aspect.

Confusion between concepts: It is indicated that due process is a constitutional guarantee that must be respected in any procedure, whether administrative or judicial, and in the petitioners' opinion, the procedure contained in the bill (Articles 21 and 22) violates what has been developed by the Constitutional Chamber in relation to due process: firstly, for violation of the principle of legality regarding the regulatory gaps and antinomies generated by the existing contradictions and, secondly, for not contemplating fundamental rights. They state in the Consultation that this was highlighted by the Supreme Court of Justice through official letter No. SP-62-2021 of June 3, 2021, in which the legislator was alerted to the serious deficiencies that Articles 21 and 22 of the bill have: confusion between the concepts of expiration (caducidad) and statute of limitations (prescripción), impairment of orality in the process, preliminary exceptions, and others. In this regard, it should be noted that this consulted topic is not duly developed or substantiated in the consultation brief, since the petitioners merely transcribe an excerpt of what was indicated in official letter No. SP-62-2021, but do not make an adequate argumentative development of their view to justify what they intend to consult. Thus, this Chamber also cannot hear this point.

Weaknesses: The petitioners indicate that the Constitutional Chamber, in ruling number 1739-92, established that there exists a general right to legality and justice derived from section 41 of the Political Constitution and state that both rights constitute sine qua non conditions without which due process cannot be developed, so much so that when these two rights are infringed, they themselves imply a violation of due process. They argue that, in the case under study, the procedure developed in the bill (Articles 21 and 22) violates what was stated by the Constitutional Chamber regarding due process, firstly, for the violation of the principle of legality regarding the regulatory gaps and antinomies generated by the contradictions previously noted and, secondly, for not contemplating fundamental rights in this procedure. The petitioners note that both the Supreme Court of Justice and the Office of the Comptroller General of the Republic highlighted weaknesses, regarding: 1) indetermination and/or confusion between the concepts of expiration and statute of limitations; 2) regulation oriented towards institutional hierarchy; 3) impairment of orality in the procedure; 4) means of notification; 5) preliminary exceptions; 6) second appearance; 7) list of sanctions; and 8) extension of time limits for appeals. In relation to this consulted point, besides being similar to the previous point, this Court considers that an adequate development has also not been made, nor has the view intended to be consulted been duly substantiated. It should be noted that the petitioners confine themselves to making a mere reference to alleged weaknesses detected by the Office of the Comptroller General of the Republic, but do not develop or argue them. Under this situation, the Chamber could not rule, and therefore the consultation is rejected on this point.

Omissions: It is indicated that the bill fails to make the express derogations of all the current regulations it contradicts, and they recall that such derogations, when dealing with a matter as complex as public service, are reserved to law and cannot be subject to the future and arbitrary free interpretation of the legal operator. In this regard, in the Chamber's opinion, it could be that what the petitioners described as "omissions" is actually due to a problem of poor legislative technique, which does not necessarily imply, in turn, a problem of constitutionality, such that it will be up to the legal operator to determine the eventual tacit derogations that might exist at the time of applying the law, if it were to enter into force in this form; consequently, this point does not imply a violation of Constitutional Law.

• 2)Conclusion The matters consulted regarding Articles 21 and 22 of the "PUBLIC EMPLOYMENT FRAMEWORK LAW" bill, being processed in legislative file No. 21.336, do not contain violations of the constitutional due process principle, but rather most of what was consulted in that regard refers to problems of legislative technique that will be for the legislator or the legal operator to amend. Furthermore, other consulted aspects were not duly substantiated, so this Chamber omits issuing a substantive ruling on them.

XX.- On the violation of the principle of fiscal sustainability by the leaves (permisos).- (drafted by Judge Picado Brenes) 1) Concrete analysis of the matters consulted The petitioners claim that Articles 39, 40, 41, and 42 of the Bill are contrary to Articles 11, 176, 179, and 190 of the Political Constitution, to the principle of reasonableness, to the univocal rules of science and technique, to the elementary principles of justice, logic, and convenience, as well as also imply a violation of the principle of fiscal sustainability. These articles concern, respectively, an unpaid leave to reduce the workday by up to one-third, to include paternity leave, as well as the extension of maternity leave for up to two additional months.

As can be gleaned from the bill under study, in summary, the challenged articles refer to the following:

-Article 39: paid leave (permiso remunerado) to reduce the workday by up to one-third, when it is necessary to care for a family member with an illness or disability.

-Article 40: unpaid leave (permiso no remunerado) to reduce the workday by up to one-third, when it is necessary to care for a family member with an illness or disability.

-Article 41: paternity leave with full pay for one month.

-Article 42: extension of paid maternity leave for up to two additional months, in the event of a premature birth, children with severe disability or chronic illness, and in cases of multiple births.

Specifically, the consulting legislators raise the following allegations:

Lack of cost study: They indicate that, at the time of incorporating these leaves and permits into the bill, no cost study or source of resources to cover them was taken into consideration. In this regard, it cannot be overlooked that the legislator has a broad margin of legislative discretion in the formation of laws; a criterion that has been repeatedly upheld by the Constitutional Chamber, stating that, in principle, it is not strictly necessary for all legislative decisions to have technical or financial studies. Thus, for example, in judgment No. 2018-000230 of 10:40 a.m. on January 10, 2018, this Court stated that: "[t]he Chamber rejects that, irretrievably, all decisions of the legislator must contemplate a technical study, since such a situation would nullify the discretion of the legislative body, subjecting it to the criterion of third parties that lack democratic representation. Technical studies are necessary when there is an express rule in that regard (for example, in environmental matters) or when the subject matter demands it, under penalty of transforming discretion into arbitrariness." Thus, not all decisions of the legislator must contemplate a technical study since such a situation would nullify the discretion of the legislative body, subjecting it to the criterion of third parties lacking democratic representation, stating that technical studies are necessary when there is an express rule in this regard (for example, in environmental matters) or when the subject matter demands it, under penalty of transforming discretion into arbitrariness (criterion reiterated, among others, in judgment No. 2019-020596 of 7:15 p.m. on October 25, 2019). In this matter, the Chamber has referred to the principle of discretion or free configuration of the legislator, mentioned in judgment No. 2003-05090 of 2:44 p.m. on June 11, 2003, according to which, the Legislative Assembly, in the exercise of its materially legislative function of dictating norms of a general and abstract nature, that is, laws in a formal and material sense (Article 121, subsection 1°, of the Political Constitution), enjoys broad freedom of configuration to develop the constitutional program set by the Constituent Power; margin of maneuver regarding the regulated matter that has also been called legislative discretion, understood as the possibility that this body has —limited only by Constitutional Law—, when faced with a determined need of the social body, to choose the normative solution or rule of law it deems most just, adequate, and suitable to satisfy it, all within the range or plurality of political options freely offered by the electoral body through the system of legislative representation (criterion reiterated, among others, in judgment No. 2016-010244 of 09:05 a.m. on July 20, 2016, and recently in judgment 2020-015542 of 11:40 a.m. on August 19, 2020). From this perspective, the petitioners are not correct in considering that the leaves and permits contained in these Articles 39 to 41 are unconstitutional for the mere fact that, according to their statement, they are not justified by cost studies or by the corresponding sources of resources to cover them. On the other hand, the petitioners did not provide sufficient elements of judgment to allow affirming that the consulted norms cause, per se, an increase in costs that would put State finances at risk, or that there is a lack of resource sources for their implementation. Due to these circumstances, the argument raised on this point is rejected.

Failure to consider the opinion of the CCSS: They indicate that the opinion that the CCSS might have was not taken into account, which, in cases of paid maternity leave, according to the provisions of Article 95 of the Labor Code, must, together with the employer, cover in equal parts the corresponding payment for the leave. The petitioners claim that this constitutes a violation of Article 189 of the Political Constitution, as it could entail a violation of the administrative and financial autonomy of the CCSS. In this regard, in the opinion of the Chamber, although it is true that the bill, by modifying the term of maternity leave or by creating paternity leave, could eventually affect this autonomous institution at a functional and financial level, it is also true that the opinion of the CCSS was requested. On this matter, it must be taken into account that Article 190 of the Political Constitution establishes that "For the discussion and approval of projects relating to an autonomous institution, the Legislative Assembly shall previously hear the opinion of that institution"; for its part, the Constitutional Chamber, when interpreting that section, has indicated that the consultation established therein must be carried out when the bill in question affects the essential competences of autonomous institutions, which does not mean that every bill or any modification related to an autonomous institution through a bill must be consulted to it, but only those aspects referring to its constitution or organic structure, or those relating to the essential scope of the competences of the institutions involved (see judgments No. 2020-008848 of 9:20 a.m. on May 13, 2020, No. 2001-011129 of 1:08 p.m. on October 23, 2001, 2014-007914 of 9:15 a.m. on June 6, 2014, 2012-02675 of 11:52 a.m. on February 24, 2012, and 2008-004569 of 2:30 p.m. on March 26, 2008, among others). Now, from the review of legislative file No. 21.336, the Court has it as certified that the bill in question was indeed duly consulted to the authorities of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) on several occasions, and it is held that, by official letter No. SJD-885-2019 of July 5, 2019, the Board of Directors of the Costa Rican Social Security Fund sent to the Permanent Ordinary Commission on Government and Administration of the Legislative Assembly the opinion requested from said institution in relation to bill No. 21.336 (see folio 592, Volume 2 of the legislative file). Subsequently, at folio 7602 of Volume 28, another opinion issued by that institution in relation to the bill is verified. Consequently, it is clear that the bill in its entirety was consulted to the Costa Rican Social Security Fund. The latest version of the bill in question, which includes the rules challenged here, was consulted to the CCSS in the month of April 2021; however, there is no record of any response from this institution. It should also be remembered that it is up to the legislator to assess whether what was expressed in the consultation warrants making a change to the text of the bill. For the purposes of the constitutional framework, what is verified is the carrying out of the mandatory consultation to the CCSS, what happens after it being a matter that transcends Constitutional Law.

Thus, whether the response provided by the CCSS to the various consultations made to it was sufficiently reasoned on this point as to lead the deputies to decide whether or not to make a change to the text is not a matter of constitutional character. Therefore, there is no reason to consider that a violation of constitutional order has occurred in this respect.

Failure to consider the impact on the services provided by the CCSS: They consider that the possible impact on the functioning of each institution was also not taken into account, nor was the performance in the provision of services they carry out, which must guarantee the continuity and quality of the public service. In this regard, even though the consulting parties raise this claim, the Chamber does not observe that they have put forth any type of arguments that demonstrate unconstitutionality or a violation of a constitutional right or principle. In essence, the Chamber considers that the opposition of the consulting parties lies in the fact that technical-scientific criteria were not taken into account, which could eventually have determined an impact on the functioning and performance of the institution; however, it is recalled what was indicated supra, in the sense that the drafting of these norms is protected by the principle of discretion or free configuration of the legislator and, therefore, no injury to the Law of the Constitution is observed, and the questions raised regarding this point must be rejected. Notwithstanding the foregoing, a warning is made regarding the fact that in one of the responses provided by the CCSS to the consultations made to it and in relation to this specific topic, this institution stated that by proposing in the bill to reduce the workday by up to one third and for a maximum of one year, "its application could imply a deterioration of the services provided by the institution, considering that health services are essential and to reverse this situation, overtime would have to be paid to cover the one third of the workday left by the public servant who avails themselves of this article, which would generate an increase in spending" (see folios 610 and 611 of Volume II of Legislative File No. 21.336). Likewise, with regard to the leaves protected in numerals 41 and 42 of the bill under study, it is observed that the CCSS stated that "the financing that the institution would have to face the payment of the extension of maternity leave is not defined, and regarding paternity leave with pay, it must be understood that the CCSS has a leave of six calendar days, so an extension of this benefit to officials would imply additional expenses for the institution, by making personnel substitutions in order to guarantee the continuity of services" (see folio 611 of Volume II of Legislative File No. 21.336). It being the legislator's responsibility to address or not these questions, it is not a matter of constitutionality for this Chamber to examine whether or not those criteria were considered in the various parliamentary instances.

Absence of objective reasons or technical criteria for expanding grounds for maternity leave: Regarding Article 42, which contemplates the extension of maternity leave, the consulting parties argue that it is a numeral containing a series of cases in which this extension is applicable (premature birth, children with severe disability and/or chronic illnesses, and multiple births); however, they consider that the bill does not contemplate the objective reasons or the technical or scientific criteria that justify including these grounds and not others. In this regard, it is again observed that the disagreement lies in the exercise of the free configuration or discretion of the legislator and, in essence, the opposition of the consulting parties again lies in the fact that technical-scientific criteria were not taken into account to define the cases under which the aforementioned leave could be extended. In this regard, it must be reiterated what was indicated in ruling No. 2018-00230 through which the Constitutional Chamber rejects that, inevitably, all decisions of the legislator must contemplate a technical study, since this, as has been said, would nullify the discretion of the legislative body, subjecting it to the criterion of third parties who lack democratic representation. In this sense, it is not proven that, in this case, technical studies were necessary, so the alleged unconstitutionality is dismissed.

Lack of technical studies regarding paternity leave: Regarding the paternity leave in Article 41 of the bill, which grants a leave with pay for one calendar month after the day of birth or at the time of adoption of the minor, the consulting parties claim that the file does not indicate—once again—the studies or technical criteria indicating the cost to the State of granting this leave or the source of financing. In this regard, indisputably, at this point the Chamber observes that the arguments of the consulting parties are reiterated in relation to what was analyzed supra in point a); consequently, reference is made to what was indicated there, and it is reiterated that this is a question that does not have the virtue of violating the Law of the Constitution, so the formulated proposal is rejected.

Antinomy between Articles 39 and 40: The consulting parties allege a supposed antinomy between Articles 39 and 40 (regarding paid and unpaid leave to reduce the workday by up to one third, for a maximum of one year, to care for a family member with an illness or disability). They consider that the norm is not clear, for its application, whether the leave corresponds to being paid or not, and at the same time whether it must be a serious accident or not, estimating that this generates legal uncertainty and that these contradictions can be found in other norms; for example, the reform to Article 7 bis of the Civil Service Statute, introduced by subsections b) and e) of Article 49, according to which it is not understood if the General Directorate of Civil Service is a body of MIDEPLAN or remains in the Ministry of the Presidency. As to this question, it is concluded that the arguments on which it is based do not refer to an aspect of constitutionality, but to a matter of legislative technique and the quality of the legislator's work, which must be corrected within the Legislative Assembly itself, and, therefore, the claim is rejected.

• 2)Conclusion The Chamber finds no defects of unconstitutionality in the aspects questioned regarding Articles 39, 40, 41, and 42 of the consulted bill, as it is a matter of legislative discretion, the mandatory consultation with the CCSS having been fulfilled, and there being no elements that must determine that the legislator should have had a prior technical study in this case. Furthermore, the topic of the alleged contradiction between Articles 39 and 40 of the bill, as it deals with a possible legal antinomy, does not have constitutional interest..." "... XXI.- Regarding the consultation on the exclusion of public enterprises in competition and other exclusions.- (drafted by Judge Picado Brenes) 1) Aspects consulted The consulting parties consider that Articles 2 and 3 of the bill injure Articles 33 and 191 of the Political Constitution, because the bill should not exclude any institution from its scope of application. They indicate that the Constituent Power foresaw, in this way, that the relations between the State and officials should be governed by a single regulation and a single statute, for all public officials, without generating exclusions or any differentiation; therefore, creating these exclusions would lead to there being public officials of different classes, by applying one legislation or another to them depending on the institution where they work, thereby violating the spirit of the Constituent Power insofar as it sought the efficiency of the administration. It must be indicated that Article 2 of the bill under study was already duly analyzed in previous recitals (see recitals IX, X, XII, and XIII) and, therefore, at this specific point, the Chamber will only rule regarding Article 3, which expressly regulates matters relating to exclusions; however, for the purposes of understanding the relationship existing between both numerals in the terms proposed by the consulting parties, it is essential to cite both:

"ARTICLE 2- Scope of coverage This law is applicable to public servant persons of the following entities and bodies under the principle of the State as a single employer: a) The Powers of the Republic (Executive, Legislative, and Judicial), their auxiliary and attached bodies, and the Supreme Electoral Tribunal (TSE), without prejudice to the principle of separation of Powers established in the Political Constitution. b) The institutional decentralized public sector made up of: autonomous institutions and their attached bodies, including state universities, the Costa Rican Social Security Fund (CCSS), semi-autonomous institutions and their attached bodies, and state public enterprises. c) The territorial decentralized public sector made up of municipalities, leagues of municipalities, district municipal councils, and their enterprises." "ARTICLE 3- Exclusions The following are excluded from the scope of application of this law: a) Non-state public entities. b) Public enterprises and institutions in competition, except as regards provisions on collective bargaining. c) The Benemérito Body of Firefighters." 2) Jurisprudential Background In a previous recital, this Chamber makes a jurisprudential analysis of what this Court has indicated regarding the existence or not of a single public employment regime. For the purposes of this section, it is appropriate to reiterate the jurisprudential line it has sustained on the possible existence of differentiated regimes and on the exception established in constitutional ordinance 192, in the following sense: "…The legislator, however, opted to regulate the service not in a general manner, but by sectors, thus promulgating the Civil Service Statute (which applies to the servants of the Executive Branch) and subsequently other statutes to regulate the provision of services in the remaining branches of the State and in some decentralized institutions(…) It is obvious that in the mind of the constituent power was the idea that not all public servants could be covered by the special regime, since the method of selection, the special capacities, the functions of each position, the relationships of trust and dependence are not the same in all cases, hence the principles derived from Article 192 are applicable to certain officials –the majority– not to all. The Constitution itself indicated several cases of officials of free selection and removal, such as government ministers, members of the public force, directors of autonomous institutions, diplomatic representatives, and in general, 'the employees and officials who hold positions of trust' (art. 140 paragraph 1), leaving to the law (Civil Service Law, says Article 140) the determination of other officials, who in very qualified cases, could be excluded from the general regime. This possibility of excluding certain officials is reiterated by Article 192. It is repeated that the constituent power's intention was that there should be a single law, a Statute, that regulated all public service. However, the important thing is that the ordinary legislator was left, by means of law, the detailed regulation of the coverage of the special regime, which it could do, as it did, in separate laws, without detriment to the constitutional mandate. By means of law, the legislator has excluded several cases from the common regime." (ruling No. 1990-1119). The emphasis is not from the original.

Due to the fact that one of the entities excluded from the consulted bill is the National Insurance Institute, it is timely to mention what this Chamber said in ruling No. 2013-16637 regarding employment in said institution: "On this particular norm, the Chamber has indicated in reiterated pronouncements that the National Insurance Institute, as a state public enterprise that it is, has the power to give itself its own internal organization; by virtue of this, it is not subject to the provisions of Article 192 of the Constitution, and therefore its workers are not attached to the Statutory Regime of the Civil Service nor to the principle of stability in public employment. In ruling No. 2008-11920 at 15:11 hours on July 30, 2008, recently reiterated in No. 2012-4942 at 15:39 hours on April 18, 2012, this Tribunal resolved the same allegations raised by the plaintiff, dismissing the reasons of unconstitutionality given, with the following considerations: "III.- The plaintiff alleges that in accordance with Article 62 of the Political Constitution, collective conventions have the rank and force of law, so that, in conformity with the principle of constitutional supremacy, their value is inferior to that of any constitutional norm or principle. Article 7 of the Constitution grants superior value to the law to the international treaties of the I.L.O. For its part, Article 192 contains several constitutional principles that must govern the employment relationship, among which are suitability and stability in employment; in relation to these two elements, as a corollary, removal is provided for by the causes of justified dismissal established by labor legislation and the forced reduction of services (restructuring) either due to lack of funds or in pursuit of achieving a better organization of said services. From this it follows that by constitutional mandate, the only way for a public official to be removed from their position or appointment is through causes of 'justified dismissal' in accordance with the labor legislation of the country. The plaintiff incurs an error in their analysis, as they affirm that the regime established from Article 191 of the Political Constitution, specifically the conditions indicated in Article 192 of the Constitution for public servants—removal by causes provided for in the legislation or by forced reduction of services—must be applied to the National Insurance Institute. Article 192 of the Constitution is contained in Title XV 'The Civil Service', Single Chapter, which regulates the relationship between the State and public servants with the purpose of guaranteeing the efficiency of the administration. However, and as the plaintiff rightly says, the I.N.S. is an autonomous institution that enjoys administrative autonomy, which grants it the power to carry out its competences and attributions, constitutionally or legally conferred, which presuppose the power to self-administer or dispose of its resources (human, material, financial). Its condition as an autonomous institution is expressly recognized in Article 189 of the Political Constitution; it can give itself its own internal organization and determine the content thereof. By reason of the foregoing, neither Article 192, nor any of those contained in Title XV, is applicable to the National Insurance Institute, as it does not form part of the bodies that make up the Public Administration. Precisely that condition of an autonomous institution places the I.N.S. and its employees in a totally different legal situation from that of the Executive Branch, its bodies and public servants, who are not protected by the Civil Service Statute and therefore do not enjoy the advantages of that labor legislation, among them the employment stability regime. In ruling 2004-5960, the Chamber determined that the I.N.S. is a public enterprise-public law entity, defining this as one that assumes the form of a public entity to carry out a totally or partially entrepreneurial activity (industry, commerce of goods and services, etc.). The servants of the I.N.S. are subject to a private employment regime, which means that the institution has the possibility of directing its labor relations as suits its organization, the public interest, and the achievement of its objectives. This Tribunal has indicated that the I.N.S. is an enterprise whose activity is similar to that carried out by any private individual insofar as it sells a certain product. By not carrying out 'public management', it may enter into collective labor conventions (ruling 4453-2000). […] IV.- Conclusion. The power of self-organization of the I.N.S. derives from Article 189 of the Political Constitution. It is a public enterprise-public law entity, whose servants are not covered by the Civil Service regime, but by private labor law; for this reason, it may subscribe to collective conventions. Starting from such premises, the content of Article 160 is valid from the constitutional point of view, so the dismissal on the merits of the action is appropriate." Equally appropriate is to cite what this Chamber has indicated regarding the discussions on the personnel of the Costa Rican Electricity Institute, and with greater clarity after the approval of the Telecommunications reform carried out in 2008: "For its part, the appealed authority alleges that Law No. 8660 for the Strengthening and Modernization of Public Entities of the Telecommunications Sector granted the ICE full autonomy to administer its human resources and dispose of them. By merit of this, the respondent states that ICE employees—save for certain exceptions, among which the person under protection is not included—are not public officials, thus common labor law is applicable to them. Consequently, the ICE was not compelled to institute a prior disciplinary procedure before the dismissal of the protected party. For the purposes of resolving the sub examine and determining whether the plaintiff's fundamental rights to due process and to work were effectively violated, it is unavoidable to refer to the normative framework that regulates the labor relations of ICE officials. Firstly, Law No. 8660 for the Strengthening and Modernization of Public Entities of the Telecommunications Sector (published in Gazette No. 156 of August 13, 2008) stipulates: "ARTICLE 32.- Personnel Statute. The ICE shall have full autonomy to administer its human resources and dispose of them, in accordance with labor legislation, the Personnel Statute, and any other instrument negotiated by the ICE with its workers. In matters of responsibility, its servants shall be held accountable in accordance with Public Law. The validity of the Personnel Statute and the power of the ICE's Board of Directors to dictate the norms and policies that regulate the working conditions, the creation of positions, the remuneration schemes, the obligations, and the rights of ICE officials and workers are ratified. (…) ARTICLE 33.- Labor rights and consolidated legal situations The validity, full validity, and efficacy of the labor rights, the consolidated legal situations, and the socioeconomic benefits that ICE workers have and have been receiving, in accordance with its Personnel Statute, are ratified; those of Radiográfica Costarricense Sociedad Anónima (Racsa), in accordance with its Work Regulations, and those of the National Power and Light Company (CNFL), according to the collective convention, which shall remain in force with the enactment of this Law." (emphasis added) Regarding the historical background of said numerals, it is worth mentioning motion No. 277-69 contained in legislative record No. 69. Said motion—ultimately rejected—sought to eliminate the current Article 33 given that it was considered redundant to ratify the validity of the ICE's Personnel Statute. In this sense, Deputy Zamora Chaves explained 'there is nothing in this law, at least I have not found it, that derogates the Personnel Statute; so, if it does not derogate it, why ratify anything; that is to say, it remains in force (…)'. For his part, the President of the Commission replied stating that 'I would only add that in reality with the different pressures and needs received from different groups, on this particular topic, it was a concern expressed by the ICE Unions, that expressions of ratification be made, those statements ratifying the existing Law, and as it exists and has not been derogated, well it does no harm by reason of giving them peace of mind, to state that they are there and are ratified in this Law'. Based on the foregoing, while the ICE has full autonomy to administer its human resources, it is no less true that it can only do so in accordance with the labor legislation, the Personnel Statute, and any other instrument negotiated by the ICE with its workers. Ergo, the Personnel Statute, in force by express provision of law, constitutes the legal framework of mandatory reference for the purposes of regulating the administration of human resources, including dismissal procedures." (Ruling No. 2015-7499).

In relation to the Benemérito Body of Firefighters and its personnel, this Tribunal has pronounced itself in the following sense: "II. ON THE SPECIFIC CASE.- In the case at hand, the petitioner accuses the appealed party of deciding to dismiss him without indicating the reasons that motivated the act and, consequently, requests the intervention of this Tribunal in order to reinstate him in his position, given that—in his judgment—said dismissal was unjustified, in open injury to his rights of defense and due process. On this particular, the jurisprudence of this Tribunal is abundant, establishing that given the nature of the appealed party, it is possible to terminate the employment contract without just cause. In this regard, through ruling 2016005950 at 9:05 hours on May 4, 2016, this Chamber resolved: "Article 1° of Law 8228 of March 19, 2002, 'Law of the Benemérito Body of Firefighters of Costa Rica,' establishes that the Body of Firefighters is a deconcentrated body of the National Insurance Institute. In this regard, it must be indicated that, as established by the jurisprudence of this Tribunal (see rulings No. 2008-11920 and No. 2010-9158 referring to the INS, as well as rulings No. 00-7730, 01-244, and 01-12953 regarding other public enterprises), the general legal framework is—in principle—Private Law, which is also the particular legal regime for its employment relations, where freedom of dismissal prevails, although Public Law is applicable to the members of the Board of Directors, as established by the regulations themselves (Article 26 of the regulation of the Law of the Body of Firefighters). In a similar matter of an INS worker, this Chamber resolved: '… it is possible to conclude that the National Insurance Institute has the power, based on the cited numeral 160, to terminate the employment contract with employer liability, without just cause, at the moment it deems necessary, without thereby incurring any labor injury or generating a conflict with the regulations in force. This Tribunal, in cases similar to the present one, has considered that these are labor relations governed by private law, and having studied the cited article, it is determined that what is stipulated therein is appropriate and does not find any friction with the fundamental rights of the workers of that institution' (ruling No. 2010-9158; see in the same sense No. 2014-1686)." -emphasis added- Precedent that is applicable in the specific case, since the Chamber finds no reasons to vary its criterion, therefore, any controversy regarding the dismissal of the protected party must be resolved in the corresponding ordinary channel. Ergo, the appeal becomes inadmissible." (Ruling No. 2016-12794) 3) Specific analysis of the consulted matter On this particular, first it must be said that, even though the consulting deputies are of the opinion that this bill should not propose the exclusions made in that numeral 3, this Chamber recalls that, in accordance with the text of Article 192 of the Constitution itself, national doctrine, and the provisions of Articles 3, 111, and 112 of the General Law of Public Administration, there is a group of State workers who, due to the nature of their functions or the type of workplace in which they perform their duties, are regulated by private labor regime, and therefore, are incompatible to be regulated by a public employment law. Secondly, upon observing the Costa Rican legal system in an integral manner, the truth of the matter is that it allows for exceptions such as those proposed in Article 3 under study, whereby it is legally possible to exempt certain institutions from a public employment regime, the precise basis for this being what was established by the Constituent Power in Article 192 of the Constitution, by providing at the beginning "with the exceptions that this Constitution and the civil service statute determine"; a phrase that, according to this Tribunal, "obliges one to qualify the previous conclusions regarding the scope of application of the civil service regime or statute." On this particular, the Chamber has sustained the possible existence of differentiated regimes based on the exception established in constitutional ordinal 192. As indicated in rulings No. 2010-010713 (which is ratified in SCV 2014-001686, 2014-002686, 2016-017418, 2016-018847, 2016-005950): "… given that the National Insurance Institute acts in the exercise of its capacity under private law, the general principles of employment stability are not applicable to its officials—except those who occupy managerial or superior oversight positions—reason for which they can be removed from their positions without just cause, with employer liability, that is, without alleging the commission of any fault against them and with the payment of the corresponding compensation. (Underlining not from the original).

Thus, and as this Tribunal has reiterated, the Constituent Power itself foresaw that not all servants of the State could be covered by the special regime, since the method of selection, the special capacities, the functions of each position, the relationships of trust and dependence are not the same in all cases, hence the principles derived from Article 192 are applicable to the majority of State workers, but not to all. From this perspective, contrary to what the consulting parties affirm, it is possible to establish exceptions to the scope of application of the civil service regime or statute; an exclusion that cannot be arbitrary and must be duly justified. Now then, it is observed that the consulting parties question this provision—Article 3 of the bill under study—indicating, solely, that the mere criterion of competitiveness is not sufficient to give them differentiated treatment, as they are equally public officials who manage public funds and, as they themselves recognize, they are public enterprises and institutions that are under the competition regime; that is, they are not under equal conditions as the other State institutions, as inferred from Articles 3, 111, and 112 of the General Law of Public Administration, when referring to the workers of this type of state enterprise, they are governed by private Law. To understand the scope of the exclusions in Article 3 in question, a conceptual differentiation must be made between what is provided in its subsection a), which are non-state public entities, and what is encompassed by subsection b), which refers to public enterprises and institutions in competition, these being the ones regarding which the consulting deputies raise their question because, as indicated supra, they estimate that the mere criterion of competitiveness is not sufficient to give them differentiated treatment since they are equally public officials who manage public funds. Those who are in the first place excluded according to the cited Article 3 of the bill under study are the non-state public entities. These entities have a juridical nature different from the rest of the State institutions. According to doctrine, they have been conceived as corporate-based organizations, constituted from an agreement or a law, that bring together private interests, but which are relevant to the State, and which are financed by the contributions of their members and by parafiscal contributions, other direct contributions, and, to a lesser extent, by the State. Therefore, their legal regime is predominantly private, although they are subject to the administrative legality block regarding the exercise of the powers of imperium they exercise through legal delegation. Consequently, non-state public entities do not technically belong to the State, but rather exceptionally exercise an administrative function, by which they issue administrative acts and are considered part of the Public Administration.

Outside of those sovereign powers, they relate to other subjects based on the principle of autonomy of will governed by private law; hence, their employment relationships have been considered private law matters, and for that reason they are also reasonably excepted from the public employment regime sought by the Legislative Assembly. Such would be the example of professional associations (colegios profesionales), defined as non-state public entities (entes públicos no estatales), and whose workers are governed by private law.

In the second place, public enterprises and institutions in competition are situated, and within these, examples include the Instituto Nacional de Seguros and the Instituto Costarricense de Electricidad, in the area of telecommunications. Regarding the former, the INS, it must be said that both in its operations and in the employment relationship it maintains with its employees, the application of private law prevails, in accordance with the jurisprudence cited above. The foregoing is justified insofar as, for the Constitutional Chamber (Sala Constitucional), the Instituto Nacional de Seguros, as a public enterprise, has the power to establish its own internal organization since it is not subject to the provisions of Article 192 of the Constitution and, therefore, its workers are not subject to the Statutory Regime of the Civil Service nor to the principle of stability in public employment. This Court has stated on the matter, the following:

"(...) the I.N.S is an autonomous institution that enjoys administrative autonomy, which grants it the power to carry out its constitutionally or legally conferred competences and attributions, which presuppose the power of self-administration or disposal of its resources (human, material, financial). Its status as an autonomous institution is expressly recognized in Article 189 of the Political Constitution; it may establish its own internal organization and determine the content thereof. By reason of the foregoing, neither Article 192, nor any of those contained in Title XV, are applicable to the Instituto Nacional de Seguros, since it does not form part of the bodies that make up the Public Administration. Precisely that condition of an autonomous institution places the I.N.S. and its employees in a legal situation totally distinct from that of the Executive Branch, its bodies, and public servants, who are not protected by the Civil Service Statute and therefore do not enjoy the advantages of that labor legislation, among them the regime of employment stability. In judgment 2004-5960, the Chamber determined that the I.N.S. is a public enterprise-public law entity, defining this as one that assumes the form of a public entity to carry out a totally or partially business activity (industry, commerce of goods and services, etc.). The servants of the I.N.S. are subject to a private employment regime, which means that the institution has the possibility of directing its labor relations as suits its organization, the public interest, and the achievement of its objectives. This Court has indicated that the I.N.S. is an enterprise whose activity is similar to that carried out by any private individual insofar as it sells a certain product. By not carrying out "public management," it may enter into collective bargaining agreements (sentencia 4453-2000) (see judgments No. 2013-16637 of 9:20 hours on December 13, 2013, No. 2008-11920 of 15:11 hours on July 30, 2008, reiterated in No. 2012-4942 of 15:39 hours on April 18, 2012)."

In a similar sense, the Chamber ruled regarding the Instituto Costarricense de Electricidad, in the previously cited judgment (No. 2015-7499).

Finally, in accordance with the content of Article 3, the Benemérito Cuerpo de Bomberos is situated, which, according to Law No. 8228 that created it, is a body of maximum deconcentration (órgano de desconcentración máxima) attached to the Instituto Nacional de Seguros (INS), with domicile in San José and competence throughout the national territory, to fulfill the functions and competences that, exclusively, the laws and regulations grant it. It was conferred instrumental legal personality (personería jurídica instrumental) even for contracting and everything related to its personnel:

"Article 2.- Legal Personality The Cuerpo de Bomberos shall have instrumental legal personality which it shall use in the acts and contracts it adopts to fulfill the agreements of its board of directors (consejo directivo) and to perform the functions indicated by law, in matters of budgetary administration, administrative contracting, human resources, training, inter-institutional coordination, emergency management, and other specific technical competences..." "Article 7.- Organization The Cuerpo de Bomberos shall function under the superior direction of a Board of Directors of the Benemérito Cuerpo de Bomberos de Costa Rica, hereinafter referred to as the Board of Directors, which shall be composed of five members of recognized moral standing, who shall elect from among themselves, annually, a president. Three members shall be designated by the Board of Directors of the Instituto Nacional de Seguros and the remaining two shall be elected by the officials of the Cuerpo de Bomberos, in accordance with the Regulations of this Law. They shall serve in their positions for five years and may be re-elected.

The administration and representation of the Cuerpo de Bomberos shall fall upon the person of the general director of the Cuerpo de Bomberos, who shall assume the managerial functions of that body.

The Cuerpo de Bomberos shall have the operational, technical, and administrative units necessary for the faithful fulfillment of its public duties and shall have the necessary officials to fulfill the objectives proper to its management; through this Law, it is authorized to create positions and fill vacant posts." It is important to highlight that to this Article 7, an Article 7 bis was added, which was incorporated by Law 8653, Regulatory Law of the Insurance Market, as it provides:

"Article 7 bis.- Organization, functions, operation, and per diems of the Board of Directors To the members of the Board of Directors, the requirements, incompatibilities, and causes for dismissal provided for the members of the Board of Directors of the Instituto Nacional de Seguros shall be applicable, insofar as reasonably corresponds, and with the exception of the norms proper to insurance activity; furthermore, they may be freely removed from their positions by the Board of Directors of the Instituto Nacional de Seguros, by a majority of five of its members…

The organization and operation of the Board of Directors shall be governed, where applicable, by the chapter concerning collegiate bodies of the General Law of Public Administration, as well as by what is stipulated in the Regulations of this Law.

The functions of the Board of Directors of the Cuerpo de Bomberos de Costa Rica are:

• a)To define and authorize the organization of the Cuerpo de Bomberos de Costa Rica, which includes the creation of positions, as well as the definition and assignment of competences of the functional, operational, technical, and administrative units necessary for the efficient and effective fulfillment of its public duties.
• b)To issue the organization and service regulations necessary for the adequate performance of the functions of the Cuerpo de Bomberos.
• c)To appoint, through an internal competitive examination of credentials, in accordance with the legislation applicable to the general director of the Cuerpo de Bomberos. In case of lack of suitable candidates within the same organization, the holding of a public competitive examination shall be arranged.
• d)To remove the general director of the Cuerpo de Bomberos, complying with due process.
• e)To appoint and remove the internal auditor, in accordance with the process indicated in the General Law of Internal Control, No. 8292, of July 31, 2002, as well as the Organic Law of the Contraloría General de la República, No. 7428, of September 7, 1994.
• f)To issue technical standardization and regulations, which shall be mandatory for individuals or legal entities, as well as for public or private entities, in matters of safety, fire protection, and human safety.
• g)To hear and resolve on appeal the remedies filed against the resolutions issued by the general director of the Cuerpo de Bomberos. The resolutions of the Board of Directors shall exhaust the administrative channel.
• h)To approve the strategic plan and the annual operational plan.
• i)To approve the budgets, their modifications, and their liquidation, and to forward the corresponding documentation to the Contraloría General de la República for final approval.
• j)To ensure compliance with the provisions of the control or technical authorities that have competence over the Cuerpo de Bomberos.
• k)To define the rates that the Cuerpo de Bomberos shall charge for the provision of special services and their variations, which shall be established in the Regulations of this Law.
• l)Any other functions provided by law.

The members of the Board of Directors shall earn per diems per session, the amount of which shall be equal to fifty percent (50%) of the per diems received by the members of the Board of Directors of the INS, except if they are officials of the same Institution and the sessions are held during working hours, in which case they shall not be entitled to any remuneration." In accordance with the foregoing, it is necessary to point out that the regime of firefighters (bomberos) has particularities inherent to the type of function they perform, and for that reason the matter has been regulated in Article 9 of the Law of the Benemérito Cuerpo de Bomberos No. 8228, according to which:

"Article 9—Regime of firefighters. For the exercise of their position, firefighters shall be officials with the authority, powers, and attributions granted to them by this Law, its Regulations, and the other regulations issued to that effect by the INS. The disciplinary regime of firefighters must correspond to the nature of their functions and the importance of their public duty.

The employment regime, working hours, and retirement regime of the workers comprising the Cuerpo de Bomberos must address the special conditions of the provision of their services and the labor rights included in the legislation and the collective bargaining agreement in force.

The Regime of Volunteer, Attached, Honorary Firefighters, the Regime of Brigade Members, and others of a similar nature, shall be regulated by the INS." To better understand the reasons why the legislator has decided to exclude the Benemérito Cuerpo de Bomberos from this bill under study, it is necessary to go back to the statement of motives of legislative file No. 13,574 that gave rise to Law 8228 of the Benemérito Cuerpo de Bomberos, from the reading of which the consideration emerges that fires, spills of toxic chemical products, natural, technological, or anthropogenic emergencies produce loss of life and substantial property damages that impact the economy, development, and social security of the country, making it therefore necessary to provide the workers of that body with employment conditions adjusted to the type of functions they are responsible for performing, and precisely, for reasons of convenience and timeliness, the current Law confers upon the Cuerpo de Bomberos the power to determine the operational, technical, and administrative units necessary for the faithful fulfillment of its public duties, as well as the officials necessary to fulfill the objectives proper to its management; being expressly authorized to create positions and fill vacant posts. This Court considers that, given the nature of the service provided by the Benemérito Cuerpo de Bomberos, irremediably linked to emergency response, it is justified that it should have greater agility in its administrative procedures, but also a special regulation adjusted to its working conditions and to the technical and safety aspects required; reasons that underpin the consideration the legislator had for that institution to have been excepted from the general public employment regime analyzed in this bill. Fully applicable to the specific case, it is of interest to recall the consideration this Court made regarding the special retirement conditions for members of the Cuerpo de Bomberos who joined prior to July 15, 1992, when it pointed out that:

"(…) For this Constitutional Court, the retirement conditions of the members of the firefighter corps are certainly unequal compared to the rest of the workers of the public sector, and even the private sector, however, such unequal treatment is not arbitrary or discriminatory, but is supported by an objective, reasonable, and proportionate basis, as explained below. In the first place, it must be recalled what the work of the firefighter corps of Costa Rica consists of, to understand later that such difference in treatment is a mechanism devised by the legislator and by the Administration itself, to favor the social condition of this type of worker, aimed at protecting superior interests based on human solidarity and principles of social justice such as those contemplated in Article 74 of the Political Constitution itself. (…) The work carried out by its workers is of great importance for society, since in order to attend to emergency situations, they constantly risk their lives and are subjected to working conditions very different from the rest." Finally, it is of interest to note that it will be up to the legal operator to determine the consequences derived from the joint interpretation made of this Article 3 with articles 3, 111, and 112 of the General Law of Public Administration, given that the indication of regulation by the private law regime only for public enterprises in competition and not for all, would be a matter of legality.

• 4)Conclusion In the terms indicated and in accordance with constitutional jurisprudence, it is not considered that Article 3 of the bill of the "LEY MARCO DE EMPLEO PÚBLICO," processed in legislative file No. 21,336, is unconstitutional due to making the exclusions indicated therein for public enterprises in competition, non-state public entities, and the Benemérito Cuerpo de Bomberos.

XXII.- Conclusions Regarding procedural defects:

• 1)No substantial procedural defect is found regarding the argument of the inadmissibility of motions 138-231 and 138-250, because the basis of which was the motion that modified it and "fell upon it" was not set forth in the brief of this consultation; and regarding the inadmissibility of motion 138-18, because it was based on an uncertain fact (the probability that another motion would fall upon it).
• 2)No substantial procedural defect is found regarding the argument of the improper consolidation of motion 138-154 because, although improperly consolidated at the beginning, later the President of the Assembly deconsolidates it and allows its separate discussion.
• 3)No substantial procedural defect is found regarding the argument of the lack of discussion of motion 138-210 by Deputy Paola Vega, because the motion that is said not to have been put to discussion appears with a withdrawal stamp and the signature of the proposing deputy.

Regarding substantive defects:

• 1)Poder Judicial and Tribunal Supremo de Elecciones: Regarding Articles 12 (database), 13.h (family in confidence positions), 15 (postulates of recruitment and selection), 19 (mobility or transfers), and 31 (work methodology), consulted regarding the Poder Judicial and the Tribunal Supremo de Elecciones, given that sufficient basis is not provided to allow this Chamber to have clarity on what was consulted, the consultation is declared unanswerable (inevacuable) for lack of basis.
• 2)Poder Judicial: Having analyzed all the aspects consulted regarding Article 2 (subsection a), 6 (subsection b), 7 (subsections d, g, and p), 9 (second paragraph of subsection a), 13 (subsection f), 14, 17, 18, 21 and 22, 49 (subsection b, g, and h), of the bill called "LEY MARCO DE EMPLEO PÚBLICO" legislative file No. 21,336, insofar as it refers to the Poder Judicial, this Chamber finds that such norms are contrary to the Law of the Constitution, for violation of the principle of separation of functions, the principle of judicial independence, the particular employment regime of the Poder Judicial, and the constitutional administrative competences of the Corte Suprema de Justicia.
• 3)Tribunal Supremo de Elecciones: Having analyzed all the aspects consulted regarding Article 2 (subsection a), 6 (subsection b), 7 (subsections d, g, and p), 9 (second paragraph of subsection a), 13 (subsection a and f), 14, 17, 18, 21 and 22, of the bill called "LEY MARCO DE EMPLEO PÚBLICO" legislative file No. 21,336, insofar as it refers to the Tribunal Supremo de Elecciones, this Chamber finds that such norms are contrary to the Law of the Constitution, for violation of the principle of separation of functions and Articles 9 and 99 of the Constitution.
• 4)Public Universities: Regarding Articles 11 (employment planning), 15 (postulates of recruitment and selection), and 16 (job offer), consulted regarding the Public Universities, given that sufficient basis is not provided to allow this Chamber to have clarity on what was consulted, the consultation is declared unanswerable (inevacuable) for lack of basis.
• 5)Public Universities: Having analyzed all the aspects consulted regarding Articles 6, 7, 9 (second paragraph of subsection a), 13 (subsection e), 14, 17, 30 (except subsection b), 31, 32, 33, 34, 37 (subsection f), of the bill called "LEY MARCO DE EMPLEO PÚBLICO" legislative file No. 21,336, regarding the Public Universities, this Chamber finds that such norms are contrary to the Law of the Constitution, for violation of university autonomy. Articles 30.b, 35, and 36 of the bill in question being constitutional, for the reasons already indicated.
• 6)Caja Costarricense de Seguro Social: Having analyzed all the aspects consulted regarding Articles 2 (subsection b), 6, 7 (subsection d), 9 (second paragraph of subsection a), 13 (subsection b), 14, 17, and 18, of the bill called "LEY MARCO DE EMPLEO PÚBLICO" legislative file No. 21,336, regarding the Caja Costarricense de Seguro Social, this Chamber finds that such norms are contrary to the Law of the Constitution, for violation of the constitutionally protected governmental autonomy of the CCSS (Art. 73 of the Constitution) of this institution.
• 7)Municipalities: Having analyzed all the aspects consulted regarding Articles 2 (subsection c), 6, 7, 9 (second paragraph of subsection a), 13, 14, 17, and 18 of the bill called "LEY MARCO DE EMPLEO PÚBLICO" legislative file No. 21,336, regarding the Municipalities, this Chamber finds that such norms are contrary to the Law of the Constitution, for violation of the constitutionally enshrined governmental autonomy of the municipalities.
• 8)Autonomous Institutions: The consultation of constitutionality on the bill of the "LEY MARCO DE EMPLEO PÚBLICO," processed in legislative file No. 21,336, is declared unanswerable (inevacuable) regarding Article 2 subsection b) -specifically concerning "autonomous institutions and their attached bodies, including semi-autonomous institutions and their attached bodies"- and Articles 6, 7, 9, 13, 14, 17, 18, 21, 22, 24, 30, and 49 for lack of adequate basis from the constitutional point of view.
• 9)Conscientious Objection: Regarding Article 23 subsection g) of the bill for the "LEY MARCO DE EMPLEO PÚBLICO," processed in legislative file No. 21,336, referring to conscientious objection, no substantive defects of unconstitutionality are presented, because it adequately guarantees the right to conscientious objection.
• 10)Collective Bargaining: Article 43 does not contain defects of constitutionality, insofar as the new obligations or rights obtained through collective bargaining conform to the principles of reasonableness, proportionality, and budget legality, under the protection of constitutional jurisprudence, and provided that it concerns collective bargaining agreements in which employees of the Public Sector participate who can validly enter into collective conventions in accordance with the Constitution and the law.
• 11)Denunciation of Collective Bargaining Agreement: Transitory Provision XV referring to the denunciation of collective bargaining agreements is not unconstitutional provided it is interpreted in the same sense as indicated in vote number 2018-019511 of 21:45 hours on November 23, 2018, that is, in application of the Political Constitution (Articles 62 and 74), the International Conventions of the International Labour Organization, and the jurisprudence of this Court, it must be interpreted that each head of the public entities has the power to denounce or not the respective collective bargaining agreement, in accordance with the current legal system.
• 12)Disqualification (Inhabilitación): Article 4.a of the bill for the "LEY MARCO DE EMPLEO PÚBLICO," processed in legislative file No. 21,336, is not unconstitutional. It being a matter that shall correspond to the legal operator everything related to applying due process to dismissal, assessing the existing relationship between the type of fault committed and the sanction, or regarding the proportionality and reasonableness of the sanctioning administrative act, and determining the specific rule to apply when there is special regulation in the institution in question.
• 13)Salary and the Principle of Equality: Transitory Provisions XI and XII do not violate the principle of equality - equal pay for equal work under identical conditions of efficiency - nor that of legality, and, consequently, are not unconstitutional.
• 14)Due Process: The aspects consulted regarding Articles 21 and 22 of the bill for the "LEY MARCO DE EMPLEO PÚBLICO," processed in legislative file No. 21,336, do not contain violations of the principle of constitutional due process; rather, the majority of what was consulted in that regard refers to problems of legislative drafting that shall correspond to the legislator or the legal operator to correct.
• 15)Leaves of Absence (Permisos): The Chamber finds no defects of unconstitutionality in the aspects questioned regarding Articles 39, 40, 41, and 42 of the consulted bill, as it concerns a matter of legislative discretion, the mandatory consultation with the CCSS having been fulfilled, and there being no elements that should determine that the legislator had to have, prior to this, in this case, a technical study. Furthermore, the issue of the alleged contradiction between Articles 39 and 40 of the bill, as it concerns a possible legal antinomy, is not of constitutional interest.
• 16)Exclusions: In the terms indicated and in accordance with constitutional jurisprudence, it is not considered that Article 3 of the bill of the "LEY MARCO DE EMPLEO PÚBLICO," processed in legislative file No. 21,336, is unconstitutional due to making the exclusions indicated therein for public enterprises in competition, non-state public entities, and the Benemérito Cuerpo de Bomberos..." LBH10/22 ... See more Content of Interest:

Type of content: Majority Vote Branch of Law: 8. JURISPRUDENCE IACHR Topic: JUDGMENTS CONSTITUTIONAL CHAMBER - IACHR Subtopics:

Contentious case.

“…In the American regional sphere, these rights have been the subject of few pronouncements by the Inter-American Court of Human Rights (IACHR). Accordingly, the high court has ruled in relation to freedom of conscience and religion in the context of human rights violations of which persons exercising religious activities were victims (Juan Gerardi vs. Guatemala 1982, Dianna Ortiz vs. Guatemala 1997, and Loren Laroye Riebe Star, Jorge Alberto Baro´n Guttlein, and Rodolfo Izal Elorz vs. Mexico 1998). Likewise, the IACHR has ruled on freedom of conscience in relation to the censorship of the exhibition of a cinematographic work (Olmedo Bustos et al. vs. Chile 2001). In this pronouncement, the IACHR recognized that the right to freedom of conscience and religion concerns the protection so that persons may keep, change, profess, and disseminate their religion or their beliefs…” 17098-21 CO11/22 ... See more Page.

| 1 Table of Contents A) PROCEDURAL MATTERS:

I.- Preliminary.- (drafted by Magistrate Castillo Víquez) II.- On the admissibility of the optional consultations of constitutionality raised.- 1) On the admissibility of the optional consultations filed by the deputies (Art. 96.b of the Law of the Constitutional Jurisdiction).- Different reasons of Magistrate Rueda Leal regarding the admissibility of the consultation of file no. 21-011713-0007-CO.

Separate note of Magistrate Garro Vargas regarding the admissibility of the consultation processed under file no. 21-011713-0007-CO Different reasons of Magistrate Hernández López on the admissibility of the second consultation, file no. 21-11915-007-CO Different reasons of Magistrate Garro Vargas regarding the admissibility of the consultation processed under file no. 21-011915-0007-CO Separate note of Magistrate Picado Brenes regarding the admissibility of the consultation made through file no. 21-011915-0007-CO (point 2 of the Por Tanto) Dissenting vote of Magistrate Castillo Víquez on file no. 21-012118-0007-CO Dissenting vote of Magistrate Rueda Leal with respect to the consultation made in file no. 21-012118-0007-CO.

Note of Magistrate Salazar Alvarado regarding the admissibility of the Legislative Consultation.

• 2)On the admissibility of the optional consultation filed by the President of the Supreme Court of Justice (Art. 96.c of the Law of the Constitutional Jurisdiction).- (drafted by Magistrate Castillo Víquez) Dissenting vote of Magistrates Garro Vargas and Picado Brenes, who admit the consultation (with the drafting of the latter) Note of Magistrate Rueda Leal with respect to the consultation raised in file no. 21-012714-0007-CO by the Supreme Court of Justice.

Note of Magistrate Garro Vargas regarding the admissibility of the legislative consultation raised by the Supreme Court of Justice III.- On the denial of the briefs filed on June 22, 25, 28, 29, and July 5, 13, 15, and 20, 2021.- IV.- On the time limit to resolve this consultation.- B) ON THE SUBJECT MATTER OF THE CONSULTATION V.- On the object of the consultation.- VI.- On the PROCEDURAL defects consulted.- 1) Chronology of the legislative procedure of the "LEY MARCO DE EMPLEO PÚBLICO" bill, processed under legislative file no. 21.336.- 2) On the jurisprudence of this Chamber regarding substantial procedural defects and the rejection of motions.- 3) On the subject matter consulted.- 4) Conclusions VII.- On the SUBSTANTIVE defects consulted and in general on the bill consulted.- VIII.- General Consideration.- (drafted by Magistrate Castillo Víquez) Particular considerations of Magistrate Garro Vargas on this general consideration Particular considerations of Magistrate Picado Brenes on this general consideration IX.- On the consultation of violation of judicial independence.- 1) Aspects consulted 2) Jurisprudential precedents on the Constitutional Principle of separation of powers and the constitutional principle of judicial independence 3) On the examination of the Articles consulted On Article 2.a (scope of coverage), regarding the Judicial Branch (Drafted by Magistrate Castillo Víquez) On Article 6 (governing authority of Mideplán), regarding the Judicial Branch (Drafted by Magistrate Castillo Víquez) On Article 7 (powers of Mideplán), regarding the Judicial Branch (Drafted by Magistrate Castillo Víquez) On Article 9.a.- Human Resources Offices regarding the Judicial Branch (Drafted by Magistrate Picado Brenes) On Article 13 (job families), regarding the Judicial Branch (Drafted by Magistrate Castillo Víquez) On Article 14.- Recruitment and selection regarding the Judicial Branch (Drafted by Magistrate Picado Brenes) On Article 17.- Senior Management Personnel regarding the Judicial Branch (drafted by Magistrate Picado Brenes) On Article 18.- Probationary period and term of appointment for Senior Management regarding the Judicial Branch (drafted by Magistrate Picado Brenes) On Article 21 (single regime for dismissal) and Article 22 (dismissal process) regarding the Judicial Branch (drafted by Magistrate Picado Brenes) On Article 49 subsections a, b, g, and h (amendment to regulations) regarding the Judicial Branch (drafted by Magistrate Picado Brenes) 4) Conclusion X.- On the consultation of violation of the independence of the Supreme Electoral Tribunal.- 1) Aspects consulted 2) Jurisprudential precedents on the Constitutional Principle of Separation of Powers regarding the Supreme Electoral Tribunal 3) On the examination of the Articles consulted On Article 2.a (scope of coverage) regarding the Supreme Electoral Tribunal (Drafted by Magistrate Castillo Víquez) On Article 6 (governing authority of Mideplán), regarding the Supreme Electoral Tribunal (Drafted by Magistrate Castillo Víquez) On Article 7 (powers of Mideplán), regarding the Supreme Electoral Tribunal (Drafted by Magistrate Castillo Víquez) On Article 9.a.- Human Resources Offices regarding the Supreme Electoral Tribunal (Drafted by Magistrate Picado Brenes) The consulted article establishes the following:

On subsection a) of Article 13, Job family regarding the Supreme Electoral Tribunal (Drafted by Magistrate Picado Brenes) On subsection f) of Article 13 (job families), regarding the Supreme Electoral Tribunal (Drafted by Magistrate Castillo Víquez) On Article 14.- Recruitment and selection regarding the Supreme Electoral Tribunal (Drafted by Magistrate Picado Brenes) On Article 17.- Senior Management Personnel regarding the Supreme Electoral Tribunal (drafted by Magistrate Picado Brenes) On Article 18.- Probationary period and term of appointment for Senior Management personnel regarding the Supreme Electoral Tribunal (drafted by Magistrate Picado Brenes) On Article 21 (single regime for dismissal) and Article 22 (dismissal process) regarding the Supreme Electoral Tribunal (drafted by Magistrate Picado Brenes) 4) Conclusion 5) Dissenting votes, reasons, and notes on the consultation regarding the Judicial Branch and the Supreme Electoral Tribunal a) Note of Magistrate Rueda Leal regarding the inclusion of the Judicial Branch and the Supreme Electoral Tribunal in numeral 2 subsection a) of the consulted bill.

• b)Note of Magistrate Garro Vargas regarding the unconstitutionality of Article 2 subsection a) c) Separate note of Magistrate Picado Brenes, on Article 2 subsection a) of the bill regarding the inclusion of the Judicial Branch and the Supreme Electoral Tribunal (point 6 of the Por Tanto) d) Note of Magistrate Rueda Leal regarding the application of numeral 6 subsection b) of the consulted bill to the Judicial Branch and the Supreme Electoral Tribunal.
• e)Different reasons of Magistrate Garro Vargas regarding the unconstitutionality of Article 6 subsection b) insofar as it subjects the Judicial Branch and the Supreme Electoral Tribunal to the governing authority (rectoría) of the general public employment system under the charge of Mideplán.
• f)Different reasons of Magistrate Picado Brenes, on Article 6 of the bill regarding the governing authority (rectoría) of Mideplán (point 7 of the Por Tanto) g) Additional reasons of Magistrate Garro Vargas regarding the unconstitutionality of Article 7 for affecting the independence of the Judicial Branch and the Supreme Electoral Tribunal h) Additional reasons of Magistrate Picado Brenes, on Article 7 of the bill regarding the broad powers of Mideplán with respect to the Judicial Branch and the Supreme Electoral Tribunal (point 8 of the Por Tanto) i) Separate note of Magistrate Garro Vargas regarding Article 12 with respect to the Judicial Branch and the Supreme Electoral Tribunal j) Separate note of Magistrate Picado Brenes, on Article 12 of the bill regarding the Database (point 10 of the Por Tanto) k) Different reasons of Magistrate Garro Vargas regarding the unconstitutionality of Article 13 with respect to the Judicial Branch and the Supreme Electoral Tribunal l) Different reasons of Magistrate Picado Brenes, on Article 13 of the bill regarding the job family groups of the Judicial Branch and the Supreme Electoral Tribunal (point 11 of the por tanto) m) Separate note of Magistrates Garro Vargas and Picado Brenes, with drafting by the latter, on Article 19 of the bill regarding Transfers or Job Mobility (point 18 of the Por Tanto) n) Separate note of Magistrate Picado Brenes, on Article 31 of the bill regarding the Job Valuation Methodology (point 20 of the Por Tanto) ñ) Dissenting vote of Magistrates Castillo Víquez, Hernández López, and Salazar Alvarado, with drafting by the first, on Article 49, subsection b o) Dissenting vote of Magistrate Castillo Víquez and Magistrate Hernández López, with drafting by the first, on Article 49, subsections g and h XI.- On the consultation of violation of University Autonomy.- 1) Aspects consulted 2) Jurisprudential precedents on University Autonomy 3) Concrete analysis of the subject matter consulted On Article 6.- Power of Direction of Mideplán regarding the Public Universities (drafted by Magistrate Castillo Víquez) On Article 7.- Powers of Mideplán regarding the Public Universities (drafted by Magistrate Castillo Víquez) On Article 9.a.- Human Resources Office in the Public Universities (drafted by Magistrate Picado Brenes) On Article 13.e.- Job Family regarding the Public Universities (drafted by Magistrate Castillo Víquez) On Article 14.- Recruitment and selection in the Public Universities (drafted by Magistrate Picado Brenes) On Article 17.- Senior Management Positions in the Public Universities (drafted by Magistrate Picado Brenes) On Article 30.- Postulates for compensation in the Public Universities (drafted by Magistrate Castillo Víquez) On Article 30.b- Salary of the President of the Republic as a salary ceiling in the Public Universities (drafted by Magistrate Castillo Víquez) On Articles 31, 32, and 34.- Job valuation, grades within job families, and global salary column in the Public Universities (drafted by Magistrate Castillo Víquez) On Article 33.- Classification of jobs in the Public Universities (drafted by Magistrate Castillo Víquez) On Articles 35 and 36.- Unified salary regime (régimen salarial) and remuneration policy in the Public Universities (drafted by Magistrate Castillo Víquez) On Article 37.f).- Global salary (salario global) applied to rectors of the Public Universities (drafted by Magistrate Picado Brenes) 4) Conclusion 5) Dissenting votes, reasons, and notes on the consultation regarding the Public Universities a) Different reasons of Magistrate Garro Vargas regarding the unconstitutionality of Article 6 insofar as it subjects the Public Universities to the governing authority (rectoría) of the general public employment system under the charge of Mideplán b) Different reasons of Magistrate Picado Brenes, on Article 6 of the bill with respect to the Public Universities regarding the power of direction of Mideplán (point 23 of the Por Tanto) c) Additional reasons of Magistrate Garro Vargas regarding the unconstitutionality of Article 7 for affecting the autonomy of the Public Universities d) Additional reasons of Magistrate Picado Brenes, on Article 7 of the bill regarding the broad powers of Mideplán with respect to the Public Universities (point 24 of the Por Tanto) e) Additional reasons of Magistrate Garro Vargas regarding the unconstitutionality of Article 13 with respect to the Public Universities f) Additional reasons of Magistrate Picado Brenes, on Article 13 of the bill regarding the job family groups of the Public Universities (point 27 of the Por Tanto) g) Note of Magistrate Garro Vargas regarding the unconstitutionality of Article 17 applied to the senior management personnel of the Public Universities h) Note of Magistrate Picado Brenes, on Article 17 of the bill regarding the senior management personnel of the Public Universities (point 30 of the Por Tanto) i) Different reasons of Magistrate Garro Vargas regarding the unconstitutionality of Article 30 for harming the autonomy of the Public Universities j) Different reasons of Magistrate Picado Brenes, on Article 30 of the bill regarding the postulates on compensation with respect to the Public Universities (point 31 of the Por Tanto) k) Dissenting vote of Magistrates Hernández López, Garro Vargas, and Picado Brenes, with drafting by the latter, on Article 30 subsection b) regarding the salary ceiling in the Public Universities (point 32 of the por tanto) l) Different reasons of Magistrates Garro Vargas and Picado Brenes, with drafting by the second, on Articles 31, 32, and 34 of the bill, regarding the compensation rules in the Public Universities (point 33 of the Por Tanto) m) Different reasons of Magistrates Garro Vargas and Picado Brenes, with drafting by the latter, on Article 33 of the bill, regarding the classification of positions in the Public Universities (point 34 of the Por Tanto) n) Different reasons of Magistrate Garro Vargas regarding the constitutionality of Articles 35 and 36 with respect to the Public Universities ñ) Additional reasons of Magistrate Picado Brenes on Articles 35 and 36 of the bill regarding the unified salary regime (régimen salarial) and the Public Universities (point 35 of the Por Tanto) XII.- On the consultation of violation of the autonomy of the Caja Costarricense de Seguro Social.- 1) Aspects consulted 2) Jurisprudential precedents on the Government Autonomy of the Caja Costarricense de Seguro Social 3) Concrete analysis of the subject matter consulted On Article 2.b.- Scope of coverage regarding the CCSS (drafted by Magistrate Picado Brenes) On Article 6.- Power of Direction of Mideplán regarding the CCSS (drafted by Magistrate Castillo Víquez) On Article 7.- Powers of Mideplán regarding the CCSS (drafted by Magistrate Castillo Víquez) On Article 9.- Human Resources Office in the CCSS (drafted by Magistrate Picado Brenes) On Article 13.b.- Job Family regarding the CCSS (drafted by Magistrate Castillo Víquez) On Article 14.- Recruitment and selection in the CCSS (drafted by Magistrate Picado Brenes) On Article 17.- Senior Management Positions in the CCSS (drafted by Magistrate Picado Brenes) On Article 18.- Terms of Senior Management Personnel in the CCSS (drafted by Magistrate Picado Brenes) 4) Conclusion 5) Reasons and notes on the consultation regarding the CCSS a) Separate note of Magistrate Castillo Víquez regarding the CCSS b) Note of Magistrate Rueda Leal regarding the inclusion of the Caja Costarricense de Seguro Social in numeral 2 subsection b) of the consulted bill c) Separate note of Magistrate Garro Vargas regarding Article 2 subsection b) and the inclusion of the Caja Costarricense de Seguro Social d) Separate note of Magistrate Picado Brenes, on Article 2 subsection b) on the inclusion of the CCSS in a general regulatory framework for public employment (point 37 of the por tanto) e) Different reasons of Magistrate Garro Vargas insofar as it subjects the Caja Costarricense de Seguro Social to the governing authority (rectoría) of the general public employment system under the charge of Mideplán provided in Article 6 f) Different reasons of Magistrate Picado Brenes, on Article 6 of the bill regarding the governing authority (rectoría) of Mideplán (point 38 of the por tanto) g) Additional reasons of Magistrate Garro Vargas regarding the unconstitutionality of Article 7 for affecting the autonomy of the Caja Costarricense de Seguro Social h) Additional reasons of Magistrate Picado Brenes, on Article 7 of the bill regarding the broad powers of Mideplán with respect to the CCSS (point 39 of the Por Tanto) i) Additional reasons of Magistrate Garro Vargas regarding the unconstitutionality of Article 13 with respect to the Caja Costarricense de Seguro Social j) Additional reasons of Magistrate Picado Brenes, on Article 13 of the bill regarding the job family groups and the CCSS (point 41 of the Por Tanto) k) Additional reasons of Magistrate Picado Brenes, on Article 18 of the bill regarding the terms of senior management personnel in the CCSS (point 44 of the Por Tanto) XIII.- On the consultation of violation of the autonomy of the Municipalities.- 1) Aspects consulted 2) Jurisprudential precedents on the Government Autonomy of the Municipalities 3) Concrete analysis of the subject matter consulted On Article 2.c.- Scope of coverage regarding the Municipalities (drafted by Magistrate Picado Brenes) On Article 6.- Power of Direction of Mideplán regarding the Municipalities (drafted by Magistrate Castillo Víquez) On Article 7.- Powers of Mideplán regarding the Municipalities (drafted by Magistrate Castillo Víquez) On Article 9.- Human Resources Office in the Municipalities (drafted by Magistrate Brenes Picado) On Article 13.- Job Family regarding the Municipalities (drafted by Magistrate Castillo Víquez) On Article 14.- Recruitment and selection in the Municipalities (drafted by Magistrate Picado Brenes) On Article 17.- Senior Management Positions in the Municipalities (drafted by Magistrate Picado Brenes) On Article 18.- Terms of Senior Management Personnel in the Municipalities (drafted by Magistrate Picado Brenes) 4) Conclusion 5) Reasons and notes on the consultation regarding the Municipalities a) Note of Magistrate Rueda Leal regarding the inclusion of the municipalities in numeral 2 subsection c) of the consulted bill.
• b)Separate note of Magistrate Garro Vargas regarding the unconstitutionality of Article 2 subsection c) c) Separate note of Magistrate Picado Brenes, on Article 2 subsection c) of the bill with respect to the Municipalities regarding the power of direction of Mideplán (point 45 of the Por Tanto) d) Additional reasons of Magistrate Garro Vargas regarding the unconstitutionality of Article 7 for affecting the autonomy of the Municipalities e) Additional reasons of Magistrate Picado Brenes, on Article 7 of the bill regarding the broad powers of Mideplán with respect to the Municipalities (point 47 of the Por Tanto) f) Additional reasons of Magistrate Garro Vargas regarding the unconstitutionality of Article 9 subsection a) second paragraph and its application to the Municipalities g) Additional reasons of Magistrate Picado Brenes, on Article 9 of the bill regarding the functions of the active administrations with respect to the Municipalities (point 48 of the Por Tanto) h) Additional reasons of Magistrate Garro Vargas regarding Article 13 and its application to municipal employees i) Additional reasons of Magistrate Picado Brenes, on Article 13 of the bill regarding the job family groups of the Municipalities (point 49 of the Por Tanto) j) Additional reasons of Magistrate Picado Brenes, on Article 18 of the bill regarding the terms of senior management personnel in the Municipalities (point 52 of the Por Tanto) XIV.- On the consultation of violation of the autonomy of the Autonomous Institutions.- 1) Aspects consulted 2) Conclusion XV.- On the consultation of violation of the principle of legal certainty (seguridad jurídica) by the figure of Conscientious Objection.- (drafted by Magistrate Picado Brenes) 1) Aspects consulted 2) Jurisprudential precedents 3) Concrete analysis of the subject matter consulted 4) Conclusion 5) Different reasons and interpretation Different reasons of Magistrate Rueda Leal regarding subsection g) of Article 23 of the bill.

Dissenting vote of Magistrate Hernández López regarding Article 23 subsection g) of the consulted bill.

XVI.- On the consultation of violation of the right to collective bargaining and the right to unionization.- 1) Aspects consulted 2) Jurisprudential precedents on the Fundamental Right to Collective Bargaining 3) Concrete analysis of the subject matter consulted (drafted by Magistrate Castillo Víquez) 4) Conclusion 5) Different reasons a) Different reasons of Magistrate Rueda Leal on section 43 and Transitory Provision XV of the bill.

• b)Different reasons of Magistrate Garro Vargas regarding the constitutionality of Article 43 c) Different reasons of Magistrate Picado Brenes, on Article 43 of the bill regarding collective bargaining agreements (point 55 of the Por Tanto) d) Different reasons of Magistrate Garro Vargas regarding the constitutionality of Transitory Provision XV e) Different reasons of Magistrate Picado Brenes, on Transitory Provision XV of the bill regarding the denouncement of collective bargaining agreements (point 56 of the Por Tanto) XVII.- On the consultation raised regarding the penalty of generic disqualification.- (drafted by Magistrate Picado Brenes) 1) Concrete analysis of the aspects consulted 2) Conclusion 3) Note Note of Magistrate Picado Brenes, on Article 4 subsection a) of the bill referring to the penalty of general disqualification (point 57 of the Por Tanto) XVIII.- On the consulted violation of the right to wage equality and the global salary (salario global) 1) Aspects consulted 2) Jurisprudential precedents on the fundamental right to wage equality 3) Concrete analysis of the subject matter consulted (drafted by Magistrate Castillo Víquez) 4) Conclusion 5) Dissenting vote and note a) Dissenting Vote on subsection a) of Transitory Provision XI of the bill on salary rules (point 58 of the por tanto) of Magistrates Hernández López, Garro Vargas, and Picado Brenes, with drafting by the latter b) Separate note of Magistrate Garro Vargas on subsection a) of Transitory Provisions XI and XII of the bill on salary rules (point 58 of the por tanto) c) Separate note of Magistrate Picado Brenes on Transitory Provisions XI and XII of the bill on salary rules (point 58 of the por tanto) d) Different reasons of Magistrate Rueda Leal, regarding the consulted transitory provisions XI and XII.

XIX.- On the violation of due process (single dismissal process).- (drafted by Magistrate Picado Brenes) 1) Aspects consulted 2) Conclusion XX.- On the violation of the principle of fiscal sustainability due to leave permits.- (drafted by Magistrate Picado Brenes) 1) Concrete analysis of the aspects consulted 2) Conclusion 3) Dissenting vote and Particular reasons Dissenting Vote of Magistrate Garro Vargas on the inevacuability of the consultation in relation to Articles 39, 40, 41, and 42 of the bill (file 21-11915-007-CO) Particular reasons of Magistrate Picado Brenes on Articles 39, 40, 41, and 42 of the bill on new leave permit scenarios (point 60 of the Por Tanto) XXI.- On the consultation regarding the exclusion of public enterprises in competition and other exclusions.- (drafted by Magistrate Picado Brenes) 1) Aspects consulted 2) Jurisprudential precedents 3) Concrete analysis of the subject matter consulted 4) Conclusion XXII.- Conclusions XXIII.- General notes Notes of Magistrate Castillo Víquez on points 1, 4, 6, and 45 of the Por Tanto.- Note of Magistrate Hernández López Note of Magistrate Rueda Leal.

Final note of Magistrate Garro Vargas.- Note of Magistrate Araya García General note of Magistrate Picado Brenes.- XXIV.- DOCUMENTATION PROVIDED TO THE FILE.

Res. No. 2021-017098 CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at twenty-three hours fifteen minutes on the thirty-first of July of two thousand twenty-one.

Optional legislative consultation of constitutionality filed by deputies JOSÉ MARÍA VILLALTA FLOREZ-ESTRADA, PAOLA VEGA RODRÍGUEZ, PATRICIA VILLEGAS ÁLVAREZ, WALTER MUÑOZ CÉSPEDES, WELMER RAMOS GONZÁLEZ, FRANGGI NICOLÁS SOLANO, ARACELLY SALAS EDUARTE, IVONNE ACUÑA CABRERA, FLORIA MARÍA SEGREDA SAGOT, SHIRLEY DIAZ MEJÍA, LUIS RAMÓN CARRANZA CASCANTE, KARINE NIÑO GUTIÉRREZ, DANIEL ULATE VALENCIANO, regarding the bill entitled "LEY MARCO DE EMPLEO PÚBLICO", processed under legislative file no. 21.336.

Whereas:

1.- The consultation was received in the Secretariat of the Chamber at 17 hours 31 minutes on June 17, 2021. The petitioners request the Chamber to rule on the constitutionality of several provisions of the bill entitled "LEY MARCO DE EMPLEO PÚBLICO", processed under legislative file no. 21.336, because the Judicial Branch (Poder Judicial), the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones), the Public Universities, the Caja Costarricense de Seguro Social, the municipalities, and the autonomous and semi-autonomous institutions were included within its scope of application, which they consider contrary to Articles 9, 11, 33, 73, 83, 84, 85, 87, 99, 140 subsection 18, 154, 156, 168, 170, and 188 of the Political Constitution, constitutional principles, and various international conventions. Likewise, they consult the possible unconstitutionality of subsection g) of Article 23 of the bill in question (conscientious objection), for violation of the constitutional principles of legality and legal certainty (seguridad jurídica), reasonableness and proportionality, and international conventions. They also question the constitutionality of Article 43 and Transitory Provision XV, for violation of Article 62 of the Political Constitution and Convention No. 98 on the Right to Organise and Collective Bargaining, of the International Labour Organization (ILO), among other conventions and constitutional principles. They point out the possible violation of the principles of proportionality and reasonableness by the disqualification penalty contained in subsection a) of Article 4 of the consulted bill. Likewise, the unconstitutionality of Transitory Provision XI for violation of Constitutional Articles 33, 57, 68, and 56 and international conventions; for violating the constitutional principles of wage equality and the principle of non-discrimination in wages. Furthermore, they indicate aspects of constitutionality of the parliamentary procedure, claiming the violation of the right to amendment, as well as the principles of democratic participation and reasonableness, due to the manner in which the motions were accumulated in the admissibility resolution of the presidency, as well as regarding the motion for reiteration no. 138-210 of Deputy Vega Rodríguez, as it was not brought to the knowledge of the Plenary, omitting its subsequent voting 2.- Through a brief filed at 19 hours on June 17, 2021, Deputy Mario Castillo Méndez requests that his signature be considered withdrawn from the consultation filed.

3.- Through a brief filed at 9:22 hours on June 18, 2021, Deputy Zoila Rosa Volio Pacheco requests that her signature be considered withdrawn from the consultation filed.

4.- Through a resolution at 13:15 hours on June 18, 2021, the Presidency of the Constitutional Chamber indicates that it acknowledges receipt of the legislative consultation filed. Likewise, it requests the Board of Directors of the Legislative Assembly to remit legislative file number 21.336 or a certified copy thereof.

Furthermore, it warns that the time limit established by Article 101 of the Constitutional Jurisdiction Law begins to run once the requested documents are deemed received.

5.- By brief filed at 4:47 p.m. on June 21, 2021, Deputy Dragos Dolanescu Valenciano states that he endorses the consultation submitted.

6.- By brief filed at 9:00 a.m. on June 22, 2021, Carlos Alberto Gómez Ramos, in his capacity as General Secretary of the Health and Social Security Union (SISSS), makes several observations against the legislative bill under consultation, indicating that it contains serious violations of the Magna Carta that undermine the autonomy of the Costa Rican Social Security Fund, the Public Universities, and the Municipal Regime.

7.- By resolution of 11:54 a.m. on June 25, 2021, the Presiding Judge of the Constitutional Chamber deems the certified copy of the legislative file received and refers the consultation to the office of Justice Cruz Castro, to whom the merits of the matter correspond by rotation.

8.- By brief filed at 11:59 a.m. on June 25, 2021, several deputies of the Legislative Assembly submit what they term a “passive joinder (coadyuvancia pasiva)” and make statements regarding the constitutionality of the text of subsection g) of Article 23 of legislative file No. 21.336.

9.- On June 28, 2021, Justice Fernando Cruz Castro filed a motion for recusal (gestión de inhibitoria) to hear this consultation.

10.- By brief received at 11:41 a.m. on June 28, 2021, the signatories, who state they are representatives of union, community, and civil society organizations, file a “Request before the Constitutional Chamber on Behalf of the People of Costa Rica by Popular Action; in Accordance with Article 9 of the Political Constitution.” They request the uniform interpretation of constitutional principles, as well as the application of the fundamental rights and freedoms enshrined in the Political Constitution and in the international human rights instruments in force in Costa Rica, declaring unconstitutional what they describe as the disastrous public employment bill. They consider that Justices Castillo Víquez and Hernández López must recuse themselves from hearing this proceeding, and therefore request their recusal (recusación).

11.- By resolution of 10:57 a.m. on June 29, 2021, the Acting Presidency of the Constitutional Chamber granted Justices Castillo Víquez and Hernández López a period of 48 hours to respond to the recusal (recusación) filed against them.

12.- By brief filed at 5:39 p.m. on June 29, 2021, Deputies Wálter Muñoz Céspedes and Patricia Villegas Álvarez state that their sole support for a constitutional consultation under the terms established in Article 96, subsection b) of the Constitutional Jurisdiction Law, regarding Bill No. 21.336, is for the consultation processed under file No. 21-011713-000-CO.

13.- By brief filed at 7:37 p.m. on June 29, 2021, a brief signed by several deputies of the Legislative Assembly is received, labeled: “Brief for Better Decision (Escrito para Mejor Resolver),” for the purpose of collaborating and assisting in the understanding of the aspects raised through the discretionary constitutional consultations (consultas facultativas de constitucionalidad) No. 21-011713-0007-CO and 21-011915-0007-CO within the framework of legislative file No. 21.336. They submit for this Court’s consideration the legal arguments that, in their opinion, support the bill’s conformity with Constitutional Law.

14.- By brief filed at 9:30 a.m. on June 30, 2021, Deputy Sylvia Patricia Villegas Álvarez clarifies that she signed the discretionary consultation (consulta facultativa) brief addressed to this Court, except with regard to the arguments referring to conscientious objection (objeción de conciencia).

15.- By brief filed at 9:30 a.m. on June 30, 2021, Deputy Wálter Muñoz Céspedes clarifies that he signed the discretionary consultation (consulta facultativa) brief addressed to this Court, except with regard to the arguments referring to conscientious objection (objeción de conciencia).

16.- By brief filed at 9:32 a.m. on June 30, 2021, Deputy Dragos Dolanescu Valenciano states that his sole support for a constitutional consultation under the terms established in Article 96, subsection b) of the Constitutional Jurisdiction Law, regarding Bill No. 21.336, is for the consultation processed under file No. 21-011713-000-CO.

17.- By brief filed at 10:21 a.m. on June 30, 2021, Justice Fernando Castillo Víquez responds to the hearing granted by resolution of 10:57 a.m. on June 29, 2021. He requests that the motion in which he is recused be summarily dismissed (rechace de plano) and, in the alternative, should it be admitted, that the recusal (recusación) be declared without merit.

18.- By official communication filed at 11:17 a.m. on June 30, 2021, Justice Nancy Hernández López responds to the resolution of 10:57 a.m. on June 29, 2021. She considers that there is no ground whatsoever for recusal (inhibitoria) or recusal (recusación) in this proceeding.

19.- By brief delivered at 3:41 p.m. on June 30, 2021, Deputy Shirley Díez Mejías ratifies her adherence to the discretionary consultation (consulta facultativa) filed by her colleagues and requests that Bill No. 21.336 be declared inconsistent with the constitutional legal order. She clarifies that the other brief she signed, concerning support for conscientious objection (objeción de conciencia), must be considered subsidiary and only in the event that the bill is found consistent with the Political Constitution, so that the approved issue of conscientious objection (objeción de conciencia) remains intact.

20.- By brief filed at 7:27 p.m. on June 30, 2021, Deputy Paola Vega Rodríguez requests permission to consult electronic file No. 21-011713-0007-CO, online, for which she provides her identity card number.

21.- By resolution of 1:40 p.m. on July 1, 2021, the acting presidency of the Constitutional Chamber dismissed the recusal (recusación) motions filed against Justices Castillo Víquez and Hernández López.

22.- By resolution of 10:56 a.m. on July 2, 2021, the presidency of the Constitutional Chamber resolves, regarding the recusal (inhibitoria) filed, to deem Justice Fernando Cruz Castro recused from hearing this matter. Furthermore, the substitute justice replacing him is declared competent to hear this matter, in accordance with Article 49 of the Organic Law of the Judiciary.

23.- By vote No. 2021-015105 of 9:15 a.m. on July 2, 2021, it was ordered to consolidate (acumular) the legislative consultation No. 21-011915-0007-CO, filed at 8:11 a.m. on June 22, 2021, by the deputies: Aracelly Salas Eduarte, Carmen Chan Mora, David Gourzong Cerdas, Erick Rodríguez Steller, María Inés Solís Quirós, Marulin Azofeifa Trejos, Oscar Cascante Cascante, Otto Roberto Vargas Víquez, Pablo Heriberto Abarca Mora, Pedro Muñoz Fonseca, and Melvin Núñez Piña, with this proceeding. They state that the bill was approved in first debate in ordinary session No. 017 of June 17, 2021. They indicate that the bill submitted for consultation provides for a regulation of the remuneration scheme in the public sector, whose fundamental element is the implementation of the so-called “global salary (salario global).” This salary will be determined by the governing body, according to a methodology for remunerating work for the public service, consisting of a point-factor scheme in which scores will be assigned to positions based on analyses of relevant risk factors. This global salary scheme provides that all public servants will be remunerated in accordance with that law, including current servants. Transitory Provision XI of the bill develops the rules governing the application of the new regulations to current public employees and, in doing so, they consider that it violates Articles 11, 33, 56, and 57 of the Political Constitution. Firstly, the Transitory Provision states that public servants who earn a salary lower than what would correspond to their category under the global salary (salario global) modality will continue to earn it until it equals what would correspond to them. This means that newly hired servants will be remunerated under the global salary scheme from the start of the employment relationship, but those already working for the public function will not, even though the duties, responsibilities, conditions, and other characteristics of the position are equal or similar. Thus, for a position with identical conditions, the same salary will not be paid. As conceived, Transitory Provision XI creates two different salary scales for the same job position. The bill in question designs a salary scheme that is not accessible to current public employees. This duality of regimes for two types of employees generates clear discrimination and injustice. The methodology based on point factors must take into consideration many aspects, including required levels of knowledge and experience, margin of discretion for decision-making, complexity of work, etc. The aim is for the salary to be commensurate with the duties and level of responsibility that the public employee must exercise for that specific position. They consider that all public employees should be transferred to the new labor regime. Failure to do so represents a violation of the principle of legal certainty (principio de seguridad jurídica) and an internal contradiction between Transitory Provision XI and Article 1 of the law. This criterion was noted by the Department of Technical Services in official communication AL-DEST-CJU-027-2021 of April 6, 2021. In said communication, it is warned that the bill maintains not only salary differences for identical positions, but also several classes of salaries. This violates the principle of equal pay, developed by the Constitutional Chamber and the Second Chamber of the Supreme Court of Justice, deviation from which requires objective and reasoned justifications which, in this case, do not exist. The sole justification by the proponents of Transitory Provision XI alludes to fiscal and public finance reasons. The consulting deputies challenge Articles 2 and 3 of the bill, which regulate the issue of coverage and exclusions, clearly indicating which institutions the law will apply to and which are excluded, thereby contradicting the objective of the bill, which seeks a general framework law for public employment. Although there are institutions with different dynamics and particular characteristics, all are, ultimately, public institutions where the State acts as the sole employer. Public enterprises and institutions in competition are excluded, even though they also receive and manage public funds to a greater or lesser degree. The file does not contain suitable, reasonable, and proportionate justifications for creating exclusions from the bill. Article 191 of the Constitution demonstrates that the framers envisioned that relations between the State and employees should be governed by a single regulation and statute, without exclusions or differentiation. The position of the Comptroller General of the Republic was reaffirmed by official communication No. 77695 of May 28, 2021, which drew attention to the need to establish clear parameters and limits for its actions in aspects involving the disposition of public resources by any mechanism. They state that they challenge Articles 21 and 22 for the possible violation of Articles 11, 41, 121, and 129 of the Political Constitution and the principles of defense, reasonableness (razonabilidad), legality, due process (debido proceso), legal reserve, and legal certainty (seguridad jurídica). They point out that one of the essential points of the bill is the reform and modification of the dismissal processes for public employees in public management. A uniform dismissal process is necessary for the path of regulation and constitutional consistency. However, the procedure provided for in Article 22 of the bill violates a series of constitutional norms and principles. The content of this article is similarly gathered in Article 49, subsection b), which refers to a series of reforms to the civil service statute. The reform to Article 43 of Law No. 1581 seeks to incorporate that dismissal procedure; however, there are serious differences, inconsistencies, and contradictions that violate the principles of legal certainty (seguridad jurídica) and legality. Thus, there is no clarity regarding time limits, reception of evidence, right of defense, among others. This was highlighted by the Civil Service Tribunal. The current wording of the bill creates absolute confusion regarding the dismissal procedure and the areas of jurisdiction in each of the instances: The Civil Service Tribunal cannot, for example, have jurisdiction to hear dismissals at first and second instance. Due process (debido proceso) is a constitutional guarantee that must be respected in any procedure, whether administrative or judicial. The procedure developed in the bill violates what has been developed by the Constitutional Chamber in relation to due process (debido proceso), firstly due to a violation of the principle of legality regarding the regulatory gaps and antinomies generated by the existing contradictions, and, secondly, because it does not contemplate fundamental rights. This was highlighted by the Supreme Court of Justice through official communication No. SP-62-2021 of June 3, 2021, by which they alert the legislator about the serious deficiencies in Articles 21 and 22 of the bill: confusion between the concepts of expiration (caducidad) and statute of limitations (prescripción), impairment of orality in the process, preliminary exceptions, and others. They also state that Articles 39, 40, 41, and 42 of the bill violate Articles 11, 176, 179, and 190 of the Political Constitution, as well as the principles of reasonableness (razonabilidad) and the unequivocal rules of science and technique, the elementary principles of justice, logic, and convenience, as well as the violation of the principle of fiscal sustainability. During the second day of motions via Article 137, Articles 39, 40, 41, and 42 were incorporated into the framework bill for public employment. These articles deal with an unpaid leave to reduce the working day by up to one third, paternity leave, and the extension of maternity leave for up to two additional months. The inclusion of these types of provisions was done without taking into consideration any cost study or source of resources to cover them. Nor was the opinion of the Costa Rican Social Security Fund considered, which, in relation to paid maternity leave, must cover, equally with the employer, the payment for the leave. This violates Article 188 of the Political Constitution, as it implies a significant expenditure of resources, both for the State and for the CCSS. Additionally, since there are no technical studies or foundation demonstrating the effects these provisions could have, the possible impact on the functioning of each institution and the provision of services was also not considered. The same applies to paternity leave. Article 176 of the Political Constitution provides that public management shall be conducted in a sustainable, transparent, and responsible manner; however, the inclusion of these articles highlights a violation of the principle of financial responsibility and violates the administrative and financial autonomy of the CCSS. On the other hand, Articles 39 and 40 contradict each other, contradictions that are found in other provisions of the bill, as occurs with Article 7 bis, and subsections b) and e) of Article 49. They add that Articles 7, 12, 14, 16, and 17 violate Articles 9, 156, 191, and 192 of the Political Constitution. They state that the bill regulates the issue of the governance (rectoría) of public employment. The framers indicated that the Civil Service Statute would regulate relations between the State and public servants. Although the bill seeks to standardize the regulation of public employment, the powers and attributions given to the governing body (rector) for the matter, the Ministry of Planning, go further. Article 7 grants it excessively broad powers, having interference and intervention within other branches of the republic and autonomous institutions, such as, for example, defining recruitment processes, performance evaluation, remuneration, and issuing provisions of general scope, directives, and regulations of mandatory compliance. This represents a violation of the principle of separation of powers. The Supreme Court of Justice addressed this aspect in official communication No. SP-62-2021 of June 3, 2021. Regarding procedural defects, they allege that during the processing of the bill, some have occurred, violating principles such as the right of amendment of the deputies. Thus, once the deadline for submitting reiteration motions (mociones de reiteración) according to Article 138 of the Regulations of the Legislative Assembly had expired, the presidency issued a resolution on admissibility and consolidation (acumulación) of the reiteration motions. However, this power was exceeded, and an improper consolidation (acumulación) of motions and various inconsistencies in the criteria used for this purpose occurred. The parameters used to declare one motion inadmissible and another not, despite being under identical conditions, are not clear. Motions approved in committee are admitted, but others are rejected. In the Standing Committee on Government and Administration, by a significant majority of deputies, substantive motion 329 was approved, which was reiterated by motion number 18 (declared inadmissible), and in the process of reiteration motions (mociones de reiteración), a motion was approved that completely erased the content intended and approved in committee. Therefore, had the reiteration motion been admitted, as was the will of the legislators, the content could have been safeguarded in the text. However, by a broad and contradictory interpretation, it was declared inadmissible, and its content could not be guaranteed. Also, in point 28 of the resolution, reiteration motions 198 and 272 are consolidated (acumulan) because they refer to the same articles, seek to modify the final paragraph of the second paragraph, and there is an evident connection with the purposes intended by the proponents. Despite this, there is motion 344, which seeks exactly the same content as reiteration motions 198 and 72. There is a new contradiction in the admissibility resolution and a violation of the principles of equality, legality, and objectivity. The improper consolidation (acumulación) represents a flaw in the content of the resolution and causes its nullity. Deputy Aracelly Salas Eduarte also signed the legislative consultation No. 21-11713-0007-CO, referring to the same bill. By brief filed at 4:18 p.m. on June 23, Deputy Melvin Núñez Piña joined this consultation. By brief filed at 7:37 p.m. on June 29, 2021, Deputies Laura Guido Pérez, Vita María Monge Granados, Enrique Sánchez Carballo, Nielsen Pérez Pérez, Catalina Montero Gómez, Carolina Hidalgo Herrera, Mario Castillo Méndez, Carlos Avendaño Calvo, Mileidi Alvarado Arias, Giovanni Gómez Obando, Eduardo Cruickshank Smith, Jonathan Prendas, Ignacio Alpízar Castro, Harllan Hoepelman Páez, Carlos Ricardo Benavides Jiménez, Wagner Jiménez Zúñiga, Paola Valladares Rosado, Luis Fdo. Chacón Monge, Yorleni León Marchena, Ana Lucía Delgado Orozco, Luis Antonio Aiza Campos, Silvia Hernández Sánchez, Erwen Masís Castro, María José Corrales Villalta submit a passive joinder (coadyuvancia pasiva) in relation to the consultation filed.

24.- By vote No. 2021-015137 of 9:15 a.m. on July 2, 2021, it was ordered to consolidate (acumular) the legislative consultation No. 21-012118-0007-CO, filed at 6:47 p.m. on June 23, 2021, by the deputies: Erwen Masís Castro, Enrique Sánchez Carballo, Aida Montiel Héctor, María Monge Granados, Carolina Hidalgo Herrera, Paola Valladares Rosado, Gustavo Viales Villegas, Roberto Thompson Chacón, Jorge Fonseca Fonseca, and Zoila Rosa Volio Pacheco, with this proceeding. The consulting deputies point out that the aforementioned bill was approved in first debate in ordinary session No. 17 of the Legislative Plenary on June 17, 2021. They indicate that they consult on the unconstitutionality of Article 23, subsection g), for violation of the constitutional principles of legality, legal certainty (seguridad jurídica), reasonableness (razonabilidad), and proportionality, the International Covenant on Civil and Political Rights (art. 18.3), and the American Convention on Human Rights (article 12.3). They state that, in 1948, the Universal Declaration of Human Rights recognized that everyone has freedom of thought, conscience, and religion, in its Article 18. They affirm that in said numbered provision, there is a recognition of the individual or collective capacity to freely express one's beliefs or religion. They add that the International Covenant on Civil and Political Rights, adopted in 1966, protects and recognizes the freedom of thought, conscience, and religion of persons, respecting the legal conditions and limitations that allow its full exercise, as stated in its Article 18. They indicate that this same norm establishes that the exercise of this right cannot override the limitations prescribed by law that are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. Meanwhile, in 1987, resolution No. 46 of the United Nations Commission on Human Rights recognized conscientious objection (objeción de conciencia) with respect to military service. In that particular case, in safeguarding human rights, conscientious objection (objeción de conciencia) supported the refusal to perform military service by virtue of the freedom of thought, conscience, and religion already recognized in the international framework stemming from the recognition of the right to refuse to perform military service to impose apartheid. This position was reaffirmed in 1989, when the Commission on Human Rights, through resolution 1989/59, recognized the right to have conscientious objections in relation to military service as a human right in accordance with the provisions of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. At the international level, human rights have recognized and analyzed the friction between conscientious objection (objeción de conciencia) and the right to health, given the possibility that the exercise of this right may prevent proper health and medical care from being provided to service users. Article 18.3 of the International Covenant on Civil and Political Rights, as well as Article 12.3 of the American Convention on Human Rights, establish that the freedom to manifest one's religion and beliefs is subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. Thus, it must be understood that, for an employee who provides their services in the health area, the exercise of conscientious objection (objeción de conciencia) is appropriate only when that refusal does not imply an injury to the human rights of the patients (whether men, women, or children). Specifically, regarding respect for freedom of conscience in health professionals, the Inter-American Court of Human Rights has ruled that the rights of their patients as users of a public service must be respected, and it is for this reason that there must be a clear way to exercise the right to avoid violations. In Costa Rica, the Constitutional Chamber, through resolution No. 01619-2020, has already ruled on conscientious objection (objeción de conciencia). The Chamber is consistent with respect for human rights in the exercise of the right to conscientious objection (objeción de conciencia) as long as there is no friction with other rights. Regarding the exercise of conscientious objection (objeción de conciencia) in the jurisdictional sphere, the aforementioned resolution has established: “IX.- Conclusion. The principle of equality and non-discrimination is an essential element of the public service of Administration of Justice, and therefore its users must receive equal treatment in the attention, processing, resolution, and execution of the different matters heard in all judicial instances. For its part, the majority of the Court considers that it is possible to exercise the right to conscientious objection (objeción de conciencia) in the jurisdictional function—although in the present case it concerns the exercise of a judicial function. In these cases, two fundamental rights are reconciled; however, the essential content of the first—equality and non-discrimination—is not emptied, given that in a case of a judge's conscientious objection relating to performing the act of marriage, the Superior Council of the Judiciary must adopt all necessary measures so that the public service of Administration of Justice is provided to same-sex couples under the same conditions and response times as it is given to heterosexual persons. Finally, it is clear that all persons appointed after the entry into force of same-sex marriage cannot exercise the right to conscientious objection (objeción de conciencia), having voluntarily accepted that function by applying for and accepting the position...\". As can be deduced from the analysis presented, conscientious objection (objeción de conciencia) is understood as a (recognized) right that allows individuals to reject conduct that is legally required of them, for reasons that are contrary to or affect their beliefs. In light of the bill under consultation, what is proposed by Article 23, subsection g), of the bill in question, by openly and unregulatedly including the possibility that public employees may refuse to receive technical training and instruction that are mandatory and necessary for the exercise of the position they hold, with the mere notification by sworn statement, could be considered an abusive exercise and contrary to the human rights of other citizens. Analyzing the articles of the bill under consultation, a set of rights, both of the employees and of the citizens who receive services from these public servants, come into conflict. Through resolution No. 02965-2020 of the Constitutional Chamber, this constitutional body recognizes equality and universality in the treatment that the administration must give to users. Public services must attend to the demands of those administered, without reasons being alleged that could jeopardize the exercise of those rights before the administration under equal conditions, without individual employee rights being imposed. In order to perform their duties probly, efficiently, and effectively, public employees necessarily require the technical and administrative knowledge that allows them to carry out their functions. Furthermore, there is an obligation on the part of the State to train employees so that State operation conforms to the parameters of public service provision that must be guaranteed to citizens. It is important to point out that the necessary training of employees cannot be understood as indoctrination or imposition of conditions on public servants, but rather training becomes a necessary transfer or exchange of information that must be conveyed to employees so that they perform their functions in accordance with the conditions for which they were hired. The training of employees is not only a right of theirs as employees, but a guarantee for the citizens who receive the service, this on the understanding that if the employee does not have sufficient knowledge to provide the public service for which they were hired, they will not be able to resolve or, failing that, guide the citizen receiving the service. They question how a public employee can determine, prior to receiving training, that said training violates their personal beliefs or convictions. They allege that including conscientious objection (objeción de conciencia) in this bill could render it unconstitutional to the extent that the State would allow employees to disregard the fulfillment of public duties, which are mandatory and must be performed by someone. They affirm that the solution that the Constitutional Chamber has already given to this issue, as already mentioned, is that institutional hierarchies must adopt plans to prevent a neglect of public service from occurring, because while it is true that the employee has that right, the citizen whose process an objecting employee excuses themselves from attending cannot be limited or harmed. Furthermore, this constitutional body has also said that employees, when they assume a position for which they must perform certain acts, are obliged to comply with them without the right to conscientious objection (objeción de conciencia), insofar as they have accepted to exercise the public position in accordance with the law in force at the time of their appointment.

Thus, it must be understood that public officials must exercise the functions for which they were hired, fully complying with the assigned functions and respecting the human rights inherent to individuals: political, sexual, informational, health, and education rights. The approach to this issue during the processing of the bill, accompanied by the rejection of motions that sought to clarify and delimit the exercise of conscientious objection so that there would be no violations of other fundamental rights, ended up being a violation of fundamental rights in itself. The refusal to receive training and education on topics consistent with their position could violate, for example, the citizen's right to receive adequate health care, a correct service from the bodies that administer justice, or a biased or erroneous message from educational institutions. Considering conscientious objection as a mere procedure without further conditions and restrictions, without any technical seriousness, only to polemicize and polarize Costa Rican society, is contrary to the human rights recognized by the Inter-American Court of Human Rights, and contradicts the obligation of the State, which this Legislative Assembly must guarantee, regarding the safeguarding of legality and legal certainty that must accompany the laws that are issued. Based on the arguments presented, they believe that the inclusion of conscientious objection in Article 23, subsection g), of the bill called "Ley Marco de Empleo Público," legislative file No. 21336, included in the wording of the bill voted on in the first debate, could constitute a violation of constitutional principles and human rights, which is why it is submitted to this Constitutional Chamber so that it may definitively indicate whether or not the Political Constitution is infringed. By means of a brief received by this Chamber at 8:40 a.m. on June 29, 2021, deputies Jonathan Prendas Rodríguez, Ignacio Alpízar Castro, Marulin Azofeifa Trejos, Harllan Hoepelman Páez, Carmen Chan Mora, Nidia Céspedes Cisneros, Erick Rodríguez Steller, María Vita Monge Granados, Patricia Villegas Álvarez, Walter Muñoz Céspedes, Eduardo Cruickshank Smith, and Xiomara Rodríguez Hernández indicate that they are filing a passive joinder in this consultation.

25.- By vote No. 2021-015240 of 9:15 a.m. on July 2, 2021, it was ordered that legislative consultation No. 21-012714-0007-CO, filed at 11:45 a.m. on July 1, 2021, by Fernando Cruz Castro, in his capacity as President of the Supreme Court of Justice, be joined to this proceeding. A consultation is made regarding the possible effects that could occur on the constitutional powers of this Court and the Judicial Branch, by reason of the content and effects of its regulations, for which the President of this body was authorized to file it. Prior to making the questions of constitutionality, he indicates that it is appropriate to refer to a series of general considerations known within the Supreme Court of Justice, on the occasion of the constitutional consultation raised by the Legislative Assembly, regarding the effect on the organization and functioning of the Judicial Branch by the bill under consultation. He warns that some of the issues subject to this consultation on constitutionality regarding effects on constitutional powers of the Supreme Court of Justice had already been warned prior to the approval in the first debate of the bill; however, the Legislative Assembly ignored this, as well as regarding several motions aimed at protecting the constitutional powers of the Judicial Branch, which were systematically rejected. He states that the analysis raised at the time on the occasion of the consultation regarding the effect on and functioning of the Judicial Branch is an initial assessment framework carried out by the Supreme Court of Justice, but it cannot be considered delimiting or exclusive for the purposes of the respective consultation, since a series of elements assessed in the proposed proposal and the interventions made in the respective session where the presentation of this consultation was approved are incorporated. In this sense, in the original analysis on the occasion of the determination of the effect on and functioning of the Judicial Branch, it was considered by the Reporting Magistrate of the respective report, which was accepted by the Supreme Court of Justice, that the bill proposes the incorporation of the Judicial Branch within a general public employment regulation, without taking into account its legal nature, its organic composition, or the particularity of the functions performed by the serving persons in its different areas. In this sense, despite the fact that it is intended to encourage joint participation in some activities, the Ministry of National Planning and Economic Policy (Ministerio de Planificación Nacional y Política Económica, Mideplán) remains the governmental entity, therefore, external to the Judicial Branch, which mostly covers the powers over what has been called the "Governance of the General Public Employment System" (Gobernanza del Sistema General de Empleo Público), hence a clear violation of the principle of independence of Branches or separation of powers persists. In this order of ideas, the particular salary regime of the Judicial Branch continues to be ignored, as the official remuneration system for all positions included in the Judicial Branch Descriptive Manual of Classes, an instrument that was prepared by the corresponding technical body of the Supreme Court of Justice and approved by agreement of the Full Court based on the provisions established by the Organic Law of the Judicial Branch and the Judicial Service Statute, as well as in consideration of the institution's own needs and particularities. He points out that, in this order of ideas, the bill eliminates the powers of the Supreme Court of Justice in the matter and openly transfers them to Mideplán, whose head is fully dependent on the President of the Republic. He highlights that both the aforementioned indigenous payment system of the institution and the own regulations on the employment of judicial service persons provided by the Supreme Court of Justice find support in several laws, such as Law No. 2422 of August 11, 1959, and its amendments, the so-called "Ley de Salarios del Poder Judicial." In this latter law, the competence of the Personnel or Human Management Department to prepare and keep up to date the Job Classification Manual is established, a competence that would evidently be negatively affected by the new general regulation that encompasses the public sector as a whole, especially since - as of September 30, 2019 - this Full Court had already agreed to work on a global salary or single salary model that responds to technical, financial, and legal criteria specific to the institution. He insists that, in addition to the positions based on merits for the judicial career, this Branch of the Republic includes the judicial service persons who make up the Judicial Investigation Agency (Organismo de Investigación Judicial), the Public Ministry (Ministerio Público), the Public Defense (Defensa Pública), among many others. These factors are important to prevent this flight of human talent and the disincentive for the entry of administrative, technical, and professional personnel to the institution, which is something the law promotes, but here it is set aside. The bill eliminates the interference of the constitutional governing body of the Judicial Branch, the Supreme Court of Justice, regarding the regulation of public employment in said Branch, since this and the salary scale of its servants will be administered by a ministerial portfolio of the Executive Branch, such as Mideplán, with the respective internal intrusion into the exclusive structure and functioning of this Branch of the Republic. He asks that it be taken into account that the new salary scale that is in gestation - technically adjusted to the nature of the Judicial Branch - requires suitable studies to define competitive salary and the salary components to include in the single salary. The revaluation modality of these positions also involves periodic market studies to determine how these positions will be revalued. There is vast constitutional jurisprudence that warns that the salary regime of the Judicial Branch is unique and exclusive to the Full Court. He warns that the omission of making a legal differentiation and/or establishing limits between progressive salary increases represents a clear effect on the independence of the Judicial Branch. He states that the bill maintains equal treatment for persons immersed in different circumstances, thereby ignoring the basic content of the provisions of Article 33 of the Political Constitution. By starting from or suggesting the salary of the President of the Republic as a premise, it is ignored that this has very diverse functions and training, which generates an impact on the salary of other officials appointed by suitability, such as the desirability of the position with a responsibility not adequately attributed. With the introduction of a chapter regarding performance evaluation, the efforts of the Judicial Branch in creating plans on this specific topic are ignored. This process is part of an evolutionary development that the Human Management and Distribution Directorate began in 2012, in complement to the strategic organizational approach. This situation has been moving from a traditional approach to people administration towards a comprehensive model of talent management by competencies conceptually based on a methodological foundation, which cannot be intended to be homogenized with the rest of the State and under technical criteria that the foundation that has been promoted does not share. The model adopted by the Human Management Directorate is based on the comprehensive approach for talent distribution by competencies, which generates inputs and outputs in the sub-processes of payments, selection, evaluation, and training; whose essential basis is founded on the description, classification, and valuation of positions. This has been an essential objective to provide the Judicial Branch with suitable personnel, as well as to maintain them and develop the competencies, skills, and sufficient motivation to achieve the objectives of this institution. Consequently, subjecting it to a change would generate operational risk to fulfill long-term plans outlined by this Judicial Branch, regarding the strategic issue of personnel management. He points out that it must be remembered that, in accordance with the provisions of Article 156 of the Political Constitution, constitutional support is granted to the jurisdictional structure of the Judicial Branch, as an activity exclusively entrusted to it, and also a provision is made for another regime such as that of the Civil Service (Servicio Civil), so that eventually the Administrative Career Law and the statutory relations of other bodies and officials who contribute to said function from other areas are covered. From a relationship of the aforementioned Article 156 with Article 177, also constitutional, an attenuation of the budgetary independence that the constituent gave to the Judicial Branch is glimpsed, derived from the autonomy to exclusively exercise that jurisdictional function, therefore, in said provisions, the judiciary sector must be understood to be basically included. The foregoing means that, since there are serving persons of this Branch of the Republic entrusted with exercising a jurisdictional function that derives from a constitutional norm, they must be given independent treatment, by reason of that same provision. He indicates that another norm to consider for the raising of the issue related to the interference of the Ministry of National Planning and Economic Policy and, therefore, of the Executive Branch in this other Branch of the Republic, is numeral 153 of the Political Constitution, which states that the administration of justice through jurisdictional bodies duly established is an exclusive function of the Judicial Branch. Now, given the nature that characterizes the Judicial Branch as a constitutional body complementary to that exclusive function of deciding jurisdictional matters that are submitted to its knowledge and the dilution of functions that permeates the three branches of the Republic, Article 9, the need to avoid any intrusion that by legal means or otherwise is intended to be made in its functioning becomes more palpable. Being the entity in charge of settling jurisdictional or judicial matters, according to the different jurisdictions or competencies, it is indisputable that it handles sensitive information and data of users that should not be migrated because they are the domain of other external bodies, and that could violate the right to privacy of other persons, an aspect that is not solved by the simple mention of Law 8968, Protection of the Person Regarding Sensitive or Personal Data (Protección de la Persona Frente a los Datos Sensibles o Personales), Article 12 of the bill. Likewise, when the judiciary is included within the eight families referred to in numeral 12 of the bill, specifically in subsection f). there would be friction with more constitutional norms, which highlights that, even with a qualified majority, the bill presents some vices of unconstitutionality. Then, when it is proposed that the budget must be used to pay salaries according to criteria of the Ministry of National Planning and Economic Policy, a harmful incidence occurs in the judiciary, in the value-added taxes on the judiciary. Likewise, by including in the same family the persons who administer justice together with magistrates of the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones), aspects that differentiate them are ignored, such as the natures of the functions, the operational quantity between both types of public officials. The indicated effects, as will be indicated below, have not only a direct incidence on the organization and functioning of the Judicial Branch, but, at its core, the content and effects of the consulted bill have direct consequences on the exercise of constitutionally assigned powers to said Branch and specifically to the Supreme Court of Justice. He indicates that the core object of the consultation is that, with the interpretation and application of the content and effects of the following articles of the bill in question, the exclusive and excluding constitutional powers of the Supreme Court of Justice could be affected, regarding the governance of the Judicial Branch, in matters of regulation, ordering, direction, and control of the employment relationship of judicial servants: i. Ordinals 6 and 9, by transferring those powers for exercise to the Ministry of National Planning and Economic Policy, dependent on the Executive Branch. The bill, in its content, ignores the existence and own powers of the Supreme Court of Justice, as the governing body of the Judicial Branch, and establishes, on the contrary, a direct relationship between Mideplán and the Human Management Directorate of the Judicial Branch. It is considered that the vertical and absolute relationship – since it denotes that Mideplán will directly issue administrative acts with final and firm effects and regulations directed to human resources offices, including the Human Management Directorate of the Judicial Branch -, could present friction with the law of the Constitution, as it implies an open interference of the Executive Branch in the most basic decisions on personnel administration of the judiciary, prosecutors, etc.; without taking into consideration in any way the opinion of the Supreme Court of Justice. In accordance with the foregoing, there will be no coordination-cooperation relationship between Branches, but rather the imposition of Mideplán's provisions on the technical instances, ignoring the existence of the competent constitutional bodies in charge of governing the Branches of the Republic, and in the case of the Judicial Branch, the Supreme Court of Justice, as established by the Political Constitution. He warns that these norms imply emptying the content of the constitutional powers of the Supreme Court of Justice in matters of employment management of judicial servants and, consequently, of the norms of the Organic Law of the Judicial Branch that thus provide powers for said collegiate body. He points out that, although the bill initially states the phrase "without prejudice to the principle of separation of Branches established in the Political Constitution," it is emptied of content if it is noted that the rest of the bill's articles are absolutely contradictory to what is provided. From an analysis of the norms, as has been indicated, it is evident that it proposes a vertical relationship from Mideplán to the human resources units and, in the case of the Judicial Branch, with the Human Management Directorate, ignoring the Supreme Court of Justice as the governing body of said Branch when defining matters related to public employment. If the scope of the bill is read with care, it is noted that a series of definitions in matters of public employment of the Judicial Branch are left to the realization that Mideplán carries out through a simple administrative act. The observation indicated that the phrase that seeks to protect the independence of branches was not considered in the rest of the articles when specifying Mideplán's powers was duly noted at the time in the respective Legislative Commission, but the corresponding motion was rejected by a majority of the deputies present. He warns that the formula used by the bill aims to copy in some way the provisions of the Law of Financial Administration and Public Budgets (Ley de la Administración Financiera y Presupuestos Públicos), but, unlike this one, it is emptied of content when specifying how the intersubjective relationships based on its content will be made effective. In this sense, he warns from the respective legislative discussion that, in the case of the bill under consultation, a wording similar to Article 21 of the Law of Financial Administration and Public Budgets was proposed, but it was rejected at the time, which shows the lack of will to establish a mere coordination relationship with the Judicial Branch for the purposes of the application of the bill under analysis, and the objective of establishing a direction relationship by Mideplán, it follows from the fact that only in the norm that will be indicated was provision made for the indicated cooperation in the following manner: "The Legislative and Judicial Branches, the Supreme Electoral Tribunal, the state higher education institutions, the municipal corporations, and the leagues of municipalities through the National Union of Local Governments (Unión Nacional de Gobiernos Locales) and the autonomous institutions will jointly construct with Mideplán, the Budgetary Authority (Autoridad Presupuestaria), and the General Directorate of Civil Service (Dirección General de Servicio Civil) the respective global salary table (columna salarial global), based on the principle of inter-institutional coordination." But, if a comprehensive reading of the bill is given, it will be evident that only in that norm and only for the purposes of the global salary table is there the provision to respect the principle of separation of powers, since in no other article is the exception made of the coordination relationship that must exist between Branches, the fundamental basis of judicial independence. However, despite the previous norm, it must be warned that again the final definition of the global salary table will remain exclusively in the hands of bodies of the Executive Branch, insofar as the bill states: "Article 34- Global salary table. Starting from the work valuation methodology, the Ministry of National Planning and Economic Policy (Mideplán), the Technical Secretariat of the Budgetary Authority, and the General Directorate of Civil Service will jointly prepare a global salary table. The table will start sequentially from the lowest to the highest score." Thus, despite establishing a norm that, in principle, establishes the cooperation relationship on the subject of the global salary table, it is noted that it in no way obliges the bodies of the Ministry of the Presidency, the Ministry of Finance, and Mideplán to what the Judicial Branch indicates. And to this is added that Mideplán's relationship is with the Human Management Directorate of the Judicial Branch and not with the Supreme Court of Justice, which would constitute a serious vice of unconstitutionality, since Mideplán "will coordinate" with the indicated Directorate the definition of the global salary table of the Judicial Branch (see article 6 subsections a and b, and 9 subsection a of the bill) completely ignoring the highest governing body of said Branch. In the specific case of the Judicial Branch, what is intended with the challenged article of the bill could imply a regression and an effect on the principle of progressiveness in the right that all Costa Rican persons have to a Judicial Branch, not subject to risks of interference from other Branches, that is, to judicial independence. Consequently, regressiveness in matters of judicial independence for any reason and opening the opportunity for the control bodies of the public powers to be undermined in some way in decision-making would be contrary to the law of the Constitution. The legislator's objective was to establish a particular statutory relationship for the serving persons of the Judicial Branch, in order to strengthen its independence, without deviating from a public employment relationship. With the bill in question, it would imply an emptying of content of several laws and a tacit repeal of the powers that the Organic Law of the Judicial Branch establishes for the governing and directing bodies of the Judicial Branch, which is contrary to the normative triad, consubstantial to judicial independence (he refers to the judgment of this Chamber No. 2018-19511). Complementary to the above, it must be taken into consideration that the creation of the single employment regime and the incorporation of the Judicial Branch into it will imply the possibility that Mideplán has interference in the employment relationship of judicial service persons belonging to the judiciary, the Public Ministry, and the Judicial Investigation Agency. The bill does not make any particular treatment for the Public Ministry and the Judicial Investigation Agency; rather, it incorporates them into the "families" whose content will be the exclusive competence of Mideplán through a simple administrative act, tacitly repealing the powers established in the Organic Law of the Judicial Branch, the Organic Law of the Public Ministry, and the Organic Law of the Judicial Investigation Agency. This implies a regression in terms of the independence that the Public Ministry and the OIJ possess, and an open threat that the Executive Branch will assume the own powers of the person in charge of the Attorney General's Office of the Republic and the Director of the Judicial Investigation Agency. In that way, a deconcentrated body dependent on the Ministry of the Presidency, the General Directorate of the Republic, will have directing powers over the Human Management Directorate of the Judicial Branch in matters related to competencies, psychometric tests, recruitment and selection processes of judicial personnel and, in particular, of male and female judges, male and female prosecutors, and agents of the Judicial Investigation Agency. This bill is transferring constitutional powers corresponding to the governing body of the Judicial Branch, be it the Supreme Court of Justice, to a simple body of the Executive Branch, which is thought could affect judicial independence. ii. He points out that ordinal 13 of the bill in question violates the reservation of law in matters of own regulation of the Judicial Branch foreseen by the National Constituent Assembly, by leaving the issuing of administrative acts and regulations issued by the Ministry of National Planning and Economic Policy, dependent on the Executive Branch, to regulate the employment of the Judicial Branch fundamentally as regards filling in the content of the indicated "families" referred to in the indicated bill. The regulation of the indicated families in the bill is very poor, so it is understood that it will be carried out by the exercise of regulatory authority, via regulation and even lower-ranking normative instruments, since the distinction implies a singular treatment, according to the type of service provision involved. The foregoing is contrary to the constitutional reservation of law that follows from Article 154 of the Political Constitution. With the above, the self-normative authority of the Judicial Branch is emptied of content, and the possibility of regulation in autonomous regulations is transferred to the adoption of regulations, and even worse, of provisions of general scope, directives, circulars, manuals, and resolutions by the indicated Ministry. iii. With the interpretation and application of the content and effects of the articles of this bill, the exclusive and excluding constitutional powers of the Supreme Court of Justice could be affected, regarding the governance of the Judicial Branch, in matters of regulation, ordering, direction, control of the employment relationship of judicial servants, by ignoring them, by establishing a direct direction and control relationship between the Ministry of National Planning and Economic Policy dependent on the Executive Branch and the Human Resources Directorate of the Judicial Branch. Consequently, the bill, far from providing legal certainty in the matter of the employment relationship of judicial service persons, leaves it to the discretion of the current head of Mideplán to fill in the content of the regulation of each of the respective families of positions (he refers to articles of the bill 6, 7, 9, 11, 12, 13, 16, 17, 23, 24, 28, 30, 31, 32, 33, 34, 46, Transitory Provision II, Transitory Provision IV, Transitory Provision IX, and Transitory Provision X). iv. On the other hand, he questions the constitutionality of the bill incorporating the Directorate positions of the Judicial Branch, including the members of the Superior Council, the person in charge of the Attorney General's Office of the Republic, and that person in charge of the Judicial Investigation Agency as "High Public Management" (Alta Dirección Pública) positions, under the open interference of Mideplán (articles 5, 17, 18, and 24). The bill will subject the remuneration policy of the Judicial Branch to a proposal prepared by three bodies of the Executive Branch - General Directorate of Civil Service, dependent on the Ministry of the Presidency, Budgetary Authority, dependent on the Ministry of Finance, and Mideplán, and to the final approval of the Government Council. With the above, there is a tacit repeal of the powers of the Supreme Court of Justice in matters of defining the remuneration of judicial service persons and an open interference of the Executive Branch in the decisions that in this regard are implemented in the Judicial Branch. The constitutional powers of the Supreme Court of Justice are nullified, and decisions that have an open impact on the functioning of the Judicial Branch are attributed to the Executive Branch. v. He indicates that the bill in question (article 21) could eliminate the Judicial Branch's own disciplinary regime and the powers of the Supreme Court of Justice in the matter and in order to exercise the respective regulatory authority. The establishment of a single administrative procedure for the entire public sector tacitly repeals the regulations of the Organic Law of the Judicial Branch, the Organic Law of the Public Ministry, and the Organic Law of the Judicial Investigation Agency in matters of sanctioning procedure with an open effect on judicial independence. vi. He considers that the bill in question violates the following constitutionality parameters: articles 152, 154, and 156 of the Constitution, the judgments of this Chamber 1993-6240 and 2018-19511, and the pro persona principles, separation of Branches, harmonious coordination between Branches, progressiveness of fundamental rights, and judicial independence. Some of the effects that the consultation bill could generate in terms of its content and effects on the constitutional powers of the Supreme Court of Justice and the Judicial Branch were already previously warned when this body ruled on the effect on its organization and functioning before a consultation of the Legislative Assembly, in accordance with Article 167 of the Constitution, and it so happens that this latter Branch ignored said observations of vices of constitutionality due to issues affecting the indicated constitutional powers.

It points out that, from a careful reading of the bill, it is noticeable that on the core subject of this consultation it is imprecise and confusing in the delimitation of powers both in technical matters and in policy direction, as well as in the general and specific provisions regarding public employment, so that this fact alone generates a risk of intrusion into different spheres of the Judicial Branch, which could transcend the immediate subject of public employment into the hard core of judicial independence. The mere fact that, by means of an administrative act or regulation, Mideplán could impose its own regulations regarding the employment of judges and prosecutors must call for an analysis of the impact of said Ministry assuming powers of the constitutional body Supreme Court of Justice with an evident risk of being an instrument hostile to the separation of Powers and a means in the hands of a potential Executive Branch that wishes to use it to affect our democratic system toward authoritarian alternatives. It must be understood that judicial independence refers not only strictly to the independence of judgment of the adjudicator, but also to a series of manifestations in the administrative, financing, operational, internal and external spheres that necessarily imply that any body belonging to another Branch of the Republic has powers limited to the reason for its existence and must not issue simple administrative acts that exceed the same and interfere in the exercise of constitutional powers by the Judicial Branch.

26.- Through a document received at 11:15 a.m. on July 5, 2021, Enrique Egloff Gerli and Rigoberto Vega Arias, President and Vice President, respectively, of the Costa Rican Chamber of Industries Association, file a joinder to the consultation of constitutionality being processed under case file No. 21-011713-000-CO. They request that the consultation be dismissed regarding the alleged procedural defects and the supposed unconstitutionalities of Articles 2 a), 3, 6 b), 10 a), 12, 14, 15, 16, 17, 18, 19, 43, 49 subsections g) and g) (sic), Transitory Provision XI and Transitory Provision XV, as such provisions are in accordance with the law. Regarding the objection to the other articles consulted, they agree that they must be declared unconstitutional. They request that it be declared that the consultation by the Full Court was filed untimely.

27.- Through a document received at 11:21 a.m. on July 7, 2021, Deputy Paola Valladares Rosado states that she withdraws her signature from the Optional Consultation of Constitutionality No. 21-12118-0007-CO.

28.- Through a document incorporated into the electronic case file at 2:40 p.m. on July 13, 2021, Jose Manuel Garita Herrera, in his capacity as president of the National Episcopal Conference of Costa Rica, files a passive joinder. He claims that his represented entity opposes the arguments made against subsection g) of Article 23 of the consulted bill. In this regard, he claims that moral conscience is a judgment of reason by which human beings recognize the moral quality of a specific act. In everything they say and do, human beings are obligated to faithfully follow what they know to be just and right. He states that freedom of thought, conscience, and religion are fundamental rights of every human being, and these freedoms include the freedom to change religion and/or beliefs, by virtue of which it is absurd to think that an employer when hiring an employee could intend that the latter not be able to change their beliefs on a certain subject. He cites Articles 1 and 18 of the Universal Declaration of Human Rights, 18 of the International Covenant on Civil and Political Rights, 12 and 13 of the American Convention on Human Rights, and rulings No. 01619-20 and 2017-11531 of this Court. He considers that there is improper coercion, by providing that only persons who accept marriage between persons of the same sex will be hired in the Judicial Branch as judges, as such a measure forces one to perform an act against one's own conscience under threat of dismissal. He affirms that the claims against Article 23 must be rejected, as they limit and restrict freedom of thought, conscience, and expression in a disproportionate manner, emptying said freedoms of content and, most seriously, violating the principle of legal reserve.

29.- At 10:39 a.m. on July 15, 2021, Mario Rojas Vílchez, Secretary General of the Rerum Novarum Workers Confederation, files a joinder to the optional consultation of constitutionality raised regarding legislative file No. 21.336. He considers it improper that the bill in question intends to limit collective bargaining, in opposition to the Political Constitution and the international conventions of the ILO. He also considers that the sanction of disqualification contained in Article 4 subsection a) is unconstitutional for violating the principles of reasonableness and proportionality, as it involves a generic application upon any dismissal regardless of its motives. Finally, he concludes that the salary equality proposed is unconstitutional, as it adds elements such as position, workday, and conditions, which cannot and should not be considered.

30.- In a document added at 1:50 p.m. on July 20, 2021, Fernando Cruz Castro appears in his capacity as President of the Supreme Court of Justice to expand on the considerations regarding the admissibility of the institutional optional consultation of constitutionality regarding bill 21.336 called “Ley General de Empleo Público” raised by his represented entity, based on the following reasons: 1) On the different nature of the consultation of constitutionality filed by the Legislative Assembly and the Supreme Court of Justice. He states that from the Law of Constitutional Jurisdiction it is noted that the consultation of constitutionality carried out by the Legislative Assembly has a different nature from the consultation carried out by the Supreme Court of Justice. He indicates that the former has a procedure specifically defined in the law, whereas it was determined that it could -in certain cases- be mandatory and, in others, be optional in nature; moreover, it involves a series of specific formalities for that Branch aimed at ensuring it originates in determined and specific circumstances, but not with the limitations inherent to the institutional consultation. He adds that, in accordance with the above, it must be noted that the legislator provided for a collaborative relationship between the Legislative Branch-Judicial Branch via the Constitutional Chamber, regarding the purity of the sub-constitutional norm in the preparation of the respective parliamentary act to guarantee the supremacy of the Political Constitution, evidence of which is the advisory nature of what is decided by the constitutionality control body. He argues that, on the contrary, in the case of the institutional consultation, the legislator's provision was aimed at safeguarding, not so much the coordination-cooperation relationship between Branches, but rather ex ante control of the separation of Powers, which is why the legislator adopted the provision of said mechanism so that the Judicial Branch could consult if it considered that an impact on its constitutional competence might occur; a distinction reflected even in the regulation of one or another consultation and which can be observed in the attached chart. He states that the foregoing has its reason in the very nature of the legislative consultation given that it is carried out upon the will of a group of members of the constitutional body responsible for approving the bill, to submit the consultation so that the Constitutional Chamber may review, as part of the formation process that the same body carries out of the bill where the doubts raised translate into a consultation. He argues that, in this sense, the impact does not have a specific limitation regarding its object given that ex ante constitutional protection is carried out regarding the legal system itself applicable and viewed as a whole, in the abstract of the existence or not of affected interests or rights and according to assessments not exclusively of competence impact, but of friction with Constitutional Law, both in procedural aspects or legislative process and on the merits. He argues that, on the contrary, in the case of the institutional consultation, a different object is sought; it has assessed or numerus clausus institutional or organic standing without the possibility of interpretations to extend it to other State bodies; it will always be optional in nature and its standing to consult lies in the character of constitutional or essential bodies of the State that have a series of powers and attributions expressly granted by the Constitution in an exclusive and exclusionary manner, besides having a statute of functional independence, and the matter consulted must relate solely to the constitutional powers expressly attributed to those bodies in an exclusive and exclusionary manner since, if the consultation exceeds that sphere, it will be inadmissible and the Constitutional Chamber should not even have to evacuate it, which allows such constitutional bodies to seek to ensure constitutional supremacy regarding their exclusive and exclusionary constitutional powers and attributions, thus preventing the emergence of any conflict of constitutional powers. 2) What was decided on admissibility under the sole precedent of a prior institutional consultation where the issue was assessed: he points out that in different media the opinion has been expressed that it is appropriate to apply what was decided by the Constitutional Chamber on the admissibility of legislative consultations previously filed; however, he considers that this argument is not correct because what is appropriate is the application of the sole precedent where the admissibility of an institutional consultation was assessed by the Constitutional Chamber, according to ruling number 2007-009469 at 10 a.m. on July 3, 2007, in which an institutional consultation raised by the Ombudsman's Office was admitted to be evacuated indicating that the people as sovereign must submit to the Political Constitution and given the existence of a referendum, the Chamber does not lose its competence to carry out the respective constitutionality control as provided in Article 10 of the Constitution, without this competence being able to be interpreted restrictively taking into consideration the principle of constitutional supremacy, for which reason the Chamber deemed it appropriate to process the consultations of constitutionality filed as, in the face of a legal gap, it must be interpreted in favor of the possibility of control to prevent the people from going to the polls without being clear on the aspects of constitutionality. He points out that it must be considered that what was decided regarding the admissibility of the legislative consultation does not apply to the constitutional chamber consultation raised by the Supreme Court of Justice since both originate from different natures and procedures. He argues that in the case of the Legislative Assembly there was a notification of the filing and processing of the consultation made by the deputies which, in the case of the Supreme Court of Justice, was not done and, consequently, it is not appropriate to interpret that the possibility can be restricted that this latter constitutional body has its possibility of filing the consultation limited to the receipt of a legislative file whose notification is only made to the Legislative Branch, so it can only have legal effects for said Branch and not for the rest of the Branches to which it was not notified and, therefore, are formally unaware of the respective request for the legislative file. 3) On the prevalence of Constitutional Law at the time of determining the admissibility of the consultation: he argues that it is not an obstacle to indicate that a fundamental reference for deciding on the consultation raised by the Supreme Court of Justice is the prevalence of Constitutional Law. He argues that, as indicated in the consultation of constitutionality, given the transcendence of what is consulted, the Chamber must apply the principles pro homine, informality of forms, pro actione, pro sentencia in protection of the highest values of the democratic and republican system, and determine on the merits whether the bill harms or not the constitutional, exclusive and exclusionary powers of the Supreme Court of Justice and the Judicial Branch. He argues that, in this sense, the supremacy of Constitutional Law implies the necessary knowledge on the merits of any doubt of constitutionality ex ante the final approval of a bill, when the legal system so permits, with the purpose sought by the legislator to ensure in advance the purity and quality of the sub-constitutional system, opening the possibility of collaborating in the preparation of the parliamentary act to guarantee its conformity with Constitutional Law. He points out that, given the preventive or precautionary nature of this form of constitutionality control, it is necessary for the adjudicator to employ a pro actione criterion in the sense that, if a novel although regulated institutional consultation of constitutionality is raised, the possibility is not sacrificed that a regulation that could be imperfect due to its deviation from Constitutional Law is incorporated into the legal system. He argues that, from the content of the consultation raised, it is evident that its purpose is to ensure the constitutional purity and quality of the Ley de Empleo Público as part of the sub-constitutional legal system, with a preventive purpose so that said normative body is inserted into the legal system without open violation of the constitutional powers of the Judicial Branch. He indicates that since a priori constitutionality control is a non-contentious constitutional process in which there is no controversy or contention of interests, denying the possibility of processing the request filed and proceeding to decide on the merits, only harms the democratic republican system insofar as it limits the review of the constitutional purity of the norm as there are no third parties who can claim rights or legitimate interests affected by the constitutional review carried out by the Constitutional Chamber. He points out that by proceeding to hear an institutional consultation of constitutionality on the merits like the one raised, it contributes to providing greater security to the legal relationships that may derive from the normative body subject to challenge and avoids subsequent conflicts of interests that could derive from unconstitutional norms, liability for the State and burden of subsequent contentious constitutional processes that would be submitted to the knowledge of the Constitutional Chamber, and also proceeds to hear the ex ante control wisely provided for by the legislator. He considers that the consultation raised transcends the mere constitutional competence interest insofar as this is a means to protect subjective legal situations in the future, avoid and repair harms to fundamental rights and, above all, protect the constitutional structure and logic provided for by the National Constituent Assembly in 1949. He concludes by requesting that it be decided accordingly.

31.- Through a document filed in the Secretariat of the Chamber at 6:34 p.m. on July 20, 2021, Deputy Laura Guido Pérez, and Deputies Víctor Morales Mora, Luis Ramón Carranza, Nielsen Pérez and Mario Castillo Méndez appear, to state that they refer to the different optional consultations of constitutionality filed in relation to the “Ley Marco de Empleo Público” bill being processed in legislative file No. 21.336, with the intention of clarifying and arguing in favor of the bill. 1) Inadmissibility of the Optional Consultation of Constitutionality filed by the Supreme Court of Justice, case file 21-012714-0007-CO and accumulated to case file 21-011713-0007-CO: they consider that the consultation raised by the Supreme Court of Justice under subsection 3 of Article 96 of the Law of Constitutional Jurisdiction is inadmissible because it was filed untimely according to the Constitutional Chamber's own jurisprudence: a) the Plenary of the Legislative Assembly finished hearing all the motions on the merits, reiteration, and review filed to the “Ley Marco de Empleo Público” bill, file 21.336 in ordinary session number 7 of May 24, 2021; b) the updated text of the bill was consulted to the Supreme Court of Justice through official letter AL-DSDI-OFI-2021 of May 25, 2021; c) the Supreme Court of Justice through official letter No. SP-62-2021 of June 3, 2021 answered the consultation formulated by the Legislative Assembly on the “Ley Marco de Empleo Público” bill indicating that, for its estimable knowledge and consequent purposes, the agreement reached by the Full Court in ordinary session No. 22-2021 of June 2, 2021 was transcribed; d) the “Ley Marco de Empleo Público” bill, file 21.336 was voted on and approved in first debate on June 17, 2021 as recorded in the minutes of the Plenary's ordinary session number 17; the Presidency set June 24, 2021 as the date for its Second Debate; e) the vote in first debate of the bill was widely publicized by the Legislative Assembly and the different written, radio, and television media throughout the national territory; f) the first document filed with the Constitutional Chamber for the purpose of consulting the constitutionality of the “Ley Marco de Empleo Público” bill was received on June 17, 2021 at 5:31 p.m.; g) in an interlocutory resolution at 1:15 p.m. on June 18, 2021, the Constitutional Chamber acknowledged receipt of the indicated optional consultation and requested the Legislative Assembly to send legislative file number 21.336; h) through official letter without number and dated June 24, 2021, the Directorate of the Legislative Assembly sent legislative file number 21.336 corresponding to the “Ley Marco de Empleo Público” bill, which was received by the Constitutional Chamber on June 25, 2021 at 11:34 a.m.; i) in an interlocutory resolution at 11:54 a.m. on June 25, 2021, the Constitutional Chamber acknowledged receipt of the certified copy of the requested legislative file and transferred the consultation to the office of Magistrate Fernando Cruz Castro to whom the study of the merits corresponds by turn; j) the optional consultation of constitutionality promoted by the Supreme Court of Justice was filed before the Constitutional Chamber at 11:45 a.m. on July 1, 2021 in accordance with what is indicated in the first result of the interlocutory resolution of the Constitutional Chamber, at 9:15 a.m. on July 2, 2021. They warn that the document of the Optional Consultation by the Supreme Court of Justice was filed after the legislative file had been sent by the Legislative Assembly despite the fact that the Full Court and its Presidency were duly informed of the processing, the procedural stage, and the updated text of the “Ley Marco de Empleo Público” bill file 21.336. They add that official letter SP-62-2021 of June 3, 2021 sent by the Supreme Court of Justice demonstrates a high degree of knowledge as well as that the magistrates were clear about their objections and the possible unconstitutionalities contained in the bill under discussion; that is, the Full Court had the opportunity and reasonable and prudential time to be able to diligently file an optional consultation of constitutionality and in that sense it highlights that from the time the Full Court became aware, in consultation, of the updated text of the bill until the receipt of the legislative file by the Constitutional Chamber itself, more than 3 weeks elapsed. They indicate that the jurisprudence of the Constitutional Chamber has established in the case of Article 96 of the Law of Constitutional Jurisdiction, that the different documents of consultation of constitutionality regarding a bill must be filed and can only be expanded upon before the legislative file is received by the Constitutional Chamber (see rulings 2016-015712, 2018-019511, 2019-009220 and 2020-009185). They affirm that, based on these precedents, the term for filing the different optional consultations of constitutionality constitutes a consolidated jurisprudential criterion of the Constitutional Chamber, which they consider is appropriate and coherent with the Law of Constitutional Jurisdiction for the following reasons: a) the possibility of filing an optional consultation of constitutionality can constitute an important tool for legislative debate but if it has no limits, it can be used to obstruct legislative debate and prevent the manifestation of the will of parliamentary majorities and, therefore, violate the democratic principle, so the one-month period, established in Article 101 of the Law of Constitutional Jurisdiction and the term for filing optional consultations of constitutionality, are important to prevent this instrument from being used for "Parliamentary Filibustering"; an abuse that can be committed by the deputies of the Legislative Assembly, as well as by the other bodies legitimized to file an optional consultation such as the Ombudsman's Office, the Supreme Court of Justice or the Comptroller General of the Republic. They argue that the absence of this limit could mean, for this case or for the future, that the filing of these documents over time could serve to indefinitely suspend the vote on a bill in second debate or its sanction. b) The term defined by the Constitutional Chamber is coherent with the procedural nature of the optional consultation of constitutionality in the sense that it is a very summary process, it is not binding on the merits and does not preclude the possibility that, subsequently, the questioned norms may be challenged through the means of constitutionality control, as established in Articles 96 and 101 of the Law of Constitutional Jurisdiction, therefore, the declaration of inadmissibility of an optional consultation for being untimely does not imply a denial of the right of justice for the deputies or the other bodies, nor is it an impediment to filing an action of unconstitutionality which is a process that does allow for a detailed and careful analysis. They indicate that this shows that the process places special emphasis on the mandatory nature of the one-month period regarding those who may resort and even regarding the arguments presented in the different documents. c) Article 101 of the Law of Constitutional Jurisdiction does not differentiate between optional or mandatory consultations nor does it differentiate between those who are legitimized to file a consultation of constitutionality, so the one-month period provided by the norm is the same for all cases; therefore, it would not be coherent with the law for the rules and terms for filing consultations of constitutionality to be processed differently depending on who files it. They indicate that in light of the foregoing, they are of the opinion that the optional consultation of constitutionality filed by the Supreme Court of Justice must be declared inadmissible as it was filed on July 1, 2021 when the legislative file of the “Ley Marco de Empleo Público” bill had already been delivered by the Legislative Assembly and received by the Constitutional Chamber. They point out that the Supreme Court of Justice had the opportunity and the prudential time of more than 3 weeks to decide and file its consultation of constitutionality on time, according to the parameters established by the Law and the jurisprudence of the Constitutional Chamber, so if it did not comply with the legal terms, it is due to the lack of foresight of the Full Court and its authorities. They warn that the Supreme Court of Justice cannot excuse itself by arguing that its deadlines or response times are flexible by virtue of its status as a collegiate body as this pretext would be fallacious, since any collegiate public law body can be convened by its presidency to extraordinary sessions in the event of having to resolve matters with peremptory deadlines or for any other reason of force majeure. They add that apart from the fact that they cannot claim ignorance of the law, the Court cannot seek from the Chamber privileged procedural treatment because the Law of Constitutional Jurisdiction contains not the slightest provision in this regard. They conclude by requesting that the arguments set forth above be considered and that the optional consultation of constitutionality filed by the Supreme Court of Justice be declared inadmissible.

32.- In the proceedings, the provisions of Article 100 of the Law of Constitutional Jurisdiction have been complied with and this resolution is issued within the term established by Article 101 ibidem.

Drafted by Magistrate Picado Brenes, except for those recitals where the express drafting by Magistrate Castillo Víquez is indicated; and,

Considering:

• A)PROCEDURAL MATTERS:

I.- Preliminarily.- (drafted by Magistrate Castillo Víquez) Those of us who subscribe to this advisory opinion place on record that in this case there are justified reasons for not raising any recusal, despite the fact that the consulted bill affects us. In the first place, we are before a law of a general nature that affects all public employees, except those who work in public companies that are in a competitive regime, in such a way that it affects us in our condition as magistrates -regular and substitute- as well as those who teach at public universities. Secondly, as the regulations contained in the bill affect both regular magistrates and substitute magistrates, the latter because substitution is paid as salary starting from one day, it is logical to assume beforehand that all of us are entitled to grounds for recusal, so that, in application of numeral 29 of the Organic Law of the Judicial Branch, the Court must be composed of the same regular and substitute magistrates who initially composed it. In other words, it makes no sense for all of us to recuse ourselves, a process that could take from three to five months, to arrive at the same starting point; especially since in this case Article 101 of the Law of Constitutional Jurisdiction establishes a period of one month to evacuate the optional consultation of constitutionality from the receipt of the legislative files or their accumulation, except for causes of interruption. It is also logical to assume that the majority of the regular and substitute magistrates have close relatives -children, siblings, siblings-in-law, etc.-, so they would also be entitled to grounds for recusal, which would again mean that the Court would be virtually entirely dismembered. On the other hand, in session No. 22-2021 of the Supreme Court of Justice, held on June 2, 2021, Sole Article, substitute magistrates José Paulino Hernández Gutiérrez, Mauricio Chacón Jiménez and Ronald Salazar Murillo participated in the discussion of the bill being consulted, just as in session No. 27-2021 of June 30, 2021 of the cited body, Article I, substitute magistrate and substitute magistrates Lucila Monge Pizarro, José Paulino Hernández Gutiérrez, Mauricio Chacón Jiménez, Alejandro Delgado Faith and Hubert Fernández Argüello participated in the session in which it was agreed to raise an optional consultation of constitutionality to the Constitutional Chamber, so they have already advanced an opinion and, consequently, could not and should not compose the Court that will resolve the accumulated consultations of constitutionality. Finally, and no less importantly, it must be kept in mind that in the case of substitute magistrates who are practicing attorneys, that fact does not detract from what has been stated, for the elementary reason that they are public officials and, when they exercise the magistracy, the consulted regulations also affect them, since they receive salary starting from one day of substitution. Therefore, it is appropriate that all regular magistrates hear this matter; the only recusal filed and accepted being that of regular magistrate Fernando Cruz Castro, on the grounds that, due to his condition as president of the Supreme Court of Justice, he has already issued an opinion on the consulted bill. Furthermore, note that this same magistrate has filed, on behalf of the entire Supreme Court of Justice, an optional consultation on his part. So he cannot act both as party and as judge, in this case.

In substitution of Justice Cruz Castro, the substitute, substitute Justice Ana María Picado Brenes, was appointed.

II.- On the admissibility of the optional constitutional consultations filed.- Pursuant to the provisions of the Constitutional Jurisdiction Act (Ley de la Jurisdicción Constitucional), this Constitutional Court may exercise prior advisory opinion on legislative bills. Among the different types of constitutional consultation, we find the optional consultation (consulta facultativa) provided for in subsection b) of Article 96 of the cited act, filed by deputies of the Legislative Assembly, with the requirements that will be stated. Also, the optional consultation provided for in subsection c) of Article 96 of the cited act, filed by the Supreme Court of Justice, on matters related to its constitutional competence. In this case, we are faced with three optional consultations filed by deputies and one consultation filed by the President of the Supreme Court of Justice. The four consultations were consolidated into this case file (expediente) by resolutions number 2021-15105, 2021-15137, and 2021-15240, of July 02, 2021. We proceed to the admissibility review of each of these scenarios separately.

• 1)On the admissibility of the optional consultations filed by the deputies (art. 96.b of the Constitutional Jurisdiction Act).- By means of three separate filings, three legislative optional consultations filed by deputies of the Legislative Assembly were presented to the Constitutional Chamber. The admissibility of each of these consultations is examined individually.
• a)Optional consultation case file no. 21-011713-0007-CO:

On June 17, 2021, a filing signed by 15 deputies (14 signatures being deemed valid) presented the first optional constitutional consultation, which was assigned case file number 21-011713-0007-CO. This consultation, filed based on art. 96.b) of the Constitutional Jurisdiction Act, must meet two requirements for its admissibility: it must be filed by no fewer than ten deputies and must be made after the consulted bill has been approved in the first debate (or before, if the Legislative Assembly has a constitutional or regulatory deadline to vote on it). Given that the first debate took place in ordinary session no. 17 of June 17, 2021, and this consultation was filed in the afternoon of that day; and given that there were 14 deputies who ultimately signed the consultation, it fully complies with the aforementioned requirements. It should be noted that the initial filing was signed by 15 deputies. Subsequently, before the date of receipt of the legislative case file (June 25, a date this Chamber has taken as the limit for this type of filings, per vote no. 2018-019511 and 2014-012887), on June 17 and 18, two deputies requested that their signatures be deemed withdrawn (Deputy Mario Castillo Méndez and Deputy Zoila Rosa Volio Pacheco), a withdrawal that is deemed valid. Later, a new deputy (Deputy Dragos Dolanescu Valenciano) requested on June 21 (also before the date of receipt of the legislative case file) that his signature be added to the consultation, an addition that is deemed valid. At that moment, there were a total of 14 valid signatures. It must be taken into account that the signature of Deputy Aracelly Salas Eduarte appears in this consultation and in the second one; since it cannot be deemed admitted in both —according to the case law of this Chamber— it is admitted as valid only in this first consultation. The partial rejections of signatures, made on June 30, submitted by three deputies (Sylvia Patricia Villegas, Walter Muñoz, and Shirley Díaz Mejías) are not admitted, because, regardless of when they are made, partial withdrawals of a signature are inadmissible for this Chamber. When a consultation is signed, it is signed in its entirety; therefore, a partial signature or a partial withdrawal is not admitted, neither before nor after receipt of the legislative case file.

Therefore, this consultation is deemed admitted with the signature of 14 deputies, a number that meets the aforementioned requirement of being filed by a minimum of 10 deputies.

• b)Optional consultation case file no. 21-011915-0007-CO:

The second optional consultation filed by deputies was received in this Chamber at 08:11 hours on June 22, 2021. The filing document bears the signature of 10 deputies (10 signatures being deemed valid). It was processed under case file no. 21-011915-0007-CO and consolidated into this case file by resolution number 2021-015105 of 9:15 hours on July 2, 2021. Now, the following facts are observed: the consultation was initially filed by 10 deputies. Given that one of the deputies (Aracelly Salas Eduarte) also signed the first consultation no. 21-011713-0007-CO, this Chamber deems the first signature as valid and, therefore, deems it as not having been filed in this second consultation, leaving nine valid signatures. However, subsequently, a deputy (Melvin Núñez Piña) joined this consultation in a filing submitted on June 23, prior to the receipt of the legislative case file. Thus, this consultation is deemed filed with the signature of 10 deputies, a number that meets the aforementioned requirement of being filed by a minimum of 10 deputies.

• c)Optional consultation case file no. 21-012118-0007-CO:

The third optional consultation filed by deputies was received in this Chamber at 18:47 hours on June 23, 2021, with the signature of 10 deputies. It was processed under case file no. 21-012118-0007-CO and consolidated into this case file by resolution number 2021-015137 of 9:15 hours on July 2, 2021. Therefore, the minimum number of 10 deputies is met. This number is not changed by the fact that one deputy (Zoila Rosa Volio) signed the first consultation, since her signature in that first consultation was deemed withdrawn (by filing of June 18, before receipt of the legislative case file) and, therefore, nothing prevented her from being admitted in this one. Furthermore, the withdrawal of the signature of another deputy (Paola Valladares), by virtue of being filed on July 7, after the filing of the legislative case file, means that her withdrawal cannot be admitted, and that, therefore, this consultation retains the signature of 10 deputies.

Thus, unanimously, the first two consultations are deemed admissible, and by majority, the third consultation is deemed admissible. This is because the three consultations filed meet the two aforementioned requirements. All were filed by at least 10 deputies, and all were filed after the bill was approved in the first debate. Furthermore, regarding the ordering requirement set by this Chamber in these cases, all were filed before the legislative case file was presented to this Chamber, that is, before June 25, 2021. In conclusion, the three previous consultations are deemed admitted.

Dissenting reasons of Justice Rueda Leal regarding the admissibility of the consultation in case file no. 21-011713-0007-CO.

I note that in judgment no. 2014-012887 of 14:30 hours on August 8, 2014, together with Justices Cruz Castro and Salazar Alvarado, I held the following:

“XV.- Note of Justices Cruz Castro, Rueda Leal, and Salazar Alvarado, on the withdrawal of signatures (Drafted by Justice Rueda Leal).- A situation that occurred during the processing of this case file has drawn the attention of the undersigned Justices. As a result, we have considered it necessary to include this note, because although it is not a questioned point or one of great impact in this legislative consultation process, it has manifested itself patently and requires, in our opinion, to be addressed. It is necessary to observe what happened in this case file to fully understand the observation of the signatories.

The first constitutional consultation was filed on April 22, 2014 by Carmen Granados Fernández, Xinia Espinoza Espinoza, Carmen Muñoz Quesada, Yolanda Acuña Castro, Claudio Monge Pereira, José María Villalta Flórez-Estrada, Juan Carlos Mendoza García, Justo Orozco Álvarez, Luis Fishman Zonzinski, Carlos Góngora Fuentes, Rodolfo Sotomayor Aguilar, and José Joaquín Porras Contreras (12 deputies).

On April 28, 2014, Rodolfo Sotomayor Aguilar withdrew his signature; the same was done, on April 29, 2014 and by means of respective briefs, by Carlos Góngora Fuentes and José Joaquín Porras Contreras. On that same day, by separate filings, María Eugenia Venegas Renauld and Damaris Quintana Porras added their signatures to the consultation.

Regarding the second consultation, it was filed on April 29, 2014 by Adonay Enríquez Guevara, Damaris Quintana Porras, Danilo Cubero Corrales, Ernesto Chavarría Ruiz, Fabio Molina Rojas, Luis Fishman Zonzinski, Manuel Hernández Rivera, María Ocampo Baltodano, Mireya Zamora Alvarado, and Víctor Hugo Víquez Chaverri (10 deputies). That same day, Fabio Molina Rojas, María Ocampo Baltodano, and Víctor Hugo Víquez Chaverri withdrew their signatures and, a few hours later, added their signatures again. Subsequently, on June 2, 2014, already being former deputies, María Ocampo Baltodano and Víctor Hugo Víquez Chaverri withdrew their signatures from the consultation.

The Chamber has referred to the procedural good faith (buena fe procesal) that must prevail in optional consultation procedures:

“… In that regard, this jurisdiction is of the view that, on the first occasion on which the Deputies formulate an optional legislative consultation, they must indicate each and every one of the constitutional vices —both of form and of substance— that they believe are present in the bill. This is because, otherwise, the optional legislative consultation would be used as a tool to unduly prolong the legislative procedure, distorting its purposes. The need to consult on possible constitutional defects on a single occasion also stems from the procedural loyalty and good faith that must prevail in the use of any mechanism offered by the legal system to submit a given conduct to jurisdictional oversight. There are also reasons of legislative procedural economy that impose this new stance, since deputies could well file as many optional legislative consultations regarding a bill that has not undergone essential or substantial modifications as they deem necessary, giving rise to an endless chain of consultations. It must be taken into consideration, as prescribed by article 101, paragraph 2, of the Constitutional Jurisdiction Act, that the opinion rendered by the Constitutional Chamber in the consultation, ‘In any case, does not preclude the possibility that the challenged norm or norms may subsequently be challenged through the means of constitutional review.’ Consequently, from now on, this Chamber will only hear a new legislative consultation when, after the bill has been returned to the legislative stream —after, of course, the first of such consultations has been known by this jurisdictional body—, modifications or amendments of a substantial nature have been introduced to it.” (Judgment number 2011-14965 of 9:34 hours on November 2, 2011) Allowing free withdrawal (desistimiento) in constitutional consultations gives rise to situations where, contrary to procedural good faith, the signatures of the deputies are withdrawn or added according to the parliamentary strategy of each legislator or political party, and not, as it should be, with the sincere interest of ensuring the constitutionality of the bill. Our opinion is that this type of vice leads to a perversion of the mechanism of the optional constitutional consultation, to the extent that it subjects it to the swings and vicissitudes of politics. In other words, the use of the optional parliamentary consultation for the purposes of legislative tactics contributes to the judicialization of politics, when judicial independence and the separation of powers require that the Judicial Branch and, as part of it, the Constitutional Chamber protect themselves as much as possible from this phenomenon.

Furthermore, the undersigned emphasize that in matters of unconstitutionality actions, it has been established that “there is no norm authorizing the withdrawal of an unconstitutionality action” (judgments numbers 2013-008946 of 14:30 hours on July 3, 2013, 2013-004620 of 14:30 hours thirty on April 10, 2013, and 2013-005095 of 14:30 hours on April 17, 2013). By virtue of the foregoing and placing special emphasis on the need to protect the Constitutional Chamber from political incidents, we consider that legislative consultations that have been filed meeting the requirement of Article 96, subsection b) of the Constitutional Jurisdiction Act, must be processed as appropriate, disregarding any signature withdrawal proceedings filed subsequently.” (Highlighting does not appear in the original).

In the sub examine, I determine that this consultation was originally filed by 15 deputies, including Deputy Mario Castillo Méndez and Deputy Zoila Rosa Volio Pacheco. Subsequently, on June 17 and 18, they requested the withdrawal of their signatures in this consultation. Applying the transcribed case law, I consider the withdrawal of such signatures to be improper, and therefore I consider that they should be added to the total number of signatures.

Separate note of Justice Garro Vargas regarding the admissibility of the consultation processed in case file no. 21-011713-0007-CO I have considered it necessary to record this separate note to outline my position regarding the statements of the legislators who proposed a "partial withdrawal" of the legislative consultation relative to case file no. 21-011713-0007-CO.

As it was proven that this expression of will was made after the complete certified copy of the legislative case file was received —a moment after which the Chamber rejects the possibility of withdrawing signatures—, I consider it unnecessary for this Court to rule on whether it is procedurally proper in itself. However, I agree with the majority of the Chamber to the effect that partial withdrawals (that is, regarding the content) of legislative consultations directed to the Constitutional Chamber are not admissible.

Dissenting reasons of Justice Hernández López on the admissibility of the second consultation case file no. 21-11915-007-CO Since judgment 2014-012887, I have consistently indicated that the repeated signature of deputies on different consultations filed in time (that is, before the receipt of the case file) are admissible insofar as they contain new issues not originally raised in the previous consultation. From my point of view, the participation of the same deputy or congresswoman in different consultations is not limited by law and, therefore, the Chamber could not obstruct the exercise of that power granted to the members of the Legislative Branch through an interpretation. I believe the Chamber should not distinguish where the law does not distinguish, and even less so with a restrictive interpretation that limits the exercise of this power.

Dissenting reasons of Justice Garro Vargas regarding the admissibility of the consultation processed in case file no. 21-011915-0007-CO In the specific case, and upon better consideration, I separate from the majority line of the Chamber because I believe that it is permissible for a legislator to sign a new optional constitutional consultation, despite having signed another one regarding the same bill. The foregoing under the understanding that the signature on the previous consultation is to be deemed as not given. In other words, a declaration of will by which a subsequent legislative consultation is signed implies that the previous signature is deemed withdrawn. All of which could only be done if it occurs prior to the receipt of the complete certified copy of the legislative case file, a moment after which the withdrawal or addition of signatures is improper.

This interpretation seeks to comply with the requirements demanded by the Chamber, in the sense that it is not valid for a deputy or congresswoman to simultaneously sign more than one legislative consultation, and, additionally, it seeks to protect their most recent declaration of will.

To support what has been stated, I consider that the following must be taken into account: Legislators are allowed the possibility of withdrawing their signature or joining an already formulated consultation, provided it is prior to the receipt of the complete certified copy of the legislative case file. On the other hand, as the Chamber is resolving, a partial withdrawal of an already filed consultation is not admissible. Therefore, it is logical that they be recognized as having the possibility of signing another subsequent consultation that might be more aligned with their convictions and interests. In such a case, it is understood that they implicitly withdraw their signature from the previously formulated consultation.

What is not admissible —and on this I agree with the majority of the Chamber— is simultaneity. That is, signing a subsequent consultation while maintaining and counting the signature from the consultation previously made.

With this interpretation I propose, the ratio of the legislator is respected, which imposed a requirement of a minimum of ten signatures to admit an optional constitutional consultation; but, in parallel, the intention or sovereignty of the legislator is respected by considering their most recent formal declaration of will as valid. In this regard, I deem it pertinent to bring up what was stated by this Court on previous occasions:

“The Court, recognizing the right of the deputies to resort to consultation, has exercised its competence profusely, responding to the optional legislative consultations made to it, but the exercise of the right must be done within the terms set by the law governing the Jurisdiction, in an orderly and reasoned manner; allowing access indiscriminately can lead to a distortion of the process and turn it into an abuse of that right, since it must logically be understood, then, that as many consultations as combinations of ten deputies are possible could be formulated” (see advisory opinion no. 2000-03220, a criterion that was later reiterated in the following: 2014-12887, 2016-9874, and 2018-019511).

Consequently, for legislators, it is only legitimate to sign a single optional constitutional consultation, and not several, and, should this situation arise, only their last signature is deemed effective, being the most recent declaration of will. It would be understood that they are tacitly withdrawing from the first legislative consultation. These movements, I insist, are valid only if they are completed prior to the receipt, by this Constitutional Chamber, of the complete certified copy of the legislative case file.

Separate note of Justice Picado Brenes regarding the admissibility of the consultation formulated under case file no. 21-011915-0007-CO (point 2 of the Por Tanto) Regarding the second optional consultation filed by deputies, received in this Chamber at 08:11 hours on June 22, 2021, it is observed that Deputy Melvin Núñez Piña joined this consultation by a filing submitted on June 23. That is, his adhesion occurred prior to the arrival of the legislative case file at the Chamber. In this regard, I consider that such adhesion by Deputy Melvin Núñez is admissible, precisely because it was filed before the arrival of the legislative case file. If the adhesion had been filed after June 25 —the date on which the Legislative case file entered the Chamber— said adhesion could not be admitted.

Dissenting vote (voto salvado) of Justice Castillo Víquez regarding case file no. 21-012118-0007-CO In accordance with my voting line (see, among others, advisory opinion no. 2014-012887), I declare the third constitutional consultation impossible to hear (inevacuable), since one deputy withdrew her signature from the consultation on July 7 of the current year and, consequently, the consultation is left with only nine signatures. Ergo, I subscribe to the thesis that a deputy may withdraw his or her signature at any time, and, in this case, the constitutional consultation does not meet the requirement of ten signatures; it is a case of supervening inadmissibility. The foregoing does not mean that I do not participate in the discussion and voting on the conscientious objection, since this point is consulted in the first optional constitutional consultation that was indeed admitted.

Dissenting vote of Justice Rueda Leal with respect to the consultation formulated in case file no. 21-012118-0007-CO.

As I indicated in my dissenting reasons that analyzed the admissibility of case file no. 21-011713-0007-CO, I consider the withdrawal of deputies' signatures in matters of legislative consultations to be improper. For this reason, I reiterate that I reject the withdrawal of the signature of Deputy Zoila Rosa Volio Pacheco from consultation no. 21-011713-0007-CO. Given that her signature must be added to that consultation, it therefore cannot be validated for case file no. 21-012118-0007-CO, which means the latter is left with only nine signatures (including that of Deputy Paola Valladares, whose withdrawal I reject analogously). That said, such a quantity is insufficient to meet the admissibility requirement established by numeral 96, subsection b) of the Constitutional Jurisdiction Act, which requires the signature of 10 deputies. To that extent, I declare this consultation impossible to hear.

Note of Justice Salazar Alvarado regarding the admissibility of the Legislative Consultation.

In Judgment No. 2014-012887 of 14:30 hours on August 8, 2014, I signed, together with Justices Cruz Castro and Rueda Leal, the following note regarding the withdrawal of signatures in a legislative consultation process:

“XV.- Note of Justices Cruz Castro, Rueda Leal, and Salazar Alvarado, on the withdrawal of signatures (Drafted by Justice Rueda Leal).- “A situation that occurred during the processing of this case file has drawn the attention of the undersigned Justices. As a result, we have considered it necessary to include this note, because although it is not a questioned point or one of great impact in this legislative consultation process, it has manifested itself patently and requires, in our opinion, to be addressed. It is necessary to observe what happened in this case file to fully understand the observation of the signatories.

“The first constitutional consultation was filed on April 22, 2014 by Carmen Granados Fernández, Xinia Espinoza Espinoza, Carmen Muñoz Quesada, Yolanda Acuña Castro, Claudio Monge Pereira, José María Villalta Flórez-Estrada, Juan Carlos Mendoza García, Justo Orozco Álvarez, Luis Fishman Zonzinski, Carlos Góngora Fuentes, Rodolfo Sotomayor Aguilar, and José Joaquín Porras Contreras (12 deputies).

“On April 28, 2014, Rodolfo Sotomayor Aguilar withdrew his signature; the same was done, on April 29, 2014 and by means of respective briefs, by Carlos Góngora Fuentes and José Joaquín Porras Contreras. On that same day, by separate filings, María Eugenia Venegas Renauld and Damaris Quintana Porras added their signatures to the consultation.

“Regarding the second consultation, it was filed on April 29, 2014 by Adonay Enríquez Guevara, Damaris Quintana Porras, Danilo Cubero Corrales, Ernesto Chavarría Ruiz, Fabio Molina Rojas, Luis Fishman Zonzinski, Manuel Hernández Rivera, María Ocampo Baltodano, Mireya Zamora Alvarado, and Víctor Hugo Víquez Chaverri (10 deputies). That same day, Fabio Molina Rojas, María Ocampo Baltodano, and Víctor Hugo Víquez Chaverri withdrew their signatures and, a few hours later, added their signatures again. Subsequently, on June 2, 2014, already being former deputies, María Ocampo Baltodano and Víctor Hugo Víquez Chaverri withdrew their signatures from the consultation.

“The Chamber has referred to the procedural good faith that must prevail in optional consultation procedures:

“… In that regard, this jurisdiction is of the view that, on the first occasion on which the Deputies formulate an optional legislative consultation, they must indicate each and every one of the constitutional vices —both of form and of substance— that they believe are present in the bill. This is because, otherwise, the optional legislative consultation would be used as a tool to unduly prolong the legislative procedure, distorting its purposes. The need to consult on possible constitutional defects on a single occasion also stems from the procedural loyalty and good faith that must prevail in the use of any mechanism offered by the legal system to submit a given conduct to jurisdictional oversight. There are also reasons of legislative procedural economy that impose this new stance, since deputies could well file as many optional legislative consultations regarding a bill that has not undergone essential or substantial modifications as they deem necessary, giving rise to an endless chain of consultations. It must be taken into consideration, as prescribed by article 101, paragraph 2, of the Constitutional Jurisdiction Act, that the opinion rendered by the Constitutional Chamber in the consultation, ‘In any case, does not preclude the possibility that the challenged norm or norms may subsequently be challenged through the means of constitutional review.’ Consequently, from now on, this Chamber will only hear a new legislative consultation when, after the bill has been returned to the legislative stream —after, of course, the first of such consultations has been known by this jurisdictional body—, modifications or amendments of a substantial nature have been introduced to it.” (Judgment number 2011-14965 of 9:34 hours on November 2, 2011).

“Allowing free withdrawal in constitutional consultations gives rise to situations where, contrary to procedural good faith, the signatures of the deputies are withdrawn or added according to the parliamentary strategy of each legislator or political party, and not, as it should be, with the sincere interest of ensuring the constitutionality of the bill. Our opinion is that this type of vice leads to a perversion of the mechanism of the optional constitutional consultation, to the extent that it subjects it to the swings and vicissitudes of politics. In other words, the use of the optional parliamentary consultation for the purposes of legislative tactics contributes to the judicialization of politics, when judicial independence and the separation of powers require that the Judicial Branch and, as part of it, the Constitutional Chamber protect themselves as much as possible from this phenomenon.

“Furthermore, the undersigned emphasize that in matters of unconstitutionality actions, it has been established that ‘there is no norm authorizing the withdrawal of an unconstitutionality action’ (judgments numbers 2013-008946 of 14:30 hours on July 3, 2013, 2013-004620 14:30 hours thirty on April 10, 2013, and 2013-005095 of 14:30 hours on April 17, 2013). By virtue of the foregoing and placing special emphasis on the need to protect the Constitutional Chamber from political incidents, we consider that legislative consultations that have been filed meeting the requirement of Article 96, subsection b) of the Constitutional Jurisdiction Act, must be processed as appropriate, disregarding any signature withdrawal proceedings filed subsequently.” Subsequently, in Judgment No. 2016-004651 of 12:40 hours on April 6, 2016, I recorded another note in which I clarified the scope of my position on the matter, in the following terms:

“Although, in Judgment No. 2014-12887, of 14:30 hours, on August 8, 2014, I signed a joint note with Justices Cruz Castro and Rueda Leal, regarding the withdrawal of signatures in a legislative constitutional consultation, in the case under study, in which the appellant withdraws (desiste) from the present unconstitutionality action, I agree with the majority vote, which deems the action withdrawn, because it had not yet been admitted for study when the plaintiff filed the withdrawal, by virtue of an acquittal judgment having been issued in his favor, hence the —essential— difference from the note signed in that consultation.

Therefore, it goes without saying that, in the undersigned’s opinion, it is procedurally viable to withdraw an unconstitutionality action as long as it has not yet been admitted for study, as occurred in this case.” From the foregoing cited notes, it follows that, both in the avenue of optional legislative consultation of constitutionality and in the avenue of unconstitutionality action, the withdrawal of signatures or the desistance—as the case may be—is valid, in the undersigned’s view, provided it occurs before the Chamber receives the certified copy of the legislative file (in optional legislative consultation) or before it has been admitted for study (in unconstitutionality action).

Along these same lines, it is indeed possible, in a legislative consultation of constitutionality, to validly withdraw a signature before the Chamber receives the certified copy of the legislative file—the moment from which the one-month deadline to resolve begins—just as it must also be understood that a deputy who, before this Court receives the aforementioned copy of the legislative file, requests to be considered a signatory of the consultation must be validly considered a consultant.

In legislative consultation No. 21-11713-0007-CO, the record shows that it was initially presented by a total of fifteen deputies, of whom Deputy Mario Castillo Méndez withdrew his signature on June 17, and Deputy Zoila Rosa Volio Pacheco retracted hers on June 18; in turn, Deputy Dragos Dolanescu Valenciano requested to be considered a signatory of the consultation on June 21 last. All of the foregoing—withdrawal and presentation of signatures—occurred before the entry of legislative file No. 21.336. In this regard, there is no impediment for both the deputy and the deputy to withdraw their signatures from the optional consultation they formulated at the appropriate procedural moment, as explained above. Nor do I find any impediment to considering Deputy Dolanescu Valenciano a signatory of the consultation. These proceedings were initiated before the receipt of the legislative file on June 25 last. Subsequently, as explained below, Deputy Aracelly Salas Eduarte signed a second legislative consultation (No. 21-11915-0007-CO), which only affects her participation in this legislative consultation. That said, the consultation at hand is validly endorsed by fourteen deputies. Finally, I concur that the request to partially withdraw from a specific point of the consultation (conscientious objection) must be rejected if that request is made after the file’s entry, as occurred with the statements of Deputy Sylvia Patricia Villegas Álvarez and Deputy Walter Muñoz Céspedes, in proceedings of June 30 last.

Regarding legislative consultation No. 21-11915-0007-CO, it was presented by ten deputies. Although Deputy Aracelly Salas Eduarte had also signed legislative consultation No. 21-11713-0007-CO, it is important to maintain the obligation of the consultant to identify each and every constitutional defect—both procedural and substantive—that they believe are present in the bill. The intent is to prevent the optional legislative consultation from being used to prolong the legislative procedure, subverting its purpose. In this sense, the reasons given in the previously transcribed notes must be reiterated. Consequently, for the undersigned, Deputy Salas Eduarte’s signature would be admissible for the first consultation, but not for the second. Accordingly, I consider it is admitted with the ten signatures, together with the one presented by Deputy Melvin Núñez Piña, when he presented it on June 23; that is, before June 25 when the legislative file entered the Chamber.

Finally, regarding legislative consultation No. 21-12118-0007-CO, I concur with the majority of the Chamber that it is not possible to admit the withdrawal of Deputy Paola Valladares Rosado’s signature, given that the request was made on July 7 last, when the legislative file had clearly been submitted to the Constitutional Chamber on June 25 last. That is, the request to withdraw her signature does not proceed based on the reiterated criterion set forth above. As for the problem of Deputy Zoila Rosa Volio Pacheco’s signature reiteration (between the first and this last legislative consultation), I consider it admissible, because it suffices to specify that the request to have her excluded from the first consultation was presented on June 18, and that the decision to support the last legislative consultation was subsequent to that date. It is valid because it occurred before the entry of the legislative file. Note that this last legislative consultation entered on June 23, subsequent to the withdrawal request (June 18), and before the date the legislative file entered on the 25th.

For all the foregoing reasons, it is proper to consider them as consultants, except in the case of Deputy Castillo Méndez, in accordance with the reasoning expressed.

• 2)On the admissibility of the optional consultation presented by the President of the Supreme Court of Justice (art. 96.c of the Constitutional Jurisdiction Law).- (drafted by Magistrate Castillo Víquez) By majority, the special optional consultation of constitutionality presented by the Supreme Court of Justice is declared non-evacuable for the reasons explained below. First, it must be kept in mind that the Constitutional Chamber has a one-month deadline set by law to resolve the admitted consultation. In that sense, and in order that the processing of the advisory opinion does not become an obstacle for Parliament to exercise its legislative power, this Court must establish a start moment for the deadline in order to be certain of the last day to evacuate it. This is why the Constitutional Chamber has established the receipt of the legislative file or the joinder as the start moment for the deadline; as of those moments, it is not possible to admit new consultations, whether from deputies or from other bodies external to Parliament. Secondly, it is clear that the Supreme Court of Justice is aware of this position of the Court—it has been reiterated jurisprudence—; therefore, and especially given that the bill in its original and final versions was subjected to constitutional consultation to this branch of government in accordance with numeral 167 of the Constitution, it is clear that the Supreme Court of Justice had sufficient time to make the consultation before receipt of the legislative file or the joinder of the consultations. Finally, if the start of the deadline defined by the Chamber were extended due to new special optional consultations of constitutionality by external bodies, the deadline could be extended by up to five months, all of which would entail not only a violation of numeral 101 of the Constitutional Jurisdiction Law, but would also constitute undue interference in the iter of the bill within the parliamentary procedure, compounded by the fact that political timings and moments in the Legislative Assembly are changing and volatile, and could, in many cases, frustrate the agreements reached in the Legislative Assembly. Hence, for the reasons indicated above, the consultation presented by the Supreme Court of Justice is non-evacuable due to being untimely.

Dissent of Magistrates Garro Vargas and Picado Brenes, who admit the consultation (drafted by the latter) This consultation presented by the Supreme Court of Justice is made based on art. 96.c) of the Constitutional Jurisdiction Law. According to that norm, it must meet the following requirements for its admissibility: it must be a consultation regarding a legislative bill (subject matter), it must be presented by the body authorized to do so (subject), it must be presented after the bill is approved in first debate (timing), it must be formulated in a reasoned brief expressing the questioned aspects (form), and the matter consulted must refer to aspects related to its constitutional competence. In this case, the consultation formulated by the Supreme Court of Justice fully complies with all the preceding requirements: the consultation is presented on the bill called “PUBLIC EMPLOYMENT FRAMEWORK LAW,” processed in legislative file No. 21.336; it is presented by the President of the Supreme Court of Justice pursuant to article I of the Plenary Court Session Agreement number 27-2021 of June 30, 2021. Furthermore, it is presented after the bill was approved in first debate (held on June 17, 2021) and in a reasoned brief. Likewise, the matter consulted refers to aspects of the bill related to the constitutional competences of the Supreme Court of Justice. It is relevant to delve into the importance of this type of consultation for Constitutional Law. Through prior constitutionality control, the legislator has permitted several bodies—relevant to our democratic system—to be able to pose the consultation and thereby prevent bills that are constitutionally defective in substance or form from becoming part of the positive legal order. Thus, besides the deputies, the legislator enabled the following bodies to present consultations in which the Chamber exercises prior control: the Supreme Court of Justice, the Supreme Electoral Tribunal, the Comptroller General of the Republic, and the Office of the Ombudsperson. In the specific case of the Supreme Court of Justice, it is understood that the consultation may be made regarding bills or motions incorporated into them, in whose processing, content, or effects it is deemed that the principles or norms relating to its respective constitutional competence have been unduly ignored, interpreted, or applied. Note that this involves granting one of the Branches of the Republic the possibility of preventing a bill from being approved contrary to what they consider to be their constitutional competences. As Alexander Hamilton (one of the founding fathers of the United States) stated back then in his Federalist Paper No. 78, and as doctrine supports today, the Judicial Branch is the weakest of the three Branches because “it has no influence over either the sword or the purse… It may truly be said to have neither FORCE nor WILL, but merely judgment.” Thus, this is one of the few powers that the legislator has granted the Judicial Branch to enforce its constitutional competences, prior to the norm being approved as law of the Republic. Now, there is one aspect that is relevant to emphasize. A situation had been arising in practice: several groups of deputies presented multiple legislative consultations on a single bill, staggered over time, causing the one-month deadline the Constitutional Chamber has to resolve to run almost ad infinitum. Thus, given the legal vacuum regulating the maximum timeframe deputies had to present consultations and the moment from which the one-month deadline to resolve the consultation began to run, this Chamber determined, through constitutional jurisprudence, to regulate that situation and established that, after the date on which the certified copy of the legislative file is deemed received, the deadline to evacuate the consultation begins to run, and therefore, as of that point, it was not possible to consider new optional consultations admitted. However, note that such a limitation proved applicable only to consultations presented by deputies (art. 96.b), because almost all the consultations presented during more than 30 years of history of this Constitutional Chamber were made by deputies. Additionally, note that the moment from which the one-month deadline this Chamber has to resolve the consultation began to run has been held to be as of the receipt of the legislative file, but also as of the joinder (see ruling No. 2017-009690) or the receipt of the request for evidence to better resolve (see ruling No. 2014-003969). Therefore, the moment when the Chamber deems the legislative file received cannot be considered the sole criterion to start counting the one-month deadline, nor can it be applied as a limitation or expiration period for the admissibility of other types of consultations made based on other subparagraphs of art. 96 of the Constitutional Jurisdiction Law. First, establishing the date on which the legislative file is deemed received as a limitation for receiving new legislative consultations was determined thus by jurisprudence and due to the practical situation indicated regarding deputies; therefore, it does not prove applicable to other scenarios unrelated to legislative consultations posed by deputies. Note that the start date of the one-month deadline to resolve is one thing, and the expiration of the power to present new consultations is another. The start date of the one-month deadline may be from the moment the legislative file is received, but also, in other cases, from the date of the Chamber’s resolution on joinder or from the date of receipt of evidence to better resolve that has been ordered. Certainly, through jurisprudence, this Chamber has indicated the moment from which the one-month deadline it has to resolve the consultation runs, but it has done so, as stated, due to the particular situation that had been arising with consultations presented by deputies. Thus, for example, it proceeded when it stated the following in ruling No. 2007-009469:

“… this Chamber must note that the proceeding attached at folio 841 of the file is not admissible, through which the consulting deputies seek to expand the consultation arguments to other aspects not consulted in their initial brief. The foregoing, not only because of the nonexistence of a legal norm authorizing them to make such expansion, but also because the one-month deadline this Court has to rule would become impossible to meet if new arguments or aspects to be evacuated were permitted at any time. Note that the consultants do not appeal on account of supervening aspects occurring after the presentation of the initial document, but rather they seek for the Chamber to assess new arguments they did not initially present, which is improper for the reasons indicated.” Secondly, the maximum deadline within which another Branch of the Republic, such as the Judicial Branch, may make use of this legal power to present an optional consultation of constitutionality on its own cannot be made to depend on an act of the President of the Legislative Assembly (the date on which he sends a copy of the legislative file to the Constitutional Chamber). Note that very easily, if such an argument were admitted, one Branch of the Republic (Legislative Assembly) would be preventing another (Judicial Branch) from raising this prior constitutionality control, and the legal power granted to the Judicial Branch would be rendered nugatory in practice. This is in the eventual case where, having posed the legislative consultation on a specific date, in that same act the Legislative Assembly submits a certified copy of the legislative file. Furthermore, this minority does not overlook what could actually occur regarding the time needed to draft a consultation, for, from the time the bill is voted on in first debate until the Drafting Committee has it ready for the public, several days may pass, making immediate access to the text as approved difficult, thereby delaying the consultation that any other enabled body might wish to pose, since to do so, one must have the text as approved in view. Additionally, note that the resolution issued by the Presidency of the Constitutional Chamber, when it deems a consultation received, is notified only to the Legislative Assembly, not to the other bodies enabled by the Constitutional Jurisdiction Law to pose consultations on their own. Thus, there is no formal communication to these other bodies regarding the receipt of the presented consultation. Thirdly, given that this is a consultation whose authorized subject is a body of complex composition, such as the Supreme Court of Justice, it is understood that the decision to bring a consultation to the Constitutional Chamber requires its internal procedure, ranging from discussion in the Plenary Court to the approval of the respective agreement, drafting, signing, and presentation of the consultation. This entire set of acts requires time, and it is not possible to rush the Court to do so before the legislative file is sent. Note that the only maximum timeframe the legislator has established is that the consultation be made before the definitive approval of the bill in question, as provided in the last paragraph of art. 98 of the Constitutional Jurisdiction Law (“In the other cases, the consultation must be posed before definitive approval.”). This Chamber could not now act against such a legal provision to deny the admissibility of the consultation made by the Court. Fourthly, in this case, it is evident that, indeed, the consultation was made on July 1, 2021, after the bill was approved in first debate (on June 17, 2021) and before its definitive approval. Moreover, having been joined through resolution 2021-015240 of July 2, 2021, on the same day that the other consultations presented by the deputies were joined, the “one-month” deadline the Chamber has to resolve starts to run as of the date of these joinder resolutions. Therefore, the fact that this consultation by the Supreme Court of Justice is admitted does not at all move the start of the one-month deadline to resolve, which is July 2, 2021. That is, the consultation by the Court in this case does not delay the deadline this Chamber has to resolve the consultation. It is not valid for this Chamber to admit moving the start of the one-month deadline so that it runs from July 2, 2021, and not from the date of receipt of the file, yet still maintain this latter date to limit the presentation of the consultation made by the Supreme Court of Justice. Fifthly, in the same vein as the precedent resolved through ruling No. 2016-018351 of 11:15 a.m. on December 14, 2016, the optional consultation made by the Office of the Ombudsperson (presented on November 14, 2016) was admitted, even after the date of receipt of the legislative file (submitted on November 4, 2016). This situation should not be any different from the current one regarding admitting the consultation by the Supreme Court of Justice, even after receipt of the legislative file. Sixthly, in this matter and when there is a legal vacuum, an interpretation in favor of the possibility of control must prevail, not an excessively formalistic or restrictive one, in consideration of the principle of constitutional supremacy. As this Chamber has stated in a prior case where there was a legal gap regarding the admissibility of legislative consultations:

“Given the normative gap regarding the admissibility of the consultation (…), this Constitutional Court, in pursuit of the principles of constitutional supremacy contained in articles 10 of the Political Constitution and 1° of the Constitutional Jurisdiction Law, of the direct and immediate efficacy of the Constitution, according to which legislative development of constitutional principles, values, and precepts is not necessary, of the strongest binding force of fundamental rights, of the hermetic plenitude of the legal system, and of legal certainty, opts to admit them so that they may be evacuated on the points that will be determined below. Constitutional jurisdiction must be a reflection of the open and flexible texture of Constitutional Law, and its interpretation must be spiritual and not formalistic. In this regard, article 14 of the Constitutional Jurisdiction Law provides that “(…) In the absence of express provision, the principles of Constitutional Law, as well as those of general Public and Procedural Law (…) shall be applied.” It is clear that (…) This competence could not be interpreted restrictively, considering the principle of constitutional supremacy. Therefore, this Court deemed it appropriate to grant leave to the constitutionality consultations presented, because, in the face of the legal vacuum, it must be interpreted in favor of the possibility of control…” (see ruling No. 2007-009469).

In conclusion, in accordance with the prior jurisprudence of flexibility in admissibility and pursuant to the arguments given, we proceed to dissent because we consider that this consultation presented by the Supreme Court of Justice must also be deemed admitted. In this sense, as we consider this consultation admissible, it is appropriate for us to rule on the matter consulted pursuant to article 99 that governs this jurisdiction.

• a)The consultation is evacuated, and articles 13, 32, 33, 34, and 36 of the bill are considered unconstitutional, with respect to the Judicial Branch.

Regarding article 13 of the Public Employment Framework Law bill: The Supreme Court of Justice considers that article 13 of the bill grants Mideplán the power to fill in the content of the specific regulations of the families created in the bill, through a mere administrative act, despite the fact that regulating the functioning of the Judicial Branch is a matter reserved to law and, therefore, since the numeral does not determine how those “families” or their specific regulations are to be substantively filled, it could be contrary to Constitutional Law for that filling to be carried out through an administrative act by Mideplán. It is stated that the regulation of the indicated families in article 13 of the bill is very poor, so it is understood that it will be carried out through the exercise of regulatory power, via regulation, and even through lower-ranking norms, given that the distinction between families implies a singular treatment depending on the type of service provision involved, which is contrary to article 154 of the Political Constitution. The consultation indicates that the possibility of defining the different employment relationships in the Judicial Branch is transferred to specific regulations of lower-ranking norms by Mideplán, thereby emptying the self-regulatory power of the Judicial Branch of its content and transferring the possibility of regulation through autonomous regulations toward the adoption of other types of regulations and, worse still, general provisions, directives, circulars, manuals, and resolutions by Mideplán. It is considered that, with the foregoing, the raison d'être of the constitutional norm established in function of judicial independence may be put at risk, since Mideplán will have full competences to determine the specific regulation of each family through a simple regulation, or, even more seriously, through an administrative act, without respecting that the regulation of the Judicial Branch, regarding its organization and functioning, is reserved to law. It is warned that the reservation of law in article 154 of the Constitution is broad because it seeks to safeguard judicial independence, and, consequently, matters related to the functioning of the Judicial Branch cannot be left to a simple administrative act by Mideplán.

In this regard, after the respective analysis of what was argued in the Judicial Branch’s consultation regarding article 13, it is concluded that said norm indeed runs afoul of the Constitution. Upon reviewing the bill’s entirety and what can be foreseen will happen with the specific application of that numeral, it is clear that if the content of the phrase “families of positions” as well as the regulations that would make it applicable are to be issued through the exercise of regulatory power, via regulation, and even through lower-ranking norms such as general provisions, directives, circulars, manuals, and resolutions, all issued by Mideplán, who will be the governing body for public employment matters.

In this regard, the Constitutional Chamber has been very clear in establishing that the independence of the Judicial Branch translates, in economic matters and through the lifetime tenure (inamovilidad) of its personnel, as well as, functionally, through the real possibility of making its decisions according to its own criteria and not as a result of pressures from certain groups, institutions, or persons (see ruling number 2000-5493). Recall that the independence of the Judicial Branch refers to the existence of a set of guarantees intended to prevent it from being controlled by other governmental bodies, such as the Executive and Legislative Branches. The State of the Justice affirms that: “The greater the influence of those other actors over the selection of personnel and cases to be addressed, over administrative decisions, jurisdiction, and compliance with laws, the lesser the independence of the Judicial Branch” (State of the Justice Report 1, 2015, page 92). In that sense, the justice administration system is autonomous insofar as it depends upon itself and not upon other branches; at the external level, that independence is the absence of external pressures or influences that make the institution vulnerable, as a result of threats to the availability of resources that allow it to carry out its work with autonomy, to job stability and promotion possibilities for its officials, to their integrity and assets, and to their infrastructure capacities to meet citizen demands.

It is also of interest to recall that in advisory opinion No. 2018-019511, in which the legislative consultation regarding the “Public Finance Strengthening Law” bill (legislative file No. 20.580) was heard, this Chamber concluded—after performing an interpretative task regarding the bill’s content—that, concretely, what was provided in numerals 46, 47, and 49, concerning the “governing authority over public employment matters by Mideplán” and “the binding nature of the technical and methodological guidelines of the General Directorate of (sic) Civil Service,” did not apply to the Judicial Branch; an interpretation made considering the principle of independence of the Judicial Branch. Subsequently, moreover, stemming from the prior advisory opinion, the Chamber has endorsed the existence, provenance, and necessity of a particular public employment regime for the Judicial Branch’s servants.

Consequently, what is established in article 13 of the Public Employment Framework Law bill is unconstitutional because the broad powers granted to Mideplán, so that via sub-legal norms, it may elaborate the content of the families of positions that would apply in the Judicial Branch, is damaging to the principle of judicial independence.

Regarding article 32 of the Public Employment Framework Law bill: Article 32 of the bill establishes that each labor family will be composed of a series of grades, each of which represents a group of positions with a similar profile, with Mideplán being the entity that will define the number of grades required within each labor family as well as their characteristics; grades that will consist of a range of remuneration points. In this regard, the consultation presented by the Supreme Court of Justice affirms that this numeral also yields extremely broad powers granted to Mideplán over the possibility of filling the content of the families as well as their characteristics, leaving that determination subject to the criterion and interpretation of Mideplán, considering that the deliberate vacuum in the regulation of the families benefits the mere administrative act through which Mideplán will regulate it. The consultation deems that the foregoing is established to the detriment of the independence held by the Judicial Branch to regulate everything related to its human resources management, but also to the detriment of legal certainty in the employment relationship matters of judicial servants.

In this regard, it is concluded that the Supreme Court of Justice is correct in considering that this norm also harms Constitutional Law because, once again, its content leaves it to the discretion of the head of Mideplán at the time to issue the corresponding regulation for the grades of the labor families, as well as to establish the groups of positions of the Judicial Branch with a similar profile, their characteristics, the job evaluation methodology, and the evaluation itself that will determine the remuneration points for each grade and the salary progression of the points to be paid to the servant, which will be done based on a satisfactory evaluation of professional performance, also carried out by Mideplán.

Consequently, it is more than evident that powers that were once inherent, exclusive, and excluding to the Judicial Branch will now belong to an organ of the Executive Branch, with the resulting violation of the principle of judicial independence that this entails, but furthermore, it is certain that employees will be subjected to constant uncertainty regarding these aspects, which will ultimately result in a violation of the principle of legal certainty to their detriment.

From the content of Article 32 under study, it is clear that here, once again, constitutional powers that corresponded to the governing body of the Judicial Branch, which is the Supreme Court of Justice, would be transferred to an organ of the Executive Branch, which would undoubtedly harm judicial independence, but will also cause an imbalance in the relationship of powers to the detriment of the Judicial Branch because Mideplán will have broad powers in open interference in the functioning of the Judicial Branch, with the consequent violation of the principle of separation of powers according to which one Branch of the Republic cannot interfere with or impose itself upon another Branch in the exercise of its own functions and powers. Consequently, Article 32 of the proposed Public Employment Framework Law is unconstitutional.

  Regarding Article 33 of the proposed Public Employment Framework Law: The Supreme Court of Justice considers that Article 33 of the proposed law under study is unconstitutional because, once again, it grants broad powers to Mideplán which, according to this provision, will be the entity that classifies job positions into occupational families and grades, since all public service positions must have a detailed job manual that will be prepared by that organ of the Executive Branch. According to this article, the descriptions of the job positions will reflect the duties actually performed and, once each job has been described, analyzed, and evaluated, Mideplán will assign it to an occupational family and to a grade within that family. The consultation considers that this possibility of defining the different employment relationships in the Judicial Branch by lower-ranking regulations made by Mideplán would violate the legislative reserve (reserva de ley) in this matter and, therefore, the self-regulatory power of the Judicial Branch would be emptied of content, with the consequent damage to judicial independence, since Mideplán will have full powers to determine the specific regulation for each family by means of a simple regulation or administrative act. The consultation notes the seriousness of this situation, particularly with reference to prosecutors, since they would be incorporated as part of a common family, without distinguishing and taking into account their own characteristics and the particularities of the position, all at the discretion of Mideplán, but to the detriment of the independence of the Judicial Branch, because it opens the possibility of open interference in its functioning that could perfectly be carried out through a simple administrative act by the person in charge of Mideplán. The consultation considers that there is a risk because a series of positions in the Judicial Branch—such as judges, prosecutors, public defenders, members of the Superior Council—that should be shielded from interference by other Branches of the Republic for the sake of legal certainty, judicial independence, and the protection of public liberties, will now, under this proposed law, be subjected to the control of Mideplán; it is considered that this represents a risk of becoming an instrument hostile to the separation of Powers and a means in the hands of a potential Executive Branch that wishes to use it to affect the democratic system toward authoritarian alternatives.

In this regard, we consider that, as to this point, the questioning raised by the Supreme Court of Justice in the consultation under study is correct, since it is true that Article 33 of the proposed Public Employment Framework Law also grants broad powers to Mideplán regarding the power to classify job positions into occupational families and grades. From a reading of Article 33 of the proposed law, it is easy to deduce that the separation of powers, the legislative reserve constitutionally established in favor of the Judicial Branch, and judicial independence will be violated, since—once again—it grants Mideplán a power regarding human talent management that has always been inherent to the governing body of the Judicial Branch and that can now be exercised, including through simple administrative acts that will produce specific effects on the organization and functioning of the Judicial Branch. Based on such broad powers that will be granted to Mideplán, only scarce residual powers will remain for the Judicial Branch, which would be insignificant in light of everything that would be transferred to that organ of the Executive Branch, as seen in the proposed Law consulted. Mideplán would be left with broad powers that it can exercise unilaterally and vertically, in open violation of the independence of powers, since it is eliminating constitutional powers from the Supreme Court of Justice in favor of an organ of the Executive Branch that, moreover, is subject to free removal and appointment by the President of the Republic. Consequently, Article 33 is harmful to the Law of the Constitution and is so declared.

  Regarding Article 34 of the proposed Public Employment Framework Law: Article 34 of the proposed law under study establishes the global salary scale (columna salarial global) that will be prepared by Mideplán, the Technical Secretariat of the Budgetary Authority, and the General Directorate of the Civil Service. On this point, the Supreme Court of Justice consultation recalls that the Judicial Branch has constitutionally assigned powers regarding its administrative function, recognized by the Constitutional Chamber itself in judgment No. 2017-009551, where it was indicated that constitutional Articles 153 and 154 contain essential powers, that is, explicit and implicit authorizations for the Judicial Branch related to its administrative function, and among these is the power to organize the personnel of the Judicial Branch; an administrative function that makes the Supreme Court of Justice the primary interpreter of the regulations applicable to its personnel because it is a matter pertaining to its organization and functioning, and it is not permissible that by means of a simple administrative act it be imposed upon how it must regulate its public employment relationship, as is intended with the proposed law consulted, and with Article 33, in particular. It is also argued in the consultation that despite the fact that this provision, in principle, establishes a cooperative relationship for preparing the global salary scale, what the Judicial Branch indicates in no way binds the organs of the Ministry of the Presidency, the Ministry of Finance, and Mideplán. Added to this, it is established that Mideplán's relationship will be with the Human Resources Directorate of the Judicial Branch and not with the Supreme Court of Justice, so there is a serious defect of unconstitutionality, since Mideplán will "coordinate" with that Directorate the definition of the global salary scale of the Judicial Branch, completely ignoring the highest governing body of the Judicial Branch, which is the Full Court. Therefore, they consider that this article represents a regression and an affectation of the principle of progressivity in the right that all persons have to a Judicial Branch not exposed to the risks of interference from other branches, that is, to judicial independence.

We consider that regarding this article, it must be said that the Constitutional Chamber was very clear in Advisory Opinion No. 2018-019511 when pointing out that the "steering role of Mideplán in public employment matters" and the "binding nature of the technical and methodological guidelines of the General Directorate of the (sic) Civil Service," which were contained in the proposed "Public Finance Strengthening Law" (legislative file No. 20,580), did not apply to the Judicial Branch; an interpretation that was made taking into consideration the principle of independence of the Judicial Branch. However, in the proposed law under study, it is observed that the legislature ignored that criterion and, instead, now submits for the consideration of this Court regulations that clearly harm the principles of separation of powers and judicial independence, since, with provisions like this Article 34, it intends that Mideplán, together with the Technical Secretariat of the Budgetary Authority and the General Directorate of the Civil Service, be the entities that prepare the global salary scale to be applied to employees of the Judicial Branch, in absolute contradiction with the provisions of constitutional Article 152, which provides that "the Judicial Branch is exercised by the Supreme Court of Justice," and Articles 9 and 154, which provide, respectively, the principle of separation of powers and the principle of independence of that Branch of the Republic. It should be remembered that the Chamber has made express reference to the impropriety of an external body assuming the steering role or imposing criteria on the Judicial Branch in these matters and, on the contrary, has highlighted that the functional independence and autonomy expressly recognized for the Judicial Branch in the constitutional text itself (Articles 9, 152 et seq., and 177), materialized and guaranteed in its own organic regulations, imposes on the heads of the Judicial Branch the competence and responsibility to decide—without undue interference—on the various matters, among them, those that are currently the subject of regulation in the proposed Public Employment Framework Law consulted (see judgments No. 2019-25268 and 550-91).

Likewise, it must be said that this Court was very clear in Advisory Opinion No. 2018-019511 when pointing out that the independence of the Judicial Branch is one of the cardinal foundations of the Costa Rican Rule of Law and that, based on Articles 9, 154, and 156 of the Political Constitution, a profuse regulatory framework has been created specifically designed to regulate the Judicial Branch, such as the Organic Law of the Judicial Branch, the Organic Law of the Public Ministry, the Organic Law of the Judicial Investigation Agency, the Law on Salaries of the Judicial Branch, the Judicial Service Statute, among others, which are intended to regulate this Branch and ensure that its independence from the other Branches of the Republic is guaranteed. It was also pointed out in that resolution that decision-making in labor matters, whether general or specific:

"… are already regulated by the aforementioned regulatory framework of the Judicial Branch, making it impossible for an external body to assume the 'steering role' or impose criteria on that Branch. Moreover, said regulatory framework is designed to guarantee the efficiency of the judicial function and protect judicial servants from external interference."   Thus, the Chamber has recognized that the Judicial Branch is key to Costa Rican democracy, so much so that "The fact that Costa Rica today has the oldest and most stable democracy in Latin America is unimaginable without the functioning of a robust justice administration system and without the recent efforts to modernize it." (see opinion No. 2018-005758). Therefore, "if importance is not given to the Judicial Branch in the social and democratic Rule of Law for its proper functioning, its weakening leads to anti-democratic forms of government; proof of this is that one of the functions that authoritarian or totalitarian governments first control is the judicial function, hence the importance of every democratic system having a robust Judicial Branch." (see opinion No. 2017-09551). This Article 34 of the proposed law as worded would harm the Judicial Branch and its independence—as the key to the robustness of this Branch—as well as the principle of separation of powers, but even more seriously, would cause its weakening to the detriment of democracy.

On the other hand, it must be said that, regarding public employment, the Judicial Branch's subjection to the fundamental principles of the public employment regime of constitutional Article 191 is clear, even in accordance with Article 11 of the Political Constitution, since it is also subject to the respective procedure for performance evaluation and accountability. Additionally, the Chamber has understood as valid and justified that the Judicial Branch has its own regulatory framework that regulates in a specific, particular, and differentiated manner the employment relationships between said Branch and its servants and the evaluation of their performance, and, as stated supra, it has been recognized that said regulatory framework—composed, among others, of the Organic Law of the Judicial Branch, the Organic Law of the Public Ministry, the Organic Law of the Judicial Investigation Agency, the Law on Salaries of the Judicial Branch, and the Judicial Service Statute—is specifically designed to guarantee the efficiency of the judicial function and the independence of the Judicial Branch, to the point that it has been established, as a jurisprudential criterion, that this involves special regulations that take precedence over general provisions and cannot be repealed, at least not tacitly, by a subsequent general regulation. Consequently, Article 34 of the proposed Public Employment Framework Law is harmful to the Law of the Constitution and is so declared.

  Regarding Article 36 of the proposed Public Employment Framework Law: The consultation indicates that the proposed law subjects the remuneration policy of the Judicial Branch to a definition by the General Directorate of the Civil Service, Mideplán, and the Budgetary Authority of the Ministry of Finance, as well as the respective approval by the Government Council. They consider that this provision creates a power for these three bodies, subjecting it to the respective approval of the Government Council, ignoring the constitutional powers of the governing body of the Judicial Branch, which is the Supreme Court of Justice, thereby resulting in a tacit repeal of the powers of the Supreme Court of Justice in defining the remuneration of judicial servants and open interference by the Executive Branch in the decisions implemented in this regard in the Judicial Branch, nullifying the constitutional powers of the Supreme Court of Justice and attributing to the Executive Branch decisions that have a clear impact on the functioning of the Judicial Branch. It is further argued that the vertical and absolute relationship of the Government Council, based on the actions of bodies proper to the Executive Branch, violates the coordination-cooperation relationship that must exist between Branches of the Republic and establishes a directive relationship that implies a defect of unconstitutionality as it is open interference by the Executive Branch in the most elementary decisions regarding remuneration of personnel of the judiciary, prosecutors, etc., without taking into consideration, in any way, the opinion of the Supreme Court of Justice or the Superior Council of the Judicial Branch. The consultation recalls that in the system of checks and balances that governs the Political Constitution, in accordance with a democratic State, only a Law with the vote of 38 deputies can override the criterion of the Court and not through a mere interpretation by the Executive Branch that can determine how its functioning should be. The consultation recalls that the Supreme Court of Justice has exclusive and excluding powers regarding the administrative governance of the Judicial Branch in setting the salaries of its personnel.

In relation to this Article 36, it should be remembered that the Constitutional Chamber, in judgment No. 550-91, stated that in consideration of the principle of judicial independence, in the specific case of the Judicial Branch, it is fully justified that it have a special, separate, and differentiated regulation regarding the salary remuneration of its employees, subject to the fundamental constitutional principles provided in Articles 191 and 192 regarding proven suitability:

"(…) in the case of the branches, their own constitutional independence, guaranteed in general by Article 9 of the Constitution and, in the case of the Judicial Branch and the Supreme Electoral Tribunal, by those of Articles 99 et seq., 152 et seq., and 177 thereof, as well as their own organic regulations, impose on their heads the power and responsibility to set the remuneration, representation expenses, and other benefits inherent to the positions, of their own members and subordinates, within, naturally, their budgetary availability, regardless, of course, of whether their amounts may or may not coincide with those of the deputies."   From this perspective then, it will be up to the Judicial Branch to establish everything related to the salary remuneration of its employees, so that any interference in this matter that another Branch of the Republic attempts to make in relation to the Judicial Branch will imply harm to its independence, but also to the separation of powers. The Constitutional Chamber, in judgment No. 03575-1996, has been very clear in establishing that, in relation to public employment:

"… it is possible to conclude that the competent state organ in this matter is each branch of the Republic, given that it is these—Executive, Legislative, Judicial, and Supreme Electoral Tribunal—that are best equipped to determine their needs and understand their particular conditions."   Undoubtedly, the preceding quote is correct, for who is better equipped than each Branch of the Republic to determine what personnel needs it has or expects to have, in which areas it needs them, under what conditions the contracts can be made and what requirements to request, and what the correct remuneration to pay would be, among other aspects that, in the case of the Judicial Branch, are inherent to its nature and the functions it is called upon to carry out. From this perspective, it is not valid then for an external entity, coming from the Executive Branch such as Mideplán, to determine the remuneration policy for employees of the Judicial Branch when it does not even have full and timely knowledge of the characteristics of its employees, the institutional needs, and the type of remuneration appropriate in consideration of the dangerousness of their functions, the responsibility they bear in their exercise, the urgency of their actions, among other aspects that it is up to the Judicial Branch to recognize and validate. Allowing an external organ from the Executive Branch to determine the remuneration policy for employees of the Judicial Branch, without having knowledge of the institutional needs, implies not only a violation of the principle of independence of the Judicial Branch, but also of the separation of powers.

At this point, it is worth highlighting what the Constitutional Chamber stated in judgment No. 2017-009551 regarding the importance of the Judicial Branch in the Rule of Law and the exercise of its administrative function with independence:

"The Judicial Branch is not today a 'vacant' or 'devalued' power (as it was considered in the early days of the modern State); it is precisely one of the clear objectives of dictators to lower the profile of its independence, to undermine economic independence or by filling the courts with 'ideologically oriented' judges (court-packing that fortunately did not happen in the USA despite a large partisan majority in Congress in tune with its president F. D. Roosevelt, but with dark criticism within his own ranks); if importance is not given to the Judicial Branch in the social and democratic Rule of Law for its proper functioning, its weakening leads to anti-democratic forms of government; proof of this is that one of the functions that authoritarian or totalitarian governments first control is the judicial function, hence the importance of every democratic system having a robust Judicial Branch." (…) "both legislative and judicial functions require an administrative support structure for the achievement of their essential or primary function, such as the administrative function that helps channel all their activity; which, logically, extends to the human resources or personnel of the Branches of the Republic, meanwhile, behind the fundamental function is the administrative function of personnel, agents, and public servants, etc."   Nor can it be overlooked that this Court, in Advisory Opinion No. 2018-019511, indicated that the special regulations governing the Judicial Branch ensure that its independence from the other branches is guaranteed, and systematic constitutional interpretation prevents indirect regulation of the judicial service through directives or guidelines from other bodies:

"… Among the regulations of this framework are the Organic Law of the Judicial Branch, the Organic Law of the Public Ministry, the Organic Law of the Judicial Investigation Agency, the Law on Salaries of the Judicial Branch, the Judicial Service Statute (including its reform by the Judicial Career Law), etc. Clearly, the aforementioned regulations are intended to regulate the Judicial Branch specifically, ensuring that its independence from the other Branches of the Republic is guaranteed." (…) "Moreover, said regulatory framework is designed to guarantee the efficiency of the judicial function and protect judicial servants from external interference, as indicated in Article 1 of the Judicial Service Statute: 'Article 1. This Statute and its regulations shall govern the relations between the Judicial Branch and its servants, with the purpose of guaranteeing the efficiency of the judicial function and protecting those servants.' Note that the regulation determines that the employment relations between the Judicial Branch and its servants are governed by the Statute and its regulations. The systematic interpretation required by that provision prevents indirect regulation of the judicial service through directives or guidelines from other bodies. This is verified because the issuing of the regulation to which the provision refers is, in turn, the exclusive competence of the Court, as indicated by the same Statute: 'Article 5. Before issuing an internal work regulation, whether of a general nature for all judicial servants or applicable only to a group of them, the Court shall make the respective proposed regulation known to those servants, by the most appropriate means, so that they may make written observations on the matter within a period of fifteen days. The Court shall take these observations into account to decide as appropriate, and the regulation it issues shall be binding without further procedure, eight days after its publication in the "Boletín Judicial".' A further guarantee of the independence of the Judicial Branch in employment matters is that the Head of the Personnel Department is linked to the President of the Court, excluding interference from external bodies: 'Article 6. The Personnel Department of the Judicial Branch shall operate under the direction of a Head who shall report directly to the President of the Court and shall be appointed by the Full Court.'" Thus, it is more than evident that Article 36 of the proposed Public Employment Framework Law under study is unconstitutional because it harms the principles of separation of powers and judicial independence since, from its content, it is clear that the salary remuneration of employees of the Judicial Branch would come from directives or guidelines from other bodies external to the Judicial Branch, specifically from the Executive Branch, with the consequent interference of one Branch of the Republic over the Judicial Branch.

In conclusion, we consider that Articles 13, 32, 33, 34, and 36 of the proposed Public Employment Framework Law are unconstitutional insofar as they refer to their application to the Judicial Branch. The foregoing is considered so because, as stated supra, all these articles establish powers for Mideplán that interfere with the independence of the Judicial Branch and with the principle of separation of powers, it being necessary to bear in mind once again that no organ of the Executive Branch, and therefore external to the Supreme Court of Justice, can issue directives or orders in matters of public employment.

  b) The consultation is addressed, and reference is made to the opinion expressed in the operative part (por tanto) of this file, regarding Articles 6, 7, 9, 13.f, 17, 18, and 21 of the proposed law.

As to this point, just as this Court unanimously indicated when analyzing each of Articles 6, 7, 9, 13.f, 17, 18, and 21 of the proposed Public Employment Framework Law with respect to the Judicial Branch, this minority considers them unconstitutional for the same reasons stated therein, and therefore refers to each specific point of the general judgment and to the respective clarifying notes in the separate opinions that were recorded in each section. In general terms, it is worth mentioning that under the protection of these articles of the proposed law under study, they are considered unconstitutional because they affect the independence of the Judicial Branch by subjecting it to the directive and regulatory power of Mideplán, as well as to the verification of whether or not they fulfill the purpose of the performance evaluation (evaluación del desempeño) and are not excluded from the directive power, it being necessary to emphasize that the directive and regulatory power attributed in this proposed law to the Executive Branch is incompatible with the principle of separation of powers or functions, since it is not its role to order their activity by establishing goals and objectives. Regarding the performance evaluation, it must remain reserved to each branch of the State, since this matter is inherent to the exercise of their constitutional powers. Consequently, such an obligation for the Human Resources Department of the Judicial Branch will imply a violation of the principle of separation of powers and of judicial independence, in accordance with the scope that constitutional jurisprudence has given to these basic principles in Costa Rican democracy. It should be remembered that the principle of division of powers, or as it is more recently known, the principle of separation of functions, is enshrined in Article 9 of the Political Constitution and stands as "one of the fundamental pillars of the Democratic State, as it establishes a system of checks and balances that guarantees respect for constitutional values, principles, and norms for the direct benefit of the inhabitants of the country." (judgment No. 2006-013708). This principle enables each Branch of the State to exercise its function independently of the others (judgment No. 6829-1993), and not only as a principle of internal application for the proper functioning of the Rule of Law, but also because the principle of judicial independence, in its external dimension, ensures a set of guarantees that seek to prevent the Judicial Branch from being controlled by other governmental bodies. The absence of external pressures or influences allows it to carry out its work autonomously, to meet citizen demands. On the other hand, in its internal dimension, judicial independence is more than a guarantee for judges, as it also constitutes "a guarantee for private individuals (parties to the process), in the sense that their cases will be decided in strict adherence to the Constitution and the laws" (judgment No. 5795-1998). Thus, "we are faced with the right of citizens to have independent judges" (judgment No. 2001-006632). The independence of the Judicial Branch translates, in economic matters and through the lifetime tenure (inamovilidad) of its personnel, as well as, functionally, through the real possibility of making its decisions according to its own criteria and not as a result of pressures from certain groups, institutions, or persons (see judgment No. 2000-005493). Therefore, it is fully justified that in the specific case of the Judicial Branch, it has special, separate, and differentiated regulation, although subject to the fundamental constitutional principles provided in Articles 191 and 192 (see judgment No. 1991-550), but not under the general provisions, directives, and regulations of an organ of another Branch of the Republic, as is intended with this proposed law.

It must be borne in mind that the special regulations governing the Judicial Branch “prevent indirect regulation of the judicial service through directives or guidelines emanating from other bodies.” (advisory opinion No. 2018-019511); and that “the constitutional powers to order, plan, or program, for example, the administrative function of personnel management” (judgment No. 2017-009551) are an essential part of the administrative function of the Judicial Branch that contributes to the effective exercise of its judicial function, since “both legislative and judicial functions require an administrative support structure for the achievement of their essential or primary function, such as the administrative function that helps channel all its activity; which, logically, extends to the human resources or personnel of the Branches of the Republic, meanwhile, behind the fundamental function lies the administrative function of personnel, public agents, and servants, etc.” (judgment No. 2017-009551). Finally, it should be noted that, in resolution No. 2018-019511, in which the legislative consultation regarding the “Public Finance Strengthening Law” bill (legislative file No. 20,580) was heard, this Chamber concluded—after carrying out an interpretive task regarding the content of the bill—that, specifically, the provisions of Articles 46, 47, and 49, concerning the “stewardship of public employment matters by Mideplán” and “the binding nature of the technical and methodological guidelines of the Dirección General del (sic) Servicio Civil,” did not apply to the Judicial Branch; an interpretation made taking into consideration the principle of independence of the Judicial Branch. Furthermore, it is not valid for some officials of the Judicial Branch to be included in a category of the Civil Service Statute, since this affects the independence of the Judicial Branch based on the fact that judicial governance is exercised by the Supreme Court of Justice, exclusively and preclusively with respect to its constitutional powers. Under the protection of Article 154 of the Constitution, the Judicial Branch is subject only to the Constitution and the law, but not to provisions of the Executive Branch, and positions of great importance within the Judicial Branch must be particularly protected from interference by other Branches of the Republic. Likewise, it must be taken into account that the Judicial Branch requires stability of personnel, which is necessary for adequate and impartial performance of the position, which is incompatible with subordination to the provisions issued on the matter by Mideplán.

In addition to the foregoing, it must be stated that the exercise of disciplinary authority over Judicial Branch employees is an essential part of judicial independence, and this Branch already has internal regulations providing for the exercise of disciplinary authority; therefore, the provisions of the bill under study referring to that matter would not be applicable to the Judicial Branch, as this Chamber indicated in Vote No. 2009-004849. Thus, in accordance with the principle of judicial independence, the entity with disciplinary competence shall be exclusively the Judicial Branch itself.

• c)The consultation is declared unavoidable, for lack of substantiation, with respect to Articles 1, 5.a, 11, 12, 14, 16, 23, 24, 26, 28, 30, 31, 35, 46, Transitory Provision II, Transitory Provision IV, IX, and X.

In the consultation from the Supreme Court of Justice, reference is made to Articles 1, 5.a, 11, 12, 14, 16, 23, 24, 26, 28, 30, 31, 35, 46, Transitory Provision II, Transitory Provision IV, IX, and X, all of the Public Employment Framework Law bill, as part of the articles regarding which it was deemed necessary to submit a formal consultation to this Court.

Notwithstanding the foregoing, this minority considers that the arguments raised in relation to those articles completely lack the legal substantiation required by Article 99 of the Constitutional Jurisdiction Law for admitting this type of procedural action, because, in addition to not providing a clear explanation of the reasons why it is considered that there might be constitutional friction in those articles and transitory provisions, there is also no express reference to the constitutional principles considered to be infringed by the provisions under study, nor to the motives justifying the concerns that led the Supreme Court of Justice to consult regarding those articles. In this regard, it must be recalled that the Chamber's case law has emphatically indicated that the consultation must be formulated in a reasoned manner, with a clear indication of what is being questioned and the reasons for having doubts or objections regarding the bill.

Under this order of considerations, upon verifying in the present case that compliance with these requirements has been omitted, we consider that the consultation on constitutionality regarding the “LEY MARCO DE EMPLEO PÚBLICO” bill being processed in legislative file No. 21,336 is unavoidable with respect to Articles 1, 5.a, 11, 12, 14, 16, 23, 24, 26, 28, 30, 31, 35, 46, Transitory Provision II, Transitory Provision IV, IX, and X, all of the Public Employment Framework Law bill, for lack of substantiation of what was consulted.

In conclusion, on the merits of what was consulted by the Supreme Court of Justice, we consider that: a) Articles 13, 32, 33, 34, and 36 of the bill are unconstitutional with respect to the Judicial Branch; b) Reference must be made to the opinion rendered in the Por Tanto of this file, regarding Articles 6, 7, 9, 13.f, 17, 18, and 21 of the bill; c) The consultation is unavoidable, for lack of substantiation, with respect to Articles 1, 5.a, 11, 12, 14, 16, 23, 24, 26, 28, 30, 31, 35, 46, Transitory Provision II, Transitory Provision IV, IX, and X.

Separate opinion of Justice Rueda Leal regarding the consultation filed in file No. 21-012714-0007-CO by the Supreme Court of Justice.

In the case at hand, I concur with the majority opinion, as I believe that an interpretation of the rules governing the legislative consultation compels limiting the deadline for filing such a consultation. On this matter, I specify that, in judgment No. 2016-18351 of 11:15 a.m. on December 14, 2016, the Chamber rejected a coadjuvant brief from the Defensora de los Habitantes and, on its own motion, processed it as a new facultative consultation, which was then accumulated to the original one. Such intervention by the Defensora de los Habitantes occurred after the submission of the corresponding legislative file. Regarding that precedent, I clarify that I did not sit on the Court at that time and, therefore, did not subscribe to that opinion. I consider, in any case, that the reasoning developed in this resolution must prevail, as it allows the Chamber's decision to be rendered within a reasonable time, thus avoiding indirect interference in the legislative process. On the other hand, I reject the possibility that the Chamber might, on its own motion, convert a coadjuvancy into a new consultation, since there is no provision authorizing such a procedure and, moreover, it disregards the formalism of constitutional review processes. Note that the Constitutional Jurisdiction Law does permit the conversion of a habeas corpus petition into an amparo one (Article 28), given that such processes seek the protection of fundamental rights and, for that reason, are based on informality in their processing. In contrast, the constitutional consultation process has another purpose, which consists—as its name indicates—of the Chamber reviewing the constitutionality of a bill and others under the terms of Article 96 of the cited Law. The resulting decision in these processes can affect the validity of the legal system, so their processing is subject to strict formalities, which leads to the denial of both said coadjuvancy and its conversion on the Court's own motion.

Separate opinion of Justice Garro Vargas regarding the admissibility of the legislative consultation filed by the Supreme Court of Justice In addition to what was stated in the dissenting vote signed jointly with Justice Picado Brenes, I deemed it appropriate to add a separate note to complete my ideas regarding the admissibility of the constitutional consultation filed by the Supreme Court of Justice.

Firstly, as I stated in the note to advisory opinion No. 2020-013837, in our regulatory design, the law-making process is subject to constitutional review, exercised through the Constitutional Chamber. This review system can be a priori or a posteriori. In both cases, and with their specific regulations, it is this Court's obligation to examine—if brought to its consideration—the legislative proposal and the legislative procedure, in order to compare them with the norms, principles, and values that make up Constitutional Law. In a priori constitutional review, the Constitutional Chamber is responsible for overseeing and “hearing consultations regarding bills for constitutional reform, the approval of international agreements or treaties, and other bills, as provided by law.” All the above, as a manifestation of the principle of constitutional supremacy enshrined in Article 10, subsection b) of the Political Constitution and in Articles 96 et seq. of the Constitutional Jurisdiction Law (LJC). This form of constitutional review, equally as strong and valid as a posteriori review, has an objective or abstract purpose, but also a preventive and precautionary one. Its goal is to prevent bills containing some constitutional defect from becoming part of the legal system. Indeed, the purpose of constitutional consultations is none other than to uphold the “supremacy of the norms and constitutional principles and of the International or Community Law in force in the Republic, their uniform interpretation and application, as well as the fundamental rights and freedoms enshrined in the Constitution or in the international human rights instruments in force in Costa Rica” (Article 1 of the LJC).

Once the importance of this type of process is recognized, it is necessary to distinguish that a priori constitutional consultations may be mandatory—concerning bills for constitutional reform or the approval of international agreements or treaties—or facultative—any other bill. In this second case, other constitutional bodies or bodies of legal configuration having institutional or organic standing may participate in the constitutional review to consult about “bills or specific motions incorporated into them in the processing, content, or effects of which they believe the principles or norms relating to their respective constitutional competence have been unduly ignored, interpreted, or applied” (Article 96, subsection c) of the LJC). It is a highly exceptional remedy—since in the history of the Constitutional Chamber there are practically no precedents for its use—which seeks to allow these constitutional bodies, vital in shaping the Rule of Law, to have standing precisely to safeguard the essential competences and powers recognized exclusively and preclusively. Emphasis must indeed be placed on the fact that the recognition of this standing derives from the defense of their respective constitutional competence, so it is an instrument inspired by the very principle of separation of functions derived from Article 9 of the Constitution, which must be interpreted jointly with the provisions recognizing the functions of governance and judicial administration to the Supreme Court of Justice (Articles 152, 153, and 156 of the Constitution), with those establishing the powers of the Tribunal Supremo de Elecciones regarding the organization, direction, and supervision of acts relating to suffrage (Article 99, ibid.), and with those referring to the supervision and oversight of the Public Treasury in the case of the Contraloría General de la República (CGR) (Article 183, ibid.).

Now, regarding the requirements for its submission, it must be emphasized that the LJC does not differentiate, and its Article 98 stipulates that it must be filed “after approval (of bills) in the first debate and before they are approved in the third,” and its Article 101 orders, equally for all consultations, that the Chamber shall render its opinion within one month of its receipt. That is, the requirements are the same for all cases examined, without these deadlines or requirements depending on one another. Therefore, it is not admissible for this Court to distinguish where the law does not, and this would occur if it were claimed to be a common deadline. Thus, if it is considered that there is a normative omission—because it does not contemplate cases where several consultations are filed simultaneously—the facultative legislative ones and the organic ones—such a gap cannot be filled to the detriment of the prerogatives granted to the aforementioned bodies for the defense of their respective constitutional competences and, concomitantly, to the detriment of the prerogative entrusted to this Court to ensure the supremacy of constitutional norms and principles. Likewise, I believe that the interpretation and the limits for the admission of this type of consultation cannot be so severe as to constrain a branch of the republic and a body having such status, or a constitutional body such as the CGR. Therefore, faced with the factual situation under review, I do not share the technique used, in the sense that, to fill the gap, an interpretation regarding limits and requirements established for facultative legislative consultations was applied and extrapolated to organic consultations, which are so exceptional in the work of this Constitutional Chamber.

The majority indicates that “the Constitutional Chamber has established as the starting moment for the deadline the receipt of the legislative file or its accumulation; from those moments onward, it is not possible to admit new consultations, whether from legislators or from other bodies external to Parliament.” Such an assertion is imprecise, because the Chamber has established said deadline or cutoff point for the Legislative Assembly itself, the body responsible for sending the certified copy of the legislative file, not for other bodies of the republic that would have no reason to be subject to a limit designed for Parliament. As is known, due to a well-known and long-standing practice of filing several legislative consultations on certain bills, this Chamber established that limit in order to restrict the continuous filing of multiple consultations that could hinder both the parliamentary process and the advisory competence entrusted to this Court. Again, although it is “reiterated case law”—as the majority of the Chamber points out—it has been a jurisprudential line applied to legislators and not to other bodies legally empowered to file constitutional legislative consultations in defense of their constitutional competences. The situation would be different if one organic consultation or multiple organic consultations had been filed. In such a case, it would indeed be feasible to state that a normative integration can be carried out and to specify that, from the moment one organic consultation is filed, the one-month deadline governs for all other bodies, given that, furthermore, it is something absolutely atypical, as multiple organic constitutional consultations have never been filed.

Nor do I agree that it constitutes “undue interference in the legislative process (iter) of the bill,” to the extent that we are dealing with a power granted by the legislature itself to other branches of the republic and other authorities to refine the constitutionality of a specific bill with respect to their respective constitutional competences.

Additionally, the fact that the bill had previously been submitted for consultation to the Supreme Court of Justice does not imply that it cannot undergo modifications during the legislative process itself that justify an appropriate wait to file a formal consultation on the final text, which, besides, cannot be approved unilaterally by the President of that Court, but required a formal decision of the governing body of the Judicial Branch, i.e., the Supreme Court of Justice (see Articles 156 and 167 of the Political Constitution).

Finally, as pointed out in our dissenting vote, the fact of admitting this legislative consultation for consideration did not entail any anomalous benefit in favor of the Supreme Court of Justice, precisely because the deadline governing the Chamber was that of the accumulation of the other legislative consultations. Note that this organic consultation was received on July 1, 2021, and the vote by which the legislators' legislative consultations were accumulated is dated July 2, 2021 (see resolutions No. 2021-015137 and 2021-015105). Therefore, it would not have harmed the parliamentary processing of the consulted bill at all if this legislative consultation had been admitted, and, therefore, the Chamber would have been adhering to the deadline for rendering its opinion of one month after the accumulation of the consultations it did consider admissible. That is, if the Chamber itself has one month to resolve this advisory opinion, it would in no way have hindered the parliamentary procedure, precisely because the Court's consultation was received before the accumulation and, therefore, before the extension of the deadline for resolving the constitutional doubts raised.

Consequently, I reiterate my view that this organic constitutional consultation is admissible.

III.- On the denial of the briefs submitted on June 22, 25, 28, 29, and July 5, 13, 15, and 20, 2021.- Several briefs have been submitted to this legislative consultation file: On June 22, 2021, the Secretario General of the Sindicato de la Salud y la Seguridad Social made various statements against the consulted bill. On June 25, 2021, several legislators submitted what they call “passive coadjuvancy” and expressed their views on the constitutionality of the consulted bill. On June 28, 2021, several representatives of trade unions, community organizations, and civil society requested that the consulted bill be declared unconstitutional. On June 29, 2021, several legislators made statements regarding the constitutional conformity of the consulted bill. On July 5, 2021, representatives of the Asociación Cámara de Industrias de Costa Rica raised what they call “coadjuvancy” and requested that the consultation filed be rejected. Subsequently, on July 13 and 15, 2021, the President of the Conferencia Episcopal Nacional de Costa Rica and the Secretario General of the Confederación de Trabajadores Rerum Novarum, respectively, submitted what they call passive coadjuvancy and referred to the issue of conscientious objection. Finally, on July 20, 2021, several legislators appeared to argue regarding the inadmissibility of the Facultative Constitutional Consultation filed by the Supreme Court of Justice. Regarding all these submissions, with statements for and against the consulted bill, it is appropriate to note that active or passive intervention is not provided for in legislative consultation mechanisms, where there may be simply opposing legal opinions about the constitutional regularity of a bill, which is appropriate in amparo proceedings or unconstitutionality actions—Articles 34 and 83 of the Constitutional Jurisdictional Law—as this Chamber has indicated in previous cases because the facultative constitutional consultation on a bill is a process where coadjuvancies are not admitted, neither for nor against the consulted bill; what proceeds is the denial of processing of all these briefs (see in this regard votes No. 2019-020596, No. 2008-15760, No. 2007-009469, No. 2005-009618, No. 2004-1603, among others).

IV.- On the deadline for resolving this consultation.- When dealing with facultative consultations on constitutionality, and in application of the provisions of Article 101 of the Constitutional Jurisdiction Law, the Constitutional Chamber renders its opinion on the consultation within one month. As the starting date for counting this month, it has been indicated that it is, in principle, the date of receipt of the legislative file. In this case, the certified copy of the consulted legislative file was considered received by resolution of the Chamber at 11:54 a.m. on June 25, 2021. However, when three consultations were subsequently accumulated by resolutions of July 2, 2021, the one-month period began to run from this latter date. Thus, the deadline for this Chamber to resolve would expire on August 2, 2021.

• B)ON WHAT WAS CONSULTED V.- On the object of the consultation.- Based on the three admissible consultations filed, the consultation concerns the bill entitled “LEY MARCO DE EMPLEO PÚBLICO”, being processed in legislative file No. 21,336, regarding both procedural and substantive issues. In summary, the consultation concerns the following aspects:

Regarding the consulted PROCEDURAL defects:

• 1)Substantial procedural defects (violation of the right to amend and democratic participation): The consulting parties indicate that the Presidency incurred substantial procedural defects by violating the right to amend and democratic participation for the following reasons:

By issuing the Admissibility Resolution on Motions for Reiteration regarding the Public Employment Framework Law bill, file 21,336; By declaring inadmissible motions that reiterated substantive motions that had been approved in Committee, but admitting others; By accumulating motions considering them identical, similar, or reasonably equivalent but without accumulating others that were so, without a valid objective criterion for proceeding in that manner; and, By not bringing a duly admitted motion to the attention of the Plenary.

Regarding the consulted SUBSTANTIVE defects:

• 2)Violation of judicial independence: they consult on the constitutionality of several articles, considering that they violate Articles 9, 154, and 156 of the Political Constitution, Article 10 of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights, and Article 8 of the American Convention on Human Rights. This is because the consulted provisions seek to subject the Judicial Branch to the provisions issued by the Ministerio de Planificación Nacional y Política Económica (Mideplán) and the Dirección General del Servicio Civil, in matters of public employment.
• 3)Violation by including the Tribunal Supremo de Elecciones: they consult on the constitutionality of Article 2.a and others, considering that it violates Articles 9 and 99 of the Political Constitution, by forcing the TSE to apply and execute the general provisions, directives, and regulations issued by Mideplán (Articles 6, 7.d, 9, 13.b, 14, 17, and 18) in violation of its independence, allowing interference by the Executive Branch in a matter forbidden to it by constitutional mandate and resulting in a regression of the Rule of Law.
• 4)Violation of University Autonomy: they consult on the constitutionality of Article 6 and others, considering that it violates the principle of university autonomy contained in Articles 84, 85, and 87 of the Political Constitution. They consider that university autonomy is violated by subjecting the employment regime of teaching and research staff of higher education institutions to development plans, salary regimes, performance evaluations, directives, orders, instructions, and circulars issued by Mideplán and, in some cases, by the Dirección General del Servicio Civil and the Budgetary Authority.
• 5)Violation by including the Caja Costarricense de Seguro Social: they consult on the constitutionality of Article 2.b and others, considering that it violates the autonomy of the CCSS and Articles 73, 188, 11, 33, and 140.18 of the Political Constitution. They consider it unconstitutional to subject the CCSS to the directives, guidelines, and regulations issued by Mideplán on topics related to public employment, namely: work planning, work organization, employment management, performance management, compensation management, and labor relations management, as well as the set of provisions of the bill detailed below.
• 6)Violation of the Autonomy of Municipalities: they consult on the constitutionality of Article 2.c and others, considering that it violates the autonomy of Municipalities. This is because it is unconstitutional to subject Municipal Corporations to applying and executing the general provisions, directives, and regulations issued by Mideplán on topics related to work planning, work organization, employment management, performance management or performance evaluation, compensation management, and labor relations management, the subordination of human resources offices to the General Public Employment System, among others.
• 7)Violation of the autonomy of Autonomous Institutions: they consult on the constitutionality of Article 2.b and others, considering that it violates the autonomy of autonomous institutions.
• 8)Violation of the principle of legal certainty, equality, proportionality, and reasonableness (conscientious objection): They consult on the constitutionality of Article 23.g, insofar as it includes conscientious objection, considering that it violates the possibility for public officials to claim conscientious objection in order not to receive training and instruction that the State has deemed mandatory. They consider it unconstitutional for violating the principles of legality and legal certainty, proportionality, and reasonableness by not regulating the conditions, parameters, and restrictions that prevent the violation of fundamental human rights included in Conventional Law and fully recognized by our legal system. In that sense, they consider that it is not possible to appeal to conscientious objection to promote inequality, mistreatment, and discrimination from a position of power, for example.
• 9)Violation of the right to unionize and collective bargaining: they consult on the constitutionality of Article 43 and Transitory Provision XV of the bill, as collective bargaining on salary matters is prohibited, and other topics, which would encompass practically everything negotiable, emptying of content the possibility of any agreement seeking to improve the working conditions of workers, in contravention of what is provided in Article 62 of the Constitution, Convention No. 98 concerning the Right to Organise and to Bargain Collectively, 1949, of the International Labour Organization (ILO), Articles 4 and 6; American Convention on Human Rights, Pact of San José, Costa Rica, Article 2; International Covenant on Economic, Social and Cultural Rights, Articles 2 and 8; the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of San Salvador, Article 5; Article 7 of the Political Constitution; in addition to Article 690 of the Labor Code. All in further violation of the principle of progressivity.
• 10)Violation of the principles of reasonableness and proportionality (general disqualification sanction): they consult on the constitutionality of Article 4.a of the bill as it includes a general disqualification sanction, in contravention of the principles of reasonableness and proportionality. They indicate that it is a generic and automatic sanction, which would apply to any type of dismissal, regardless of whether it involves serious or minor offenses, without the sanctioning body assessing the seriousness of the conduct and without a weighing of the rights that will be affected.
• 11)Violation of the right to salary and the principle of equality (global salary): they consult on the constitutionality of Transitory Provisions XI and XII, which include rules for the application of the “global salary,” considering that this violates the right to salary (Article 57), the principle of non-discrimination in salary matters (Article 68), the State's obligation not to establish conditions contrary to human dignity (Article 56), and the non-waivability of rights (Article 74). Furthermore, Articles 23 and 28 of the Universal Declaration of Human Rights, Article 14 of the American Declaration of the Rights and Duties of Man, Article 6 of the International Covenant on Economic, Social and Cultural Rights, Article 7 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of San Salvador.

ILO Convention 131 concerning Minimum Wage Fixing (Law 5851), ILO Convention 95 concerning the Protection of Wages (Law 2561). ILO Convention 100 concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (Law 2561). Article 1 of ILO Convention No. 111 concerning Discrimination in Respect of Employment and Occupation (Law 2848). This is because the transitional provision allows the coexistence of three different salaries for people performing identical functions and under identical conditions; and it seeks to give equal treatment to those who are not in conditions of equality or who are not legally identical.

• 12)Violation of due process (single dismissal proceeding): Consultation is made regarding Articles 21 and 22 of the bill, insofar as they establish a special administrative procedure for dismissal, as they consider there is a lack of clarity regarding deadlines, receipt of evidence, right of defense, among others. All of this violates the constitutional principle of due process and legal certainty.
• 13)Violation of the principle of fiscal sustainability due to the possibility of leaves: Consultation is made regarding Articles 39, 40, 41, and 42 of the bill, insofar as they establish the possibility of unpaid leave to reduce the workday, paternity leave, and the extension of maternity leave. They consider that all of this is done without any cost study or identification of resource sources. This is without the opinion of the CCSS on the matter, despite the fact that it directly affects its finances.
• 14)Violation due to the exclusion of public enterprises in competition: It is indicated that, although public enterprises in competition, mainly telecommunications and insurance, must seek to increase their competitiveness, making an exclusion from the principles of transparency, excellence in service, and citizen participation lacks objective and substantiated reasons for their exclusion from public employment. Furthermore, the Benemérito Cuerpo de Bomberos is excluded, which they say is governed by Private Law, but others such as Recope and the Instituto Nacional de Aprendizaje were not excluded.

Each of the foregoing defects is examined separately below. We proceed to review only the points specifically questioned by the petitioners and not general aspects of the constitutionality of the regulation consulted, as provided in Article 99 of the law governing this jurisdiction. In this regard, it must be clear that, regarding those norms of the bill in question on which this Chamber does not rule (whether because they were not consulted or due to insufficient substantiation by the petitioners), it is not being indicated that they are or are not constitutional, so it must be understood that they were not analyzed by this Chamber and no opinion has been expressed on their constitutionality. Furthermore, it is also clarified that the text this Chamber has before it to conduct the examination of each norm consulted is the "Final Draft" dated June 23, 2021.

VI.- Regarding the consulted PROCEDURAL defects.- The petitioners consider that the Presidency incurred in substantial procedural defects due to violation of the right of amendment and democratic participation, for the following reasons: when issuing the admissibility resolution regarding motions for reiteration on the bill in question; by declaring inadmissible motions that reiterated substantive motions that had been approved in Committee, but admitting others; by accumulating motions considering them identical, similar, or reasonably equivalent, but without accumulating others that were so, without a valid objective criterion to proceed in that manner; and, finally, by not bringing a duly admitted motion to the attention of the Plenary. To proceed with the examination of these procedural defects, we will first indicate the chronology that the consulted bill has followed (1), then review the jurisprudence of this Chamber on substantial procedural defects and motions (2), to finally examine what was consulted regarding the defects of form (3).

• 1)Chronology of the legislative procedure for the bill "PUBLIC EMPLOYMENT FRAMEWORK LAW" (LEY MARCO DE EMPLEO PÚBLICO), processed in legislative file No. 21.336.- From the various volumes of the legislative file, it is found that, in summary, the consulted bill followed the following procedure:
• 1)On April 8, 2019, the Minister of the Presidency submitted the bill “PUBLIC EMPLOYMENT FRAMEWORK LAW” (LEY MARCO DE EMPLEO PÚBLICO), file No. 21.336, to the Secretariat of the Asamblea Legislativa (see folio 1, Volume 1 of the legislative file).
• 2)On April 29, 2019, the Department of Archives, Research, and Processing (Departamento de Archivo, Investigación y Trámite) sent the legislative file to the Imprenta Nacional for publication in the Diario Oficial (see folio 110, Volume 1 of the legislative file).
• 3)On May 30, 2019, the Comisión Permanente Ordinaria de Gobierno y Administración of the Asamblea Legislativa received the bill for study.
• 4)By official letter No. AL-DEST-CO-069-2019 of June 6, 2019, the Department of Studies, References, and Technical Services (Departamento de Estudios, Referencias y Servicios Técnicos) of the Asamblea Legislativa sent to the Comisión Permanente Ordinaria de Gobierno y Administración the list of mandatory consultations related to file No. 21.336 (see folio 118, Volume 1 of the legislative file).
• 5)By official letter No. TSE-1388-2019 of July 2, 2019, the President of the Tribunal Supremo de Elecciones issued an opinion on bill No. 21.336, requested by the Comisión Permanente Ordinaria de Gobierno y Administración of the Asamblea Legislativa (see folio 450, Volume 2 of the legislative file).
• 6)By official letter No. SP-146-2019 of July 3, 2019, the Corte Suprema de Justicia responded to the request for an opinion from the Comisión Permanente Ordinaria de Gobierno y Administración of the Asamblea Legislativa regarding bill No. 21.336 (see folio 496, Volume 2 of the legislative file).
• 7)By official letter No. SJD-885-2019 of July 5, 2019, the Board of Directors of the Caja Costarricense de Seguro Social sent to the Comisión Permanente Ordinaria de Gobierno y Administración of the Asamblea Legislativa the requested opinion regarding bill No. 21.336 (see folio 592, Volume 2 of the legislative file).
• 8)By official letter No. DJ-1110 of August 30, 2019, the Contraloría General de la República sent to the Comisión Permanente Ordinaria de Gobierno y Administración of the Asamblea Legislativa the requested opinion regarding bill No. 21.336 (see folio 1541, Volume 6 of the legislative file). (See folio 5802, Volume 20, opinion on the substitute text).
• 9)By official letter No. OJ-132-2019 of November 12, 2019, the Procuraduría General de la República sent to the Comisión Permanente Ordinaria de Gobierno y Administración of the Asamblea Legislativa the requested opinion regarding bill No. 21.336 (see folio 1975, Volume 7 of the legislative file and folio 3133, Volume 11). (See folio 5672, Volume 19, opinion on the substitute text).
• 10)On March 3, 2020, the Department of Technical Services (Departamento de Servicios Técnicos) of the Asamblea Legislativa sent to the Comisión Permanente Ordinaria de Gobierno y Administración the legal report on legislative file No. 21.336 “PUBLIC EMPLOYMENT FRAMEWORK LAW” (LEY MARCO DE EMPLEO PÚBLICO) (see folio 1993, Volume 7 of the legislative file).
• 11)By official letters Mideplán-DM-OF-0663-2020 and DM-620-2020, both dated May 18, 2020, the Ministries of the Presidency and of National Planning and Economic Policy (Ministerios de la Presidencia y de Planificación Nacional y Política Económica) sent to the Comisión Permanente Ordinaria de Gobierno y Administración of the Asamblea Legislativa the substitute text for the bill “PUBLIC EMPLOYMENT FRAMEWORK LAW” (LEY MARCO DE EMPLEO PÚBLICO), legislative file No. 21.336 (see folio 2069, Volume 7 of the legislative file).
• 12)On June 16, 2020, the Comisión Permanente Ordinaria de Gobierno y Administración of the Asamblea Legislativa approved a substantive motion for a substitute text for file No. 21.336 “PUBLIC EMPLOYMENT FRAMEWORK LAW” (LEY MARCO DE EMPLEO PÚBLICO) (see folios 2142 and 2255, Volume 8 of the legislative file).
• 13)In ordinary session No. 03 of the Comisión Permanente Ordinaria de Gobierno y Administración of the Asamblea Legislativa on June 16, 2020, a motion was approved to consult the substitute text of bill No. 21.336 with the public institutions and organizations indicated in the minutes (see folio 2256, Volume 8 of the legislative file).
• 14)On November 3, 2020, the Comisión Permanente Ordinaria de Gobierno y Administración of the Asamblea Legislativa approved another substantive motion for a substitute text for file No. 21.336 “PUBLIC EMPLOYMENT FRAMEWORK LAW” (LEY MARCO DE EMPLEO PÚBLICO) (see folios 4472 and 4589, Volume 15 of the legislative file).
• 15)On November 4, 2020, the Department of Studies, References, and Technical Services (Departamento de Estudios, Referencias y Servicios Técnicos) of the Asamblea Legislativa issued report No. AL-CJU-066-2020, called the Consultation Report “Publicity of Sessions” (Informe de Consulta “Publicidad de las Sesiones”) (see folio 4643, Volume 16 of the legislative file).
• 16)According to minutes No. 21 of November 4, 2020, the Comisión Permanente Ordinaria de Gobierno y Administración of the Asamblea Legislativa approved another substitute text (see folios 4648 and 4768 of Volume 16).
• 17)In ordinary session No. 22 of November 10, 2020, the Comisión Permanente Ordinaria de Gobierno y Administración of the Asamblea Legislativa approved a motion to publish the text of file No. 21.336 “Public Employment Framework Law” (Ley Marco de Empleo Público). Likewise, to carry out the mandatory consultations with the institutions and organizations (see folios 4859 to 4862, Volume 16 of the legislative file).
• 18)On November 10, 2020, the Department of Studies, References, and Technical Services (Departamento de Estudios, Referencias y Servicios Técnicos) of the Asamblea Legislativa issued Consultation Report No. AL-CJU-068-2020, called “Application of the Principle of Formal Correction of Procedure to Correct Essential and Non-Essential Defects in the Legislative Process” (“Aplicación del Principio de Corrección Formal del Procedimiento para Corregir Vicios Esenciales y no Esenciales en el Trámite Legislativo”) (see folio 4870, Volume 16 of the legislative file).
• 19)On November 10, 2020, the Comisión Permanente Ordinaria de Gobierno y Administración of the Asamblea Legislativa issued the affirmative minority report (folio 5263 and following, Volume 18 of the legislative file) and the affirmative majority report (folios 5432 and following, Volume 18 of the legislative file).
• 20)By official letter No. AL-DEST-CO-346-2020 of November 12, 2020, the Department of Studies, References, and Technical Services (Departamento de Estudios, Referencias y Servicios Técnicos) of the Asamblea Legislativa indicated to the Comisión Permanente Ordinaria de Gobierno y Administración the list of institutions to which mandatory consultations on bill No. 21.336 should be made (see folio 5187, Volume 17 of the legislative file).
• 21)On November 18, 2020, the Comisión Permanente de Gobierno y Administración delivered bill No. 21.336 “Public Employment Framework Law” (Ley Marco de Empleo Público) to the Legislative Directorate (Directorio Legislativo) (see folio 5567, Volume 18 of the legislative file).
• 22)In ordinary session of the Plenary No. 28 of January 21, 2021, the discussion on the merits began in the course of the first debate of file No. 21.336 “PUBLIC EMPLOYMENT FRAMEWORK LAW” (LEY MARCO DE EMPLEO PÚBLICO) (see folio 6851, Volume 25 of the legislative file).
• 23)On February 4, 2021, the Comisión Permanente Ordinaria de Gobierno y Administración of the Asamblea Legislativa delivered to the Secretariat of the Directorate the first report on motions via Article 137 for file No. 21.336 “PUBLIC EMPLOYMENT FRAMEWORK LAW” (LEY MARCO DE EMPLEO PÚBLICO) (see folio 6910, Volume 25 of the legislative file).
• 24)In plenary session No. 38 of February 18, 2021, 474 substantive motions were presented, which were referred to the Reporting Committee (Comisión Dictaminadora) (see folios 7574 and 7576, Volume 28 of the legislative file).
• 25)On March 10, 2021, the Comisión Permanente Ordinaria de Gobierno y Administración of the Asamblea Legislativa delivered to the Secretariat of the Directorate the second report on motions via Article 137 for file No. 21.336 “PUBLIC EMPLOYMENT FRAMEWORK LAW” (LEY MARCO DE EMPLEO PÚBLICO) (see folio 7661, Volume 28 of the legislative file).
• 26)In ordinary session No. 50 of the Legislative Plenary, on March 16, 2021, the Presidency asked the honorable deputies whether they would present motions for reiteration (Article 138 of the Regulations), which was confirmed by several honorable deputies (see folio 8895, Volume 35 of the legislative file).
• 27)In ordinary session No. 51 of the Legislative Plenary, on March 18, 2021, the Presidency issued a resolution on the admissibility of the motions for reiteration (see folios 8997 to 9004, Volume 35 of the legislative file).
• 28)In extraordinary session of the Plenary No. 83 of March 22, 2021, the appeal motion concerning the Presidency's resolution regarding the admissibility of the motions for reiteration was heard, and it was rejected. Likewise, the discussion of the motions for reiteration began (see folio 9341 to 9351, Volume 36 of the legislative file).
• 29)In extraordinary session of the Plenary No. 84 of March 23, 2021, the hearing of the motions for reiteration continued (see folio 9554 and 9731, Volume 38 of the legislative file).
• 30)In extraordinary session of the Plenary No. 85 of March 24, 2021, the hearing of the motions for reiteration continued (see folios 10046 and 10126, Volume 40 of the legislative file).
• 31)In ordinary session of the Plenary No. 052 of April 5, 2021, the presentation of review motions (mociones de revisión) was announced, and the hearing of the motions for reiteration continued (see folios 10329 and 10361, Volume 41 of the legislative file).
• 32)In extraordinary session of the Plenary No. 86 of April 6, 2021, the hearing of the motions for reiteration continued (see folios 10446, Volume 41 and folio 10497, Volume 42 of the legislative file).
• 33)In extraordinary session of the Plenary No. 87 of April 6, 2021, the hearing of the motions for reiteration continued (see folios 10616, Volume 42 and 10670, Volume 43 of the legislative file).
• 34)On April 6, 2021, the Department of Studies, References, and Technical Services (Departamento de Estudios, Referencias y Servicios Técnicos) of the Asamblea Legislativa issued the “Report on the Text Under Discussion in the Plenary for File No. 21336 Public Employment Framework Law: Connection, Constitutionality Aspects, and Procedure” (“Informe sobre el Texto en Discusión en el Plenario del Expediente N° 21336 Ley Marco de Empleo Público: Conexidad, Aspectos de Constitucionalidad y de Procedimiento”) (see folio 10799, Volume 43 of the legislative file).
• 35)In extraordinary session of the Plenary No. 88 of April 7, 2021, the hearing of the motions for reiteration continued (see folios 10996, Volume 44 and 11264, Volume 45 of the legislative file).
• 36)In extraordinary session of the Plenary No. 89 of April 7, 2021, the hearing of the motions for reiteration continued (see folio 11204, Volume 45 and folio 11250, Volume 46 of the legislative file).
• 37)In extraordinary session of the Plenary No. 90 of April 8, 2021, the hearing of the motions for reiteration continued (see folios 11345 and 11375, Volume 46 of the legislative file).
• 38)In extraordinary session of the Plenary No. 91 of April 8, 2021, the hearing of the motions for reiteration continued (see folios 11476 and 11532, Volume 47 of the legislative file).
• 39)In extraordinary session of the Plenary No. 92 of April 12, 2021, the hearing of the motions for reiteration continued (see folios 11648, Volume 47 and 11699, Volume 48 of the legislative file).
• 40)In extraordinary session of the Plenary No. 93 of April 12, 2021, the hearing of the motions for reiteration and review continued (see folios 12062 and 12212, Volume 50 of the legislative file).
• 41)In extraordinary session of the Plenary No. 94 of April 13, 2021, the hearing of the review motions continued (see folios 12359 and 12412, Volume 51 of the legislative file).
• 42)In extraordinary session of the Plenary No. 95 of April 13, 2021, the hearing of the review motions continued (see folios 12521, Volume 51 and 12583, Volume 52 of the legislative file).
• 43)In extraordinary session of the Plenary No. 96 of April 14, 2021, the hearing of the review motions continued (see folios 12761 and 12813, Volume 53 of the legislative file).
• 44)In extraordinary session of the Plenary No. 97 of April 14, 2021, the hearing of the review motions continued (see folios 12920 and 12981, Volume 54 of the legislative file).
• 45)In ordinary session of the Plenary No. 053 of April 15, 2021, review motions, order motions, were heard, and the substantive discussion of bill No. 21336 continued (see folios 13071 and 13090, Volume 54 of the legislative file).
• 46)In extraordinary session of the Plenary No. 99 of April 20, 2021, the hearing of the review motions continued (see folios 13133 and 13207, Volume 55 of the legislative file).
• 47)In extraordinary session of the Plenary No. 101 of April 21, 2021, the hearing of the review motions continued (see folios 13346 and 13389, Volume 56 of the legislative file).
• 48)In ordinary session of the Plenary No. 06 of May 18, 2021, a postponement order motion was presented and approved (see folio 13498, Volume 57 of the legislative file).
• 49)In extraordinary session of the Plenary No. 002 of May 19, 2021, an order motion was presented and approved authorizing an extraordinary session to be held on May 20, 2021 (see folios 13506 and 13508, Volume 57 of the legislative file).
• 50)In extraordinary session of the Plenary No. 003 of May 20, 2021, the hearing of the review motions continued (see folios 13514 and 13611, Volume 57 of the legislative file).
• 51)In ordinary session of the Plenary No. 07 of May 24, 2021, the hearing of all substantive and review motions for file No. 21.336 concluded. Finally, the Secretariat of the Directorate was instructed to carry out the mandatory consultations and order the publication of the bill (see folios 13770, 13773, and 13852, Volume 58 of the legislative file).
• 52)On May 25, 2021, the Department of Document Management and Legislative Archives (Departamento de Gestión Documental y Archivo Legislativo) sent the updated text of bill No. 21.336 to the Imprenta Nacional for publication (see folio 13949, Volume 58 of the legislative file).
• 53)By official letter No. AL-DSDI-OFI-0053-2021 of May 25, 2021, an opinion was requested on the updated text of legislative file No. 21.336 from the following public authorities: Corte Suprema de Justicia, Tribunal Supremo de Elecciones, Caja Costarricense de Seguro Social, Consejo Nacional de Rectores, public universities, Consejo Superior de Educación, and municipalities (see folio 13909, Volume 58 of the legislative file).
• 54)The updated text of bill No. 21.336 was published in the Diario Oficial La Gaceta No. 100, Supplement (Alcance) No. 105 of May 26, 2021 (see folio 13951, Volume 58 of the legislative file).
• 55)By official letter of May 28, 2021, the Contraloría General de la República responded to the request for an opinion regarding the updated text of bill No. 21.336 (see folio 14354, Volume 60 of the legislative file).
• 56)By official letter No. SCI-544-2021 of June 2, 2021, the Instituto Tecnológico de Cartago provided the requested opinion regarding the updated text of bill No. 21.336 (see folio 14436, Volume 61 of the legislative file).
• 57)By official letter No. OF-CNR-14-2021 of June 2, 2021, the Consejo Nacional de Rectores provided the requested opinion regarding the updated text of bill No. 21.336 (see folio 14538, Volume 61 of the legislative file).
• 58)By official letter No. SP-62-2021 of June 3, 2021, the Corte Suprema de Justicia responded to the request for an opinion regarding the updated text of bill No. 21.336 (see folio 14504, Volume 61 of the legislative file).
• 59)By official letter No. UNA-SCU-ACUE-136-2021 of June 3, 2021, the Universidad Nacional responded to the request for an opinion regarding the updated text of bill No. 21.336 (see folio 14566, Volume 61 of the legislative file).
• 60)By official letter TSE-1226-2021 of June 3, 2021, the Tribunal Supremo de Elecciones responded to the request for an opinion regarding the updated text of bill No. 21.336 (see folio 14642, Volume 62 of the legislative file).
• 61)By official letter No. REF-CU-2021-181 of June 4, 2021, the Universidad Estatal a Distancia responded to the request for an opinion regarding the updated text of bill No. 21.336 (see folio 14631, Volume 62 of the legislative file).
• 62)In ordinary session of the Plenary No. 14 of June 10, 2021, a motion to alter the agenda was approved so that legislative file No. 21.336 would occupy the first place before second debates, until its final vote (see folios 14751 and 14754, Volume 63 of the legislative file).
• 63)In ordinary session of the Plenary No. 15 of June 14, 2021, a postponement order motion was approved. The substantive discussion continued, in the first debate, of bill No. 21.336 (see folio 14794, Volume 63 of the legislative file).
• 64)In ordinary session of the Plenary No. 16 of June 15, 2021, a postponement order motion was approved. The substantive discussion continued, in the first debate, of bill No. 21.336 (see folios 14849 and 14851, Volume 63 of the legislative file).
• 65)In ordinary session of the Plenary No. 17 of June 17, 2021, a postponement order motion was approved. The discussion in the first debate of bill No. 21.336 continued and concluded, being approved with 32 votes in favor and 15 against (see folios 14922, 14926, and 14947, Volume 64 of the legislative file).
• 66)On June 17, 2021, the optional consultation on constitutionality No. 21-011713-0007-CO was filed with the Secretariat of the Sala Constitucional, concerning legislative file No. 21.336 “Public Employment Framework Law” (Ley Marco del Empleo Público) (see folio 14965, Volume 64 of the legislative file).

Now, the specific objections of constitutionality raised in this regard are the following:

-Violation of the right of amendment, by having declared inadmissible motions for reiteration 18, 231, and 250, as they were substantive motions that, although they were approved by the reporting committee, were subsequently modified: The deputies consider, for example, that motion 138-231 was declared inadmissible despite the fact that the proponent indicated to the Presidency in her appeal that, although the substantive motion that was reiterated was approved, another motion was subsequently approved that rendered the previous one void. The deputy proponent of motion 138-18 expressed a similar view; however, the Presidency did admit motion 138-345, which reiterated motion 122-137, which was also approved by the Comisión de Gobierno y Administración in extraordinary session No. 02 of January 26, 2021. That deputy was able to defend the motion, and it was newly approved in extraordinary session of the Plenary No. 93.

-They consider that the resolution by which it was ordered to partially accumulate the motions for reiteration exceeds the provisions of Articles 27 and 138 of the Legislative Regulations and violates the right to democratic participation, amendment, and reasonableness: The deputies consider that motions that matched were not accumulated, such as: motions for reiteration 184 and 251 which reiterate substantive motion 102, motions for reiteration 194 and 270 which reiterate substantive motion 355, motions 138-195 and 138-271 which reiterate substantive motion 310, and motions 138-130, 138-273 which reiterate substantive motion 433, and motion 344 which should have been accumulated to motions for reiteration 198 and 272. They deem the accumulation to be improper in subsection 4 of motion 138-154, as this motion sought to modify Article 2 and add Article 3, while the others only proposed adding Article 3. They add that, at the conclusion of the hearing of the motions for reiteration, the president brought motion 138-154 to the attention, giving the floor to the proponent for its defense and submitting it to a vote of the Plenary, unilaterally modifying the resolution.

-Violation of the right of amendment and democratic participation of Deputy Paola Vega Rodríguez: They assert that, despite motion for reiteration 138-210 having been admitted, as it does not appear in the questioned resolution that it was not, nor that it was accumulated with other motions, the Presidency did not bring it to the attention of the Plenary, and therefore its subsequent vote was omitted. They state that the proper course was to hear motion 138-210 after motion 138-207 (since motions 13-208 and 138-209 were withdrawn by their proponents) in extraordinary session No. 88, held on April 7, 2021.

• 2)Regarding the jurisprudence of this Chamber on substantial procedural defects and the rejection of motions.- The issue of substantial defects in parliamentary procedure has been analyzed on several occasions by this Chamber. Constitutional jurisprudence has indicated in general that the internal regulatory power of the Asamblea Legislativa can be exercised freely and autonomously, as long as, of course, it does not conflict with constitutional provisions, principles, or values. The power of Parliament to dictate the rules of its own internal governance (interna corporis) is not only provided for by the Constitución Política in its Article 121, subsection 22, but is also inherent to the democratic system and specific to the Asamblea Legislativa as a constitutional power, pursuant to Title IX of the Constitution (Carta Fundamental). This power is intrinsic to the Asamblea Legislativa, which develops it with absolute independence from the other organs of the State, by virtue of the principle established in Article 9 of the Constitution (Carta Fundamental). However, like any power, its exercise is subject to limitations, which are: compliance with the Law of the Constitution (Derecho de la Constitución), that is, the set of constitutional values, principles, and norms. In recognition of this “interna corporis,” this Chamber has recognized that its function in matters of legislative procedure is solely to declare those substantial defects that violate the constitutional principles and values applicable to the matter; otherwise, it would be affecting the self-regulatory and functional capacity of parliament (interna corporis), distorting its role as guardian of constitutional supremacy into that of a kind of ad hoc senate. Thus, the intervention of this Constitutional Jurisdiction would be legitimate only in the face of evident or gross violations of the constitutional principles that govern parliamentary law. Therefore, the defects controllable by the Chamber are those that refer to the violation of a "substantial" requirement or procedure provided for in the Constitution or, where applicable, established in the Regulations of the Asamblea Legislativa. The intervention of the Chamber in matters of legislative procedure, as indicated, should only occur in the case of the use of these powers with evident abuse of power, resulting in the annulment of a right and not in its harmonization with the rest of the constitutional principles of parliamentary law. Subsequently, specifically regarding the right of amendment of the deputies, this Chamber has stated that the participation of the deputies in the Comisiones Permanentes Ordinarias is regulated in Articles 123 and 124 of the Regulations of the Asamblea Legislativa, which recognize the right of any deputy to present written motions "that they deem as a reform applicable to each project," and substantive motions may be processed from the date of publication of the bill and as long as it has not been voted on in the corresponding Committee. Substantive motions are those proposals by deputies intended to modify the bill on its merits. That is, the contribution of each deputy in the law-making process is exercised through a written proposal that seeks to improve, clarify, modify, suppress, or add to the normative propositions included in subsections, articles, sections, chapters, or titles of a bill, which signifies the possibility of influencing and determining the content that is finally approved by the Asamblea Legislativa, and constitutes the exercise of a right of all members of said Power, the right of amendment, which in turn defines one of the essential aspects of legislative activity and of our democratic regime. Like every right, it has its limits, among which is respect for the principle of connection (principio de conexidad), which in turn guarantees the right to initiative in the formation of the law and the due publicity of the proposal. Now, specifically regarding the rejection of motions, this Chamber has resolved the following:

-The power to move motions (facultad de mocionar) that the Regulations of the Asamblea Legislativa grant to all deputies has the purpose of ensuring the possibility of participation for all the groups that comprise it, allowing them to broadly exercise their role as shapers of the law, whether they are in the "situation" or in the "opposition" regarding the majority's opinion, due to their character as representatives of the people (Article 105 of the Constitution).

The only admissible limits to this power are those expressly set forth in the Political Constitution, or in the Regulations of the Legislative Assembly, provided that in the latter case they do not excessively restrict the right of every deputy to present motions, affecting the essential core of said authority (see judgment No. 2000-003220).

The Presidency of the Committee may, in the interest of streamlining discussion and debate, even on its own initiative, group together motions that are closely connected, identical in content, or when they are reasonably equivalent or reiterate other motions pending resolution or already resolved, as well as reject those that do not conform to what is established. If the resolution lacks reasoning, the Deputy may file an appeal in the case so that the defect may be corrected (see judgments No. 2007-002901 and 2007-009699).

The power of the president to reject motions must be understood restrictively and solely with respect to matters of form, timeliness, or reasons of evident inadmissibility (see judgment No. 2005-007428).

A substantial defect in the legislative procedure that violates the right of amendment and participation arises when admitted motions are not submitted to a vote (see judgment No. 2008-004569).

In conclusion, it follows from all of the foregoing that the power of all deputies of the Legislative Assembly to present motions admits only those limits expressly set forth in the Political Constitution, or in the Regulations of the Legislative Assembly, provided they do not excessively restrict or affect the essential core of said authority (the deputy's right of amendment). Therefore, it is possible for the president of the Legislative Assembly to consolidate motions, by means of a reasoned resolution.

• 3)Regarding the matter consulted.- Based on the foregoing jurisprudence, we proceed to examine the matter consulted regarding procedural defects. Specifically, the following three points are consulted regarding the resolution adopted by the Presidency on the admissibility of reiteration motions, adopted in ordinary session No. 51 of March 18, 2021:

-Declaring reiteration motions inadmissible because they were substantive motions already approved in Committee. -Grouping together some reiteration motions considering them identical, but not grouping others that were. -Not bringing an admitted motion to the attention of the Plenary.

In this regard, the following is observed from the legislative file:

Indeed, in ordinary plenary session No. 51 of March 18, 2021, the President of the Legislative Assembly issued a resolution on the admissibility of reiteration motions, in which three points are developed (see folios 8997 to 9017, Volume 35 of the legislative file), this analysis referring only to the first two, of interest for this study”:

Reiteration motions identified with numbers 18, 231, and 250 were deemed inadmissible, as they corresponded to substantive motions that were approved in the advisory committee. The discussion of several reiteration motions was grouped together, considering them “identical, similar, or reasonably equivalent.” They would be discussed in a single act but voted on individually.

-Regarding the reiteration motions declared inadmissible on the grounds of being considered approved in Committee: Upon review of the file, the appeal filed against the rejection of motion 138-231 by Deputy Vega Rodríguez and 138-18 by Deputy Abarca Mora is verified, as well as the general appeal by Deputy Welmer Ramos (the deputy who proposed motion 138-250). The foregoing is relevant because the Chamber has determined that procedural defects must be pointed out at the time, in order to later be consulted upon in the constitutional consultation filed. Given the appeal filed on these motions, their examination is appropriate. There would indeed be an arbitrariness and consequent substantial defect if it were proven that motions 138-18, 138-231, and 138-250 were approved in Committee, but that another motion subsequently approved in committee "superseded them" and then the possibility of reiterating them was rejected. However, in the case of motions 138-231 and 138-250, the filing brief for the consultation does not clearly indicate which other motion superseded them or at what procedural moment this occurred. In total, 777 substantive motions were examined and 352 reiteration motions were filed. This would imply that the Chamber itself must review all substantive motions approved after the substantive motion referenced in reiteration motions 138-231 and 138-250 were approved, in order to find, based on their content, the alleged motion that later rendered them void, a review that is, clearly, inappropriate for this Chamber to undertake. This Tribunal has repeatedly stated that the filing brief must express not only the articles of the bill whose constitutionality is being questioned or consulted, but must also state clearly and sufficiently the reasons why a provision of the bill might be unconstitutional, otherwise the consultation would be inadmissible (see, in this regard, judgments No. 1995-5399-95, 1995-5544, 1999-7085, 2001-11643, and 2012-9253). As for the case of motion 138-18, the petitioners substantiate the defect when they cite what Deputy Abarca Mora stated upon appealing the following:

“…That motion refers to motion 329 from the second day of motions and that upon the approval of motion 80 or 81 from the second day of motions, it would essentially be dropped from the text despite having been approved and that is why you are excluding it; on repeated occasions in the Plenary, approved motions have been accepted and admitted precisely to preserve the legislator's intent and in this case I call your attention to the fact that if you reject my motion and motion 80 or 81 from the second day is approved, we could harm the bill and erase something that is currently in the base text…”.

That is, the admission of a reiteration motion for a motion already approved in Committee is requested to ensure it will not be subsequently modified. However, although the argument was substantiated in this case, this Chamber cannot sustain a procedural defect based on an uncertain supposition, namely, that motions might be approved that could probably supersede it. The appropriate course in such cases is for the interested deputy, during the reiteration motion for the motion that might supersede it, to defend the approved text so that said reiteration motion is rejected. And if the Plenary decides to rule against it, that would be the majority decision. It should be noted that it has not been demonstrated that admitting reiteration motions based on the fear that another motion might replace it is a parliamentary custom. Furthermore, as recorded on folio 11458 of the legislative file, Deputy Abarca himself voted in favor of the motion that he claimed affected his own.

-Regarding the improper grouping of reiteration motions: Only the possible defect of improper grouping of motion 138-154 is examined, as it pertains to an aspect directly related to the right of amendment of the deputies. The other arguments, regarding other motions that should have been grouped and were not, constitute a decision by the Presidency that rather favors the right of amendment and therefore cannot be considered a substantial defect, so their examination in this venue is not appropriate. That being said, it is recorded that reiteration motion 154 was filed by Deputy Villalta (see folio 9308, Volume 36 of the legislative file). This motion was grouped together with motions 13, 138, 179, 180, 181, 246, 247, 248, and 349, by the presidency of the Legislative Assembly, “due to an evident connection in the purposes sought by the proponents” (see folio 8983, Volume 35). The appeal of the grouping of motion 138-154 is recorded, based on the fact that it proposes modifying two articles (art. 2 and art. 3). As the proponent pointed out in the appeal, said motion proposes to reiterate the substantive motion seeking to modify article 2 and add article 3 of the bill, while the rest of the grouped motions only propose adding article 3. In this regard, it is verified that the president of the Assembly decided to bring it to attention, indicating that: “this is a correction that must be made due to improper grouping of motions. So we must proceed to hear motion 154, by Mr. José María Villalta Flórez-Estrada//. Consequently, motion 154 is under discussion and Deputy Villalta Flórez-Estrada will take the floor.” Thus, in this case, despite the initial improper grouping, it was later put up for discussion separately and the proposing deputy was able to take the floor to defend it. Therefore, no procedural defect whatsoever is evident in this aspect, because the situation was corrected at the time, as the petitioners themselves indicate in their filing brief.

-Regarding the failure to discuss reiteration motion 138-210: A violation of the right of amendment and democratic participation of Deputy Paola Vega Rodríguez is alleged, given that, although reiteration motion 138-210 was admitted, it is not recorded in the challenged resolution that it was not, nor that it was grouped with other motions; the Presidency did not bring it to the attention of the Plenary, and its subsequent voting was therefore omitted. Upon reviewing the resolution of the presidency of that body, it is found that, in effect, motion 138-210 was neither rejected nor grouped, but from this Chamber's examination of the legislative file, doubt arises as to whether the proponent had the will for it to be discussed. The motion sought to modify subsection c) of article 13 or its equivalent article if the numbering were to vary, to read:

“ARTICLE 13- General Public Employment Regime c) Public servants performing police functions, in accordance with article 6 of the General Police Law, No. 7410, of May 26, 1994, article 2 of the Organic Law of the Judicial Investigation Agency (OIJ), No. 5524, of May 7, 1974, and chapter IX of the Municipal Code, No. 7794, of April 30, 1998.” It was possible to verify that in volume 45, folios 11214 and 11215, this motion appears with a stamp reading “withdrawn” and signed by Deputy Vega, dated April 7. Then, upon reviewing extraordinary session No. 88 of the Plenary, held on April 7, 2021, the president only mentioned that Deputy Vega had withdrawn motions 166, 195, 201, 224, 172, 192, 194, 195, 196, 199, 200, 205, 206, 208, 209, 211, 212, 213, 214, 224, 228, 229, 230, 169, 175, 176, 177, 184, 202, and 221. Thus, a contradiction is verified between the motion with the “withdrawn” stamp bearing the signature of Deputy Vega herself, and then what is recorded in the minutes where reference to such motion as withdrawn is omitted. Beyond the fact that it is a matter outside this Chamber's purview to determine in this case which act has greater validity, whether the withdrawn stamp with the deputy's signature or what is recorded in the minutes, it is not observed that Deputy Vega pointed out or manifested the situation before the Plenary. As stated supra, procedural defects must be pointed out at the time, to later be raised via a constitutional consultation. In this case, as stated, there is no record that Deputy Vega pointed out the defect; on the contrary, her signature is observed on the motion's “withdrawn” stamp. This being the case, its lack of discussion cannot be considered a substantial procedural defect.

• 4)Conclusions 1) No substantial procedural defect is found regarding the argument of inadmissibility of motions 138-231 and 138-250, because the filing brief for this consultation did not substantiate which motion modified and "superseded" them; and regarding the inadmissibility of motion 138-18, because it was based on an uncertain fact (the probability that another motion would supersede it).
• 2)No substantial procedural defect is found regarding the argument of improper grouping of motion 138-154, because, although it was improperly grouped initially, the president of the Assembly subsequently ungrouped it and allowed its separate discussion.
• 3)No substantial procedural defect is found regarding the argument of the failure to discuss motion 138-210 by Deputy Paola Vega, because said motion appears in the legislative file with a withdrawn stamp and the signature of the proposing deputy.

VII.- Regarding the substantive defects consulted and regarding the consulted bill in general.- Regarding the consulted bill, called "PUBLIC EMPLOYMENT FRAMEWORK LAW", processed in legislative file No. 21.336, the three optional legislative consultations filed by the deputies were admitted. All of which were consolidated into this main file. Grouping all the substantive aspects consulted, it is found that six of them refer to the scope of coverage of the bill (regarding the inclusion of the Judicial Branch, the Supreme Electoral Tribunal, the Public Universities, the Costa Rican Social Security Fund, the Municipalities, and the Autonomous Institutions) and to other issues such as conscientious objection, the right to collective bargaining, the sanction of disqualification, the global salary, and due process. Each of these issues will be analyzed separately in the following recitals. However, by way of contextualization, it is appropriate to provide a general explanation of the consulted bill. Regarding the justification given in the statement of motives of this bill (see base text), it is indicated that it “aims to be a cornerstone to channel the public service towards a more homogeneous legal framework, aimed at reducing the distortions generated by fragmentation, in a context of effectiveness and efficiency.” The foregoing because it is considered that: “The State must regulate the relationship with public servants, under general norms and principles that govern the entire public institutional framework, safeguarding the independence of branches of government and the particularities of the sub-regimes of public employment, … but always, seeking at all times the satisfaction of the public interest, guaranteeing that citizens receive quality and timely goods and services.” Furthermore, it is indicated that Law No. 9635, Law for the Strengthening of Public Finances, already granted the stewardship of public employment to the Ministry of National Planning and Economic Policy, in article 46 of title III, thereby seeking to revive the spirit of the constituent power. Finally, it is indicated in this statement of motives that, “This Public Employment Framework Law bill seeks to comprehensively address the recommendations issued by different national and international bodies, such as the Office of the Comptroller General of the Republic and the Organization for Cooperation and Development.” Following this, reference is made to those recommendations, indicating in the case of the OECD the recommendation to gradually migrate towards a single-salary scheme for new officials; and in the case of “the Office of the Comptroller General of the Republic has drawn attention to the need to review the compensation scheme, mainly those salary incentives that generate disparities between the same types of positions, as is the case of seniority bonuses.” Furthermore, “the need to link incentives to performance evaluation mechanisms and their continuous review.” Then, based on those reasons, the bill aims to create a Public Employment Framework Law, in a text of 50 articles and 15 transitory provisions, to take effect one year after its publication. In 10 chapters, aspects such as the following are regulated:

CHAPTER I. GENERAL PROVISIONS CHAPTER II. PUBLIC EMPLOYMENT GOVERNANCE CHAPTER III. PUBLIC EMPLOYMENT PLANNING CHAPTER IV. WORK ORGANIZATION CHAPTER V. EMPLOYMENT MANAGEMENT CHAPTER VI. DEVELOPMENT MANAGEMENT CHAPTER VII. PERFORMANCE MANAGEMENT CHAPTER VIII. COMPENSATION MANAGEMENT CHAPTER IX. LABOR RELATIONS MANAGEMENT CHAPTER X. MISCELLANEOUS PROVISIONS Within the articles, the following stand out. The objective of the law would be “To regulate the statutory, public employment, and mixed employment relationships between the Public Administration and public servants (…) in accordance with the constitutional imperative of a single public employment regime (…)” (art. 1). Including, within its scope of coverage, the entire state apparatus, centralized and decentralized (art. 2). Proceeding to exclude, basically, non-state public entities, the Fire Department, and public enterprises in competition (art. 3). Then, in chapter II, a General Public Employment System is created, whose stewardship shall be the responsibility of the Ministry of National Planning and Economic Policy (Mideplán), establishing in art. 7 all its powers in a broad list that includes, from establishing public policies, programs, and national public employment plans; issuing provisions of general scope, directives, and regulations; issuing general guidelines and principles for performance evaluation; and establishing a single, unified compensation system for the public function; among others. Then, chapter IV indicates the existence of a single general public employment regime, composed of eight job families (art. 8). Establishing general rules for the entire new-hire recruitment and selection process (art. 15) and a single dismissal procedure (art. 21). Likewise, some general rules on performance evaluation (art. 29) and on salary (art. 30), with the establishment of a unified salary regime for the entire public service (art. 35). Finally, general rules are established for issues such as vacations (art. 38), and leave; in addition to miscellaneous provisions, such as, for example, regarding collective bargaining (art. 43).

VIII.- General recital.- (drafted by Justice Castillo Víquez) In the Constitutional State of Law, every infra-constitutional norm must be read, interpreted, and applied in accordance with the Law of the Constitution (values, principles, and norms). Starting from this perspective, the analysis of the consulted bill shall be carried out adopting the foregoing as a frame of reference, such that an integral reading shall be made, bearing very much in mind the principle of separation of powers or functions, as well as the constitutional principles that regulate administrative decentralization, especially the degrees of autonomy possessed by entities decentralized by region and service to fulfill their constitutionally assigned purposes.

A good part of the consulted questions implies carrying out an analysis of the relationship between the law -the exercise of the legislative power- and the principle of separation of powers, the independence of these in the exercise of their exclusive and excluding powers, university and municipal autonomy. One must not lose sight of the fact that there is no compartment or area of exclusion from the law regarding the exclusive and excluding powers of the Supreme Court of Justice, the Supreme Electoral Tribunal, the State Universities, and the municipalities. Proof of what we have been affirming is the existence of the constitutional consultation regulated in articles 88, 98, 167, and 190 of the Constitution. In other words, if the original constituent power had wanted to exclude the branches of the State and the decentralized entities from the power to legislate, it would not have established the constitutional consultation when the Legislative Assembly, in exercise of the legislative power, intends to regulate the organization and functioning of those branches and entities. In the case of the municipalities, although it did not expressly establish the constitutional consultation -for the majority of this Tribunal it did-, the fact of the matter is that in local matters, where political autonomy applies in accordance with articles 169 and 170 of the Constitution, the Parliament, in exercise of the power to legislate, can regulate municipal organization and powers.

Another issue that must necessarily be addressed, starting from the fact that the Legislative Assembly, in exercise of the power to legislate, has constitutional competence to regulate the organization and functions of the branches and decentralized entities, not to suppress the self-organizational or self-regulatory autonomies -in the case of state universities-, the political -in the case of municipalities and the CCSS-, and the administrative -in the case of autonomous institutions-, is whether, regarding a typically administrative function -public employment- in relation to certain job positions directly linked to exclusive and excluding powers, it may or may not affect them, those derived from those degrees of independence, that is, positions related to the competence in matters where there is exclusivity in their exercise, which must be defined exclusively and in an excluding manner by the constitutional bodies and entities with constitutionally assigned purposes and for which they are endowed with degrees of autonomy with constitutional basis. This means that the legislator has a limit in the exercise of the power to legislate, as it cannot suppress them, or affect them in their essential elements, nor transfer them to other entities or bodies.

It must be borne in mind that in a unitarily concentrated State like the Costa Rican one, all public entities are subject to the principle of state unity, since autonomy does not mean sovereignty, but simply and plainly independence in the exercise of exclusive and excluding powers. Regarding the principle of state unity, it has been affirmed that regardless of the degree of autonomy a decentralized entity may have, it is closely linked to the State by a series of principles and norms that are in the Law of the Constitution, for example, articles 11, 48, 49, 182, 184, and 192 of the Constitution, which establish the principles of legality, accountability and transparency, the unrestricted respect for fundamental rights and subjective public rights and their effective judicial protection in the constitutional and contentious-administrative jurisdictions, the principles and procedures of administrative contracting, the approval and oversight of budgets by the Office of the Comptroller General of the Republic and the control of this body of constitutional relevance over the use of public funds, submission to the core principles of the civil service, etc. In this direction, it is not unconstitutional for the legislator to subject the entire Public Administration to a public employment framework law, provided it rigorously observes the principles of separation of powers and does not empty the content of the degrees of autonomy that the Law of the Constitution grants to the state universities, the CCSS, and the municipalities.

It is not possible to overlook that all activity related to appointments, evaluations, disciplinary regime, salary caps, job evaluation, compensation management, job classification, salary scales, etc., is a typically administrative activity. Nor can it be ignored that the branches of the State, excluding the Executive Branch -following a subjective criterion, it is the one that carries out administrative activity by nature, article 1 of the General Law of Public Administration-, exceptionally carry out administrative activity –objective criterion, article 2, subsection b) of the Contentious-Administrative Procedure Code-, as occurs with the matter of public employment. The keystone lies in determining whether there are administrative activities in this area that are indispensable to guarantee the exclusive and excluding powers of the branches of the State. The answer is affirmative, in the sense that, although it is an administrative activity, its exercise corresponds to the constitutional bodies and public entities that enjoy autonomy grade three and two. Which means that those bodies and entities are called upon to abide by the principles and postulates established in the Law, but with the particularity that it is these to whom it corresponds to apply it and strictly adhere to what is established. This position makes it inadmissible, from the constitutional perspective, for the Executive Branch or another of its bodies to exercise a power of hierarchy, direction, or internal regulation over the branches of the State, the state universities, the CCSS, and the municipalities.

According to the design of distribution of powers, which responds to the principle of separation of powers and the degrees of autonomy established by the original constituent power in favor of the constitutional bodies –branches of the State– and public entities decentralized by region –municipal corporations– and services –state universities and the CCSS–, it is clear that the power of direction that corresponds to the Executive Branch or one of its bodies –Mideplán– is incompatible with that constitutional principle and the degrees of autonomy that certain entities enjoy. In other words, the power to issue directives –special mandates that order the activity of a body or an entity, setting goals and objectives, but not a specific act– is not constitutional when it affects or impacts the exclusive and excluding powers of the other branches of the State or the constitutionally assigned purposes of entities with a corporate or institutional basis that enjoy a degree of autonomy three –self-organizational or regulatory– or two –political– or in those administrative activities necessary for the exercise of those powers. Starting from this cardinal idea, it is clear that in the matter of public employment, regarding the personnel of the branches of the State and the entities decentralized by region and service, those who exercise such powers –jurisdictional, para-jurisdictional, electoral– or participate in the public management related to the constitutionally assigned purposes of the aforementioned entities, as well as the administrative support, professional, or technical personnel defined, exclusively and in an excluding manner, by each branch and entity, cannot, in any way, fall under the direction power of the Executive Branch or of Mideplán. There is, then, a hard core, an area unavailable to the Executive Branch, which cannot be ordered in its activity, much less through the exercise of the regulatory power, which corresponds exclusively to each branch of the State and each public entity.

That said, the foregoing does not mean that all the officials of the branches of the State and the entities cited above are excluded from the power of direction. In the case of basic, auxiliary administrative services that do not impact the exclusive and excluding powers or administrative functions necessary for their fulfillment, each branch of the State and entity must define, exclusively and in an excluding manner, which of these may be subject to the power of direction.

Therefore, based on the principle of separation of powers or functions and the degrees of autonomy constitutionally guaranteed to each entity, it is the exclusive and excluding responsibility of their highest bodies – Corte Plena, Consejo Superior del Poder Judicial, Tribunal Supremo de Elecciones, Consejos Universitarios, Rectorías, Junta Directiva and Presidencia Ejecutiva of the Caja Costarricense de Seguro Social, Concejo and Alcaldes Municipales – to establish which basic, auxiliary, common administrative services, similar to those throughout the Public Administration, would be subject to the directive and regulatory powers of the Executive Branch.

Ergo, as the bill does not establish that safeguard – a clear and precise rule – in this regard, this Court concludes, as will be explained further on, that there is a series of unconstitutionality defects that violate judicial and electoral independence and the autonomies of the State universities, the CCSS, and the Municipalities.

In another order of ideas, the deputies must also be clear that everything pertaining to the civil service of the branches of the State and the entities with assigned constitutional purposes that they establish as part of their powers – constitutional or administrative – relating to the construction of the family, the grades thereof, the work valuation methodology, the relevant work factors to be assigned, the minimum and maximum salary for each column, the technical bases for setting salaries, the descriptive manual for each position, the performance evaluation (evaluación del desempeño), etc., corresponds, exclusively and excludingly, to each of these to define, as will be explained when analyzing the rules challenged as unconstitutional in the admitted consultations.

No less important is the fact that matters referring to performance evaluation (evaluación del desempeño) and the exercise of disciplinary power are reserved to each branch of the State and to the aforementioned entities, since these powers are consubstantial to the exercise of their constitutional powers or to the realization of their constitutionally established purposes. This means that, with respect to these matters, all the civil servants of each branch and entity are subject to the internal provisions that each of these dictates in this regard.

One last issue, before referring to each grievance raised by the consulting parties, and that is that in judgments number 1992-1696 of 15:30 hours on August 23, 1992, 2018-14905 of 12:30 hours on September 7, 2018, and 2018-231 of 11:00 hours on January 10, 2018, reiterated in 2019-14347, it was reaffirmed that the existence of different labor regimes in the public administration is feasible, provided they are governed by the common principles of suitability and job stability, such as the statutory regime (régimen estatutario). This Court has indicated that our original constituents recorded in the 1949 Constitution that there should be an administrative labor regime regulating relations between public servants and the State, in order to protect the former from arbitrary dismissals (job stability) and to professionalize the public function (seeking efficiency in the service and suitability of the official). The purpose of such a task was to ensure that the Public Administration had organizational factors allowing it to satisfy the citizens' right to the proper functioning of public services. In light of this, it was constitutionally provided that the procedure for selecting and appointing a servant in the Public Administration must comply with the fundamental principles set forth in articles 191 and 192, with which suitable personnel to occupy a public post are sought, for the purpose of guaranteeing efficiency and effectiveness in the public function.

A civil service (servicio civil) regime is envisioned, not as a corporate privilege, but as a guarantee of institutional impartiality, which regulates the public function, guarantees the selection of personnel based on criteria of merit and capacity, as well as on a fair balance between the rights and responsibilities of public employees. It has also been indicated that said legislation must provide instruments that facilitate the planning, organization, and more efficient use of their personnel for the different administrations. Hence, the public employment labor relationship is subject to certain specificities and principles, such as merit and capacity in access, and also to certain public law rules, such as the incompatibilities regime, which guarantee objectivity and impartiality in the provision of the public service.

It was established that the original Constituents, when discussing the titles referring to the Autonomous Institutions and the Civil Service, considered raising them to the constitutional level with the desire – on one hand – to deconcentrate the executive's power with respect to the new functions entrusted to the State, and its political-electoral influences on their functioning. On the other hand, they considered the serious effects caused by changes of government on Public Administration personnel given the lack of an adequate legal instrument to protect them. In those precedents, the following analysis carried out based on the minutes of the Constituent Assembly was highlighted:

"Representative Facio expressed that everyone agrees that someday the employees of the Public Administration must be covered by an adequate Civil Service Law (Ley de Servicio Civil). They also agree that a law of this nature is very complex and cannot be enacted overnight, or all at once. It is necessary to adapt it little by little to the national reality and conveniences. He added that in the 49 Project they incorporated a special chapter on the Civil Service, some of whose provisions they will submit to the knowledge of the Chamber in due course. In the Project, the administrative career is constitutionally established, so that the past events, when employees were removed from their posts by simple political maneuvers, do not happen again in our country. However, those from the Drafting Committee of the Project realized the difficulty of establishing the Civil Service Law in Costa Rica. That is why they solved the problem through a transitory provision, drafted in the following terms:

"The provisions of Title XIII shall come into force on the same day as the Civil Service Law, which shall be applied gradually, in such a way that within a period (sic) of no more than ten years, it covers the totality of public servants." (Volume III, Minutes of the National Constituent Assembly No. 132, pp. 120 and 121). - Said motion – to include two subsections in article 140 of the Political Constitution – was submitted to a vote, resulting in a tie, so it had to be heard and voted on in the following session. Regarding the second proposed subsection, it was rejected. - III In accordance with the above, after extensive discussions, article 140, subsection 1… was approved. For all of the above, it was provided for article 140, subsections 1) and 2) of the Political Constitution, the final approval of article 140.-X of the Transitory Provisions, establishing that:

"The Civil Service Law shall not come into force before November 8, nineteen hundred and fifty nor after June 1, nineteen hundred and fifty-three, as agreed by the Legislative Assembly. Said law may also provide that its rules be applied gradually to the various departments of the Public Administration; in any case, said law must protect the totality of public servants included in the second subsection of article 140, no later than November 8, nineteen hundred and fifty-nine. As long as the Civil Service Law does not come into force, the President of the Republic and the respective Minister of Government may freely appoint and remove all officials of their dependency, including the Directors and Managers of the Autonomous Institutions and the members of the Boards and official bodies, whose appointments had been made prior to the effective date of this Constitution, even when such designations were for a fixed period." V After the Chapter on Autonomous Institutions was approved, the constituents began to hear the Title and Single Chapter on the Civil Service, articles that defined the scope of application and its principles. At that time, many public servants were removed from their posts to make room for supporters of the new government, damaging the functioning of the public administration. Precisely to combat this evil, a group of constituents advocated for the creation of that legal instrument in order to provide the Public Administration with greater administrative and functional efficiency. The first article proposed established that "A Civil Service statute (estatuto de Servicio Civil) shall regulate the relations between the State and public servants, with the purpose of guaranteeing the efficiency of the services, which shall be performed with a technical criterion and by strictly necessary personnel." Deputy Fournier summarized the purpose of the statute, saying it was to regulate the relations between the State and its public servants. This had – as expected – reactions of support and resistance from some deputies, including Representative Esquivel who considered its inclusion unnecessary because article 140, subsections 1) and 2) of the Political Constitution existed, a number already approved by the National Constituent Assembly. Despite the cited resistance, it is clear that the issue had not been exhausted with the mere approval of those subsections, since even the statutory regime (régimen estatutario) was expanded in its concept. Thus, during the discussion of article 192, Deputy Fournier highlighted:

"It is essential to state the essence of the Civil Service Law, that is, that no employee may be removed from their post, except for grounds for dismissal established by the Labor Code, or in the case of forced reduction of services due to absolute lack of funds or to achieve a more effective and economical organization thereof. Both the employee and the State are guaranteed." It was highlighted in the supra-referenced discussion that the mere enunciation of the Civil Service Law in the Political Constitution was not enough, but that it was necessary to cite the fundamental principles of the public function statute, the method of appointment based on proven suitability, and its removal, through predetermined legislation such as labor legislation, or for cases of forced reduction of services, whether due to lack of funds or to achieve a better organization thereof. However, this Chamber warned that what was proposed by the Executive Branch before the Legislative Assembly on April 14, 1953, according to case file No. 1581, was a project that circumscribed only its officials within its scope of competence, even though the will of the Constituent was to approve a statute for the State, which produced the consequences and applicative interpretations of a regulation outside of what was intended by the Constituent. The following was explicitly warned:

“VI… It is clear that the constituent's intention was to create an administrative labor regime. From reading the minutes of the National Constituent Assembly, the figure of the public employee and the private worker is distinguished. There is no doubt that the absence of a legal regime that appropriately regulates the relations between the State and its servants violates article 191 of the Political Constitution, which also leads to the violation of article 11 of the Magna Carta…

VII.On one hand, the Law that was issued (Civil Service Statute) has partial scope, since the initiative taken by the Executive Branch in this regard only had the purpose of regulating relations with its servants, that is, within its scope of competence. From this angle of approach, the regulation of service relations between the minor public entities has been left out, since it was something in which the Executive had no interest, or simply was not what it considered most urgent. On the other hand, the Civil Service Statute barely regulated some aspects of the relationship of servants with the State such as those related to rights, duties of servants, their selection, classification, promotion, transfers, discipline, and dismissal regime – among the most important – which evidently concern one of the concerns expressed in the National Constituent Assembly, that is, the one relating to the suitability and efficiency of the service, but it did not touch upon other no less important aspects, such as the one underlying the approach of this action, that is, the regulation of the economic regime itself of that relationship and the submission of the other administrative entities to the public labor regime. This void, however, does not authorize using mechanisms provided for a private relationship for a public employment relationship that must be governed by its own and different principles.” (What is in bold does not correspond to the original).

The Chamber was clear in those precedents that, from the examination of the discussions of the Constituents, there is a mandate and not a mere recommendation to apply to that employment relationship between the public administration and its servants, their own or special criteria, for which, according to the transitory provision referred to, the Legislative Assembly had to enact, between November 8, 1950, and June 1, 1953, the Civil Service Law, which would have as its main characteristic its gradual application in the offices of different natures of the Public Administration, which was not fully complied with at the time.

As was set forth in the initial jurisprudential line, starting in 1949, the legal system that regulates the employment relationship between the public administration and its servants in our country is governed by public law. This regime implies, necessarily, that this relationship, by its very nature, is based on its own general principles, not only different from those of the private labor sector, but even, often, opposed to them.

As indicated, the "legislator…, opted to regulate the service not in a general manner, but by sectors, thus enacting the Civil Service Statute (which applies to the servants of the Executive Branch) and subsequently other statutes to regulate the provision of services in the remaining branches of the State and in some decentralized institutions." (see judgments No. 1990-1119 of 14:00 hours on September 18, 1990, and No. 2004-7476 of 14:04 hours on April 30, 2004, among others). And this, as this Court recognized, is consistent with a systematic interpretation of the Political Constitution, which also recognizes the autonomy of autonomous institutions and the degree of independence of each of the Branches of the State.

In judgment No. 1999-5966 of 10:30 hours on July 30, 1999, this Court stated the following:

“SIXTH: THE EMPLOYMENT REGIME OF THE SERVANTS OF THE COMMISSION CREATED IN THE LAW. The consultation indicates that 'the fact that regular officials are subject to a special employment regime' violates Constitutional Article 191 and although the Chamber has already established in its jurisprudence that when the fundamental norm refers to 'a civil service statute' it does not mean a single statute, since the different Branches that exercise the government of the Republic (Constitutional Article 9) may have their own statutory regime. In relation to this topic, the abundant jurisprudence of this Chamber may be consulted, particularly the grounds of judgments numbers 1148-90, of seventeen hours on September twenty-first, nineteen hundred and ninety, and 1696-92, of 15 hours and thirty minutes on August twenty-third, nineteen hundred and ninety-two. What does constitute a violation of the said constitutional provisions is that an body attached to the Executive Branch, independently of the appointments that could or should be made because of and to attend to an emergency, might have 'a special employment regime' and in which the role of the Dirección General de Servicio Civil is limited to coordinating and inspecting it.

In that sense, then, the consulting parties are correct and the rule, in the terms in which it was conceived, must be eliminated. It should only be added here, that due to an emergency, exceptional personnel contracting mechanisms could be used, but this would be authorized by principle and not even based on a rule authorizing it.” In this way, other statutes that regulate this public employment relationship have been accepted; however, imposing in each of those regulations as an essential limit, compliance with the principle of suitability and stability in the labor relationship in the public sector, independently of the differentiated regime adopted, in accordance with the provisions of constitutional articles 191 and 192. This Chamber reaffirmed this in judgments numbers 2001-5694 of 16:23 hours on June 26, 2001, 2011-014624 of 15:50 hours on October 26, 2011, and 2006-17746 of 14:36 hours on December 11, 2006.

Thus, the constitutional principles and norms that govern the Civil Service extend to the public employment regime of administrative entities, since the constituent's intention was to create an administrative labor regime, with its own principles, derived from the statutory nature of the relationship between public officials and the State, and although it was conceived in a general manner, Constitutional Article 192 also left foreseen the need to establish exceptions to that single regulation. This Court evidenced this in judgment No. 1990-1119, when indicating the following:

“… The legislator, however, opted to regulate the service not in a general manner, but by sectors, thus enacting the Civil Service Statute (which applies to the servants of the Executive Branch) and subsequently other statutes to regulate the provision of services in the remaining branches of the State and in some decentralized institutions. However, despite the fact that the legislator did not follow the idea of the constituent and only partially regulated the public service, it is true that the basic principles of the regime (selection based on suitability, job stability) cover all officials in the service of the State, both from the central administration and from decentralized entities. But, this is in principle, because constitutional article 192 introduces other important elements when providing at the beginning 'with the exceptions that this Constitution and the civil service statute determine,' a phrase that obliges us to nuance the previous conclusions regarding the scope of application of the civil service regime or statute. It is obvious that in the constituent's mind was the idea that not all public servants could be covered by the special regime, since the method of selection, the special capacities, the functions of each post, the relationships of trust and dependence are not the same in all cases, hence the principles derived from article 192 are applicable to certain officials – the majority – not to all. The Constitution itself pointed out several cases of officials of free selection and removal such as government ministers, members of the public force, directors of autonomous institutions, diplomatic representatives, and in general, 'the employees and officials who hold positions of trust' (art. 140 subsection 1), leaving to the law (Civil Service Law says article 140) the determination of other officials, who, in very qualified cases, could be excluded from the general regime. This possibility of excluding certain officials is reiterated by article 192. It is repeated that the constituent's intention was that a single law, a Statute, exist that would regulate the entire public service. However, what is important is that the ordinary legislator was left, through law, the detailed regulation of the coverage of the special regime, which it could do, as it did, in separate laws, without detriment to the constitutional mandate. Through law, the legislator has excluded several cases from the common regime. The Civil Service Statute in its articles 3, 4, and 5, mentions a good number of officials who are not considered within the regime. Also, by special law, the executive presidents of autonomous institutions have been excluded, who are appointed by the executive, and in general, a series of officials, almost always appointed for a fixed term, and whose common denominator is to be in a service relationship not typically labor-based, under a regime of hierarchical subordination, but rather one of direction or collaboration, where orders do not mediate, but rather directives, in some cases; or, well, in a relationship of trust that obliges granting greater freedom for the appointment and eventual removal of the official; this independently of the permanent nature of the function. This relationship of trust may be based, according to the requirements of the post, on purely subjective aspects, of a personal nature; but it can also derive from objective elements born from an ideological community (political in the good sense of the term), necessary for the proper management of public affairs according to plans and programs. The cases of exception, it is clear, must be very qualified, with the special characteristics indicated that justify unequal treatment. This must be so, since through an unjustified exception the legislator could render nugatory the constitutional provision that aims for the labor stability of the public employee and the rationality of recruitment, as a general rule. But if the post has some special characteristic that justifies it, the exception will be valid.” (The emphasis is not from the original) As can easily be deduced from what we have said, the intention of the original constituent was to submit all public employment relationships to an administrative law regime – statutory (estatutario) – that is, no body or entity of the Public Administration, central or decentralized, was exempt from this duty, hence, although there may be special statutes – proper to decentralized bodies and entities – provided they respond to the cardinal principles that are enshrined in the Fundamental Charter, it is also true that it is constitutionally valid for there to be a single statute that regulates the relations between the Public Administration, central and decentralized, and its servants. The foregoing means that the Legislative Assembly is empowered by the Law of the Constitution to establish a single statute that includes all public servants, with the exceptions that the Constitution – subsections 1 and 2 of article 140 – and the cited statute determine, therefore, in this respect, the bill consulted is not contrary to the cited Law and, logically, provided that the exclusive and excluding powers corresponding to the branches of the State and to the decentralized entities are not suppressed, essentially affected, or transferred to other bodies and entities according to the principle of separation of powers or functions or the degree of autonomy, respectively.

The analysis of the grievances – doubts or defects of unconstitutionality – invoked by the consulting parties now corresponds.

Particular considerations of Judge Garro Vargas on this general considerando I fully agree with what the general considerando signed by the majority states:

"It is not unconstitutional for the legislator to subject the entire Public Administration to a framework law on public employment, provided it rigorously observes the principles of separation of powers and does not empty of content the degrees of autonomy that the Law of the Constitution grants to the State universities, the CCSS, and the municipalities." Therefore, as reflected in the notes I have recorded in this resolution, I believe that the legislator can indeed establish a general normative framework in this matter, containing a model of employment for all public servants, which contemplates the guidelines for compensation, performance assessment, demonstration of suitability and responsibility in the exercise of functions, etc. That is, that framework could well embody and develop the constitutional principles of suitability, job stability, efficiency and irremovability, evaluation of results, accountability, responsibility for the fulfillment of duties (all in accordance with arts. 9, 11, 191, and 192 of the Political Constitution).

However, in the terms in which the bill consulted is formulated, serious clashes with the Constitution are noted. One of them refers to the scope of the powers of the governing body (rectoría) exercised by Mideplan. To that ministerial portfolio of the Executive Branch, certain attributions are granted without taking into consideration the independence of the branches of the republic nor the governmental autonomies constitutionally recognized.

In these particular considerations, I intend to explain, with the utmost respect, why I also do not share some arguments contained in the general considerando, referring to the conditions under which the powers of said governing body (rectoría) are to be considered unconstitutional.

That considerando, first, makes a distinction between officials, attending to the type of work they perform:

"The keystone is in determining whether there are administrative activities in this area that are indispensable to guarantee the exclusive and excluding powers of the branches of the State." This means that the Constitutional Chamber, without any constitutional normative basis, divides public officials between those who perform work that affects the exclusive and excluding powers of the branch or the institution with constitutionally recognized autonomy, and those who perform work that supposedly does not affect them. It makes this division in order to point out that the latter could indeed be subject to such governing body (rectoría):

"[T]he power to issue directives (…) is not constitutional when it affects or impacts the exclusive and excluding powers of the other branches of the State or the constitutionally assigned purposes to the entities with a corporate or institutional base that enjoy a degree of autonomy three – self-organizational or normative – or two – political – or in those administrative activities necessary for the exercise of those powers." Ergo, according to that considerando, subjection to those directives would be constitutional when it does not affect such powers. Therefore, it adds:

Now, the foregoing does not mean that the entire civil service of the branches of the State and of the aforementioned entities is excluded from the directive power. In the case of basic, auxiliary administrative services that do not affect the exclusive and excluding powers nor administrative functions necessary for the fulfillment of these, each branch of the State and entity must define exclusively and excludingly which of these may be subject to the directive power. Therefore, based on the principle of separation of powers or functions and the degrees of autonomy constitutionally guaranteed to each entity, it is the exclusive and excluding responsibility of their highest bodies – Corte Plena, Consejo Superior del Poder Judicial, Tribunal Supremo de Elecciones, Consejos Universitarios, Rectorías, Junta Directiva and Presidencia Ejecutiva of the Caja Costarricense de Seguro Social, Concejo and Alcaldes Municipales – to establish which basic, auxiliary, common administrative services, similar to those throughout the Public Administration, would be subject to the directive and regulatory powers of the Executive Branch.

Recapitulating: First, it introduces the distinction between public servants who perform functions related to the competence designated to the branch (or institution with constitutionally recognized autonomy) and others who do not perform them. Then it points out that it is up to the respective highest bodies to make that distinction. The foregoing is in order to clarify which services within each branch or institution will be subject to the directive and regulatory powers exercised by Mideplan.

In this regard, first, it is striking that in said considerando the majority of the Constitutional Chamber introduces an element that is not in the bill submitted for consultation, and presents it as a condition of constitutionality: that there be a distinction of officials and that the distinction be made by each branch or institution with constitutionally granted autonomy.

Regarding this matter, it must be remembered that the role of this Tribunal is to identify the alleged constitutional flaws under consultation, and not to propose or make considerations on aspects that are neither expressly questioned in the consultation nor contemplated in the bill of law.

Secondly, such arguments would obviously be saying that what would be unconstitutional is that officials performing duties that directly affect the exclusive powers (competencias) of the branch or institution in question be under the mentioned stewardship (rectoría). And what would also be unconstitutional is that the distinction between one type of official and another be made by the legislator or by Mideplán. Furthermore, it endorses that within each branch there would be two regimes: those subject to the stewardship and those who are not. Then, officials who do not perform a duty supposedly directly linked to the exclusive powers could, according to that general whereas clause (considerando general), without offense to the Constitution, be subject to the mentioned stewardship. However, I believe that the powers granted to that stewardship exercised by Mideplan over those other officials are also unconstitutional, because it affects the independence or autonomy of the respective organizations in question (branches, the Supreme Electoral Tribunal, the Costa Rican Social Security Fund, the public universities, or the municipalities). In this regard, it must be kept in mind that independence and autonomy are organic qualities, constitutionally recognized for the branches or institutions—as the case may be. They are not characteristics of the individuals who work there. At the same time, the work of all officials who form part of that branch or institution, without exception or distinction, is integrated into the achievement of its own exclusive purpose. It is true that within each of the branches or institutions that enjoy constitutionally recognized autonomy, there are officials who only contribute in a more or less direct manner to the exercise of the organization's own powers; however, they perform their work as part of a unitary whole, which has specific purposes. For example, an economist may work as a legislative advisor, as an advisor in a ministry, etc.; the same applies to a secretary: she could be one for a municipality or a branch of the republic. However, although the work of each one is materially very similar to that of a colleague working in another institution, the fact is that it is exercised not disconnectedly but integrated into the specific purposes of the branch or institution in question.

Furthermore, it should be added that in the exercise of that work, that public servant has access to information and is required to establish relationships inherent to their position. This last point, which seems trivial, is not, and the legislator has taken it very much into account, by establishing prohibitions and barring conflicts, for both current and former officials. And it has taken it into account precisely because it knows that, although independence or autonomy—I repeat—are organic qualities and not qualities of the officials of the branches or institutions, a regulatory framework must govern that ensures that the individuals who comprise these organizations do not harm the respective independence or autonomy with their acts, as the case may be. If that is so, it also does not seem legally reasonable to understand it as constitutionally valid that within each branch or institution with autonomy granted by the Constitution, there are officials subject to a ministerial portfolio of the Executive Branch, as if they were individuals not fully integrated into the organization to which they belong. This would consummate, by this means, what the Constituent Assembly sought to avoid and what the legislator has so far endeavored to safeguard: the non-interference of one branch in another or in an institution with constitutionally recognized autonomy.

Therefore, as an organic characteristic, independence covers the entire branch of the republic. The same could be said of institutions endowed with governmental autonomy. Now, precisely because it is an organic quality, it is true, and the majority states:

"[I]t is inadmissible, from the constitutional viewpoint, for the Executive Branch or any of its other organs to exercise a power of hierarchy, of direction, of internal regulation over the branches of the State, the state universities, the CCSS, and the municipalities." But let it be kept in mind that this is inadmissible with respect to the organization as a whole and those who comprise it, and this last point applies without making the distinction between officials.

So, there are indeed activities that are indispensable because they directly affect those powers and others that are not; but that does not mean that the latter can be regulated, controlled, or subjected to a branch different from that branch—or that institution with constitutionally recognized autonomy—in which they work. The fact that some tasks are not "indispensable" does not separate the officials who perform them from their connection to the hierarchy within that branch or that institution, as applicable. That is, the subjection of public servants to their own branch or autonomous institution makes possible and effective the independence or autonomy granted by the Constitution.

The general whereas clause also states:

"Nor can it be ignored that the branches of the State, excluding the Executive—following a subjective criterion, it is the one that performs administrative activity by nature, Article 1 of the General Law of Public Administration—exceptionally perform administrative activity—objective criterion, Article 2, subsection b) of the Contentious-Administrative Procedure Code—as occurs in the matter of public employment." I believe that such an assertion must be qualified. In fact, the Contentious-Administrative Procedure Code states:

Therefore, it is not so accurate to state that the branches—excluding the Executive—only perform administrative function by exception. The fact is that all perform administrative functions, but only one (the Executive Branch, at the central level) has the administrative function as its primary attribution. That is, in the organic distribution (branches, organs, institutions with autonomy recognized by the Constitution, local governments, etc.), all exercise administrative functions. Moreover, they also perform the legislative function and the judicial function (although the latter in a broad sense: they administer administrative justice). However, the Executive Branch is attributed by antonomasia the administrative or governmental function, the Legislative Branch the legislative function, and the Judicial Branch the judicial function, which, in its case, is jurisdictional justice (although also, internally, administrative justice). But it is clear that in all of them, the three functions that are essential for the machinery and achievement of the purposes of the respective branch are exercised. The same could be noted regarding local governments, public universities, and the Costa Rican Social Security Fund. Then, for what is of interest here, it must be emphasized that the administrative function is exercised by all the branches and the mentioned institutions, albeit with varying intensity and scope. Therefore, if all exercise administrative functions, it does not seem that the function referring to the regime of their own officials should be subtracted from them, and what this entails, which—as the general whereas clause rightly says—is a "typically administrative activity." In light of the above, I have my serious reservations about the proposal of that whereas clause. Even if it were said that, in principle, each branch or institution could have the power to define which officials perform so-called "indispensable" work, what becomes unconstitutional is that this distinction be made with the purpose of transferring that sector of public servants to the subjection of another branch of the republic, because that would imply breaking the republican model designed by the Political Constitution. Accepting such a proposal would mean understanding that only the Executive Branch exercises true administrative function and that this would give rise to the other branches, at least in the matter of public employment, being able—or perhaps having—to abdicate their administration (their government and even their regulation).

Therefore, this distinction should not empty the very effectiveness of the independence of the branches and autonomies recognized constitutionally of its content. For this reason, if the legislator made that distinction, it would disrespect those organic characteristics, which would make it unconstitutional. Granting that power of distinction to Mideplan itself is also, from the constitutional point of view, absolutely inadmissible. However, although it is not unconstitutional in itself to legally grant the heads of the branches themselves—or to institutions endowed with governmental autonomy—the power to distinguish the servants who do perform functions affecting their own exclusive and excluding powers from those who supposedly do not perform them, the fact is that such power also does not cure at the root the constitutional violations of the bill of law submitted for consultation, especially if such a distinction aims to authorize the stewardship of Mideplan over these latter officials.

Moreover, leaving that definition in the hands of the respective heads—transient per se—is to subject them to enormous pressure from the subordinate servants themselves, because it is not difficult to imagine that many of them will consider, rightly or wrongly, that their work directly affects the ultimate purpose of their own institution. Therefore, it cannot be ruled out that the exercise of that power could have the effect of intensifying disparities and inequities, which is precisely what the bill of law seeks to eliminate. This is not only because, as I have said, it would be endorsing the existence of two regimes within each organization, but also because there could be the possibility that the heads do not make such a distinction or practically render it ineffective. So, the fact that the heads have the power to make that distinction does not necessarily achieve the desired effect in the bill. Therefore, the proposal seems to harm the principles of reasonableness and legal certainty.

The spirit of establishing a civil service statute (estatuto de servicio civil), as can be recalled from the records of the Constituent Assembly and the reading of Articles 191 and 192 of the Political Constitution, is that there be no political interference by the respective Executive Branch in the relations between the State and public servants. However, the establishment of a stewardship of the General Public Employment System in charge of Mideplan, with the express possibility of issuing provisions of general scope, directives, and regulations regarding planning, work organization, employment management, performance management, compensation management, and labor relations over other branches of the republic and institutions with constitutionally recognized autonomy, permits what the Constituent Assembly sought to avoid: that political interference. This is so because it is a stewardship in the hands of a portfolio of the Executive Branch, whose head is subject to free removal by the President of the Republic, and its powers have transversal effects, as they do not recognize the boundaries that mark the independence of branches and the constitutionally established autonomies.

Particular considerations of Justice Picado Brenes on this general whereas clause From my point of view, the topic of public employment has an evident transcendence for Costa Rican democracy, for the organization of the state apparatus, and generally for the Rule of Law. Therefore, I consider it appropriate to highlight some aspects that the Jurisprudence of this Chamber has established regarding public employment and the Civil Service Statute. Public employment in Costa Rica, as a particular statutory regime of Public Law, has its constitutional foundations in Articles 191 and 192 of the Political Constitution. Before 1949, public employment in Costa Rica was basically regulated by private law (initially the Civil Code and later the Labor Code). For this reason, the constitutional regulation of this matter that occurred in 1949 is so transcendental. From the debate in the National Constituent Assembly on those articles, it is concluded that public employment in Costa Rica is regulated by a special legal framework, Public Law, constituting a true statutory regime. When discussing the titles referring to Autonomous Institutions and the Civil Service, our Constituent Assembly members decided to elevate them to the constitutional level with the desire—on one hand—to deconcentrate the power of the Executive regarding the new functions entrusted to the State, and their political-electoral influences over its functioning. On the other hand, the serious effects caused by changes of government on public administration personnel in the absence of an adequate legal instrument to protect them (see vote n°1992-001696). As this Chamber has stated on previous occasions (see vote n°2018-00231), our original constituent assembly members enshrined in the Political Constitution of 1949 that there must be an administrative labor regime regulating relations between public servants and the State, to protect the former from arbitrary dismissals (stability in employment) and to professionalize the public function (search for efficiency in service and the suitability of the official). The purpose of such a task was to ensure that the Public Administration had organizational factors allowing it to satisfy the right of citizens to the proper functioning of public services. The civil service regime is not erected, then, as a corporate privilege, but as a guarantee of institutional impartiality. Now, regarding this topic, in relation to various aspects under consultation, it is relevant to determine whether the Civil Service Statute, mentioned by Constitutional Article 191, refers to a SINGLE statute and if it covers all servants of the State (Central Public Administration and Decentralized Public Administration). Based on constitutional jurisprudence, I consider that it is in accordance with the mandate of the Constituent Assembly that there can be a general law on public employment in Costa Rica. The foregoing provided it is a law that contains only general principles, general provisions, guiding criteria, and that respects the rest of the principles safeguarded in the Constitution, such as the principle of separation of functions and the degree of autonomy of the different decentralized institutions. Those general principles or guidelines would serve to develop the depoliticization of public employment, by ensuring compliance with the principles of entry through proven suitability and permanence through the principle of stability, as established by Constitutional Articles 191 and 192. This therefore means that anything exceeding the above would be outside the constitutional framework, for example, if such a law intended the creation of a stewardship in matters of public employment in charge of an organ operating over the rest of the Branches of the Republic and over the decentralized Administration (territorial and functional); and further, if norms are established seeking to regulate aspects of the internal sphere of the independence of Branches and autonomies. In these cases, the powers of both the Executive Branch and the Legislative Branch are proscribed.

This topic of which public officials are covered by the Civil Service and which are not, was already addressed by this Chamber (see judgment number 1990-01119), where it was initially stated as follows:

"II.- Regarding the first point: which officials does the Civil Service Regime cover? A study of the records of the Constituent Assembly reveals that the deputies wished to adopt, with constitutional rank, the special public service regime they called civil service, which already existed in other Latin American constitutions at that date. However, the constituent assembly avoided being excessively detailed or regulatory in this matter, and instead resolved to include in the Constitution only the fundamental principles that would define said regime, namely: specialty for the public servant, requirement of proven suitability for appointment, and guarantee of stability in service, all with the aim of achieving greater efficiency in the administration, leaving to the law the development of the institution. (Record No. 167, art. 3, T. III). Article 191 uses the term 'statute' (estatuto) of civil service instead of 'regime' (régimen) of civil service, which had its meaning, since over the minority criterion advocating for dispersed regulation, the thesis that it be a statute, a single legal body that regulated public service, developing the minimum guarantees established by the Constitution, prevailed. (Record No. 167, art.3, T. III, p.477). The legislator, however, opted to regulate the service not in a general manner, but by sectors, thus enacting the Civil Service Statute (which applies to the servants of the Executive Branch) and subsequently other statutes to regulate the provision of services in the remaining branches of the State and in some decentralized institutions. However, despite the fact that the legislator did not adopt the idea of the constituent assembly and regulated public service only partially, the fact is that the basic principles of the regime (selection by suitability, stability in employment) cover all officials in the service of the State, both in the central administration and in the decentralized entities. But this is in principle, because article 192 constitutional introduces other important elements by stating at the beginning 'with the exceptions that this Constitution and the civil service statute determine,' a phrase that requires qualifying the previous conclusions, regarding the scope of application of the civil service regime or statute. It is obvious that in the mind of the constituent assembly was the idea that not all public servants could be covered by the special regime, since the form of selection, the special capacities, the functions of each position, the relationships of trust and dependence are not the same in all cases, hence the principles derived from article 192 are applicable to certain officials—the majority—not to all. The Constitution itself indicated various cases of officials of free selection and removal such as government ministers, members of the public force, directors of autonomous institutions, diplomatic representatives, and in general, 'the employees and officials occupying positions of trust' (art. 140 subsection 1), leaving to the law (Civil Service Law says article 140) the determination of other officials, who in very qualified cases, could be excluded from the general regime. This possibility of excluding certain officials was reiterated by article 192. It is repeated that the intention of the constituent assembly was for there to be a single law, a Statute, that regulated all public service. However, what is important is that the ordinary legislator, by means of law, was left the detailed regulation of the coverage of the special regime, which it could do, as it did, in separate laws, without detriment to the constitutional mandate. By way of law, the legislator has excluded various cases from the common regime. (…)." Later, the Chamber clarifies the previous position on the existence of a single legal body to perform a systematic interpretation of the Constitution, through judgment number 2018-00231, when it indicates the following:

"III.- On the statutory regime. Our original constituent assembly members enshrined in the Political Constitution of 1949 that there must be an administrative labor regime regulating relations between public servants and the State, to protect the former from arbitrary dismissals (stability in employment) and to professionalize the public function (search for efficiency in service and the suitability of the official). The purpose of such a task was to ensure that the Public Administration had organizational factors allowing it to satisfy the right of citizens to the proper functioning of public services. For this, the procedure for selecting and appointing a servant in the Public Administration must comply with the fundamental principles provided for in constitutional Articles 191 and 192, thereby seeking suitable personnel to occupy a public position, with the purpose of guaranteeing efficiency and effectiveness in the public function. The civil service regime is not erected, then, as a corporate privilege, but as a guarantee of institutional impartiality.

(…)

VI… It is clear that the intention of the constituent assembly was to create an administrative labor regime. From reading the records of the National Constituent Assembly, the figure of the public employee and the private worker is distinguished. It is undoubtable that the absence of a legal regime that appropriately regulates relations between the State and its servants violates Article 191 of the Political Constitution, which also entails the violation of Article 11 of the Magna Carta…

(…) XI In the opinion of the Chamber, then, Articles 191 and 192 of the Political Constitution support the existence, in principle, of an employment regime governed by Public Law, within the public sector, as has become clear from the debate in the National Constituent Assembly and is incipiently gathered in the General Law of Public Administration. This public employment regime implies, necessarily, consequences derived from the nature of that relationship, with its own general principles, not only distinct from those of (private) labor law, but often opposed to them…" Having expounded the above, it is clear and evident that, starting from the year 1949, the legal system regulating the employment relationship between the public administration and its servants in our country is governed by public law, a principle that is reiterated in Article 112 of the General Law of Public Administration (see in this regard, judgment No. 1995-3125 of 4:24 p.m. on June 14, 1995). This regime implies, necessarily—as indicated in the precedent cited above—that this relationship, by its very nature, is based on its own general principles, not only distinct from those of (private) labor law, but even often opposed to them. Now then, as this Tribunal has evidenced in its jurisprudence, the "legislator,…, opted to regulate the service not in a general manner, but by sectors, thus enacting the Civil Service Statute (which applies to servants of the Executive Branch) and subsequently other statutes to regulate the provision of services in the remaining branches of the State and in some decentralized institutions." (see judgments No. 1990-1119 of 2:00 p.m. on September 18, 1990 and 2004-7476 of 2:04 p.m. on April 30, 2004, among others). The foregoing is consistent with a systematic interpretation of the Political Constitution, which also recognizes the autonomy of autonomous institutions and the degree of independence for each of the Branches of the State. This was also specified by the Chamber in judgment No. 1999-5966 of 10:30 a.m. on July 30, 1999, when resolving the optional consultation of constitutionality of the Bill of Law "Reform of the National Emergency Law N°4374 of August 14, 1969", and indicated the following: "The consultation indicates that 'the fact that regular officials are subject to a special employment regime' violates Article 191 Constitutional and although the Chamber has already established in its jurisprudence that when the fundamental norm refers to 'a civil service statute' it does not say a single statute, since the distinct Branches that exercise the government of the Republic (article 9 constitutional) can have their own statutory regime…".

(…) According to what was indicated by the Chamber in judgment No. 2003-10615, the wording finally given to Article 191, together with the process of profound decentralization that the Costa Rican State experienced starting in 1949, entailed that currently the existence of diverse statutory relationships in the Administration is valid, in attention to the functional independence and administrative autonomy that the legal system assures to various public institutions. However, "what is not legitimate—as was said—is that the relations between each Employer-Administration and its officials are governed by mutually agreed (contractual) rules between both parties, as validly occurs in private employment relationships." (…)

A corollary of the above is that the public employment relationship that applies to public servants is a special public law or statutory relationship, which by such legal nature has limitations regarding the application of common labor law. Likewise, its regulation is subject to numbers 11, 191, and 192 of the Political Constitution. (…)" From the above, I consider that the following conclusions can be reached:

-FIRST: A single public regime of public employment, but not a SINGLE Statute, which must be interpreted in light of the Principles of independence of branches and autonomies: The regulation of public employment by sectors, "is consistent with a systematic interpretation of the Political Constitution, which also recognizes the autonomy of autonomous institutions and the degree of independence for each of the Branches of the State." (see judgment n°2018-00231). Thus, then, "when the fundamental norm refers to 'a civil service statute' it does not say a single statute, since the distinct Branches that exercise the government of the Republic (article 9 constitutional) can have their own statutory regime…" (see judgment n°1999-005966). Therefore, "one" cannot be understood as a single legal instrument, but as a single regime of principles and guarantees: "when the Constitution speaks of a single regime applicable to public servants, it did not restrict the concept of 'statute' to that of a single legal instrument, but rather seeks to concretize the uniform regime of principles and guarantees that regulate the protection of the labor rights of the public servant, especially attending to their right to stability" (see judgment n°1993-06240). What the Constituent Assembly refers to, then, is a single public regime that covers all officials in the service of the State, that is, a Public Law regime (where entry by suitability and permanence with stability is guaranteed), distinct from private or contractual law. But it does not refer to a single normative body, since it is "valid the existence of diverse statutory relationships in the Administration, in attention to the functional independence and administrative autonomy that the legal system assures to various public institutions." (see judgment n°2018-00231).

-SECOND: Principles of the civil service regime (only norms with general principles) of mandatory application to the entire State: The basic principles of the civil service regime (selection by suitability, stability in employment) cover all officials in the service of the State, both in the central administration and in the decentralized entities. The legislator opted to regulate the service not in a general manner, but by sectors, thus enacting the Civil Service Statute (which applies to the servants of the Executive Branch) and subsequently other statutes to regulate the provision of services in the remaining branches of the State and in some decentralized institutions. Thus, for example, the enactment of the Personnel Law of the Legislative Assembly n° 4556 of April 29, 1970. Despite this diversity of laws, it is evident that the constitutional principles of the civil service apply to all public officials and to all existing sectors. These principles, and not the specific norms of the Civil Service Statute, are mandatory for the entire state apparatus, because the Constituent Assembly wished to put an end to the practice by which many public servants were removed from their positions to make way for supporters of the new government.

That is, the Constituent Assembly sought to depoliticize the appointment and removal of public officials from their posts, by establishing these two great principles listed in Article 192 of the Constitution (suitability and stability).

-THIRD: Recognition of several cases excluded by the Constituent Assembly itself: In the mind of the constituent assembly members was the idea that not all public servants could be covered by the special regime, since the method of selection, the special capacities, the functions of each post, and the relationships of trust and dependency are not the same in all cases (see vote No. 2018-0231). Thus, several cases excluded from the common regime are left in the hands of the Constitution itself and the legislator, as stated in the phrase with which Article 192 of the Constitution begins: “With the exceptions that this Constitution and the civil service statute determine.” -FOURTH: Recognition of a differentiated employment regime, in several cases: In diverse case law, this Chamber has recognized a differentiated regime that regulates, for example, judicial officials (see judgment No. 2001-005694 and No. 2018-019511), the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social) (see judgment No. 2011-014624), and the Costa Rican Institute of Electricity (Instituto Costarricense de Electricidad) (see judgment No. 2006-017746). It is clear, then, that the Constituent Assembly refers to a single public employment regime (of Public Law and based on the principles of suitability and stability), but not to a single Statute or legal framework for the entire state apparatus.

-FIFTH: The only way to understand “One Statute” applicable to the entire State is to understand it as “One regime”: The only way to correctly interpret the constitutional text when it says “One statute” is in the sense of understanding that there is a single statutory regime, with its own principles and rules, distinct from private law, to safeguard suitability and stability, but not to subject the entire state apparatus, above the principle of separation of powers and the limitations of administrative oversight (tutela administrativa), to a series of rules coming from a single normative body. A single statutory regime, guaranteeing the principles of suitability and stability throughout the employment regime of the entire state apparatus, is something very different from centralizing in a single normative body, which grants all competencies and powers in the matter of public employment to an organ of the Executive Branch. For understanding it this way is entirely contrary to the intention of the Constituent Assembly to depoliticize public employment. It is clear that in the mind of the constituent assembly members was the idea that NOT all public servants could be covered by a single normative body, and even less, a normative body managed and centralized by the Executive Branch.

-SIXTH: Autonomy regime established by the Constituent Assembly to avoid the concentration of power.- The 1949 Constituent Assembly established a system of division of powers and an autonomy regime as the basis of our Constitutional Law. All of this was reflected in different articles of the current constitutional text. The principle of separation of powers (Article 9 of the Constitution), the governmental autonomy of the Municipalities (Article 170), the governmental autonomy of the Costa Rican Social Security Fund (Caja Costarricense del Seguro Social) (Article 73), the full autonomy of the public universities (Articles 84 and 85), the autonomy of the autonomous institutions (Article 188). In this regard, Deputy Rodrigo Facio Brenes was clear in stating within the National Constituent Assembly that: “(…) what the autonomy regime seeks is to decentralize the fundamental economic functions of the State in such terms that the administrative growth characteristic of the modern world does not imply a corresponding extension of the political power of the Executive. The thesis according to which the President, or the Executive, must have all the powers in the last instance; the theory according to which the President must exercise the single hierarchy of the Administration, that is the statist or totalitarianizing [sic] theory; that of autonomies, the one that seeks to multiply the leaders to avoid the concentration of power and resources, is the democratic thesis. (…)” (Record No. 166, 13/X/1949, p.5). All of which is complemented, moreover, by a regime of decentralization of power and depoliticization of public employment, which is incompatible with a single normative body centralizing competencies in the Executive Branch.

Furthermore, I consider it necessary to make these two additional reflections regarding the Independence of Powers and the autonomy regime:

-SEVENTH: The exclusion of Branches operates for both the Executive Branch and the Legislative Branch.- In the specific case of the Judicial Branch, there is a forbidden sphere for the Executive Branch, but also for the Legislative Branch. I do not share the arguments indicated in the general recital (considerando general) of this judgment, to the effect that, “there is no compartment or area of exclusion from the law regarding the exclusive and excluding competencies of the Supreme Court of Justice, the Supreme Electoral Tribunal, the State Universities, and the municipalities.” Quite the contrary, regarding the exclusive and excluding competencies of the Supreme Court of Justice, the Supreme Electoral Tribunal, the State Universities, the CCSS, and the municipalities, there IS an area of exclusion, not only from the Executive, but also from the Legislator. The Executive Branch, through Mideplán, could never operate as a superior with respect to the Human Resources Departments of the Supreme Court of Justice, the Supreme Electoral Tribunal, the State Universities, the CCSS, and the municipalities. But furthermore, neither could the Legislative Branch, through the exercise of its legislative power, ever intrude into aspects of the internal competencies of those same institutions. The foregoing, by virtue of the scope of protection held by the constitutional principle of separation of powers and administrative decentralization. Thus, for example, the legislator could not dictate rules to instruct the Supreme Court of Justice which parameters to follow and which not to in the process of selection, recruitment, evaluation, salaries, dismissal, among others. It can establish general guidelines that address the content of the constitutional norms (suitability, stability in employment, efficiency, transparency, accountability), but it cannot intrude into how the Judicial Branch must proceed to operationalize all those aspects, which are within the scope of its administrative independence. I consider it inadmissible, from the constitutional perspective, to issue legal norms (Legislative Branch) regarding the internal competencies of the other Branches of the State. In summary, just as it is inadmissible for the Executive Branch to exercise hierarchical, directive, or internal regulatory power over the Branches of the State, the State Universities, the CCSS, and the municipalities; likewise, it is inadmissible for the Legislative Branch to issue laws containing norms that order the other Branches of the State or decentralized entities how to proceed with their competencies.

-EIGHTH: There is a sphere of exclusion of the Legislative and Executive Branches regarding ANY of the competencies: Regarding any of the competencies of the Supreme Court of Justice, the Supreme Electoral Tribunal, the State Universities, the CCSS, and the municipalities, a sphere of exclusion operates for the Legislative Branch and for the Executive Branch. I do not share the majority's thesis of dividing the competencies of a Branch of the Republic into exclusive competencies and non-exclusive competencies, as if one could only speak of the principle of separation of powers in the former and not in the latter. Clearly, in any of the competencies assigned to a Branch of the Republic, no other can intervene. I consider that these divisions endanger the foundations of a State of Law, to consider that, in the so-called “non-exclusive and non-excluding competencies,” then there can indeed be interference of one Branch over another. Nothing is more dangerous and remote from what should be considered the principle of separation of powers. In this sense, proceeding to dissect, dismember, divide, or differentiate the services provided by each Branch of the Republic between: exclusive and excluding services, and auxiliary administrative services, to allow the interference of Branches in the latter, is a heinous distortion of the most basic foundations of our State of Law. It would be as much as admitting that, while it is not permitted for one Branch to insert “its entire arm” over another Branch, it is permitted to insert “a hand of that arm,” which in this case would be precisely those auxiliary administrative services. Interference is interference, much or little, but ultimately it is interference. According to Article 16 of the Declaration of the Rights of Man and of the Citizen:

“A Society in which the guarantee of Rights is not assured, nor the separation of Powers determined, has no Constitution.” In this sense, we would cease to have a Constitution if an attenuation of the principle of separation of Powers were admitted. Clearly, our Article 9 of the Constitution indicates that the Government of the Republic “is exercised by the people and three distinct and independent Branches. The Legislative, the Executive, and the Judicial.” Thus, the three Branches of the Republic are distinct and independent. There can be no independence if one Branch has influence over another, even if that influence is only with respect to the so-called “auxiliary administrative services.” This would be the case, then, if Mideplán could have influence over the “auxiliary administrative services” of the Judicial Branch. Deputy ESQUIVEL already stated it in the Constituent Assembly (Record No. 88) when he expressed that “the classic concept of the independence of the Branches constitutes a balance among the different organisms of the State. Furthermore, it comes to be a guarantee for the citizens.” It is not, then, about the defense of a special privilege (fuero especial) of the Judicial Branch, for example, but about the defense of the true independence of Branches as a guarantee for the citizens, for the Constitution, and for the State of Law. I agree that it is not unconstitutional for the legislator to subject the entire Public Administration to a framework law on public employment, but only as to general principles and guidelines and, furthermore, as the general recital (considerando general) states, “as long as it rigorously observes the principles of separation of powers and does not empty the content of the degrees of autonomy that Constitutional Law grants to the State Universities, the CCSS, and the municipalities.” But this condition is emptied of content if it were accepted that, in matters of public employment, Mideplán (an organ of the Executive Branch) could have influence, competencies, decision-making power, and hierarchy over the “auxiliary administrative services” of the Supreme Court of Justice, the Supreme Electoral Tribunal, the State Universities, the CCSS, and the municipalities. Even if the general recital indicates that it is each branch of the State and each entity that defines which those “auxiliary administrative services” are, this does not eliminate the fact that it would be a kind of “consented interference,” and therefore, always “interference.” At this point, it is not understood how this could be operationalized in practice, because then, the Judicial Branch could perfectly indicate that it has no auxiliary administrative services, but rather that all services are of its exclusive and excluding competence, and in this way, veto Mideplán's intervention over those services. Moreover, it should be noted that the Judicial Branch, for example, could not carry out all its functions if it did not count on all the personnel it has, in all areas and with total independence, because each person, from the humblest of posts to the highest on the hierarchical scale, is part of a gear that allows the institution to carry out its functions each day and provide the constitutionally assigned services.

In summary, I consider that the Constituent Assembly, when referring to a Civil Service Statute, was referring to a general regime of Public Law, with its two fundamental pillars (suitability and stability), but not to a single normative framework. Should the legislator desire the existence of a single law to regulate public employment, it would be limited to regulating only general aspects of Articles 191 and 192, but not, as was attempted with the legislative bill under consultation, intruding into aspects that are within the competence of the distinct Branches of the State and the decentralized entities. Moreover, for the true validity of the constitutional principle of separation of Powers, each Branch of the Republic is completely prohibited from intruding into the competencies of another Branch, even when dealing with competencies considered “auxiliary administrative services.” IX.- Regarding the consultation on the violation of judicial independence.- 1) Aspects consulted The consulting deputies consider that the following articles of the draft “PUBLIC EMPLOYMENT FRAMEWORK LAW” (“LEY MARCO DE EMPLEO PÚBLICO”), processed under legislative file No. 21.336, violate the principle of judicial independence and therefore Articles 9, 154, and 156 of the Political Constitution, Article 10 of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights, and Article 8 of the American Convention on Human Rights. Specifically, they consult on the indicated articles, either in the heading of the general title or in the rest of the text of the filing brief:

2.a (scope of coverage), 6.b (governing authority of Mideplan), 7 (competencies of Mideplan), 9.a (Human Resources offices), 12 (database) 13 (job families), 14 (recruitment and selection), 15 (postulates of recruitment and selection) 17 (Senior Management personnel), 18 (probationary period and appointment period), 19 (mobility or transfers) 21 (single dismissal regime), 22 (dismissal process), 31 (work methodology) 49 subsections a, b, g and h (reform of regulations).

In the first place, regarding Articles 12 (database), 13.h (family of confidential positions), 15 (postulates of recruitment and selection), 19 (mobility or transfers), and 31 (work methodology), given that the sufficient reasoning that would allow this Chamber to have clarity on what is consulted is not provided, the consultation is declared unevacuable for lack of reasoning. The Chamber observes that despite what they indicated in the consultation, the truth of the matter is that they did not reason it adequately, and with that omission, they do not allow this Tribunal to have certainty as to what the questioning is that they raise and the reasons why they might have considered that such norms could eventually have general constitutionality problems or, specifically, problems in relation to the Judicial Branch and the Supreme Electoral Tribunal. In this regard, it must be recalled what Article 99 of the Law of Constitutional Jurisdiction provides, which states:

"Article 99.- Except in the case of the mandatory consultation provided for in subsection a) of Article 96, the consultation must be formulated in a reasoned brief, with an expression of the questioned aspects of the bill, as well as the reasons for which doubts or objections are held regarding its constitutionality." Faced with this situation, since the Chamber does not have further elements to carry out the analysis of this numeral, what is appropriate is to declare, by unanimity, the consultation on the constitutionality of the draft “PUBLIC EMPLOYMENT FRAMEWORK LAW” processed under legislative file No. 21.336 unevacuable, regarding Articles 12 (database), 13.h (family of confidential positions), 15 (postulates of recruitment and selection), 19 (mobility or transfers), and 31 (work methodology), for lack of reasoning of what was consulted, with respect to the Judicial Branch and the Supreme Electoral Tribunal. Thus, it must be understood that this Chamber refrains from making any pronouncement on the constitutionality or lack thereof of these norms.

Now, regarding the rest of the norms, the consultants consider them unconstitutional insofar as they intend to subject the Judicial Branch to the provisions dictated by the Ministry of National Planning and Economic Policy (Ministerio de Planificación Nacional y Política Económica, Mideplán) and the General Directorate of Civil Service, in matters of public employment. They indicate that the bill allows an organ of the Executive Branch to meddle in the employment management of the Judicial Branch, even dictating resolutions or circulars (Art. 7). Allowing intrusions that go beyond the purely administrative or salary-related. They consider that the violation of the principles of separation of powers, autonomy, and independence of the Judicial Branch is evident. They indicate that the bill violates the principle of separation of powers, the autonomy and independence of the Judicial Branch, the principles of legality, security, proportionality, and reasonableness, insofar as it intends to regulate the employment relations between the serving persons and the Judicial Branch (Art. 2.a), subjecting it to the application of the Civil Service Statute according to the reform of Art. 1 of its legal body (Art. 49.B), by including the Human Management Department of that Branch under the governing authority of Mideplán (Art. 6), being obliged to apply and execute the provisions of general scope, guidelines, and regulations in relation to work planning, employment management, performance management, compensation, and labor relations issued by Mideplán (Art. 9), by establishing a single public employment regime of which persons who administer justice will form part (Art. 13), by providing for the recruitment and selection of Judicial Branch personnel according to provisions of general scope, guidelines, regulations, circulars, manuals, and resolutions of Mideplán for each job family (Art. 14), as well as for senior technical management personnel for whom it provides a 6-month probationary period and a 6-year appointment (Arts. 17 and 18), with the possibility of an annual extension subject to performance evaluation, and the subjection of the Judicial Branch organs, whose competencies are assigned in the Judicial Service Statute and the Judicial Branch Salary Law, to coordinate everything concerning public employment with Mideplán in its capacity as governing body. In addition, the establishment of a single dismissal procedure when one is already regulated in the special legislation (Arts. 21 and 22).

Thus, the examination of the indicated articles proceeds. First, a jurisprudential summary on the subject of judicial independence is carried out, which will serve as context for the examination of each consulted article.

• 2)Jurisprudential Background on the Constitutional Principle of Separation of Powers and the Constitutional Principle of Judicial Independence To understand how transcendental the issue of judicial independence is for a State of Law such as ours, one must start from another basic principle in every democratic system, the principle of separation of powers. From the Declaration of the Rights of Man and of the Citizen of 1789, in Article 16, the following is indicated:

“Article 16.- A Society in which the guarantee of Rights is not assured, nor the separation of Powers determined, has no Constitution.” Which means that one of the two fundamental pillars for the true existence of a Constitution is the safeguarding of the principle of separation of powers. According to reiterated constitutional case law on this principle, the Government of the Republic is exercised by the people and three distinct and independent Branches: The Legislative, the Executive, and the Judicial. Enshrined in Article 9 of the Political Constitution and established as “one of the fundamental pillars of the Democratic State, insofar as it establishes a system of checks and balances that guarantees respect for constitutional values, principles, and norms for the direct benefit of the country's inhabitants.” (judgment No. 2006-013708). Since judgment No. 6829-1993, it was indicated that the theory of separation of Powers is interpreted as the need for each State Organ to exercise its function independently of the others (Article 9 of the Political Constitution). While there cannot be interferences or invasions of the assigned function, collaborations between Branches must necessarily occur. Currently, constitutional doctrine and practice affirm that it is appropriate to speak of a separation of functions, that is, of the distribution of functions among the different state organs. Properly regarding the independence of the Judicial Branch and the independence of judges, there is also abundant case law from this Chamber. In general, it has been affirmed that, in democratic political regimes, the principle of the independence of the judge, in particular, and of the Judicial Branch, in general, has fundamental value because the legitimacy of the judge and the impartiality of the judicial decision rest upon it. It has been indicated that it is crucial for the proper functioning of the democratic State of Law—understood under its postulate of the primacy of law—that the jurisdictional function can be exercised without undue pressure, within a truly independent Judicial Branch. A principle which, in the Costa Rican case, not only has due constitutional support but is contemplated in multiple international instruments. This Chamber has highlighted since its beginnings the importance of judicial independence by reaffirming that the administration of justice is an exclusive competence of the Judicial Branch (see judgment No. 1991-0441 and 1994-2358, 1996-6989, 1999-4555, 2006-7965). The Inter-American Court of Human Rights—the jurisdictional organ of the Inter-American Protection System—has determined:

“(…) one of the main objectives that the separation of public powers has is the guarantee of the independence of judges” (I/A Court H.R. Case of the Constitutional Court vs. Peru. Merits, Reparations and Costs. Judgment of January 31, 2001 Series C No. 71, para. 73).

Likewise, it has indicated that “Said autonomous exercise must be guaranteed by the State both in its institutional facet, that is, in relation to the Judicial Branch as a system, as well as in connection with its individual aspect, that is, in relation to the specific judge. The objective of the protection lies in preventing the judicial system in general and its members in particular from being subjected to possible undue restrictions in the exercise of their function by organs outside the Judicial Branch or even by those magistrates who exercise review or appellate functions. Additionally, the State has the duty to guarantee an appearance of independence of the judiciary that inspires sufficient legitimacy and confidence not only for the litigant, but for the citizens in a democratic society.” (I/A Court H.R. Case of Apitz Barbera et al. “First Court of Administrative Disputes” vs. Venezuela. Preliminary Objection, Merits, Reparations and Costs. Judgment of August 5, 2008. Series C No. 182, para. 55.).

In judgment No. 1999-1807, the constitutional and conventional basis of the principle of judicial independence was indicated, highlighting external independence (of the Judicial Branch as an organ) and internal independence (that of the judge):

“VIII.- The independence of the Judicial Branch is constitutionally guaranteed in Articles 9 and 154. The American Convention on Human Rights, a normative instrument of international rank directly applicable in our country, also refers to the subject. The American Convention on Human Rights establishes the independence of the judge as a human right, by providing in Article 8.1 that: «1.- Every person has the right to be heard, with due guarantees and within a reasonable time, by a competent, independent, and impartial judge or tribunal, previously established by law, in the substantiation of any criminal accusation formulated against him, or for the determination of his rights and obligations of a civil, labor, or any other nature. 2.- ...» The independence of the Judicial Organ is viewed externally. The Judicial Organ is independent before the other Branches of the State, but not so the judge, whose independence must be analyzed in a more complex manner. But when it is assured that a Judicial Branch is independent, the same must be predicated of its judges, for they are the ones who must make the function entrusted to it a reality. The independence that should truly matter—without diminishing that of the Judicial Organ—is that of the judge, related to the specific case, for it is this that functions as a citizen guarantee, under the terms of the American Convention on Human Rights. The effective independence of the Judicial Branch helps the judges that comprise it to also be independent, but it may well happen that the Organ as a whole has its independence normatively guaranteed, but that its members are not independent, for multiple reasons” (cited in votes No. 2006-15252, 2008-9495, 2008-16529).

Regarding the relationship between the independence of the judge and the principle of impartiality, vote No. 1998-2378 indicated: “The independence and impartiality of the judge constitute related concepts and are undoubtedly constitutional principles in a political regime such as ours. Independence determines that the judge is solely subject to the Constitution and the Law, and impartiality means that for the resolution of the case, the judge will not be swayed by any other interest outside that of the correct application of the law and the just solution of the case.” Regarding judicial independence as a guarantee for judges and a fundamental right (guarantee for the parties in the process), judgment No. 1998-5795 ordered: “From the provisions of Article 154 of the Political Constitution, which states: ‘The Judicial Branch is subject only to the Constitution and the law, and the resolutions it issues in matters within its competence impose no other responsibilities than those expressly indicated by legislative precepts,’ derives the principle of the independence of the Judicial Branch, which includes both the organ or institution as a whole and the Judge in the knowledge of the matters submitted to his judgment. In relation to this official, it must also be recognized that there is double protection for his investiture, since the independence of the judge—as a guarantee for the parties involved in the sub judice matter—is toward the external and the internal, in the sense that he is protected from the influences and incidences—both external and internal—that he may have in one sense or another in the decision of a specific case submitted to his knowledge, so that they rule in strict compliance with the provisions of the current regulations; in other terms, the judge is protected so that neither the parties intervening in the process, third parties, judges of higher grade, ‘influential’ members of the Branches of the State, even the Judicial Branch, can influence his decision; therefore, far less would the obligation—imposed by a higher-grade superior—to rule in a determined manner in a specific case or to coerce the judge in that sense be admissible. The guarantee of the independence of judges, more than a guarantee for these officials—which it indeed is—constitutes a guarantee for the individuals (parties to the process), in the sense that their cases will be decided in strict adherence to the Constitution and the laws.” From which it follows that, in the definition of Judicial Independence, the following two types are included:

• External judicial independence: refers to the existence of a set of guarantees intended to prevent a Court from being controlled by other governmental organs, such as the Executive and Legislative branches. It is the relationship of the Judicial Branch with other actors in the political system. In this sense, the judicial administration system is autonomous insofar as it depends on itself and not on other branches. External independence is the absence of external pressures or influences that make the institution vulnerable, as a result of threats to the availability of resources enabling it to carry out its work with autonomy, to the job stability and promotion possibilities of its officials, to its integrity and assets, and to its infrastructure capacities to meet citizen demands.

• Internal judicial independence: relates to the ability of judges to issue rulings without fear of reprisals.

“Independence of exercise” (the fact that a judge resolves a conflict free from improper interference) becomes “structural independence” (the set of formal guarantees and structural conditions that protect the judge and the Judicial Branch from any type of intervention or control).

In ruling no. 2001-6632, the importance and constitutional rank of the principle of independence of the Judicial Branch was emphasized, also as a right of citizens, by stating: "No one today can diminish the transcendental value that the independence of judges plays in the real functioning of the democratic rule of law. It is clearly accepted that more than a principle, and even beyond what could be pointed out as a privilege granted to the Judge, we are facing the right of citizens to have independent judges." Subsequently, in judgment no. 2015-15726, the principle of judicial independence is stressed, also as a fundamental value of the democratic regime: "III.- ABOUT THE PRINCIPLE OF INDEPENDENCE OF THE JUDGE. Within democratic political regimes, the principle of the independence of the judge, in particular, and of the Judicial Branch, in general, has a fundamental value because the legitimacy of the judge and the impartiality of the judicial decision rest upon it." Mention can also be made of judgment no. 2000-5493, where it was indicated that the independence of the Judicial Branch translates, in economic matters and by the irremovability of its personnel, as well as, functionally, by the real possibility of making its decisions according to its own criteria and not as a result of pressures from certain groups, institutions, or persons:

"Regarding the principle of judicial independence, we must point out that constitutionally this principle derives from article 153 of the Political Constitution, which states: 'The Judicial Branch is responsible, in addition to the functions assigned to it by this Constitution, for hearing civil, criminal, commercial, labor, and administrative contentious cases, as well as others established by law, whatever their nature and the status of the persons involved; for definitively resolving them and executing the rulings it pronounces, with the assistance of public force if necessary.' Article 154 of the Constitution, in this same sense, indicates: 'The Judicial Branch is subject only to the Constitution and the law, and the resolutions it issues in matters within its competence impose no other responsibilities than those expressly indicated by legislative precepts.' The legal framework established constitutionally related to judicial independence is complemented by articles 1 to 8 of the Organic Law of the Judicial Branch, which develop the constitutional premises. We must also refer to articles 162 to 173 of the Organic Law of the Judicial Branch, which mention the jurisdiction and competence of judges; it is particularly pertinent to quote the following: 'Article 162. The power to administer justice is acquired with the office to which it is attached and is lost or suspended for all matters when, for any reason, the judge ceases to be one or is temporarily suspended from his functions.' 'Article 165. Every judge's competence is limited to the territory and the class of matters assigned to him for its exercise; the proceedings that the cases he hears require to be carried out in the territory of another judge may only be performed through the latter, except for legal authorization to the contrary. The judge may only hear matters not submitted to his competence when it is legally extended or delegated to him. Taking into consideration the foregoing legal framework, this Chamber considers that the principle of the independence of the adjudicator could be defined as that power given by the Constitution and the law through which the judge, fulfilling his competency and jurisdictional scope, exercises the power delegated to him by the State to resolve a conflict raised by individuals or by the Administration itself. This principle is directly linked to the principles of unity and monopoly of jurisdiction, as well as impartiality and competence.

Judicial independence manifests itself on various levels. On the external level, it translates into the autonomy of the Judicial Branch in economic matters and by the irremovability of its personnel, as well as, functionally, by the real possibility of making its decisions according to its own criteria and not as a result of pressures from certain groups, institutions, or persons. Now, on the internal level, independence consists of the autonomy that lower judicial instances must enjoy in their decisions with respect to those of higher rank. Furthermore, in a Democratic State of Law such as ours, the other side of independence is the responsibility of judicial personnel, as well as the control over their activities. Regarding the content and nature of internal judicial independence, the judicial apparatus assumes that lower courts enjoy autonomy in their jurisdictional decisions with respect to those of higher rank. However, legally, the existence of the remedies traditionally provided for by law (appeal, review, cassation, and others) does not constitute a violation of this principle, unless they are used irregularly." All of the foregoing is contemplated in the following sources, some of which are not current norms in Costa Rica, but are documents reflecting clear doctrine on the subject:

• Political Constitution. Art. 9 (independent), 154 ("The Judicial Branch is subject only to the Constitution and the law…") and 177 (financial autonomy).

• Article 8.1 of the American Convention on Human Rights ("by a competent, independent, and impartial judge or tribunal").

• "Basic Principles on the Independence of the Judiciary," adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan from 26 August to 6 September 1985, and confirmed by the General Assembly in its resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, in principle 11.

• "European Charter on the Statute for Judges," adopted in Strasbourg, between 8 and 10 July 1998, paragraphs 6.1 and 6.4.

• "Statute of the Ibero-American Judge," approved at the VI Ibero-American Summit of Presidents of Supreme Courts and Supreme Tribunals of Justice, held in Santa Cruz de Tenerife, Canary Islands, Spain, on 23, 24, and 25 May 2001, in article 32 ("Art. 32. Remuneration. Judges must receive sufficient, lifetime tenure (irreductible) remuneration in accordance with the importance of the function they perform and the demands and responsibilities it entails.") • Report No. 1 of 23 November 2001, delivered by the Consultative Council of European Judges (CCJE), when examining the issue of the independence and irremovability of judges. Regarding the issue of judges' salaries.

• The Statute of Justice and Rights of Users of the Judicial System, approved by the Full Court, in whose articles 19, 20, 21, 22, 23, and 24, reference is made to the independence of the Judicial Branch and of judges. Article 49 of the cited Statute also enshrines, like the international instruments examined, the principle of the judge's lifetime tenure (irreductible) salary.

On the other hand, in addition to what has been said on the subject of public employment, it must be indicated that the basic principles derived from articles 191 and 192 of the Political Constitution are not alien to the Judicial Branch. Thus, for example, the Chamber has expressly referred to the principles derived from such numerals when resolving on the appointment system in the Judicial Branch (ruling no. 2001-05694). This must necessarily be complemented by the provisions of article 156 of the Political Constitution, which, regarding the Judicial Branch, establishes:

"ARTICLE 156.- The Supreme Court of Justice is the highest court of the Judicial Branch, and the courts, officials, and employees in the judicial branch depend on it, without prejudice to what this Constitution provides regarding civil service." Now then—and as it pertains to this inquiry—it must be indicated that there are several precedents from the Chamber in which it is expressly understood as fully justified that, in the specific case of the Judicial Branch, it has a special, separate, and differentiated regulation—although subject to the fundamental constitutional principles provided for in articles 191 and 192. One can cite, first, ruling no. 550-1991, which indicates:

"(…) in the case of the branches of government, their own constitutional independence, guaranteed in general by article 9 of the Constitution and, in those of the Judicial Branch and the Supreme Electoral Tribunal by those of articles 99 et seq., 152 et seq., and 177 of the same, as well as their own organic norms, impose on their highest authorities the attribution and responsibility of setting the remuneration, representation expenses, and other facilities inherent to the positions, of their own members and subordinates, within, naturally, their budgetary availabilities, regardless, of course, of whether their amounts may or may not coincide with those of the deputies." Subsequently, in ruling no. 01472-1994, the Chamber indicated that, indeed, articles 191 and 192 of the Political Constitution underpin the existence of "an employment regime governed by Public Law, within the public sector," with "its own general principles," so "the labor relations existing between the State and its servants must be conceived as a whole, regulated by general principles, provisions, and policies, without distinction, except for the exceptions expressly contemplated by law, regarding the functional centers on which those servants depend." Now then, in that same ruling, it was added:

"(…) this Chamber has established that the indiscriminate equalization of remuneration among the members of the public powers is not possible, since imposing equal treatment on situations or officials who are objectively in unequal circumstances would violate, in general, the principle of equality, and specifically in matters of salaries and working conditions, article 57 of the Constitution, given that the requirements, limitations, prohibitions, or conditions for exercising the office are not the same for officials or employees of the executive branch as for those of the members of the other branches or constitutional organs. Indeed, the principle of equality before the law is not absolute, as it does not grant a right to be equated with any individual, but rather to demand that the law not make differences between two or more persons who are in the same legal situation or identical conditions, meaning that equal treatment cannot be claimed when conditions or circumstances are unequal." Furthermore, regarding the exception of the Judicial Branch from the single employment regime and salary policy as government policy, in judgment no. 1994-3309, the Chamber expressed:

"VII.- Having defined salary policy as part of government policy, it is necessary to reiterate that when the constituent decentralized the Executive Branch, it sought to avoid arbitrary and anti-technical interference in the management of each of those institutions, defined by law. But the legislative constituent did not opt to create a salary or labor regime segregated from the central Executive Branch, as there is no doubt that Title XV, Single Chapter of the Political Constitution has as its immediate antecedent the previous practice of massively dismissing state officials and employees on the occasion of each change of government. The antithesis of this practice, then, is a stable, professional, permanent public service system, governed by an integrated and coherent normative body, establishing a single employment regime for public servants that includes the totality of State institutions, with the exception made in article 156 of the Magna Carta regarding the Judicial Branch." Meanwhile, in ruling no. 1996-03575, the Chamber pointed out that the competent state body in matters of public employment is each branch of the Republic, given that it is these—Executive, Legislative, Judicial, and the Supreme Electoral Tribunal—that are best equipped to determine their needs and understand their particular conditions:

"(…) From the cited jurisprudence, it emerges, in addition to the existence of the Public Employment Regime, that the ordinary legislator, when developing articles 191 and 192 of the Political Constitution in practice, did not do so through the promulgation of a single law but rather through the approval of several laws related to the subject in question, and an example of this is the Civil Service Statute, which is partial legislation applicable only to the servants of the Executive Branch. In this vein, and in accordance with Article 9 of the Constitution, in relation to the principle of separation of powers, interpreted by this Chamber in judgment No. 6829-93 of eight thirty-three hours on twenty-four December nineteen ninety-three, as a separation of functions by providing:

"II.- THE THEORY OF THE SEPARATION OF POWERS. The theory of the separation of Powers is traditionally interpreted as the need for each State Body to exercise its function independently of the others (Article 9 of the Political Constitution). Although there should be no interference or invasions of the assigned function, collaborations between Powers must necessarily occur. Currently, constitutional doctrine and practice affirm that absolute separation does not exist; moreover, nothing prevents the same function—not primary—from being exercised by two Powers or by all, which is why one cannot speak of a rigid distribution of competencies based on function and matter. The State is a unit of action and power, but that unity would not exist if each Power were an independent, isolated organism with broad freedom of decision, so in reality one cannot speak of a division of Powers in the strict sense; the Power of the State is unique, although state functions are several. It is appropriate to speak of a separation of functions, that is, of the distribution of them among the different state bodies. This separation of functions stems from the technical problem of the division of labor: the State must fulfill certain functions, and these must be carried out by the most competent state body..." Furthermore, and for greater abundance, this Chamber, in judgment number 990-92 at sixteen thirty hours on fourteen April nineteen ninety-two, provided: "Second: The positivization of the 'democratic principle' in Article 1 of the Constitution constitutes one of the pillars, the nucleus so to speak, on which our republican system rests, and in that character of supreme value of the Constitutional State of Law, it must have direct efficacy over the rest of the sources of the infraconstitutional legal system and obviously over the Regulations, from which it follows that the Parliament's power to dictate the norms of its own internal governance (interna corporis) is not only provided for by the Political Constitution in its Article 121 paragraph 22, but is consubstantial to the democratic system and specific to the Legislative Assembly as a constitutional power, under Title IX of the Fundamental Charter..." Thus, applying the foregoing principle to the matter under study, namely the Public Employment Regime, it is possible to conclude that the competent state body in this matter is each branch of the Republic, given that it is these—Executive, Legislative, Judicial, and the Supreme Electoral Tribunal—that are best equipped to determine their needs and understand their particular conditions." The foregoing is not an obstacle to including the Judicial Branch within a Public Employment Law, as has been explained supra, in the general recital of this judgment.

Subsequently, in ruling no. 1999-919, this Tribunal heard the constitutional inquiry formulated regarding the then bill for the Law of Financial Administration of the Republic and Public Budgets, which even contained—and contains—a provision analogous to the one introduced in the bill now under inquiry, which states:

"Article 1.- Scope of Application This law regulates the economic-financial regime of the bodies and entities administering or holding public funds. It shall be applicable to:

(…)

• b)The Legislative and Judicial Branches, the Supreme Electoral Tribunal, their dependencies and auxiliary bodies, without prejudice to the principle of separation of Powers enshrined in the Political Constitution.

(…)

On that occasion, this Chamber considered that, indeed, the principle of separation of powers was not infringed, given that—as derived from the rest of the articles of the bill—the guidelines and directives issued by the Executive Branch necessarily required the approval of the highest authorities of the bodies mentioned in the cited subsection b, who are "possessors of constitutional functional independence from the Executive Branch." Specifically, it was noted:

"Regarding the separation of powers, this Chamber considers that, from a careful reading of the cited numerals, it emerges that the bill under inquiry intends to give the Budgetary Authority powers to prepare, in the preliminary phase—since they later require approval by the Executive Branch—the guidelines and directives that will determine the functioning of the Administration in budgetary matters. The Chamber will refer to the efficacy of such provisions later in this same recital. Strictly regarding the bodies encompassed by subsection b) of article 1 of the bill, all of which are characterized by being possessors of constitutional functional independence from the Executive Branch, the very text of articles 21 subsection b) and 23 in fine provides that the approval of such directives is the responsibility of the highest authorities of those bodies, with the Budgetary Authority only having the function of proposing such guidelines. That is, the text itself provides a mechanism that respects the functional independence granted to the bodies of subsection b) of article 1 in budgetary matters, since the fact that the highest authorities of the mentioned bodies do not approve said guidelines entails no legal consequence. Due to the foregoing, it can be concluded that the cited articles do not represent any form of affront to the separation of powers, enshrined in article 9 of the Constitution." Subsequently, when this Chamber ruled specifically on the disciplinary regime in the case of the Judicial Branch and on its special regulations, in ruling no. 1995-01265, it was indicated:

"(…) the plaintiff must take into account that the Judicial Branch, despite being a Branch of the State, and being governed by Administrative Law, has a special regime owing to the function it carries out; and in matters of public employment relations, although the general principles are set out in Administrative Law and in Labor Law—as parameters—the specifications are regulated in accordance with the regulations that specifically refer to the Judicial Branch. Thus, it is governed in accordance with the provisions of the Organic Law of the Judicial Branch, the Judicial Service Statute, the Regulation on background competitions for appointing officials who administer justice, the Organic Law of the Judicial Investigation Agency, the Regulation on Qualification for Judicial Branch Employees, etc. As observed, this is a special regulation, which cannot be tacitly repealed by a later general norm, as the plaintiff claims." (reiterated ruling no. 2017-003450).

There are multiple rulings from the Chamber that highlight the particular relevance that the adequate regulation and application of the disciplinary regime entails for safeguarding the independence of the judge. The Chamber has highlighted the intimate relationship between judicial independence and the system of appointment, removal, and disciplinary regime of judges. Thus, for example, in ruling no. 2009-4849, an extensive development on this topic was made:

"(…) It is crucial for the proper functioning of the democratic State of Law—understood under its postulate of the primacy of law—that the jurisdictional function can be exercised without undue pressure, within a truly independent Judicial Branch, as the Chamber has established on repeated occasions:

"A) PRINCIPLE OF INDEPENDENCE.- The Political Constitution in its article 9 establishes that the Government of the Republic is exercised by three distinct and independent Branches: Legislative, Executive, and Judicial. Furthermore, the third paragraph of this article indicates the existence of the Supreme Electoral Tribunal with the rank and independence of the State Branches. The note of independence of the Judicial Branch in relation to the other State Branches must be highlighted. This independence must concur in the judges, who have the mission of administering justice.

Independence is the absence of subordination to another, the non-recognition of a greater power or authority. The independence of the judge is a legal concept, relating to the absence of legal subordination. The guarantee of irremovability and the incompatibility regime aim to ensure the total independence of the members of the Judicial Branch. (…)

It is thus how independence is a guarantee of the jurisdictional function itself. Independence is reputed in relation to the judge as such, as it is he who has the jurisdictional power. The aim is to prevent ties and relationships that could lead to a factual reduction of the judge's freedom." (judgment #2883-96 at 17:00 hours on 13 June 1996) Of course, the principle postulated in the abstract needs to be concretized in the person of each and every judge. In other words, the merely organic principle defended for the Judicial Branch is, at the same time, the independence guaranteed to each judge in his particular case, translated additionally and above all into the fundamental right of the parties in any process to have an impartial arbitrator who states the law of the case submitted for his consideration:

"VIII.- The independence of the Judicial Branch is constitutionally guaranteed in articles 9 and 154. The American Convention on Human Rights, a regulation of international rank with direct application in our country, also refers to the topic. The American Convention on Human Rights establishes the independence of the judge as a human right, by providing in article 8.1 that:

'1.- Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial judge or tribunal, previously established by law, in the substantiation of any criminal accusation formulated against him, or for the determination of his rights and obligations of a civil, labor, or any other nature.

2.- ...' The independence of the Judicial Body is set out externally. The Judicial Body is independent vis-à-vis the other State Branches, but not so the judge, whose independence must be analyzed in a more complex manner. But when it is ensured that a Judicial Branch is independent, the same must be predicated of its judges, for it is they who must make the function entrusted to the former a reality. The independence that should truly matter—without diminishing the importance of that of the Judicial Body—is that of the judge, related to the specific case, for it is this that functions as a citizen guarantee, in the terms of the American Convention on Human Rights. The effective independence of the Judicial Branch contributes to ensuring that the judges who comprise it can also be independent, but it is quite possible that the Body as a whole has normatively guaranteed its independence, yet its members are not independent, for multiple reasons." (judgment #5790- 99 at 16:21 hours on 11 August 1999) On this topic, pronouncement #5795-98 at 16:12 hours on 11 August 1998 can also be cited:

"From the provision in article 154 of the Political Constitution, which states:

'The Judicial Branch is subject only to the Constitution and the law, and the resolutions it issues in matters within its competence impose no other responsibilities than those expressly indicated by legislative precepts' derives the principle of the independence of the Judicial Branch, which encompasses both the body or institution as a whole, as well as the Judge in the knowledge of the matters submitted to his judgment. In relation to this official, it must also be recognized that there is a double protection to his investiture, since the independence of the judge—as a guarantee for the parties involved in the matter sub judice—is both external and internal, in the sense that he is protected from influences and incidences—both external and internal—that may sway his decision in one direction or another in a specific case submitted to his knowledge, so that they rule in strict adherence to the provisions of the current regulations; in other terms, the judge is protected so that neither the parties involved in the process, third parties, superior judges in degree, 'influential' members of the State Branches, even the Judicial, can influence his decision, therefore, even less could there be an obligation—imposed by a superior in degree—to rule in a certain way on a specific case or coerce the adjudicator in that sense. The guarantee of independence of judges, more than a guarantee for these officials—which indeed it is—constitutes a guarantee for individuals (parties to the process), in the sense that their cases will be decided in strict adherence to the Constitution and the laws." And in decision #2001-6632 at 16:21 hours on 10 July 2001, the importance and constitutional rank of the principle of independence of the Judicial Branch was emphasized:

"No one can today diminish the transcendental value that the independence of judges plays in the real functioning of the democratic rule of law. It is clearly accepted that more than a principle, and even beyond what could be pointed out as a privilege granted to the Judge, we are facing the right of citizens to have independent judges. But, simultaneously with this consideration of fundamental value, it can be affirmed that we are facing a task, if not unfinished, that at least demands an attitude of permanent vigilance, for the true endeavor to achieve independence in this field is historically recent. Moreover, being honest, it could be said that this right of persons (citizen, litigant, user, or however termed) is still not well received—incorporated and applied—in legal systems. As some authors point out, the formula according to which the judge 'only' has to be subject to the law (similar to how our article 154 of the Constitution gathers it) was conceived entirely aimed at excluding the intervention or interference of the sovereign (monarch) in jurisdictional decisions. Of course, in the interest of placing the judge safely beyond the sovereign's reach, he was abruptly ascribed to the conception of a mechanical or quasi-mechanical application of the law as an expression of popular sovereignty, a matter which, fortunately, is now totally surpassed. Therefore, in a correct understanding of the institutional benefits of having—yesterday, today, and always—independent judges, we must retain the concept of 'sovereign' to apply it to anyone who, from outside or beyond the procedurally established means for reviewing judges' resolutions, wants to unduly impose criteria or forms of action upon them. In the modern design of the Costa Rican legal system, not even the law is sovereign, since the judge is not subject to the law, whatever it may be, but to the law that is also legitimately constitutional, but ultimately, there will even be hypotheses in which he will be subject, above a Constitutional provision, to a norm or a principle contained in some international Human Rights instrument in force in the country. This is enshrined at the highest level of our system, and in that sense we can refer to article 48 of the Political Constitution. As referred to, article 154 of the Constitution gathers the principle of the independence of the judge, but moreover, despite not having the legal potency that might be desired, finally the Code of Judicial Ethics can be cited, definitively approved by our Supreme Court of Justice on the twenty-eighth day of February of the year two thousand, whose article second, in the pertinent part, provides:

'Article 2°. A PRIORI PRINCIPLES OF THE RULES OF THIS CODE.

Aprioristic principles, necessary for the proper functioning of the administration of justice, are understood as:

… 2.

The independence of the Judge, who is subject only to the Constitution and the law, that is, to the legal order, its higher values and principles…" In accordance with the foregoing, it must be affirmed that the judge has no sovereigns over him or her in the jurisdictional performance, and for that very reason, he or she is protected through prohibitions or incompatibilities from engaging in other types of activities, given that, from this angle of analysis as well, independence becomes a guarantee of impartiality, a feature that must accompany the exercise of jurisdiction day to day." IV.- In harmony with the preceding jurisprudential line, the Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan from 26 August to 6 September 1985, and confirmed by the General Assembly in its resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, provide:

"Independence of the judiciary "1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. (…)" A text that confirms that it is with respect to judges considered in their individual sphere that the difference between external and internal independence is especially pertinent, understanding the former as independence from other state organs or entities, as well as from pressure groups in general, while the latter warns about coercion that may be exercised within the judicial organization itself, whether by jurisdictional authorities of higher instances or by administrative officials who are in a position of power over judges.

V.- Relationship of judicial independence with the appointment, removal, and disciplinary regime of judges. It is no coincidence that the various instruments and declarations dealing with the subject of judicial independence address administrative aspects such as the appointment of judges, their removal, and the application of disciplinary sanctions. In that practical and individualized dimension, their protective jurisdiction (fuero) is ultimately at stake in the face of all kinds of pressures. A judge who can be appointed through opaque mechanisms, or whose removal or sanction can occur without sufficient justification by any type of authority, is a judge in a frankly vulnerable situation. The UN Basic Principles on the Independence of the Judiciary, cited above, stipulate:

"Disciplinary measures, suspension and removal from office.

"17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.

18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.

19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.

20. Decisions in disciplinary, suspension or removal proceedings shall be subject to an independent review. This principle may not apply to the decisions of the highest court and to those of the legislature in impeachment or similar proceedings." Similarly, the Statute of the Ibero-American Judge, adopted by the International Union of Magistrates, addresses the exercise of sanctioning power over judges:

"6.- DISCIPLINARY REGIME.

The Law shall define, as specifically as possible, the acts that constitute disciplinary infractions of Judges.

The entity with disciplinary competence shall be, exclusively, the Judiciary itself.

The disciplinary procedure, which may be initiated by any person, organ of sovereignty or of the State, shall give rise to the use of all means of defense and specifically adversarial proceedings.

The most serious disciplinary sanctions may only be adopted by a qualified majority." The same trend is followed by the Universal Statute of the Judge, approved at the meeting of the Central Council of the International Union of Magistrates in Taipei, Taiwan, on 17 November 1999:

"Art.11: Administration and principles regarding discipline.

The administrative and disciplinary management of the members of the judiciary must be exercised under conditions that allow preserving their independence, and is founded on the implementation of objective and adapted criteria.

When this is not sufficiently ensured by other means resulting from a proven tradition, judicial administration and disciplinary action must be the competence of an independent body composed of a substantial and representative part of judges.

Disciplinary sanctions against judges can only be adopted for reasons initially provided for by law, and observing predetermined procedural rules." Additionally, for merely illustrative purposes, it is considered relevant to bring up that the European Commission for Democracy through Law, known as the Venice Commission (an advisory body of the Council of Europe on constitutional matters), when rendering an opinion on the Law on Disciplinary Responsibility and Procedures of Ordinary Judges in Georgia, in March 2007, emphasized the necessary balance between the disciplinary responsibility of judges and the guarantees of their independence, without compromising the latter by uselessly limiting it. On that occasion, provision 5.1 of the European Charter on the Statute for Judges was recalled, which states:

"A judge's failure to fulfill one of his or her duties expressly established in the statute may only give rise to a sanction if it is imposed by a decision, based on a proposal, recommendation or agreement of a jurisdiction or body composed of at least one half of judges; and within the framework of an adversarial procedure where the judge under investigation may be assisted by a defender. The scale of sanctions that may be applied must be specified by the statute and its application subject to the principle of proportionality. (…)" Thus, the disciplinary regime could become a threatening tool for the independence of the judge and, indirectly, for the Rule of Law. A judge cannot be removed from office during the duration of his or her term, nor sanctioned, except for serious reasons (ethical violation, ineptitude, for example), following the guarantees of due process. Appropriate procedures for appointment, promotion, and in disciplinary matters—which are not only set forth on paper, but are complied with in practice—are essential to protect what has been called the security of tenure (seguridad de permanencia) of judges. In the specific case of the sanctioning power, a well-structured disciplinary procedure, the protections of due process, and the proportionality between sanction and infraction reduce vulnerability to abuses that harm judicial independence." For its part, in vote n°2017-009551, the Chamber analyzed the constitutionality of subsection g) of Article 2 of the Worker Protection Law (Ley de Protección al Trabajador), which provided: "Supervised entities. All authorized entities, the CCSS in relation to the Disability, Old Age, and Death Regime, and all entities administering pension regimes created by laws or collective agreements, prior to the entry into force of this law." It was questioned, in particular, that SUPEN could oversee the Pension and Retirement Fund of the Judiciary (Fondo de Pensiones y Jubilaciones del Poder Judicial). In that precedent, the content of the principle of separation of functions was analyzed, in relation to the principles of unity, coordination, and unity of the State. Ultimately, it was concluded that the regulation was constitutional, because for it to be unconstitutional it would have to:

"effectively interfere with the constitutional powers to order, plan, or program, for example, the administrative function of personnel management, of administering justice, or functions related to it, which would be beyond the reach of the legislator, but this is not the case. On the other hand, the problem does not seem to be moving towards the interference that an excess of regulation by the legislator would produce regarding the forms and means that the Supreme Council of the Judiciary (Consejo Superior del Poder Judicial) must use to achieve the purposes established for the fund; if that were the case, it could be judicially challenged on those grounds." In that same vote, the importance of the Judiciary in the Rule of Law and the exercise of its administrative function with independence were emphasized:

"The Judiciary is not today an 'empty' or 'devalued' power (as it was considered in the beginnings of the modern State); it is precisely one of the clear objectives of dictators to lower the profile of its independence, to undermine economic independence, or by filling the courts with 'ideologically oriented' judges (court-packing that fortunately did not occur in the USA despite a large partisan majority in Congress in tune with its president F. D. Roosevelt, but with somber criticism within his own ranks); if the importance of the Judiciary in the social and democratic Rule of Law for its correct functioning is not recognized, its weakening leads to anti-democratic forms of government, proof of which is that one of the functions that authoritarian or totalitarian governments first control is the judicial one, hence the importance that every democratic system has a robust Judiciary." (…) "both legislative and judicial functions require an administrative support structure for the achievement of their essential or primary function, such as the administrative function that helps channel all its activity; which, logically, reaches the human resources or personnel of the Powers of the Republic, meanwhile, behind the fundamental function is the administrative one regarding personnel, agents, and public servants, etc." Thus, in vote n°2018-019511, in which the legislative consultation regarding the bill "Law for the Strengthening of Public Finances" (Ley de Fortalecimiento de las Finanzas Publicas) (legislative file no. 20.580) was heard, this Chamber concluded—after carrying out an interpretive task regarding the content of the bill—that, specifically, the provisions of numerals 46, 47, and 49, concerning the "governing authority of Mideplán over public employment matters" and "the mandatory nature of the technical and methodological guidelines of the Civil Service Directorate General (Dirección General del Servicio Civil)," did not apply to the Judiciary. This interpretation was made, taking into consideration the principle of independence of the Judiciary. In particular, it was indicated:

"The reading of the constitutional framework begins with the recognition of the independence of the Judiciary, one of the cardinal foundations of our Rule of Law:

"ARTICLE 9.- The Government of the Republic is popular, representative, participatory, alternating, and responsible. It is exercised by the people and three distinct and independent Powers. The Legislative, the Executive, and the Judicial.

None of the Powers may delegate the exercise of functions that are proper to them. (…)" "ARTICLE 154.- The Judiciary is subject only to the Constitution and the law, and the resolutions it issues in matters within its competence impose no other responsibilities upon it than those expressly indicated by legislative precepts." "ARTICLE 156.- The Supreme Court of Justice is the superior court of the Judiciary, and the tribunals, officials, and employees in the judicial branch depend on it, without prejudice to what this Constitution provides regarding civil service." These constitutional provisions have given rise to the development of a profuse normative framework, specifically designed to regulate the Judiciary. Among the norms of this framework are the Organic Law of the Judiciary (Ley Orgánica del Poder Judicial), the Organic Law of the Public Ministry (Ley Orgánica del Ministerio Público), the Organic Law of the Judicial Investigation Agency (Ley Orgánica del Organismo de Investigación Judicial), the Salary Law of the Judiciary (Ley de Salarios del Poder Judicial), the Judicial Service Statute (Estatuto de Servicio Judicial) (including its reform by the Judicial Career Law (Ley de Carrera Judicial)), etc.

Clearly, the norms stated above are intended to concretely regulate the Judiciary, ensuring that its independence from the other Powers of the Republic is guaranteed.

The fact that the Judiciary enjoys particular regulation brings the second point of analysis of the systematic interpretation to the fore. In this sense, it must be studied whether there are particular norms for the Judiciary and verify their relationship with the challenged articles.

Regardless of whether ordinal 47 of the bill speaks of 'exceptions' (salvedades), it is observed that the evaluation of performance and competence in employment decision-making, whether general or specific, are already regulated by the aforementioned normative framework of the Judiciary, making it impossible for an external entity to assume 'governing authority' (rectoría) or impose criteria on that Power. Moreover, said normative framework is designed to guarantee the efficiency of the judicial function and protect judicial servants from external interference (injerencias), as indicated by Article 1 of the Judicial Service Statute:

"Article 1.- This Statute and its regulations shall govern the relations between the Judiciary and its servants, with the aim of guaranteeing the efficiency of the judicial function and protecting those servants." Note that the norm determines that employment relations between the Judiciary and its servants are regulated by the Statute and its regulations. The systematic interpretation required by that numeral prevents an indirect regulation of the judicial service through directives or guidelines originating from other bodies. This is verified because the issuance of the regulation referred to in the norm is, in turn, the exclusive competence of the Court, as the same Statute indicates:

"Article 5.- Before issuing internal work regulations, whether of a general nature for all judicial servants or applicable only to a group of them, the Court shall make the respective draft known to those servants, by the most appropriate means, so that they may make observations in writing on the matter, within a period of fifteen days.

The Court shall take those observations into account to resolve as appropriate, and the regulation it issues shall be mandatory without further formality, eight days after its publication in the 'Judicial Bulletin' (Boletín Judicial)." A further guarantee of the Judiciary's independence in employment matters is that the Head of the Personnel Department is linked to the President of the Court, excluding interference from external bodies:

"Article 6.- The Personnel Department of the Judiciary shall function under the direction of a Head who shall report directly to the President of the Court and shall be appointed by the Full Court (Corte Plena)." Then, the detail of the regulations of the Judicial Service Statute distinguishes the different competences in matters of performance evaluation, which corroborates the existence of special regulations for that Power. Thus, for example, numerals 8 and 10 of the Judicial Service Statute read:

"Article 8.- It corresponds to the Head of the Personnel Department:

• c)To establish the procedures and technical instruments necessary for greater efficiency of personnel, among them the periodic service evaluation (calificación periódica de servicios), the file and record of each servant, and the forms that are of technical utility; (…)

Article 10.- The periodic service evaluation shall be carried out annually by the Head of each judicial office with respect to the subordinates working therein, using special forms that the Head of the Personnel Department shall send to the different offices in the months he determines. (…)" That is, the periodic service evaluations of judicial personnel, such as the annual evaluation, are carried out through the procedures established by the Head of the Personnel Department of the Judiciary. These are special norms, pertaining exclusively to the Judiciary, which would prevail over the general norms of the bill, should they enter into force.

The Chamber highlights that the bill does not repeal or modify in any way the provisions transcribed above, nor any other of the Judicial Service Statute. This Statute governs the matter of employment in the Judiciary and represents a guarantee for judicial servants, in accordance with the constitutional postulates that safeguard judicial independence; its modification or repeal could not be tacit nor come from a mere inference, as this would denote ignorance of the rules of hermeneutics.

On the other hand, facing the question that Article 49 of the bill orders the Judiciary to mandatorily comply with the guidelines of the Civil Service Directorate General, the truth is that the relationship between said Directorate and the Judiciary is governed by a specific norm, as derived from the cited ordinal 8:

"(…) The Head of the Personnel Department may make the necessary inquiries to the Civil Service Directorate General and request from this Directorate the corresponding advice, for the better performance of his functions. (…)" That is, the legal framework of the Judiciary provides the power of the Head of its Personnel Department (today called Human Resources) to consult the Civil Service Directorate General and request its advice for the performance of its functions. Said functions include, as was seen, the obligation to determine the procedures and technical instruments for the periodic service evaluation of personnel (numeral 8 cited above). Such provision of special law makes the questioned norms of bill n°20.580 inapplicable to the Judiciary.

Again, it is recalled that this is a special norm that has precedence over the general provision. Furthermore, it is highlighted that the norms of the Judicial Service Statute would remain intact after the reform proposed by bill n°20.580, as it does not modify or repeal them.

In conclusion, given that Chapter VI of the intended modification to the Public Administration Salary Law (Ley de Salarios de la Administración Pública) contemplates an exception for the Judiciary, coupled with the fact that the latter has special legal-rank regulations related to the performance evaluation of its officials, it is not observed that the consulted bill actually affects the organization or functioning of the Judiciary." In that same vote, it was indicated that the special norms regulating the Judiciary ensure that its independence from the other powers is guaranteed, and the constitutional systematic interpretation prevents an indirect regulation of the judicial service through directives or guidelines originating from other bodies:

"The reading of the constitutional framework begins with the recognition of the independence of the Judiciary, one of the cardinal foundations of our Rule of Law: "ARTICLE 9.- The Government of the Republic is popular, representative, participatory, alternating, and responsible. It is exercised by the people and three distinct and independent Powers. The Legislative, the Executive, and the Judicial. None of the Powers may delegate the exercise of functions that are proper to them. (…)" "ARTICLE 154.- The Judiciary is subject only to the Constitution and the law, and the resolutions it issues in matters within its competence impose no other responsibilities upon it than those expressly indicated by legislative precepts." "ARTICLE 156.- The Supreme Court of Justice is the superior court of the Judiciary, and the tribunals, officials, and employees in the judicial branch depend on it, without prejudice to what this Constitution provides regarding civil service." These constitutional provisions have given rise to the development of a profuse normative framework, specifically designed to regulate the Judiciary. Among the norms of this framework are the Organic Law of the Judiciary (Ley Orgánica del Poder Judicial), the Organic Law of the Public Ministry (Ley Orgánica del Ministerio Público), the Organic Law of the Judicial Investigation Agency (Ley Orgánica del Organismo de Investigación Judicial), the Salary Law of the Judiciary (Ley de Salarios del Poder Judicial), the Judicial Service Statute (Estatuto de Servicio Judicial) (including its reform by the Judicial Career Law (Ley de Carrera Judicial)), etc. Clearly, the norms stated above are intended to concretely regulate the Judiciary, ensuring that its independence from the other Powers of the Republic is guaranteed." (…) "Moreover, said normative framework is designed to guarantee the efficiency of the judicial function and protect judicial servants from external interference (injerencias), as indicated by Article 1 of the Judicial Service Statute: "Article 1.- This Statute and its regulations shall govern the relations between the Judiciary and its servants, with the aim of guaranteeing the efficiency of the judicial function and protecting those servants." Note that the norm determines that employment relations between the Judiciary and its servants are regulated by the Statute and its regulations. The systematic interpretation required by that numeral prevents an indirect regulation of the judicial service through directives or guidelines originating from other bodies. This is verified because the issuance of the regulation referred to in the norm is, in turn, the exclusive competence of the Court, as the same Statute indicates: "Article 5.- Before issuing internal work regulations, whether of a general nature for all judicial servants or applicable only to a group of them, the Court shall make the respective draft known to those servants, by the most appropriate means, so that they may make observations in writing on the matter, within a period of fifteen days. The Court shall take those observations into account to resolve as appropriate, and the regulation it issues shall be mandatory without further formality, eight days after its publication in the 'Judicial Bulletin' (Boletín Judicial)." A further guarantee of the Judiciary's independence in employment matters is that the Head of the Personnel Department is linked to the President of the Court, excluding interference from external bodies: "Article 6.- The Personnel Department of the Judiciary shall function under the direction of a Head who shall report directly to the President of the Court and shall be appointed by the Full Court (Corte Plena)." (The underlining does not correspond to the original).

Regarding the special character of the Judicial Service Statute, its salary scale, and its relationship with judicial independence in this matter, the following was indicated:

"The Statute governs the matter of employment in the Judiciary and represents a guarantee for judicial servants, in accordance with the constitutional postulates that safeguard judicial independence; its modification or repeal could not be tacit nor come from a mere inference, as this would denote ignorance of the rules of hermeneutics." (…) "The Chamber does not fail to underline that the norms of the Organic Law of the Judiciary, Salary Law of the Judiciary, and the Judicial Service Statute are not affected by the proposed reform. Said norms enable the autonomy of the Judiciary in relation to changing its salary scale or varying the base salaries." The salary matter was concretely analyzed, stating:

"Regarding the salary matter.

Pertaining to this point, the already mentioned agreement proposes:

"2.) In accordance with the preceding report, it is determined that the bill does affect the organization and functioning of the Judiciary, and that there is opposition to it, provided that what refers to:

(…)

d.- The restrictions established in the bill regarding salary matters and their respective components for the officials of the Judiciary." After analyzing the articles of bill n°20.580 concerning the modifications to the Public Administration Salary Law, the Chamber recalls that the affectation of the salary of judicial officials can impact judicial independence. As briefly expressed in the cited vote n°2018-5758 of 15:40 hours on 12 April 2018:

"(…) What is part of judicial independence is that judges have dignified economic sufficiency (suficiencia económica digna), whether active or inactive, (…)" Now, it must be highlighted that the questioned regulation is not particular for judicial officials, but broadly encompasses the Public Administration. The importance of this point lies in the fact that the Chamber has upheld a solid criterion regarding the inadmissibility of mandatory institutional consultations (such as those provided for in numerals 167 and 190 of the Political Constitution), when a bill is of a national or general nature:

(…)

In the case at hand, the norms of the bill related to salary matters have general application, without this Tribunal having elements to consider that they will affect the financial sustenance of officials dedicated to the administration of justice to such a degree that at least 'dignified economic sufficiency' is not ensured.

The Chamber does not fail to underline that the norms of the Organic Law of the Judiciary, Salary Law of the Judiciary, and the Judicial Service Statute are not affected by the proposed reform. Said norms enable the autonomy of the Judiciary in relation to changing its salary scale or varying the base salaries. In that sense, note what was stated by the Minister of Finance before the Full Court (Corte Plena):

"Regarding the possibility that the bill affects the independence of the Judiciary by regulating the application of certain bonuses, I would like to respectfully point out that the bill does not affect or eliminate the power of the Judiciary to modify its salary scale or modify the base salaries. Therefore, if the Judiciary considered it necessary to increase the salary of any official, it has full power and autonomy to do so. Particularly, if the Judiciary considers that, given the regulation of the exclusive dedication bonus (dedicación exclusiva) or the seniority bonuses (anualidades), it is necessary to increase the salary of any official, it can do so under its independence in salary matters." This observation is not only shared by the Chamber, but determines with indisputable clarity that the consulted bill does not affect the organization or functioning of the Judiciary in salary matters.

On the basis of the foregoing, the Chamber determines that the questioned regulation of legislative bill 20.580 does not affect, in the sense expressed, the organization or functioning of the Judiciary." Finally, more recently, in vote n°2019-25268, in which respective agreements of the Full Court related to the salary increase of judges, prosecutors, and public defenders (as well as Chamber Secretaries and assistant lawyers) were challenged, the Chamber resolved:

"Likewise, this Tribunal, in judgment number 550-91 of 18:50 hours on 15 March 1991, mentioned that, 'in the case of the powers, their own constitutional independence, guaranteed in general by Article 9 of the Constitution and, in those of the Judiciary and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones) by those of Articles 99 and following, 152 and following and 177 thereof, as well as their own organic norms, impose on their heads the power and the responsibility to set the remuneration, representation expenses, and other facilities inherent to the positions, for their own members and subordinates, within, naturally, their budgetary availabilities, independently, of course, of whether their amounts may or may not coincide with those of the deputies.' From the above, it is deduced that salaries in the Judiciary must set the remuneration, representation expenses, and other facilities inherent to the positions, for their own members and subordinates, within, naturally, their budgetary availabilities, it being the case that there are positions that will hold different remunerations, which does not violate the principle of equality.

Likewise, the challenged agreements do not injure the principles of reasonableness or proportionality, nor other principles such as legality and legitimate expectations (confianza legítima), since those agreements were approved by the Full Court, that is, by the body normatively empowered for such a situation. The foregoing, in exercise of its constitutional and legal competences that have been attributed to it." In this regard, it is necessary to recall that Article 9 of the Political Constitution states that “the Government of the Republic is popular, representative, participatory, alternative, and responsible. It is exercised by the people and three distinct and mutually independent Branches. The Legislative, the Executive, and the Judicial.” Likewise, numeral 152 of the Political Constitution states that “the Judicial Branch is exercised by the Supreme Court of Justice and by the other tribunals established by law.” In a similar vein, Article 154 of the same constitutional text establishes that “the Judicial Branch is subject only to the Constitution and the law, and the resolutions it issues in matters within its competence impose no other responsibilities than those expressly indicated by legislative precepts.” Following the line imposed in the Magna Carta, the Organic Law of the Judicial Branch, in its Article 2, mentions that “the Judicial Branch is subject only to the Political Constitution and the law. The resolutions it issues, in matters within its competence, impose no further responsibilities than those expressly indicated by legislative precepts. However, the superior authority of the Court shall prevail over its performance, to guarantee that the administration of justice is prompt and fulfilled.” Similarly, numeral 59 of that same law states that “it is incumbent upon the Supreme Court of Justice: (…) 3.- To approve the draft budget of the Judicial Branch, which, once enacted by the Legislative Assembly, it may execute through the Council.” In this same line, the Civil Service Statute, in Article 8, determines that “it is incumbent upon the Head of the Personnel Department: a) To analyze, classify, and evaluate the positions of the Judicial Branch covered by this law, and to assign them the respective category within the Salary Scale of the Salary Law, all subject to the subsequent approval of the Full Court.” Likewise, numeral 62 of that regulatory body establishes that “the Personnel Department shall carry out studies to determine the possible amount of benefits to be recognized to judicial servants in accordance with the Salary Law, so that the Full Court makes the necessary allocations in the budget for each year.” In summary, the challenged agreements do not violate the principles of reasonableness, proportionality, legality, or legitimate expectations, since these agreements were approved by the Full Court, that is, by the body normatively empowered for such a situation. The foregoing, in attribution of its constitutional and legal competencies that have been attributed to it.” In this way, based on the previously transcribed precedents, it can be derived that this Chamber has recognized that the Judicial Branch is key to Costa Rican democracy, so much so that, “The fact that Costa Rica today has the oldest and most stable democracy in Latin America is unimaginable without the functioning of a robust justice administration system and without the recent efforts to modernize it.” (see ruling no. 2018-005758). Thus, “if the Judicial Branch is not given importance in the social and democratic Rule of Law for its correct functioning, its weakening leads to anti-democratic forms of government; proof of this is that one of the functions that authoritarian or totalitarian governments first control is the judiciary, hence the importance of every democratic system having a robust Judicial Branch.” (see ruling no. 2017-09551). The principle of judicial independence is precisely key to this robustness. Regarding public employment, the subjection of the Judicial Branch to the fundamental principles of the public employment regime of Article 191 is clear. Even in accordance with Article 11 of the Political Constitution, it is clear that the Judicial Branch is subject to the respective results evaluation and accountability procedure. However, the Chamber has understood it as valid and justified that the Judicial Branch has its own regulatory framework, which regulates specifically, particularly, and differentially the employment relationships between said Branch and its servants and the evaluation of their performance. Moreover, it has been indicated that said regulatory framework (comprised of, among others, the Organic Law of the Judicial Branch, the Organic Law of the Public Ministry, the Organic Law of the Judicial Investigation Agency, the Salary Law of the Judicial Branch, and the Judicial Service Statute) is specifically designed to guarantee the efficiency of the judicial function and the independence of the Judicial Branch. To the point that it has been established as a jurisprudential criterion that one is in the presence of special regulations that prevail over general provisions and cannot be tacitly repealed by a later norm of a general nature. Likewise, the Chamber has expressly referred to the impropriety of an external instance assuming the stewardship or imposing criteria on the Judicial Branch in these matters. On the contrary, it has highlighted that the independence and functional autonomy expressly recognized to the Judicial Branch in the constitutional text itself (Articles 9, 152 et seq., and 177) and materialized and guaranteed in its own organic norms, imposes on the heads of the Judicial Branch the competence and responsibility to decide—without undue interference—on the various matters that are the subject of regulation in the legislative bill under consultation.

Finally, regarding Comparative Law, it is appropriate to mention Article 64 of the French Constitution of 1958, which states that the President of the Republic is primarily called upon to guarantee the independence of the judicial authority, and that it is an Organic Law, specific to the Judicial Branch, that will regulate the legal statute of magistrates (magistrados). Thus it reads:

“ARTICLE 64.

Le Président de la République est garant de l'indépendance de l'autorité judiciaire.

Il est assisté par le Conseil supérieur de la magistrature.

Une loi organique porte statut des magistrats.

Les magistrats du siège sont inamovibles.” (Free translation: “Article 64. The President of the Republic is the guarantor of the independence of the judicial authority. For this, the President of the Republic is assisted by the Superior Council of the Magistracy. An organic law shall regulate the legal statute of Magistrates. Elected magistrates are irremovable.”) Now, what has been indicated in the various precedents cited above, in the sense that this Chamber has understood it as valid and justified that the Judicial Branch has its own regulatory framework, which regulates specifically, particularly, and differentially the employment relationships between said Branch and its servants, does not exclude recognizing that the Legislative Assembly is empowered by the Law of the Constitution—according to the original constituent's intention, as developed in Considerando VIII of this ruling—to establish a single statute encompassing all public servants, including officials of the Judicial Branch, provided that such regulations, by their content or effects, do not suppress, essentially affect, or entail transferring the exclusive and excluding competencies that correspond to the Judicial Branch to other organs and entities, in violation of the principle of separation of powers or functions and, very particularly, the principle of judicial independence, as will be analyzed below, regarding the various norms consulted.

• 3)On the examination of the consulted Articles On Article 2.a (scope of coverage), with respect to the Judicial Branch (Drafted by Judge Castillo Víquez) A consultation is made on the following norm:

“ARTICLE 2- Scope of coverage This law is applicable to public servant persons of the following entities and organs under the principle of the State as sole employer:

• a)The Branches of the Republic (Executive, Legislative, and Judicial), their auxiliary and attached organs, and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones, TSE), without prejudice to the principle of separation of Branches established in the Political Constitution.

(…)” Given this panorama, and returning to what was stated supra, in the sense that it is plausible to subject all branches of the State to a single public employment statute, with which the subjection of the Judicial Branch to this law is not unconstitutional, it is unconstitutional because it does not exclude the officials who exercise jurisdictional functions—judges—or para-jurisdictional functions—prosecutors, public defenders, and professionals and specialized personnel of the Judicial Investigation Agency, etc.—and the officials at the managerial or high policymaking level as the legislative bill calls them, as well as the officials of the Supreme Electoral Tribunal who exercise electoral functions—law clerks, Department directors, professionals, etc., and those who hold high policymaking positions—as well as the administrative, professional, and technical personnel, defined exclusively and excludingly by each head of the respective branch, since, in these cases, it is not possible to subject them to directives, provisions, circulars, or manuals issued by MIDEPLAN. The foregoing means that the Judicial Branch would indeed be subject to those powers that the law grants to MIDEPLAN when it concerns the rest of the officials—those defined by each head of the Judicial Branch and the Supreme Electoral Tribunal in an exclusive and excluding manner—who form part of the administrative staff, auxiliary or support personnel. One could argue against what we are affirming that numeral 49 of the legislative bill under consultation, in subsection g) which adds Article 85 to Law No. 5155, Estatuto Judicial, of 10 January 1973, indicates that the competencies in the legislative bill, for the organs of the Judicial Branch, will be carried out in coordination with MIDEPLAN, in matters referred to by the cited bill; and subsection h), which adds Article 17 to Law No. 2422, Ley de Salarios del Poder Judicial, of 11 August 1959, indicates that the competencies defined in the legislative bill, for the organs of the Judicial Branch, are also carried out in coordination with the cited ministry, in the same direction, as well as the fact that subsection a) of Article 2 establishes that the scope of coverage of the legislative bill is without prejudice to the principle of separation of Branches established in the Political Constitution, the Judicial Branch shall do so through institutional coordination with MIDEPLAN, therefore it is not true that the former is subjected to the directives, provisions, circulars, manuals that the latter issues in what concerns it; however, such an objection is unjustified due to the imprecision of the regulations intended to be approved, because in a matter of such importance the Law must be clear and precise, an aspect that, in many cases, is lacking. Hence, it is pertinent to conclude that there are indeed vices of unconstitutionality. Note that in numeral 3 of the legislative bill under consultation, which regulates the exclusion of entities from these regulations, no safeguard is made in favor of the Judicial Branch and the Supreme Electoral Tribunal.

On Article 6 (stewardship of MIDEPLAN), with respect to the Judicial Branch (Drafted by Judge Castillo Víquez) A consultation is made on the following norm:

“ARTICLE 6- Creation of the General Public Employment System The stewardship of the General Public Employment System shall be the responsibility of the Ministry of National Planning and Economic Policy (Mideplán). Said system shall be composed of the following:

• a)The Ministry of National Planning and Economic Policy (Mideplán).
• b)The offices, departments, areas, directorates, units or homologous denominations of Human Resources Management of the entities and organs under the scope of application of this law. (…)” In relation to Article 6, subsection b, of the legislative bill under consultation, it is unconstitutional, since it subjects the Judicial Branch and the Supreme Electoral Tribunal to the directive power of the Executive Branch, which is contrary to the principles of judicial and electoral independence. Hence, the offices, departments, areas, directorates, Human Resources Management units of these branches cannot be under said power, except with regard to those who provide basic administrative, auxiliary services that do not affect the exclusive and excluding competencies or administrative functions necessary for the fulfillment of these, defined exclusively by the heads of the Judicial Branch and the Supreme Electoral Tribunal.

On Article 7 (competencies of MIDEPLAN), with respect to the Judicial Branch (Drafted by Judge Castillo Víquez) A consultation is made on the following norm:

“ARTICLE 7- Competencies of MIDEPLAN The competencies of the Ministry of National Planning and Economic Policy (Mideplan) are the following:

• a)To establish, direct, and coordinate the issuance of public policies, national programs, and plans on public employment, in accordance with Law 5525, Ley de Planificación Nacional, of 2 May 1974.
• b)To establish mechanisms for discussion, participation, and consensus-building with municipal corporations through the Union of Local Governments and state university higher education institutions, in matters of public employment.
• c)To issue provisions of general scope, directives, and regulations, aimed at the standardization, simplification, and coherence of public employment, as prescribed in Law 6227, Ley General de la Administración Pública, of 2 May 1978, and Article 46 of Law 2166, Ley de Salarios de la Administración Pública, of 9 October 1957.
• d)To advise the entities and organs included under the scope of coverage of this law on the correct implementation of public policies, provisions of general scope, directives, and regulations issued within the framework of the policy stewardship in public employment and Law 6227, Ley General de la Administración Pública, of 2 May 1978, and Article 46 of Law 2166, Ley de Salarios de la Administración Pública, of 9 October 1957.
• e)To administer and keep updated the integrated public employment platform.
• f)To publish the public employment offer, through the virtual platform that will be fed by the entities and organs included within the scope of coverage of this law.
• g)To issue the guidelines and general principles for performance evaluation.
• h)To administer and implement research, innovation, and public employment proposal formulation actions.
• i)To direct and coordinate the execution of inherent competencies in matters of public employment with the Ministry of Finance, the Ministry of Labor and Social Security, the Budgetary Authority, and the Dirección General de Servicio Civil, among other technical dependencies in the matter of public employment, concerning the matter of public employment.
• j)To collect, analyze, and disseminate information on public employment from entities and organs for their improvement and modernization. For this purpose, it shall establish a system of indicators, through the establishment of coordination criteria, to homogenize data collection and dissemination.
• k)To prepare a coherent and comprehensive strategy for learning and development throughout the public service, establishing how long-term capacity for higher management standards and professional competence will be developed and providing guidance to public institutions on how to plan and implement activities within the strategy.
• l)To coordinate with the Public Ethics Procuratorship to issue provisions of general scope, directives, and regulations for the instruction of public servant persons on the duties, responsibilities, and functions of the position, as well as the ethical duties governing public function, as procedurally appropriate according to Law 6227, Ley General de la Administración Pública, of 2 May 1978, and Article 46 of Law 2166, Ley de Salarios de la Administración Pública, of 9 October 1957.
• m)To establish a single and unified remuneration system for the public function in accordance with this law and specific to the salary and benefits of all public official persons.
• n)To perform human resources diagnostics of the included entities and organs to achieve an adequate redimensioning of existing payrolls and the elaboration of general criteria that delimit the sectors whose activity, due to their strategic institutional value and connection to the substantive activity, should be reserved to be performed exclusively by public servant persons. Furthermore, to analyze those that serve as guidance to delimit the provision of those that could be outsourced and the conditions for their provision.
• o)To forecast global trends in the future of public employment, for the purpose of informing its planning.
• p)To analyze the efficiency and effectiveness of the evaluation mechanisms, for the purpose of determining whether or not they fulfill their purpose.
• q)To evaluate the general public employment system in terms of efficiency, effectiveness, economy, simplicity, and quality.” In relation to Article 7, subsections d), g), and p) are unconstitutional, as they affect the independence of the Judicial Branch and the Supreme Electoral Tribunal, insofar as they subject them to the directive and regulatory power of MIDEPLAN, as well as to the verification of whether or not they fulfill the purpose of performance evaluation, and they are not excluded from the directive power. It must be emphasized that the principle of separation of powers or functions is incompatible with the directive and regulatory power exercised by the Executive Branch, since it cannot order its activity, establishing goals and objectives. With regard to performance evaluation, it remains reserved to each branch of the State, since this matter is inherent to the exercise of their constitutional competencies. This means that, concerning this aspect, all officials of each branch would be subject to the internal provisions that each of them issues in this regard.

On Article 9.a.- Human Resources Offices with respect to the Judicial Branch (Drafted by Judge Picado Brenes) A consultation is made on the following article:

“ARTICLE 9- Functions of active administrations a) The offices, departments, areas, directorates, units, or homologous denominations of human resources management, of the institutions included in Article 2 of this law, shall continue carrying out their functions in accordance with the pertinent normative provisions in each public dependency.

Likewise, they shall apply and execute the provisions of general scope, directives, and regulations, in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management, that the Ministry of National Planning and Economic Policy (Mideplán) sends to the respective institution, according to Law 6227, Ley General de la Administración Pública, of 2 May 1978, and Article 46 of Law 2166, Ley de Salarios de la Administración Pública, of 9 October 1957.

• b)It is the responsibility of the offices, departments, areas, directorates, units, or homologous denominations of human resources management to develop and apply knowledge, competency, and psychometric tests, for the purposes of personnel recruitment and selection processes, to conduct internal and external competitive examinations based on opposition and merits, which must always comply at least with the standards established by the Dirección General del Servicio Civil for each post, according to its scope of competence, and the guidelines issued according to Article 46 of Law 2166, Ley de Salarios de la Administración Pública, of 9 October 1957.

Furthermore, to incorporate said competitive examinations into the public employment offer of the Public Administration and to verify that public servant persons receive due induction regarding the duties, responsibilities, and functions of the post, as well as the general and particular ethical duties of the public function and the institution and post.

• c)The institutional human resources management offices of ministries and institutions or attached organs under the scope of application of the Civil Service Statute are technical dependencies of the Dirección General de Servicio Civil that, for all purposes, must coordinate the preparation of personnel recruitment and selection tests with such offices and perform their advisory, training, and technical accompaniment functions.” As can be observed, the consulted Article 9 establishes certain functions for all offices, departments, areas, directorates, or human resources units of all institutions included in the bill, including the Human Management Department of the Judicial Branch. Thus, with respect to the consultation made regarding the Judicial Branch specifically, the second paragraph of subsection a) imposes on the Human Management Department of said Branch of the Republic the obligation to apply and execute the provisions of general scope, directives, and regulations, in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management, that MIDEPLAN sends to it. This would imply that an organ of the Executive Branch, such as MIDEPLAN, imposes on the Judicial Branch the application and execution of its provisions, directives, and regulations, in matters that are the exclusive domain of the Judicial Branch, such as planning, work organization, employment management, performance management, compensation or salaries management, and labor relations management. Such an obligation for the Human Management Department of the Judicial Branch is clearly a violation of the principle of separation of powers and judicial independence, according to the scope that constitutional jurisprudence has given to these basic principles of our democracy. It should be remembered that the principle of division of powers, or as it is known more recently, the principle of separation of functions, is enshrined in Article 9 of the Political Constitution and stands as “one of the fundamental pillars of the Democratic State, insofar as it establishes a system of checks and balances that guarantees respect for constitutional values, principles, and norms for the direct benefit of the country's inhabitants.” (judgment no. 2006-013708). Making it possible for each Branch of the State to exercise its function independently of the others (judgment no. 6829-1993), and not only as a principle of internal application for the proper functioning of the Rule of Law, but also because the principle of judicial independence, in its external dimension, ensures a set of guarantees intended to prevent a Court from being controlled by other governmental organs; it is the absence of external pressures or influences that make the institution vulnerable, as a result of threats to the availability of resources that allow it to carry out its work with autonomy, to the job stability and promotion possibilities of its officials, to their integrity and assets, and to their infrastructure capacities to meet citizen demands. On the other hand, in its internal dimension, judicial independence is more than a guarantee for judges, as it also constitutes “a guarantee for private individuals (parties to the process), in the sense that their cases will be decided in strict adherence to the Constitution and the laws” (judgment no. 5795-1998), “we are before the right of citizens to have independent judges” (judgment no. 2001-006632). The independence of the Judicial Branch translates, in economic matters and through the lifetime tenure (inamovilidad) of its personnel, as well as, in functional terms, through the real possibility of making its decisions according to its own criteria and not as a result of pressures from certain groups, institutions, or persons (see judgment no. 2000-005493). Thus, it is fully justified that, in the specific case of the Judicial Branch, it has special, separate, and differentiated regulation, although subject to the fundamental constitutional principles provided for in Articles 191 and 192 (see judgment no. 1991-550), but not under the general provisions, directives, and regulations of an organ of another Branch of the Republic, as this norm of the consulted bill intended. For the special regulations governing the Judicial Branch “prevent indirect regulation of the judicial service through directives or guidelines from other instances.” (judgment no. 2018-019511). This is because, “…the Public Employment Regime, it is possible to conclude that the competent state organ in this matter is each branch of the Republic, given that it is these—Executive, Legislative, Judicial, and the Supreme Electoral Tribunal—that are best equipped to determine their needs and understand their particular conditions.” (judgment no. 03575-1996). “The constitutional powers to order, plan, or program, for example, the administrative function of personnel management” (judgment no. 2017-009551) are an essential part of the administrative function of the Judicial Branch that contributes to the effective exercise of its judicial function, since “both legislative and judicial functions require an administrative support structure for the achievement of their essential or primary function, such as the administrative function that helps channel all their activity; which, logically, extends to the human resources or personnel of the Branches of the Republic, meanwhile, behind the fundamental function is the administrative function of personnel, agents, and public servants, etc.” (judgment no. 2017-009551). Finally, note that, in judgment no. 2018-019511, in which the legislative consultation regarding the bill for the “Ley de Fortalecimiento de las Finanzas Publicas” (legislative file no. 20.580) was heard, this Chamber concluded—after performing an interpretative exercise regarding the content of the bill—that, specifically, what was provided for in numerals 46, 47, and 49, relating to the “stewardship of the public employment matter by MIDEPLAN” and “the mandatory nature of the technical and methodological guidelines of the Dirección General del (sic) Servicio Civil,” did not apply to the Judicial Branch. An interpretation that was made, taking into consideration the principle of independence of the Judicial Branch. In this sense, and in accordance with all of the foregoing, the second paragraph of subsection a) of Article 9 is unconstitutional, regarding its application to the Judicial Branch.

On Article 13 (job families), with respect to the Judicial Branch (Drafted by Judge Castillo Víquez) A consultation is made on the following norm:

“ARTICLE 13- General public employment regime There shall be a single general public employment regime, which in turn shall be comprised of the following eight job families that shall be applied in the organs and entities of the Public Administration, according to the functions performed by their personnel:

• a)Public servant persons under the scope of application of Title I and Title IV of the Civil Service Statute, as well as those serving in the institutions indicated in Article 2 of this law, who are not included in the remaining job families.
• b)Public servant persons who perform health sciences functions.
• c)Public servant persons who perform police functions.
• d)Teaching persons contemplated in the Civil Service Statute, under Title II and Title IV.
• e)Teaching and academic persons of technical and higher education.
• f)Persons who administer justice and the magistrates (magistrados) of the Supreme Electoral Tribunal (TSE).
• g)Public servant persons who perform foreign service functions.
• h)Public servant persons who hold positions of trust.

The creation of public employment job families is reserved to the law and must be justified by coherent technical and legal criteria for efficient and effective public management.

In all the categories described above, the senior public administration, through the occupational health offices or departments, must have in each public entity, as established by Article 300 of the Labor Code and its regulations, the diagnosis of their working conditions, the occupational health program, and when there exist working conditions adverse to their health, the respective safety protocols must be created to safeguard their life, which will be validated internally and with the respective endorsement of the Occupational Health Council, for which the necessary human resources will be provided.” Said body shall depend administratively and directly on the head of the institution.

Regarding subsection f) of Article 13, it is unconstitutional because it does not exclude officials who perform quasi-jurisdictional functions —prosecutors, public defenders, and professionals and specialized personnel of the Judicial Investigation Agency (Organismo de Investigación Judicial), etc.— and officials at the managerial or high-level political leadership level, as well as officials of the Supreme Electoral Tribunal who exercise electoral functions —legal advisors, Department directors, professionals, etc.—, and those who hold high-level political leadership positions. Furthermore, all support, professional, and technical administrative staff whom the highest bodies of the aforementioned branches of the State define, exclusively and without exception, as indispensable or inherent for the exercise of their constitutional powers are not excluded. Especially given that, in accordance with that same article, subsection a), all of those officials would be included in a category of the Civil Service Statute (Estatuto de Servicio Civil), which affects the independence of both the Judicial Branch (Poder Judicial) and the Supreme Electoral Tribunal, based on the fact that judicial and electoral governance is exercised by the Supreme Court of Justice and the Supreme Electoral Tribunal exclusively and without exception in matters concerning their constitutional powers. Finally, it must be kept in mind that the construction of the family, as explained supra, corresponds, exclusively and without exception, to each branch of the State.

Regarding Article 14.- Recruitment and selection with respect to the Judicial Branch (Poder Judicial) (Written by Magistrate Picado Brenes) The petitioners challenge the constitutionality of Article 14 of the bill under review, since, in their view, it could harm the principles of separation of powers, autonomy, and independence of the Judicial Branch (Poder Judicial), insofar as it subjects it to the provisions issued by a body of the Executive Branch (Poder Ejecutivo) regarding employment management, which includes matters relating to the recruitment and selection of its personnel. The Article 14 in question provides as follows:

"ARTICLE 14- Recruitment and selection The recruitment and selection of newly hired public servants shall be carried out based on their proven suitability, for which the Ministry of National Planning and Economic Policy (Ministerio de Planificación Nacional y Política Económica, Mideplán) shall issue, in strict compliance with Law 6227, General Law of Public Administration (Ley General de la Administración Pública), of May 2, 1978, the provisions of general scope, directives, and regulations, according to the respective job family.

In the recruitment and selection processes, an applicant who is in any of the following situations may not be chosen:

• a)Being related by consanguinity or affinity in a direct or collateral line, up to and including the third degree, to the immediate superior or to that person's immediate superiors in the respective unit.
• b)Being listed in the register of ineligible persons on the integrated public employment platform." As indicated supra, the Judicial Branch (Poder Judicial), as a branch of the Republic, must not only be independent from the other branches, in accordance with Article 9 of the Constitution, but also guarantee the independence of judges, as established by Article 154 of the Political Constitution, as a guarantee for individuals that their cases will be decided in strict compliance with the Constitution and the laws. In view of this, it is essential that this Branch of the Republic have full authority over all matters relating to the recruitment and selection of its personnel, without any external interference. This Court specifically reiterated this in judgment No. 2018-19511, when it stated, in what is relevant, the following:

"…These constitutional provisions have given rise to the development of an extensive regulatory framework, specifically designed to regulate the Judicial Branch (Poder Judicial). The norms of this framework include the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), the Organic Law of the Public Prosecutor's Office (Ley Orgánica del Ministerio Público), the Organic Law of the Judicial Investigation Agency (Ley Orgánica del Organismo de Investigación Judicial), the Salary Law of the Judicial Branch (Ley de Salarios del Poder Judicial), the Judicial Service Statute (Estatuto de Servicio Judicial) (including its reform by the Judicial Career Law (Ley de Carrera Judicial)), etc.

Clearly, the aforementioned norms have the intention of specifically regulating the Judicial Branch (Poder Judicial), ensuring that its independence from the other Branches of the Republic is guaranteed.

The fact that the Judicial Branch (Poder Judicial) enjoys particular regulation brings the second point of analysis of the systematic interpretation to the fore. In this sense, it must be studied whether there are specific norms for the Judicial Branch (Poder Judicial) and verify their relationship with the articles being challenged.

Regardless of the fact that Article 47 of the bill speaks of 'exceptions' (salvedades), it is observed that performance evaluation and decision-making authority in labor matters, whether general or specific, are already regulated by the aforementioned regulatory framework of the Judicial Branch (Poder Judicial), making it impossible for an external body to assume 'governance' (rectoría) or impose criteria on that Branch. Moreover, said regulatory framework is designed to guarantee the efficiency of the judicial function and protect judicial servants from external interference, as indicated by Article 1 of the Judicial Service Statute (Estatuto de Servicio Judicial):" Specifically regarding Article 1 of the Judicial Service Statute (Estatuto de Servicio Judicial), the Chamber indicated in said vote that: "Note that the rule determines that the employment relations between the Judicial Branch (Poder Judicial) and its servants are regulated by the Statute and its regulations. The systematic interpretation mandated by that numeral prevents indirect regulation of the judicial service through directives or guidelines originating from other bodies. This is verified because the issuance of the regulation to which the rule refers is, in turn, the exclusive competence of the Court," It further adds that: "One more guarantee of the independence of the Judicial Branch (Poder Judicial) in employment matters is that the Head of the Personnel Department is linked to the President of the Court, excluding the interference of external bodies." Now, in this case, this Court considers that the bill challenged herein affects the own powers of this Branch of the Republic, because beyond establishing general principles or guidelines on public employment that respect the principle of separation of functions, the Article 14 under study is clear in stating that it will be the Ministry of National Planning and Economic Policy (Ministerio de Planificación Nacional y Política Económica, Mideplán) that will issue the provisions of general scope, the directives, and the regulations, according to the respective job family, that will regulate the recruitment and selection of newly hired public servants. This is because, in accordance with the provisions of Articles 13 and 2 of the same bill, what is stated in Article 14 would apply to the Judicial Branch (Poder Judicial). Thus, regardless of whether the referenced Article 2 limits the scope of coverage as being "without prejudice to the principle of separation of Powers established in the Political Constitution," Article 14 would apply to the Judicial Branch (Poder Judicial), and in that sense, it is considered that such provision is unconstitutional, by authorizing a body of the Executive Branch (Poder Ejecutivo) to be the one to directly issue provisions of general scope, directives and regulations, circulars, manuals, and resolutions relating to public employment matters, which empty the content of the powers recognized to the Supreme Court of Justice by the original and derived Constituent Power. Even more so when a regulatory framework already exists pertaining to the Judicial Branch (Poder Judicial) that regulates those aspects, in the terms mandated by Article 192 of the Constitution. By reason of the foregoing, the consulted norm exceeds any framework of cooperation that could establish a general public employment policy, because it is not appropriate for a dependency of the Executive Branch (Poder Ejecutivo)—Mideplán—to dictate to another Branch, in a mandatory manner, in this case to the Judicial Branch (Poder Judicial), the guidelines or criteria for the selection and recruitment of its personnel. This constitutes a clear external interference and the intrusion of the Executive Branch (Poder Ejecutivo) into aspects that are the exclusive competence of the Judicial Branch (Poder Judicial). Consequently, this Court considers that the consulted Article 14 contains a vice of unconstitutionality, for harming the principle of independence of functions guaranteed to the Judicial Branch (Poder Judicial) by Articles 9 and 154 of the Political Constitution.

Regarding Article 17.- Senior Management Personnel with respect to the Judicial Branch (Poder Judicial) (written by Magistrate Picado Brenes) Review is made of the following article:

"ARTICLE 17- Senior public management personnel The Ministry of National Planning and Economic Policy (Ministerio de Planificación Nacional y Política Económica, Mideplán) shall issue the provisions of general scope, the directives, and the regulations, regarding senior public management personnel, that are consistent with Law 6227, General Law of Public Administration (Ley General de la Administración Pública), of May 2, 1978, to provide the Public Administration with profiles of integrity and proven management, innovation, and leadership capacity, to seek the improvement of the provision of public goods and services. (…)" The petitioners point out the harm to the principle of separation of functions and the independence of the Judicial Branch (Poder Judicial), since this norm provides that, in the case of senior management positions, Mideplán will be the one to issue the provisions of general scope, directives, and regulations on the matter. In the same sense that this Chamber has been resolving these aspects, the interference of this Ministry, which is a body of the Executive Branch (Poder Ejecutivo), issuing provisions of general scope, directives, and regulations to the Judicial Branch (Poder Judicial) on the matter of senior management positions, is a violation of the principle of separation of powers and judicial independence. Furthermore, the regulation of everything pertaining to senior management positions of the Judicial Branch (Poder Judicial) already has the special normative framework of that branch of the Republic. There are several precedents of the Chamber in which, expressly, it is understood as fully justified that in the specific case of the Judicial Branch (Poder Judicial), it has a special, separate, and differentiated regulation —although, subject to the fundamental constitutional principles provided in Articles 191 and 192—. We can cite, in the first place, vote No. 2019-25268 (reiterating what was said in vote No. 550-1991), which indicates:

"(…) in the case of the branches, their own constitutional independence, guaranteed in general by Article 9 of the Constitution and, in those of the Judicial Branch (Poder Judicial) and the Supreme Electoral Tribunal by those of Articles 99 and following, 152 and following, and 177 thereof, as well as their own organic laws, impose on their heads the power and the responsibility to set the remuneration, representation expenses, and other facilities inherent to the positions, of their own members and subordinates, within, naturally, their budgetary availability, independently, of course, of whether their amounts may coincide or not with those of the deputies." Given that Article 154 of the Constitution itself subjects the Judicial Branch (Poder Judicial) only to the Constitution and the law, but not to provisions of the Executive Branch (Poder Ejecutivo). Note that these are positions of great importance as they would refer, at least, to those who make up the Superior Council of the Judicial Branch (Poder Judicial), and the heads of the Public Defense (Defensa Pública), the Public Prosecutor's Office (Ministerio Público), and the Judicial Investigation Agency (Organismo de Investigación Judicial). Positions that are of great relevance, which must be particularly protected from the interference of other Branches of the Republic, and which require the stability of personnel necessary for an adequate and impartial performance of the duties of the office, which is incompatible with subordination to the provisions issued on the matter by Mideplán, as the norm in question provides. The Judicial Branch (Poder Judicial) itself being competent in this regard, as this Chamber has indicated before: "… be it the Public Employment Regime, it is possible to conclude that the competent state body in this matter is each branch of the Republic, given that it is these—Executive, Legislative, Judicial, and Supreme Electoral Tribunal—that are best equipped to determine their needs and understand their particular conditions." (judgment No. 03575-1996). Note that, in judgment No. 2018-019511, in which the legislative review of the bill for the "Law for the Strengthening of Public Finances" (expediente legislativo No. 20.580) was heard, this Chamber concluded —after conducting an interpretive analysis regarding the content of the bill— that, specifically, what was provided for in numerals 46, 47, and 49, pertaining to the "governance of the public employment matter by Mideplán" and "the binding nature of the technical and methodological guidelines of the General Directorate of Civil Service," did not apply to the Judicial Branch (Poder Judicial). An interpretation made taking into consideration the principle of independence of the Judicial Branch (Poder Judicial). Therefore, it is considered that there is a vice of unconstitutionality in Article 17 under review, in the terms stated.

Regarding Article 18.- Probationary period and term of appointment of Senior Management with respect to the Judicial Branch (Poder Judicial) (written by Magistrate Picado Brenes) In relation to this provision, the petitioners again point out the harm to the principle of separation of functions and the independence of the Judicial Branch (Poder Judicial), since it is provided that, in the case of senior technical management positions, the appointment will be for 6 years with a probationary period of 6 months, annually renewable, subject to performance evaluation, which according to them, affects a matter that is the proper regulatory domain of the Judicial Branch (Poder Judicial). The consulted Article 18 provides the following:

"ARTICLE 18- Appointment and probationary period for senior public management Every public servant who is appointed to senior public management positions shall be on probation for a period of six months and their appointment shall be made for a maximum of six years, with the possibility of annual extension, which shall be subject to the results of the performance evaluation. (…)" As in previous sections, it is necessary to reiterate that the regulation of aspects related to the appointment and selection of personnel, as also occurs with senior technical management positions, the probationary period, term, or conditions for extension of appointments, are regulations proper to and pertaining to the organizational and administrative autonomy of the Judicial Branch (Poder Judicial), since these are strategic positions of great importance for its administration, the definition of which must correspond to it, in accordance with the constitutional purposes of that institution. It should be noted that, with respect to the Judicial Branch (Poder Judicial), those positions would refer, at least, to those who make up the Superior Council of the Judicial Branch (Poder Judicial), and the heads of the Public Defense (Defensa Pública), the Public Prosecutor's Office (Ministerio Público), and the Judicial Investigation Agency (Organismo de Investigación Judicial). Positions that are of great relevance, which must be particularly protected from the interference of other Branches of the Republic, and which require the stability of personnel necessary for an adequate and impartial performance of the duties of the office, which is incompatible with an appointment, the extension of which must be reviewed annually as provided by the norm in question. A provision in that sense would be inoperative for this branch of the Republic, dealing with positions of such relevance, the appointment of which merits different competitive processes and a careful verification of credentials prior to their selection, so that, far from benefiting the administration of justice, it would create such instability that it would affect the good governance of the Judicial Branch (Poder Judicial). Thus, requiring the periodicity and extension that this Article 18 provides for the case of the Judicial Branch (Poder Judicial), not only violates the principle of independence, by being in contradiction with the special normative framework that the Judicial Branch (Poder Judicial) already has on the matter, but is also unreasonable and disproportionate, because the means chosen by the legislator would not be the most suitable to achieve the intended purpose —evaluating the suitability of the personnel—, given that the Judicial Branch (Poder Judicial) already has an extensive regulatory framework, specifically designed for its regulation, which not only has the intention of specifically regulating the Judicial Branch (Poder Judicial), ensuring that its independence from the other Branches of the Republic is guaranteed, but also ensures the principle of suitability that must prevail in the selection of its officials, for which reason, the consulted norm, far from favoring such constitutional principle, would unreasonably and disproportionately alter the organization of positions that are fundamental for the administration of justice of the Judicial Branch (Poder Judicial), even putting at risk the impartiality in the exercise of the duties that must prevail in those positions, given the continuous pressure of an annual extension of their appointment. Likewise, it is worth noting that, like with the consulted Article 14 and from what is stated in Article 2 of this bill, Article 18 does not establish any exception regarding the application of this norm to the Judicial Branch (Poder Judicial), as it does in this case for public universities, by stating that, in their case, the terms and periods determined in their organic statutes and regulations shall be respected. Hence, the Judicial Branch (Poder Judicial) is not excluded from its application either. Therefore, it is considered that there is a vice of unconstitutionality in Article 18 under review, in the terms stated.

Regarding Article 21 (single dismissal regime) and Article 22 (dismissal process) with respect to the Judicial Branch (Poder Judicial) (written by Magistrate Picado Brenes) The consulted articles provide the following:

"ARTICLE 21- Dismissal Procedure It shall be grounds for immediate dismissal, applicable to every public servant, to obtain two consecutive performance evaluations with a score lower than seventy percent (70%), which are final, once the process for challenging the evaluation is exhausted and provided that the responsibility of the public servant for said deficient evaluation has been accredited. Said evaluation must be duly justified by the immediate superior who assigns it and by the hierarchical authority that confirms it, if it has been appealed.

The included entities and bodies must apply remedial plans agreed upon with the public servant, and with human resources advice that allow them to determine the causes for which the public servants obtain a score lower than seventy percent (70%) and apply actions to improve their performance. If, despite the application of the remedial plan, the public servant fails to improve their performance and consecutively obtains another score lower than seventy percent (70%), the grounds for immediate dismissal shall be configured.

The included entities and bodies must apply remedial plans that allow them to determine the causes for which the public servants obtain a score lower than seventy percent (70%) and apply actions to improve their performance. If, despite the application of the remedial plan, the public servant fails to improve their performance and consecutively obtains another score lower than seventy percent (70%), the grounds for immediate dismissal shall be configured.

Any justified dismissal shall be understood as without liability for the Public Administration and shall cause the public servant to lose all the rights that this law and the applicable regulations in each job family grant them, except for the proportions of labor benefits that correspond and those acquired in accordance with the pension regimes in force, provided that it is carried out in observance of the following rules:

• a)In all dependencies under the scope of application of this law, a single special administrative dismissal procedure shall be applied, which guarantees the satisfaction of due process and its principles, which must be concluded by a final act within a period of two months, from its initiation. The preliminary investigation, in cases where it is required, shall not initiate the procedure indicated in the previous paragraph; however, it must begin, under penalty of prescription, no later than within a period of one month from the moment the head of the institution becomes aware, either ex officio or by complaint, of the possible commission of a fault by one of their servants. The same one-month prescription period shall apply if, once the mentioned preliminary investigation has begun, it remains paralyzed due to the fault of the Administration.

For the purposes of the two-month period indicated in the first paragraph of this subsection, the ordinary dismissal procedure shall begin from the moment the institutional head adopts the decision to initiate said procedure with the appointment of the directing body of the process.

• b)Once the institutional head receives a complaint or report or is informed of an alleged fault that, in their judgment, warrants the initiation of a dismissal procedure, they shall appoint a directing body of the process, which shall formulate the charges in writing and give notice to the public servant for a term of fifteen days, to present all the evidence offered in an oral and private hearing, which shall be notified personally via the official's institutional email, certified mail, or by means of a single publication in the official gazette La Gaceta, when it is demonstrated that there is no way to locate the alleged offender. Within the indicated period, the public servant must present, in writing, their defense and may offer all the evidence they deem appropriate to support their defense, whether documentary, testimonial, or of any other nature in support thereof, as well as the exceptions or incidents they deem appropriate.
• c)If, upon expiration of the period determined in the previous subsection, the servant has not filed an opposition or if they have expressly stated their conformity with the charges attributed to them, the institutional head shall issue the dismissal resolution without further procedure, unless they prove they were not notified by the directing body of the process or were prevented for just cause from opposing.
• d)If the charge or charges brought against the employee or public servant imply their criminal liability or when necessary for the success of the disciplinary administrative dismissal procedure or to safeguard the decorum of the Public Administration, the institutional head may decree, in a reasoned resolution, the provisional suspension of the public servant from the exercise of their duties. If criminal proceedings are initiated against the public servant, said suspension may be decreed at any time as a consequence of a detention order or pretrial detention, or a final judgment with a sentence of imprisonment.
• e)If the interested party opposes within the legal term, the directing body of the process shall resolve the preliminary exceptions that have been presented and shall convene an oral and private hearing, before the Administration, in which all pertinent evidence and arguments of the parties shall be admitted and received. Likewise, visual inspections and expert examinations may be conducted before the hearing. A second hearing may be convened only when it has been impossible in the first to have the file ready for its final decision, and the pending proceedings so require.
• f)If the public servant incurs a new cause for dismissal during the investigation period, the charges shall be accumulated in the file being processed, and the procedure shall continue according to what is established in this chapter.
• g)Once the evidence is presented, the preliminary exceptions filed within the ten-day period granted to oppose the notification of charges are resolved, and the conclusions are submitted by the parties or the period for doing so has expired, the file shall be deemed duly completed and the respective report shall be submitted to the institutional head for a final resolution to be issued.
• h)The institutional head shall resolve the dismissal of the public servant or declare the lack of merit and order the archiving of the file in this last case. However, if they consider that the fault exists but that its gravity does not warrant dismissal, they shall order an oral reprimand, a written warning, or a suspension without pay for up to one month, depending on the gravity of the fault.
• i)Against the resolution ordering an oral reprimand, written warning, or suspension without pay for up to one month, the ordinary remedies of revocation with subsidiary appeal, when the latter is applicable, may be filed within a period of five days, counted from the day following the day on which said resolution is notified. Both remedies may be filed jointly or separately before the body that issues the resolution, which shall resolve the remedy of revocation.

In the case of public servants who work in an institution covered by Law 1581, Civil Service Statute (Estatuto de Servicio Civil), of May 30, 1953, the appeal remedy shall be resolved by the Civil Service Tribunal. The institutional head shall submit, on appeal, to the Civil Service Tribunal, the file of the corresponding administrative procedure containing the sanction resolution as well as the resolution of the revocation remedy, with an expression of the legal reasons and the facts on which both resolutions are based.

• j)Cases not provided for in this procedure, as long as they do not contravene the text and the procedural principles contained in this procedure, shall be resolved by supplementary application, according to the following order: Law 6227, General Law of Public Administration (Ley General de la Administración Pública), the norms of public law, the general principles of public law, the Labor Code (Código de Trabajo), the Civil Procedure Code (Código Procesal Civil), the principles and laws of common law, equity, local customs, and usages.

State university higher education institutions shall issue internal regulations governing this matter, in accordance with Articles 84, 85, and 87 and the principle of due process contained in the Political Constitution; in the event that no institutional regulation exists on the matter, Law 6227, General Law of Public Administration (Ley General de la Administración Pública), of May 2, 1978, the norms of public law, the general principles of public law, the Labor Code (Código de Trabajo), and the Civil Procedure Code (Código Procesal Civil) shall apply supplementarily.

ARTICLE 22- Appellate Phase Against the dismissal resolution issued by the institutional head, there shall be a non-extendable period of five business days, counted from the notification of the resolution, to file the remedy of revocation and/or the remedy of appeal in subsidy, when the latter is applicable, which shall be resolved in accordance with the following provisions:

• a)If upon expiration of the five-day period indicated above, the resolution is not appealed, it shall become final and the administrative process shall be deemed exhausted.
• b)If only the remedy of revocation was filed, the decision of the institutional head shall be final, the resolution shall become final and the administrative process shall be deemed exhausted.
• c)If both ordinary remedies are filed at the same time, the appeal shall be processed once the revocation is declared without merit.
• d)In the case of public servants who work in an institution covered by Law 1581, Civil Service Statute (Estatuto de Servicio Civil), of May 30, 1953, the appeal remedy shall be granted with both effects before the Civil Service Tribunal. The institutional head shall submit, on appeal, to the Civil Service Tribunal, the file of the administrative dismissal procedure, containing the dismissal resolution of the public servant, as well as the resolution of the revocation remedy, with an expression of the legal reasons and the facts on which both resolutions are based.

If only the appeal remedy was filed, the institutional head shall submit, on appeal, to the Civil Service Tribunal, the file of the administrative dismissal procedure containing the dismissal resolution of the public servant, with an expression of the legal reasons and the facts on which said resolution is based.

The resolution adopted by the Civil Service Tribunal on appeal shall be final, the resolution shall become final and shall exhaust the administrative process. Said ruling is binding on the institutional head.

Once the dismissal is authorized by a final resolution, the institutional head shall have a lapse period of one month, counted from the notification of said resolution, to make it effective.

For the execution of the dismissal by the hierarchical superior (jerarca), no additional agreement is required; the communication of the cessation of their status as an official to the public servant, based on the final and binding resolution issued, is sufficient.

If the Civil Service Tribunal revokes the ruling issued by the institutional hierarchical superior, it shall, in the same act, issue a new judgment and decide whether the reinstatement of the employee to their position is appropriate, with full enjoyment of their rights and the payment of back salaries (salarios caídos) in their favor.

In the event that the Civil Service Tribunal considers that the misconduct exists but that its severity does not warrant dismissal, it may order an oral reprimand (amonestación oral), a written warning (advertencia escrita), or a suspension without pay for up to one month.

State university higher education institutions shall issue internal regulations governing this matter, in accordance with Articles 84, 85, and 87 and the principle of due process contained in the Political Constitution; in the event that no institutional regulation exists on the matter, Law 6227, General Law of Public Administration, of May 2, 1978, the rules of public law, the general principles of public law, the Labor Code, and the Civil Procedure Code shall apply supplementarily." The deputies inquire about Articles 21 and 22 of the bill, referring to the disciplinary and sanctioning regime applicable to the Judicial Branch. They indicate that Article 21 establishes a new cause for immediate dismissal when the public servant obtains two consecutive performance evaluations below 70%. They indicate that the Judicial Branch has special laws that regulate the sanctioning regime of its servants. They add that the new established causes are due more to administrative matters than to jurisdictional aspects, which causes an odious and dangerous interference for our Social State of Law and judicial independence. They consider that the new cause for immediate dismissal consisting of obtaining two consecutive performance ratings below 70% contained in Article 21, as well as the two new serious causes created through the amendment to Article 48 of the Public Administration Salary Law, amended in Article 49:A) of the bill, violate the constitutional principles of legality, legal certainty, reasonableness, proportionality, separation of powers, autonomy, and independence of the Judicial Branch and its auxiliary bodies, also allowing the interference of Mideplan in matters that are the exclusive competence of that Branch of the Republic, as provided by Articles 9, 154, and 156 of the Political Constitution, and the numerous cited international legislation. Then, regarding the single dismissal procedure in relation to the Judicial Branch, they indicate that, under the scope of application of this proposed law, there will be a single special dismissal procedure (Article 21). Regarding the appeals system, the power is given to the Civil Service Tribunal to resolve all appeals filed against resolutions that determine any type of disciplinary sanction (Article 21:i) and Article 22). They consider that it also violates the independence and autonomy of the Judicial Branch, given that it has its own regulations and that, due to the specialized nature of the function they perform, it contains particular provisions regarding competencies, deadlines, misconduct, sanctions, and appeals, as established by Articles 174 to 215 of its Organic Law.

In this regard, this Chamber considers that:

-The creation of a new cause for dismissal, for failing the performance evaluation on two consecutive occasions (according to the first paragraph of Article 21 of the bill), is not unconstitutional as long as the Judicial Branch and the Supreme Electoral Tribunal apply it in accordance with their internal regulations. The establishment of this new cause for justified dismissal does not violate the Law of the Constitution, especially if it is understood that this new cause would be applied according to the internal provisions of the Judicial Branch, where Mideplán would have no interference.

-Articles 21 and 22 of the consulted bill are unconstitutional regarding their application to the Judicial Branch -and to the Supreme Electoral Tribunal as will be seen-, because the exercise of the disciplinary authority over the servants of the Judicial Branch is an essential part of judicial independence. Thus, everything established in those rules regarding the procedure and appeals phase could not be applied to the Judicial Branch, which already has internal regulations that provide for the exercise of disciplinary authority. As this Chamber indicated through vote no. 2009-004849, all procedures for adopting disciplinary measures, suspension, or removal from office shall be resolved in accordance with the established rules of judicial behavior. Consequently, in line with the principle of judicial independence, the entity with disciplinary competence will be exclusively the Judicial Branch itself.

Regarding Article 49 subsections a, b, g, and h (amendment to regulations) with respect to the Judicial Branch (drafted by Magistrate Picado Brenes) The consulted article provides the following:

"ARTICLE 49- Modifications The following normative provisions are modified, in the manner described below:

• A)Articles 12 and 48 of Law 2166, Public Administration Salary Law, of October 9, 1957, are amended. The text is as follows:

Article 12- The seniority (anualidad) incentive shall be recognized in the month immediately following the anniversary of the entry or re-entry of the public servant who works under the composite salary scheme and in accordance with the following rules: a) If the servant is transferred to a position of equal or lower category than the position they are occupying, there shall be no interruption in the computation of time for the salary increase. b) If the servant is promoted, they shall begin to receive the minimum seniority payments of the new category; under no circumstances shall already-recognized incentives be revalued. c) For public servants, whether permanent or interim, the time of service provided in other public sector entities shall be computed for the purposes of recognizing the seniority incentive.

Article 48- Criteria for performance evaluation (evaluación del desempeño) Each head of office in the Public Administration, at the beginning of the year, must assign and distribute all officials among the processes, projects, products, and services of the unit, establishing delivery deadlines and estimated time for their preparation. It shall be the responsibility of each hierarchical superior to follow up on this annual work plan; its non-compliance shall be considered serious misconduct (falta grave) in accordance with the applicable regulations.

For the regular and frequent monitoring of the activities of the work plan, each administration must establish a computer system for this purpose, populated by each official with the daily activities linked to said processes, projects, and products, and the compliance with deadlines and times. It shall be the responsibility of each official, including all directive levels, to update and maintain up-to-date the information necessary for the evaluation of their performance, in accordance with the processes, projects, products, and services particularly assigned, their delivery deadlines, and estimated times for their preparation, in said computer system that the administration will make available to them. Its non-compliance shall be considered serious misconduct in accordance with the applicable regulations.

The seniority incentive shall only be granted through the performance evaluation for those public servants who work under the composite salary scheme, who have achieved a minimum rating of "very good" or its numerical equivalent, according to the defined scale, in accordance with the following rules: a) Eighty percent (80%) of the annual rating shall be based on the compliance with the annual goals defined for each official, in accordance with the provisions of this chapter. b) Twenty percent (20%) shall be the responsibility of the head of office or superior, which shall be evaluated according to good performance in accordance with the competencies required for the performance of the position.

• B)Subsection l) is added to Article 13 and Articles 1 and 7 bis of Law 1581, Civil Service Statute, of May 30, 1953, are amended. The texts are as follows:

Article 13- The powers and functions of the Director General of Civil Service are:

[…]

• l)To exhaust the administrative channel (vía administrativa) for matters subject to the competence of the Directorate General of Civil Service.

Article 1- This statute and its regulations shall govern the relations between the State and public servants, with the purpose of guaranteeing the efficiency of the Public Administration.

Article 7 bis- The Directorate General of Civil Service is endowed with instrumental legal personality solely for the purposes of managing its own budget and so that it may fulfill its objectives in accordance with Law 1581, Civil Service Statute, of May 30, 1953, other related laws, and administer its assets.

• C)Article 704 of Law 2, Labor Code, of August 27, 1943, is amended. The text is as follows:

(…)

• D)Articles 7, 8, 9, and 10 of Law 8777, Creation of the Administrative Tribunals of the National Teachers' Pensions and Retirements Regime and of the Civil Service, of October 7, 2009, are amended. The texts are as follows:

(…) E) Articles 7 bis and 35 of Law 1581, Civil Service Statute, of May 30, 1953, are amended. The texts are as follows:

(…) F) Subsection 5) of Article 112 of Law 6227, General Law of Public Administration, of May 2, 1978, is amended. The text is as follows:

(…)

• G)Article 85 is added to Law 5155, Judicial Service Statute, of January 10, 1973. The text is as follows:

Article 85.- The competencies defined in this law, for the bodies of the Judicial Branch, shall be carried out in coordination with the Ministry of National Planning and Economic Policy (Mideplán), regarding matters referred to in the General Law of Public Employment.

• H)Article 17 is added to Law 2422, Judicial Branch Salary Law, of August 11, 1959. The text is as follows:

Article 17.- The competencies defined in this law, for the bodies of the Judicial Branch, shall be carried out in coordination with the Ministry of National Planning and Economic Policy (Mideplán), regarding matters referred to in the General Law of Public Employment.

• I)Article 11 of Law 6877, Law for the Creation of the National Service for Water, Irrigation and Drainage (Senara), of July 18, 1983, is amended. The text is as follows:

(…)

• J)Subsection f) of Article 11 of Law 7800, Creation of the Costa Rican Institute of Sport and Recreation and of the Legal Regime of Physical Education, Sport and Recreation, of April 30, 1998, is amended. The text is as follows:

(…)

• K)Subsection k) of Article 42 of Law 9694, National Statistics System Law, of June 4, 2019, is amended. The text is as follows:

(…)

• L)Subsection ch) of Article 11 of Law 4716, Law of Organization and Functioning of the Institute for Municipal Development and Advisory (IFAM), of February 9, 1971, is amended. The text is as follows:

(…)

• M)Subsection I) of Article 17 of Law 2726, Constitutive Law of the Costa Rican Institute of Aqueducts and Sewers, of April 14, 1961, is amended. The text is as follows:

(…) N) Subsection ñ) of Article 53 of Law 7593, Law of the Regulatory Authority for Public Services (Aresep), of August 9, 1996, is amended. The text is as follows:

(…)

• Ñ)Subsection t) of Article 28 of Law 7558, Organic Law of the Central Bank of Costa Rica, of November 3, 1995, is amended. The text is as follows: (…)

The petitioners consider that Article 49 of the consulted bill is unconstitutional. They argue particularly against subsection a), subsection b), and subsections g) and h). Regarding subsection a), they refer to the new causes for dismissal with just cause, referring, according to the petitioners, to ratings below 70% and to not populating the database. Regarding the first cause, this Chamber already ruled in the previous recital (considerando), and regarding the second cause on populating the database, note that it is not clearly grounded, therefore this Chamber omits a ruling.

Regarding subsection b), the inquiry is made because the Judicial Branch would be subjected to the Civil Service Statute. In this regard, this Chamber observes that the article in question adds to and amends some articles of the Civil Service Statute, particularly Article 1, as observed in the following sense:

Civil Service Statute (current version) Civil Service Statute (proposed amendment) Article 1º.- This Statute and its regulations shall govern the relations between the Executive Branch and its servants, with the purpose of guaranteeing the efficiency of the Public Administration, and protecting said servants.

Article 1- This statute and its regulations shall govern the relations between the State and public servants, with the purpose of guaranteeing the efficiency of the Public Administration.

Thus, from the consulted bill, the Civil Service Statute would govern relations not only with the Executive Branch, but generally with the entire State, including the Judicial Branch. This in itself would not be unconstitutional, of course, if it is understood that the subjection of the Judicial Branch is to general principles of public employment and that this does not imply that the special regulations of the Judicial Branch on these matters are being repealed, since on this matter of public employment of officials, this special regulation would prevail over the Civil Service Statute. Furthermore, the Directorate General of Civil Service could not have competence regarding matters referred to the Judicial Branch. Under this interpretation, Article 49 subsection b) is not unconstitutional, provided it is interpreted in accordance with what has been indicated.

However, in the case of subsections g) and h) of Article 49, these are unconstitutional for violating the independence of the Judicial Branch. The foregoing because, through such subsections, respective additions to the Judicial Service Statute and the Judicial Branch Salary Law were intended, in order to include the interference of Mideplán in the competencies defined in this special regulation, indicating that the bodies of the Judicial Branch must carry out the competencies defined in those laws in coordination with said ministry. This is evidently violative of the constitutional principle of judicial independence, as it would involve a body of the Executive Branch with which the competent authorities of the Judicial Branch would be obliged to coordinate the exercise of their competencies in matters of public employment of judicial officials. Thus, the Full Court, the President of the Supreme Court of Justice, the Personnel Council, the Judicial Council, and the Personnel Department would be in obligatory coordination with Mideplán before adopting actions on topics related to public employment contained in the bill, namely: work planning, work organization, employment management, performance management, compensation management, and labor relations management. In matters that are the exclusive competence of the Judicial Branch, such as the internal management of its personnel, any type of mandatory coordination with another State body is preclusive. Although it involves coordination and not direction, the truth is that, in this matter, which is inherent to the internal sphere of judicial independence, not even coordination would be admissible for the exercise of exclusive competencies of the Judicial Branch. "Judicial independence manifests itself on various levels; on the external level, it translates into the autonomy of the Judicial Branch in economic matters and the lifetime tenure (inamovilidad) of its personnel, as well as, in functional terms, the real possibility of making its decisions according to its own criteria and not as a result of pressures from certain groups, institutions, or persons." (judgment no. 2000-005493). Additionally, it must be remembered what Article 154 of the Constitution indicates: "The Judicial Branch is only subject to the Constitution and the law…", there is no submission, not even in the area of coordination, to another body of another branch of the Republic. Note that even "the constitutional powers to order, plan, or program, for example, the administrative function of personnel management," (judgment no. 2017-009551) are beyond the scope of the legislator; with even greater reason, they would be beyond the scope of another branch of the Republic. This is because even "an indirect regulation of the judicial service through directives or guidelines from other instances" is prevented. (judgment no. 2018-019511). Consequently, this Tribunal considers that subsections g and h of Article 49 contain a defect of unconstitutionality, for harming the principle of independence of functions guaranteed to the Judicial Branch by Articles 9 and 154 of the Political Constitution.

• 4)Conclusion -Regarding Articles 12 (database), 13.h (family in trust positions), 15 (recruitment and selection postulates), 19 (mobility or transfers), and 31 (work methodology), given that sufficient grounding is not provided to allow this Chamber clarity on what was consulted, the consultation is declared unevacuable due to lack of grounding.

-In the terms indicated and in accordance with the jurisprudence of this Chamber, the following articles of the "PUBLIC EMPLOYMENT FRAMEWORK LAW" bill, processed in legislative file no. 21.336, are unconstitutional.

Having analyzed all the aspects consulted regarding Article 2 (subsection a), 6 (subsection b), 7 (subsections d, g, and p), 9 (second paragraph of subsection a), 13 (subsection f), 14, 17, 18, 21 and 22, 49 (subsection b, g, and h) of the bill called "PUBLIC EMPLOYMENT FRAMEWORK LAW" legislative file no. 21.336, this Chamber verifies that such norms are contrary to the Law of the Constitution, for violation of the principle of separation of functions, the principle of judicial independence, the particular employment regime of the Judicial Branch, and the constitutional administrative competencies of the Supreme Court of Justice. The economic, personal, functional, organic, and institutional independence, both of the Judicial Branch itself and of the judges and auxiliary personnel of justice, is essential in a Constitutional State of Law. According to such principle, each branch is independent of the other; each State body must be able to exercise its function independently of the others (Article 9 of the Constitution). There may be interrelation among them, but never subordination, nor obligatory coordination in matters specific to the exclusive and preclusive competence of the Judicial Branch. The truth is that a comprehensive reading of the bill allows concluding that the principle of separation of powers is not duly guaranteed, not only due to subjection to Mideplán (Articles 6, 7, and 9 for example), but due to the imposition of certain matters that are the exclusive and preclusive competence of the Judicial Branch (Articles 14, 17, 18, 21, and 22 for example). Furthermore, it is not only a violation of the principles of separation of functions and judicial independence, but of the entire democratic system and the organization of Power that the Constitutional Assembly created in our State of Law. "One more guarantee of the independence of the Judicial Branch on the topic of employment is that the Head of the Personnel Department is linked to the President of the Court, excluding the interference of external instances." (vote no. 2018-019511).

Finally, this Chamber observes from the legislative file that the Supreme Court of Justice issued an unfavorable opinion on the bill in the inquiry made by the Legislative Assembly, when it indicated the following, by official communication no. SP-62-2021 of June 3, 2021:

"As stated, although the new text of the bill … maintains the latent opposition to including the Judicial Branch in a regulation that implies a clear interference of the Executive Branch in matters that -constitutionally and legally- are inherent to this other institution. (…) the normative basis of the previous text is maintained and it seeks to regulate a public employment regime that does not consider differentiating aspects of the entities and bodies it subjects to its coverage scope. Thus, the Judicial Branch continues to form part of the bill, with the consequences this implies for its internal structure and functioning, according to the observations made in the previous reports." (underlining does not correspond to the original) (The particular notes of the magistrates, on this section, for being carried out jointly with the Supreme Electoral Tribunal, are included at the end of the following section).

X.- Regarding the consultation on violation of the independence of the Supreme Electoral Tribunal (TSE).- 1) Aspects consulted The petitioner deputies consider that the following articles of the "PUBLIC EMPLOYMENT FRAMEWORK LAW" bill, processed in legislative file no. 21.336, are violative of the principle of separation of powers. Specifically, they inquire about the following articles, indicated, whether in the heading of the general title or in the rest of the text of the filing brief: 2.a (scope of coverage), 6.b (governing authority of Mideplan), 7 (competencies of Mideplan), 9.a (Human Resources offices), 12 (database), 13 (job families), 14 (recruitment and selection), 15 (recruitment and selection postulates), 17 (Senior Management personnel), 18 (probationary period and appointment term), 19 (mobility or transfers), 21 (single dismissal regime), 22 (dismissal process), 31 (work methodology), First, regarding Articles 12 (database), 13.h (family of trust positions), 15 (recruitment and selection postulates), 19 (mobility or transfers), and 31 (work methodology), given that sufficient grounding is not provided to allow this Chamber clarity on what was consulted, the consultation is declared unevacuable due to lack of grounding.

Regarding the rest of the articles, the petitioners consider that Articles 2.a, 6, 7, 9, 13, 14, 17, 18, 21, and 22 of the "PUBLIC EMPLOYMENT FRAMEWORK LAW" bill, processed in legislative file no. 21.336, are violative of the independence of the Supreme Electoral Tribunal and, therefore, of Articles 9 and 99 of the Constitution. They consider them unconstitutional because they oblige the Supreme Electoral Tribunal to apply and execute the general provisions, directives, and regulations issued by Mideplán, in violation of its independence, allowing an interference by the Executive Branch in a matter forbidden to it by constitutional mandate and in regression of the State of Law. They indicate that Article 9 of the Constitution guarantees the independence of the Supreme Electoral Tribunal, situating it at the rank of the other Branches of the State, and not only regarding acts related to suffrage but with respect to the functions established by the Constitution itself and other laws. Thus, the existence of aspects that compromise the legal and constitutional competencies of the Supreme Electoral Tribunal is noted, specifically Article 13.a.f which establishes a single public employment regime for the servants and Magistrates of the Supreme Electoral Tribunal; the obligation to apply recruitment and selection processes for individuals with the general provisions, directives, and regulations issued by Mideplán (Article 14); subjection to Mideplán in the recruitment and selection of senior technical management personnel; the obligation of a 6-month probationary period (plazo de prueba) and a 6-year appointment term (Article 17 and 18); a single special administrative dismissal procedure. In addition to the inclusion in Article 2.a, the obligation to apply and execute the general provisions, directives, and regulations issued by Mideplán, violating the independence of the Supreme Electoral Tribunal (Articles 9 and 99) and proposing the subjection and interference of the Executive Branch in a matter forbidden to it by constitutional mandate, coupled with the regression it implies for the State of Law.

Thus, the examination of the indicated articles proceeds. A prior jurisprudential summary is made on the topic of the independence of the Supreme Electoral Tribunal, which will serve as context for the examination of each consulted article.

• 2)Jurisprudential Background on the Constitutional Principle of Separation of Powers with respect to the Supreme Electoral Tribunal Regarding the Supreme Electoral Tribunal, it must be noted that there is also extensive jurisprudence on the foundation, justification, and relevance of its independence. In vote no. 3194-1992, the Chamber resolved: "In the case of electoral matters, the 1949 Constitution gave special importance to the need to segregate everything related to suffrage, mainly from the sphere of the political branches of the State. In that direction, it established a series of principles and adopted eminently formal mechanisms to guarantee the independence of suffrage, above all through the full autonomy of the body called to organize, direct, and oversee it. Originally in Article 99 of the Constitution, and later also in Article 9 -by the addition introduced by Law 5704 of June 5, 1975- not only was the organization, direction, and supervision of acts related to suffrage attributed to the Supreme Electoral Tribunal, but, in addition, it was granted the rank and independence of a branch of the State." Meanwhile, in vote no. 00495-1998, it was added that "although (the Supreme Electoral Tribunal) is not a Branch of the State in the strict sense, it does fulfill a fundamental function in the Costa Rican State -which is to deal with electoral matters-, and by constitutional norm -transcribed second paragraph of Article 9- it is conferred the rank and independence of a branch of the State". For its part, in vote no. 2000-06326, this Chamber specified: "III.- ON THE LEGAL-CONSTITUTIONAL NATURE OF THE SUPREME ELECTORAL TRIBUNAL. On the occasion of the electoral problems that motivated the 1948 revolution, the members of the National Constituent Assembly of 1949 took special care to safeguard the electoral matter, segregating everything related to suffrage, mainly from the sphere of the Branches of the State, especially the Executive and the Legislative Assembly, without neglecting the Judicial Branch. They established a series of basic principles on which the exercise of suffrage develops: "The law shall regulate the exercise of suffrage in accordance with the following principles: Autonomy of the electoral function; Obligation of the State to register, ex officio, citizens in the Civil Registry and provide them with an identity card to exercise suffrage; Effective guarantees of freedom, order, purity, and impartiality by government authorities; Guarantees that the system for casting the vote facilitates citizens in the exercise of that right; Identification of the voter by means of a card with photograph or other suitable technical means provided by law for that purpose; Guarantees of representation for minorities; Guarantees of political pluralism; Guarantees for the designation of authorities and candidates of political parties, according to democratic principles and without discrimination (Article 95 of the Political Constitution); and adopted eminently formal mechanisms to guarantee the independence of suffrage, endowing with full autonomy the body called to organize, direct, and supervise it (the Supreme Electoral Tribunal), originally in the terms of Article 89 of the Political Constitution, and later in those of Article 9 (added by means of Law Number 5704, of June 5, 1975), by virtue of which, this Tribunal was delegated not only the competence of electoral matters –as noted previously–, but also was granted the rank and independence of a branch of the State." From the foregoing, it is clear that the Supreme Electoral Tribunal is a specialized constitutional body in electoral matters, which by constitutional mandate enjoys the same independence as the Powers of the State in the exercise of its powers; that is, it has full autonomy to organize, direct, and supervise electoral processes and all acts related to suffrage, with the independence and rank proper to a State Power, which has been previously considered in constitutional case law in the following terms:

"The Tribunal as a specialized constitutional body for electoral matters, with the rank and independence of the public powers, may be invested, only in its specific sphere, with any of the functions of the State, and in fact it is invested with the three [that it has been assigned], to be in charge of 'the organization, direction, and supervision of acts related to suffrage, as well as the other functions assigned to it by the Constitution and the laws'" (judgment number 0980-91, at 1:30 p.m. on May 24, 1991).

In this sense, and due to its importance, mention must be made of the interpretive power that constitutional case law recognized for this constitutional tribunal, obviously in matters within its own competence: electoral matters, in the following terms:

"[...] the powers of Articles 97, second paragraph, and 121, subsection 1) exclude even the Legislative Assembly and which Article 102 ends up reinforcing with an unparalleled breadth, above all by attributing to it powers as broad as that of 'interpreting exclusively and bindingly the constitutional and legal provisions concerning electoral matters' subsection 3º)" (judgment number 0980-91, cited above).

By virtue of this special competence, of the prerogatives and powers of the Supreme Electoral Tribunal, this Constitutional Chamber concluded that the electoral sphere is "a special constitutional realm, to which the same rules as those for the other Public Powers do not apply" (judgment number 3194-92, at 4:00 p.m. on October 27, 1992). By way of example, we must make obligatory reference to the regulatory competence that constitutional case law has recognized solely in relation to the subject matter of its own competence, obviously the electoral activity:

(...)

IV.- ON THE SCOPE OF COMPETENCE OF THE SUPREME ELECTORAL TRIBUNAL: ELECTORAL MATTER IN LIGHT OF CONSTITUTIONAL CASE LAW. On repeated occasions, this Chamber has pronounced on the special competence of the Supreme Electoral Tribunal, which is defined by constitutional mandate itself – Articles 9 and 99 of the Political Constitution – as electoral matters; and in this sense, judgments numbers 0980-91, 2150-92, 3194-92, 2430-94, 2456-96, 0034-98, 0466-98, 0563-98, and 0969-98 may be consulted. In all these resolutions, it recognizes the exclusive competence it has in electoral matters, and it is only when the latter denies its competence that it considered that the Constitutional Chamber may hear that matter, provided that it is alleged that the challenged acts violate fundamental rights:

(...) Thus, it has indicated that the electoral activity comprises those of organizing, directing, and supervising all acts related to the national election process (judgment number 0653-98), which is carried out in activities such as the following, that is, without this implying a limited list, by way of example: the regulation of the rules governing political debt, as well as the control that the Supreme Electoral Tribunal has over this matter (0980-91, 3666-93, 0515-94, 0428-98); the control of statutory regulations concerning the right to elect and be elected in the internal processes of political parties (judgment number 3294-92); the integration of the Municipal Council, the declaration of the election, and the subsequent substitutions due to loss of credentials of municipal council members and district trustees (judgment number 2430-94); the processing of the electoral contentious process to hear the cancellation or annulment of credentials of municipal council members (judgment number 0034-98); the closure of commercial businesses where liquor is sold and which are located in the center of the city of San José as a result of the public rallies held by political parties (judgment number 0466-98); and the determination by the Supreme Electoral Tribunal of where the solemn celebration will be held on election day for the initial counting of the results of the national elections (0563-98)." Now, specifically regarding the public employment system applicable to the TSE, the truth is that there are no concrete precedents on this matter. Although it is possible to refer, again, to vote no. 550-1991, insofar as it provided:

"(...) in the case of the powers, their own constitutional independence, guaranteed in general by Article 9 of the Constitution and, in those of the Judicial Branch and the Supreme Electoral Tribunal, by those of Articles 99 et seq., 152 et seq., and 177 thereof, as well as their own organic rules, impose on their heads the power and responsibility to set the remuneration, representation expenses, and other facilities inherent to the positions, of their own members and subordinates, within, naturally, their budgetary availabilities, regardless, of course, of whether their amounts may or may not coincide with those of the deputies."

It is also worth citing vote no. 2005-14298 (which heard an action against the term of appointment of the Chief Clerk of the Civil Registry). In said vote, the Chamber resolved the action with express support in Articles 191 and 192 of the Political Constitution. It reiterated that although the Constitution refers to a civil service statute, the truth is that:

"(...) The derived legislator, however, opted to regulate the service not in a general manner but by sectors, thus enacting the Civil Service Statute (which applies to servants of the Executive Branch) and subsequently, other statutes to regulate the provision of services in the remaining powers of the State and in some decentralized institutions. However, despite the fact that the legislator did not adopt the constituent's idea and only partially regulated public service, it is true that the basic principles of the system (selection by suitability, employment stability) cover all officials serving the State, both in the central administration and in decentralized entities. (...) It bears repeating that the original constituent's intention was the existence of a single law, a Statute, that would regulate all public employment. However, what is important is that the regulation in detail of the coverage of the special system was delegated to the derived legislator, which could be done, as it was, in separate laws, without detriment to the constitutional mandate."

It was also stated:

"(...) In a Tribunal such as this one, where electoral matters are its essence, the constitutional principles of the public employment system of stability and proven suitability must be safeguarded with greater zeal, because the constituent's intention in creating this Power was to completely sever the possibility that electoral officials might interfere in any political activity, in order to guarantee an independent Electoral Body."

From all of the foregoing, it is concluded that the Supreme Electoral Tribunal, as the constitutional body responsible for organizing, directing, and supervising the independence of suffrage, was granted the rank and independence proper to a power of the State. Therefore, it enjoys full independence to fulfill its constitutional duties. Due to the electoral problems that motivated the 1948 revolution, the members of the 1949 National Constituent Assembly took special care regarding electoral matters, segregating everything related to suffrage, principally from the orbit of the Powers of the State, shielding the electoral function through various principles and guarantees, such as, in the first place, the autonomy of the electoral function. From the foregoing, it is clear that the Supreme Electoral Tribunal is a specialized constitutional body in electoral matters, which by constitutional mandate enjoys the same independence as the Powers of the State in the exercise of its powers; that is, it has full autonomy to organize, direct, and supervise electoral processes and all acts related to suffrage, with the independence and rank proper to a State Power. Thus, this Constitutional Chamber concluded that "the electoral sphere is a special constitutional realm, to which the same rules as those for the other Public Powers do not apply" (judgment no. 2000-06326). Although it is true that the constitutional principles of the public employment system (suitability and stability) also apply to it, it is understood that the TSE has its own organic or special rules that grant its heads exclusive competence to set the remuneration, representation expenses, and other facilities inherent to the positions, for their own members and subordinates.

Finally, as was indicated above regarding the Judicial Branch, the foregoing does not prevent the Legislator from issuing a General Law on Public Employment that includes the TSE, provided that the principles of separation of powers or functions and electoral independence are respected.

• 3)On the Examination of the Articles Consulted Regarding Article 2.a (scope of coverage) with respect to the Supreme Electoral Tribunal (Drafted by Judge Castillo Víquez) The consulted rule states the following:

"ARTICLE 2- Scope of coverage This law is applicable to public servants of the following entities and bodies under the principle of the State as sole employer:

• b)The Powers of the Republic (Executive, Legislative, and Judicial), their auxiliary and attached bodies, and the Supreme Electoral Tribunal (TSE), without prejudice to the principle of separation of Powers established in the Political Constitution.

(…)" As stated for the case of the Judicial Branch, in view of such a scenario, and returning to what was set forth above, in the sense that it is plausible to subject all the powers of the State to a single public employment statute, such that the subjection of the Judicial Branch and the Supreme Electoral Tribunal to this law is not unconstitutional, it is unconstitutional for the fact of not excluding those officials who exercise jurisdictional functions -judges- or para-jurisdictional functions -prosecutors, public defenders, and professionals and specialized personnel of the Judicial Investigation Agency, etc.- and officials at the managerial level or high political direction as the bill calls them, as well as the officials of the Supreme Electoral Tribunal who exercise an electoral function -clerks, Department directors, professionals, etc.-, and those who hold high political direction positions, as well as administrative, professional, and technical personnel, as defined exclusively and excludibly by each head of the respective power, since, in these cases, it is not possible to subject them to directives, provisions, circulars, or manuals issued by Mideplán. The foregoing means that the Judicial Branch and the Supreme Electoral Tribunal would indeed be subject to those powers that the law grants to Mideplán when it comes to the rest of the officials -those defined by each head of the Judicial Branch and the Supreme Electoral Tribunal in an exclusive and excludible manner- who form part of the administrative, auxiliary, or support staff.

Regarding Article 6 (authority of Mideplán), with respect to the Supreme Electoral Tribunal (Drafted by Judge Castillo Víquez) The following rule is consulted:

"ARTICLE 6- Creation of the General System of Public Employment The authority over the General System of Public Employment shall be in charge of the Ministry of National Planning and Economic Policy (Mideplán). Said system shall be composed of the following:

• a)The Ministry of National Planning and Economic Policy (Mideplán).
• b)The offices, departments, areas, directorates, units, or homologous denominations of Human Resources Management of the entities and bodies under the scope of application of this law. (…)" In the same sense as indicated for the Judicial Branch, regarding Article 6, subsection b, the consulted bill is unconstitutional, since it subjects the Judicial Branch and the Supreme Electoral Tribunal to the directive power of the Executive Branch, which is contrary to the principles of judicial and electoral independence. Hence, the offices, departments, areas, directorates, or units of Human Resources Management of these powers cannot be under the aforementioned power, except with respect to those who provide basic administrative services or auxiliary services that do not affect the exclusive and excludible competencies or the administrative functions necessary for the fulfillment thereof, defined exclusively by the heads of the Judicial Branch and the Supreme Electoral Tribunal.

Regarding Article 7 (powers of Mideplán), with respect to the Supreme Electoral Tribunal (Drafted by Judge Castillo Víquez) The following rule is consulted:

"ARTICLE 7- Powers of Mideplán The powers of the Ministry of National Planning and Economic Policy (Mideplan) are the following:

• a)Establish, direct, and coordinate the issuance of public policies, programs, and national plans for public employment, in accordance with Law 5525, National Planning Law, of May 2, 1974.
• b)Establish mechanisms for discussion, participation, and agreement with municipal corporations through the Union of Local Governments and state university higher education institutions, in matters of public employment.
• c)Issue provisions of general scope, directives, and regulations aimed at the standardization, simplification, and coherence of public employment, as prescribed in Law 6227, General Law of Public Administration, of May 2, 1978, and Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.
• d)Advise the entities and bodies included under the scope of coverage of this law for the correct implementation of public policies, provisions of general scope, directives, and regulations issued within the framework of policy authority in public employment and Law 6227, General Law of Public Administration, of May 2, 1978, and Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.
• e)Manage and keep updated the integrated platform for public employment.
• f)Publish the public employment offer through the virtual platform that the entities and bodies included in the scope of coverage of this law will feed.
• g)Issue the general guidelines and principles for performance evaluation.
• h)Manage and implement research, innovation, and proposal formulation actions for public employment.
• i)Direct and coordinate the execution of the inherent powers in public employment matters with the Ministry of Finance, the Ministry of Labor and Social Security, the Budgetary Authority, and the General Directorate of Civil Service, among other technical agencies in the area of public employment, concerning public employment matters.
• j)Collect, analyze, and disseminate information on public employment from the entities and bodies for their improvement and modernization. To this end, it will establish a system of indicators, through the establishment of coordination criteria, to homogenize the collection and dissemination of data.
• k)Prepare a coherent and comprehensive strategy for learning and development throughout the public service, establishing how long-term capacity will be developed for higher management standards and professional competence and providing guidance to public institutions on how to plan and apply activities within the strategy.
• l)Coordinate with the Office of Public Ethics to issue provisions of general scope, directives, and regulations for the instruction of public servants on the duties, responsibilities, and functions of the position, as well as the ethical duties governing public service, as appropriate according to Law 6227, General Law of Public Administration, of May 2, 1978, and Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.
• m)Establish a single and unified remuneration system for public service in accordance with this law and specifically for the salary and benefits of all public officials.
• n)Conduct human resources diagnostics in the included entities and bodies to achieve an adequate right-sizing of existing payrolls and the development of general criteria that delimit the sectors whose activity, due to their strategic institutional value and their connection to substantive activity, should be reserved to be performed exclusively by public servants. Likewise, analyze those that serve as guidance to delimit the provision of those that could be outsourced and the conditions for the provision thereof.
• o)Prospect the global trends of the future of public employment, for the purpose of informing its planning.
• p)Analyze the efficiency and effectiveness of the evaluation mechanisms, in order to determine whether or not they fulfill their purpose.
• q)Evaluate the general public employment system in terms of efficiency, effectiveness, economy, simplicity, and quality." In the same sense as the Judicial Branch, Article 7, subsections d), g), and p) are unconstitutional, as they affect the independence of the Judicial Branch and the Supreme Electoral Tribunal, insofar as it subjects them to the directive and regulatory power of Mideplán, as well as to the verification of whether or not they fulfill the purpose of performance evaluation, and no exclusion from the directive power is made. It must be emphasized that the principle of separation of powers or functions is incompatible with the directive and regulatory power exercised by the Executive Branch, since it cannot order their activity by establishing goals and objectives. Regarding performance evaluation, this remains reserved to each power of the State, since this matter is consubstantial to the exercise of their constitutional powers. This means that, concerning this point, all officials of each power would be subject to the internal provisions that each one of them dictates in this regard.

Regarding Article 9.a.- Human Resources Offices with respect to the Supreme Electoral Tribunal (Drafted by Judge Picado Brenes) The consulted article establishes the following:

"ARTICLE 9- Functions of the active administrations a) The offices, departments, areas, directorates, units, or homologous denominations of human resources management of the institutions included in Article 2 of this law shall continue to perform their functions in accordance with the applicable normative provisions in each public agency.

Likewise, they shall apply and execute the provisions of general scope, directives, and regulations concerning planning, work organization, employment management, performance management, compensation management, and labor relations management that the Ministry of National Planning and Economic Policy (Mideplán) sends to the respective institution, in accordance with Law 6227, General Law of Public Administration, of May 2, 1978, and Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.

• b)It is the responsibility of the offices, departments, areas, directorates, units, or homologous denominations of human resources management to develop and administer knowledge, skills, and psychometric tests for the purposes of personnel recruitment and selection processes, to conduct internal and external competitive examinations based on qualifications and merits, which must always comply at least with the standards established by the General Directorate of Civil Service for each position, according to its scope of competence, and the guidelines issued pursuant to Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.

Furthermore, to incorporate said competitive examinations into the public employment offer of the Public Administration and to verify that public servants receive proper induction regarding the duties, responsibilities, and functions of the position, as well as the general and particular ethical duties of the public service, institution, and position.

• c)The institutional human resources management offices of ministries and institutions or attached bodies under the scope of application of the Civil Service Statute are technical agencies of the General Directorate of Civil Service, which must, for all purposes, coordinate the development of recruitment and selection tests with such offices and perform its advisory, training, and technical support functions." As can be seen, the consulted Article 9 establishes certain functions for all offices, departments, areas, directorates, or human resources units of all institutions included in the bill, including the TSE's Human Resources. Thus, with regard specifically to the consultation made concerning the TSE, the second paragraph of subsection a) requires Human Resources to apply and execute provisions of general scope, directives, and regulations concerning planning, work organization, employment management, performance management, compensation management, and labor relations management that Mideplán sends to it. This would imply that a body of the Executive Branch, such as Mideplán, imposes on the TSE the application and execution of its provisions, directives, and regulations, and in matters that are the exclusive purview of that constitutional body, such as planning, work organization, employment management, performance management, compensation or salary management, and labor relations management. Such an obligation for the TSE's Human Resources clearly constitutes a violation of the principle of separation of powers, in accordance with the scope that constitutional case law has given to this basic principle of our democracy. It should be recalled that the principle of division of powers, or as it is more recently known, the principle of separation of functions, is enshrined in Article 9 of the Political Constitution and stands as "one of the fundamental pillars of the Democratic State, insofar as it establishes a system of checks and balances that guarantees respect for constitutional values, principles, and norms for the direct benefit of the country's inhabitants" (judgment no. 2006-013708), and that the TSE has the rank and independence proper to a power of the Republic (judgment no. 3194-1992). This implies that each Power of the State may exercise its function independently of the others (judgment no. 6829-1993). Thus, the TSE, by its rank as a State Power, has its own organizational and directive powers (judgment no. 2000-06326); furthermore, it has "its own organic rules, imposing on its heads the power and responsibility to set the remuneration, representation expenses, and other facilities inherent to the positions, of its own members and subordinates…" (judgment no. 550-1991). This is because, “…the Public Employment System, it is possible to conclude that the competent state body in this matter is each power of the Republic, given that it is these – Executive, Legislative, Judicial, and the Supreme Electoral Tribunal – that are best equipped to determine their needs and understand their particular conditions.” (judgment no. 03575-1996). For all the foregoing, it is considered that the first paragraph of the consulted Article 9 violates the principle of separation of powers, in this case, specifically that of the TSE.

Regarding subsection a) of Article 13, Job Family with respect to the Supreme Electoral Tribunal (Drafted by Judge Picado Brenes) We proceed to examine subsection a) of Article 13 of the bill, regarding its application to the TSE, given that this was expressly consulted by the deputies. It should be recalled that this Chamber, in matters of facultative consultations on constitutionality, proceeds to rule only on the issues consulted.

As can be seen, Article 13 of the bill establishes a single public employment system, composed of eight job families. Subsection a) includes "those performed in the institutions indicated in Article 2 of this law, which are not included in the remaining job families." In this case, dealing with the TSE, the magistrates are included as a job family (per subsection f), and all the rest of the TSE's officials are within this first job family (subsection a) or within the family of confidence positions (subsection h). It should be recalled that this subsection h) is not being reviewed in this consultation, and therefore, no particular ruling is issued on this specific rule. Now, having left only the magistrates as a separate family, the rest of the officials who are not confidence positions, corresponding to support, professional, and technical administrative positions, would fall within the same family as the rest of the officials included within the Civil Service Statute. This is clearly unconstitutional, in view of the following reasons: First, the TSE's personnel is being divided despite the fact that all contribute to the fulfillment of the electoral function. Only the magistrates would be within the group indicated in subsection f), but all the rest of the officials, who also contribute to the exercise of this function so important for Costa Rican democracy, would end up forming part of another job family group. Second, all TSE officials who contribute to the electoral function, directly or through support, need to have full independence of judgment in their actions. Including a significant part of these officials together with others belonging to other powers of the Republic and other institutions is a situation that jeopardizes that independence of judgment. Especially considering that, for that job family group, it would be Mideplán (a body of the Executive Branch) that would issue guidelines for the recruitment, selection, evaluation, compensation, etc. process. That is, almost the entirety of the TSE's officials would be totally subject to Mideplán's directives, which violates the independence of Powers, in the terms indicated above. Clearly, a provision of such nature is contrary to the Law of the Constitution. The TSE, as a body with the rank of a State Power, must enjoy full independence in the exercise of its functions, which implies independence for the management of its personnel. In this case, with much greater care than the rest of the Civil Service personnel, since "the constituent's intention in creating this Power was to completely sever the possibility that electoral officials might interfere in any political activity, in order to guarantee an independent Electoral Body." (judgment no. 2005-14298). This would not be possible if all the TSE's personnel are included within the same job family group as the rest of the Civil Service officials.

Note that such TSE officials are assigned functions as important to electoral activity as: organizing, directing, and overseeing all acts related to the national elections process; regulating the rules governing political debt, as well as control over this matter; control of statutory regulations relating to the right to vote and be elected in the internal processes of political parties; the integration of the Municipal Council; the declaration of the election and subsequent substitutions due to loss of credentials of municipal council members (regidores) and district representatives (síndicos); processing the electoral contentious procedure to hear the cancellation or annulment of credentials of municipal council members; the closure of commercial businesses where liquor is sold and which are located in the center of the city of San José as a result of the public squares held by political parties; determining where the solemn celebration on election day will take place for the initial count of national election results; among many others. All of which requires the guarantee of independence in the management of this personnel, who cannot be tied to the same family of positions as the rest of the Civil Service public servants. It must be taken into account that, upon becoming part of the civil service, TSE officials would be subject to the same rules applied to officials of the Executive Branch who make up the civil service, including transfers or mobility (Art. 12), among others. This aggravates the situation and threatens the maxim of maintaining the electoral function as an independent function, free from interference from the other Branches. Thus, it is verified that Article 13, subsection a) is unconstitutional with respect to the Supreme Electoral Tribunal, since almost all officials of that body would be transferred to the Civil Service, with the exception of its magistrates and employees serving in positions of trust (cargos de confianza). Therefore, this Chamber considers that Article 13, subsection a) is unconstitutional with respect to the TSE—since it was the only body consulted on this subsection—because almost all officials of that body would be transferred to the Civil Service.

Regarding subsection f) of Article 13 (families of positions), with respect to the Supreme Electoral Tribunal (Drafted by Magistrate Castillo Víquez) The following rule is consulted:

"ARTICLE 13- General public employment regime There shall be a single general public employment regime, which in turn shall be composed of the following eight families of positions that shall be applicable in the bodies and entities of the Public Administration, according to the functions performed by their personnel:

• a)Public servants under the scope of application of Title I and Title IV of the Civil Service Statute, as well as those who work in the institutions indicated in Article 2 of this law, who are not included in the remaining families of positions.
• b)Public servants who perform functions in health sciences.
• c)Public servants who perform police functions.
• d)Teaching personnel contemplated in the Civil Service Statute, Title II and Title IV.
• e)Teaching and academic personnel of technical and higher education.
• f)Persons who administer justice and the magistrates of the Supreme Electoral Tribunal (TSE).
• g)Public servants who perform functions in the foreign service.
• h)Public servants who serve in positions of trust.

The creation of families of public employment positions is reserved to law and must be justified by technical and legal criteria consistent with efficient and effective public management.

In all the categories described above, the superior public administration, through the occupational health offices or departments, must have in each public entity, as established by Article 300 of the Labor Code and its regulations, the diagnosis of its working conditions, the occupational health program, and when working conditions adverse to health exist, the respective safety protocols must be created to safeguard life, which shall be validated internally and with the respective endorsement of the Occupational Health Council, for which the necessary human resources shall be provided. Said instance shall depend administratively directly on the head of the entity.

In the same sense as indicated for the Judicial Branch, in that subsection f) of Article 13 is unconstitutional because it does not exclude officials who perform para-jurisdictional functions—prosecutors (fiscales), public defenders (defensores públicos), and professionals and specialized personnel of the Judicial Investigation Agency (Organismo de Investigación Judicial), etc.—and officials at the managerial or senior political management level, as well as officials of the Supreme Electoral Tribunal who exercise an electoral function—legal officers (letrados), Department directors, professionals, etc.—and those holding senior political management positions. Furthermore, it does not exclude all support, professional, and technical administrative personnel, which the highest bodies of the cited branches of the State define, exclusively and preclusively, as indispensable or consubstantial for the exercise of their constitutional powers. Especially since, in accordance with that same article, subsection a), all those officials would be included in a category of the Civil Service Statute, which affects the independence of both the Judicial Branch and the Supreme Electoral Tribunal, starting from the fact that judicial and electoral governance is exercised by the Supreme Court of Justice and the Supreme Electoral Tribunal exclusively and preclusively with respect to their constitutional powers. Finally, it must be borne in mind that the construction of the family, as explained supra, corresponds, exclusively and preclusively, to each branch of the State.

Regarding Article 14.- Recruitment and selection with respect to the Supreme Electoral Tribunal (Drafted by Magistrate Picado Brenes) In the same sense as with respect to the Judicial Branch, the consultants state that the principle of independence and autonomy of the Supreme Electoral Tribunal is harmed by attempting to subject it also to the provisions issued by a body of the Executive Branch, regarding the recruitment and selection of its personnel. The ordinal 14 in question provides the following:

"ARTICLE 14- Recruitment and selection The recruitment and selection of newly hired public servants shall be carried out based on their proven suitability, for which the Ministry of National Planning and Economic Policy (Mideplán) shall issue, in absolute adherence to Law 6227, General Law of the Public Administration, of May 2, 1978, the general provisions, directives, and regulations, according to the respective family of positions.

In the recruitment and selection processes, an applicant who finds themselves in any of the following situations may not be chosen:

• a)Being linked by consanguinity or affinity kinship in direct or collateral line, up to the third degree inclusive, with the immediate superior or with that person's immediate superiors in the respective unit.
• b)Being listed in the registry of ineligible persons of the integrated public employment platform." In the same sense as consulted regarding the Judicial Branch, the consultants state that the principle of independence and autonomy of the TSE is harmed by attempting to subject it also to the provisions issued by a body of the Executive Branch, regarding the recruitment and selection of its personnel. As has already been duly accredited, in accordance with the provisions of ordinals 2 and 13 of the same draft law, and as provided in this Article 14, the Supreme Electoral Tribunal would also be subject to the general provisions, directives, and regulations issued by Mideplán in relation to the recruitment and selection of newly hired personnel, which becomes unconstitutional. Article 9 of the Constitution clearly expresses that the TSE was created by the constituent assembly with the rank and independence of the Branches of State, to which it was assigned, exclusively and independently, the organization, direction, and oversight of acts relating to suffrage, as well as the other functions attributed to it by the Constitution and the laws, which has been fully recognized in the jurisprudence of this Court (see rulings No. 1992-3194, 1998-495, 2000-6326, and 2012-9139, among others). In that sense, any external intrusion from another branch into the own aspects of the Supreme Electoral Tribunal that harms such independence is equally invalid. The Constituent Assembly conferred upon this body a degree of autonomy such as to ensure the due exercise of its electoral function and those other essential administrative functions that provide support and impartiality to its main function. Under that understanding, it is not possible to admit that a body of the Executive Branch, in this case Mideplán, imposes on the Supreme Electoral Tribunal provisions relating to the recruitment and selection processes of its personnel, a matter that, as has been noted, is consubstantial to the degree of autonomy and independence enjoyed by these constitutional bodies. As in other scenarios of this draft law, even though Article 2 states that the scope of coverage is "without prejudice to the principle of separation of Branches established in the Political Constitution," Article 14 would apply to the Supreme Electoral Tribunal. Consequently, such ordinal contains a vice of unconstitutionality, insofar as it is applicable to the Supreme Electoral Tribunal.

Regarding Article 17.- Senior Management Personnel with respect to the Supreme Electoral Tribunal (drafted by Magistrate Picado Brenes) The consulted article establishes the following:

"ARTICLE 17- Senior public management personnel The Ministry of National Planning and Economic Policy (Mideplán) shall issue the general provisions, directives, and regulations regarding senior public management personnel, which are consistent with Law 6227, General Law of the Public Administration, of May 2, 1978, to provide the Public Administration with profiles possessing integrity and proven capacity for management, innovation, and leadership, to seek the improvement of the provision of public goods and services. (…)" The consultants point out the harm to the principle of separation of functions and the independence of the TSE, because this rule provides that, in the case of senior management positions, Mideplán shall issue the general provisions, directives, and regulations on the matter. In the same sense in which this Chamber has been resolving these aspects, the interference of this Ministry, which is a body of the Executive Branch, issuing general provisions, directives, and regulations to the TSE regarding senior management positions, is violative of the principle of separation of powers. Note that these are strategic positions of great importance for its proper organization, such as the Executive Directorate, the General Directorate of the Civil Registry, the General Directorate of the Electoral Registry and Financing of Political Parties, among others. In consideration of this and the impartiality that this constitutional body must possess, it is the TSE itself that corresponds to evaluating the needs of the service it provides and determining the conditions under which those positions must be filled, to fulfill the constitutional purposes assigned to it. Positions that are of great relevance, that must be particularly protected from interference from other Branches of the Republic, and that require the stability of personnel necessary for an adequate and impartial performance of the position, which is incompatible with subordination to the provisions issued on the matter by Mideplán, as provided by the rule in question. The TSE itself being competent in this regard, as this Chamber has previously indicated: "… be it the Public Employment Regime, it is possible to conclude that the competent state body in this matter is each branch of the Republic, given that these—Executive, Legislative, Judicial, and Supreme Electoral Tribunal—are the most capable of determining their needs and knowing their particular conditions." (ruling No. 03575-1996). Therefore, it is considered that there is a vice of unconstitutionality in Article 17 under consultation, in the terms set forth.

Regarding Article 18.- Probationary period and term of appointment of Senior Management personnel with respect to the Supreme Electoral Tribunal (drafted by Magistrate Picado Brenes) In the consultants' opinion, the consulted ordinal 18 is unconstitutional, as it affects a matter within the competence of the Supreme Electoral Tribunal, by establishing that, in the case of senior technical management positions, the appointment shall be for 6 years with a probationary period (plazo de prueba) of 6 months, extendable annually, subject to performance evaluation. The consulted Article 18 provides the following:

"ARTICLE 18- Appointment and probationary period of senior public management Every public servant appointed to senior public management positions shall be on probation for a period of six months and their appointment shall be made for a maximum of six years, with the possibility of an annual extension, which shall be subject to the results of the performance evaluation. (…)" On this point, what has already been indicated regarding the Judicial Branch is applicable, in the sense that the regulation of aspects related to the appointment and selection of personnel, as also occurs with senior technical management positions, the probationary period, term or conditions for the extension of appointments, are regulations proper and pertaining to the organizational and administrative autonomy of the TSE. It is understood that the senior technical management positions, defined by the TSE itself, are strategic positions of great importance for its proper organization, such as the Executive Directorate, the General Directorate of the Civil Registry, the General Directorate of the Electoral Registry and Financing of Political Parties, among others. In consideration of this and the impartiality that this constitutional body must possess, it is this body that corresponds to evaluating the needs of the service it provides and determining the conditions under which those positions must be filled, to fulfill the constitutional purposes assigned to it, in respect of the recognized independence, provided it adheres to the principle of suitability. In its case, for example, the convenience of the term of appointment for these positions or the conditions for extension could be subject or not to electoral periods, or address a condition of greater stability in the position such as that guaranteed by constitutional ordinal 192. All according to its internal regulations, and not to generic regulations such as those sought in this draft law. The definition of such conditions is the exclusive competence of this specialized constitutional body. Thus, in the terms in which the consulted Article 18 is provided, it contains a vice of unconstitutionality, for violating the principle of independence of the TSE, which has the exclusive authority to define the conditions under which its senior management positions must be performed.

Regarding Article 21 (single dismissal regime) and Article 22 (dismissal process) with respect to the Supreme Electoral Tribunal (drafted by Magistrate Picado Brenes) The consulted articles establish the following:

"ARTICLE 21- Dismissal procedure It shall be a cause for immediate dismissal, applicable to every public servant, to obtain two consecutive final performance evaluations that are final (en firme) below a score of seventy percent (70%), once the procedure for challenging the evaluation has been exhausted and provided that the responsibility of the public servant for said deficient evaluation has been accredited. Said evaluation must be duly justified by the immediate superior who assigns it and by the hierarchical authority that confirms it, in case it has been appealed.

The entities and bodies included must apply remedial plans agreed upon with the public servant and with the advice of human resources that allow them to determine the causes for which public servants obtain a score below seventy percent (70%) and apply actions to improve their performance. If, despite the application of the remedial plan, the public servant fails to improve their performance and obtains another consecutive score below seventy percent (70%), the cause for immediate dismissal shall be configured.

The entities and bodies included must apply remedial plans that allow them to determine the causes for which public servants obtain a score below seventy percent (70%) and apply actions to improve their performance. If, despite the application of the remedial plan, the public servant fails to improve their performance and obtains another consecutive score below seventy percent (70%), the cause for immediate dismissal shall be configured.

Any justified dismissal shall be understood to be without liability for the Public Administration and shall cause the public servant to lose all the rights that this law and the applicable regulations in each family of positions grant to them, except the proportions of the corresponding labor entitlements (extremos laborales) and those acquired in accordance with the pension regimes in force, provided it is carried out in observance of the following rules:

• a)In all units under the scope of application of this law, a single special administrative dismissal procedure shall be applied, which guarantees the satisfaction of due process and its principles, which must be concluded by final act within a period of two months, from its initiation. The preliminary investigation, in cases where required, shall not initiate the procedure indicated in the preceding paragraph; however, it must begin, under penalty of statute of limitations (prescripción), no later than within a period of one month from when the head of the entity (jerarca) becomes aware, either ex officio or by complaint, of the possible commission of an offense by one of their servants. The same one-month statute of limitations period shall apply if, once the mentioned preliminary investigation has begun, it remains halted due to the fault of the Administration.

For the purposes of the two-month period indicated in the first paragraph of this subsection, the ordinary dismissal procedure shall begin from the moment the institutional head adopts the decision to initiate said procedure with the appointment of the directing body of the process.

• b)Upon receipt by the institutional head of a complaint or accusation, or upon being informed of a presumed offense that, in their opinion, warrants the initiation of a dismissal procedure, they shall appoint a directing body of the process, which shall formulate the charges in writing and give a hearing to the public servant for a term of fifteen days to present all the evidence offered in an oral and private hearing, which shall be notified personally via the official's institutional email, certified mail, or by means of a single publication in the official gazette La Gaceta, when it is demonstrated that there is no way to locate the alleged offender. Within the indicated period, the public servant must present, in writing, their defense (descargos) and may offer all the evidence they deem appropriate to support their defense, whether documentary, testimonial, or of any other nature in support thereof, as well as any procedural objections (excepciones) or motions (incidentes) they deem appropriate.
• c)If, after the period determined in the preceding subsection has expired, the servant has not filed an opposition or if they have expressly manifested their conformity with the charges attributed to them, the institutional head shall issue the dismissal resolution without further procedure, unless proven not to have been notified by the directing body of the process or to have been prevented by just cause from opposing.
• d)If the charge or charges brought against the employee or public servant imply criminal liability or when necessary for the successful outcome of the administrative disciplinary dismissal procedure or to safeguard the decorum of the Public Administration, the institutional head may decree, in a reasoned resolution, the provisional suspension of the public servant from the exercise of their position. If criminal proceedings are initiated against the public servant, said suspension may be decreed at any time as a consequence of a detention order or pre-trial detention, or a final sentence with a custodial penalty.
• e)If the interested party opposes within the legal term, the directing body of the process shall resolve the preliminary procedural objections that have been presented and shall convene an oral and private hearing before the Administration, in which all pertinent evidence and arguments of the parties shall be admitted and received. Likewise, ocular inspections and expert examinations may be conducted prior to the hearing. A second hearing may be convened only when it has been impossible in the first to leave the file ready for its final decision, and the pending proceedings so require.
• f)If the public servant incurs a new cause for dismissal during the instructional period, the charges shall be accumulated in the file being processed and proceed in accordance with the provisions of this chapter.
• g)Once the evidence has been presented, the preliminary procedural objections presented within the ten-day period granted to oppose the notification of charges have been resolved, and the conclusions have been presented by the parties or the period for doing so has expired, the file shall be deemed duly instructed and the respective report shall be submitted to the institutional head for a final decision.
• h)The institutional head shall resolve the dismissal of the public servant or shall declare the lack of merit and order the archiving of the file in the latter case. However, if considering that the offense exists but that its severity does not warrant dismissal, they shall order an oral reprimand, a written warning, or a suspension without pay for up to one month, depending on the severity of the offense.
• i)Against the resolution ordering an oral reprimand, written warning, or suspension without pay for up to one month, the ordinary remedies of revocation with appeal in subsidy may be filed, when the latter is applicable, within a period of five days, counted from the day following notification of said resolution. Both remedies may be filed jointly or separately before the body issuing the resolution, which shall resolve the revocation remedy.

In the case of public servants who work in an institution covered by Law 1581, Civil Service Statute, of May 30, 1953, the appeal remedy shall be resolved by the Civil Service Tribunal. The head of the entity shall remit on appeal to the Civil Service Tribunal the file of the corresponding administrative procedure containing the sanction resolution as well as the resolution of the revocation remedy, with an expression of the legal reasons and the facts on which both resolutions are based.

• j)Cases not provided for in this procedure, insofar as they do not contradict the text and the procedural principles contained in this procedure, shall be resolved by applying supplementarily, in the following order: Law 6227, General Law of the Public Administration, the rules of public law, the general principles of public law, the Labor Code, the Civil Procedure Code, the principles and laws of common law, equity, customs, and local usages.

State university higher education institutions shall issue internal regulations governing this matter, in accordance with Articles 84, 85, and 87 and the principle of due process contained in the Political Constitution; in the absence of institutional regulations on the matter, Law 6227, General Law of the Public Administration, of May 2, 1978, the rules of public law, the general principles of public law, the Labor Code, and the Civil Procedure Code shall apply supplementarily.

ARTICLE 22- Appeal phase Against the dismissal resolution issued by the head of the entity, there shall be a non-extendable period of five business days, counted from the notification of the resolution, to file the revocation remedy and/or the appeal remedy in subsidy, when the latter is applicable, which shall be resolved in accordance with the following provisions:

• a)If, after the five-day period indicated above has expired, the resolution has not been appealed, it shall become final and shall exhaust the administrative channel.
• b)If only the revocation remedy was filed, the decision of the head of the entity shall be final, the resolution shall become final, and it shall exhaust the administrative channel.
• c)If both ordinary remedies are filed simultaneously, the appeal shall be processed once the revocation has been declared without merit.
• d)In the case of public servants who work in an institution covered by Law 1581, Civil Service Statute, of May 30, 1953, the appeal remedy shall be granted with both effects before the Civil Service Tribunal. The head of the entity shall remit on appeal to the Civil Service Tribunal the file of the administrative dismissal procedure, containing the resolution dismissing the public servant, as well as the resolution of the revocation remedy, with an expression of the legal reasons and the facts on which both resolutions are based.

If only the appeal remedy was filed, the head of the entity shall remit on appeal to the Civil Service Tribunal the file of the administrative dismissal procedure containing the resolution dismissing the public servant, with an expression of the legal reasons and the facts on which said resolution is based.

The resolution adopted by the Civil Service Tribunal on appeal shall be final, the resolution shall become final, and it shall exhaust the administrative channel. Said ruling is binding on the institutional head.

Once the dismissal is authorized by a final resolution, the institutional head shall have a deadline of one month, counted from the notification of said resolution, to make it effective. For the execution of the dismissal by the head of the entity, no additional agreement is required; the communication of the cessation of their status as an official to the public servant, based on the final resolution issued, is sufficient.

If the Civil Service Tribunal revokes the decision issued by the institutional head, it shall issue a new ruling in the same act and resolve whether the reinstatement of the employee to their position is appropriate, with full enjoyment of their rights and the payment in their favor of lost wages.

In the event that the Civil Service Tribunal considers that the offense exists but that its severity does not warrant dismissal, it may order an oral reprimand, a written warning, or a suspension without pay for up to one month.

State university higher education institutions shall issue internal regulations governing this matter, in accordance with Articles 84, 85, and 87 and the principle of due process contained in the Political Constitution; in the absence of institutional regulations on the matter, Law 6227, General Law of the Public Administration, of May 2, 1978, the rules of public law, the general principles of public law, the Labor Code, and the Civil Procedure Code shall apply supplementarily." The deputies consult on Articles 21 and 22 of the bill, referring to the disciplinary and sanctioning regime applicable to the Judicial Branch and the TSE. They indicate that Art. 21 establishes a new cause for immediate dismissal when the public servant obtains two consecutive performance evaluations below 70%. They add that the new causes established are more a matter of administrative issues, so that attempting to subject a purely administrative infraction, which could lead to their dismissal, to criteria unrelated to their work, causes an odious and dangerous interference for our Social State of Law.

They consider that the new ground for immediate dismissal consisting of obtaining two consecutive performance evaluations below 70% contained in Article 21, as well as the two new serious grounds created by the reform to Article 48 of the Public Administration Salary Law, which is amended in Article 49:A) of the bill, violate the constitutional principles of legality, legal certainty, reasonableness, proportionality, and separation of powers. Then, regarding the single dismissal procedure, they state that the Public Employment Framework Law bill establishes that a single special dismissal procedure shall apply to all public servants within the scope of application of this proposed law (Article 21). Regarding the appeals regime, the Civil Service Tribunal is granted the authority to resolve all appeals filed against resolutions determining any type of disciplinary sanction (Article 21:i) and Article 22). In relation to the single procedure created in Articles 21 from subsection a) and 22 of the bill under consultation, we consider that it also violates independence.

In this regard, this Chamber considers that:

-The creation of a new ground for dismissal, for failing the performance evaluation on two consecutive occasions (according to the first paragraph of Article 21 of the bill), is not unconstitutional as long as it is applied by the Judicial Branch and the Supreme Electoral Tribunal in accordance with their internal regulations. The establishment of this new ground for justified dismissal does not violate constitutional law, especially if it is understood that this new ground would be applied according to the internal provisions of the TSE, where Mideplán would have no involvement.

-Articles 21 and 22 of the consulted bill are unconstitutional regarding their application to the TSE –and to the Judicial Branch as stated supra–, given that the exercise of disciplinary authority over TSE employees is an essential part of electoral independence. Therefore, everything established in those norms regarding procedure and appeals phase could not be applied to the TSE, which already has internal regulations governing the exercise of disciplinary authority. The adoption of disciplinary measures, suspension, or removal from office shall be resolved according to internal norms for the protection of the electoral function. Thus, in accordance with the principle of separation of powers, the entity with disciplinary jurisdiction shall, in this case, be exclusively the TSE itself.

• 4)Conclusion -Regarding Articles 12 (database), 13.h (family in confidential positions), 15 (recruitment and selection postulates), 19 (mobility or transfers), and 31 (work methodology), given that the sufficient reasoning that would allow this Chamber to have clarity on the matter consulted is not provided, the consultation is declared unanswerable due to lack of reasoning.

-In the terms indicated and in accordance with the jurisprudence of this Chamber, the following articles of the "LEY MARCO DE EMPLEO PÚBLICO" bill, processed in legislative file No. 21.336, are unconstitutional.

Having analyzed all the aspects consulted regarding Articles 2 (subsection a), 6 (subsection b), 7 (subsections d, g, and p), 9 (second paragraph of subsection a), 13 (subsection a and f), 14, 17, 18, 21, and 22 of the bill called "LEY MARCO DE EMPLEO PÚBLICO" legislative file No. 21.336, this Chamber finds that such norms are contrary to constitutional law, for violation of the principle of separation of functions. The independence of powers is essential in a Constitutional Rule of Law State. According to this principle, each power is independent of the other; each State organ must be able to exercise its function independently of the others (Constitutional Article 9). There may be interrelation between them, but never subordination. Moreover, it is not only a violation of the principles of separation of functions but also of the entire democratic system and organization of Power that the Constituent Assembly created in our Rule of Law State. In the specific case of the TSE, it is possible to replicate –as pertinent– the same conclusions already issued regarding the Judicial Branch. While the fundamental principles of the public employment regime also apply to the TSE, the truth is that, to protect its independence, it must continue to have its own regulatory framework, which specifically, particularly, and distinctively regulates employment relations with its employees and the evaluation of their performance. The foregoing, in order to duly guarantee the independence of said organ, for the proper exercise of its electoral function and those other essential administrative functions that support its primary function. Hence, it is unconstitutional to admit that the Executive Branch, through Mideplán, has governing powers over TSE officials. Even though, as occurs in the case of the Judicial Branch, in the cited Article 2 it is affirmed that the law would apply to the TSE “without prejudice to the principle of separation of Powers established in the Political Constitution” –an imperative imposed, in itself, by the Constitution itself–. The truth is that a comprehensive reading of the bill allows concluding that such principle is not duly guaranteed, not only due to subjection to Mideplán but also due to the imposition of certain matters that are within the exclusive and excluding competence of the TSE. The norms of the bill neither demonstrate nor ensure the existence or proper operability of an effective cooperation/coordination relationship between the Executive Branch and the TSE and, quite to the contrary, what is made evident is that the general objective of the consulted bill is to subject the TSE to the governing authority of Mideplán and to the technical criteria of the Civil Service Directorate General. In fact, broad powers are granted to Mideplán to issue “general provisions, directives, and regulations,” to develop and regulate the various aspects covered –in generic terms– in the bill. Finally, it is noted from the legislative file that the Supreme Electoral Tribunal issued an unfavorable opinion on the bill in the consultation made by the Legislative Assembly, when it stated the following, through official communication TSE-1226-2021 of June 3, 2021:

“the existence of a series of aspects that would compromise the legally and constitutionally assigned competencies of this Tribunal is noted. (…) In our judgment, ordering the inclusion of electoral officials in a sub-regime of general public servants and thereby the subordination of the Tribunal to an organ of the Executive Branch that would exercise governing authority in matters of public employment and its various aspects, would seriously damage the design conceived by the Constituent Assembly and the own independence with the rank of State Power granted to this Tribunal in Constitutional Article 9, in order to avoid any influence from the Executive in the conduct of electoral processes. (…) Conclusion. Based on the foregoing, considering that the initiative in the currently proposed terms would violate the principle of separation of powers and would entail an impairment of the independence constitutionally granted to electoral bodies, this Tribunal objects to the consulted bill, in the terms and with the consequences set forth in Constitutional Article 97; a constitutional violation that could only be overcome by introducing the changes suggested in this agreement. FIRM AGREEMENT.” 5) Dissenting votes, reasons, and notes on the consultation regarding the Judicial Branch and the Supreme Electoral Tribunal a) Note of Justice Rueda Leal regarding the inclusion of the Judicial Branch and the Supreme Electoral Tribunal in Article 2 subsection a) of the consulted bill.

I emphasize that the unconstitutionality of this article arises from its effects, given that it is necessary to view it within the systematic nature of the articles to understand how the independence of the Judicial Branch and the Supreme Electoral Tribunal is affected. While an application of the general doctrine established in this vote regarding the exercise of exclusive and excluding powers by institutional hierarchies and the inclusion of the Judicial Branch and the Supreme Electoral Tribunal in a public employment framework law is imposed, it is no less true that the legal particularity of these two instances will oblige delimiting the effects of the vote in practice and in light of specific cases. In that sense, safeguarding independence –highlighting that in this case we speak of independence and not autonomy, as applies to other instances– of the Judicial Branch and the Supreme Electoral Tribunal was a concern of the Constituent Assembly, whose importance is also reflected in abundant conventional regulations on judicial independence. In this scheme, the Chamber maintains its position as guardian of the Political Constitution, so it may assess, in each case, whether there has been an undue intrusion into the indicated areas of independence.

• b)Note of Justice Garro Vargas in relation to the unconstitutionality of Article 2 subsection a) Before referring to the specific constitutionality of Article 2 subsection a) of the consulted bill, I deem it necessary to make some clarifications on general aspects that will illustrate each of my separate notes or reasons in the text of this advisory opinion.

Firstly, I must emphasize that democracy deteriorates when the Judicial Branch and, in addition, the Supreme Electoral Tribunal, as institutions that are essential foundations of our Rule of Law State, are weakened. It should be remembered, in that sense, that the Judicial Branch guarantees rights —not only fundamental ones—, peace, legal certainty (necessary for human and economic development), the fight against petty and organized crime and corruption, etc. Likewise, by provision of the Political Constitution, the Supreme Electoral Tribunal is responsible for the organization, direction, and supervision of acts related to suffrage. So these are institutions that clearly constitute the support of a consistent democracy and, to that extent, must be exempt from interventions by other powers of the republic or other institutions that diminish the solidity necessary for the execution of constitutionally entrusted competencies.

In other latitudes, the undermining of the independence of these powers is carried out frontally from the Executive Branch. In the case submitted to us for consultation, with this bill, it is the Legislative Branch itself that is giving the Executive Branch the opportunity to do so formally through norms that make it possible for a specific ministry to issue provisions of general scope, directives, regulations, and other administrative acts ordering the management of personnel of these institutions. To illustrate this, it is fitting to rescue what the majority of this Chamber itself stated, when invoking its precedents and specifically judgment No. 2017-009551, it emphasized:

“if the Judicial Branch is not given the importance it has in the social and democratic Rule of Law State for its proper functioning, its weakening leads to anti-democratic forms of government; proof of this is that one of the functions first controlled by authoritarian or totalitarian governments is the judicial function, hence the importance that every democratic system has a robust Judicial Branch” I consider that in light of current contingent aspects of our national reality, the pillars of the Rule of Law State cannot be invalidated, but rather, it is always necessary to safeguard the core and key aspects of the constitutional design, such as the principle of separation of functions and independence among the powers of the republic.

Precisely among those core aspects is also the need for a civil service statute that regulates relations between the State and public servants with the express purpose of guaranteeing efficiency in public administration. As the majority judgment well analyzes, this statute can be one general one or several specific ones that address the specificities of each power of the republic, but in all cases, they must incorporate the values enshrined in the Political Constitution.

Now, the possibility of a single statute for all public servants, from my point of view, is compatible with constitutional law, provided that such statute is understood as a series of general regulations that set guidelines for certain conduct, for example, in the design of public budgets. The sensitive point is that there is a governing authority over the decisions of the Judicial Branch or the Supreme Electoral Tribunal regarding the administration of their personnel. In the advisory opinion that rejected the unconstitutionality of the “Financial Administration of the Republic and Public Budgets Law,” that was precisely the core of the decision:

“Regarding the separation of powers, this Chamber considers that, from a careful reading of the cited articles, it is clear that the consulted bill intends to give the Budgetary Authority powers to elaborate in a preliminary phase –since they later require approval by the Executive Branch– the guidelines and directives that will determine the functioning of the Administration in budgetary matters. The Chamber will refer to the effectiveness of such provisions later in this same considering. With respect strictly to the organs covered by subsection b) of Article 1 of the bill, all of them characterized by possessing functional independence from the Executive Branch by constitutional mandate, the text of Articles 21 subsection b) and 23 in fine itself provides that the approval of such directives corresponds to the hierarchs of such organs, the Budgetary Authority having only the function of proposing such guidelines. That is, the text itself provides a device that respects the functional independence given to the organs of subsection b) of Article 1 in budgetary matters, since the fact that the hierarchs of the mentioned organs do not approve said guidelines entails no legal consequence. Due to the foregoing, it is fitting to conclude that the cited articles do not represent any form of affront to the separation of powers, enshrined in Constitutional Article 9” (advisory opinion rendered through vote No. 1999-00919).

Therefore, the reading of Constitutional Article 191 must be carried out respecting the design of the republican model of separation of powers, that is, the mandatory nature of a statute is provided for, but not a governing authority in the hands of a ministerial portfolio of the Executive Branch over the competencies of other powers of the republic. Thus, it is one thing to approve a public employment framework law that generally regulates the aspects necessary to guarantee the efficiency of the administration, such as proven suitability or conditions to justify dismissal throughout the public sector. Such regulations could even repeal aspects of the existing statutes, but always provided the autonomy and independence of the powers are safeguarded. Moreover, said general norm could coexist with the different statutes currently in force. But it is another very different thing to issue a law that severely disrupts the republican design enshrined in the Constitution, by establishing a governing authority of a specific ministerial portfolio of the Executive Branch over the internal government authorities of each of the powers of the republic.

Consequently, I reiterate, it would not be illegitimate to include the Judicial Branch or the Supreme Electoral Tribunal within a general regulatory framework that intends to establish generic lines of regulation, but not a governing authority in the hands of the Executive Branch. Now, as reflected in the majority vote, Article 2 subsection a) of the consulted bill intends to include the Judicial Branch and the Supreme Electoral Tribunal within the scope of coverage of the Public Employment Framework Law. However, I have deemed it necessary to record the present note to state that, according to the general lines set forth supra, in my judgment, said article is not in itself unconstitutional insofar as it includes the Judicial Branch and the Supreme Electoral Tribunal in a public employment regulatory framework, provided that regulatory framework were understood as one that establishes general principles and norms. In fact, regulatory precedents can be cited that, respecting this design, provide general rules, but whose execution is reserved to internal organs (for example, the General Public Administration Law or the General Administrative Contracting Law). However, as this bill does not meet those characteristics, this article is unconstitutional by connection with the rest of the articles (see, for example, Articles 4, 6, 7, 9, 12, 13, f), 14, 17, 18, 19, 21, 22, 30, 46, and 49 of the bill), because it would entail applying them to those powers. That is, what is established in those norms, in connection with this Article 2 subsection a), empties the principle of separation of powers of content, even though the wording of this subsection attempts to safeguard said principle. Furthermore, the logic of the law in its entirety is expressed not only in its articles but also in the statement of purposes, which has hermeneutical value. So, for that Article 2 subsection a) to be considered not “in itself” unconstitutional, it would have to be seen as decoupled from what in said statement of purposes relates to those norms.

It is appropriate to emphasize that, in addition, in the specific case, the intrusion into the competencies of the Judicial Branch is intended to be carried out despite the warnings made by the Chamber in advisory opinion No. 2018-019511, in which the legislative consultation regarding the “Public Finance Strengthening Law” bill (legislative file No. 20.580) was heard. In said consultation, the Chamber emphasized the incompatibility of a “governing authority” by the Executive Branch over the competencies and special regulations that already govern the Judicial Branch.

Then, while the consulted bill establishes that it shall apply to the Judicial Branch and the Supreme Electoral Tribunal “without prejudice to the principle of separation of Powers established in the Political Constitution,” the truth is that a comprehensive reading of the bill allows concluding that such principle is not duly guaranteed. Upon examining Article 2 subsection a) of the bill in connection with the rest of the articles, and specifically with the norms that intend to reform the Judicial Service Statute and the Judicial Branch Salary Law, as well as with Article 30 of said bill, a supposed coordination relationship is observed, but that is nothing more than an appearance. That is, if Article 2 subsection a) is examined with the rest of the norms of the bill, it is denoted that its object is precisely to establish a governing authority by the Ministry of National Planning and Economic Policy (Mideplán) over the other powers of the republic mentioned herein, and there is no certainty of how that supposed coordination will operate, because the majority of the norms grant decision-making power to Mideplán itself.

Finally, I must nuance that I do not share the views of the majority in the sense that it distinguishes between officials who perform essential tasks related to the specifically assigned competence and those who do not directly participate in this management by virtue of an administrative decision that could likewise be unconstitutional, as I already detailed supra. There will be essential administrative functions that support the primary function of administering justice and of organizing, directing, and supervising acts related to suffrage, for which reason I do not share the distinction in the terms made by the majority.

• c)Separate note of Justice Picado Brenes, on Article 2 subsection a) of the bill regarding the inclusion of the Judicial Branch and the Supreme Electoral Tribunal (point 6 of the Por Tanto) Unanimously, the Chamber renders the consultation indicating that Article 2 subsection a) of the Public Employment Framework Law bill is not unconstitutional by itself insofar as it includes the Judicial Branch and the Supreme Electoral Tribunal within a general public employment regulatory framework, but it is by its effects because some of its norms empty the principle of separation of powers of content. However, I must make some clarifications based on which I conclude that the consulted bill should have started from the fundamental premise of the separation of powers and respect for constitutional autonomies.

It is necessary to point out that, in accordance with the statement of purposes of the base text of the Public Employment Framework Law bill, as its proponents put it, it “has the purpose of being a cornerstone to direct public service towards a more homogeneous legal order, aimed at reducing the distortions generated by fragmentation, in a context of effectiveness and efficiency.” In the opinion of the promoters of the bill, “The State must regulate the relationship with public servants, under general norms and principles that govern all public institutions, safeguarding the independence of powers and the particularities of the sub-regimes of public employment, … but always, striving at all times, for the satisfaction of the public interest, ensuring citizens receive goods and services with quality and timeliness.” They also state that this bill “seeks to jointly address the recommendations issued by different national and international bodies, such as the Comptroller General of the Republic and the Organization for Cooperation and Development.” It follows from the above that the objective of the bill is to develop a homogeneous legal order in matters of public employment, so that it is –according to the judgment of the bill's proponents– less fragmented and, consequently, fewer distortions occur, considering that this would be achieved by issuing general norms and principles that govern all public institutions, all for the sake of satisfying the public interest and providing citizens with quality, timely, effective, and efficient goods and services. However, despite how simple it might seem to achieve the proposed objective by issuing “general norms and principles that govern all public institutions,” the truth is that, in the same statement of purposes, the first obstacle making it unattainable is observed when it is stated that this must be done “safeguarding the independence of powers and the particularities of sub-regimes of public employment.” It seems that the legislator has not taken into account that the constitutional design of the Costa Rican State makes it impossible to intend to apply a uniform public employment regime as conceived in this bill, or perhaps has overlooked that the magnitude of the independence of powers protected in Article 9 of the Political Constitution, added to the independence granted therein to the Supreme Electoral Tribunal, would not allow a centralized organ from the Executive Branch to issue directives, guidelines, and regulations related to public employment without causing harm to constitutional law. From this perspective then, and starting from the Political Constitution as the central axis of Costa Rican democracy, respecting the independence of Powers and that of the Supreme Electoral Tribunal protected in Constitutional Article 9, as well as the sub-regimes of employment that exist in the country, is incompatible with a unified regulation for all public institutions on public employment relations, which regulates exclusive aspects of each institution, under the governing authority of the Executive Branch (Mideplán) in the terms this bill does. It would be different if, with this bill, what the legislator had intended to do was to issue only general public employment guidelines to develop Constitutional Article 192 and thereby strengthen the statutory system that already exists; something that evidently has not been proposed in those terms.

Now, the above can be taken to a higher level of seriousness because, when it is observed that the Public Finance Strengthening Law No. 9635 granted governing authority over public employment to the Ministry of National Planning and Economic Policy, it can be presumed that, from that moment, the principle of separation of powers was becoming somewhat confusing for the legislator; a theme that carried over to the bill under study in which the axis of action of that governing authority is now materialized by providing in Article 2 subsection a) that the scope of action includes the 3 powers of the State as well as the Supreme Electoral Tribunal, thereby making it evident that, in light of the Public Employment Framework Law bill, an organ of the Executive Branch –Mideplán– will lead the way in the matter and, consequently, will establish, direct, and coordinate the issuance of public policies, national programs, and plans on public employment. Consequently, it is thus demonstrated, as a thesis of principle, that despite the separation of powers, an organ of the Executive Branch will lead the matter, above all, will impose itself on the other powers and the TSE in that area, in clear and absolute disrespect for that principle.

From a first general reading of the consulted bill, it is evident that the proposed model is that an organ of the Executive Branch imposes itself over the other powers and the TSE in this matter. Despite the forcefulness of such a decision, I must say that, in my judgment, the legislator has overlooked that the structure of the Costa Rican State is not designed for “the unification” that the bill intends, and much less has detected that, at the end of the day, what it seems it will generate is more fragmentation among the sectors and institutions that can be included, those that must be included, and those that must be excluded. The bill under examination does not note that it is not valid for an infra-legal norm to contradict –at this level– the principle of separation of powers and what it implies because, as has been stated, according to this bill, an organ from the Executive Branch will be in charge of regulating everything related to public employment matters, automatically circumventing with that decision the autonomy and independence that each Power of the Republic and the Supreme Electoral Tribunal has to manage its human resources according to its institutional needs.

Note that Article 2 of the consulted bill establishes the coverage scope of the Public Employment Framework Law and indicates that it shall apply to public servants of the entities and organs indicated therein, under the principle of the State as single employer, and includes, in its subsection a), the Powers of the Republic (Legislative, Executive, and Judicial), their auxiliary and attached organs, and the Supreme Electoral Tribunal. So, as I already pointed out supra, if Article 9 of the Political Constitution provides the principle of separation of powers, and the bill intends that an organ of the Executive Branch, above the other powers –specifically the Judicial Branch– and the TSE, dictates and imposes the regulations related to public employment, and that these must submit, there is no doubt: there will be a violation of the principle of separation of powers protected in Constitutional Article 9 and, consequently, of the independence that each Power of the Republic and the TSE has to establish its own organization and administration, which includes the management of its human resources.

Article 2, subsection a) of the bill under review is contrary to the Constitution, due to violation of the principle of separation of functions, the principle of judicial independence, the particular employment regime of the Judicial Branch and the Supreme Electoral Tribunal, and the constitutional administrative powers granted to the Supreme Court of Justice.

While it is true that the entire state apparatus is subject to the principles of the public service regime derived from Article 191 of the Constitution, and for this reason a general—statutory—system of public employment already exists in the country, it is also true that this constitutional principle is general in nature; it is not imposing any Branch of the Republic over another, as the bill under study intends, whose sole objective is to unify—in a single regulatory body—all public employment regulation, centralizing in an agency of the Executive Branch (Mideplán) the entire stewardship of the public employment system created therein, such that this agency will be responsible for regulating everything pertaining to recruitment and selection of personnel (Art. 14), mobility in public employment (Art. 19), termination and dismissal procedure or disciplinary regime (Art. 20, 21 and 22), training activities (Art. 23), performance evaluation (evaluación de desempeño) (Art. 27), and salary regime (Chapter VIII), among others, which will be an imposition on the entire Judicial Branch and the Supreme Electoral Tribunal, despite the autonomy and independence both possess to organize this matter internally and according to their respective institutional needs. On the contrary, note that Article 191 establishes a general framework of action, and when related to Article 192 of the Constitution, it is observed that the intent of the constitutional framers was not directed at undermining the independence of any constitutional body, but rather at establishing that relations between the State and its servants must be governed by the principle of proven suitability (idoneidad comprobada) and that they could only be removed for cause of justified dismissal or due to forced reduction of services, admitting for all this the exceptions established by the Political Constitution itself and the Law. Thus, it is correct that the constitutional framers intended there to be a unified regime of human resource management for the entire state apparatus based on the principle of proven suitability in order to guarantee the efficiency of the administration, but from this it cannot be interpreted—as the legislator has done with this Public Employment Framework Law bill—that this unified regime must be the one being proposed here—to eliminate the statutory system that already exists—much less in the terms in which it is done, since, from Article 2, subsection a), an evident injury to the Constitution can be observed which, as stated, undermines the principle of separation of powers under Article 9 of the Constitution, and specifically to the detriment of the autonomy and independence of the Judicial Branch and the Supreme Electoral Tribunal. At this point, I reiterate my position that it would have been different if, with this bill, the legislator had only intended to issue general public employment guidelines to develop Article 192 of the Constitution and thereby strengthen the existing statutory system; something which has clearly not been proposed in those terms in the bill under study.

Regarding the Judicial Branch, it must be said that various provisions of the bill under study have an impact on the exercise of the jurisdictional function inherent to the Judicial Branch and those essential administrative functions that support such primary function, as Mideplán is granted stewardship over public employment matters (Art. 6), broad powers to issue “general provisions, directives, and regulations” (Art. 7.c and 7.l), to issue “the general guidelines and principles for performance evaluation” (Art. 7.g), and to establish “a single and unified system of remuneration for the public function” (Art. 7.m). All of the foregoing is contrary to the jurisprudential line of this Chamber according to which, regarding employment relations with its servants, in matters of performance evaluation (evaluación de desempeño) and salaries, it is improper for an external body to assume stewardship or unilaterally impose criteria on the Judicial Branch, and it should be recalled that this Court has endorsed the existence, appropriateness, and necessity of a particular public employment regime for Judicial Branch servants (see judgment No. 2018-019511). In line with the above, the creation of a Ministry of Public Employment as an agency of the Executive Branch, with such broad powers that it can give orders on this matter to the Judicial Branch, evidently also violates the exclusive and exclusionary powers of the Supreme Court of Justice, contained in Article 156 of the Constitution (“The Supreme Court of Justice is the superior court of the Judicial Branch, and from it depend the courts, officials, and employees in the judicial branch, without prejudice to what this Constitution provides regarding civil service.”); the foregoing, coupled with the opinion expressed by this Court to the effect that the special regulations of the Judicial Branch on these matters cannot be “tacitly repealed by a later general provision” (see judgments No. 01265-1995 and 2017-003450).

From reading the Public Employment Framework Law bill, it is demonstrated that Mideplán, despite being an agency of the Executive Branch, would assume a series of constitutional powers of the Supreme Court of Justice related to the governance function of the Judicial Branch, such powers being particularly burdensome in matters of direction and hierarchy relations of the officeholders subordinate to the Judiciary, the Public Ministry, and the Judicial Investigation Agency. Recall that judicial independence refers not only to the independence of judgment of the adjudicator but also to a series of manifestations in the administrative, financing, and operational spheres, which necessarily imply that any body belonging to another Branch of the Republic cannot have interference in the Judicial Branch. Certainly, from the examination of the consulted provisions, it is observed that the “General System of Public Employment” (Sistema General de Empleo Público)—which places the Ministry of National Planning and Economic Policy (Mideplán) as its governing body—invades the matters of administration and human talent management of the Judicial Branch, since the bill establishes that Mideplán will give specific orders to the Judicial Branch to organize and manage its human resources, which would encompass everything from how personnel requirements are designed, the criteria to be used in knowledge, competency, and psychometric tests for personnel selection and the precise manner in which internal and external competitions must be conducted, how it must carry out its evaluation processes, to how to design internal salary policy and the regulation as well as the application of the disciplinary regime, for example. On this matter, the Constitutional Chamber has indicated that “A further guarantee of the Judicial Branch's independence in the matter of employment is that the Head of the Personnel Department is linked to the President of the Court, excluding the interference of external bodies.” (see judgment No. 2018-019511); a situation that is completely ignored in this bill, as its reading reveals that the Head of the Personnel Department of the Judicial Branch would become dependent on an external body such as Mideplán.

From the bill under study, it is concluded that said stewardship goes beyond the regulation of an activity, becoming the direction and subordination of the recipient, who must obey and comply with specific directives and regulations on the matter issued by Mideplán. With what has been stated so far, note that the broad powers granted to Mideplán directly impact the substitution of powers and competencies by the bodies of the Judicial Branch, ignoring the special rules regarding the service regulation of Judicial Branch employees; rules even of legal rank. It must be emphasized that Judicial Independence is a basic guarantee of the Rule of Law, which assumes that the Judicial Branch is independent from the rest of the Branches to provide its own internal organization and operation; it is the ability to self-manage, moreover with financial autonomy, the personal, material, and instrumental means with respect to the Administration of Justice, and it refers both to the jurisdictional function and to the administrative function, in support of said jurisdictional function, or what is the same, to the entire Judicial Branch from the humblest position to the highest on the hierarchical scale. Consequently, this judicial independence implies, particularly, that the Executive Branch is forbidden from interfering in the decisions of the body responsible for the administration of justice, even if they are decisions of an organizational, administrative, or auxiliary nature, let alone those inherent to the administration of justice, because all of them are inherent to the Judicial Branch. It cannot be forgotten that the economic, personal, functional, organic, and institutional independence, both of the Judicial Branch itself and of the judges and auxiliaries of justice, is essential in a Constitutional State of Law, and according to such principle, each Branch is independent from the other, each State body must be able to exercise its function independently of the others (Art. 9 of the Constitution), and while there may be interrelation among them, there can never be subordination of one in relation to another.

Thus, any rule that subjects the Judicial Branch to orders, supervision, or directives from the Executive Branch is unconstitutional, which not only violates the principles of separation of functions and judicial independence, but the entire democratic system and organization of Power that the Constitutional Framers created in the Costa Rican Rule of Law, and this is so because the consulted bill seeks hyper-centralization (contrary to the decentralization process established by the Constitutional Framers) which, moreover, overrides the principle of separation of powers, particularly judicial independence.

For its part, regarding the Supreme Electoral Tribunal, it cannot be ignored that Articles 9 and 99 of the Political Constitution clearly establish that it “enjoys independence in the performance of its task” and, on this matter, there is also abundant jurisprudence on the foundation, justification, and relevance of such independence, whereby Article 2, subsection a) would also be unconstitutional because it undermines it. In judgment No. 3194-1992, the Chamber resolved that:

“In the case of electoral matters, the 1949 Constitution gave special importance to the need to segregate everything related to suffrage, mainly from the orbit of the political powers of the State. In that direction, it established a series of principles and adopted eminently formal mechanisms to guarantee the independence of suffrage, above all through the full autonomy of the body called to organize, direct, and oversee it. Originally in Article 99 of the Constitution, and later also in Article 9—by the addition introduced by Law 5704 of June 5, 1975—not only was the Supreme Electoral Tribunal attributed the organization, direction, and vigilance of acts related to suffrage, but it was also granted the rank and independence proper to a branch of the State.” For its part, note that in judgment No. 00495-1998, it was added that:

“although (the TSE) is not a Branch of the State in the strict sense, it does fulfill a primordial function in the Costa Rican State—which is to deal with electoral matters—and by constitutional provision—transcribed second paragraph of Article 9—it is conferred the rank and independence of a branch of the State”.

It must be noted that, regarding the independence of the Supreme Electoral Tribunal, the Chamber has also stated:

“(…) however, it is evident that the powers of organization and direction attributed by the Constitution itself to the Supreme Electoral Tribunal fully justifies recognizing those same powers in relation to electoral matters (…)" (see judgment number 0980-91).

Now, specifically regarding the public employment regime applicable to the TSE, the Constitutional Chamber has also stated:

“(…) in the case of the branches, their own constitutional independence, guaranteed in general by Article 9 of the Constitution and, in those of the Judicial Branch and the Supreme Electoral Tribunal by those of Articles 99 and following, 152 and following, and 177 thereof, as well as their own organic norms, impose on their heads the attribution and responsibility of setting the remuneration, representation expenses, and other facilities inherent to the positions, of their own members and subordinates, within, naturally, their budgetary availabilities, independently, of course, of whether their amounts may or may not coincide with those of the deputies” (see judgment No. 550-1991).

Likewise, it stated in judgment No. 2005-14298 that:

“(…) In a Tribunal such as this, where electoral matter is its essence, the constitutional principles of the public employment regime of stability and proven suitability (idoneidad comprobada), must be safeguarded with greater zeal, since the intention of the constitutional framers when creating this Branch was to completely sever the possibility that electoral officials might meddle in any political activity, in order to guarantee an independent Electoral Body.” Consequently, there is sufficient justification—not only from the provisions of Articles 9 and 99 of the Political Constitution and from constitutional jurisprudence—to conclude that Article 2, subsection a) of the Public Employment Framework Law Bill is also unconstitutional by including the Supreme Electoral Tribunal within its scope of coverage because, as the Chamber has stated, the constitutional principles of the public employment regime, of stability and proven suitability (idoneidad comprobada) in relation to the TSE, must be safeguarded with greater zeal, since the intention of the constitutional framers when creating this Branch—TSE—was to completely sever the possibility that electoral officials might meddle in any political activity, in order to guarantee an independent Electoral Body. Evidently, with the bill under study, this independence of the electoral body that the Constitutional Framers wished to safeguard at all costs would be violated.

Based on the reasons stated, I consider that Article 2, subsection a) of the Public Employment Framework Law Bill being processed in legislative file No. 21,336 is unconstitutional in what refers to the Judicial Branch and the Supreme Electoral Tribunal.

• d)Note from Magistrate Rueda Leal regarding the application of Article 6, subsection b) of the consulted bill to the Judicial Branch and the Supreme Electoral Tribunal.

From my perspective, the unconstitutionality detected with respect to this provision is also linked to the unconstitutionality observed when analyzing subsections g) and h) of Article 49, regarding human resources departments, and their dynamic with Articles 30 and following. I deem that coordination between different governmental bodies is possible and desirable. However, the legal assessment of that coordination will depend on its content regarding the matters, subjects, respect for fundamental rights, allocation of powers, etc. In that sense, it is insufficient to label an inter-organic or intersubjective relationship as “cooperation” and assume its constitutionality; rather, the terms of such cooperation and compliance with constitutional provisions must be observed.

• e)Different reasons from Magistrate Garro Vargas regarding the unconstitutionality of Article 6, subsection b) in that it subjects the Judicial Branch and the Supreme Electoral Tribunal to the stewardship of the general public employment system under Mideplán.

As indicated by the majority, but with my own considerations, I deem that Article 6, subsection b) of the bill is unconstitutional in that it establishes the stewardship of the General System of Public Employment (Sistema General de Empleo Público) under Mideplan and contemplates in said system the inclusion of the human resources offices of the Judicial Branch and the Supreme Electoral Tribunal. That is, under the lens of this article, those offices would be subjected to the stewardship of Mideplan and not to their respective governing bodies. The establishment of this stewardship, which strips said branches of the power of direction and oversight regarding their human resources offices, is unconstitutional because it empties the principle of separation of powers of its content. Said article must be inexorably examined in conjunction with the provisions of Article 9, paragraph 2 of the bill, which precisely establishes that human resources offices must apply and execute the provisions of general scope, the directives, and regulations regarding planning, work organization, employment management, performance management (gestión del rendimiento), compensation management (gestión de la compensación), and labor relations management that Mideplan sends to the respective institution.

It is necessary to highlight that, according to the Political Constitution itself, the governing body of the Judicial Branch is the Supreme Court of Justice, and Article 156 expressly states that “from it depend the courts, officials, and employees in the judicial branch,” making it unconstitutional to establish a General System of Public Employment (Sistema General de Empleo Público), whose stewardship is in the hands of a ministerial portfolio of the Executive Branch—Mideplan—, transferring the human resource management offices to that system under the set of administrative rules, directives, and resolutions of Mideplan itself (see Art. 6, subsections d) and e)), openly disregarding what is established in the constitutional provision that orders that the officials and employees of the judicial branch depend on the Supreme Court of Justice. It is observed that the Supreme Court or, as applicable, the Magistrates of the Supreme Electoral Tribunal, disappear from the equation relating to the administration of personnel who perform activities intrinsically essential to the body, but also of all the administrative support personnel necessary to carry out the respective entrusted functions.

The design of the provision also disregards what was previously stated by this Constitutional Chamber in advisory opinion No. 2018-019511, in which it was affirmed that the direct relationship between the Personnel Department and the Presidency of the Court is a guarantee of the constitutional principle of independence between the branches. In the aforementioned vote, this Chamber expressly affirmed the following:

“Regardless of whether Article 47 of the bill speaks of ‘exceptions’ (salvedades), it is observed that performance evaluation (evaluación del desempeño) and competence in labor decision-making, whether general or specific, are already regulated by the aforementioned normative framework of the Judicial Branch, making it impossible for an external body to assume ‘stewardship’ or impose criteria on that Branch. Moreover, said normative framework is designed to guarantee the efficiency of the judicial function and protect judicial servants from external interference, as indicated by Article 1 of the Judicial Service Statute (Estatuto de Servicio Judicial):

“Article 1.- This Statute and its regulations shall regulate the relations between the Judicial Branch and its servants, in order to guarantee the efficiency of the judicial function and to protect those servants.” Note that the provision determines that employment relations between the Judicial Branch and its servants are regulated by the Statute and its regulations. The systematic interpretation required by that article prevents indirect regulation of the judicial service through directives or guidelines from other bodies. This is verified because the issuance of the regulation referred to in the provision is, in turn, the exclusive competence of the Court, as the same Statute indicates:

“Article 5.- Before issuing an internal work regulation, whether of a general nature for all judicial servants or applicable only to a group of them, the Court shall make the respective draft known to those servants, by the most appropriate means, so that they may submit written observations within a term of fifteen days.

The Court shall take those observations into account to resolve accordingly, and the regulation it issues shall be binding without further procedure, eight days after its publication in the ‘Judicial Bulletin’.” A further guarantee of the Judicial Branch's independence in employment matters is that the Head of the Personnel Department is linked to the President of the Court, excluding the interference of external bodies:

“Article 6.- The Personnel Department of the Judicial Branch shall function under the direction of a Head who shall report directly to the President of the Court and shall be appointed by the Full Court.” Then, the detailed provisions of the Judicial Service Statute (Estatuto de Servicio Judicial) distinguish the different competencies in matters of performance evaluation (evaluación del desempeño), which corroborates the existence of special regulations for that Branch” (emphasis not in the original).

Consequently, the design established in the consulted provision is unconstitutional, precisely because it allows the human resources office of the Judicial Branch to become subordinated to Mideplan, which implies admitting the interference of external bodies with respect to the independence of the Judicial Branch and the Supreme Electoral Tribunal. Furthermore, note that the Supreme Court of Justice, and the Magistrates of that Tribunal, see their functions as heads mutilated.

• f)Different reasons from Magistrate Picado Brenes, regarding Article 6 of the bill in relation to the stewardship of Mideplán (point 7 of the Therefore) I concur with the unanimous opinion of the Chamber that Article 6 of the Public Employment Framework Law bill is unconstitutional, specifically regarding subsection b), in that it subjects the Judicial Branch and the Supreme Electoral Tribunal to the directive authority of the Executive Branch. Notwithstanding the foregoing, I consider it necessary to raise other reasons that justify my decision. It must be assumed that the bill under study proposes incorporating the Judicial Branch within general public employment regulations, which are intended to be of generalized application in practically the entire public sector; however, in the specific case of the Judicial Branch, this inclusion is being made without considering its legal nature, its organic composition, its particularity, as well as the specificity of the functions performed by that Branch of the Republic and each and every judicial servant within the machinery they constitute. From a general reading of the bill, it is very clear that the Executive Branch, through Mideplán, would assume the entire stewardship and governance of the general public employment system being created, which is done without considering the principle of separation of powers and in complete disregard of the entire human talent management system that the Judicial Branch has created as one of its full powers; a system within which a large amount of the regulations governing and protecting it has been of legislative creation, not the product of internal or capricious decisions of that Branch of the Republic. At this point, it cannot be overlooked that, with this bill, a serious contradiction is incurred, because despite having already issued specific regulations for the Judicial Branch on the matter, it now simply decides to render them ineffective to replace them with rules of general application and without technical support justifying a general rule modifying a special one.

It cannot be lost sight of that Article 153 of the Political Constitution provides that the administration of justice is an exclusive function of the Judicial Branch as a constitutional body; for its part, the principle of separation of the Branches of the Republic arises from Article 9 of the Constitution. It must be reiterated that from the joint interpretation of both, it follows that the Judicial Branch—as an independent body of constitutional creation—must not have any type of interference from another Branch of the Republic that impedes, limits, or affects it in the exercise of its exclusive function, which is the administration of justice; however, from reading the Public Employment Framework Law bill and specifically Article 6 under study, it is more than evident that the intent of the bill is not only the creation of a general public employment system, but an absolute intrusion into the Judicial Branch, by the Executive Branch—exercised through Mideplán—, in all matters relating to human talent management. Note that this Article 6 provides for the creation of the referred general public employment system under the Ministry of National Planning and Economic Policy (Mideplán) and includes “The offices, departments, areas, directions, units, or homologous denominations of Human Resources Management of the entities and bodies under the scope of application of this law.” By having included the Judicial Branch in the scope of application of the Law—Article 2, subsection a)—, it is more than obvious that Article 6 would, in turn, be including the Human Resources Department of the Judicial Branch and, consequently, incorporating therein all matters within its purview related to the management of human talent working in the Judicial Branch. At this point, I clarify that, in my opinion, this intrusion intended by Mideplán into the Judicial Branch would not exclude any official; rather, the intention is for the new system to be applied to all personnel working in the Judicial Branch understood as a whole, comprised of the entire justice administration sector, the Public Defense, the Attorney General's Office, the Judicial Investigation Agency, the administrative sector, and any other department or unit that makes up the organizational chart of this Branch of the Republic, whether at the judicial, auxiliary, or administrative level. From this perspective, therefore, I do not agree with the majority position of this Chamber that it is valid to divide judicial employees into two groups: those who can be included in the public employment management system and those who could not be immersed therein, which, for the majority of members of this Chamber, would be the officials exercising jurisdictional functions—judges—or para-jurisdictional functions—prosecutors, public defenders, and professionals and specialized personnel of the Judicial Investigation Agency, etc.—as well as officials at the managerial level or high political direction as the bill calls them. I believe that all Judicial Branch personnel must be protected from the slightest interference from any other Branch. Judicial servants do not work for fragmented sectors of the public administration; rather, their employer is one and only one—the Judicial Branch—; moreover, their objectives as workers are directed toward achieving a common goal that is the same for the entire Judicial Branch.

For this reason, in my opinion, it is neither valid to include the Judicial Branch within the scope of action of the Public Employment Framework Law, nor is it even more admissible to attempt to sectorize its employees, given that the ultimate goal of their work is directed at fulfilling the goals of the Judicial Branch as a whole.

Furthermore, note that Article 6 of the Public Employment Framework Law bill is ignoring the powers that the Supreme Court of Justice has in matters of human resource management, as the governing body of the Judicial Branch, so that they are superseded by Mideplán. Based on that authority, it will be Mideplán—not the Supreme Court of Justice—that will issue the administrative acts and regulations directed to the Human Resources Directorate of the Judicial Branch, and this will indisputably imply friction with the Constitution, in relation to Article 156, in that the Executive Branch would be interfering—of its own accord—in decisions regarding personnel administration that are unique and exclusive to the Supreme Court of Justice, since, in light of Article 156 of the Constitution, it is the Superior Court of the Judicial Branch and from it depend the courts, officials, and employees.

Furthermore, with the content of Article 6 of the Public Employment Framework Law bill, there would not be a coordination-cooperation relationship between the Judicial Branch and the Executive Branch—Mideplán—in public employment matters, but rather an imposition of the decisions, provisions, directives, regulations, etc.

issued by Mideplán in that area, disregarding the existence of constitutional bodies that have that competence, such as the Supreme Court of Justice (Article 156 of the Constitution).

In addition to the above, Article 6 under review would imply emptying the constitutional competences of the Supreme Court of Justice regarding the management of judicial employees’ employment, as well as all the existing regulations within the Judicial Branch that attribute such management to it.

Finally, with regard to the Judicial Branch, I must highlight that even though Article 2, subsection a) of the Public Employment Framework Law bill includes it within the scope of coverage of that bill, and the final phrase of that subsection textually provides “without prejudice to the principle of separation of Powers established in the Political Constitution,” the fact of the matter is that the mere statement of that principle means nothing because articles such as Article 6 under review are emptying it of content and are causing a clear violation of the separation of powers, since the interference that Mideplán intends to have in the Judicial Branch regarding human talent management is absolute and completely contrary to said separation.

On the other hand, with regard to the Supreme Electoral Tribunal, basically the same can be said since Article 2, subsection a) included it within the scope of coverage of the Public Employment Framework Law bill and, therefore, the following Article 6 would be applicable so that “The offices, departments, areas, directorates, units, or homologous designations of Human Resources Management” of said Tribunal would likewise be at the mercy of the decisions and provisions that, regarding public employment, are issued by Mideplán. Evidently, as occurs with the Judicial Branch, the inclusion of this Tribunal in that general public employment system is detrimental to the independence granted to it by Article 99 of the Political Constitution. It should be remembered that the Supreme Electoral Tribunal is a specialized constitutional body for electoral matters, with the rank and independence of the other Powers of the Republic (judicial, legislative, and executive), and is responsible for the organization, direction, and oversight of acts relating to suffrage, as well as the other functions attributed to it by the Constitution and the Law; functions by reason of which it has full independence and autonomy to establish its own internal organization, which undoubtedly implies that it can manage the human resources it requires for their fulfillment. Consequently, it is contrary to Constitutional Law for a body of the Executive Branch, such as Mideplán, to impose the mode of operation on this Tribunal regarding its human resources, since it has full autonomy to manage them on its own. Again, on this point, I consider that the law bill under review intends to include all personnel working for the Supreme Electoral Tribunal and, once again, I do not share the majority opinion of this Chamber regarding excluding from the general public employment system a part of its employees, namely, the officials of that Tribunal who exercise electoral functions—legal advisors (letrados), Department directors, professionals, etc., and those who hold high-level political management positions, as well as the administrative, professional, and technical staff defined exclusively and restrictively by each head of the respective power, because, in these cases, it is not possible to subject them to guidelines, provisions, circulars, or manuals issued by Mideplán. In my opinion, and as I already stated in relation to the Judicial Branch, it is not possible to create two groups of officials within the Supreme Electoral Tribunal either, so that some of them are included in the public employment system and others are excluded. Once again, I reaffirm my thesis that each and every one of the TSE’s employees are an indispensable part of the entire machinery, from the most humble position to the highest in the hierarchy; all of them fulfill, through different tasks, a single objective that is the one constitutionally assigned to the TSE. Fragmenting the workers’ regime undoubtedly violates the principle of equality and non-discrimination because officials who are geared toward fulfilling the same purpose would be governed by different public employment systems.

• g)Additional reasons of Judge Garro Vargas regarding the unconstitutionality of Article 7 for affecting the independence of the Judicial Branch and the Supreme Electoral Tribunal.

Regarding Article 7, the majority of the Chamber limits itself to addressing the consultation in relation to the subsections expressly mentioned and justified by the consulting legislators, namely, subsections d), g), and p) for affecting the independence of the Judicial Branch and the Supreme Electoral Tribunal.

However, considering the constitutionality consultation filed by the Supreme Court of Justice admissible and by virtue of the provisions of Article 101, first paragraph, of the LJC, I do not see myself limited to ruling exclusively on the cited subsections, but rather in relation to the entirety of Article 7 under consultation. Therefore, just as the majority of the Chamber does regarding other institutions, I consider that Article 7 is unconstitutional in relation to those provisions that subject the Judicial Branch and the Supreme Electoral Tribunal to the power of direction and regulation by Mideplán, disregarding any relationship with the Supreme Court of Justice or the plenary of Magistrates of the Supreme Electoral Tribunal, bodies on which the officials and employees of the judicial and electoral branches, respectively, depend.

I have already expressed that I consider the stewardship (rectoría) over the Judicial Branch and the Supreme Electoral Tribunal, sought to be placed in the hands of the Executive Branch, to be unconstitutional. Article 7 makes manifest all the competences intended to be conferred on this body in its condition as steward (rector), for example: in subsection a) the competence to establish, direct, and coordinate the issuance of public policies, programs, and national public employment plans; in subsection c) the competence to “issue provisions of general scope, guidelines, and regulations aimed at the standardization, simplification, and coherence of public employment,” which is complemented by the provisions of subsection d), which provides for the competence to “advise the entities and bodies included under the scope of coverage of this law for the correct implementation of public policies, provisions of general scope, guidelines, and regulations issued within the framework of political stewardship (rectoría política) in public employment”; in subsection g) it is stated that it corresponds to Mideplán to “issue the guidelines and general principles for performance evaluation”; and in subsection l) according to which it is responsible to “coordinate with the Procuraduría de la Ética Pública to issue provisions of general scope, guidelines, and regulations for the instruction of public servants regarding the duties, responsibilities, and functions of the position, as well as the ethical duties governing public service.” All of the above demonstrates that both the Judicial Branch and the Supreme Electoral Tribunal are subject to the power of direction and regulation of Mideplán. Likewise, despite the independence these powers have to regulate matters concerning their salaries, subsection m) provides that it corresponds to this ministerial portfolio of the Executive Branch to establish “a single and unified remuneration system for the public service,” consequently defining a single salary system for the persons exercising the judiciary and the electoral function, subjecting them to decisions of the Executive Branch which, as I explained previously, I consider to be a dangerous mechanism that undermines the operational stability of the institutions that are the foundation of Costa Rican democracy. Furthermore, as I have said, I do not object that general rules on salaries and other conditions of public servants, binding on all powers, be established by law.

• h)Additional reasons of Judge Picado Brenes, regarding Article 7 of the bill in terms of the broad competences of Mideplán with respect to the Judicial Branch and the Supreme Electoral Tribunal (point 8 of the Por Tanto) As has been indicated, both the Judicial Branch and the Supreme Electoral Tribunal enjoy constitutionally granted independence for the exercise of their competences and the fulfillment of their purposes. In accordance with the constitutional principle of separation of powers, it is well known that no other Power of the Republic can interfere in the competences of another; consequently, the Executive Branch, through Mideplán, could not impose on the Judicial Branch or the Supreme Electoral Tribunal any of the powers conferred on that body in Article 7 of the Public Employment Framework Law bill. It should be noted that this article establishes the following as Mideplán’s competences:
• a)Establish, direct, and coordinate the issuance of public policies, programs, and national public employment plans.
• b)Establish mechanisms for discussion, participation, and consultation with municipal corporations regarding public employment.
• c)Issue provisions of general scope, guidelines, and regulations aimed at the standardization, simplification, and coherence of public employment.
• d)Advise the entities and bodies included under the scope of coverage for the correct implementation of public policies, provisions of general scope, guidelines, and regulations issued within the framework of political stewardship (rectoría política) in public employment.
• e)Administer and keep updated the integrated public employment platform.
• f)Publish the public employment job offers through the virtual platform fed by the entities and bodies included within the scope of coverage.
• g)Issue the guidelines and general principles for performance evaluation.
• h)Administer and implement actions for research, innovation, and formulation of public employment proposals.
• i)Direct and coordinate the execution of inherent competences in public employment matters with the Ministry of Finance, the Ministry of Labor and Social Security, the Budgetary Authority, and the Dirección General de Servicio Civil, among other technical units in the field of public employment.
• j)Collect, analyze, and disseminate information on public employment from entities and bodies for their improvement and modernization.
• k)Prepare a coherent and comprehensive strategy for learning and development throughout the public service.
• l)Coordinate with the Procuraduría de la Ética Pública to issue provisions of general scope, guidelines, and regulations for the instruction of public servants regarding the duties, responsibilities, and functions of the position, as well as the ethical duties governing public service.
• m)Establish a single and unified remuneration system for the public service.
• n)Conduct diagnostics on human resources matters of the included entities and bodies to achieve an adequate downsizing of existing payrolls and the development of general criteria that delimit the sectors whose activity, due to its strategic institutional value and its link to core activities, should be reserved to be carried out exclusively by public servants. Also, analyze those guidelines used to delimit the provision of services that could be outsourced and the conditions for their delivery.
• o)Forecast global trends regarding the future of public employment, for the purpose of informing its planning.
• p)Analyze the efficiency and effectiveness of evaluation mechanisms, in order to determine whether or not they fulfill their purpose.
• q)Evaluate the general public employment system in terms of efficiency, effectiveness, economy, simplicity, and quality.

From the preceding reading, it is more than evident that, in matters of public employment and in the terms in which Article 7 is drafted, Mideplán will have the competence and power to establish whatever it deems pertinent, over and above any hierarchy or Power of the Republic. In the specific case, the attempt to apply that provision internally within the Judicial Branch and the Supreme Electoral Tribunal would imply violating Constitutional Law and, specifically, the principle of separation of powers, because the Executive Branch cannot order the activity of those branches in matters of public employment, much less establish goals or objectives for them in the terms set forth in the aforementioned Article 7. In that sense, and as I have been sustaining, it would not be valid for Mideplán to indicate to the Judicial Branch or the Supreme Electoral Tribunal what the correct implementation of the provisions issued by that body of the Executive Branch on public employment matters would be (subsection d); nor can it issue guidelines for the performance evaluation of employees of the Judicial Branch and the Supreme Electoral Tribunal (subsection g); much less can Mideplán evaluate employment-related aspects regarding efficiency, effectiveness, economy, simplicity, and quality in relation to the employees of the Judicial Branch or the Supreme Electoral Tribunal. All of these competences and attributions are specific to the Supreme Electoral Tribunal and the Judicial Branch, inherent to each of them, and, for that reason, any interference that Mideplán might intend to have in the human talent management of both, under the provisions established in Article 7 of the Public Employment Framework Law bill, would be unconstitutional.

• i)Separate note from Judge Garro Vargas regarding Article 12 with respect to the Judicial Branch and the Supreme Electoral Tribunal In the sub lite matter, I have agreed with the majority of this Chamber when it indicates that there has been no proper substantiation regarding the doubts of constitutionality of Article 12 of the bill and its application to both the Judicial Branch and the Supreme Electoral Tribunal. Therefore, this aspect must be declared unanswerable (inevacuable). However, I reserve the warning that, should it be proven that the integrated public employment platform and its management involve a regulation affecting the independence of the other powers of the republic, it could be an unconstitutional provision. That is, if there were a demonstration that there is undue interference, this would be unconstitutional.
• j)Separate note from Judge Picado Brenes, regarding Article 12 of the bill in terms of the Database (point 10 of the Por Tanto) I agree with the unanimous opinion regarding declaring the consultation filed in relation to Article 12 of the bill under review unanswerable (inevacuable); however, I consider that, due to the significance of what is indicated in this Article with respect to the Judicial Branch and the Supreme Electoral Tribunal, it is necessary to highlight some elements that can be interpreted from reading that provision and which, in my opinion, must be analyzed. Note that the Article under review is creating a new figure termed the "integrated public employment platform," which will be capable of centrally collecting data and information on the professional profile of public servants, and where one will be able to find persons considered "ineligible to be appointed again to public positions due to having been sanctioned with a disqualification." This platform will be administered by the Ministry of National Planning and Economic Policy, and as can be deduced from the provision, the objective of that platform is to have "timely and accurate evidence" for decision-making in public employment matters. In my opinion, the rule poses serious problems that could border on unconstitutionality, because, in addition to being a public registry containing sensitive data of public servants, it must also be considered that its collection would be done automatically, and access to its content appears to be unrestricted, subject only to the opportunity and convenience of the administration, without the slightest involvement of a judge. It must be remembered that the collection of personal data is subject to rules that guarantee the right to the protection of such data, as well as the right to informational self-determination of its owner, and even though in the public sphere such rules may be less rigid, the truth is that a law must always exist authorizing it under conditions that are reasonable and consistent with the democratic principle, and always subject to the involvement of a judge when necessary. In the specific case, it is observed that the bill does not provide an adequate justification for the reasons why it is necessary to create that registry; nor does it specify whether public servants will be able to authorize their inclusion in said registry; it does not determine which of their data will be included there, nor does it establish the procedure through which individuals will have access to their information, its correction, or the purposes for which it will be used in each specific case. On the other hand, it also does not establish the level of protection that will be given to that data, since it only mentions that it will be administered by Mideplán; an aspect of great relevance since it cannot be forgotten that data stored in public registries will have restricted access, meaning the bill should contemplate—at least—the essential elements under which access to that registry will be granted, especially considering that sensitive information may be recorded there. In addition to the above, given the seriousness of the matter, in my opinion, even though Article 12 establishes that this integrated public employment platform must respect the provisions of Law 8968, Protection of the Person Regarding the Processing of Their Personal Data, the fact of the matter is that the bill is silent on including aspects related to the conduct of the persons who will feed these databases, as well as the possible sanctions that could exist in the event of misuse of the information to which they have access. This is because in each public office there will be personnel in charge, and upon adding up the institutions, many people could have some type of contact with that information, as well as its manipulation. In this area, it cannot be forgotten that sensitive information may be recorded in that registry; there may also be data whose indiscriminate dissemination could seriously affect public institutions, but above all, in the case of the Judicial Branch and the Supreme Electoral Tribunal, whose employees must enjoy special institutional protection due to the nature of their functions, as could be the case for OIJ agents, Prosecutors (Fiscales), Public Defenders (Defensores Públicos), Judges, or personnel closely linked to the electoral process, among others.

Consequently, in my opinion, the Article could contain constitutional friction by not including aspects such as those indicated, which could cause serious harm to the fundamental rights of the public servants who may be included in that integrated public employment platform.

• k)Different reasons of Judge Garro Vargas regarding the unconstitutionality of Article 13 with respect to the Judicial Branch and the Supreme Electoral Tribunal Like the majority, I consider that Article 13 of the bill is unconstitutional because it harms the independence of powers, both with respect to the Judicial Branch and the Supreme Electoral Tribunal. However, I consider that the unconstitutionality is not limited to what is established in subsection f), as the majority declares, but rather extends to the entirety of the article. This is so because, if only subsection f) is declared unconstitutional, it could consequently be understood that it is constitutional for the rest of the judicial officials who are not judges—but who are support staff, vital for the administration of justice (prosecutors (fiscales), legal advisors (letrados), professionals, judicial police officers, public defenders, etc.)— to be included within the general public employment regime under the express stewardship (rectoría) of Mideplán. Indeed, by understanding the judicial branch only from the perspective of subsection f), that is, that it only refers to judges and magistrates (persons who administer justice and magistrates of the Supreme Electoral Tribunal), all the particularities and needs of the support staff of said powers of the republic are disregarded. In other words, that subsection is deficient in itself, but its wording makes the others deficient as well. To explain this, one could say that it is a reality seen from a concave and a convex point of view. That is, from one angle, subsection f), by contemplating only a part of the judicial branch and the Supreme Electoral Tribunal, disregards the reality that these institutions are comprised—in addition to magistrates and the personnel who directly administer justice—of a wide range of support officials who are essential for the proper execution of the constitutionally designated competences. However, the mere declaration of unconstitutionality of subsection f) is insufficient, because it would imply that the declaration of unconstitutionality of that subsection independently could cause the rest of the judicial officials or those of the Supreme Electoral Tribunal, who are not magistrates or do not directly administer justice, to be subject to Mideplán's stewardship (rectoría). Therefore, seen from the other angle, even if the rest of the subsections were not consulted, it is clear that this provision must be examined in its entirety. Remember that when addressing a constitutionality consultation, the Chamber must rule on the aspects and grounds consulted but may also rule “on any others it considers relevant from a constitutional point of view” (Article 101, first paragraph, of the LJC). Consequently, although only subsection f) has been consulted, by pure logical-legal derivation, it is clear that from a constitutional point of view, said article is vested with unconstitutionality to the extent that the construction of job families disregards the particularities and institutional composition of the powers of the republic to carry out the function of administering justice or organizing suffrage, since it associates it solely with magistrates and persons who administer justice. It should be noted that Article 13 itself provides that “The creation of public employment job families is reserved to law and must be justified by technical and legal criteria consistent with efficient and effective public management,” a rule that must also be examined in conjunction with what is referenced in Article 32 of the bill, which orders that “Each labor family shall be comprised of a series of grades, each of which represents a group of positions with a similar profile. The Ministry of National Planning and Economic Policy (Mideplán) shall define the number of grades required within each labor family, as well as their characteristics, in response to an evaluation of all positions within the labor family.” Therefore, it must be reiterated that if only the unconstitutionality of subsection f) is declared, there is a danger that the rest of the judicial staff and the staff of the Supreme Electoral Tribunal will be placed—as in fact they are—in other “job families,” whose evaluation and definition would be left in charge of a body external to the mentioned powers. This would establish a dangerous loophole through which the interference of a ministerial portfolio of the Executive Branch regarding the administration of the personnel of those powers would be carried out, thereby harming their independence.
• l)Different reasons of Judge Picado Brenes, regarding Article 13 of the bill in terms of the job family groups of the Judicial Branch and the Supreme Electoral Tribunal (point 11 of the Por Tanto) The Chamber, unanimously, has considered that Article 13, subsection f), is unconstitutional because it harms the independence of Powers both in relation to the Judicial Branch and the TSE. In this regard, as far as my specific opinion is concerned, I consider it necessary and timely to make some clarifications.

Note that Article 13 of the Public Employment Framework Law bill refers to the General Public Employment Regime and is located in Chapter IV, Organization of Work. This provision of the bill mandates that there shall be a single general public employment regime comprised of 8 job families, which shall apply to the bodies and entities of the Public Administration according to the functions performed by the personnel of each one of them. These 8 job families shall be the following:

• a)Public servants under the scope of application of Title I and Title IV of the Civil Service Statute, as well as those serving in the institutions indicated in Article 2 of this law, who are not included in the other job families.
• b)Public servants performing functions in health sciences.
• c)Public servants performing police functions.
• d)Teaching staff contemplated in Title II and Title IV of the Civil Service Statute.
• e)Teaching and academic staff of technical and higher education.
• f)Persons who administer justice and the magistrates of the Supreme Electoral Tribunal (TSE).
• g)Public servants performing foreign service functions.
• h)Public servants performing confidence positions.

Note that the article is drafted in a generic and imprecise manner, which will bring serious problems of interpretation regarding its scope, but also because it would not allow for the determination of some aspects that would be of fundamental relevance. In this sense, I consider it inappropriate to accumulate a specific category of workers into a single group or job family just because they belong to that category, because even if all of them are dedicated to the same generic function—for example, being police officers—the specificities of each one will be different depending on their workplace, the objectives they are aimed at, and the purposes assigned to the institution to which they are attached. To better explain what has been said, take as an example the police officers belonging to the generic area of citizen security, a matter currently assigned to various State bodies, so the police forces responsible for it attend to the specific criteria and objectives of the institution to which they belong. However, in attempting to unify all police forces under a single public employment system, it is unknown what would happen in practice with the diversity of them existing in the country, namely, prison police (policía penitenciaria), administrative police (policía administrativa), immigration police (policía de migración), municipal police (policía municipal), traffic police (policía de tránsito), police officers of the Judicial Investigation Organization (Organismo de Investigación Judicial), among others. It is more than evident that the work objectives of the immigration police are completely different from those of the prison police; they serve diverse objectives, and, therefore, human resource management could not be uniform.

In my view this would once again generate a violation of the principle of separation of powers safeguarded in Article 9 of the Political Constitution since, I insist, one cannot lightly provide that an organ of the Executive Branch may purport to issue directives and orders to the different police bodies of the country when these belong to another Branch of the Republic or, as in the case of the Judicial Investigation Organization which is the specialized technical police force of the Judicial Branch and whose functions are completely different from those of the Public Force or any other police force of the country.

However, upon analyzing the specific situation of the Judicial Branch, it is observed that the management of its human resources would comprise at least 5 families of positions:

• a)public servants of the Judicial Branch who perform functions in health sciences: this point would likely include the workers of the Judicial Investigation Organization who work in the Department of Legal Medicine with very specific functions and purposes regarding the assistance to the administration of justice but also in some administrative areas—such as the assessment of employees who exceed the disability periods established by the CCSS—; however, it is very possible that it also includes those who work for the Company Medical Service, which evidently serves very different objectives.
• b)Public servants who perform police functions: as stated supra, it is not valid to attempt to include in the same family of positions police officers of the Ministry of Public Security and police officers of the Judicial Investigation Organization because their objectives, training, goals, and purposes are completely different and, therefore, their lines of action are incompatible, making it impossible to claim that, despite their nature, there is unity in the directives that govern them.
• c)Persons who administer justice and the magistrates: the specific function of administering justice performed by judges and magistrates is very specific, safeguarded as well as protected by numerous constitutional-level principles such as judicial independence, separation of powers, among others; however, it would not be consistent for the regulation not to include other officials who, with the rank of judges, perform functions similar to those of judges and necessary for the administration of justice, such as procedural judges or the legal clerks of the 4 Chambers of the Supreme Court of Justice, by which the regulation generates discrimination to the detriment of a group of workers, but also it appears to exclude those who administer justice at the administrative level and who even in the current nomenclature hold the rank of judges, as would be the case of the members of the different administrative tribunals existing in the country, or the case of the judges of the Judicial Inspection of the Judicial Branch. The independence of the Judicial Branch does not permit excluding any employee from its legal regulation because all are part of the necessary machinery to achieve an efficient and effective judicial administration in which not only judges and magistrates participate, but also the janitor who cleans the offices, the process server who notifies the parties of the situation, the driver who transports the magistrate, the judicial police officer who transports persons in custody, the public defender who defends them, the prosecutor who exercises the criminal action of the State, and so many other officials of the Judicial Branch involved in this machinery and who are a very important part of the entire Judicial Branch. On this point, it cannot be left unsaid that this type of subdivision (fraccionamientos) between those who are and those who are not in the public employment system will also generate a violation of the principle of equality and non-discrimination, as it is contradictory that employees all directed toward the achievement of the same constitutionally granted purpose of the Judicial Branch should belong to different public employment systems, with different objectives and directives. The majority opinion states that those who actually exercise the jurisdictional function should be included and that each Branch shall determine who makes up that personnel; however, one must not forget that in order to achieve the issuance of a judgment and its respective execution—ultimate purpose of the Judicial Branch—, it is essential to have the participation of the citation server, process server, judicial police officer, judicial technician, janitor, administrative personnel who process payrolls and salaries, expert witnesses, drivers, social workers and forensic psychologists, trainers, and more than 200 categories of employees existing in the Judicial Branch, all indispensable in the administration of justice.
• d)Public servants who perform positions of trust (cargos de confianza): in the case of the Judicial Branch, there are several positions that have been given this classification and among them are the secretaries and drivers of the magistrates, some of the legal clerks subject to the new regime, among others. The question thus arises as to how these persons will be situated in relation to the new system and whether they will retain any type of right or whether, on the contrary, under the pretext of the new nomenclature, they could be dismissed under the argument of being personnel of trust and for their replacement in those positions, as would fall to an organ of the Executive Branch, other persons could be designated who do not necessarily meet the requirements needed to work in the Judicial Branch. This point raises serious doubts as to the handling that an organ of the Executive Branch could give to the "positions of trust," especially if they were intended to satisfy political interests or commitments. The foregoing is valid to consider because, note that the regulation establishes no requirement or condition for entry into that family of positions and because the bill also does not contain, in any other regulation, what will be understood as a "position of trust," not even in numeral 5 which, supposedly, would contain all the definitions of the terminology used in that bill.
• e)the persons who work in the institutions indicated in Article 2 of the present law—where the Judicial Branch has been included—, who are not included in the remaining families of positions: on this point, it is observed that, by exclusion, the rest of the personnel of the Judicial Branch who did not fit into any of the preceding 7 families of positions would be included in this one. Here, in practice, what would simply and plainly happen is that, in the face of doubt, in not knowing what the position is about, in the lack of understanding of the functions performed by the personnel, they would be classified under this item, with the serious consequence that persons and positions so diverse could be found grouped under a single scheme that it would be impossible to attempt to apply a unified system of public employment regulation to them. Consider, for example, a high-standard investigator, with a very specific professional profile, perhaps dedicated to tasks with a certain degree of confidentiality within the Judicial Branch, with functions that do not fit into any of the other 7 families created by that numeral 13, and who, because it is not very clear what they do due to the level of secrecy of the tasks, must be included in this family, while, in turn, they will have as a colleague in that classification an unskilled laborer who is also not covered by the other families of positions and who will likewise be included here; undoubtedly this will generate very dissimilar situations, impossible to unify into a single group of rules and directives as is intended with the bill under study. Consider that, in a context such as the one described, it would be absolutely improper for an organ of the Executive Branch—Mideplán—to attempt to impose similar human resource management regulations on such different public servants, thereby generating not only violations of the principle of equality and non-discrimination but also serious injuries—to the Judicial Branch in this case—to its independence and autonomy for the management of its human resources.

On the other hand, observe that Article 13 establishes that for each one of those 8 families of positions, there must be a diagnosis of working conditions, an occupational health program, and safety protocols to safeguard the lives of the workers. In this regard, it is necessary to be realistic since, if at present the topic is quite complex and even lacking adequate regulation in many public workplaces, despite each institution having the competence to handle it according to its own characteristics and objectives, one would have to imagine how it will be under this Public Employment Framework Law where the directives would not be specific for the small group of workers of each institution, but would have to be of great magnitude because they would have to cover all the institutions included in the scope of coverage of the Law; undoubtedly this will generate a resource crisis to address everything related to occupational health and safety, as well as conflicts between the institutions that have it better protected than others, claims by workers, and, of course, violations of several constitutional principles because, again, it is a topic that is directly related to human talent management and that must address the purposes and competencies of each institution, not general criteria imposed by an organ coming from the Executive Branch. In that sense, the directives regarding occupational health and safety for the employees of the Judicial Branch could never be the same as those issued for a Ministry or other institution with more administratively oriented functions; even within the Judicial Branch itself, those measures could never be the same in the Forensic Medicine Department of the Judicial Investigation Organization as those applicable to the Financial Accounting Department. Thus, if within a single institution different directives can be generated, with greater reason if speaking of the entire Costa Rican State. At least, within each institution, there is the certainty that the best possible will be done in attention to the objectives and purposes of the institution vis-à-vis the rights of the workers, but that would not necessarily happen when the generality of all public servants must be attended to with limited resources. The matter would be even more serious when there is an attempt to transfer personnel from one institution to another—because it cannot be forgotten that the bill establishes that possibility of moving employees—and the person is moved from an environment respectful of occupational health to another that does not meet those conditions.

Now, all of the foregoing is equally applicable to the Supreme Electoral Tribunal, and therefore Article 13 is also unconstitutional with respect to it, as all the officials of that body would become part of the general public employment system and be included in some of these 8 families of positions, despite the guarantee of independence granted to that Tribunal by the Political Constitution in its Articles 9 and 99, based on the fact that the judicial governance and the governance of the electoral body are exercised respectively by the Supreme Court of Justice and the Supreme Electoral Tribunal, exclusively and excludably in what pertains to their constitutional competencies, and therefore, likewise, the construction of the family of positions, should it be so intended, corresponds, exclusively and excludably, to each branch of the State; consequently, it will have to be the sole competence of the Supreme Electoral Tribunal and the Judicial Branch.

• m)Separate note of Magistrates Garro Vargas and Picado Brenes, authored by the latter, on Article 19 of the bill regarding Transfers or the Mobility of positions (point 18 of the Por Tanto) While it is true I concur with the unanimous opinion regarding declaring the consultation raised in relation to Article 19 of the bill under study unevacuable, I also consider that, due to the significance of what is indicated in this article with respect to the Judicial Branch and the Supreme Electoral Tribunal, it is important to make some observations on the matter. Even though the consultants did not make an adequate presentation of the reasons why they believe this Article 19 of the bill under study could be harmful to the Law of the Constitution, the truth of the matter is that, in my view, it is a regulation whose wording is quite open, which could generate serious constitutionality problems for the following reasons. First, I must indicate that because the bill intends to unify all regulation regarding public employment into a single regulatory body, by centralizing the governing authority of the system in a single organ of the Executive Branch, including matters related to mobility, there is a risk of losing the specificities of each worker or of the different work areas that make up the Public Administration. To the extent that matters are generalized, specialization is lost and, with it, an alteration of the principle of suitability safeguarded in Articles 191 and 192 of the Political Constitution can also occur. This could be aggravated because that numeral 19 under study allows transfers within and between entities and bodies included in the public employment regime, by which it would be difficult for a person specialized in a certain area to perform adequately and suitably if transferred to another office where their knowledge and experience do not match what is required of them. Second, I must state that the wording of the regulation would allow indiscriminate transfers under the argument that it serves the public interest or institutional need, by which the Administration risks losing efficiency and effectiveness in its actions, but more seriously, serious harm could be caused to the administered party. Third, the regulation does not establish limits or restrictions; consequently, the application of that mobility would be left to the free discretion of undetermined officials, and this, indisputably, could encourage the use of subjective criteria to carry out personnel transfers that, ultimately, far from favoring the public interest and institutional need, could allow the intrusion of other types of interests in the different public institutions. It cannot be forgotten that the body that has the governing authority over this matter belongs to the Executive Branch, with all the political burden that, by its nature, it carries with it.

In the specific case of the Judicial Branch, I consider that allowing the intrusion of an organ of the Executive Branch such as Mideplán, in decision-making relating to mobility in public employment, would have a dangerous impact on the exercise of the jurisdictional function inherent to the Judicial Branch, but also on those essential administrative tasks that support such primary function, though likewise, it cannot be ignored that, ultimately, given the function entrusted to the Judicial Branch, the impact this would produce would occur at all employment levels of the institution. In my view, it would be unthinkable that, in application of this Article 19 and under subjective criteria camouflaged as public interest or institutional need, an attempt be made to transfer a Judge of the Republic to exercise other types of functions for which they were not appointed and whose suitability does not prove adequate. Similarly, it would be unimaginable to transfer an experienced police officer to perform administrative or desk duties in a public office without any relation to police duties. Note that in matters of mobility, Mideplán would be granted the governing authority with broad powers to issue "general provisions, directives, and regulations," which is deemed contrary to the jurisprudential line that this Chamber has been maintaining regarding the impropriety of an external instance assuming governing authority or unilaterally imposing criteria on the Judicial Branch concerning employment relations with its servants, given that the Chamber has endorsed the existence, propriety, and necessity of a particular public employment regime for the servants of the Judicial Branch (see opinion n°2018-019511). In my opinion, the attribution of competencies relating to public employment to an organ of the Executive Branch, with such broad powers, that could give orders on this matter to the Judicial Branch, evidently also violates—as has been pointed out—the exclusive and excludable competencies of the Supreme Court of Justice, contained in Article 156 of the Constitution ("The Supreme Court of Justice is the superior tribunal of the Judicial Branch, and upon it depend the courts, officials, and employees in the judicial branch, without prejudice to what this Constitution provides regarding civil service."), thereby confirming that Mideplán, an organ of the Executive Branch, would assume a series of constitutional competencies of the Supreme Court of Justice, related to its function of governance of the Judicial Branch. Under this line of thought, I consider that Article 19 under study could present serious constitutional tensions and violations of the principles of independence and autonomy of the Judicial Branch, as well as the separation of powers. It should be recalled that judicial independence not only refers to the independence of the judge’s criterion but also to a series of manifestations in the administrative, financing, and operational spheres, which necessarily imply that any body belonging to another Branch of the Republic cannot have interference in the Judicial Branch. Certainly, from the comprehensive examination of the consulted bill, it is observed that the "General Public Employment System" that places the Ministry of National Planning and Economic Policy (Mideplán) as its governing entity invades the human resources administration domain of the Judicial Branch. The economic, personal, functional, organic, and institutional independence, both of the Judicial Branch itself and of the judges and auxiliary personnel of justice, is essential in a Constitutional State of Law. Pursuant to such principle, each branch is independent of the other, each organ of the State must be able to exercise its function independently of the others (Article 9 of the Constitution), and while there may be interrelation among them, there can never be subordination. Furthermore, it is not only a violation of the principles of separation of functions and judicial independence but of the entire democratic system and organization of Power that the Constituent Assembly has created in our State of Law, as the consulted bill—in its generality—seeks a hyper-centralization (contrary to the decentralization process established by the Constituent Assembly) that, moreover, transgresses the principle of separation of powers, particularly judicial independence. Likewise, I consider that the foregoing is fully applicable to the Supreme Electoral Tribunal because, in accordance with Article 99 of the Political Constitution, it enjoys independence in the performance of its mission; independence that also includes the economic, personal, functional, organic, and institutional spheres and, therefore, it would be unconstitutional for an attempt to be made to subject that Tribunal to a "General Public Employment System" that places the Ministry of National Planning and Economic Policy (Mideplán) as its governing entity, granting it competencies to place itself in a position superior to the Supreme Electoral Tribunal itself in terms of human resources management. Under this position, regulations exist that prevent a person who was a judge from litigating immediately after retiring or a person from one branch of the republic working in another, precisely to avoid influence peddling or inappropriate relationships. Extreme situations could arise, for example, any transfer of an employee of the Executive Branch to the Supreme Electoral Tribunal to perform electoral work, or equally concerning situations such as the transfer of a police officer from the Ministry of Security or from a Municipality to the Judicial Investigation Organization.

• n)Separate note of Magistrate Picado Brenes, on Article 31 of the bill regarding the Work Valuation Methodology (point 20 of the Por Tanto) I certainly concur with the unanimous opinion regarding declaring the consultation raised in relation to Article 31 of the bill under study unevacuable; however, I consider that, due to the significance of what is indicated in this article, with respect to the Judicial Branch and the Supreme Electoral Tribunal, numeral 31 must be the subject of a thoughtful study since it establishes important obligations for public servants based on which their work will be valued, and therefore, for its applicability, many elements must be considered to ensure it does not entail injuries to the fundamental rights of workers.

Given that the macro-objective of the bill is the subjection of the entire state apparatus to a single system of public employment regulation and the centralization of all its governing authority in an organ of the Executive Branch (Mideplán), this will inevitably imply generalizing a series of guidelines, postulates, methodology, and procedures so that this single system can be applied uniformly to all sectors being included in the proposal. This generality brings with it a series of implications for the Administration and the State that begin with the subjection of all offices and bodies to the decisions adopted by the Executive Branch through Mideplán—, in my view, in clear violation of the principle of separation of powers, as I have been maintaining.

As far as the Judicial Branch is concerned, even though the bill under consultation establishes that it will apply to the Judicial Branch, "without prejudice to the principle of separation of Powers established in the Political Constitution"—an imperative imposed, in itself, by the Constitution itself—, the truth of the matter is that, from a comprehensive reading of the bill, it can be concluded that compliance with such a principle is not guaranteed in a conclusive manner because, on the contrary, the norms of the bill have, as a general objective, the subjection of all the Branches of the Republic—including the Judicial Branch—to the governing authority of Mideplán and to the technical criteria of the General Directorate of Civil Service, by which it is more than evident that that principle is completely diluted by the comprehensive regulation of the bill.

In the specific case of Article 31 under study, it is observed that it will be that body that specifies the work valuation methodology for the public service, which would be done through a point-factor scheme in which scores will be assigned to jobs based on an analysis of the relevant work factors, all at the discretion of Mideplán. For the particular situation of the Judicial Branch, this will imply that an external instance imposes, unilaterally, the criteria relating to human resources, among them the valuation that must be made of the personnel's work, with absolute impact on the exercise of the jurisdictional function inherent to the Judicial Branch and on those essential administrative functions that support such primary function, all without taking into consideration that this Constitutional Chamber itself has stated "that performance evaluation and competency in labor decision-making, whether general or specific, are already regulated by the aforementioned normative framework of the Judicial Branch, making it impossible for an external instance to assume the 'governing authority' or impose criteria on that Branch. Moreover, said normative framework is designed to guarantee the efficiency of the judicial function and to protect judicial servants from external interference (…) (see judgment nº 2018-019511 of 21:45 hours of November 23, 2018), and also that the Chamber has stated that the special regulations of the Judicial Branch on these matters cannot be 'tacitly repealed by a later general regulation' (opinions n°01265-1995 and 2017-003450). Now, as has been said, if the Judicial Branch is a machinery composed of multiple interlocking parts, where all are important and necessary, the impact that this regulation would have would occur with respect to the entire Judicial Branch and not only with those who administer justice, or with those who perform auxiliary functions, or with the administrative staff. Once again I must indicate that a polarization of the personnel in these terms would also be harmful to the principle of equality and non-discrimination.

The foregoing also leads one to question how an organ of the Executive Branch, completely external to the Judicial Branch and without advanced knowledge of the jurisdictional function, could define what the relevant and specific work factors are that the servants of the Judicial Branch need to have, in areas as diverse as forensic practice, the administration of justice, the auxiliary police function, the work performed by the Canine Unit, the tasks specific to the Public Prosecutor’s Office, among many others, complex tasks carried out within the Judicial Branch and its auxiliary bodies, which have a specificity that is unique and particular and that does not exist in any other Branch of the Republic and cannot exist, because there is only one Judicial Branch in a State of Law. So, in my view, how could that executive body determine, with absolute certainty, which of those aspects regulated in the cited Article 31 should carry greater or lesser weight to be included in a work evaluation of judicial servants? Equally, in my opinion, the answer would necessarily imply that that body—Mideplán—interfere with competencies that are exclusive and excludable to the Supreme Court of Justice, contained in Article 156 of the Constitution ("The Supreme Court of Justice is the superior tribunal of the Judicial Branch, and upon it depend the courts, officials, and employees in the judicial branch, without prejudice to what this Constitution provides regarding civil service."), or what is the same, an evident injury to the principle of separation of Powers and to the principle of judicial independence, safeguarded in the Political Constitution.

Let it be recalled once again that judicial independence refers not only to the independence of the judge's criteria but also to a series of manifestations in the administrative, financing, and operational spheres, which necessarily imply that any body belonging to another Branch of the Republic cannot have interference in the Judicial Branch.

Certainly, this "General Public Employment System" that places the Ministry of National Planning and Economic Policy (Mideplán) as its governing body, invades the area of administration and management of human talent of the Judicial Branch and allows Mideplán to give specific orders to the Judicial Branch to organize its employment management, from the way in which knowledge, competency, and psychometric tests are designed and the criteria to be used for personnel selection, the precise manner in which internal and external competitions must be conducted, and, with respect to what this article 31 refers to, on how it must carry out its work evaluation and assessment processes, with its content disregarding the special rules—including those of legal rank—regarding the regulation of service of Judicial Branch employees that exist within the institution.

In another order of things, while it is true that some of the items contemplated in that article 31 of the bill under study could serve to classify certain job positions within the Judicial Branch, such as the requirement of knowledge and experience, the margin of discretion for decision-making, availability, complexity of work among others, it is also true that there are many of them that, due to the specific type of functions performed in the Judicial Branch, could not be taken into account; failing that, there would indeed be other aspects of fundamental relevance to consider that are not included in that section 31, and this is precisely so because of what was indicated supra in that the objective of applying a single public employment system necessarily entails the disruption of the specific nature of the jurisdictional function, its ancillary tasks, those of justice auxiliaries, administrative tasks, and, in general, all the tasks carried out in the different departments of that Branch of the Republic.

Another aspect that must be analyzed in this article 31 is the fact that the generality of the rule's wording would allow the intrusion of subjective criteria when assigning a relative weight to each of the factors indicated therein, since it does not include objective parameters that would allow establishing a work valuation methodology more aligned with the principles of proven suitability protected in Articles 191 and 192 of the Political Constitution and that correspond to the specificity of the work performed in the Judicial Branch.

I conclude that, faced with this panorama, any rule that subjects the Judicial Branch to orders, supervision, or directives of the Executive Branch is unconstitutional, as it violates the principles of separation of functions and judicial independence, as well as the democratic system and the organization of the Branch that the Constituent Assembly has created in our Rule of Law.

• ñ)Dissenting vote of Justices Castillo Víquez, Hernández López, and Salazar Alvarado, drafted by the first, regarding articles 49, subsection b From our perspective, we issue this dissenting vote in the most respectful manner, since subsection b) of article 49 of the bill has no relation to the constitutional powers of the Judicial Branch. It refers to a matter inherent to the internal dynamics of a Public Administration body—establishing who exhausts the administrative channel, endowing it with instrumental or budgetary legal personality, and attributing a legal power to ensure efficiency—so the proper course is to dissent in the terms explained.
• o)Dissenting vote of Justice Castillo Víquez and Justice Hernández López, drafted by the first, regarding articles 49, subsections g and h With the customary respect, we dissent and declare that subsections g) and h) of section 49 of the consulted bill are not unconstitutional, for the elementary reason that the power of coordination does not entail the exercise of the power of direction, much less hierarchical power, and, consequently, the independence of the Judicial Branch remains intact. It must be kept in mind that coordination is a legal-administrative function resorted to by the Public Administration when a matter exceeds the competence of one body or entity and concerns several of them, or the complexity of the matter demands a joint effort of several bodies or entities, or this action is necessary to leverage public funds with criteria of efficacy, efficiency, and good management, etc., and for this reason it becomes necessary to combine efforts, resources, wills, etc., to provide a comprehensive and sustainable solution to a specific problem or to successfully face a challenge that, for the objective satisfaction of public interests, the Public Administration must carry out without any delay. In all these cases and others, it is not possible to maintain that a coordination task or function violates the principle of judicial independence.

XI.- Regarding the consultation on violation of University Autonomy.- 1) Aspects consulted The consulting deputies consider that the following articles of the bill for the "LEY MARCO DE EMPLEO PÚBLICO", processed under legislative file n° 21.336, violate university autonomy. Specifically, they consult on the following articles, indicated either in the heading of the general title or in the rest of the text of the filing brief:

6 (governing power of Mideplan), 7 (powers of Mideplan), 9.a (Human Resources offices), 11 (employment planning), 13 (job families), 14 (recruitment and selection), 15 and 16 (postulates of recruitment and selection and job offer), 17 (Senior Management personnel), 30 (postulates of compensation management) 31 (work valuation) 32 (grades within occupational families) 33 (job classification) 34 (global salary column) 35 (unified salary regime) 36 (remuneration policy) 37.f) (global salary of rectors) In this regard, the first thing to note is that, regarding articles 11 (employment planning), 15 (postulates of recruitment and selection), 16 (job offer), the consultants do not provide sufficient reasoning to allow this Chamber clarity on the matter consulted, which is why the consultation is declared unanswerable concerning those articles. Upon a detailed reading of this argument made by the consultants, the conclusion is reached that it is not a question of constitutionality being posed to the Chamber, but rather a sort of complaint that lacks proper reasoning regarding the reasons why the deputies believe the bill might contain some friction with Constitutional Law. Note that it is a simple statement indicating that such articles of the bill could contravene university autonomy, without indicating the motives or reasons why this might or might not be true, without mentioning the potential injured constitutional principles or rules. That is, it does not contain a clear reasoning of the arguments that, in the consultants' opinion, would make the rule unconstitutional. Consequently, the requirement established in article 99 of the Ley de la Jurisdicción Constitucional is not fulfilled, according to which the consultation must be formulated in a reasoned brief, expressing the aspects questioned in the bill and the reasons why there are doubts or objections of constitutionality. Thus, the consultation on the constitutionality of the bill for "LEY MARCO DE EMPLEO PÚBLICO" processed under legislative file n°21.336 is declared unanswerable regarding articles 11 (employment planning), 15 (postulates of recruitment and selection), 16 (job offer), for lack of adequate reasoning from a constitutional standpoint.

Now, regarding the rest of the consulted articles, the consulting deputies consider them unconstitutional for violating the principle of university autonomy contained in articles 84, 85, and 87 of the Political Constitution. They consider that university autonomy is violated by subjecting the teaching and research personnel of higher education institutions to the employment regime, development plans, salary regimes, performance evaluations, directives, orders, instructions, and circulars issued by Mideplán and in some cases by the Dirección General de Servicio Civil and the Autoridad Presupuestaria. With the establishment of Mideplán as the governing body (art.6) and its powers (art.7), said Ministry will not be limited only to designing the general guidelines of public employment policy but will give specific orders to organize its employment management, defining the criteria to be used in knowledge, competency, and psychometric tests for personnel selection and the precise manner in which internal and external competitions must be conducted, how each entity must carry out its evaluation processes, design the internal salary and control policy, which exceeds the powers of direction and coordination. It obliges the human resources offices of universities to adjust knowledge, competency, and psychometric tests, internal and external competitions by examination and merit to the rules of the Dirección General de Servicio Civil. Universities must appoint teaching personnel obeying the orders that the Dirección General de Servicio Civil establishes on the matter. The bill does not incorporate the possibility of salary differences for reasons of merit that include knowledge, experience, and knowledge production as a basis for those differences, essential for Universities. They claim that the bill is unreasonable and disproportionate because there are no studies demonstrating the alleged savings generated in public finances as a consequence of including universities in the bill, since their budget is not related to sustaining the public finances of the Central Administration. It is impossible not to visualize the magnitude of the power that this bill grants to the Executive Branch to proceed to regulate, oversee, and influence the labor relations of universities, which signifies a subjection of critical thinking to the political class.

Next, an analysis is carried out separately for each of the questioned articles. Beforehand, a jurisprudential summary is made on the topic of university autonomy, which will serve as context for the examination of each consulted article.

• 2)Jurisprudential Background on University Autonomy In accordance with article 84 of the Constitution ("ARTÍCULO 84.- The University of Costa Rica is an institution of higher culture that enjoys independence for the performance of its functions and full legal capacity to acquire rights and contract obligations, as well as to establish its own organization and government. The other institutions of state university higher education shall have the same functional independence and equal legal capacity as the University of Costa Rica. // The State shall endow them with their own patrimony and collaborate in their financing.") public universities or state universities enjoy a special degree of autonomy, which can be called university autonomy. According to constitutional jurisprudence, such autonomy encompasses both administrative, political, financial, and organizational autonomy. Therefore, public universities have all the administrative faculties and powers to carry out their mission. Thus, they can self-determine, in the sense that they are empowered to establish their plans, programs, budgets, internal organization, and structure their own government, all within the limits established by the Political Constitution itself and the special laws that regulate their organization and functioning (see opinion n°2012-011473). The Political Constitution provides that universities enjoy independence for the performance of their functions and full legal capacity to acquire rights and contract obligations, as well as to establish their own organization and government. The Chamber's jurisprudential line has been clear in establishing that public universities have the highest degree of autonomy, which is self-organizational autonomy or full autonomy. That autonomy, which has been classified as special, is complete and therefore distinct from that of the rest of the decentralized entities of our legal system (mainly regulated in another part of the Political Charter: articles 188 and 190), and means that they are outside the direction of the Executive Branch and its hierarchy, that they have all the administrative faculties and powers necessary to carry forward the special purpose legitimately entrusted to them. They can self-determine, in the sense that they are enabled to establish their own plans, programs, budgets, internal organization, and structure their government. Moreover, public universities have regulatory power (autonomous and executive); they can self-structure, distribute their powers within the internal scope of the entity, deconcentrate in whatever is legally possible and lawful, regulate the service they provide, and freely decide on their personnel. All of these are powers of the administrative, political, organizational, and financial modalities of the autonomy that corresponds to public universities. The main purpose of university autonomy is to provide the entity with all the necessary legal conditions to independently carry out its mission of higher culture and education. (see ruling n°1992-495, n°1993-1313, n°2002-8867, and n°2008-013091). This is evident from the words of the Constituent Assembly member Fernando Baudrit when he said:

"What we seek is to avoid for the University the threat of future Congresses moved by politicking interests... Tomorrow, if the University does not adapt to the prevailing political environment, a Congress, with the purpose of liquidating it, could easily achieve this by reducing the State subsidy. I already said that if we were not living under the current regime, the University would have disappeared, or it would have become a docile dependency of the Executive Branch. There were already schemes, in this very enclosure, and by the last Congress in that sense. Even the names of the people who were going to replace us in the direction of the University were being shuffled. Who assures us that in the future a similar situation could not arise? Precisely to prevent this from happening. It is necessary, indispensable, to endow the University of Costa Rica with authentic administrative, teaching, and economic independence." (Acta 160, 4/X/1949, volume III, p.395.)." This is intimately related to the freedom of teaching at universities and with universities being crucibles (the setting for the fusion of very diverse ideas) of the creation of thought, criticism, and the construction of knowledge. A basic function in any democratic society. Thus, the autonomy of public universities protects them against the Executive Branch and the rest of the Public Administration; but also against the law, to prevent the legislator from delegating to administrative authorities powers capable of imposing decisions on universities within their area of competence, such as the regulation of courses, social action, research, entrance exams, conferring university academic degrees, among others, as this Chamber has repeatedly stated in rulings n°1993-1313 and n°1996-276).

University autonomy is necessary for the institution to fulfill its objectives, which would run the risk of being hindered if the interference of the Executive and Legislative Branches is permitted. This Chamber has warned that public universities are not simple teaching institutions but have higher purposes, committed to the development of the country in general and of Costa Ricans in particular. Specifically, it stated: (…) The main purpose of university autonomy is to provide the entity with all the necessary legal conditions to independently carry out its mission of higher culture and education. In this sense, the University is not a simple teaching institution (…), as it has the complex function, integral to its nature, of carrying out and deepening scientific research, cultivating the arts and letters in their maximum expression, analyzing and criticizing, with high objectivity, knowledge, and rationality, the social, cultural, political, and economic reality of its people and the world, proposing solutions to the great problems and therefore, in the case of underdeveloped or poorly developed countries like ours, serving as a driver of ideas and actions to achieve development at all levels (spiritual, scientific, and material), contributing with that work to the effective realization of the fundamental values of the Costa Rican identity, which can be summarized … in those of democracy, the Social Rule of Law, the essential dignity of the human being, and the 'system of freedom', in addition to peace (Article 12 of the Political Constitution) and Justice (41 ídem); in summary … that the University, as a center of free thought, must and has to be exempt from pressures or measures of any nature that tend to prevent it from fulfilling, or threaten, that great mission (…)” (ruling n°2008-013091) The Constitutional Chamber, when analyzing the issue of university autonomy, has delved into very specific aspects that affect the materialization of said autonomy, such as matters related to the salary of university employees. It is thus how in ruling n° 2015-10248 it addresses the salary issue in the following terms: “…the university autonomy that public higher education centers have (established with constitutional rank) is sufficient for these—through their highest hierarchical bodies—to establish the modality in which they will resolve the remuneration regime of their servants “…always attending to elementary constitutional principles that govern the entire public apparatus, such as reasonableness and proportionality, as well as the adequate safeguarding of public finances (…).” However, in the exercise of its autonomy, UNED has the possibility of differentially recognizing the payment of seniority bonuses (anualidades) for people who come from working outside that institution, since the specificity of university dynamics and its administration justifies a different valuation between the seniority bonus from another public agency and that developed properly within the university. Thus, it is reasonable that for time served within the organizational structure of UNED, a higher salary increment is recognized than for that worked in other public agencies." Now, regarding the limitations of this autonomy, the rulings n°2016-02419 and n°2016-18087 can be cited in the first place, in which the Chamber proceeded to address the issue of constitutional principles of public employment and a judgment of balancing is made between two constitutional principles: that of university autonomy (article 84, paragraph 1, of the Constitution) and the principle of the merit system for accessing the public function through proven suitability (article 192 of the Constitution). The Chamber opted for the latter and stated that, despite their autonomy, public universities are subject to the constitutional principles, values, precepts, and jurisprudence that interpret them:

"Full or third-degree autonomy recognized to public universities in Article 84, paragraph 1, of the Constitution also has insurmountable limits, so it cannot be understood, under any concept, as an indeterminate legal notion that enables university higher education centers in an indeterminate and open manner. Autonomy is a notion of constitutional Administrative Law that, obviously, must be understood within the coordinates of the Constitutional Rule of Law. Certainly, as this Court has repeatedly affirmed, such university autonomy enables them to issue their own fundamental legal rules of organization. However, such power cannot be exceeded, since, without a doubt, it is limited by the Law of the Constitution itself, that is, the constitutional values, principles, precepts, and jurisprudence. The universities indeed enjoy autonomy, but not sovereignty; sovereignty belongs only to the State itself. It cannot be understood, under penalty of fragmenting sovereignty, that universities can be constituted as kinds of micro-states within the Costa Rican State itself. There is no doubt that public universities, when exercising their autonomy, are also subject to the constitutional principles, values, precepts, and jurisprudence that interpret them. Universities cannot abstract themselves from the Law of the Constitution or the constitutional order. Among the insurmountable limits of university autonomy, the fundamental and human rights, which are of direct and immediate application and that, of course, bind all public powers, including, of course, universities, stand out. The fundamental and human rights emanating from the dignity of the person are the basis of the entire legal order; therefore, any regulation, including that issued in the exercise of full or university autonomy, must respect them and seek their effective enjoyment. (…) “In the doctrine of neo-constitutionalism, great jurists (Ronald Dworkin, Robert Alexy, Martin Borowsky, etc.) have recommended, to resolve difficult cases (hard cases) where principles compete in opposite directions, the application of the so-called 'balancing judgment.' The balancing judgment requires, through the use of the principles of reasonableness and proportionality in a broad sense, determining which of the principles has greater weight, consistency, value to grant it preference, without it implying the repeal of the principle that is displaced and which remains in force. Indeed, there are cases that cannot be resolved through the application of classical subsumption, since there is no clearly applicable rule of law. In the present matter, it is evident that we can understand that two constitutional principles enter into confrontation or collision (in opposite directions), namely: a) university autonomy recognized in article 84, paragraph 1, of the Constitution and b) the principle of the merit system for accessing the public function through proven suitability contemplated in article 192 of the Constitution. Consequently, when both principles act in opposite directions, a balancing judgment is required to determine which has, in the specific case to be resolved, greater weight, consistency, and, therefore, preference. In our view, the principle of the merit system for accessing the public function has greater weight, being connected with other values, principles, or, if you will, constitutional goods that determine that the balance tips in its favor”.

From there, the idea was reinforced that state universities enjoy full autonomy, but not sovereignty, which resides only in the State, and therefore, it must be understood that university regulations must be subject to constitutional values and principles. In that sense, some unconstitutionality actions have been upheld against regulations that may be unreasonable or disproportionate (see opinion n°2007-0055) or due to the primacy of fundamental rights over some decisions (see opinion n°2009-01675). Likewise, by considering that university autonomy was not violated by the entry of the Public Force into the university campus (see opinions n°2010-9339 and n°2019-03879), and by maintaining the powers of control, surveillance, and oversight by the Contraloría General de la República (see opinions n°2012-09215, n°2012-10665). On the other hand, the most abundant criterion is that the autonomy of universities is broad and extends, for example, to modifying, suppressing, and creating positions (opinions n°1999-9976 and 2002-7261) or, that being able to freely dispose of human, material, and financial resources is part of the administrative autonomy of autonomous entities (opinion n°2002-9076). In addition, rulings can be mentioned on university autonomy referring specifically to the matter of education and related issues (see opinions n°1992-495 and 2012-9215). Rulings are also found where it is affirmed that greater interference from the Executive or Legislative Branch in relation to matters that are not part of the central core of essential functions does not harm their autonomy (see opinions n°94-3309, 96-276, and 2016-18087).

• 3)Specific analysis of the matter consulted Regarding Article 6.- Power of Direction of Mideplán with respect to Public Universities (drafted by Justice Castillo Víquez) From the jurisprudence of the Constitutional Chamber, it can be concluded that there are two aspects that the Chamber has consistently pointed out in its rulings regarding universities and their autonomy: 1.- Universities are not micro-states and, in that sense, must submit to the Law of the Constitution; 2.- The Executive Branch cannot exercise the power of direction and regulation in the matter that corresponds to universities, according to their constitutionally assigned purpose—teaching, research, and social and cultural extension—and their degree of autonomy.

Regarding the matter of public employment, as will be explained below, the Chamber has analyzed many of the related topics, such as: competitions, appointment requirements, evaluations, salaries, vacations and leaves, and has established clear and precise jurisprudence. The most abundant criterion is that the autonomy of universities is broad and extends, for example, to modifying, suppressing, and creating positions (Opinions No. 9976-99 and 7261-2002) or that being able to freely dispose of human, material, and financial resources is part of the administrative autonomy of autonomous entities (Opinion No. 9076-2002). However, university autonomy refers to the matter of education and related issues (Opinion No. 92-495 and 12-9215). The foregoing means that greater interference from the Executive or Legislative Branch in relation to matters that are not part of the central core of the essential functions related to constitutionally assigned purposes does not harm their autonomy (Opinions Nos. 94-3309, 96-276, and 16-18087, the latter with a dissenting vote from Justice Rueda Leal). Thus, the Political Constitution provides that universities enjoy independence for the performance of their functions and full legal capacity to acquire rights and contract obligations, as well as to establish their own organization and government (article 84). However, the foregoing does not mean that they are not bound by what the legislator provides when dealing with general issues not relating to constitutionally assigned purposes. In this direction, in Advisory Opinion No. 2018-19511, which analyzed the consultation on the Ley de Fortalecimiento de las Finanzas Públicas, the following was established, in what is relevant:

"(…) the consulted bill does not harm the Political Constitution, as already indicated, it is a matter of general economic policy of the State linked to national planning and development, fields in which autonomous institutions are subject to the law because it is a matter of government and whose convenience or opportunity it is not for this Court to assess, because it contravenes the principle of self-restraint of the constitutional judge…".

No less important is to keep in mind that the Political Constitution establishes a normative reservation in favor of state universities. In effect, in ruling n.° 1313-93, the Constitutional Chamber expressed, regarding the Law Creating the State Distance University, the following:

"The concepts expressed clearly indicate to us that it was the intention of the Constituent Assembly to grant state universities a general framework of autonomy as expressed in article 84 of the Political Constitution, and furthermore, special treatment regarding the legislative procedure for the discussion and approval of bills, in matters that, without being within the autonomous sphere, have to do with state universities, as provided in article 88 ídem.

See even what was said by the constituent proponents of the complete motion of the text of the cited article 88, from which their intention is clearly deduced, not to exclude the law from the scope of competence of the University, but, solely and exclusively, to establish that special majority when there was a negative opinion from the entity on the bill, when it was not a matter considered under the regime of article 84: "Deputy Facio took the floor ... Recall briefly -he said- that corporatism is an anti-democratic regime, which supplants the decisions of an Assembly freely elected by the people, with those of the corporations -corporations that are not technical institutions of the State, but representations of guilds, of professional interests- corporations that are formed, manipulated and directed by the single policy of the omnipotent State, of the totalitarian State. Nothing could be further from the intention of the motion; nothing further from its purpose. What we desire, simply, is to combine the sovereign freedom of the popularly elected Assembly with the technical requirements of the modern world. That its pronouncements be free, but that this freedom be exercised rationally, based on the support not of corporations, which represent private interests, but of public institutions, which, being public, also represent the people, and which, being technical, better represent their interests in the field of the functions entrusted to them. Does this formally imply a certain restriction on the activity of Congress? Certainly it does, but that, far from being an abandonment of democracy, is simply an adaptation of democracy to problems that exist today ... Dr. Jiménez de Aréchega maintains that autonomy cannot mean only independence with respect to the Executive Branch, but also with respect to the Legislative Branch, since if the Constitution establishes it in favor of this or that body, it is because it assumes that the corresponding matters should be handled outside of politics and party struggle; that understanding autonomy in any other way relativizes it to such a point that it would be like making it disappear. Well then, the motion does not ask for so much; it asks only that the University Council be heard when it comes to university matters...". - (See: Record number 161 of the National Constituent Assembly of 1949. Volume III, Imprenta Nacional, San José, 1956, pp. 410-414; the underlining is from this judgment).- In other words, and this is the inescapable and indubitable conclusion of the long but transcendent series of previous citations, the Constituent.- did not remove from nor prevent the Assembly from exercising the power to legislate regarding matters placed under the competence of higher education institutions, or those directly related to them -to use the very terms of the Fundamental Law-, and the only express condition imposed on it in this regard was to hear them previously, to discuss and approve the corresponding bills, except for what concerns the power of organization and to grant itself its own government, according to the independence clearly granted in constitutional article 84." The bold type is not from the original.

In relation to the limits of the Legislative Assembly, in the exercise of the power to legislate, on matters placed under the exclusive and preclusive competence of the State Universities, this Court set the following position:

"...Although it is true -as has already been proven- the Legislative Assembly can regulate what concerns the subject matter of the universities, it is forbidden from making impossible, subtracting, or diminishing from those institutions, those powers that are necessary for them to fulfill their corresponding purpose and that form their own autonomy. That is, to express it in the terms of certain relevant doctrine, these entities have the ownership and the initial, independent and unrestricted exercise of all administrative and teaching powers for the fulfillment of their material specialization, without this being able to be undermined by the Law. But in addition, within the explained teaching modality, academic freedom (libertad de cátedra) (article 87 of the Political Charter) also serves as a shield to that autonomy, which can be understood as the power of the university to decide the content of the teaching it imparts, without being subject to what is ordered by powers external to it, or, in the sense of the faculty of university teachers to express their ideas within the institution, allowing the coexistence of different currents of thought (see on the legitimate limitations of freedom, the aforementioned vote 3550-92). Of course, also, that these entities by constitutional provision (article 85), are subject to coordination by the "body in charge" indicated therein, and to take into account the guidelines established by the current National Development Plan (Plan Nacional de Desarrollo Vigente)." As can easily be deduced, university autonomy is not synonymous with sovereignty, a kind of extraterritoriality. Quite the contrary, State universities are subject to the legal system, which means that the legislator is authorized by the Law of the Constitution to subject them to the regulations it deems pertinent, especially in those cases when it concerns norms that have a general scope. It can even be argued, based on the Law of the Constitution, that although article 84 establishes a regulatory reservation in favor of the universities, creating a particular legal subsystem, that reservation refers to the "organization of the university service." (see opinion No. C-086-96 of June 5, 1996, of the Procuraduría General de la República). "Therefore, the university is subject to all legal regulations that equally affect the other subjects of the legal system, precisely because they are based on reasons common to all, extraneous to their functional specialization, even if they indirectly interfere with the provision of their service and the organization of their means. Likewise, the Procuraduría has considered that in the exercise of its regulatory power, the university is subject to the general legal system, and therefore cannot affect state provisions that, for example, grant benefits to university workers in their capacity as servants of the Public Administration. In the same line of thought, in opinion No. C-191-98 of September 10, 1998, the Procuraduría considered that the university's regulatory power does not mean 'immunity against generic legislative public employment rules for the entire Public Administration.' It is considered that the regulation of public employment is outside the organizational scope proper to the University, thereby reiterating the aforementioned opinion No. C-184-97." So, the autonomy of university entities -self-normative or self-organizational, which logically includes the administrative and governmental autonomy of those entities- is strictly referred to the scope guaranteed by university autonomy: academic activity, research, and social or cultural extension activities. Outside of that scope, the Universities are subject to legal regulations directed at all subjects of the legal system as such.

In matters of their competencies, which entail the organization of the university service, in which university autonomy—and specifically referring to academic activity, research, or social or cultural extension activities—deploys its full force, the directive power of the Executive Branch or one of its bodies, in this case Mideplán, is incompatible with it, much less the regulatory power. Stated another way, the original constituent, by assigning constitutional purposes to the universities, endowed them with maximum autonomy, to guarantee independence in the exercise of their competencies, a scope from which the subject of public employment is not withdrawn when it is linked to those purposes or involves administrative, professional, and technical functions, necessary for those functions in accordance with what the university authorities order, exclusively and preclusively, as will be explained when the consulted regulations are analyzed in detail.

Regarding the specific norms: There are several powers that are regularly mentioned in the bill in relation to Mideplán, in its capacity as the governing body of public employment and its relationship with the entities to which this law would apply, indicated in article 2. This concerns its power to issue provisions of general scope, directives, and regulations. The extent and binding nature of some of these powers and instruments can determine whether or not the bill has conflicts with the Constitution.

In relation to article 6, it is unconstitutional, because the directive power does not exclude officials who participate in academic activity, research, or social or cultural extension activities, and those who hold high-level political leadership positions, as well as all administrative support, professional, and technical staff, that the highest bodies of the State universities establish. Ergo, the norm is only constitutional with regard to basic, auxiliary administrative personnel, who would be in the job family (familia de puestos) pursuant to numeral 13, subsection a) of the bill. This thesis finds support in judgment 96-0276, in which the Court stated:

"II.- It is fitting, first of all, to refer to the autonomy that the Constitution grants to the universities, to point out that this, although very broad, is administrative autonomy… Nor does that autonomy extend to non-university matters, that is, those not related to teaching or research in higher education…" On article 7.- Competencies of Mideplán regarding Public Universities (drafted by Judge Castillo Víquez) In relation to article 7, the same criterion expressed regarding numeral 6 is maintained; in addition, it subjects the regulatory power of Mideplán in matters where there is an exclusive and preclusive power in favor of the State universities to achieve the constitutional purpose assigned by the original constituent.

On article 9.a.- Human Resources Office in the Public Universities (drafted by Judge Picado Brenes) The consulted norm establishes the following:

"ARTICLE 9- Functions of the active administrations a) The offices, departments, areas, directorates, units, or homologous denominations for human resources management, of the institutions included in article 2 of this law, will continue performing their functions in accordance with the pertinent regulatory provisions in each public dependency.

Likewise, they will apply and execute the provisions of general scope, the directives, and the regulations, in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management, that the Ministry of National Planning and Economic Policy (Ministerio de Planificación Nacional y Política Económica, Mideplán) sends to the respective institution, according to Law 6227, General Law of the Public Administration (Ley General de la Administración Pública), of May 2, 1978, and article 46 of Law 2166, Public Administration Salary Law (Ley de Salarios de la Administración Pública), of October 9, 1957.

• b)It is the responsibility of the offices, departments, areas, directorates, units, or homologous denominations for human resources management to develop and apply knowledge, competency, and psychometric tests, for the purposes of personnel recruitment and selection processes, to conduct internal and external competitive examinations by opposition and merits, which must always comply at least with the standards established by the General Directorate of Civil Service (Dirección General de Servicio Civil) for each post, according to its scope of competence, and the guidelines issued according to article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.

Furthermore, to incorporate said competitive examinations in the public employment offer of the Public Administration and verify that public servants receive the proper induction regarding the duties, responsibilities, and functions of the post, as well as the general ethical duties of the public function and those particular to the institution and post.

• c)The institutional human resources management offices, of ministries and institutions or attached bodies under the scope of application of the Civil Service Statute (Estatuto de Servicio Civil), are technical dependencies of the General Directorate of Civil Service which, for all effects, must coordinate the development of personnel recruitment and selection tests with such offices and perform its functions of advisory, training, and technical support." As observed, the consulted article 9 establishes certain functions for all the offices, departments, areas, directorates, or human resources units, of all the institutions included in the bill, including the human resources offices of the Public Universities. Thus then, regarding the consultation made specifically with respect to the Public Universities, the second paragraph of subsection a) imposes on the different human resources offices of said universities that they apply and execute the provisions of general scope, the directives, and the regulations, in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management, that Mideplán sends them. This would imply that a body of the Executive Branch, such as Mideplán, imposes on the Public Universities the application and execution of its provisions, directives, and regulations, and in matters that are their exclusive domain, given their full autonomy, such as planning, work organization, employment management, performance management, compensation or salary management, and labor relations management. Such an obligation for the human resources offices of the Public Universities is clearly a violation of the content of the full autonomy enjoyed by the State universities. It must be remembered that this Court has established the scope of this autonomy, indicating that it extends to establishing their plans, programs, budgets, internal organization, and structure of their government (see judgment no. 2008-013091). Thus, the Public Universities are empowered to establish their plans, programs, budgets, internal organization, and structure their own government, all within the limits established by the Political Constitution itself and the special laws that regulate their organization and functioning (see judgment no. 2012-011473). It means that the Public Universities are outside the direction of the Executive Branch and its hierarchy, that they have all the administrative faculties and powers necessary to carry forward the special purpose legitimately entrusted to them; that they can self-determine; they have regulatory power (autonomous and execution); they can self-structure, distribute their competencies within the internal sphere of the entity, deconcentrate themselves to the extent legally possible and lawful, regulate the service they provide, and freely decide about their personnel (see judgment no. 2002-008867 and no. 2008-13091). Thus, it is fully justified that being under the general provisions, directives, and regulations of a body of another Branch of the Republic is incompatible with their degree of autonomy, as this consulted norm of the bill intended. In this sense, the second paragraph of subsection a of article 9 is unconstitutional regarding its application to public universities.

On article 13.e.- Job Family regarding Public Universities (drafted by Judge Castillo Víquez) Regarding article 13, subsection e), the petitioners allege that the constitutional power that the universities have to establish their own education plans could be affected if university personnel are subject to the control, direction, planning, and orders of the current government. Said regulation is unconstitutional, for not including in the cited subsection the servants who carry out research, social and cultural action, as well as the administrative, professional, and technical personnel, necessary to achieve the constitutionally assigned purposes of the State universities, in the terms explained in the general recital.

On article 14.- Recruitment and selection in Public Universities (drafted by Judge Picado Brenes) The petitioners question the constitutionality of article 14 of the bill under consultation, since, in their view, it could damage university autonomy, insofar as it subjects the public universities to the provisions issued by a body of the Executive Branch, regarding employment management, which includes matters related to the recruitment and selection of their personnel. The ordinal 14 in question provides the following:

"ARTICLE 14- Recruitment and selection The recruitment and selection of newly hired public servants will be carried out based on their proven suitability, for which the Ministry of National Planning and Economic Policy (Mideplán) will issue, with absolute adherence to Law 6227, General Law of the Public Administration, of May 2, 1978, the provisions of general scope, the directives, and the regulations, according to the respective job family.

In the recruitment and selection processes, a candidate who is in any of the following situations may not be chosen:

• a)Being related by consanguinity or affinity in a direct or collateral line, up to the third degree inclusive, to the immediate head or to the immediate superiors of the latter in the respective dependency.
• b)Being listed in the register of ineligible persons of the integrated public employment platform." As was indicated supra, Costa Rican public universities enjoy a privileged autonomous status in the decentralized public sector, since this independence extends to the administrative, political, financial, and organizational spheres (judgment no. 2002-008867). In consideration of this, it is essential that they arrange everything related to the recruitment and selection of their personnel, without any external interference. See what is indicated in judgment no. 2008-013091, when it states that the public universities: "…are outside the direction of the Executive Branch and its hierarchy, that they have all the administrative faculties and powers necessary to carry forward the special purpose legitimately entrusted to them; that they can self-determine, in the sense that they are enabled to establish their plans, programs, budgets, internal organization, and structure their own government. They have regulatory power (autonomous and execution); they can self-structure, distribute their competencies within the internal sphere of the entity, deconcentrate themselves to the extent legally possible and lawful, regulate the service they provide, and freely decide about their personnel…" In this case, this Court considers that the consulted bill affects the own competencies of the Public Universities, because beyond establishing general principles or guidelines on public employment matters that respect the principle of separation of functions, the article 14 under study is clear in stating that it will be the Ministry of National Planning and Economic Policy (Mideplán) that will issue the provisions of general scope, the directives, and the regulations, according to the respective job family, that will regulate the recruitment and selection of newly hired public servants. This, because pursuant to the provisions in ordinals 13 and 2 of the same bill, what is stated in ordinal 14 would apply to the Public Universities. As things stand, article 14 is unconstitutional, by authorizing that a body of the Executive Branch be the one to directly issue provisions of general scope, directives and regulations, circulars, manuals, and resolutions related to the matter of public employment, which empty the content of the competencies recognized to the Public Universities by the Constituent. Even more so when a regulatory framework already exists pertinent to each of the universities that regulates those aspects. By reason of the foregoing, the consulted norm exceeds any framework of cooperation that may establish a general public employment policy, since it is not proper for a dependency of the Executive Branch -Mideplán-, to dictate to the Public Universities, which enjoy full autonomy, and in a mandatory manner, the guidelines or criteria for the selection and recruitment of their personnel. This constitutes a clear external interference and the intrusion of the Executive Branch in aspects that are the exclusive competence of the Public Universities. Consequently, this Court considers that the consulted article 14 contains a defect of unconstitutionality, by damaging the university autonomy protected in constitutional article 84.

On article 17.- High Leadership Positions in Public Universities (drafted by Judge Picado Brenes) The consulted norm establishes the following:

"ARTICLE 17- Public high leadership personnel The Ministry of National Planning and Economic Policy (Mideplán) will issue the provisions of general scope, the directives, and the regulations, on the matter of public high leadership personnel, that are consistent with Law 6227, General Law of the Public Administration, of May 2, 1978, to provide the Public Administration with profiles with integrity and proven capacity for management, innovation, and leadership, to seek the improvement of the provision of public goods and services. (…)" The petitioners point out the damage to university autonomy, since this norm provides that, in the case of high leadership positions (puestos de alta dirección), it will be Mideplán that issues the provisions of general scope, directives, and regulations in this regard. In the same sense in which this Court has been resolving these aspects, the interference of this Ministry, which is a body of the Executive Branch, issuing provisions of general scope, directives, and regulations to the Public Universities on the matter of high leadership positions, is a violation of university autonomy. The regulation of everything pertaining to high leadership positions already has special regulations in the Public Universities. It must be remembered that the Public Universities are empowered to establish their own internal organization and structure their own government, all within the limits established by the Political Constitution itself and the special laws that regulate their organization and functioning (see judgment no. 2012-011473). It means that the Public Universities are outside the direction of the Executive Branch and its hierarchy, that they have all the administrative faculties and powers necessary to carry forward the special purpose legitimately entrusted to them, and that they can regulate the service they provide, and freely decide about their personnel (see judgment no. 2002-008867 and no. 2008-13091). Note that these are positions of great importance since they would refer, at least, to those who direct the different Vice-Rectorates and Dean's Offices, among others. Positions that are of great relevance for the academic endeavor and the faithful fulfillment of the rest of the functions assigned to public universities, which must be particularly protected from the interference of other Branches of the Republic, and which require the job stability of the personnel necessary for an adequate and impartial performance of the position, which is incompatible with a subordination to the provisions issued in this regard by Mideplán, as provided by the norm in question. Therefore, it is considered that there is a defect of unconstitutionality in article 17 under consultation, in the terms expressed.

On article 30.- Postulates for compensation in Public Universities (drafted by Judge Castillo Víquez) Regarding article 30, it is unconstitutional, insofar as it does not exclude the officials who carry out substantial duties -typical of university activity-, and because it does not establish that -in consideration of university autonomy-, the construction of the family of the salary column and its characteristics corresponds exclusively and preclusively to the highest bodies of the university entities. Following the argumentative line of the advisory opinion, it is clear that this is an essential element that affects university autonomy in relation to the officialdom that works in teaching, in research, in social and cultural extension, as well as those professional and technical officials, who carry out administrative duties linked to university matters. Hence, the competent bodies for constructing the family and its characteristics, from the constitutional viewpoint, do so with independence from the directives and regulatory provisions that Mideplán or the Executive Branch issues in this area. In this direction, in judgment No. 15-10248 the Court referred to the determination of salaries in the universities. The Court indicated that the universities can establish the remuneration system for their servants. Specifically, the Court indicated: "…the university autonomy that assists the public higher education centers (established with constitutional rank), is sufficient for them –through their highest hierarchical bodies- to establish the modality in which they will resolve the remuneration system of their servants '…always attending to elementary constitutional principles that govern the entire public apparatus, such as reasonableness and proportionality, as well as the adequate safeguarding of public finances (…).'" This case, attending to the principles and postulates found in the bill, which are cross-cutting to the entire Public Administration.

On article 30.b- Salary of the president of the Republic as a salary ceiling in Public Universities (drafted by Judge Castillo Víquez) Regarding what concerns numeral 30, subsection b, of the consulted bill, by majority, the Court concludes that it is not unconstitutional to establish the salary of the president of the Republic as a ceiling for university officials. In the first place, because the salary for the post of president of the Republic, according to what article 37 of the same bill establishes, must be determined based on technical studies, responsibilities, and post profiles; besides, the parameters that numeral 36 of the bill establishes for setting salary policy must be kept in mind. Ergo, it will be from that technical determination made by the Budgetary Authority (Autoridad Presupuestaria) that the salary for the position of president of the Republic will be the ceiling for the salaries of university officials. In the second term, the majority of the Constitutional Court understands that any reduction in the salary of the president of the Republic to serve as a ceiling must also be based on technical studies, responsibilities, and post profiles, in which case, for ceiling purposes, a reduction voluntarily made by the person occupying the position of president of the Republic for personal, political, or other reasons would not apply. Likewise, if a president of the Republic decides to renounce all or part of their salary, such individual actions would not affect the salary ceiling, which has been fixed technically. Finally, it must be kept in mind that, in compliance with the principle of financial or budgetary balance in this case, having said ceiling is in accordance with the Law of the Constitution. In this direction, in advisory opinion no. 2018-18505, we expressed the following:

"Regarding this matter, faced with a critical condition in public finances (duly supported by technical studies), which puts the effective or adequate execution of constitutionally relevant benefits at risk, the decision of the competent authorities to define and apply apt measures to alleviate or solve the problem is not only reasonable, but, even more so, it is unavoidable.

Now then, it is not up to the Court to define concretely what type of remedies should be applied or which is the most adequate, since that forms part of the State's economic policy, which in turn constitutes a matter of government.

In reality, constitutional review is constrained to ensuring that solutions are adopted while safeguarding the fundamental rights enshrined in the Political Constitution and the international human rights instruments ratified by Costa Rica, as well as the essential qualities of the country's political regime (in a democratic, free, independent, multiethnic, and pluricultural republic, whose Government is popular, representative, participatory, alternative, and responsible), all of which entails an exercise of weighing and optimizing the various constitutional principles, rights, and values at play.

In this context, a harmonious interpretation of the principle of budgetary balance and the Social State under the Rule of Law is of special importance. The Chamber warns that, for a Social State under the Rule of Law to persist and fulfill its constitutional and legal purposes, it becomes necessary to carry out sound management of public finances; that is, there must inexorably be a balance between social entitlement rights and state economic solvency, since the former depend on the material possibilities provided by the latter, while the purpose of the latter is to strengthen the development of a supportive political system, one in which the least favored strata of society find protection for their human dignity and their right to progress. Stated differently, the "ideal" Social State under the Rule of Law is the "possible" Social State under the Rule of Law, against which action is precisely taken when the principle of budgetary balance is breached, since, in the medium term, this seriously jeopardizes or entirely prevents obtaining the necessary resources to sustain a "real" Social State under the Rule of Law, one that the most vulnerable can truly and effectively enjoy. Monitoring, therefore, that we do not fall into a failed or paper Constitution, where social entitlement rights of constitutional rank cannot be effective, is a fundamental task of this Chamber, strictly within what the framework of its competencies permits.

It must be warned, however, that all constitutional principles, values, and precepts must be observed under any circumstances, which the constitutional jurisdiction is permanently responsible for monitoring. Now, by reason of the exercise of weighing or optimization that the constitutional judge performs to resolve any collision between such principles, values, and precepts, the context surrounding the conflict cannot go unnoticed.

Corollary of the foregoing: non-observance of the principle of budgetary balance has been one of the causes of the current deteriorated state of public finances, a reason that leads this Chamber to underscore the transversal nature of said principle and emphasize its real implementation for the sake of the principle of the Social State under the Rule of Law. The observation of the State of the Nation Program is reiterated: 'This [referring to the structural imbalance in public finances] has put the future of the social welfare state built throughout the second half of the 20th century in check, since its financing and the efficiency of its spending are not sufficient.' Precisely, the hermeneutics of the general principles for resolving the sub examine, such as that of budgetary balance and that of the Social State under the Rule of Law, cannot be detached from the parameters of constitutional relevance inferred from the consulted measures and the abundant technical references to the economic situation, which are fundamental elements for ruling out arbitrary or unreasonable action." Regarding Articles 31, 32, and 34.- Work assessment, grades within job families, and global salary scale in Public Universities (drafted by Justice Castillo Víquez) Regarding Articles 31, 32, and 34, the consulting parties indicate that it prevents establishing salary differences based on knowledge, experience, and knowledge production, matters that are essential for universities, while Article 32 grants Mideplán the power to define the required grades within each labor family, and, finally, Article 34 regulates the preparation of the global salary scale. The Chamber concludes that they are unconstitutional, insofar as it does not exclude officials who perform substantial tasks—inherent to university activity—that is, those who perform functions of teaching, research, social and cultural extension, as well as those who perform administrative, professional, and technical functions, necessary to fulfill the constitutionally assigned purposes with criteria of effectiveness and efficiency, and because the definition of the relevant work factors, their relative weight, the number of grades required within each family and their characteristics, and the preparation of the salary scale corresponds exclusively and preclusively to the highest bodies of the university entities. In this matter, in relation to the employees who are in the job family relative to these entities, established by the hierarchical body of each university, all these aspects, being linked to the employees necessary to achieve the constitutionally established purpose, the competence is exclusive and preclusive and, consequently, Mideplán or the Executive Branch has no power whatsoever to define or prepare any of those aspects.

Regarding Article 33.- Classification of job positions in Public Universities (drafted by Justice Castillo Víquez) With respect to Article 33, the Constitutional Chamber finds that it is unconstitutional, insofar as it does not exclude officials who perform substantial tasks—inherent to university activity—that is, those who perform functions of teaching, research, social and cultural extension, as well as those who perform administrative, professional, and technical functions, necessary to fulfill the constitutionally assigned purposes with criteria of effectiveness and efficiency, and subjects the job manual of said officials to the analysis and evaluation of Mideplán, which—in consideration of university autonomy—corresponds exclusively and preclusively to the highest bodies of the university entities for the reasons explained supra.

Regarding Article 35 and 36.- Unified salary regime and remuneration policy in Public Universities (drafted by Justice Castillo Víquez) Articles 35 and 36 are challenged by the consulting parties. In relation to the former, a unified regime is established for the entire public service, including universities, which, in the opinion of the consulting parties, harms their autonomy. However, such a situation does not arise, because the global salary and a unified regime is constitutionally possible, since what the Fundamental Charter establishes is the right to a salary—Article 56—that is, an economic consideration for the service rendered, hence there is no fundamental right to a salary plus or pluses, so this is a matter of free configuration by the legislator and, consequently, the latter, in the exercise of the power to legislate, can establish a determined salary modality, be it: a composite, global, or mixed salary, etc. On the other hand, the Constitutional Chamber concludes that the setting of a global salary by the legislator in the case of universities does not affect the exclusive and preclusive competencies.

Regarding the latter, which regulates the remuneration policy, and provides for the intervention of MIDEPLAN, the General Directorate of Civil Service, and the Budgetary Authority, the consulting parties challenge its constitutionality because it subjects the remuneration policy to the state of available public funds. According to their criterion, in accordance with Article 85 of the Constitution, universities have guaranteed revenues and financing that could never be reduced by the central Government.

This statement is not legally correct. In judgment No. 2019-08620, the Chamber declared WITHOUT MERIT an action filed in relation to the "Agreement for the Special Fund for Higher Education (FEES) 2018, signed on August 29, 2017," because what was challenged was an agreement, not a provision with general effects, so it could not be considered as the object of an action under the terms of Article 73, subsection a) of the Law of Constitutional Jurisdiction. In the report that the General Attorney's Office of the Republic rendered in that matter, it was established that there is no provision establishing a specific percentage for state higher education.

Likewise, in advisory opinion No. 2018-18505 (legislative consultation on Law No. 9635), the Chamber stated:

"(...) What the aforementioned principles do demand is that the constant aim should always and preferably be to increase the coverage of human rights and likewise of social entitlement rights for the sake of the Social State under the Rule of Law; however, such a goal is not alien to the socio-economic context of a given historical situation nor to the obligation to carry out an exercise of weighing and optimizing the various constitutional principles, rights, and values at play (for example, between the principle of the Social State under the Rule of Law and that of Budgetary Balance), so that in the context of a particularly serious state financial unsustainability, duly accredited from a technical point of view, measures can be taken to alleviate the situation, provided that these are adopted safeguarding the fundamental rights enshrined in the Political Constitution and the international human rights instruments ratified by Costa Rica, as well as the essential qualities of the country's political regime…". (The bold text does not correspond to the original).

Finally, it should be noted that the definition of salary policy is a competence that the legislator attributes to the Executive Branch, which is consistent with the powers of Administration and Government that the Political Constitution assigns to that branch in relation to its officials and other entities that do not enjoy exclusive and preclusive competencies or degrees of autonomy that impede the power of direction. Ergo, it is the university entities that are called upon to set their remuneration policy, as well as the minimum starting salary of the single salary scale and the financial value assigned to each point of the global salary scale, adopting as a parameter the principles and postulates set forth in the challenged norm, with the exception of those employees whom the heads of these entities decide to exclude from the scale because they perform basic, auxiliary administrative functions, which are not linked to the constitutionally assigned purposes.

Regarding Article 37.f).- Global salary applied to rectors of Public Universities (drafted by Justice Picado Brenes) The consulting parties indicate that the consulted bill seeks to grant mechanisms to the current government to generate pressure on university budgets, through the limitation of salaries in accordance with Article 37 of the bill in question. In this regard, this Chamber observes that subsection f) of Article 37 of the bill establishes that the salary of the rectors of Public Universities not only may not be greater than that held by the Presidency of the Republic, but that it will be established by the Budgetary Authority, based on technical studies, responsibilities, and job profiles, as well as the salary caps established in the Public Administration Salary Law. This is evidently unconstitutional, for violating university autonomy. According to this autonomy, it is the public universities themselves that must establish by themselves the remunerative regime of their servants (see judgment n°2015-010248), including the salary of the rectors. In this sense, it is unconstitutional to establish that the salary of the rectors be established by the Budgetary Authority, which is an organ of the Central Public Administration, and not by the university itself. It should be remembered that public universities or state universities enjoy a special degree of autonomy, which can be called university autonomy. According to constitutional jurisprudence, it has been indicated that such autonomy encompasses administrative, political, financial, and organizational autonomy. Therefore, public universities are outside the direction of the Executive Branch and have all the administrative faculties and powers to carry out their mission.

• 4)Conclusion -Regarding Articles 11 (employment planning), 15 (recruitment and selection postulates), and 16 (employment offer), given that sufficient substantiation is not provided to allow this Chamber to have clarity on the matter consulted, the consultation is declared incapable of being evaluated for lack of substantiation.

-In the terms indicated and according to the jurisprudence of this Chamber, the following articles of the bill for the "PUBLIC EMPLOYMENT FRAMEWORK LAW," being processed in legislative file n° 21.336, are unconstitutional.

Having analyzed all the aspects consulted regarding Articles 6, 7, 9 (second paragraph of subsection a), 13 (subsection e), 14, 17, 30 (except subsection b), 31, 32, 33, 34, 37 (subsection f), of the draft Law called "PUBLIC EMPLOYMENT FRAMEWORK LAW" legislative file n° 21.336, this Chamber verifies that such norms are contrary to the Law of the Constitution, for violation of the university autonomy of public universities. Articles 30.b, 35, and 36 of the bill in question are constitutional, for the reasons already indicated.

• 5)Dissenting votes, reasons, and notes on the consultation regarding Public Universities a) Different reasons of Justice Garro Vargas in relation to the unconstitutionality of Article 6 insofar as it subjects Public Universities to the stewardship of the general public employment system under the charge of Mideplán In the sub lite, I am inclined to declare the consulted norm unconstitutional with respect to its application to public universities, departing from the differentiation made by the majority of the Chamber, in the terms indicated therein, insofar as it distinguishes between officials who perform an essential function pertaining to the public universities themselves and those who do not.

It should be observed that what is being challenged in this numeral is the creation of a General Public Employment System, whose stewardship would be under the charge of Mideplan, and in that system, "the offices, departments, areas, directions, units" of human resources management of the entities and bodies under the scope of application of this law are being integrated. Previously, Art. 2, subsection b) includes state universities within the scope of coverage of the bill. Likewise, as I previously indicated, said norm must be examined together with what is referred to in Art. 9, subsection a), second paragraph of the bill, which orders that human resources offices must apply and execute the provisions of general scope, the directives, and the regulations in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management that Mideplan sends to the respective institution.

Now, it should be remembered that Art. 84 of the Political Constitution regulates, regarding public universities, the following:

"The University of Costa Rica is an institution of higher culture that enjoys independence for the performance of its functions and full legal capacity to acquire rights and contract obligations, as well as to provide its own organization and government. The other state university higher education institutions shall have the same functional independence and equal legal capacity as the University of Costa Rica.

The State shall endow them with their own patrimony and collaborate in their financing." (the highlighting does not correspond to the original).

From the norm above, it follows with utmost clarity that public universities are endowed with constitutional independence for the performance of their functions and, very specifically, to provide their own organization and government. Based on that premise, it would be unconstitutional for the human resources offices of the universities' own government and the universities as a whole to be subjected to the stewardship of Mideplan, which would be the body contemplated in the bill to establish public policies on public employment and issue provisions of general scope in the matter (planning, work organization, employment management, performance management, compensation, and labor relations). Those human resources offices, moreover, govern the entire universe of officials of the respective public higher education institutions.

I already indicated supra that, from my perspective, a common regulation establishing a general regulatory framework for public employment, where the postulates of Arts. 191 and 192 of the Political Constitution are brought together and developed, is possible; however, in my judgment, removing the human resources offices of public universities from the scope that the self-organization and self-government capacity inherent to said universities has is unconstitutional, because furthermore, that would be coupled with the correlative obligation to execute the provisions of general scope from Mideplan. The foregoing is aggravated by the fact that the regulation of this law will remain in the hands of the latter.

I consider it necessary to specify that regarding the institutions contemplated in Art. 2 of the bill (scope of coverage), I believe that the branches of the republic (subsection a) do not have the same level of independence as other institutions of the decentralized sector (subsection b). However, in the specific case, the constitutional norm that contemplates the organization of public universities is very clear regarding their full legal capacity to provide their own organization and government, for which reason, I reiterate, it is unconstitutional for the human resources offices of said institutions to become part of a Public Employment System, whose stewardship is entrusted to a body dependent on the Executive Branch. Such a provision ignores that it corresponds to each higher education institution to autonomously delimit the best way to self-organize, of course, always subject to norms of a general nature that do not disregard its autonomy. That is, it will correspond to their own government authorities to autonomously execute the provisions of a general nature that tend to satisfy what is established in Arts. 191 and 192 of the Political Constitution—or any other provision thereof—but that stewardship and that overlap between the government competencies that are their own and others that are intended to be imposed in a heteronomous manner is unconstitutional. What has been said does not imply understanding that universities enjoy sovereignty or that they are outside the requirements inherent to the Rule of Law, but rather to recognize that the original Constituent Power wanted to grant public universities a unique status and prerogatives, which neither the Chamber nor the legislator in the exercise of their functions can ignore.

• b)Different reasons of Justice Picado Brenes, on Article 6 of the bill regarding Public Universities in terms of the power of direction of Mideplán (point 23 of the Por Tanto) While I agree with the unanimity of the vote on this point in terms of considering Article 6 of the bill unconstitutional in relation to public universities, I offer different reasons to refer to the unconstitutionality of Article 6.

The State has entrusted public universities, at a higher level, with teaching so that they prepare the citizenry in the learning of sciences and arts, as well as for the exercise of the different professions taught, all for the benefit of the community and, for this purpose, has also endowed those teaching centers with a degree of autonomy that grants them the right to govern themselves, all within what is established by the Constitution and the laws; autonomy that, in the terms of Article 84 of the Constitution, prevents external interference from other state entities, including the Executive Branch. In the specific case of the Public Employment Framework Law bill, it is observed that starting from numeral 2, subsection b), it is intended to include state universities in the general public employment system, which could clash with the provisions of Article 84 of the Constitution, since the latter, as the Constitutional Chamber has stated in its judgment nº 2012-011473, establishes a regulatory reservation in favor of universities in such a way that their regulatory power allows them to govern the organization of the university service. As is well known, the university autonomy that assists public higher education centers (established with constitutional rank) is sufficient for them, through their highest hierarchical bodies, to establish their organization and functioning and, within that, to regulate everything related to the human talent management regime they need for the performance of their functions. Consequently, the state university should not be subject to all the directives, provisions, and regulations that Mideplán intends to issue in the matter of public employment, so it would not be feasible for state universities to submit to the stewardship that, in this matter, is provided in Article 6 of the Public Employment Framework Law bill. Thus, in consideration of the full university autonomy granted to public universities in Article 84 of the Political Constitution, their degree of organizational autonomy should be respected, according to which, as stated, they are enabled to issue their own fundamental legal norms of organization, including, of course, everything related to the management of the personnel of those teaching centers, whose handling must be done with clear respect for the principle of proven suitability, also of constitutional rank.

Consequently, it is unconstitutional to intend for Article 6 to be applied to state universities, as it contravenes the principles and tasks assigned to those teaching centers based on Article 84 of the Constitution.

The consulted bill intends to subject public Universities to the stewardship of Mideplán in the matter of public employment. Mideplán is granted stewardship in the matter of public employment (Art. 6). The foregoing is deemed contrary to the Chamber's jurisprudential line according to which it is improper for an external instance to assume stewardship or unilaterally impose internal organization criteria on universities, since all of this is included within their full autonomy concerning employment relations with their servants, in matters of performance evaluation, and in matters of salaries. It should be remembered that this Chamber has established the scope of this autonomy, indicating that it is sufficient to establish their plans, programs, budgets, internal organization, and government structure (see vote n°2008-013091) and to provide, by themselves, the remunerative regime for their servants (see vote n°2015-010248). The creation of a Ministry of public employment—an organ of the Executive Branch—with such broad powers, that can give orders on this matter to state Universities, evidently violates their degree of self-organizing autonomy, further evidencing that this stewardship goes beyond the regulation of an activity, to actually involve direction and subordination through the issuance of specific directives and regulations on the matter. In my criterion, the structuring of the bill as such openly affects the degree of autonomy of state universities, by granting broad competencies to Mideplán that directly affect the substitution of powers and competencies. Emphasis must be placed on the fact that administrative decentralization particularly implies that the Executive Branch is prohibited from intervening in the decisions of state universities, and while there may be subjection to general constitutional principles for the entire public sector, it can never be subordination as intended by the draft Law under study.

• c)Additional reasons of Justice Garro Vargas in relation to the unconstitutionality of Article 7 for affecting the autonomy of Public Universities In this case, as stated by the majority, I consider that the entirety of Art. 7 is unconstitutional insofar as it subjects public universities to the stewardship and regulatory power of Mideplan. As already noted, that norm establishes a series of broad competencies in favor of a ministry of the Executive Branch which, applied to university higher education institutions, are unconstitutional for disregarding their full legal capacity to provide their own organization and government.

But it is not only about that stewardship in regulatory matters (Arts. 7 and 9), for it cannot be overlooked that the essential purpose for which the autonomy of higher education institutions is safeguarded is also to ensure academic freedom as a prerequisite for the dissemination of knowledge and plurality in a democratic society, so attempts to influence the payroll and the selection of teachers and research and support personnel, which serve as the basis for the exercise of academic freedom, imply a transgression of the Law of the Constitution. In this regard, it should be observed that Art. 7, subsection n) under examination intends for Mideplan to have the following competencies regarding the human resources and research of public universities:

"Carry out diagnostics on human resources matters of the entities and bodies included to achieve an adequate resizing of existing payrolls and the preparation of general criteria that delimit the sectors whose activity, due to its institutional strategic value, as well as its link to substantive activity, should be reserved to be performed exclusively by public servants. Additionally, analyze those that serve as guidance to delimit the provision of those that could be outsourced and the conditions for their provision." These competencies, as noted, could suppress the capacity for self-government and management of the personnel necessary to carry out the functions that are intrinsic to them. Furthermore, it must be remembered again here that the regulation of this law will remain in the hands of Mideplán.

• d)Additional reasons of Justice Picado Brenes, on Article 7 of the bill regarding the broad competencies of Mideplán in relation to Public Universities (point 24 of the Por Tanto) As has been pointed out, by assigning constitutional purposes to state universities, the original constituent power endowed them with the maximum autonomy—to self-regulate, self-govern, and self-organize—in order to guarantee independence in the exercise of their competencies, including the matter of public employment since it is oriented towards the fulfillment of those purposes in accordance with what the university authorities provide; purposes that refer to academic activity, research, and social or cultural extension activities. From this perspective, if the state university can self-organize and administer itself, it is logical that everything related to human talent management is within its own competence since it would be one more tool at its disposal for the fulfillment of its purposes. Therefore, it is not possible to intend for the state university to be subject to the provisions of Article 7 of the Public Employment Framework Law bill, for, it should be observed, there would be a normative clash between the competencies assigned therein to Mideplán in relation to the powers that the public university already has in personnel management matters.

Thus, in my opinion, it is not possible to impose that Mideplán assume the governing authority over public universities because, in the case of the management of their human talent, it is the public university that is responsible for establishing, directing, and coordinating the issuance of policies, programs, and plans relating to its workers, as well as for issuing the provisions, directives, regulations, and other rules that will govern the management of its employees in all areas, their coverage, the employment offer required for the exercise of their functions, the guidelines and principles for evaluating the performance of their workers, research, innovation, and proposals for their improvement, the performance of their diagnostics and the purposes for which they are carried out, among many other functions related to the management of the human talent that public universities possess.

Consequently, attempting to subject state universities to the provisions of Article 7 of the draft law under study would imply a conflict with the provisions of Article 84 of the Constitution, as well as a violation of the Constitution itself.

• e)Additional reasons of Magistrate Garro Vargas regarding the unconstitutionality of Article 13 with respect to Public Universities As I already specified supra regarding the Judiciary and the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones), in my case I declare unconstitutional not only subsection e) as ordered by the majority, but I declare the entire article unconstitutional. This is so because if only subsection e) is declared unconstitutional, it could be understood, consequently, that it is constitutional for the rest of the university officials who are not teaching and academic staff, but who are vital support personnel for all university, research, and teaching work, to remain within the general public employment regime under the express governing authority of Mideplan. Therefore, by understanding university activity only from the perspective of subsection e), which only refers to “teaching and academic persons,” all the particularities and needs of the support personnel of university-level higher education institutions are disregarded. That is, said subsection is deficient in itself. That is, it is declared unconstitutional for contemplating a specific family of higher education, under the understanding that this affects university autonomy; but the reality is disregarded that these institutions are also composed of a wide range of support officials who are essential for the proper execution of the constitutionally designated powers (research, social and cultural action, to cite a few examples) who, due to the declaration of unconstitutionality of only subsection e), would therefore be subjected to the governing authority of Mideplan in contravention of the provisions of Arts. 84 and 87 of the Political Constitution.

Likewise, it must be insisted that Art. 13 itself provides that “The creation of public employment job families is a reserve of law and must be justified by technical and legal criteria consistent with efficient and effective public management,” a rule that must also be examined together with what is referred to in Art. 32 of the draft law which orders that “Each labor family will be made up of a series of grades, each of which represents a group of positions with a similar profile. The Ministry of National Planning and Economic Policy (Mideplán) will define the number of grades required within each labor family, as well as their characteristics, in response to an evaluation of all positions within the labor family.” Therefore, it is insisted, if only the unconstitutionality of subsection e) is declared, there is a risk that the rest of the university officials will be placed in other “job families” whose evaluation and definition would be in charge of an entity outside their self-government, harming their autonomy and establishing a dangerous loophole for interference by the respective Executive Branch regarding the administration of their personnel. Consequently, despite only subsection e) having been consulted, by pure logical-legal derivation, it is clear that from a constitutional point of view, said article is imbued with unconstitutionality, to the extent that the construction of job families disregards the particularities and institutional makeup of university institutions. It is a different matter that compliance with the principles of reasonableness and proportionality regarding salary policies and labor conditions within the universities must be ensured; but for that, it is neither necessary nor justified to harm university autonomy, which has constitutional roots, but rather it would suffice to establish a legal framework of general rules and principles on public employment that, while respecting such autonomy, bind the university authorities, just as other laws do. Moreover, from a constitutional perspective, nothing prevents the existence of a framework of rules in this matter that is specific to public universities. In any case, university autonomy does not imply removing itself from the action of the legislator, but rather such action must be exercised based on its existence.

• f)Additional reasons of Magistrate Picado Brenes regarding Article 13 of the draft law in relation to the groups of job families of Public Universities (point 27 of the Therefore section) The Chamber has considered, unanimously, that Article 13 subsection e) of the draft Public Employment Framework Law is unconstitutional for not including -in such subsection- the employees of public universities who carry out research, social action, and culture. In my opinion, there are other reasons that also justify the declaration of unconstitutionality of this rule, which I will proceed to review below.

As I have been indicating, the Constituent Assembly assigned state universities the mission of being houses of learning where citizens are prepared in the study of the sciences and arts, as well as for the exercise of the different professions taught there, all for the benefit of the community. In order to fulfill this objective, it endowed them with a special degree of autonomy that has been called “university autonomy,” and according to constitutional jurisprudence, such autonomy encompasses the administrative, political, financial, and organizational spheres, such that public universities possess all the faculties and administrative powers to carry out their mission. It is worth highlighting judgment No. 2016-002419 in which the Constitutional Chamber described it with great precision:

“(…) As provided in Article 84 of the Political Constitution, the State Universities are endowed with independence for the performance of their functions and with full legal capacity to acquire rights and contract obligations, as well as to establish their own organization and government. That autonomy, which has been classified as special, is complete and, therefore, distinct from that of the rest of the decentralized entities in our legal system (regulated mainly in another part of the Political Charter: Articles 188 and 190), and means, to begin with one aspect of its most important features, that they are outside the direction of the Executive Branch and its hierarchy, that they possess all the administrative faculties and powers necessary to carry out the special purpose legitimately entrusted to them; that they can self-determine, in the sense that they are enabled to establish their plans, programs, budgets, internal organization, and structure their own government. They have regulatory power (autonomous and executive); they can self-structure, distribute their powers within the internal sphere of the entity, deconcentrate to the extent legally possible and lawful, regulate the service they provide, and freely decide on their personnel (as this Chamber already established in Resolution No. 495-92). These are the administrative, political, organizational, and financial modalities of the autonomy that corresponds to public universities. University autonomy has as its main purpose, to provide the entity with all the necessary legal conditions to independently carry out its mission of higher culture and education... The preceding conceptualization does not seek to exhaust all the elements, but from its essential content, it is deduced -and this is what it is understood that the Constituent Assembly intended and enshrined in the Fundamental Law- that the university, as a center of free thought, must and has to be exempt from pressures or measures of any nature that tend to prevent it from fulfilling, or threaten, that, its great task.” Now, as I have already pointed out, Article 13 of the draft Public Employment Framework Law has a very generic and even confusing wording that will generate serious interpretation problems when it comes to being applied. I again reiterate my opinion that it is yet another rule that will not be easy to apply to the generality of public servants as the draft law intends, and it will be seen that, in practice, it will prove almost an impossible mission to objectively group the large number of public servants that exist in the country into only 8 job families. As I have been stating, what is proper and appropriate is that each one of the institutions that have been included in the scope of the law maintains the management of its own human resources, as has been done up to now, since it is each one of them that knows its personnel and it is the one responsible for developing policies regarding its workers in accordance with its purposes and goals; otherwise, as the draft law intends, the specific autonomy with which each of the institutions included in the scope of the Law has been endowed will be violated and, specifically in the case of state universities, that university autonomy will be harmed which, as the Constitutional Chamber itself has indicated, implies that they possess all the administrative faculties and powers necessary to carry out the special purpose legitimately entrusted to them; that they can self-determine, in the sense that they are enabled to establish their plans, programs, budgets, internal organization, and structure their own government; that they have regulatory power (autonomous and executive); that they can self-structure, distribute their powers within the internal sphere of the entity, deconcentrate to the extent legally possible and lawful, regulate the service they provide, and freely decide on their personnel (see judgments No. 495-92 and No. 2016-002419).

Specifically, regarding subsection e) of Article 13 of the draft Public Employment Framework Law, note that it is one of the 8 job families that will be applied in the institutions covered by that Law, according to the functions performed by personnel, providing that it refers to:

“e) Teaching and academic persons of technical and higher education.” Note that this job family is very generic since it only refers to the teaching and academic staff of state universities, and precisely because of the way it is worded, I believe that if a broad interpretation of the subsection is made, it could perfectly be thought to include the employees of those educational centers who carry out research, social action, and culture, despite the Chamber having considered them excluded and, therefore, that it would be unconstitutional. It is not up to the Chamber to determine who are teaching persons or academic persons, nor who are the persons who carry out research, social action, and culture, but it could be thought that one and the other are not mutually exclusive and that perfectly a teaching or academic person can carry out research, social action, and culture.

Now, in my opinion, one of the greatest problems the rule presents is that it attempts to integrate its officials there into groups of job families designed by the Executive Branch -Mideplán-, despite the fact that -according to the constitutional jurisprudential line- it is improper for an external instance to assume the governing authority or unilaterally impose internal organization criteria on universities, since all of that is included within their full autonomy regarding employment relations with their employees and the entire management of their human talent, it being remembered that it has been the Constitutional Chamber itself that has established the repercussions of this autonomy, indicating that it extends to establishing their plans, programs, budgets, internal organization, and government structure (see vote No. 2008-013091) and to determine for themselves matters relating to their human resources (see vote No. 2015-010248).

Therefore, if the state university can self-determine, that is, it is empowered to establish its plans, programs, budgets, internal organization, and structure its own government, all within the limits established by the Political Constitution itself and the special laws that regulate its organization and operation (see vote No. 2012-011473), it would not be possible, under any concept, for the draft law under study to attempt to group public university servants into different family groups that, in addition to harming that university autonomy, do not correspond to the constitutional purposes and objectives assigned to those educational centers. Recall that this autonomy, which has been classified as special and complete, distinct from that of the rest of the decentralized entities of the Costa Rican legal system (regulated mainly in another part of the Political Charter: Articles 188 and 190), means that universities are outside the direction of the Executive Branch and its hierarchy, that they possess all the administrative faculties and powers necessary to carry out the special purpose legitimately entrusted to them, in such a way that they can establish their plans, programs, budgets, internal organization, structure their own government, and, among other powers, freely decide on their personnel, all by enjoying administrative, political, organizational, and financial autonomy to carry out, with independence, their mission of higher culture and education (see judgments No. 92-495 and No. 93-1313).

Consequently, I believe that Article 13 subsection e) is unconstitutional because I believe its application would cause a conflict with the provisions of Article 84 of the Constitution, since the latter, as the Constitutional Chamber has stated in its judgment No. 2012-011473, establishes a normative reserve in favor of universities in such a way that their regulatory power is the sole competent authority to regulate the organization of university service and because they are outside the direction of the Executive Branch as well as its hierarchy; consequently, they could not be within the scope of coverage of Mideplán as the draft Public Employment Framework Law intends to impose, since the autonomy of public universities protects them against the Executive Branch and the rest of the Public Administration, but also against the law, to prevent the legislator from delegating to administrative authorities - Mideplán in this draft law - powers capable of imposing on public universities decisions regarding the scope of their powers, such as the regulation and management of university personnel, among others (see judgments No. 93-1313 and No. 96-276).

• g)Note from Magistrate Garro Vargas regarding the unconstitutionality of Article 17 applied to senior management personnel of Public Universities The undersigned Magistrate highlights that while subsection 2° of the article under examination provides that “the entities and bodies included in Article 2 of this law shall establish administrative regulations in relation to public senior management personnel,” which gives the appearance that the bodies themselves will establish these regulations, it cannot be overlooked that throughout the entire draft law an intention is observed to establish a governing authority by Mideplan, which is called upon to issue provisions of general scope, directives, and regulations regarding planning, work organization, employment management, performance management, compensation management, and labor relations management, which undoubtedly would also bind public senior management personnel, to the detriment of the autonomy of public universities to establish their own organization and government, and to the detriment of the core principle of the functioning of these institutions, which is academic freedom (libertad de cátedra) and the consequent freedom in research.
• h)Note from Magistrate Picado Brenes regarding Article 17 of the draft law in relation to senior management personnel of Public Universities (point 30 of the Therefore section) I agree with the majority opinion regarding considering unconstitutional Article 17 of the draft “Public Employment Framework Law” being processed in legislative file No. 21.336, for subjecting public university senior management personnel to what Mideplán may provide; however, I believe it is necessary to mention additional aspects for which I consider the rule could also be unconstitutional.

As I have been mentioning, based on Article 84 of the Political Constitution, public universities or state universities enjoy a special degree of autonomy that can be called university autonomy and which, according to constitutional jurisprudence, encompasses administrative, political, financial, and organizational autonomy, so that they possess all the administrative faculties and powers to carry out their mission. These educational centers can self-determine, that is, they are empowered to establish their plans, programs, budgets, internal organization, and structure their own government, all within the limits established by the Political Constitution itself and the special laws that regulate their organization and operation (see vote No. 2012-011473), because the Political Constitution provides that they enjoy independence for the performance of their functions and full legal capacity to acquire rights and contract obligations, as well as to establish their own organization and government. In this sense, the jurisprudential line of the Constitutional Chamber has been clear in establishing that public universities have the highest degree of autonomy, which is self-organizational autonomy or full autonomy, which has been classified as special, complete, and, for this reason, distinct from that of the rest of the decentralized entities of the legal system (regulated mainly in another part of the Political Charter: Articles 188 and 190). The foregoing means that public universities are outside the direction of the Executive Branch and its hierarchy, that they possess all the administrative faculties and powers necessary to carry out the special purpose legitimately entrusted to them, that they can self-determine because they are enabled to establish their plans, programs, budgets, internal organization, and structure their own government, that they have regulatory power (autonomous and executive), that they can self-structure in order to distribute their powers within the internal sphere of the entity, deconcentrate to the extent legally possible and lawful, regulate the service they provide, and freely decide on their personnel. All these are powers of the administrative, political, organizational, and financial modalities of the autonomy that corresponds to public universities and whose main purpose is to provide the entity with all the necessary legal conditions to carry out, with independence, its mission of higher culture and education (see judgments No. 92-495 and No. 93-1313). Thus, if one starts from this maximum degree of university autonomy, it is more than evident that a head-on collision would occur with the content of Article 17 under study and, consequently, it would be unconstitutional.

In the first place, note that the article provides that it will be Mideplán that will issue the provisions of general scope, the directives, and the regulations regarding technical senior management personnel, this being understood as the public servants of each of the bodies and entities who are in charge of one or several of the instances classified as directive level according to the general guidelines for administrative reorganizations, excluding all positions whose appointment is expressly regulated in the Political Constitution. Here would be the first reason why Article 17 in question would be unconstitutional, since its content would violate the university autonomy protected in Article 84 of the Political Constitution, based on which public universities are outside the direction of the Executive Branch and its hierarchy; consequently, under no concept could Mideplán impose its decisions on them.

In the second place, note that the rule establishes that this governing authority of Mideplán seeks to provide the Public Administration with profiles of integrity and proven management, innovation, and leadership capacity to seek the improvement of the provision of public goods and services. Again, this intention would violate the university autonomy protected in Article 84 of the Political Constitution, since public universities already possess the power to self-organize, self-structure, and self-determine to achieve similar objectives, or even go further because, by reason of their nature and the type of service they provide in Costa Rican society, they possess all the administrative, economic, and political faculties and powers necessary to carry out the special purpose legitimately entrusted to them, which is aimed at disseminating culture, research, and education among the population.

In the third place, if the macro objective of the Public Employment Law is to create a single and uniform system for the management of public employment in the terms indicated by Article 1 of the draft law under study, and this rule 17 presupposes that public universities would be included within that mega-system of public employment, again in view of Article 84 of the Constitution and the degree of complete autonomy enjoyed by public universities, it would be unconstitutional to oblige them to establish administrative regulations in relation to their public senior management personnel, because they could not be forced to issue regulations in a specific direction or under a specific line of thought, since this is a power that solely corresponds to them, independently and as part of their organizational autonomy, not as an obligation or direction coming from a body of the Executive Branch. For this reason, for state universities, the postulates enumerated by this Article 17 could not apply.

From this perspective, then, what is considered public senior management personnel in the public employment system would not correspond to what state universities might determine they will understand under that concept, since this is part of their total autonomy to organize, structure, and determine themselves. In addition to this, the designation of such personnel could not be subject to the principles regulated by Article 17, since those educational centers have full autonomy to determine what those principles would be and, even if they wish, they may not designate any type of senior management personnel if they so decide, or they could establish less pyramidal hierarchical systems, all of which, ultimately, is part of their scope of competence. On the other hand, the personnel that public universities classify as public senior management, should they wish to do so, could be governed by other principles different from those provided in this article. Likewise, matters relating to performance evaluation are for the state university to define. These matters also turn out to be protected by the self-regulation, self-structuring, and self-organization enjoyed by those public educational centers under Article 84 of the Constitution.

Consequently, it would be improper for an external instance to assume the governing authority or unilaterally impose internal organization criteria regarding the employment relations of public senior management personnel in public universities, since all of that is included within their full autonomy. It cannot be forgotten that this Chamber has already established the importance of that autonomy, indicating that it extends to establishing the plans, programs, budgets, internal organization, and structure of their government (see vote No. 2008-013091).

Consequently, the content of this Article 17 openly affects the degree of autonomy of state universities by granting broad powers to Mideplán for the substitution of powers and competencies that are their own, but it also implies a violation of administrative decentralization, which is a basic guarantee of the Rule of Law, which presupposes that the degree of power of the Executive Branch is decentralized and that it is barred from intervening in the decisions of state universities. While it is true that there may be subjection to general constitutional principles for the entire public sector -including state universities-, it is also true that there can never be subordination in the matters intended by this Article 17 of the draft law.

• i)Different reasons of Magistrate Garro Vargas regarding the unconstitutionality of Article 30 for harming the autonomy of Public Universities I agree with the majority that Art. 30 of the draft law under consultation is unconstitutional for harming the autonomy of public universities. I must emphasize that, as I have been stating, I believe that a general public employment framework that lays out in general terms the guiding postulates that direct compensation management would not be unconstitutional. However, according to this draft law, compensation management, while appearing that, in theory, it could involve the intervention of state higher education institutions for the construction of the “global salary column” (Art. 30 final paragraph), the truth is that the final decision on how to form the global salary column, the classification of jobs, and the remuneration policy will be established by the bodies of the Executive Branch, to the detriment of university autonomy. Therefore, without heeding the distinction made by the majority, I believe that the construction of the family of the salary column and its characteristics corresponds exclusively and excludly to the highest bodies of university entities as a manifestation of their full legal capacity to establish their own organization.

I concede that the effects of what is established in that Article 30 are not equally serious when it comes to the Judiciary or the Supreme Electoral Tribunal as when it comes to the universities, but the point is that in the case of the latter, there is also no constitutional support for that rule to be applied to them.

• j)Different reasons of Magistrate Picado Brenes regarding Article 30 of the draft law in relation to the postulates on compensation regarding Public Universities (point 31 of the Therefore section) Starting from the basis that university autonomy is full and that it allows state universities to issue their own legal organizational rules with which they can self-govern, self-organize, and self-administer, including in those areas everything relating to human talent management, it is also logical that matters related to the salary compensation of university employees be planned, developed, and executed internally within the university itself, since it is there that the levels of compensation that would be adequate and fair for the work performed and for meeting the established goals can be determined with real criteria adjusted to the exercise of their functions. It would not be valid, then, for an entity external to the state university, such as Mideplán, to be the one that determines the salaries of the employees of the state university. In that sense, it would only be up to the public university to establish the guiding postulates that should be applied in this matter, since it is obvious that the parameters for making such a determination must consider the criteria of specialty handled within the state university, but also the type of functions performed there.

In that sense, it will be the subject-matter experts, within their own field of work, who can establish the reasonableness and proportionality of the salaries set based on the tasks performed, schedules, work demands, degrees of hazard, worker displacements, availability, zoning (zonaje), among other aspects to be considered for establishing salary scales and levels. I believe it is not possible to apply general criteria from an external body, removed from the work environment of the state university, to functions as specific, technical, and defined as those performed by university researchers and professors or academics, as well as all the administrative and support staff around them. In that vein, it would be illusory to think that the institutions included within the scope of application of public employment can jointly build, with Mideplán, the Budgetary Authority (Autoridad Presupuestaria), and the General Directorate of Civil Service (Dirección General de Servicio Civil), a global salary column (columna salarial global) when, no matter how much inter-institutional coordination exists, the attempt is being made to include in the same place functions, disciplines, jobs, and people that are so dissimilar, with no more common element than working for the public administration.

Consequently, it is contrary to the Law of the Constitution to include public universities in the guiding principles that direct compensation management developed in Article 30 of the draft Framework Law on Public Employment (proyecto de Ley Marco de Empleo Público) under review, because those universities have full autonomy to create and develop their own compensation measures, without external interference and in consideration of the specificity of their constitutional purposes as well as the collaborators who perform them.

• k)Dissenting vote (Voto salvado) of Justices Hernández López, Garro Vargas, and Picado Brenes, drafted by the latter, regarding Article 30 subsection b) concerning the salary cap (tope de salario) in Public Universities (point 32 of the Por Tanto) We dissent from the majority opinion and consider that Article 30 b) is unconstitutional in its effects, since it is not valid for the salary of the President of the Republic to serve as a cap for salaries in public universities, particularly when there are technical and other reasons justifying different remuneration. We believe the project starts from a mistaken premise; it presupposes that the position of President of the Republic, being the highest position attainable in the state hierarchy, entails greater responsibility, leading them to conclude it should receive the highest salary remuneration; however, this departs from the basic principles established by experts in human talent management. First, a position of a political nature is not comparable to a technical position. Second, the determination of a position's salary structure cannot rely on subjective criteria, much less be defined solely based on the hierarchical level it occupies, as the draft under review does. According to human resources experts, to establish the salary for a specific position, the following elements must be considered: responsibility, authority, competencies or capabilities, professional training, negotiation skill, experience, and even, in some cases, the age of the candidate. In recent years, some organizations also consider soft skills, which include the worker's personality and their ability to relate to others, leadership, communication, among other skills that often transcend technical competencies. If to all this one adds that, in the specific case of the President of the Republic, Article 131 of the Political Constitution (Constitución Política) provides that to hold that office, one only needs to be Costa Rican by birth and a citizen in exercise, of secular status, and over 30 years of age, and that the President also has confidential and other expenses, it is more than evident that the criteria that could be used to set their salary do not correspond to those for other public servants, who are required to demonstrate suitability for the position, and in professional positions, this implies holding a professional degree. The sovereign people, when electing the President of the Republic by popular vote, do not necessarily choose them based on those objective elements used as parameters for determining a salary. Consequently, while it is true the position of President of the Republic implies that the person holding it has a high degree of responsibility, it is also true that, by the mere fact of being President of the Republic, their salary should not necessarily be imposed as a ceiling for the rest of the public sector salaries, because that ceiling lacks objective elements to justify it. There is no technical and objective justification validating that the presidential position should have the highest salary, especially when compared to other high positions in the Public Administration for which the Political Constitution itself requires greater professional requirements, as would be the case for Justices of the Supreme Court of Justice and the Supreme Electoral Tribunal (articles 100 and 159), or for other positions where the Law requires the candidate to meet a series of requirements of greater relevance than those demanded for the President of the Republic, as would be the case for the Attorney General of the Republic (Procurador General de la República) (Organic Law of the Attorney General's Office, article 9). The same could be said of scientists or medical specialists. Thus, intending for the President of the Republic, by the mere fact of being so, to earn the highest salary undoubtedly implies a violation of the principle of equality and non-discrimination. Furthermore, such a salary cap is unreasonable and inconsistent, since the same draft Framework Law on Public Employment, in its Article 30 subsection a), establishes that "salary shall always be equal for equal work under identical conditions of efficiency, position, workday, and conditions, regardless of the public institution for which one works." Applying this to the case of state universities in relation to Article 30 subsection b), it would be unconstitutional to admit a rule that allows a career university professor, belonging to the academic regime (régimen académico), with many years of experience in teaching but also in research, with publications, with several academic degrees at both the undergraduate and postgraduate level, responsible for one or several academic units, to be subjected to remuneration lower than that of the President of the Republic only because this draft Law so orders and without having technical studies to support it. The foregoing would also be detrimental to university autonomy (autonomía universitaria) which, as has been noted, extends to the administrative, political, financial, and organizational spheres. On the other hand, it must be said that imposing caps on salaries based on a specific reference point—as would be the President of the Republic's salary in this case—implies severely limiting the possibility of intellectual and professional growth for public servants. On this point, the project is contrary to the principle of salary equality, which allows people to better themselves and achieve high goals. A rule like the one consulted would lead to serious social and labor polarization, since public officials, particularly those at public universities, as consulted, would remain in their positions with static salaries, without any possibility of advancement or growth, once they have reached the cap of the President of the Republic's salary. In the specific case of public universities, limiting the salary of university officials to the salary of the President of the Republic, but especially that of professors, academics, researchers, and those conducting social outreach (acción social), will also mean capping knowledge, research, social and cultural outreach, and, ultimately, the country's development. Consequently, it is contrary to university autonomy and the rules of science and technique to establish a cap for setting their salaries, without considering the relevance of the functions performed by public universities in the country and their leading role in the formation of Costa Rican democracy. In view of all the above, we consider that Article 30 subsection b) of the draft Framework Law on Public Employment is detrimental to the Law of the Constitution.
• l)Separate reasons of Justices Garro Vargas and Picado Brenes, drafted by the latter, regarding Articles 31, 32, and 34 of the draft, concerning compensation rules in Public Universities (point 33 of the Por Tanto) University autonomy has as its main purpose to procure all necessary legal conditions so that the state university, with independence, carries out its mission of culture and higher education; a mission that not only consists of teaching, but also of conducting scientific research, cultivating arts and letters, analyzing the social, cultural, political, and economic reality of the country, its environment, and the world with objectivity and knowledge, proposing solutions to major problems, and being a driver of ideas to achieve social development in all areas. The state university, then, is not a simple site dedicated to teaching but a center of free thought, and it must and has to be exempt from pressures or measures of any nature that tend to prevent it from fulfilling its purpose, with independence and responsibility. From this perspective, it would be totally contrary to that university autonomy for a body of the Executive Branch—Mideplán in this case—to attempt to impose directives or regulations regarding public employment matters, much less concerning the methodology for evaluating the work of its employees, the groups and grades of positions (grupos y grados de puestos), as well as the evaluation for purposes of their salary remuneration. According to Article 31 of the draft Framework Law on Public Employment, Mideplán shall specify a work valuation methodology for the public service that will be a "point factor" scheme, assigning scores to jobs based on an analysis of relevant work factors; Mideplán shall also define those relevant work factors. Note that it is Mideplán that completely assumes this task, without leaving any margin of participation for the state university, despite the autonomy it enjoys and the fact that those jobs, and matters related to them, are the proper domain of university competence, because it cannot be forgotten that these are its workers for the fulfillment of its purposes.

For its part, see in Article 32 of the draft Law under review that it will also be Mideplán that determines the job families (familias laborales) of positions, as well as the grades that comprise them and the characteristics of this entire framework, which, according to that rule, will be done in response to an evaluation of all positions within the job family; Mideplán's participation is decisive since, in addition to all the above, it must issue directives related to the remuneration points within the grades of each public employing entity, without the rule making any reference to university autonomy, much less having any special consideration in the case of the specificity of the universities' field of knowledge. It must be borne in mind that this general public employment system has also included those officials who perform substantial tasks—proper to university activity—that is, those who perform teaching, research, social and cultural extension functions, as well as those who perform administrative, professional, and technical functions necessary to fulfill, with criteria of effectiveness and efficiency, the purposes constitutionally assigned to those educational centers.

Finally, it must be analyzed that Article 34 of the draft Law under review provides that it will also be Mideplán that elaborates—along with the Technical Secretariat of the Budgetary Authority (Secretaría Técnica de la Autoridad Presupuestaria) and the General Directorate of Civil Service—the global salary column, without observing any exclusion of certain jobs at the public university, much less, as already stated, any reference, even minimal, to the full autonomy that the state university possesses, which allows it to manage everything related to human resources; therefore, the intervention of an external body such as Mideplán would be detrimental to that autonomy.

It is more than evident that Mideplán will have a highly active participation, but also almost exclusive and exclusionary in this matter, which in turn entails a head-on collision with university autonomy, according to which all such tasks related to human talent management in those areas are the sole and exclusive competence of the state university. Therefore, Mideplán could not intend to supplant such functions without an open clash with the provisions of constitutional Article 84, and consequently, I consider these articles 31, 32, and 34 of the draft law under review to be unconstitutional.

• m)Separate reasons of Justices Garro Vargas and Picado Brenes, drafted by the latter, regarding Article 33 of the draft, concerning the classification of positions (clasificación de puestos) in Public Universities (point 34 of the Por Tanto) As has already been indicated, public universities enjoy full autonomy that enables them to issue their own fundamental legal norms, which includes the administrative, political, financial, and organizational spheres; therefore, they have a wide range of powers and administrative authorities to carry out their mission, among which is the power to establish their internal organization and manage everything related to human resources, within the limits established by the Political Constitution itself and the special laws that regulate their organization and operation. Thus, it is more than evident that the Executive Branch, and in this case, Mideplán, could not exercise directive powers or issue regulations in matters that correspond to the universities, according to the degree of autonomy they hold and the purpose constitutionally assigned to them for teaching, research, and social and cultural extension.

From this perspective, then, Article 33 of the draft Framework Law on Public Employment could not be applied to public universities, since the classification of jobs is a competence protected by university autonomy. It is therefore up to each public university, as it so provides, to decide whether for the management of its personnel it will have a detailed jobs manual (manual de puestos) or not, which will not necessarily correspond to the criteria previously determined by Mideplán, as it will be prepared by each state university in consideration of the goals, as well as the work objectives, it has set for itself. In that same sense, the public university cannot be subjected to the obligation of providing that information to Mideplán because the jobs it decides to create will correspond to its institutional needs and its purposes, not to the generic interest that that body of the Executive Branch might have. Consequently, the jobs that the public university determines it requires for the exercise of its functions and the fulfillment of its goals will be closely linked to teaching, research, and social and cultural extension, and therefore, the description of each position and its evaluation will be a matter of its sole and exclusive competence, without any type of external interference outside the university sphere being valid. Likewise, since the objectives of the different university jobs are clearly determined to achieve those proper purposes of the public university, it would not be possible for Mideplán to intend to assimilate them with those that might be assigned to another public institution of a different nature, since it would be more than reasonable that the purposes of one and the other do not coincide. Under this premise, attempting for the classification of positions recognized in Article 33 of the draft Law to be uniformly applicable to all public institutions included in the general public employment system implies ignoring that the original Constituent Assembly granted, in the specific case of public universities, a degree of autonomy that is unique and exclusive; therefore, any Law that attempts to modify it would be violating the Law of the Constitution. The same occurs with that Article 33 by including, within its scope of action, university officials who perform substantial tasks proper to university autonomy, since by subjecting them to what is provided therein, a violation of the provisions of constitutional Article 84 would be incurred, given that it concerns specialized personnel performing teaching, research, social and cultural extension functions, as well as administrative, professional, and technical functions, all necessary to fulfill the functions constitutionally assigned to the public university. It must also be said that it is more than evident that tasks as specific and specialized as those assigned to public universities cannot be treated with the disregard of the generality that the draft under review intends to impose.

• n)Separate reasons of Justice Garro Vargas regarding the constitutionality of Articles 35 and 36 with respect to Public Universities Regarding Articles 35 and 36 of the draft law, I agree with the majority of the Chamber (Sala) in that those rules in themselves are not unconstitutional. As I indicated above, it would not be unconstitutional for the legislator to regulate a public employment framework that generally provides the guiding principles that direct the compensation management of all public servants. Precisely, Articles 35 and 36 provide for the transition of all public sector institutions towards a unified salary system (régimen salarial unificado), based on salary columns (columnas salariales); therefore, I consider that such provisions are not in themselves unconstitutional. However, in view of the constitutional framework regulating public universities, in my opinion, it will be the responsibility of these institutions' own governing authorities to establish the definition and implement the salary columns for their employees, and therefore, the design of the remuneration policy in accordance with such columns. This is for the purpose of giving coherence to the system intended to be implemented for all public employment, while also respecting the autonomy that the Constitution has enshrined in favor of all institutions of university higher education.
• ñ)Additional reasons of Justice Picado Brenes regarding Articles 35 and 36 of the draft concerning the unified salary system and Public Universities (point 35 of the Por Tanto) The Constitutional Chamber (Sala Constitucional) has unanimously concluded that the setting of a global salary by the legislator in the case of public universities is not unconstitutional; however, I believe it is necessary to make some clarifications in this regard.

-It is the Public Universities themselves that must establish their salary structure; the unified salary policy of the public sector would operate only as a general guideline: While it is true that Article 56 of the Political Constitution establishes the worker's right to receive economic compensation for the service rendered, which does not imply a fundamental right to a salary bonus or bonuses (plus o pluses salariales), and also that this is a matter in which there can be free configuration by the legislator, it is also true that this does not imply—in any way—that once that salary policy for the public sector is determined (as indicated in consulted Article 35), university autonomy is bypassed. In accordance with this autonomy, it must be the state university that, based on some general lines or parameters of the unified salary system, specifically establishes for itself: the conditions, requirements, and characteristics necessary to structure the specific salary policy for university employees, considering their functions, responsibilities, competencies, professional training, experience, etc. The point is for the public University itself to establish its unified salary system, based on a global salary column designed by the University itself. Of course, within the possible framework, observing the general salary policy of the entire public sector, regarding its guidelines and general principles. This clarification is made so that Article 35 indicated is understood in its proper dimension, as the draft seems not to safeguard university autonomy in this sense. From my point of view, Articles 35 and 36 must be read in the terms set forth above, where the University will observe the guidelines regarding the salary remuneration policy issued for the entire public sector, but with sufficient autonomy to adapt them to its needs and particularities.

-The remuneration policy issued in light of Article 36 of the consulted draft must respect constitutional Article 85: According to constitutional Article 85, "The State shall endow with its own patrimony the University of Costa Rica, the Technological Institute of Costa Rica, the National University, and the State Distance University and shall create their own revenues, independently of those originating in these institutions. Furthermore, it shall maintain... a special fund for the financing of State Higher Education..." Thus, such remuneration policy issued by the Executive Branch could not ignore the constitutional obligation of the State to endow public Universities with their own patrimony. Moreover, it is emphasized that this is a general remuneration policy, as it is established by bodies of the Executive Branch and could never have the character of an order or a directive.

-All university employees would be included within the university salary policy: As the drafting of this vote states, it is the university entities that are called upon to set their remuneration policy, as well as the minimum starting salary of the single salary column (columna salarial única) and the financial value assigned to each point of the global salary column, adopting as a parameter the principles and postulates set forth in the questioned rule. However, I differ in considering that the foregoing applies only to one type of university worker. I believe that university employees cannot be divided so that some are excluded and others included in the salary column that the university itself will establish, as this would imply creating an odious difference between people based on the tasks they perform. All university workers are covered under university autonomy. Even though the Chamber (Sala) points out that "with the exception of those officials whom the heads of these entities decide to exclude from the column because they perform basic, auxiliary administrative functions that are not linked to the constitutionally assigned purposes," and even if such determination is made internally within the university itself, the fact of the matter is that each and every one of the university employees, from the most humble position to the one serving as Rector (Rector) and belonging to the administrative structure of the state university, paid with funds from that university, are serving, through their work, the constitutional purpose for which the public university was created, tasked with teaching at a higher level, for the sake of preparing the citizenry in the learning of sciences and arts, as well as for the exercise of the different professions taught, all for the benefit of the community. Thus, in a public university, the janitor who cleans the classrooms, the administrator who prepares reports or collects tuition fees, the guard who watches over the buildings, the paramedic who drives the university's ambulance, the professor, the academic—all of them perform functions aimed at fulfilling the ultimate purpose of those educational centers. Therefore, each and every one of them must be treated as part of the university machinery, seen as a whole, and consequently, remunerated according to the policies set by the public university in consideration of the autonomy that grants them the right to self-governance, all within what is established by the Constitution and the laws. On this point, segregating employees among themselves regarding remuneration policy, even though all are directed toward fulfilling a common goal, would imply, in addition to a violation of university autonomy, an infringement of the principle of equality and non-discrimination.

XII.- Regarding the consultation on violation of the autonomy of the Costa Rican Social Security Fund (Caja Costarricense de Seguro Social).- 1) Aspects Consulted The petitioning deputies consider that the following articles of the "FRAMEWORK LAW ON PUBLIC EMPLOYMENT" draft, processed under legislative file No. 21.336, violate the political autonomy of the Costa Rican Social Security Fund (CCSS). Specifically, they consult on the following articles, indicated either in the heading of the general title or in the rest of the text of the filing brief:

2.b (scope of coverage), 6 (leadership of Mideplan), 7 (competencies of Mideplan), 9.a (Human Resources offices), 13.b (job families), 14 (recruitment and selection), 17 (Senior Management personnel), 18 (probationary period and appointment term), They consider these articles unconstitutional because they violate the autonomy of the CCSS and Articles 73, 188, 11, 33, and 140.18 of the Political Constitution. They consider it unconstitutional to subject the CCSS to the directives, guidelines, and regulations issued by Mideplán on topics related to public employment, such as: work planning, work organization, employment management, performance management, compensation management, and labor relations management.

In this regard, before proceeding with the examination of the constitutionality of the challenged rules, it is appropriate to recall the scope and constitutional limitations of the autonomy of the Costa Rican Social Security Fund, as established by constitutional jurisprudence.

• 2)Jurisprudential Background on the Government Autonomy of the Costa Rican Social Security Fund On repeated occasions, as indicated in ruling No. 2011-14624 of 3:50 p.m. on October 26, 2011, this Tribunal has stated that the Costa Rican Social Security Fund (CCSS) enjoys administrative and government autonomy, in accordance with Article 73 of the Political Constitution; therefore, it can issue provisions related to its internal regime. The Constituent Law of the Costa Rican Social Security Fund (Ley Constitutiva de la Caja Costarricense de Seguro Social), number 17 of October 22, 1943, published in La Gaceta number 329 of October 27, 1943, establishes in Article 70 the following:

"The Administrative Career (Carrera Administrativa) of the Costa Rican Social Security Fund is hereby created, to regulate which, the Board of Directors (Junta Directiva) shall establish the conditions concerning the entry of employees into the service of the Institution, guarantees of stability, their duties and rights, the manner of filling vacancies, promotions, causes for removal, scale of sanctions, procedure for adjudicating infractions, and other necessary provisions…".

On the other hand, Article 14, subsection f) provides the Board of Directors of the CCSS with the authority to regulate the operation of the institution, thereby conferring the power to issue rules, including to regulate the regimen of the officials required by the institution to fulfill the responsibilities assigned to it by the Political Constitution and its Constituent Law, and this is constitutional, as stated in said precedent:

“…In that context, the possibility for the Institution to establish by itself the different types of labor relations with its officials, whether by statutory relationship (relación estatutaria) or subject to special figures, as in the case of the Regulation for Recruitment and Selection of Professionals in Pharmacy, Dentistry, and Social Work, is not unconstitutional. The Costa Rican Social Security Fund may establish the rules for the selection of officials occupying positions in said institution, but respecting the specific purposes in the provision of the public service of the Costa Rican Social Security Fund (Articles 73, 191, and 192 of the Political Constitution).

By virtue thereof, Article 21 of the Ley Constitutiva establishes the following: "Article 21.- The Personnel of the Caja shall be integrated based on proven suitability (idoneidad comprobada), and category promotions shall be granted taking into account the merits of the worker in the first instance and then, seniority in the service." From the foregoing, as well as from the reading of constitutional numeral 191, it is clear that the unavoidable rule consists precisely in that public officials must be governed by a statutory employment relationship (relación laboral estatutaria), that is, by rules imposed by the Administration in its capacity as employer, in consideration of the efficient and effective provision of the public services that each administrative body is called upon to offer. Even if the constituent legislator had envisioned a single statutory system, the truth is that the final wording given to Article 191, as well as the process of profound decentralization that the Costa Rican State experienced starting in nineteen forty-nine, means that in our days the existence of diverse statutory relationships in the Administration is valid, in consideration of the functional independence and administrative autonomy that the legal order ensures for several public institutions." The foregoing is consistent with the very autonomy granted by the Constituent Legislator to certain institutions, in the specific case, that conferred upon the Caja Costarricense de Seguro Social in Article 73, defined as autonomy of government (autonomía de gobierno), which is necessary so that it can fulfill the special tasks assigned to it and without interference from the Executive Branch.

In judgment No. 2011-15665 of 12:40 hours on November 11, 2011, reiterated in 2017-4797, particularly in relation to the C.C.S.S., the following was stated:

"…In this case, we are faced with a decentralized entity created by the Constitution, and whose degree of autonomy, also defined by the same Magna Carta, is of degree two, which must be understood to include the powers to formulate plans or set the entity's goals and objectives, to provide itself with internal mechanisms for functional and financial planning through budgets, and the exercise of autonomous regulatory power. This translates, in the specific case of the administration of the pension regime under the responsibility of the Caja Costarricense de Seguro Social -at least- into the power to define by itself, to the exclusion of all legislative power, three fundamental aspects of pensions: the amount of contribution quotas, the number of quotas that workers must pay to access a pension, and the retirement age. Precisely this higher degree of autonomy that the Caja Costarricense de Seguro Social has compared to the rest of the autonomous institutions explains how it has been excluded from the application of laws such as the 'Ley de la Administración Financiera de la República y Presupuestos Públicos,' Law No. 8131 of September 18, 2001. See Article 1 of said law:

"Article 1.- Scope of application This Law regulates the economic-financial regime of the bodies and entities administering or holding public funds. It shall be applicable to:

• a)The Central Administration, constituted by the Executive Branch and its dependencies.
• b)The Legislative and Judicial Branches, the Supreme Electoral Tribunal, their dependencies and auxiliary bodies, without prejudice to the principle of separation of Powers established in the Political Constitution.
• c)The Decentralized Administration and public enterprises of the State.
• d)State universities, municipalities, and the Caja Costarricense de Seguro Social, only in terms of compliance with the principles established in Title II of this Law, in matters of responsibilities, and for providing the information required by the Ministry of Finance for its studies. In all other respects, they are exempted from the scope and application of this Law (…)" This makes it evident that the Caja Costarricense de Seguro Social is always placed in a special category within the autonomous institutions, because unlike these, it is not only of constitutional creation, but it has a higher degree of autonomy, comparable to the degree of autonomy enjoyed by municipalities, which is, autonomy of government. This means a degree of protection against interference from the Executive Branch, but also limitations on the intervention of the Legislative Branch. Although certainly the CCSS does not escape the law, the latter cannot "modify or alter" the competence and autonomy constitutionally given to the CCSS, defining aspects that are its exclusive domain. The Caja Costarricense de Seguro Social, being basically an autonomous institution of constitutional creation, the matters within its competence, constitutionally given, are beyond the reach of the law. In other words, the legislator, in the case of the administration and governance of social insurances, has limitations and must respect what the Constituent Legislator established. Just as it would be prohibited for the legislator to issue a law stating that the administration and governance of social insurances no longer corresponds to the Caja Costarricense de Seguro Social, likewise, it cannot issue a law that ventures into aspects proper to or corresponding to the definition of the CCSS, in the administration and governance of social insurances. In this regard, see what this Chamber determined through resolution number 2001-010545 of 14:58 hours on October 17, 2001:

"… It is clear that the law cannot interfere in matters of governance of the Caja Costarricense de Seguro Social by virtue of the full autonomy that this institution enjoys…" (Criterion reiterated in resolution number 2001-011592 of 09:01 hours on November 9, 2011).

As an additional argument, it should be emphasized that the norm defining the functions and objectives of the Caja Costarricense de Seguro Social is located in our Magna Carta in the chapter on social rights and guarantees, while matters concerning Autonomous Institutions are located in another Title XIV; the difference in placement reflects, from a systematic and systemic interpretation, that the fundamental norm itself, by creating the institution of social security, intends to provide the person with solidary and priority protection by their very condition; it is evidently an institution that assumes the spirit of solidarity (espíritu solidario) that inspires Article seventy-four of the Constitution. The intention is that every person has the guarantee that the solidary State ensures health, pension, disability benefits, and everything related to social security. This provision becomes not only a goal or guide for State action, but also a limit in itself, by ensuring that neither the Executive Branch nor the Legislative Branch could impair said constitutional competence." Subsequently, in judgment No. 2007-18484, reiterated in 2018-6549, this Court referred to the scope of the different types of autonomy, in the following sense:

"A) Scope of the administrative autonomy of autonomous institutions, and their subjection to the law in matters of governance (…). The degree of administrative autonomy -minimum and of first degree-, is characteristic of autonomous institutions; of government -of second degree-, characteristic of municipalities and the Caja Costarricense del Seguro Social concerning the administration of social insurances; and of organization -full or of third degree, characteristic of State universities. The decentralized entity created by ordinary law is subordinate to its content and involves the legislative power to modify and even extinguish it; but since decentralization implies that all the powers of the administrative hierarch correspond to the entity, it means that its legal personality encompasses all the administrative powers necessary to achieve its purpose independently. Thus, the Political Constitution guarantees, in its ordinance 188, to every minor public entity, distinct from the State, a minimum or first-degree administrative autonomy, that is, the power to self-administer, without subjection to any other public entity and without the need for a legal norm to so provide, to dispose of its human, material, and financial resources in the manner it deems most convenient for the effective and efficient fulfillment of the tasks and objectives assigned to it. In this way, the central power has several limitations regarding its interference over autonomous institutions; thus, it cannot act as the hierarch of the decentralized entity: it cannot control it by limiting the entity's activity for reasons of opportunity; nor can it act as director of the autonomous entity's management through the imposition of guidelines or basic programs. However, as expressed by the same Article 188 of the Constitution, autonomous institutions are subject to the law in matters of governance. According to the foregoing, administrative autonomy is not incompatible with the subjection of autonomous institutions to the laws; therefore, the objectives, purposes, and goals of the entity are given by the legislator" (Emphasis is not from the original).

As indicated in the cited jurisprudential text, the CCSS, besides enjoying administrative autonomy, also holds political autonomy or autonomy of government. Hence, the Executive Branch has several limitations regarding its interference over the CCSS. It cannot act as its hierarch, cannot control it by limiting its activity for reasons of opportunity; nor can it act as director of that entity's management through the imposition of guidelines or basic programs. Likewise, regarding the autonomy of this particular institution, the Chamber, in judgment No. 1994-6256, issued a criterion reiterated in judgments 2011-15665 and 2017-4797, which states:

"III.- THE CAJA COSTARRICENSE DE SEGURO SOCIAL.- The National Constituent Assembly, as recorded in Acts No. 125 and 126, approved the inclusion of the Caja Costarricense de Seguro Social, basically following the original text of the 1871 Constitution; that is, the institution was transplanted from the 1871 Constitution, according to the 1943 modifications, to the 1949 Constitution. However, for the purposes of the consultation, the contributions of Constituent Volio Jiménez on the subject are suggestive. From page 34 of Volume III of the Acts of the National Constituent Assembly, the following is transcribed: 'Furthermore, the Caja, sooner or later, would have to assume the risk of unemployment, which will resolve the serious problem posed by layoffs. He insisted that it did not seem appropriate to weaken the Caja. The prudent thing is to strengthen it. Hence, the most advisable course is to leave things as they are, granting the Caja full autonomy to thus make it independent from the Executive Branch'; and on page 36 idem it is added: 'In that sense, the most appropriate thing is to maintain the wording of Article 63, which is good at least for the trial period. Anything that means limiting the resources of Social Security will undoubtedly be an inexplicable setback.' When the article was approved, a second paragraph was included that literally said: 'The administration and governance of social insurances shall be in charge of an autonomous institution,' a text that was later amended by Law No. 2737 of May 12, 1961, resulting today as follows: 'The administration and governance of social insurances shall be in charge of an autonomous institution, called the Caja Costarricense de Seguro Social.' In conclusion, the constituent legislator attributed the administration and governance of social insurances to the Caja Costarricense de Seguro Social, as an autonomous institution created by the Political Constitution itself, with the special characteristics that it has granted it and sharing the general principles derived from its condition as a decentralized entity…

…Doctrinally, there is a consensus in affirming that all forms of preventive intervention prior to the issuance of the act by the autonomous entity are prohibited, except for prior control functions, as a requirement for the validity of those acts (authorizations); the Central Power cannot act as the hierarch of the decentralized entity: it cannot control it by limiting the entity's activity for reasons of opportunity; nor can it act as director of the autonomous entity's management through the imposition of guidelines or basic programs. All these characteristic features of decentralized entities, which have their origin in a reinforced law (Article 189 subsection 3) of the Political Constitution), are equally applicable, where pertinent, to the autonomous institutions created by the Political Constitution itself, except that the conditions that the latter, in a special and exclusive manner, has given to the entity prevail." Hence, even regarding the hiring of its personnel, it has that power to self-administer, because the fulfillment of the objectives constitutionally assigned to it also depends on that. As an example of the particularities and needs of the service, for instance, in judgment 2019-11130 of 10:30 hours on June 19, 2019, this Court stated the following:

"In this regard, this Court verifies that this article indeed indicates that 'for the qualification of credentials and assignment of scores, the Technical Nursing Commission shall evaluate the competitions according to (…) One point shall be given for each year of service or fraction greater than six months, up to a maximum of ten points in areas outside the central plateau (…)'. However, it is not considered that this provision violates the principle of equality and, therefore, becomes unconstitutional; rather, this decision has a reasonable justification, consisting of incentivizing nursing professionals to accept positions outside the central plateau, with the incentive that in future competitions for positions located in more sought-after areas, they will have a better score. Thus, what the regulation seeks is not solely the position of best suitability (idoneidad), but rather it seeks to incentivize nursing professionals to agree to work in remote and less desirable places and, in this way, to promote the provision of nursing services, necessary for an adequate provision of medical services, in all sectors of the country. This is in accordance with the principles of social solidarity (solidaridad social).

It is clear, then, that the Constituent Legislator granted it such autonomy, allowing it the selection of its personnel under the conditions it requires to fulfill its objectives, while respecting the constitutional principles established in constitutional ordinances 191 and 192. Criterion reiterated by this Chamber in judgments numbers 03065-98, 10545-01 and 12494-11, stating:

"…it is permissible for the different establishments of the Caja, in application of the constitutional principle of autonomy of administration and governance, to dictate the necessary reorganization measures for its services for their improvement, in order to achieve the best satisfaction of its users and the general interest, which by its nature could never fail to prevail over particular interests." The autonomy that the original legislator grants to the Caja Costarricense de Seguro Social protects it from intrusion by the Executive and Legislative Branches, as evidenced in Judgment 03065-98 of 18:18 hours on May 6, 1998 (reiterated in 2001-10545), stating:

"…This makes it evident that the Caja Costarricense de Seguro Social is always placed in a special category within the autonomous institutions, because unlike these, it is not only of constitutional creation, but it has a higher degree of autonomy, comparable to the degree of autonomy enjoyed by municipalities, which is, autonomy of government. This means a degree of protection against interference from the Executive Branch, but also limitations on the intervention of the Legislative Branch. Although certainly the CCSS does not escape the law, the latter cannot 'modify or alter' the competence and autonomy constitutionally given to the CCSS, defining aspects that are its exclusive domain. The Caja Costarricense de Seguro Social, being basically an autonomous institution of constitutional creation, the matters within its competence, constitutionally given, are beyond the reach of the law. In other words, the legislator, in the case of the administration and governance of social insurances, has limitations and must respect what the Constituent Legislator established. Just as it would be prohibited for the legislator to issue a law stating that the administration and governance of social insurances no longer corresponds to the Caja Costarricense de Seguro Social, likewise, it cannot issue a law that ventures into aspects proper to or corresponding to the definition of the CCSS, in the administration and governance of social insurances… As an additional argument, it should be emphasized that the norm defining the functions and objectives of the Caja Costarricense de Seguro Social is located in our Magna Carta in the chapter on social rights and guarantees, while matters concerning Autonomous Institutions are located in another Title XIV; the difference in placement reflects, from a systematic and systemic interpretation, that the fundamental norm itself, by creating the institution of social security, intends to provide the person with solidary and priority protection by their very condition; it is evidently an institution that assumes the spirit of solidarity that inspires Article seventy-four of the Constitution. The intention is that every person has the guarantee that the solidary State ensures health, pension, disability benefits, and everything related to social security. This provision becomes not only a goal or guide for State action, but also a limit in itself, by ensuring that neither the Executive Branch nor the Legislative Branch could impair said constitutional competence." From the foregoing it is derived that the Caja Costarricense de Seguro Social (CCSS), by constitutional mandate (Art. 73), enjoys administrative autonomy and autonomy of government. This means that, as a functionally decentralized entity, it can establish the rules for the selection of its personnel, making valid in this case the existence of a special normative framework for its statutory relationship, which attends to and ensures its degree of autonomy. That degree of autonomy also allows it to self-administer (to dispose of its human, material, and financial resources); to establish its own internal organization; to set its objectives, goals, and types of means to achieve them; to issue autonomous service or activity regulations, in accordance with provisions normally called general policy. Thus, as an autonomous institution of constitutional creation and with a higher degree of autonomy (administrative and of government), it is allowed to be protected against interference from the Executive Branch and limitations when legislating by the Legislative Branch (which cannot modify, via law, its degree of autonomy). Thus, the Executive Branch cannot act as director or in a hierarchical relationship with this institution, cannot impose guidelines, give orders, or control the timeliness of its activities.

• 3)Concrete analysis of what has been consulted Regarding Article 2.b.- Scope of coverage concerning the CCSS (drafted by Justice Picado Brenes) The petitioners allege that subsection b) of Article 2 of the bill under review, insofar as it includes the CCSS within its scope of application, injures constitutional Articles 73 and 188, by subjecting this institution, which holds constitutional administrative autonomy and autonomy of government, to the matter of public employment. In this regard, in the same sense that the constitutionality of this norm has been upheld with respect to other institutions, Article 2 subsection b) is not by itself unconstitutional insofar as it includes the CCSS in a general regulatory framework for public employment, but it is unconstitutional by its effects since some of the norms of this bill empty its autonomy of government of content, as will be seen specifically in the following sections. It should be recalled that, as established by Article 3 of the Ley de la Jurisdicción Constitucional, "The Political Constitution shall be deemed infringed when this results from the confrontation of the text of the norm or questioned act, its effects, or its interpretation or application by public authorities, with constitutional norms and principles." That is, a norm can be unconstitutional, not for what it textually says, but for the effects it produces or would produce. Returning to what was set forth supra, it is plausible to subject all powers and institutions of the State to a single statute of public employment. However, to the extent that such subjection goes beyond general principles and ventures into matters proper to the autonomy of government of the CCSS, such subjection is unconstitutional by its effects, because it is not possible to subject a constitutional institution with a degree of autonomy like the one held by the CCSS to directives, provisions, circulars, and manuals issued by Mideplán. The degree of special protection of the CCSS, which arises from its degree of autonomy, makes the subjection of the CCSS to this general bill on public employment unconstitutional by its effects. "Although certainly the CCSS does not escape the law, the latter cannot 'modify or alter' the competence and autonomy constitutionally given to the CCSS, defining aspects that are its exclusive domain." (Judgment No. 2011-12494). In conclusion, although the CCSS may be subjected by law to a general normative framework for public employment, to the extent that such normative framework violates its autonomy of government, as in effect do Articles 6, 7, 9, 13, 14, 17, and 18 of the bill, these being the norms that were consulted, said subsection b) of Article 2 of the bill would be unconstitutional by its effects.

Regarding Article 6.- Power of Direction of Mideplán concerning the CCSS (drafted by Justice Castillo Víquez) Article 73 of the Political Constitution assigns to the CCSS the administration and governance of social insurances. For this purpose, as can easily be deduced, matters relating to this -the setting of goals and objectives-, as well as the setting of employer-worker contributions, have as a logical consequence, from a legal perspective, that the Executive Branch or one of its bodies -Mideplán- cannot exercise the power of direction (potestad de dirección) -to dictate directives- or the regulatory power. This position is constitutionally valid regarding the matter of public employment, specifically that officialdom indispensable to fulfill the constitutionally assigned objectives, as well as the administrative, professional, and technical personnel, which the highest authorities of the CCSS define in the respective job family that they will be responsible for constructing exclusively and to the exclusion of others. The foregoing means that some public employees of that entity, those performing basic, auxiliary administrative functions, could indeed fall under the stewardship of the Executive Branch or Mideplán. Adopting these premises as a roadmap, after reviewing the jurisprudence of this Court, an analysis of the norms being consulted will be conducted.

On repeated occasions, as indicated in Judgment No. 2011-14624 of 15:50 hours on October 26, 2011, this Court has noted that the Caja CCSS enjoys administrative autonomy and autonomy of government, in accordance with Article 73 of the Political Constitution, and therefore can issue provisions related to its internal regime. The Ley Constitutiva de la Caja Costarricense de Seguro Social, number 17 of October 22, 1943, published in La Gaceta number 329 of October 27, 1943, in Article 70 establishes the following:

"The Administrative Career (Carrera Administrativa) of the Caja Costarricense de Seguro Social is hereby created, to regulate which (sic), the Board of Directors shall establish the conditions concerning the entry of employees into the service of the Institution, guarantees of stability, their duties and rights, the manner of filling vacancies, promotions, causes for removal, scale of sanctions, procedure for the judging of infractions, and other necessary provisions…".

On the other hand, Article 14 subsection f) endows the Board of Directors of the CCSS with the power to regulate the functioning of the institution, in such a way that it confers the power to dictate norms, including to regulate the regime of officials that the institution requires for the fulfillment of the responsibilities assigned to it by the Political Constitution and its Ley Constitutiva, and this is not unconstitutional, as indicated in that precedent:

"…In this context, the possibility that the Institution establishes by itself the different types of labor relationships with its officials, whether by statutory relationship or subject to special figures, such as the case of the Reglamento de Reclutamiento y Selección de Profesionales en Farmacia, Odontología y Trabajo Social, is not unconstitutional. The Caja Costarricense de Seguro Social can establish the rules for the selection of officials who occupy positions in said institution, but respecting the specific objectives in the provision of the public service of the Caja Costarricense de Seguro Social (Articles 73, 191, and 192 of the Political Constitution). By virtue thereof, Article 21 of the Ley Constitutiva establishes the following: 'Article 21.- The Personnel of the Caja shall be integrated based on proven suitability (idoneidad comprobada), and category promotions shall be granted taking into account the merits of the worker in the first instance and then, seniority in the service.' From the foregoing, as well as from the reading of constitutional numeral 191, it is clear that the unavoidable rule consists precisely in that public officials must be governed by a statutory employment relationship (relación laboral estatutaria), that is, by rules imposed by the Administration in its capacity as employer, in consideration of the efficient and effective provision of the public services that each administrative body is called upon to offer. Even if the constituent legislator had envisioned a single statutory system, the truth is that the final wording given to Article 191, as well as the process of profound decentralization that the Costa Rican State experienced starting in nineteen forty-nine, means that in our days the existence of diverse statutory relationships in the Administration is valid, in consideration of the functional independence and administrative autonomy that the legal order ensures for several public institutions." (Vote No. 12494 of 12:48 hours on November 11, 2011).

Corollary to the foregoing, the original Constituent Legislator foresaw the issuance of a single statute to regulate public employment relationships; however, the legislator opted to approve different statutes, which, according to precedents of this Court, are valid provided that the principle of suitability (idoneidad) and stability in public employment is respected. In the bill under review, the legislator opts to create a single statute to regulate service relationships throughout the entire Public Administration, which is also in conformity with the Law of the Constitution. However, in relation to certain entities, such as the CCSS, due to its degree of autonomy, even the legislator himself cannot subject it to orders, directives, and regulations from a body of the Executive Branch, because this goes against the degree of autonomy and guardianship conferred by the Political Constitution upon this institution.

The Constituent Legislator himself established the existence of exceptions to that single regulation, precisely because what is not equal cannot be equated, nor can the scope of autonomy that certain institutions, such as the CCSS, have be harmed, given that these possess certain special characteristics that differentiate them reasonably from the rest of the administration, precisely to fulfill the objectives that were constitutionally entrusted to them.

In relation to Article 6, it is unconstitutional, because the power of direction is not excluded for officials who participate in activities linked to the constitutionally assigned objectives of the CCSS, and those who hold positions of high political direction, as well as all that administrative, professional, and technical officialdom, that the highest bodies of the insuring entity establish.

Therefore, the provision is only constitutional insofar as it pertains to basic administrative, auxiliary personnel, which would fall within the job family (familia de puestos) pursuant to section 13, subsection a) of the bill.

Regarding Article 7.— Powers of Mideplán with respect to the CCSS (drafted by Justice Castillo Víquez) In relation to Article 7, the same criterion set forth regarding section 6 is maintained; furthermore, it subjects the CCSS to the regulatory power of Mideplán in matters where the CCSS holds an exclusive and exclusionary power to achieve the constitutional purpose assigned by the original constituent power.

Regarding Article 9.— Human Resources Office in the CCSS (drafted by Justice Picado Brenes) The provision under review states as follows:

“ARTICLE 9- Functions of the active administrations a) The offices, departments, areas, directorates, units, or equivalent human resources management designations of the institutions included in Article 2 of this law shall continue to perform their functions in accordance with the relevant regulatory provisions in each public agency.

Likewise, they shall apply and execute the general provisions, directives, and regulations, in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management, that the Ministry of National Planning and Economic Policy (Mideplán) sends to the respective institution, pursuant to Law 6227, General Law of Public Administration, of May 2, 1978, and Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.

• b)It is the responsibility of the offices, departments, areas, directorates, units, or equivalent human resources management designations to prepare and administer knowledge, competency, and psychometric tests for the purposes of personnel recruitment and selection processes, to conduct internal and external competitive examinations based on qualifications and merit, which must always comply at least with the standards established by the General Directorate of Civil Service for each position, according to its scope of competence, and the guidelines issued pursuant to Article 46 of Law 2166, Public Administration Salary Law, of October 9, 1957.

Additionally, to incorporate said competitive examinations into the public employment offer of the Public Administration and to verify that public servants receive proper induction regarding the duties, responsibilities, and functions of the position, as well as the general ethical duties of public service and the specific ethical duties of the institution and position.

• c)The institutional human resources management offices of ministries and institutions or attached bodies under the scope of application of the Civil Service Statute are technical units of the General Directorate of Civil Service which, for all purposes, must coordinate the preparation of personnel recruitment and selection tests with such offices and perform their advisory, training, and technical support functions.” As observed, Article 9 under review establishes certain functions for all offices, departments, areas, directorates, or human resources units of all institutions included in the bill, including the CCSS Personnel Management Directorate and Administration. Thus, with regard specifically to the consultation made concerning the CCSS, the second paragraph of subsection a) imposes upon said department the obligation to apply and execute the general provisions, directives, and regulations, in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management, that Mideplán sends to it. This would imply that an organ of the Executive Branch, such as Mideplán, imposes upon this Institution with political autonomy the application and execution of its provisions, directives, and regulations, in matters that are the exclusive purview of said institution, such as planning, work organization, employment management, performance management, compensation or salary management, and labor relations management. Such an obligation for the CCSS human resources directorate clearly constitutes a violation of its political autonomy, according to the scope that constitutional jurisprudence has given it. It should be recalled that, specifically regarding the CCSS, this Chamber has stated: “with respect to a decentralized entity created by the Constitution, and whose degree of autonomy, also defined by the same Magna Carta, is of degree two, this must be understood to include the powers to formulate plans or set the entity's purposes and goals, the power to establish its own internal mechanisms for functional and financial planning through budgets, and, the exercise of autonomous regulatory power.” Therefore, “the Caja Costarricense de Seguro Social is always placed in a special category among autonomous institutions, because unlike these, it is not only of constitutional creation, but also has a greater degree of autonomy, comparable to the degree of autonomy enjoyed by municipalities, which is, autonomy of government. This signifies a degree of protection against interference from the Executive Branch, but also limitations on the intervention of the Legislative Branch.” (ruling no. 2011-15665 and no. 2017-004797). Among those limitations that both the Executive Branch and the Legislative Branch have with respect to the CCSS is that “the Caja Costarricense de Seguro Social can establish the rules for the selection of officials who occupy positions in said institution…” (ruling no. 2011-14624). Given that, “the central power has several limitations regarding its interference over autonomous institutions; thus, it cannot act as the hierarchical superior of the decentralized entity: it cannot control it by limiting the entity's activity for reasons of opportunity; and it also cannot act as director of the management of the autonomous entity through the imposition of guidelines or basic programs.” (ruling no. 2007-18484 and no. 2018-006549). This is because, “although the CCSS is certainly not exempt from the law, the latter cannot ‘modify or alter’ the competence and autonomy constitutionally granted to the CCSS, defining aspects that are its exclusive purview. The Caja Costarricense de Seguro Social, being basically an autonomous institution of constitutional creation, has its constitutionally granted area of competence placed outside the action of the law. Stated otherwise, the legislator, in the case of the administration and governance of social security insurance, has limitations and must respect what the Constituent Power established.” (ruling no. 2011-12494). Thus, the Executive Branch cannot act as director or in a hierarchical relationship before this institution, and cannot impose guidelines, orders, or control the timeliness of its activities upon it. Therefore, Article 9 in question is unconstitutional for seeking to subject the CCSS human resources department to applying and executing the general provisions, directives, and regulations, in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management, that Mideplán sends to it.

Regarding Article 13.b.— Job Family (Familia de Puestos) with respect to the CCSS (drafted by Justice Castillo Víquez) Regarding Article 13, subsection b) is unconstitutional for not including in said subsection the employees performing substantial, administrative, professional, and technical tasks necessary to achieve the purposes constitutionally assigned to the CCSS, in the terms explained in the general whereas clause (considerando) and above.

Regarding Article 14.— Recruitment and Selection at the CCSS (drafted by Justice Picado Brenes) The petitioners state that the political autonomy of the CCSS is harmed by seeking to subject it to the provisions issued by an organ of the Executive Branch regarding the recruitment and selection of its personnel. Section 14 in question provides as follows:

“ARTICLE 14- Recruitment and selection The recruitment and selection of newly entering public servants shall be carried out based on their proven suitability, for which the Ministry of National Planning and Economic Policy (Mideplán) shall issue, in strict compliance with Law 6227, General Law of Public Administration, of May 2, 1978, the general provisions, directives, and regulations, according to the respective job family (familia de puestos).

In the recruitment and selection processes, an applicant who finds themselves in any of the following situations may not be chosen:

• a)Being related by consanguinity or affinity kinship in the direct or collateral line, up to the third degree inclusive, to the immediate supervisor or to the immediate superiors of the latter in the respective agency.
• b)Being listed in the registry of ineligible persons of the integrated public employment platform.” Just as has already been duly established, pursuant to the provisions of sections 2 and 13 of the same bill, and according to the provisions of this Article 14, the CCSS would also be subject to the general provisions, directives, and regulations issued by Mideplán regarding the recruitment and selection of newly entering personnel, which is unconstitutional. Article 73 of the Constitution clearly states that “the Caja Costarricense de Seguro Social is always placed in a special category among autonomous institutions, because unlike these, it is not only of constitutional creation, but also has a greater degree of autonomy, comparable to the degree of autonomy enjoyed by municipalities, which is, autonomy of government. This signifies a degree of protection against interference from the Executive Branch, but also limitations on the intervention of the Legislative Branch.” (ruling no. 2011-15665 and no. 2017-004797). Furthermore, this Chamber has clearly indicated that “the Caja Costarricense de Seguro Social can establish the rules for the selection of officials who occupy positions in said institution,…” (ruling no. 2011-14624). In this sense, any external interference from another power in the CCSS’s own affairs, harming its autonomy, is invalid. Under this understanding, it is not possible to allow an organ of the Executive Branch, in this case Mideplán, to impose upon the CCSS provisions relating to the recruitment and selection processes of its personnel, a matter which, as has been pointed out, is inherent to the degree of autonomy enjoyed by this constitutional institution. Consequently, this section contains a defect of unconstitutionality, insofar as it is applicable to the CCSS.

Regarding Article 17.— Senior Management Positions (Puestos de Alta Dirección) at the CCSS (drafted by Justice Picado Brenes) The article under review establishes the following:

“ARTICLE 17- Senior public management personnel The Ministry of National Planning and Economic Policy (Mideplán) shall issue the general provisions, directives, and regulations, regarding senior public management personnel, which are consistent with Law 6227, General Law of Public Administration, of May 2, 1978, to provide the Public Administration with profiles of integrity and proven management, innovation, and leadership capacity, to seek the improvement of the provision of public goods and services. (…)” The petitioners point to the harm to the CCSS’s autonomy of government, because this provision states that, in the case of senior management positions (puestos de alta dirección), Mideplán shall issue the general provisions, directives, and regulations in that regard.

In this respect, in the same sense in which this Chamber has been resolving these aspects, the interference of this Ministry, which is an organ of the Executive Branch, issuing general provisions, directives, and regulations to the CCSS concerning senior management positions is a violation of its autonomy of government. The regulation of everything pertaining to senior management positions already has special regulation in the internal regulations of the CCSS itself. It should be recalled that this Chamber has indicated that the CCSS “can establish the rules for the selection of officials who occupy positions in said institution, but respecting the specific purposes in the provision of the public service of the Caja Costarricense de Seguro Social (Articles 73, 191, and 192 of the Political Constitution).” (ruling no. 2011-14624). The Executive Branch “…has several limitations regarding its interference over autonomous institutions; thus, it cannot act as the hierarchical superior of the decentralized entity: it cannot control it by limiting the entity's activity for reasons of opportunity; and it also cannot act as director of the management of the autonomous entity through the imposition of guidelines or basic programs.” (ruling no. 2018-6549). It should be noted that these are positions of great importance as they would refer, at least, to those who direct the various Managements and Directorates, among others. These are positions of great relevance for the faithful fulfillment of the social security purposes assigned to the CCSS, which must be particularly protected from interference by other Branches of the Republic, and which require the personnel stability necessary for an adequate and impartial performance of the office, which is incompatible with subordination to the provisions issued by Mideplán in this regard, as stipulated by the provision in question. Therefore, it is considered that there is a defect of unconstitutionality in Article 17 under review, in the terms set forth.

Regarding Article 18.— Terms for Senior Management Personnel at the CCSS (drafted by Justice Picado Brenes) In the opinion of the petitioners, Section 18 under review is unconstitutional because it affects a matter that is the CCSS’s own competence, by establishing that, in the case of technical senior management positions, the appointment shall be for 6 years with a probationary period of 6 months, renewable annually, subject to performance evaluation. Article 18 under review provides as follows:

“ARTICLE 18- Appointment and probationary period for senior public management Any public servant appointed to a senior public management position shall be on probation for a period of six months, and their appointment shall be made for a maximum of six years, with the possibility of annual extension, which shall be subject to the results of the performance evaluation. (…)” On this point, the regulation of aspects relating to personnel appointment and selection, as also occurs with technical senior management positions, the probationary period, term or conditions for extension of appointments, are regulations that are inherent and pertain to the CCSS’s political autonomy. It is understood that the technical senior management positions, defined by the institution itself, are strategic positions of great importance for its proper organization, such as the various Directorates of Planning, Actuarial, Personnel Management; and the various Administrative, Financial, and Medical Managements, among others. In view of this and the specific purposes of this constitutional institution, it is for the institution itself to assess the needs of the service it provides and determine the conditions under which those positions must be filled, in order to fulfill the constitutional purposes assigned to it, respecting the recognized degree of autonomy, provided it adheres to the principle of suitability. In its case, for example, the suitability of the appointment period for these positions or the conditions for extension could be subject to a condition of greater stability in the position, such as that guaranteed in Constitutional Section 192. All in accordance with its internal regulations, and not a generic regulation as sought in this bill. The definition of such conditions is the exclusive competence of this specialized constitutional institution. Thus, in the terms in which Article 18 under review is drafted, it contains a defect of unconstitutionality for violating the political autonomy of the CCSS, which is exclusively responsible for defining the conditions under which its senior management positions must be performed.

• 4)Conclusion In the terms indicated and in accordance with the jurisprudence of this Chamber, the following articles of the “PUBLIC EMPLOYMENT FRAMEWORK LAW” bill, processed under legislative file no. 21.336, are unconstitutional.

Having analyzed all the aspects under review regarding Article 2 (subsection b), 6, 7 (subsection d), 9 (second paragraph of subsection a), 13 (subsection b), 14, 17, and 18, of the bill called “PUBLIC EMPLOYMENT FRAMEWORK LAW” legislative file no. 21.336, this Chamber verifies that such provisions are contrary to the Law of the Constitution, due to violation of the constitutionally protected autonomy of government of the CCSS (Constitutional Art. 73) of this institution. Articles referring to the following: 6 (governing authority of the General Public Employment System vested in Mideplán), 7 (broad powers of Mideplán to turn it into a kind of superior hierarchical authority with regulatory powers over the entire state apparatus regarding public employment), 9 (the subjection and subordination of human resources offices to Mideplán and the General Directorate of Civil Service), 13 (regarding a single general public employment regime composed of eight families), 14 (recruitment and selection based on regulatory provisions of Mideplán), 17 and 18 (senior public management personnel subject to a single probationary period term and a single appointment term). In the case of the Caja Costarricense de Seguro Social, due to its degree of autonomy, even the legislator itself cannot subject it to the orders and regulations of an organ of the Executive Branch, as this goes against the degree of autonomy and guarantee conferred by the Political Constitution to this institution. All these provisions of the bill have an impact on the exercise of the CCSS’s functions. This Chamber has established the scope of this autonomy, indicating that the CCSS was given full autonomy to make it independent from the Executive Branch (see ruling no. 2011-15665). Certainly, from the examination of the provisions under review, it is observed that the “General Public Employment System” that places the Ministry of National Planning and Economic Policy (Mideplán) as its governing body invades the CCSS’s sphere of autonomy of government. Demonstrating that this governing authority goes beyond the regulation of an activity, and actually constitutes a relationship of direction and subordination, with the issuance of specific directives and regulations on the matter.

• 5)Reasons and notes regarding the consultation with respect to the CCSS a) Separate note of Justice Castillo Víquez regarding the CCSS Regarding the autonomy of the Caja Costarricense de Seguro Social, there are other considerations, for, with respect to the autonomy of government guaranteed to it by the Law of the Constitution, the partial reform to the Fundamental Charter of Section 188, effected by Law No. 4123 of May 30, 1968 –approved in its first legislature by means of Law No. 4097 of April 30, 1968– introduced an affectation upon it, but not its disappearance, as will be explained further below.

The Caja Costarricense de Seguro Social, like the rest of the autonomous institutions, was guaranteed autonomy in administrative and governmental matters by the original Constituent Power. However, in the nineteen-sixties, under the intellectual impetus of the great Costa Rican Rodrigo Facio Brenes, Benemérito de la Patria, who published a study on economic planning in a democratic regime, doctrine, foreign experiences, and some ideas for establishing them in Costa Rica in 1959, the conclusion was reached that it was necessary to limit the autonomy of government enjoyed by the autonomous institutions in order to subject them, principally, to the National Development Plan. For him, it was necessary to achieve coordination and planning between the Central Government and the autonomous institutions. For this constituent of 1949, administrative decentralization by service was crucial for democratic life – it avoids the concentration of power – for administrative efficiency – preeminence of technical criteria over political criteria – and by subjecting these entities to coordination and planning, the autonomous regime remained intact. Years later, the experience likely suffered by the Legislator at the time of approving the Planning Law, Law No. 3087 of January 31, 1963, in the sense that it could only subject those autonomous institutions to economic planning that voluntarily agreed to it, proved frustrating. The reaction was not long in coming, and in 1965, deputies from various political parties presented a constitutional reform proposal with the purpose of subjecting the autonomous institutions to the National Development Plan. In said proposal, the following was stated:

“If there is any provision of our Fundamental Charter that is in need of reform, it is Article 188. Said article confers upon the autonomous institutions independence in matters of government and administration, with only two limitations: the need for a vote of no less than two-thirds of the totality of the members of the Legislative Assembly for their creation, and the intervention of the Office of the Comptroller General of the Republic in the financial aspects of their operation. Said provision says nothing about the relations that must exist between the Central Government and the autonomous institutions, this being a matter that completely escaped the foresight of the constituent power delegates of 1949.

Sixteen years later, it is possible to realize that the formula conceived to give constitutional rank to the autonomous regime presents the following flaws:

1.- By placing a barrier to the excessive growth of central power and budget, for the purposes of protecting freedom and honesty in the management of the Public Treasury, the other interest that any form of organization must satisfy was totally ignored: the efficiency of the administration. This interest requires the limitation of the autonomy of institutions, when they relate to each other and to the State itself.

2.- By granting independence in matters of government and administration in absolute terms, the State was weakened more than necessary, by allowing, indiscriminately, the possibility for each institution to act with a unilateral criterion against and outside of national needs.

A true administrative feudalism was thus created.

3.- There is unanimous recognition that the State is one, even though it is divisible and even though there exist within it several institutions vested with authority. This State unity requires not only community of origin, but also harmony of functioning, to achieve which it is necessary to prevent any institution from being able to expand in a way that disturbs the others, or to withdraw into its own specialty, with total ignorance of national interests.

4.- To make the unity of the State real, the coordination and oversight of the autonomous institutions is absolutely necessary. Oversight is indispensable to prevent institutions from violating the law or neglecting the public interest entrusted to them for the benefit of the community; and coordination, so that they give their maximum contribution to the realization of those plans that encompass them in conjunction with the Central Government or other institutions. The classic instruments for articulating the State with minor public entities are planning and control. It is absolutely necessary that the State be able to plan the life of the institutions, setting general goals for their activity, and that it be able to influence their conduct, exercising over them the proper controls.

5.- The State’s tutelage over institutions cannot and must not be uniform. The institutions and their classes are many; their economic power and purpose are diverse; the legal means available to them to fulfill their objectives, the origin of their assets, and the system of their organization are different. This multiple institutional reality must be taken into account for the exercise of the powers of direction and control by the State, in order to establish between them, diverse degrees and means of control. But, as long as a provision exists like the current text of Article 188, which, without distinctions or nuances, imposes upon all autonomous institutions a regime of total independence, it is absolutely impossible to carry out a regime of adaptation to the nature of each one of them.

6.- It is urgent to establish in Costa Rica a regime that takes into account the radical difference of interests and modes of functioning that must exist between economic institutions of an industrial and commercial type, and institutions with an assistance purpose for developing education, health, or the protection of children. That regime must reflect the different position held before the State and the community by those entities that have their own resources and deliver parts of their profits to the State, and those that live on subsidies granted in the National Budget and represent a heavy burden upon it. It must also distinguish the state relations carried out with monopolistic entities from those engaged with entities that participate in the free market, those that occur with service institutions, from those that take place with entities for the promotion or oversight of private activity.

For all these reasons, we believe that reform is indispensable, not only to save the unity of the Costa Rican State, but also to make effective the right of citizens for state entities to have an adequate and efficient functioning, and for them to be structured into a single apparatus at the service of the community.” (The bold text is not in the original). This proposal was archived (see legislative file no. 2537, archive no. 4271).

The idea of the rejected proposal is taken up again in the initiative to reform the Fundamental Charter presented by the Fraction of the Partido Liberación Nacional on several of its articles, among which was Section 188. “We include the reform proposed last year by a group of deputies from different parties to the concept of autonomy. Upon creating institutions of this type, the Constituent Power Delegates of 1949 did not foresee the need for different degrees of autonomy to exist, in accordance with the nature of the function of the institutions. The Costa Rican experience has indicated the need for that gradation, but this cannot be achieved unless it is through this constitutional reform” (see folio 6 of legislative file no. 3631). From a reading of what has been able to be reconstructed from the legislative file – the document of these important reforms was lost many years ago – as well as other legislative documents to which we have had access, it is clear that the intention of the Reforming Power, with this reform, was to subject the autonomous institutions to national planning, specifically to the National Development Plan, including the Caja Costarricense de Seguro Social. It is in this context that the intervention of Deputy Gutiérrez Gutiérrez must be interpreted in response to the question posed directly by Deputy Carmona Benavides, regarding whether it was necessary to modify Section 73 of the Political Constitution in order to subject the insurance entity to the constitutional reform, to which the former responded that, for the purposes of the reform, the sole modification of Constitutional Article 188 was sufficient (see legislative file no. 3631). Indeed, from the minutes of the Plenary Session of April first, 1968, of the intervention of Deputy Hine García, it is clear that the objective of the reform was “(…) to ensure that this decentralized system is located without any difficulty within the national plans developed by the Planning Office, to achieve the orderly functioning of ‘public affairs.’” I have already said on another occasion that it is inconceivable in the Modern State, and cannot be accepted by Costa Ricans, that in Costa Rica a system could eventually be established through plans that precisely seek efficiency and development, and that eventually one of the important autonomous institutions—all of them are, but the importance of things is also relative—one of the most important could eventually withdraw from those plans, producing the disturbances, clashes, and difficulties that are to be expected.

Now, within this idea of the need for the Constitution to clearly establish what we understand and desire the Autonomous Institutions to be, it is essential to bear in mind that we must at least preserve, above all things, the concept of independence in matters of government: because if we establish, as we must, that the directors of the autonomous institutions are responsible for their management, this requires, and is precisely a consequence of, the prior existence of independence in matters of government, for therein lies a responsibility for having developed institutional policy in a mistaken manner, or in a way that does not correspond to the concept of efficiency that the operation of Public Administration must always have.

If one has an understanding of what the Government of the Autonomous Institutions is—which is nothing other than the setting of the policy to be developed within the institutional and legal framework that corresponds to an institution—then it is understood that it is entirely proper to maintain the concept of independence in matters of Government; if, for example, the INVU, which is an autonomous institution whose organic specialty, whose function is the construction of houses, the INVU, by its organic law, has a task to fulfill, which is to build houses, but it is inconceivable that, with a national planning effort in place, the INVU could channel its institutional effort, so to speak, into anything else that would mean a clash with the plans that have been developed organically and in accordance with what is understood by the public interest.

But within this organic specialty of the building of houses, the autonomous institution, its Board of Directors, must have independence to develop that policy, just as there is independence within the sphere of the Central Government, in the different Ministries, and each Minister is responsible for what is developed within his Ministry, and it is inconceivable that a Minister, a Ministry of Transport, would invade the sphere of a Ministry of Agriculture; likewise, it cannot be conceived that a decentralized organization could eventually invade fields that are forbidden to it, if its organic law allows such intrusion, which could potentially mean a conflict with the sphere of action of another decentralized organization. But it is necessary, because we are speaking at the constitutional level, that independence in matters of government be properly established within the highest form of decentralization, which the autonomous institutions must have, in order to be consistent with the responsibility that falls upon the Directors who carry out that management.

Now, if that independence in matters of Government exists, there must also exist the constitutional obligation that imposes the very duty of concurrent progress with the plans being developed, to establish with even greater clarity where responsibility may eventually lie for the members of the Board of Directors who have developed a policy that clashes with this concurrent national effort, coordinated toward an end that is nothing other than the development and the greatest benefit of Costa Ricans." (The bold text is not in the original).

In this legislative debate, the participation of Deputy Volio Jiménez is of the utmost importance for clarifying the purpose of the constitutional reform concerning the autonomous institutions. In this regard, he stated the following:

"I first draw attention to the fact that time is passing, and we have, I believe, too many proposed texts, and we may not be able to pass the most important proposed reforms in this legislative session. Last week, on Friday, at the end of that week, it had been possible to reconcile viewpoints and propose a concise wording based on a text proposed by Deputy Villanueva Badilla.

I believe that this text reconciles the different viewpoints, because what is at stake is to ensure that in matters of government the autonomous institutions are governed by the law; and the formula proposed by Deputy Villanueva Badilla, amended according to the observations made on Friday, achieves the desired purpose. It is not a matter of reforming the Constitution so that administratively the autonomous institutions are also subject to a State planning program in public affairs.

It is solely a matter of achieving coordination, I repeat, in the matter of Government; DEPUTY HINE GARCÍA: Thank you very much, Deputy Volio. I would like, since you mention Deputy Villanueva's motion, I would like you to clarify something for me, which is the following: Deputy Villanueva Badilla's motion also pursues the objective that concerns us, but it says: "and is subject to the law in matters of Government," plain and simple; for me this is very dangerous because through that plain subjection to the law, as the motion has it, it is possible to eventually eliminate independence in matters of Government, and it is possible to turn the autonomous institutions into empty shells of activity. It is possible, because of this, to weaken the decentralized institutional system, which is what I believe we must guarantee. I would be grateful, because it would greatly reassure me, if you could clarify for me the scope that this formula could have, in practical operation over the years, because by being subject to the law in matters of government, it could then be said, eventually in the future, that the autonomous institutions, through ordinary legislation, could be undone, left as empty shells as their possibilities for independent action are gradually taken away.

DEPUTY VOLIO JIMÉNEZ: I understand, Mr. Deputy, the motion not in the sense that the legislator in the future could destroy an institution, because if that were the intention, reference would not even be made in the motion to the problem of government. What is desired is that the legislator consider the need to coordinate the activity of these institutions, in terms of the country's economic and social development.

However, since I am not the author of the motion, your question, in the first instance, must be answered by Deputy Villanueva Badilla; but I insist on the need for us to dedicate ourselves today to making decisions; and if it were necessary to present a motion to achieve that end, a procedural motion; of course I would present it immediately, but I believe that if the Directorio decides to put the motions on Article 188 up for discussion, in the order of their presentation, we could achieve the same end, on the understanding that there was a consensus in the Assembly in favor of making those decisions, examining the proposed texts one by one." (The bold text does not correspond to the original).

Thus, when the reform of constitutional numeral 188 was approved, there is no doubt that the Caja Costarricense de Seguro Social was made subject to the National Development Plan on the terms defined by Law. The foregoing means that the aforementioned reform did not completely affect the autonomy of government that the Caja Costarricense de Seguro Social has over social insurance. It is a partial affectation of the political autonomy of the insurance entity, whose objective was precisely to give depth to the ends and objectives of the State as a whole, with the derived constituent power solving a very justified concern from within the Political Constitution, through what we know today as the guiding principles of all Public Administration: the principles of unity and coordination of the State. Its strength naturally comes from the effective fulfillment of the common good, and it constitutes the frontier of the autonomy of the autonomous institutions, with the need for coordination but without disengaging from the respective competencies assigned by the Constituent Power, conceived precisely to give that aforementioned depth.

In that order of ideas, there is no doubt whatsoever that the Legislative Assembly has competence, in the exercise of the power to legislate, to regulate the matters placed under the purview of the autonomous institutions, including those corresponding to the Caja Costarricense de Seguro Social, provided it does not empty the content of the essentially technical competencies that the original Constituent Power assigned to it. The competence of Parliament to regulate the competencies of the autonomous institutions is clear from the discussion of numeral 190 in the National Constituent Assembly. Indeed, it is worth remembering that it was the Social Democratic Fraction that presented, as part of the title relating to autonomous institutions, the following rule: "(…) No bill of law relating to matters entrusted to an Autonomous Institution may be discussed in the Legislative Assembly without the respective Institution having rendered a report on the matter. Said report must be obligatorily included and published as one of the recitals (considerandos) of the law that is approved." (A.A.C.: volume III; p. 465). Note that what relates to a qualified majority for approving a bill where there is a negative opinion from the Institution is no longer proposed. We assume that the adverse votes in the National Constituent Assembly in the cases of the University and the Technical Body responsible for determining the monetary unit dissuaded the members of the Social Democratic Fraction from presenting that initiative.

The reasons for this regulation are offered by Facio Brenes when he states: "(…) through it, what is sought is to oblige the essentially political body that is Congress to listen to the voice of the autonomous institutions in those matters that affect them." (A.A.C.N.: volume III; p. 467).

The reasons why this article was not approved in the proposed form were:

"Representatives Arroyo, Vargas, Fernández, and Esquivel expressed disagreement. The first stated that it was not possible to continue taking powers away from the Legislative Assembly, obliging it to consult all the autonomous institutions of the state. The Assembly integrates from its bosom various commissions that have the obligation to consult and document themselves properly regarding matters entrusted to them. If a bill related to an autonomous institution is presented, it is logical that those bodies will be consulted. The second indicated that the motion under debate introduces a new system, since if an autonomous institution does not render the respective report, the Legislative Assembly cannot hear the bill. The third stated that he would not vote for any motion that was to the detriment of the powers of the Legislative Assembly, the highest representation of the people in our political system, obliging it to even include in the recitals (considerandos) of the law that is approved the Report of the Autonomous Institution" (A.A.N.C.: volume III; p. 473).

As a result, Representative Chacón Jinesta suggested a new wording:

"for the discussion and approval of projects relating to an Autonomous Institution, the Legislative Assembly must hear the opinion of that institution" (A.A.N.C.: volume III, p. 473).

Deputy Facio Brenes, on behalf of his colleague, decided to withdraw the motion, and ultimately the proposal of Deputy Chacón Jinesta was voted upon.

From the above discussion, we can conclude that those who were the drafters of the current Political Constitution were quite clear that matters placed under the competence of the autonomous institutions could be subject to regulation by the Legislative Assembly, provided they were consulted. This position is reinforced by the argument that if Parliament can regulate matters placed under the competencies of the State Universities (Article 88 of the Political Constitution), or directly related to them, which hold a third-degree autonomy—self-normative (autonormativa)—, a fortiori it also has competence to regulate matters that are proper to the autonomous institutions, including those corresponding to the Caja Costarricense de Seguro Social. This idea is also present in the discussion of Article 73 of the Fundamental Charter in the National Constituent Assembly, since in Act No. 125, Deputy Facio Brenes points out that these institutions "(…) although autonomous, cannot completely detach themselves from the State. Otherwise, it would be creating new States within the State." For his part, Deputy Ortiz Martín expressed that the legislators should point out the path for the Caja Costarricense de Seguro Social to follow "(…) and it, in an autonomous manner, must operate within those laws." From what we have said, a necessary conclusion is drawn, and that is that the Executive Branch, through the National Development Plan, and the Legislative Assembly, in the exercise of the power to legislate, are legally enabled, in the first case, to set goals and objectives for the Caja Costarricense de Seguro Social, and in the second, to regulate the matters that correspond to it, provided, in this latter case, that the essential content of the competencies attributed by the original Constituent Power is not emptied. Applying by analogy the theory of institutional guarantee, which has been designed by doctrine for another scenario: the constitutional reserve of the Administration, which implies that certain activities, which are sovereign public functions, must necessarily be developed by the Administration, as it is regulated by the Constitution, and necessarily under a Public Law legal regime, except for auxiliary or instrumental activities. In the case of the Caja Costarricense de Seguro Social, there are essential technical matters of its exclusive and exclusionary competence that cannot be emptied by the legislator. The foregoing means, by way of example, that the Legislative Assembly, in a Law, cannot oblige the Caja Costarricense de Seguro Social to build the intended hospital in a specific location, or dictate how to develop primary, secondary, or tertiary care of the hospital system, what the amount of the worker-employer contribution or the State's contribution to social security should be, the retirement age, the pension amount, its calculation formula, etc. In all these cases and others—subjecting the staff of the Caja Costarricense de Seguro Social, essential to fulfilling its constitutionally assigned purpose, to the power of oversight (potestad de dirección), as explained in the advisory opinion—we are facing a matter not available to the legislature, or as national doctrine has well stated, a constitutional content, which cannot be developed through Law.

• b)Separate note from Justice Rueda Leal regarding the inclusion of the Caja Costarricense de Seguro Social in numeral 2, subsection b) of the consulted bill I highlight that the unconstitutionality of this subsection arises from its effects, given that it is necessary to view it within the systematic nature of the articles to understand how the autonomy of the Caja Costarricense de Seguro Social is affected. As I mention in other parts of this resolution, the precise determination of the legal consequences, should this bill ever be incorporated into the legal system, will be developed by jurisprudence when analyzing its practical application. With respect to the Caja Costarricense de Seguro Social, its constitutional purpose will take on special relevance in such application, given that this institution represents a guarantee for the administration and government of social insurance.
• c)Separate note from Justice Garro Vargas regarding Article 2, subsection b) and the inclusion of the Caja Costarricense de Seguro Social As I recorded in the separate note to the acción de inconstitucionalidad resolved by judgment No. 2020-10608, Article 73, second paragraph, of the Political Constitution states that "The administration and government of social insurance shall be in charge of an autonomous institution, called Caja Costarricense de Seguro Social." From the literal wording of this norm, it follows that the Caja Costarricense de Seguro Social (CCSS) possesses second-degree autonomy, that is, political or governmental autonomy, to fulfill the function expressly ordered by the constituent power, namely, the administration and government of social insurance. This autonomy, which goes beyond the administrative autonomy recognized in Article 188 of the Political Constitution for other autonomous institutions, grants it the capacity to carry out its constitutional task without being subject to another entity, that is, to self-direct, self-govern, set its own objectives, and organize itself in the manner it deems convenient for fulfilling the purpose for which it was created. In the aforementioned note, I warned, however, that although there are decisions adopted within the framework of the institutional autonomy of the CCSS, they must be limited by the corresponding technical criteria that appropriately justify the decision, so that the discretion with which it is adopted is limited by the principles of reasonableness and proportionality.

Specifically, regarding the rule under consultation, I must reiterate that, in accordance with the general lines set forth supra, a framework law regulating public employment is indeed possible; however, such legislation cannot disregard the particularities of the configuration of our Rule of Law State established in the Political Constitution. In the specific case, it is questioned that Article 2, subsection b) includes the CCSS within the scope of coverage of the rule. In my opinion, this numeral is not in itself unconstitutional insofar as it includes the CCSS within a regulatory framework for public employment, provided that regulatory framework is understood as one that establishes general principles and standards. However, since this bill does not meet those characteristics, this article is unconstitutional by connection with the rest of the articles (see, for example, Articles 4, 6, 7, 9, 12, 13(f), 14, 17, 18, 19, 21, 22, 30, 46, and 49 of the bill), because it would entail applying it to an institution that was constitutionally endowed with autonomy of government. That is, what is established in those norms, in connection with this Article 2, subsection b), empties the content of the principle of autonomy of government. Furthermore, the logic of the law in its entirety is expressed not only in its articles but in the statement of purpose, which has hermeneutical value. Therefore, for that Article 2, subsection b) to be considered not unconstitutional "in itself," it would have to be seen as decoupled from what is stated in that statement of purpose in relation to those norms.

• d)Separate note from Justice Picado Brenes, on Article 2, subsection b) regarding the inclusion of the CCSS in a general regulatory framework for public employment (point 37 of the "Por tanto") Unanimously, the Chamber has considered that Article 2, subsection b) of the Public Employment Framework Law bill being processed in legislative file No. 21,336, is not in itself unconstitutional for including the CCSS in a general regulatory framework for public employment, but it is unconstitutional due to its effects because some of its norms empty the content of its autonomy of government. On this matter, I consider it necessary to make some clarifications in the following terms.

It must be remembered that this Constitutional Chamber itself stated in ruling No. 2011-14624, among others, that the Caja Costarricense de Seguro Social (CCSS) enjoys administrative and governmental autonomy, in accordance with Article 73 of the Political Constitution, and therefore can issue provisions related to its internal regime. Furthermore, it must also be taken into account that Article 70 of the Constitutive Law of the Caja Costarricense de Seguro Social itself provides that its Board of Directors shall establish the conditions relating to the admission of employees to the service of the Institution, guarantees of stability, their duties and rights, the manner of filling vacancies, promotions, causes for removal, scale of sanctions, procedure for judging infractions, and other necessary provisions; consequently, everything related to the matter of public employment would be the absolute competence of the Caja Costarricense de Seguro Social. It cannot be overlooked that, by definition, the autonomy of government held by the CCSS allows it, in addition to self-administration (disposing of its human, material, and financial resources) and giving itself its own internal organization, also to act to set goals, objectives, and types of means to achieve them, as well as to issue autonomous service or activity regulations, in accordance with provisions normally called general policy. For its part, administrative autonomy is the legal possibility for the CCSS to carry out its legal task by itself, without being subject to another entity, known in doctrine as the capacity for self-administration, which allows it—without the need for a legal norm that so establishes—to dispose of its human, material, and financial resources in the manner it deems most convenient for the effective and efficient fulfillment of the objectives and goals assigned to it. As can be observed, both administrative and political autonomy allow the CCSS to issue the internal regulations it deems necessary for the management of its human resources.

Now, in consideration of that degree of autonomy held by the CCSS, the Executive Branch has its interference over it restricted, meaning it cannot act as its hierarchical superior, cannot control it by limiting its activity for reasons of expediency; nor can it act as the director of that entity's management through the imposition of guidelines or basic programs. In this context, Article 2, subsection b) of the Public Employment Framework Law bill would be unconstitutional because, if the objective of that bill is to unify the management of public servants under a general public employment system that would be under the direction of an Executive Branch body—Mideplán—, then it is contrary to the Law of the Constitution to include the CCSS in that unified system because the constitutionally granted autonomy of the CCSS would completely exclude it from any system that sought to impose directives and orders from the Executive Branch.

Furthermore, I consider it impossible to divide the subject matter of public employment in such a way that one group of CCSS workers is included in the bill under study and another group is not; this would not only fragment the institution's objectives, which are fulfilled through the work performed by all its employees without exception, but also the part that had to be subject to public employment would be exposed to a constant violation of the Law of the Constitution. Definitely, that group of employees subjected to such a general public employment system would find themselves facing directives from the Executive Branch that would violate the autonomy of the CCSS, whereby the rule, in addition to being unconstitutional for the stated reasons, would also be unconstitutional for the effects that would subsequently occur, since, as has been said, it is not possible to subject a constitutional institution with a degree of autonomy such as that held by the CCSS to directives, provisions, circulars, and manuals issued by Mideplán. Likewise, I must reiterate what I have been stating, namely that it is not possible to divide the employees of this institution into those who are in the public employment system and those who are not, because all of them are part of the great institutional machinery called CCSS and all are rowing in the same direction, which is to guarantee social insurance and health for the population; therefore, it is not possible to carry out that fragmentation as the bill intends, and doing so is, moreover, discriminatory and violative of the principle of equality.

Consequently, I consider that Article 2, subsection b), due to the effects it would produce subsequently upon becoming a Law of the Republic, is contrary to the Law of the Constitution.

• e)Different reasons from Justice Garro Vargas regarding subjecting the Caja Costarricense de Seguro Social to the oversight (rectoría) of the general public employment system under Mideplán, as provided in Article 6 As I have been stating, in my case, for my own reasons, I declare the consulted norm unconstitutional regarding its application to the Caja Costarricense de Seguro Social (CCSS), separating myself from the terms in which the majority of the Chamber distinguishes between employees who perform an essential function pertaining to the Caja itself and those who do not.

Observe that what is being questioned in this numeral is the creation of a General Public Employment System, whose oversight (rectoría) would be in charge of Mideplán, and into this system are being integrated "the offices, departments, areas, directorates, units" of human resources management of the entities and bodies under the scope of application of this initiative. Prior to this, Article 2, subsection b) includes the CCSS within the scope of coverage of the bill. Likewise, as I noted earlier, this norm must be examined together with what is referred to in Article 9, subsection a), second paragraph, of the bill, which orders that the human resources offices must apply and execute the general provisions, directives, and regulations regarding planning, work organization, employment management, performance management, compensation management, and labor relations management that Mideplán sends to the respective institution.

As I previously noted, Article 73 of the Constitution establishes the autonomy of government of the CCSS for the performance of its functions. Based on that premise, it would be unconstitutional for its human resources office to be subjected to the oversight (rectoría) of Mideplán, which would be the body contemplated in the bill that would be called upon to establish the public policies of public employment and issue general provisions on the matter (planning, work organization, employment management, performance, compensation, and labor relations management). That human resources office, furthermore, governs the entire universe of CCSS employees.

I already pointed out supra that, from my perspective, a common regulation establishing a general regulatory framework for public employment is possible, where the postulates of Articles 191 and 192 of the Political Constitution are gathered and developed; however, in my judgment, it is openly unconstitutional to remove the human resources office of the CCSS from the capacity that the CCSS has to give itself its own organization and government, because this would also be coupled with the correlative obligation to execute the general provisions of Mideplán. The foregoing, compounded by the aggravation that the regulation of this law will remain in the hands of the latter.

I consider it necessary to specify that, regarding the institutions contemplated in Article 2 of the bill (scope of coverage), I believe that the branches of the republic (subsection a)) do not have the same level of independence as other decentralized sector institutions (subsection b)). However, in the specific case, the constitutional norm that provides for the creation of the CCSS is very clear regarding its autonomy of government; therefore, I reiterate, it is unconstitutional for the human resources office of said institution to become part of a Public Employment System whose oversight is entrusted to a ministerial portfolio of the Executive Branch. Such a provision ignores that it is up to the CCSS to autonomously define the best way to self-organize, clearly always subject to general norms that do not undermine its autonomy. That is, its own governing authority will be responsible for autonomously executing general provisions that aim to satisfy what is established in Articles 191 and 192 of the Political Constitution—or any other provision thereof?—, but that oversight and that overlap between its own governmental competencies and others that are intended to be imposed heteronomously is indeed unconstitutional.

The foregoing does not imply an understanding that the CCSS enjoys sovereignty or that it is exempt from the requirements inherent in the Rule of Law, but rather recognizes that the original Constituent Assembly intended to grant it a unique status and singular prerogatives, which neither this Chamber nor the legislator in the exercise of their functions may disregard. It is a separate matter that public debate remains open regarding the need to reconsider the institution's design, competencies, and to improve its management in its various spheres. However, as long as that debate does not affect the normative-constitutional plane, it falls to this Chamber to uphold the current framework.

    f) Dissenting reasons of Magistrate Picado Brenes, regarding Article 6 of the bill concerning the governing authority (rectoría) of Mideplán (point 38 of the operative part [por tanto])   As analyzed by the Chamber on this point, it is clear that, under the protection of Article 73 of the Political Constitution, neither the Executive Branch nor any of its bodies —such as Mideplán— could exercise directive or regulatory authority over the Caja Costarricense de Seguro Social, and this also includes everything pertaining to the institution's human resources management, without which it could not carry out the functions entrusted to it. Thus, Article 6 of the draft Public Employment Framework Law [Ley Marco de Empleo Público] cannot be applied to the Caja Costarricense de Seguro Social because, as stated, in matters of human talent management, that institution has full autonomy to organize and administer itself.

From this perspective, it would likewise be improper for the Department of Human Resources of the CCSS to become part of the General Public Employment System [Sistema General de Empleo Público] under the purview of the Ministry of National Planning and Economic Policy [Ministerio de Planificación Nacional y Política Económica], just as it would not be valid for a general rule to eliminate the specific regulations and rules on the matter that have been issued by the CCSS throughout its legal existence.

Consequently, in my view, the governmental autonomy held by the CCSS prevails and, therefore, no section or group of the personnel under its charge could pass to the orders of Mideplán, given that, considering what is derived from Article 73 of the Constitution, this body could not assume the governing authority (rectoría) over public employment matters at the CCSS in the terms proposed by Article 6 of the draft Public Employment Framework Law without first causing an injury to the Law of the Constitution. Under this criterion, it would not be justified at all for some CCSS departments to be subject to Mideplán while others are not. This is because it must be considered that what must prevail is the satisfaction of the public interest and the users of the services provided by the CCSS, and for this, it is necessary to have the greatest uniformity of criteria and procedures, in the interest of achieving public service efficiency and satisfying the needs of sick individuals. Similarly, a fragmentation (fraccionamiento) of employees or departments of the CCSS would be harmful to the right to equality and non-discrimination of that institution's staff because, again, if all workers are directed toward achieving a single common goal, which is the protection of health and social insurance for the population, it is not possible for some to belong to one public employment system and another group to be subject to different rules.

  g) Additional dissenting reasons of Magistrate Garro Vargas regarding the unconstitutionality of Article 7 for affecting the autonomy of the Caja Costarricense de Seguro Social   In this case, I depart from the opinion held by the majority, as I consider the entirety of Art. 7 to be unconstitutional, insofar as it subjects the Caja Costarricense de Seguro Social (CCSS) to the governing (rectoría) and regulatory authority of Mideplan.

As already noted, this rule establishes a series of broad powers in favor of a ministry of the Executive Branch which, when applied to the Caja, are unconstitutional because they disregard its autonomy to provide for its own administration and government. These powers, as noted, could suppress the capacity for self-governance and the management of personnel necessary to carry out the functions that are intrinsic to it.

I previously pointed out that, from my perspective, affecting the independence of the branches of the republic is not the same as affecting the autonomy of other autonomous institutions and, to that extent, the analysis of the powers granted to Mideplan must be nuanced. However, as I have been stating, to the extent that, by constitutional mandate, a governmental autonomy exists in favor of the CCSS to provide for its own administration, those powers that are sought to be granted to Mideplan and that imply a governing authority (rectoría) over the autonomy recognized for the Caja are indeed unconstitutional. Again, if Art. 7 is examined integrally in connection with Art. 6 subsections b) and d), as well as Art. 9 subsection a) second paragraph, a subjection of the Caja to orders, directives, and regulations from a ministerial portfolio of the Executive Branch emerges, which threatens the governmental autonomy constitutionally entrusted to it for the fulfillment of its purposes. I do not consider that design to be untouchable, but rather that it is not permissible to modify it by law.

  h) Additional dissenting reasons of Magistrate Picado Brenes, regarding Article 7 of the bill concerning the broad powers of Mideplán with respect to the CCSS (point 39 of the operative part [Por Tanto])   The Caja Costarricense de Seguro Social (CCSS) finds its guarantee of existence in Article 73 of the Constitution, through which it is granted, exclusively, the administration and government of social insurance, but also a degree of autonomy that is distinct from and superior to that granted to autonomous institutions; an autonomy from which it enjoys broad powers in matters of government and administration that allow it to issue provisions related to its internal regime, set its goals and objectives according to its functions, but also establish the means and mechanisms to achieve them, as well as issue autonomous service or activity regulations in accordance with general policy provisions. For its part, Article 70 of the Constitutive Law of the Caja Costarricense de Seguro Social establishes that its Board of Directors shall establish everything related to public employment and human resource management, for which it may issue the regulations and provisions necessary for the entry of employees into the Institution's service, the guarantees of their stability, their duties and rights, the manner of filling vacancies, promotions, causes for removal, scale of sanctions, the procedure for judging infractions, and other necessary provisions. Undoubtedly, when contrasting these powers inherent to the CCSS in general and to its Board of Directors in particular, in matters of public employment, the contradiction that will arise with what is regulated in Article 7 of the draft Public Employment Framework Law is evident, for it should be noted that the powers established there for Mideplán in this matter are the same ones that the CCSS already has and that have constitutional backing, since they are part of the degree of governmental or political autonomy —including administrative autonomy— that characterizes that institution. It cannot be overlooked that the degree of autonomy held by the CCSS signifies, at the same time, a degree of protection against interference from the Executive Branch, but also limitations on the intervention of the Legislative Branch and, therefore, in the case under study, of Mideplán —as a body of the Executive Branch—. From this perspective, then, the latter could not establish, direct, and coordinate the issuance of public policies, programs, and public employment plans in the CCSS, or issue provisions of general scope, directives, and regulations aimed at the standardization, simplification, and coherence of public employment, including CCSS officials; nor could it issue the general guidelines and principles for performance evaluation within the CCSS, or administer and implement research, innovation, and proposal formulation actions for public employment to be used in that institution, or establish a single and unified remuneration system for the public function of CCSS servants, or carry out diagnostics on human resources matters in that institution, among other multiple powers granted to Mideplán in that Article 7. Upon careful observation of this article, it is easy to conclude that the powers held by the CCSS and its Board of Directors regarding personnel management would completely disappear, since all of them would become inherent to Mideplán. It must be remembered that the functions assigned to the CCSS not only have great specificity due to the subject matter constitutionally assigned to it, but also, their correct execution and fulfillment is strictly related to the lives of its users or to values also of constitutional rank, such as health or the right to receive social benefits like a pension; consequently, such tasks must be carried out by specially trained personnel whose instructions and directives must come directly from the institution and not from a centralized body of the Executive Branch unfamiliar with the organization's dynamics.

  i) Additional dissenting reasons of Magistrate Garro Vargas regarding the unconstitutionality of Article 13 with respect to the Caja Costarricense de Seguro Social   Unlike the majority, I consider that Art. 13 of the bill is unconstitutional in its entirety because it harms the autonomy of the Caja Costarricense de Seguro Social (CCSS). I believe that the unconstitutionality is not limited to what is established in subsection b), as the majority declares, but extends to the entirety of the article. This is so because, if only subsection b) is declared unconstitutional, which refers exclusively to “public servants performing functions in health sciences,” it could be understood that it is constitutional for the rest of the officials to remain within the general public employment regime under the express governing authority (rectoría) of Mideplan. Indeed, by understanding the CCSS's activity only from the perspective of subsection b), all the particularities and needs of the support personnel of that institution are disregarded, which are manifested not only in the field of clinical care but also in the administration of social insurance. That is, said subsection is deficient in itself. To explain this, one could say that it is a reality viewed from a concave and a convex perspective. That is, from one angle, subsection b), by contemplating only part of the CCSS's activity, disregards the reality that this institution is also composed of a wide range of support officials, who are essential for the proper execution of the constitutionally designated powers. But the mere declaration of unconstitutionality of subsection b) is insufficient, because it would imply that the declaration of unconstitutionality of that subsection independently could cause the rest of the officials who do not perform functions directly related to health sciences to become subject to the governing authority (rectoría) of Mideplan. Therefore, viewed from the other angle, even if the remaining subsections were not consulted, it is clear that this article must be examined in its entirety. It must be remembered that when adjudicating a constitutional consultation, the Chamber must rule on the aspects and grounds consulted, but may also rule “on any others it considers relevant from a constitutional standpoint” (art. 101, first paragraph, of the LJC). Consequently, despite the fact that only subsection b) was consulted regarding the Caja, by pure logical-legal derivation, it is clear that from a constitutional standpoint said article is clothed in unconstitutionality, to the extent that the construction of the job families disregards the particular characteristics and institutional makeup of the CCSS to carry out the function of “the administration and government of social insurance.” It must be observed that Art. 13 itself provides that “The creation of public employment job families is reserved to law and must be justified by technical and legal criteria consistent with efficient and effective public management,” a rule that must also be examined in conjunction with what is referred to in Art. 32 of the bill, which orders that “Each labor family shall be comprised of a series of grades, each of which represents a group of positions with a similar profile. The Ministry of National Planning and Economic Policy (Mideplán) shall define the number of grades required within each labor family, as well as their characteristics, in response to an evaluation of all positions within the labor family.” Thus, it must be reiterated that if only the unconstitutionality of subsection b) is declared, there is a risk that the rest of the Caja's personnel will be placed in other “job families” whose evaluation and definition would be the responsibility of a body alien to the aforementioned powers, establishing a dangerous loophole through which interference from the Executive Branch is carried out regarding the administration of its personnel.

    j) Additional dissenting reasons of Magistrate Picado Brenes, regarding Article 13 of the bill concerning the groups of job families and the CCSS (point 41 of the operative part [Por Tanto])   The Chamber has unanimously considered that Article 13, subsection b) of the draft Public Employment Framework Law is unconstitutional for not including CCSS servants who perform substantial and professional tasks relating to the constitutional purposes assigned to the institution. I consider it important to make some observations in this regard in order to clarify my view. As I have already indicated, it must be kept in mind that Article 13 of the draft Public Employment Framework Law refers to the General Public Employment System [Sistema General de Empleo Público] that is intended to be implemented for all servants of the Public Administration; an article located in Chapter IV, Work Organization. This article of the bill provides that this general and unique public employment regime shall be comprised of 8 job families, which shall be applied in the organs and entities of the Public Administration.

These family groups have not necessarily been formed by affinity between trades and professions, or because they belong to the same institution, or for having a specific purpose as a common denominator; simply, based on the legislator's freedom of configuration, public servants have been grouped as observed in the article and, therefore, the article contains a series of unresolved questions and concerns. I reiterate that, according to the wording of the article, it is inappropriate that it was decided to accumulate in a single group or job family a specific category of workers simply for the fact of being such, because even if they all engage in the same generic function, the specificities of each one will differ depending on the workplace, the objectives they are directed towards, and the purposes assigned to the institution to which they are attached. From this perspective, in the specific case of the CCSS, the Chamber has considered that Article 13, subsection b) is unconstitutional because it did not include those who perform substantial and professional tasks that attend to the constitutional purposes assigned to that institution; however, given the wording of the article, it could perfectly well be interpreted in the sense that they are included, for note that the rule states: “b) Public servants performing functions in health sciences” and, that phrase, can well be understood to mean all professionals in the health area, or all people who work in the health area regardless of the work they perform, because even if they provide administrative services, therapy, rehabilitation, transportation, or any other type of support, but in health sciences, they could well be included in that phrase. The subsection makes no difference as to the workplace of that type of worker, therefore, it could perfectly refer to people working in a hospital, in an EBAI [Basic Comprehensive Health Care Team], in the Ministry of Health, as well as to the personnel of company medical services in any public institution, by the mere fact of performing functions in health sciences, they would be included. So, I consider that the problem that the rule could generate is not related to its drafting style or the interpretation made of it, but goes much further because it has far-reaching implications, given that the application of this article in practice would imply a violation of the CCSS's autonomy. It must be remembered that, given that degree of administrative and governmental autonomy held by the CCSS, the Executive Branch's interference over that institution is restricted, meaning it cannot act as its hierarchical superior, cannot control it by limiting its activity for reasons of opportunity; nor can it act as director of that entity's management through the imposition of guidelines, which indisputably covers everything related to the institution's human talent management.

In this context, Article 13, subsection b) of the draft Public Employment Framework Law would be unconstitutional because, if the general objective of said Law is to unify the management of public servants under a general public employment system that would be under the direction of a body of the Executive Branch —Mideplán—, then it is contrary to the Law of the Constitution to include the CCSS in that unified system, because the autonomy constitutionally granted to the CCSS would completely exclude it from any regulatory conglomerate that sought to impose directives and orders originating from the Executive Branch. The CCSS is the only entity authorized to manage and administer its human talent, which is a single entity due to the objective they pursue, regardless of the work area in which each of its officials performs. In this respect, the employees in the administrative area are just as directed toward health care and social insurance as all those whose work is specifically carried out in the health sciences area. In my view, attempting to include some but not others in the general public employment system not only implies a violation of the right to equality and non-discrimination, but also fragments the institution's objectives, which are fulfilled through the work performed by its employees, coupled with the fact that the group of those workers that would have to be subject to the generic public employment system would be exposed to a constant violation of the Law of the Constitution because they would find themselves facing directives from the Executive Branch that would undermine the CCSS's autonomy, since, as I have pointed out, it is not possible to subject a constitutional institution with a degree of autonomy like that held by the CCSS to directives, provisions, circulars, and manuals issued by Mideplán.

  k) Additional dissenting reasons of Magistrate Picado Brenes, regarding Article 18 of the bill concerning the terms for senior management personnel in the CCSS (point 44 of the operative part [Por Tanto])   Article 18 of the draft "Public Employment Framework Law" being processed in legislative file No. 21.336 is unanimously considered by the Chamber to be unconstitutional for affecting the political autonomy of the CCSS concerning the terms for senior public management personnel; notwithstanding the foregoing, I must add additional reasons why I consider the rule to have defects of unconstitutionality.

As I have already stated, one must begin from the premise that the Caja Costarricense de Seguro Social (CCSS), by constitutional provision established in Article 73, enjoys administrative and governmental autonomy, which means that, as a functionally decentralized entity, it can establish the rules for the selection of its personnel, with the existence of a special normative framework for its statutory relationship being valid in this case, one that attends to and ensures its degree of autonomy. That degree of autonomy also allows it to self-administer (to dispose of its human, material, and financial resources); to provide its own internal organization; the setting of purposes, goals, and types of means to achieve them; the issuance of autonomous service or activity regulations, in accordance with the provisions normally called general policy. Thus, as an autonomous institution of constitutional creation with a higher degree of autonomy (administrative and governmental), it is protected against interference from the Executive Branch and against limitations when the Legislative Branch legislates (which cannot modify its degree of autonomy by legal means). In this way, the Executive Branch cannot act as director or place itself in a hierarchical relationship before this institution, nor can it impose guidelines, give orders, or control the timeliness of its activities. It is precisely for this reason that the Chamber has considered that some rules of the bill under study are unconstitutional because they empty the content of this institution's degree of governmental autonomy, and one of those rules, as far as the term for senior public management personnel is concerned, is Article 18.

Note that this article regulates the appointment and the probationary period to which senior public management personnel will be subjected and provides that this period shall be 6 months, but also that the appointment shall be made for a maximum of 6 years, with the possibility of an annual extension. If the starting point for the analysis of this article is the degree of autonomy with which the Political Constitution has endowed the CCSS, and as stated, this implies that the institution can establish the rules for the selection of its personnel through a special normative framework for its statutory relationship, and that it can also self-administer (dispose of its human, material, and financial resources), provide its own internal organization, set its purposes, goals, and types of means to achieve them, as well as issue autonomous service or activity regulations in accordance with general policy provisions, it is more than evident that attempting to have the CCSS subject its senior public management personnel to a 6-month probationary period, to appointments for a maximum of 6 years, and to possible annual extensions, would be openly unconstitutional, since the degree of autonomy held by the CCSS not only permits it —and obliges it, given its nature— to regulate that type of situation inherent to its human resources, but also would imply an intrusion by the Executive Branch into its constitutionally assigned powers, in clear violation of the protection it has against interference from the Executive Branch and of the limitations that the legislator is obliged to respect, since it could not modify this degree of institutional autonomy by legal means. Under this normative framework of constitutional rank, it is more than evident that the CCSS could determine whether or not it wants to have personnel designated as senior public management, and if it decides to have them, it has complete autonomy to establish what type of probationary periods will apply to them, for what terms, and what kind of appointments it would make, whether it does so on a temporary or permanent basis, whether extensions of those designations are allowed or not, among many other aspects inherent to the management of this type of human resource. Therefore, Mideplán, as the body of the Executive Branch governing in matters of public employment, could not impose directives or issue orders to the CCSS in this matter as is intended with the content of the aforementioned Article 18.

Similarly, the autonomy held by the CCSS allows it to determine all performance evaluation policies for its officials and, therefore, it will be at the discretion of the CCSS to establish what those policies will be regarding senior public management personnel, as stated, if the institution decides to have them or to categorize some officials under that classification. Neither could Mideplán then have any degree of interference in this area and, if it did, its action would be absolutely contrary to the Law of the Constitution.

Now, independent of the foregoing, it is necessary to warn that the article is silent on establishing what the conditions would be under which a public servant could not fully comply with that probationary period.

Furthermore, if the Political Constitution establishes in its Articles 191 and 192 that appointments in the Administration shall be made in accordance with the principle of proven suitability [idoneidad comprobada], it is not understood why a person occupying a senior public management position —which has not been classified as a position of trust— would be denied the opportunity to opt for that position indefinitely, in open contradiction to obtaining a position by proven suitability. Moreover, by making a designation for a period of 6 years, depending on the institution and the type of work to be performed, it could be an insufficient period to achieve the proposed goals and, ultimately, to reach the Administration's final objective, which is efficiency in the provision of public service and in the use of human resources, especially when specific training is required. I consider that all these reasons constitute additional defects of unconstitutionality in the rule under analysis.

              XIII.- Regarding the consultation on the violation of the autonomy of the Municipalities.-     1) Aspects consulted   The consulting deputies consider that the following articles of the draft "PUBLIC EMPLOYMENT FRAMEWORK LAW," being processed in legislative file No. 21.336, violate municipal autonomy. Specifically, they consult on the following articles, indicated either in the heading of the general title or in the rest of the text of the filing brief:

2.c (scope of coverage), 6 (governing authority [rectoría] of Mideplan), 7 (powers of Mideplan), 9.a (Human Resources offices), 13 (job families), 14 (recruitment and selection), 17 (Senior Management personnel), 18 (probationary period and appointment term),   The consultants consider these rules unconstitutional because they violate the autonomy of the Municipalities. They indicate that it is unconstitutional to subject the Municipal Corporations to applying and executing the provisions of general scope, directives, and regulations issued by Mideplan on topics related to work planning, work organization, employment management, performance management or evaluation, compensation management, and labor relations management, the subjection of human resources offices to the General Public Employment System [Sistema General de Empleo Público] (arts. 6, 7, and 9), the creation of a single public employment regime (art. 13), the subjection to Mideplan in matters of recruitment and selection of personnel (art. 14), including senior technical management personnel (arts. 17 and 18).

  Before proceeding with the examination of the constitutionality of the challenged rules, it is appropriate to recall the constitutional scope and limitations of municipal autonomy, as established by constitutional jurisprudence.

    2) Jurisprudential Background on the Governmental Autonomy of Municipalities   The first thing that must be stated is that the municipal regime is a form of territorial decentralization, in accordance with the wording of the first paragraph of Article 168 of the Constitution (ruling No. 2006-17113). The Municipalities are decentralized entities, by reason of territory, which have been endowed with a certain degree of autonomy. This autonomy is of the second degree, greater than that of the autonomous institutions, because in addition to administrative autonomy, they enjoy governmental autonomy. Thus, then, one of the greatest guarantees that municipalities possess vis-à-vis the Central Government is the degree of autonomy assigned to them by the Constitution. Defined by constitutional jurisprudence as governmental autonomy, or degree two autonomy. Although the constitutional text is very succinct regarding the scope and limitations of this degree of autonomy, constitutional jurisprudence has provided certain definitions in this regard. It has stated that the municipal autonomy contained in Article 170 of the Political Constitution essentially originates in its representative character as a local government (the country's only territorial decentralization), tasked with administering local interests. Regarding its scope, it has been indicated that said autonomy includes budgetary autonomy, the creation of taxes, and providing their own regulatory plans.

Additionally, municipalities may define their own development policies (plan and agree upon action programs) and enact their own budget, independently and to the exclusion of any other State institution. Municipalities create local tax obligations, in exercise of their autonomy, and submit them for legislative approval, which conditions their effectiveness (judgment No. 2000-010136), as established in Article 121.14 of the Constitution. Local governments may provide their own land-use planning through regulatory plans (planes reguladores), but such regulations are subordinate and subject to environmental protection legislation. For this reason, the Chamber has been indicating that a fundamental requirement—which obviously does not violate the constitutional principle of municipal autonomy—must be that every regulatory plan for urban development must have, prior to being approved and implemented, a review or environmental impact assessment (evaluación de impacto ambiental) (Judgment No. 2012-001315). On the other hand, regarding the scope of their material competence, it has been indicated that, due to the broad concept of "local interests and services," it must be understood that the territorial decentralization of the municipal regime does not imply elimination of the competences assigned to other State organs and entities. Specifically, it was stated that the degree of municipal autonomy cannot be understood as full or unlimited autonomy, as it is always subject to certain limits:

“… that autonomy of the Municipalities granted by the Constituent in Article 170 of the Fundamental Norm, although formally constituting a limit on interference by the Executive Branch, cannot be understood as full or unlimited autonomy, as it is always subject to certain limits, since the territorial decentralization of the municipal regime does not imply elimination of the competences assigned to other State organs and entities. It is for this reason that there are local interests whose custody corresponds to the Municipalities, and alongside them, others coexist whose constitutional and legal protection is attributed to other public organs, including the Executive Branch…” (Constitutional Chamber, judgment No. 2007-013577 and judgment No. 2010-020958).

Thus, for example, municipal autonomy does not allow town councils to exempt themselves from what has been declared a matter of national interest; otherwise, territorial autonomy is perverted, transforming municipalities into micro-states, detached from the intersubjective direction or oversight that the State may exercise through constitutional organs (judgment No. 2011-015736).

Municipal autonomy, which “… must be understood as the capacity of Municipalities to freely decide, and under their own responsibility, everything related to the organization of a specific locality (the canton, in our case)” (vote No. 5445-1999), implies that the local government has the power of self-regulation and self-administration. This means they can issue their own regulations to govern their internal organization and the services they provide, as well as their capacity to manage and promote local interests and services independently of the Executive Branch. Likewise, the aforementioned jurisprudence has indicated that no functions of any public entity can dispute their primacy over the municipalities when it comes to matters that constitute local affairs. Defining what is local or distinguishing it from what is not can be done through law or through jurisprudential interpretation. Thus, full municipal autonomy refers strictly to “local matters,” but an antagonism between local interests and services and national ones cannot be created, since both are meant to coexist. This Tribunal has stated that “… regarding local matters, no regulations from any other public entity are permissible, unless the law provides otherwise, which implies a well-founded reason for issuing the regulation; that is to say, the municipality is not coordinated with State policy, and only through law can matters potentially linked to local affairs be regulated, but with the reservation that such legal norm must be reasonable, according to the purposes pursued” (vote No. 5445-1999).

Regarding the autonomy of municipalities in matters of public employment, it is appropriate to cite vote No. 02934-1993 of 3:27 p.m. on June 22, 1993, in which the challenged regulations establishing the interference of the Comptroller General of the Republic in the internal disciplinary order of local governments were declared unconstitutional. On that occasion, the Chamber considered that:

“III.- THE ALLEGED VIOLATION OF MUNICIPAL AUTONOMY.- It is argued that Article 18 of the Law on Illicit Enrichment of Public Servants violates the principles established in Articles 170 and 184, subsection 5, of the Political Constitution, on the grounds that the norm undermines municipal autonomy, which must be understood not only in the administrative sphere but also in that of government.

VI.- The fourth paragraph, especially, and the fifth, are the ones that have been questioned in the action. The latter, although not the object of questioning in the action, was during the oral hearing held. The norm states:

"To comply with the spirit of this law, when the Comptroller General considers it necessary, they may rotate the auditors of the different public entities for the time they set, or may substitute them for a limited period to assign them to investigative work, within the Comptroller General's Office or at the site they determine." This norm, in the opinion of the Chamber and in accordance with Article 89 of the Law of Constitutional Jurisdiction, by connection, is openly unconstitutional for being contrary to Municipal Autonomy, contained in Article 170 of the Political Constitution. Municipal autonomy, which originates from the Political Constitution itself, essentially stems from the representative character of being a local government (the country's only territorial decentralization), tasked with administering local interests, and therefore municipalities may define their development policies (plan and agree upon action programs), independently and to the exclusion of any other State institution, a power that also entails the ability to enact their own budget. This political autonomy implies, of course, the power to issue the internal regulations for the organization of the corporation, as well as those for the provision of municipal public services. For this reason, it has been said in local doctrine that "it is a true decentralization of political function in local matters." Within this very general conception of municipal autonomy, the norm being analyzed is contrary to its principles, since understood in its proper dimension, what is indicated is neither more nor less than that the Municipal Auditor ceases to be an employee of the Commune to depend, hierarchically, on the Comptroller General of the Republic, who can freely dispose of them, disregarding the criteria of the Municipality itself. This implies, clearly, that the paragraph transcribed above is, in the judgment of the Chamber, unconstitutional and must, therefore, be annulled and eliminated from the legal system. It would not be so, however, if all the Auditors of public entities were employees of the Comptroller General of the Republic and dependent on it, exercising their a priori control functions by delegation, as has been suggested on some occasions, but this concept is not the object of the action.

VII.- It is now appropriate to analyze the paragraph that establishes:

"The dismissal of the auditor of each of the ministries, public entities, and private-law public enterprises shall require the approval of the Comptroller General of the Republic." Municipal autonomy does not exclude legality control, which doctrine is unanimous in admitting, in its manifestations of authorizations and approvals (a priori and a posteriori control, as requirements for the validity and efficacy of acts, respectively), as compatible with it. The most qualified Costa Rican doctrine has expressed on this point: "We do not consider controls of legality with powers of suspension, annulment, and substitution, by the Comptroller General of the Republic, of fully regulated municipal administrative acts to be incompatible with municipal autonomy, but rather advisable, since this would be supported by the logic of that type of control and by the convenience of curbing administrative excesses before judicial recourse, which is slow and unfulfilled." That is to say, the control emanating from the Comptroller General of the Republic, which is also of constitutional origin according to the texts of its Articles 183 and 184, does not contradict municipal autonomy, because its main function is the legality control of the financial administration of the state and municipal public sector, from which it is inferred that regarding local governments, its applicability is based on an express constitutional text (Article 184, subsection 2). This control is limited to verifying compliance with applicable legality requirements, disregarding any reference to matters of convenience and opportunity. This being the case, the Chamber finds that the mere approval of the dismissal of a municipal auditor, as a measure to verify compliance with the rules of due process, is not an unreasonable or disproportionate measure capable of violating the administrative integrity of the Municipalities. As a note on the exercise of control competences, the Chamber does not consider that the Comptroller General of the Republic is supplanting municipal competences. On the contrary, the law is indicating a procedure for verifying the legality of the actions taken, which does not appear to us to be contrary to Article 170 of the Political Constitution. This legal norm, as it does not require further development for its application to specific cases, is of obligatory compliance, even without the existence of the regulation, according to the unconstitutionality now declared.” In the same vein, vote No. 1691-94 of 10:48 a.m. on April 8, 1994, established that the municipal executive—now the mayor (alcalde)—is responsible for the disciplinary regime of Local Governments regarding the officials and employees under their authority, meaning they are the one who issues the substantive decision on dismissals. These criteria were reiterated in vote No. 5445-1999 of 2:30 p.m. on July 14, 1999, which has been mentioned in numerous judgments of this Chamber to date. In this vote, the Constitutional Tribunal referred to the relationship of administrative oversight between municipalities and other state institutions, under agreed-upon forms of voluntary coordination (this admits the function of legality control and State oversight powers, as well as the issuance of general directives and guidelines), in addition to the disciplinary function, the assignment of duties to municipal employees, and the setting of the Mayor's salary, based on the following considerations:

“I.- GENERAL CONCEPTS ABOUT THE MUNICIPAL REGIME. It can be said, in summary, that municipalities or local governments are territorial entities of a corporate and public non-state nature, endowed with independence in matters of government and operation. This means, for example, that municipal autonomy involves tax matters, which require legislative authorization for their validity, the contracting of loans, and the preparation and disposal of their own revenues and expenditures, with generic powers..

II.- MUNICIPAL AUTONOMY. GENERALITIES. Grammatically, it is common to say that the term "autonomy" can be defined as "the power that municipalities, provinces, regions, or other State entities may enjoy within the State, to govern particular interests of their internal life through their own norms and governing bodies." From a legal-doctrinal point of view, this autonomy must be understood as the capacity of Municipalities to freely decide, and under their own responsibility, everything related to the organization of a specific locality (the canton, in our case). Thus, a sector of doctrine has said that this autonomy implies the free election of their own authorities; free management in matters of their competence; the creation, collection, and investment of their own revenues; and specifically, it refers to encompassing political, normative, tax, and administrative autonomy, defining them, in very general terms, as follows: political autonomy: as that which gives rise to self-government, entailing the election of its authorities through democratic and representative mechanisms, as our Political Constitution indicates in its Article 169; normative autonomy: by virtue of which municipalities have the power to issue their own regulations in matters of their competence, a power that in our country refers only to the regulatory power that internally regulates the organization of the corporation and the services it provides (autonomous regulations of organization and service); tax autonomy: also known as taxing power, and it refers to the fact that the initiative for the creation, modification, extinction, or exemption of municipal taxes corresponds to these entities, a power subject to the approval indicated in Article 121, subsection 13, of the Political Constitution when applicable; and administrative autonomy: as the power that implies not only self-regulation, but also self-administration and, therefore, freedom from the State for the adoption of the entity's fundamental decisions. Our doctrine, for its part, has said that the Political Constitution (Article 170) and the Municipal Code (Article 7 of the former Municipal Code, and Article 4 of the current one) have not limited themselves to attributing to municipalities the capacity to manage and promote local interests and services, but have expressly provided that this municipal management is and must be autonomous, defined as freedom from other State entities for the adoption of their fundamental decisions. This autonomy is given in direct relation to the electoral and representative character of its Government (Council and Mayor) who are elected every four years, and it means the capacity of the municipality to set its action and investment policies independently, and more specifically, from the Executive Branch and the ruling party. It is the capacity to set plans and programs for the local government, which is why it is linked to the municipality's power to enact its own budget, an expression of the policies previously defined by the Council, a capacity that, in turn, is political.

(…)

A. THE RELATIONSHIPS OF MUNICIPALITIES WITH OTHER STATE INSTITUTIONS AND SOCIETY.

X.- THE OBLIGATION OF COORDINATION WITH STATE INSTITUTIONS. Municipalities may share their competences with the Public Administration in general, a relationship that must unfold in the terms defined by law (Article 5 of the former Municipal Code, Article 7 of the new Code), which establishes the obligation of "coordination" between the municipalities and public institutions that concur in the performance of their competences, to avoid duplication of efforts and contradictions, especially because only voluntary coordination is compatible with municipal autonomy as it is its expression. In other terms, the municipality is called upon to enter into cooperative relationships with other public entities, and vice versa, given the concurrent or coincident nature—in many cases—of interests around a specific matter. (…) Since there is no hierarchical relationship between decentralized institutions, nor between the State itself and the municipalities, the imposition of certain conduct on the latter is not possible, giving rise to the indispensable inter-institutional "agreement," in the strict sense, as autonomous and independent centers of action agree on that preventive and global scheme, in which each plays a role with a view to a mission entrusted to the others. Thus, the relationships of municipalities with other public entities can only be carried out on a plane of equality, resulting in agreed-upon forms of coordination, excluding any imperative form to the detriment of their autonomy, which would allow subjecting corporate entities to a coordination scheme without their will or against it; but which does admit the necessary subordination of these entities to the State and in the interest of the State (through the "administrative oversight" of the State, and specifically, in the legality control function that corresponds to it, with powers of general supervision over the entire sector).

(…) This obligation of coordination between State institutions and municipalities is implicit in the Political Constitution itself; (…)

“E. MUNICIPAL DISCIPLINARY REGIME.

XXXVII.- THE MUNICIPAL DISCIPLINARY REGIME AND THE OFFICIAL RESPONSIBLE FOR ITS DIRECTION.

(…) Since the disciplinary regime implies a relationship of subordination of the public employee to the institution for which they work, it is evident that it is that institution that is responsible for its direction and application directly, without interference from other administrative dependencies. The case of the disciplinary regime of municipalities is not an exception, as the Municipal Executive—now the Mayor—is responsible for the disciplinary function of the officials and employees of local governments who do not report directly to the Council, by virtue of Articles 141, 142, 148, 150, and 154 of the former Municipal Code, Article 17, subsection k) of the current Municipal Code; so that the personnel of the municipalities are appointed and administered by this official, except for those who correspond directly to the Council (auditor or accountant and the Secretary of the Council—subsections f) of Article 13 of the Municipal Code, No. 7794), as stated in judgment No. 1691-94, of ten forty-eight hours on February 8, nineteen ninety-four. Likewise, in judgment No. 1355-96, of twelve eighteen hours on March 22, nineteen ninety-six, it was said regarding the Municipal Executive XXXIX.- THE DEFINITION OF DUTIES OF MUNICIPAL EMPLOYEES. In the previous Considerandos, it has been indicated that the organizational competence of municipal dependencies is an expression of the administrative autonomy enjoyed by municipal corporations. In this sense, since the Municipal Mayor—formerly Municipal Executive—is the general administrator of local dependencies, it is they who correspond to the assignment of duties to their employees, as provided in Article 142 of the former Municipal Code:

XL.- THE SETTING OF SALARIES. Article 76 of the Municipal Code is challenged insofar as it establishes a categorization of municipalities based on their budget and confers upon the Institute for Municipal Development and Advisory Services (Instituto de Fomento y Asesoría Municipal), in coordination with the Comptroller General of the Republic, the task of setting the salaries of the then Municipal Executives and their increases in relation to the budgets thereof, which is considered a violation of municipal autonomy and the principle of reasonableness. Effectively, in accordance with everything previously stated in this judgment, this provision is absolutely unconstitutional, in open violation of the administrative autonomy of the municipalities defined in Article 170 of the Constitution, insofar as setting the salary of its Mayor (formerly Executive) is a matter pertaining to its own government and administration, and its determination must correspond to its authorities, according to the functions entrusted to them, which, in any case, must be in proportional relation to the municipality's budget, as defined in Article 20 of the Municipal Code, No. 7794. By virtue of which, the phrase of the third paragraph of Article 76 that reads "The Comptroller General of the Republic and the Institute for Municipal Development and Advisory Services shall set, annually, the salaries of municipal executives, based on the amount of the municipal budgets referred to in this article"; is unconstitutional. (…)”.

The jurisprudential criterion issued in the partially cited judgment has been reiterated and used to resolve numerous matters to date, related to municipal autonomy, taxing power, municipal police, environmental matters, waste management, municipal property, and others (see votes Nos. 2001-04841 of 3:02 p.m. on June 6, 2001, 2002-05832 of 8:58 a.m. on June 14, 2002, 2005-02594 of 2:58 p.m. on March 9, 2005, 17113-2006 of 2:51 p.m. on November 28, 2006, 2007-13577 of 2:40 p.m. on September 19, 2007, 2007-15206 of 11:48 a.m. on October 19, 2007, 2011-004205 of 5:49 p.m. on March 29, 2011, 04621-2016 of 4:20 p.m. on April 5, 2016, among many others. On taxing power and business licenses (patentes), see votes Nos. 9677-2001 of 11:26 a.m. on September 26, 2001, 2001-10153 of 2:44 p.m. on October 10, 2001, and No. 2005-02910 of 3:59 p.m. on March 15, 2005. On municipal service fees and municipal police, votes Nos. 2001-01613 of 2:54 p.m. on February 27, 2001, and 2001-01614 of 2:55 p.m. on February 27, 2001. On municipal competences in environmental matters, votes Nos. 2015-016362 of 9:30 a.m. on October 21, 2015, and 2016-004621 of 4:20 p.m. on April 5, 2016. On municipal competences in waste management, vote No. 13577-2007 of 2:40 p.m. on September 19, 2007). Among these votes, it is appropriate to highlight vote No. 2007-13577 of 2:40 p.m. on September 19, 2007, as it makes clear that despite the autonomy held by municipalities, they cannot exempt themselves from the necessary coordination and alignment they must maintain with other State institutions in order to comply with the national development plan of the country. Specifically, it was stated on that occasion:

“Now, that autonomy of the Municipalities granted by the Constituent in Article 170 of the Fundamental Norm, although formally constituting a limit on interference by the Executive Branch, cannot be understood as full or unlimited autonomy, as it is always subject to certain limits, since the territorial decentralization of the municipal regime does not imply elimination of the competences assigned to other State organs and entities. It is for this reason that there are local interests whose custody corresponds to the Municipalities, and alongside them, others coexist whose constitutional and legal protection is attributed to other public organs, including the Executive Branch. For this reason, this Chamber has recognized that when the problem exceeds the territorial circumscription to which local governments are subject, the competences may be exercised by national State institutions, since the actions of the former are integrated within the general guidelines outlined within the national development plan, without this implying a violation of their autonomy.” Regarding the legislator's powers to develop the functional legal framework of the mayor, the Chamber has indicated that this corresponds to the principles of opportunity and convenience, whose limits lie in the reasonableness of the legislative act. In this sense, vote No. 2008-007685 of 2:48 p.m. on May 7, 2008, established that:

“II.- The jurisprudence of this Chamber on municipal autonomy. The claim of the Municipal Mayor of Aguirre must be elucidated within the jurisprudential framework that this Constitutional Chamber has developed on the issue of municipal autonomy, which has been understood as the capacity of municipalities to freely decide, and under their own responsibility, everything related to the organization of a specific locality.

(…) As evidenced by the preceding jurisprudential citation, normative autonomy implies the municipal capacity to issue its own normative system (understood in relation to autonomous regulations of organization and service), but subject to what the Law establishes.

III.- (…), the constituent delegated to the ordinary legislator the development of the functional legal framework of the Municipal Mayor, with which the Law may restrict or improve the figure of the Vice-Mayors as collaborators of the Mayor in their functions. In accordance with what is established by the constitutional norm, the legislative development carried out corresponds to the principles of opportunity and convenience of the legislator, whose only limits lie in the reasonableness of the legislative act. (emphasis does not correspond to the original).

Finally, it is important to highlight as a jurisprudential precedent judgment No. 11406-2017 of 10:17 a.m. on July 19, 2017, in which several norms of the Water Law (Ley de Aguas) were challenged because they established that the water inspector was an official appointed by MINAE, but the municipality was responsible for bearing the cost of their salary. In this regard, it was resolved that:

“In this way, in this argumentative order, we can affirm that the figure of the cantonal water inspector finds support in this view that has been sustained in this judgment regarding the fact that water is not a matter of local interest that qualifies within municipal autonomy, since it is not merely local—but rather of national interest—nor susceptible to being subjected to territorial criteria. Therefore, this inspector acts within the logic of coordination between public institutions in environmental matters, since they are an official subordinate to MINAE, the body that holds the stewardship (rectoría) in matters of water resources, but maintains a close relationship with the municipalities, as they are paid by them with a specific fee (canon) provided for in the regulations. In this sense, it is not possible to affirm that this figure harms municipal autonomy, since, as mentioned, in matters of a national character, such as water, this autonomy is not full or unlimited autonomy, as it is always subject to certain limits, such as, for example, when constitutional principles and rights such as the right to water come into play. Likewise, it cannot be claimed that it infringes upon the budgetary competence of the Municipality, since, as just indicated, a specific fee is provided for in the regulations for its financing. In this way, this Tribunal considers that neither the acting mayor nor the Office of the Attorney General of the Republic is correct regarding a possible supervening unconstitutionality, since the figure of the cantonal water inspector does not harm the municipal autonomy enshrined in the Political Constitution, meaning it is a figure in accordance with the Law of the Constitution. By virtue of the foregoing, what is appropriate is to dismiss the action.”.

In conclusion, local governments are "a true decentralization of political function in local matters." The degree of autonomy of municipalities, which is administrative and governmental autonomy, allows them to self-administer (dispose of their human, material, and financial resources), carry out their legal competences by themselves, and provide their own internal organization. But furthermore, regarding governmental autonomy, it implies that they can set their own ends, goals, and means; they can also issue autonomous service regulations. Likewise, they can define their development policies (plan and agree upon action programs), create taxes (which must be authorized through law), and provide their own land-use planning through regulatory plans (planes reguladores). But they also have the limitation that they cannot exempt themselves from what has been declared of national interest.

• 3)Specific analysis of the inquiry Regarding Article 2.c.- Scope of coverage concerning Municipalities (drafted by Magistrate Picado Brenes) The petitioners claim that subsection c) of Article 2 of the draft law under consultation, insofar as it includes municipalities within its scope of application, harms the governmental autonomy of these local governments. In this regard, in the same sense that the constitutionality per se of this norm has been upheld with respect to other institutions, Article 2, subsection c) is not by itself unconstitutional, insofar as it includes municipalities in a general regulatory framework for public employment, but it is unconstitutional due to its effects because some of the norms of this draft law empty their governmental autonomy of content, as will be seen specifically in the following sections. Returning to what was stated supra, it is plausible to subject all powers and institutions of the State to a single public employment statute.

However, to the extent that such subjection goes beyond general principles and encroaches upon matters pertaining to the governmental autonomy of the municipalities, such subjection is indeed unconstitutional in its effects, since it is not possible to subject local governments to the directives, provisions, circulars, and manuals issued by Mideplán, nor to establish by law obligations that fall within the scope of their degree of autonomy. It should be recalled that Municipalities are decentralized entities, by reason of territory, which have been endowed with a certain degree of autonomy. Thus, one of the greatest guarantees that municipalities possess vis-à-vis the Central Government is the degree of autonomy that the Constitution has assigned to them, namely, political or governmental autonomy, or a second-degree autonomy. Regarding its scope, it has been indicated that such autonomy includes budgetary autonomy, the creation of taxes, and giving themselves their own regulatory plans. Furthermore, the municipalities may define their development policies (plan and agree on action programs), independently and to the exclusion of any other State institution, a power that also entails the ability to issue their own budget. Although it is true that the degree of municipal autonomy cannot be understood as full or unlimited autonomy, since it is always subject to certain limits, it is also true that they have a special degree of protection, born of their political autonomy, which makes the subjection of the municipalities to this general public employment bill unconstitutional in its effects. In conclusion, subsection c) of Article 2 of the bill is unconstitutional in its effects.

On Article 6.- Power of Direction of Mideplán regarding the Municipalities (drafted by Justice Castillo Víquez) Articles 169 and 170 of the Political Constitution assign to the municipalities the duty to watch over local interests and services, for which purpose they are endowed with political autonomy. For such purposes, as can easily be deduced, what refers to that matter—the setting of goals and purposes—has the logical consequence, from a legal standpoint, that the Executive Branch or one of its organs—Mideplán—cannot exercise the power of direction—issue directives—or the regulatory power. This position is constitutionally valid with regard to the matter of public employment, specifically that body of officials essential to fulfilling the constitutionally assigned purposes, as well as the administrative, professional, and technical staff that the highest authorities of the Municipal Corporations define, exclusively and preclusively. The foregoing means that some public employees of those corporations, those performing basic, auxiliary administrative functions, could indeed fall under the stewardship of the Executive Branch or Mideplán. Adopting these premises as a roadmap, after reviewing the case law of this Court, an analysis of the provisions under consultation will be conducted.

In accordance with Articles 191 and 192 of the Political Constitution, including the municipalities within the Public Employment Framework Law bill is not unconstitutional. On the contrary, the constitutional framer allows for there to be several or a single statute regulating the relations between the State and public servants. This, provided that the scope of autonomy held by local governments is recognized in that regulation, as established in Article 170 of the Constitution and as developed by this Constitutional Chamber in the aforementioned case law.

Municipal autonomy, which “(…) must be understood as the capacity that Municipalities have to freely decide, and under their own responsibility, everything referring to the organization of a specific locality (the canton, in our case)” (opinion No. 5445-1999), implies that the local government has the power of self-regulation and self-administration; this means they can issue their own regulations to govern their internal organization and the services they provide, as well as their capacity to manage and promote local interests and services independently of the Executive Branch. However, this normative autonomy is subject to what the Law establishes.

Likewise, the aforementioned case law has indicated that no functions of any public entity that dispute their primacy with the municipalities can subsist when it concerns matters that integrate the local sphere. To define what is local or distinguish it from what is not, such definition can be done by means of law, or through jurisprudential interpretation. Thus, full municipal autonomy strictly refers to “the local sphere,” but an antagonism cannot be created between local and national interests and services, since both are called to coexist. This Court has stated that “… in what pertains to the local sphere, there is no room for regulations from any other public entity, unless the law provides otherwise, which implies a well-founded reason for issuing the regulation; that is, the municipality is not coordinated with State policy, and only by means of law can matters potentially linked to the local sphere be regulated, but subject to the reservation that such legal rule is reasonable, according to the purposes pursued” (opinion No. 5445-1999).

In relation to Article 6, it is unconstitutional, as it does not exclude from the power of direction those officials who participate in administrative functions linked to the constitutionally assigned purposes, and those who hold senior political management positions, as well as all those administrative, professional, and technical staff designated by the highest organs of the municipal corporations. Ergo, the provision is only constitutional insofar as it concerns basic, auxiliary administrative staff, which would fall within the family of posts (familia de puestos) in accordance with clause 13, subsection a) of the bill.

On Article 7.- Powers of Mideplán regarding the Municipalities (drafted by Justice Castillo Víquez) In relation to Article 7, the same criterion expressed regarding clause 6 is maintained; furthermore, it subjects to the regulatory power of Mideplán matters where there is an exclusive and preclusive power in favor of the municipalities to achieve the constitutional purpose assigned by the original constitutional framer.

On Article 9.- Human Resources Office in the Municipalities (drafted by Justice Brenes Picado) The provision under consultation establishes the following:

“ARTICLE 9- Functions of the active administrations a) The offices, departments, areas, directorates, units, or homologous designations for human resources management, of the institutions included in Article 2 of this law, shall continue performing their functions in accordance with the pertinent normative provisions in each public agency.

Likewise, they shall apply and execute the provisions of general scope, the directives, and the regulations, in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management, that the Ministry of National Planning and Economic Policy (Mideplán) sends to the respective institution, pursuant to Law 6227, General Law of Public Administration, of May 2, 1978, and Article 46 of Law 2166, Law on Salaries of the Public Administration, of October 9, 1957.

• b)It is the responsibility of the offices, departments, areas, directorates, units, or homologous designations for human resources management to develop and administer knowledge, competency, and psychometric tests, for the purposes of staff recruitment and selection processes, and to conduct internal and external merit-based competitive examinations (concursos internos y externos por oposición y méritos), which must always at least meet the standards established by the General Directorate of Civil Service for each post, according to its scope of competence, and the guidelines issued pursuant to Article 46 of Law 2166, Law on Salaries of the Public Administration, of October 9, 1957.

Furthermore, to incorporate said competitive examinations into the public employment offer of the Public Administration and verify that public servants receive the proper induction regarding the duties, responsibilities, and functions of the post, as well as the general and particular ethical duties of the public function of the institution and post.

• c)The institutional human resources management offices of ministries and institutions or organs attached under the scope of application of the Civil Service Statute are technical units of the General Directorate of Civil Service which, for all purposes, must coordinate the development of staff recruitment and selection tests with such offices and perform their advisory, training, and technical support functions.” As observed, Article 9 consulted establishes certain functions for all the offices, departments, areas, directorates, or human resources units, of all the institutions included in the bill, including the human resources of all the municipalities. Thus, with regard specifically to the consultation made concerning local governments, the second paragraph of subsection a) imposes on all human resources departments the obligation to apply and execute the provisions of general scope, the directives, and the regulations, in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management, that Mideplán sends to them. This would imply that an organ of the Executive Branch, such as Mideplán, imposes on these local entities with political autonomy the application and execution of its provisions, directives, and regulations, in matters that are of exclusive purview of the municipalities, such as planning, work organization, employment management, performance management, compensation or salary management, and labor relations management. Such an obligation on the human resources department of the municipalities is clearly a violation of their political autonomy, according to the scope that constitutional case law has given it. It should be recalled that municipal autonomy, contained in Article 170 of the Political Constitution, essentially originates from its representative character as a local government (the country's only territorial decentralization), charged with administering local interests. The local government has the power of self-regulation and self-administration; this means they can issue their own regulations to govern their internal organization and the services they provide, as well as their capacity to manage and promote local interests and services independently of the Executive Branch. It is clear, then, that the Executive Branch cannot act as a director or in a hierarchical relationship vis-à-vis the municipalities, and cannot impose guidelines on them, nor give orders, nor control the timeliness of their activities. Therefore, Article 9 in question is unconstitutional for seeking to subject the human resources departments of local governments to applying and executing the provisions of general scope, the directives, and the regulations, in relation to planning, work organization, employment management, performance management, compensation management, and labor relations management, that Mideplán sends to them.

On Article 13.- Family of Posts regarding the Municipalities (drafted by Justice Castillo Víquez) Regarding Article 13, it is unconstitutional, for not creating a family of posts for municipal employees and, consequently, including them all within the Civil Service. It is not possible to overlook that the Municipal Code, from clause 124 to 161 inclusive, contains Title V, which regulates the relationship of municipal servants and local public administrations in a detailed manner, on the one hand, and clause 50 of the bill, which establishes that the express derogations do not even reference the provisions found in the aforementioned Code, nor are the modifications made in Article 49 of the bill consulted.

On Article 14.- Recruitment and Selection in the Municipalities (drafted by Justice Picado Brenes) The petitioners state that the political autonomy of the Municipalities is harmed by seeking to subject them to the provisions issued by an organ of the Executive Branch, regarding the recruitment and selection of their staff. Clause 14 in question provides the following:

“ARTICLE 14- Recruitment and selection The recruitment and selection of newly entering public servants shall be carried out based on their proven suitability, for which purpose the Ministry of National Planning and Economic Policy (Mideplán) shall issue, in absolute adherence to Law 6227, General Law of Public Administration, of May 2, 1978, the provisions of general scope, the directives, and the regulations, according to the respective family of posts.

In recruitment and selection processes, an applicant may not be chosen who is in any of the following situations:

• a)Being related by consanguinity or affinity in a direct or collateral line, up to the third degree inclusive, with the immediate supervisor or with that person’s immediate superiors in the respective agency.
• b)Being listed in the registry of ineligible persons on the integrated public employment platform.” As has already been duly accredited, according to the provisions of clauses 2 and 13 of the bill, and as established in this Article 14, all the Municipalities would find themselves subject to the provisions of general scope, the directives, and the regulations issued by Mideplán in relation to the recruitment and selection of newly entering staff, which is unconstitutional. This Chamber has stated that municipal autonomy “implies the free election of their own authorities; free management in matters of their competence; the creation, collection, and investment of their own revenues; and specifically, refers to the fact that it encompasses political, normative, tax, and administrative autonomy.” (opinion no. 5445-1999). Therefore, “the relations of the municipalities with other public entities can only be carried out on a plane of equality, resulting in agreed-upon forms of coordination, excluding any imperative form to the detriment of their autonomy, which would allow subjecting the corporate entities to a coordination scheme without their will or against it; but which does admit the necessary subordination of these entities to the State and in the interest of the State (through the 'administrative tutelage' of the State, and specifically, in the function of legality control that corresponds to it, with general oversight powers over the entire sector).” That is, coordination and the administrative tutelage of the State in terms of legality control are permitted, but not insofar as an organ of the Executive Branch such as Mideplán can issue provisions of general scope, directives, and regulations to the Municipalities for their recruitment and selection processes. In that sense, any external intrusion by another power into the proprietary aspects of local governments that harms their autonomy is invalid. Under that understanding, it is not possible to admit that an organ of the Executive Branch, in this case Mideplán, imposes on the Municipalities provisions regarding the recruitment and selection processes of their staff, a matter which, as has been indicated, is consubstantial to the degree of autonomy that these local governments enjoy. Consequently, such clause contains a defect of unconstitutionality, to the extent it is applicable to the Municipalities.

On Article 17.- Senior Management Posts in the Municipalities (drafted by Justice Picado Brenes) The provision under consultation establishes the following:

“ARTICLE 17- Senior public management staff The Ministry of National Planning and Economic Policy (Mideplán) shall issue the provisions of general scope, the directives, and the regulations, regarding senior public management staff, that are consistent with Law 6227, General Law of Public Administration, of May 2, 1978, to provide the Public Administration with profiles possessing integrity and proven management, innovation, and leadership capacity, in order to seek the improvement of the provision of public goods and services. (…)” The petitioners point to the harm to the governmental autonomy of the Municipalities, inasmuch as this provision mandates that, in the case of senior management posts, it will be Mideplán that issues the provisions of general scope, directives, and regulations in this regard. On this consultation, in the same sense in which this Chamber has been resolving these aspects, the meddling of this Ministry, which is an organ of the Executive Branch, issuing provisions of general scope, directives, and regulations to the municipalities regarding senior management posts, is violative of their governmental autonomy. It should be recalled that this Chamber has indicated that, “municipalities are representative governments with competence over a specific territory (canton), with their own legal personality and public powers vis-à-vis their residents (inhabitants of the canton); they operate in a decentralized manner vis-à-vis the Government of the Republic, and enjoy constitutionally guaranteed and reinforced autonomy that manifests itself in political matters, by determining their own goals and the normative and administrative means in the fulfillment of all types of public services for the satisfaction of the common good in their community.” (judgment no. 5445-1999). Note that these types of posts are of great relevance for the faithful compliance with the administration of local interests and services, which must be particularly protected from meddling by the Executive, and which require the stability of personnel necessary for adequate performance of the position, which is incompatible with subordination to the provisions issued in this regard by Mideplán, as the provision in question mandates. Therefore, it is considered that there is a defect of unconstitutionality in Article 17 under consultation, in the terms expressed.

On Article 18.- Timeframes for Senior Management Staff in the Municipalities (drafted by Justice Picado Brenes) In the opinion of the petitioners, clause 18 is unconstitutional, insofar as it affects matters that fall within the exclusive competence of the municipalities, by establishing that, in the case of technical senior management posts, the appointment shall be for 6 years with a probationary period of 6 months, renewable annually, subject to performance evaluation. Article 18 consulted provides the following:

“ARTICLE 18- Appointment and probationary period of senior public management staff Every public servant appointed to senior public management posts shall be on probation for a period of six months, and their appointment shall be made for a maximum of six years, with the possibility of annual extension, which shall be subject to the results of the performance evaluation. (…)” On this particular point, the regulation of aspects related to the appointment and selection of staff, as also occurs with technical senior management posts, the probationary period, the term or conditions of extension of appointments, are regulations proprietary and germane to the political autonomy of local governments. It is understood that the technical senior management posts, defined by them themselves, are strategic posts of great importance for their proper organization and attention to local interests and services. For this reason, and in accordance with the municipalities’ own purposes, it is up to them to assess the needs of the services they provide and determine the conditions under which those posts must be filled, in order to fulfill the constitutional purposes assigned to them, in respect of the recognized degree of autonomy, provided they adhere to the principle of suitability. In their case, for example, the suitability of the appointment period for those posts or the conditions of extension could be subject to a condition of greater stability in the post, such as that guaranteed in constitutional clause 192. All according to their internal regulations, and not to a generic regulation such as that intended by this bill. The definition of such conditions is the exclusive competence of local governments. Thus, in the terms in which Article 18 consulted is drafted, it contains a defect of unconstitutionality, for violating the political autonomy of the municipalities, to which exclusively corresponds the definition of the conditions under which their senior management posts must be performed.

• 4)Conclusion Having analyzed all the aspects consulted regarding Articles 2 (subsection c), 6, 7, 9 (second paragraph of subsection a), 13, 14, 17, and 18 of the bill entitled \"PUBLIC EMPLOYMENT FRAMEWORK LAW\" legislative file no. 21,336, this Chamber finds that such provisions are contrary to the Law of the Constitution, for violating the governmental autonomy of the municipalities, constitutionally enshrined.

Such provisions subject the Municipalities to a relationship of direction and subjection to an organ of the Executive Branch (Mideplán) in matters of public employment, in violation of the governmental or political autonomy constitutionally safeguarded for the Municipalities. Those articles refer to the following topics: 6 (stewardship of the General System of Public Employment under Mideplán), 7 (broad powers of Mideplán to convert it into a kind of superior hierarch with normative powers over the entire state apparatus in matters of public employment), 9 (the subjection and subordination of human resources offices to Mideplán and the General Directorate of Civil Service), 13 (concerning a single general public employment regime made up of eight families), 14 (recruitment and selection based on normative provisions from Mideplán), 17 and 18 (senior public management staff subject to a single probationary period timeframe and a single appointment timeframe). All of this is clearly violative of the autonomy of the municipalities, since such provisions imply a kind of stewardship and hierarchical relationship with Mideplán. Furthermore, when such autonomy even implies protection against the legislator, who cannot encroach upon matters proprietary to municipal autonomy.

• 5)Reasons and notes on the consultation regarding the Municipalities a) Note by Justice Rueda Leal regarding the inclusion of the municipalities in clause 2, subsection c) of the bill consulted.

I emphasize that the unconstitutionality of this clause arises from its effects, given that it is necessary to view it within the systematic nature of the articles to understand how the autonomy of local governments is affected. As I indicate in other parts of this resolution, the specific determination of the legal consequences, should this bill be incorporated into the legal system, will be developed through case law when analyzing its practical application. With respect to the municipalities, local interests will take on special relevance in such application.

• b)Separate note by Justice Garro Vargas in relation to the unconstitutionality of Article 2, subsection c) In the specific case, unanimously, the Chamber has declared that the consulted Art. 2, subsection c) is unconstitutional for seeking to include the municipalities within the scope of coverage of the public employment framework bill.

To this effect, I would like to specify that, based on the constitutional provisions, it is clear that municipal corporations are decentralized entities by reason of territory, endowed with administrative and governmental autonomy. The municipal autonomy contained in Art. 170 of the Political Constitution originates from their representative character, being a local government (the country's only territorial decentralization), charged with administering the local interests and services of each canton. It is worth quoting verbatim the provisions of Arts. 168, 169, and 170 of the Political Constitution, which regulate matters related to the municipal regime:

“Art. 168.- For the purposes of Public Administration, the national territory is divided into provinces; these into cantons, and cantons into districts. The law may establish special distributions.

The Legislative Assembly may decree, observing the procedures for partial reform of this Constitution, the creation of new provinces, provided that the respective bill was previously approved in a plebiscite that the Assembly shall order to be held in the province or provinces undergoing the dismemberment.

The creation of new cantons requires approval by the Legislative Assembly by a vote of no less than two-thirds of its total members.

Art. 169.- The administration of local interests and services in each canton shall be in charge of the Municipal Government, formed by a deliberative body, made up of municipal council members elected by popular vote, and an executive official designated by law.

Art. 170.- Municipal corporations are autonomous. In the Ordinary Budget of the Republic, all the municipalities of the country shall be assigned a sum that shall not be less than ten percent (10%) of the ordinary revenues calculated for the corresponding fiscal year.

The law shall determine the powers to be transferred from the Executive Branch to the municipal corporations and the distribution of the indicated resources.” These provisions must also be examined alongside those indicated in Arts. 121, subsection 13 (which indicates that it corresponds to the Legislative Assembly to authorize municipal taxes) and 175, which orders that the municipalities shall issue their ordinary or extraordinary budgets—subject, indeed, to the oversight of the Comptroller General of the Republic—important indicators of the budgetary and financial autonomy of the Municipal Government to fulfill the task of ensuring the administration of local interests and services. Likewise, one cannot ignore what is indicated in Art. 149, subsection 5 of the Political Constitution, which places the municipalities on a level similar to other branches of the republic, by reproaching the responsibility of the Executive Branch when it obstructs the functions entrusted to local governments. Said provision regulates the following:

“Art. 149. The President of the Republic, and the Minister of Government who participated in the acts indicated below, shall also be jointly responsible: (…)

• 5)When they prevent or obstruct the proper functions of the Judicial Branch, or restrict the freedom with which the Courts must judge the cases submitted to their decision, or when they in any way obstruct the functions corresponding to the electoral bodies or to the Municipalities; (…)

This constitutional regulatory framework is reflected, moreover, in Art. 2 of the Municipal Code, which in Art. 2 states that the municipality is a state legal entity with its own patrimony and full legal personality and capacity to execute all types of acts and contracts necessary to fulfill its purposes, and in Art. 4 provides the following:

“Article 4.- The municipality possesses the political, administrative, and financial autonomy conferred upon it by the Political Constitution. Among its powers, the following are included:

• a)To issue autonomous regulations of organization and service, as well as any other provision authorized by the legal system.
• b)To agree upon its budgets and execute them.
• c)To administer and provide municipal public services, as well as to ensure their supervision and control.

(Thus amended the preceding subsection by Article 2 of Law No. 9542 \"Law for the Strengthening of the Municipal Police\" of April 23, 2018) d) To approve municipal rates, prices, and contributions, as well as to propose municipal tax tariff projects.

• e)To collect and administer, in its capacity as tax administration, the municipal taxes and other revenues (…)”.

Starting from this described constitutional framework, which recognizes broad autonomy for municipal governments, and in accordance with the general lines set forth supra, I reiterate that a framework law regulating public employment is indeed possible. However, such a regulation cannot ignore the particularities of the configuration of our Rule of Law established in the Political Constitution. In the specific case, it is questioned that Art. 2, subsection c) includes the municipalities within the scope of coverage of the provision.

In my opinion, that provision is not in itself unconstitutional insofar as it includes municipal corporations in a regulatory framework for public employment, provided that framework is understood as one that establishes general principles and norms (which, incidentally, does not mean they are ambiguous). However, because this bill does not meet those characteristics, this article is unconstitutional due to its connection with the rest of the provisions (see, for example, articles 4, 6, 7, 9, 12, 13(f), 14, 17, 18, 19, 21, 22, 30, 46, and 49 of the bill), because it would entail applying it to local governments which were precisely endowed constitutionally with governmental autonomy. That is, what is established in those norms, in connection with this art. 2(c), empties the governmental autonomy, which is inherent to local governments, of its content. Furthermore, the logic of the law in its entirety is embodied not only in its text but also in the statement of motives, which holds hermeneutic value. Thus, for that art. 2(b) to be considered not "in itself" unconstitutional, it would have to be seen as detached from what that statement of motives states in relation to those norms.

• c)Separate note by Judge Picado Brenes, regarding article 2(c) of the bill with respect to Municipalities concerning the steering power (potestad de dirección) of Mideplán (point 45 of the Por Tanto) By unanimous vote, the Constitutional Chamber has considered that article 2(c) of the Public Employment Framework Bill is not in itself unconstitutional insofar as it includes the municipalities in a general regulatory framework for public employment, but it is unconstitutional due to its effects because, in the opinion of the Chamber, some of its norms empty their governmental autonomy of its content. It is essential to make some clarifications in relation to this specific point, and I must begin by recalling that articles 169 and 170 of the Political Constitution grant municipalities powers to administer local interests and services and, in development of those precepts, they enjoy political autonomy to determine their organization and form of administration, in order to achieve that purpose. That level of political or governmental autonomy allows them to set their own goals and objectives as well as the mechanisms to achieve them, including everything relating to the matter of public employment. It must be kept in mind that the degree of municipal autonomy does not permit Mideplán, as an organ of the Executive Branch, to impose directives, provisions, or regulations related to the matter of public employment upon them, and if it does so, it would be harming that autonomy, constitutionally granted. Take into account that in the terms in which the bill is drafted, Mideplán will have full competence and power to establish whatever it deems pertinent, above any hierarchy or Branch of the Republic, and therefore, regarding the municipalities, this will generate a clash with the provisions of articles 169 and 170 of the Constitution, from which it is derived that, both in matters of public employment and in any other matter related to giving life and protection to local interests, the municipalities possess full governmental and administrative autonomy. In consideration of the provisions of those constitutional articles, Mideplán could not impose itself upon the municipalities in matters of public employment without that generating a friction with Constitutional Law.

In my opinion, the power of self-regulation and self-administration of the municipalities, derived from articles 169 and 170 of the Constitution, means that they can issue their own regulations to govern their internal organization and the services they provide, as well as their capacity to manage and promote local interests and services independently of the Executive Branch, all of this including the power to organize and administer the human resources through which they will fulfill their goals and purposes. Consequently, all human resource management must be a municipal competence because, in the end, this will redound to the benefit of the municipal corporation; the contrary, as the bill under study intends, implies a violation of Constitutional Law.

• d)Additional reasons by Judge Garro Vargas in relation to the unconstitutionality of article 7 for affecting the autonomy of the Municipalities In this case, I depart from the opinion expressed by the majority, because I consider that the entirety of art. 7 is unconstitutional, insofar as it subjects the municipalities to the steering (rectoría) and regulatory power (potestad de reglamentación) of Mideplan.

As already noted, that norm establishes a series of broad competences in favor of a ministerial department of the Executive Branch which, applied to the municipal corporations, are unconstitutional for disregarding their autonomy to establish their own administration and government. These competences, as noted, could suppress the capacity for self-government and management of the personnel necessary to carry out the functions intrinsic to them.

Previously, I pointed out that, from my perspective, affecting the independence of the branches of the republic is not the same as affecting the autonomy of other autonomous institutions, and to that extent, the analysis of the competences granted to Mideplan must be nuanced. However, as I have been pointing out, to the extent that by constitutional provision there exists governmental autonomy in favor of municipal corporations to establish their own administration, those competences intended to be granted to Mideplan and that imply a steering power (rectoría) over the autonomy recognized to municipal governments are indeed unconstitutional. Again, if art. 7 is examined integrally in connection with art. 6(b) and (d), as well as art. 9(a) second paragraph, a subjection of the municipalities to orders, directives, and regulations of a ministerial department of the Executive Branch is observed, which harms the governmental autonomy constitutionally entrusted for the fulfillment of their purposes. Furthermore, I reiterate, by law it is possible for a public employment regime to extend to the municipalities, but only if it does not entail subjection to the Executive Branch. In this matter, it must be kept very much in mind that the municipal regime corresponds to a level of government distinct from the central government.

• e)Additional reasons by Judge Picado Brenes, regarding article 7 of the bill concerning the broad competences of Mideplán with respect to the Municipalities (point 47 of the Por Tanto) As has been stated, articles 169 and 170 of the Political Constitution grant municipalities powers to administer local interests and services, and in development of those precepts, they enjoy political autonomy to determine their organization and form of administration, in order to achieve that purpose. That level of political or governmental autonomy allows them to set their own goals and objectives as well as the mechanisms to achieve them; consequently, it would be unconstitutional for MIDEPLAN, as an organ of the Executive Branch, to impose directives, provisions, or regulations related to public employment matters upon them, as intended by article 7 of the bill under study.

Article 7 provides that MIDEPLAN will have full competence and power to establish whatever it deems pertinent, and therefore, regarding the municipalities, this will generate a clash with the provisions of articles 169 and 170 of the Constitution, from which it is derived that, both in matters of public employment and in any other matter related to giving life and protection to local interests, the municipalities possess full governmental and administrative autonomy. In consideration of the provisions of those constitutional articles, MIDEPLAN could not position itself above the municipalities in matters of public employment without generating a friction with Constitutional Law. In this sense, in consonance with the foregoing, article 6 is concerning, because from a comprehensive reading of the bill it is inferred that upon the creation of the General System of Public Employment regulated therein, the municipalities would be included, meaning Mideplán would exercise the steering power (potestad de dirección)—issuing directives—or the regulatory power (potestad reglamentaria); which constitutes a violation of the degree of autonomy that the Constitution granted to the Municipalities.

I consider that, although it is true that the State, through its competent constitutional organs, such as the Legislative Assembly and the Executive Branch, can establish a general policy regarding priorities—such as public employment—due to the needs the country faces at a particular time, it is equally true that according to the Costa Rican democratic system and the provisions of the Political Constitution, each municipality in its jurisdiction is responsible for safeguarding local interests and services, to the exclusion of any interference incompatible with the concept of local matters in the terms established by articles 169 and 170 of the Constitution; therefore, precisely with respect to their political autonomy, matters relating to municipal human resource management must fall within their sphere of competence, without intervention from the Executive Branch, in this case, MIDEPLAN.

In my opinion, the power of self-regulation and self-administration of the municipalities, derived from articles 169 and 170 of the Constitution, means that they can issue their own regulations to govern their internal organization and the services they provide, as well as their capacity to manage and promote local interests and services independently of the Executive Branch, all of this including the power to organize and administer the human resources through which they will fulfill their goals and purposes. It would be absurd to claim that local interests are determined by municipal corporations, but their attention and fulfillment are carried out by persons who serve based on directives, regulations, and provisions from a centralized entity that is not necessarily aligned with the fulfillment of those local goals and purposes. In the same vein, and always concerning human resource management, I consider it illogical that some municipal functions attend to local interests and services because they were designed internally by the municipality, while others, originating from MIDEPLAN, are aimed at achieving different objectives. There must definitively be consonance and balance between the municipal objectives and those others that govern human talent management, and therefore, in my opinion, matters relating to municipal servants must be a municipal competence because, in the end, this will redound to the benefit of the municipal corporation. On this point, then, I must make a clarification that would also be valid for article 6 of the Public Employment Framework Bill, because I consider it inadmissible to divide municipal human resources into two sectors: those who would be included in the general public employment system and those who would be excluded; or as the majority of the Chamber does by considering that there are:

• a)an essential staff to fulfill the constitutionally assigned purposes and administrative, professional, and technical personnel that the highest authorities of the Municipal Corporations define, exclusively and exclusively; and b) public employees of those corporations who perform basic, auxiliary administrative functions, who could indeed remain under the steering power (rectoría) of the Executive Branch or Mideplán.

In my opinion, all personnel working in the municipalities, from the most humble position to the highest hierarchical rank, are absolutely indispensable for the exercise of the local public function constitutionally assigned to these municipal corporations, and this is so because, by way of example, without the work done by garbage collectors or janitors, the Municipal Council or the Mayor could not achieve the fulfillment of the proposed goals for the benefit of local interests. It is absolutely indispensable to view municipal personnel as a whole serving a single purpose, which is the management of local interests and services.

In the matter of human talent management and in accordance with new Personnel Administration theories, the paradigm has changed because employees can no longer continue to be considered simple workers of an organization; they are providers of knowledge, skills, indispensable capabilities, and, above all, of another important contribution which is intelligence, which allows for making better-informed decisions, contributing to achieving overall objectives. Workers are human beings endowed with personality and possess knowledge, skills, aptitudes, and capabilities that are indispensable for the adequate management of organizational resources. Likewise, they are intelligent activators of organizational resources and a source of self-propulsion that dynamizes the organization, and not passive, inert, and static agents. In addition to this, these people invest effort, dedication, responsibility, commitment, risks, among others, in the organization, with the hope of receiving returns on these investments such as salaries, professional growth, career, among others, but also the satisfaction that with their contribution, they enhance the organization. Applying this human talent management theory to the municipalities—but it could also be to the Judicial Branch, the TSE, autonomous institutions, state universities—it is justified to consider employees—municipal in this case—as a whole that dynamizes municipal activity and as people who provide knowledge, skills, indispensable capabilities, and intelligence that allows them to make rational decisions for the benefit of the entire municipality and that give meaning and direction to the overall objectives of the entire municipal corporation. Therefore, it is not valid to divide them into those who a) are indispensable for fulfilling the constitutionally assigned purposes and administrative, professional, and technical personnel that the highest authorities of the Municipal Corporations define, exclusively and exclusively; and b) public employees who perform basic, auxiliary administrative functions, who could indeed remain under the steering power (rectoría) of the Executive Branch or Mideplán, because it is more than evident that both groups are, work, and act as part of a mechanism in which everyone acts to achieve the fulfillment of a single objective: the satisfaction of local interests and services.

Furthermore, it should be noted that the purposes of municipal corporations are very different from those that served as the basis for the drafting of this article 7; consequently, what is intended to be regulated for an organ of the Executive Branch is not necessarily compatible with what should be directed in a municipality or an autonomous institution. Faced with objectives and goals as dissimilar as those of the different institutions added to the scope of this Bill, it is impossible to have a magic formula equally applicable to all of them as this article 7 intends, and therefore, along the way, when it has to be applied, frictions with Constitutional Law will inevitably occur.

• f)Additional reasons by Judge Garro Vargas regarding the unconstitutionality of article 9(a), second paragraph, and its application to the Municipalities After a comprehensive reading of the reasons given by the majority for declaring the unconstitutionality of art. 9(a), second paragraph of the bill, I must state that while I initially set down different reasons, I now concur with the reasoning provided, in the sense that the intention for the human resources offices of municipal corporations to be incorporated into the General System of Public Employment under the express steering power (rectoría) of Mideplan (art. 6(b) of the bill) is unconstitutional. The foregoing is aggravated by the fact that these dependencies are obliged to apply and execute all provisions of general scope, the directives, and the regulations regarding planning, work organization, employment management, performance management, compensation management, and labor relations management that Mideplan sends to them for such purposes. This constitutes an open disregard for the administrative and governmental autonomy that municipal corporations hold by virtue of the aforementioned constitutional provisions.
• g)Additional reasons by Judge Picado Brenes, regarding article 9 of the bill concerning the functions of active administrations with respect to Municipalities (point 48 of the Por Tanto) The Chamber, unanimously, has considered that the second paragraph of subsection (a) of article 9 is unconstitutional regarding its application to the municipalities. Aside from the reasons analyzed by this Tribunal in relation to that norm, there are other weighty reasons that justify that declaration.

It should be recalled that pursuant to articles 168 and 169 of the Political Constitution, the municipal regime is a form of territorial decentralization (ruling No. 2006-17113), but moreover, as I have already stated, in consideration of the provisions of article 170 of the Constitution, the Municipalities are decentralized entities based on territory, which have been endowed with autonomy, called second-degree, which is greater than that of autonomous institutions, because in addition to administrative autonomy, they enjoy governmental autonomy. Thus, then, one of the greatest guarantees that the municipalities possess vis-à-vis the Central Government—Executive Branch—is the degree of autonomy that the Constitution has assigned to them and that has been defined by constitutional jurisprudence as governmental autonomy, or degree two autonomy.

In matters of public employment, the Municipalities have regulatory and administrative autonomy, which allows them to issue their own regulations—through internal bylaws—in the areas of their competence, enabling them to internally regulate the organization of the municipality and the services it provides, but they also have the competence to self-administer and enjoy freedom vis-à-vis the State in order to adopt fundamental decisions of the entity (see rulings No. 002934-1993, 001691-1994, and 005445-1999, among others). The Chamber has stated that the legislator, when enacting the Municipal Code, understood that the designation of functions for municipal employees is an expression of the administrative autonomy of local corporations, and therefore provided that the assignment of duties be done in the Manual Descriptivo de Puestos (articles 128 and 129 of the Municipal Code), and it has also been noted that the disciplinary regime of the municipalities must be verified internally by the local corporations themselves (see ruling No. 005445-1999). Thus, municipal regulatory autonomy implies the capacity that municipalities have to issue their own regulatory framework, understood as autonomous organization and service regulations, subject to what the Law establishes (see ruling No. 2002-003493); consequently, it is more than evident that, in matters of public employment, municipal corporations have full competence and autonomy to establish the policies and regulations necessary for their proper functioning. Based on the foregoing, when analyzing the content of the second paragraph of subsection (a) of article 9 of the Public Employment Bill, it would be impossible to subject the Municipalities to the requirements contained therein because, in accordance with their administrative and governmental autonomy, they have freedom vis-à-vis the State—including the Executive Branch—to issue the regulations they require in order to manage their human resources.

Observe that the norm under analysis provides that the human resources departments of the Municipalities must apply and execute the provisions of general scope, the directives, and the regulations, regarding planning, work organization, employment management, performance management, compensation management, and labor relations management that Mideplán sends them, according to the Ley General de la Administración Pública and the Ley de Salarios de la Administración Pública. Evidently, the norm is overlooking that an organ of the Executive Branch, such as Mideplán, could not impose on a municipal corporation provisions of general scope, directives, or regulations in matters of public employment management, since this—as stated—pertains to a sensitive area inherent to municipal autonomy.

Such a claim would not only harm the provisions of article 170 of the Constitution, but could also cause a clear invisibility of the worldview of each municipality and of the specific functions assigned to them—considered in their individuality—for it should be remembered that each local government has very particular conditions and characteristics, defined by population center and density, geography, culture and customs, predominant ethnicities, territory, among many other aspects that enjoy constitutional protection.

In my opinion, the creation of a one-size-fits-all public employment system that is intended to be imposed on municipal corporations in this matter would also threaten the territorial division of the country—which has constitutional rank—which was not decided with arbitrary or merely subjective criteria, but has an entire historical, cultural, and socioeconomic background that, in turn, permitted the division of the country into these small local governments whose form of administration and government could not originate from a single centralized opinion. It should be taken into account that Municipalities are not simple groups of people and territories united by a common objective but rather correspond to a series of historical, ethnic, cultural, social, and economic elements; it is based on these aspects that they determine their needs, prioritize them, and organize themselves for the satisfaction of their local interests, which undeniably also permeates the characteristics and requirements to be met by their human resources. In that sense, general guidelines could not be applied for all municipalities because each one has completely different needs and priorities, such that a municipal employee who performs certain tasks in a Municipality located in the Gran Área Metropolitana probably could not perform them with the same skill in the Municipality of a rural, agricultural, or coastal area, because their conditions and characteristics—those of the person and of the municipality—are completely different.

In consonance with the foregoing, it is evident that the norm under study would also be creating additional obligations for municipal corporations and their officials, whose fulfillment they would be obliged to execute but which, at the same time, in the event of non-compliance or failure to comply as required by the centralized organ, subjects them to potential liabilities that could be unnecessary and avoidable given that these new responsibilities should not be of general application for all municipalities because, in accordance with the aforementioned, the needs or priorities or projects of a metropolitan area municipality could be very different from those envisioned in an agricultural, rural, coastal municipality or those with a large indigenous population.

• h)Additional reasons by Judge Garro Vargas regarding article 13 and its application to municipal employees The consulted art. 13 establishes that there will be a single general public employment regime composed of eight job families (familias de puestos). Within those job families, it is not possible to identify any category into which municipal officials could be included. Now, the fact that there is no specific family does not mean that municipal autonomy is not harmed because precisely their officials end up in a generic condition as if they were employees of the Executive Branch, their differences are not recognized, and they end up in an "interchangeable" status or one of possible transfer to the Central Government. It should be remembered that the bill also intends to introduce the possibility of mobility within public employment, by understanding the State as a single employer. Not recognizing the specificity of the tasks of municipal employees for the purpose of fulfilling the constitutional function of administering local interests and services is equally unconstitutional, because it implies ignoring the particularities of local governments, assimilating them to central government officials, which clearly has another nature. Likewise, they are included in a "generic" family, without a prior decision originating precisely from the municipal government itself, which, in the exercise of its governmental autonomy, decides the most suitable administrative form to represent its citizens and ensure the adequate provision of local services.
• i)Additional reasons by Judge Picado Brenes, regarding article 13 of the bill concerning the groups of job families (familias de puestos) of the Municipalities (point 49 of the Por Tanto) Article 13 of the Public Employment Framework Bill explains that there will be a single general public employment regime that will be composed of 8 job families, which would apply in the organs and entities of the Public Administration, in accordance with the functions performed by the personnel of each one. Within those 8 job families, none specific exists for municipal servants. Regarding the municipalities, from articles 169 and 170 of the Political Constitution, it follows that, both in matters of public employment and in any other matter intended to satisfy local interests, those corporations possess full governmental and administrative autonomy. In consideration of the provisions of those constitutional articles, Mideplán could not impose itself upon the municipalities in matters of public employment without that generating a friction with Constitutional Law, specifically with the autonomy granted to them in those articles. I hold the opinion that all human talent management must be a municipal competence because each of those corporations possesses the power of self-regulation and self-administration, meaning that they can issue their own regulations to govern their internal organization and the services they provide, they can manage and promote local interests and services in complete independence from the Executive Branch, and to achieve all those objectives, they possess the power to organize and administer their personnel. It should also be remembered that municipalities have specific legislation of legal rank—the Municipal Code—that regulates the relationship between municipal servants and local public administrations; legislation that addresses and respects the autonomy granted to them by the Political Constitution.
• j)Additional reasons by Judge Picado Brenes, regarding article 18 of the bill concerning the terms of the senior management personnel in the Municipalities (point 52 of the Por Tanto) In article 18 of the consulted Public Employment Bill, it was determined by unanimity that it is unconstitutional for affecting the political autonomy of the municipalities regarding the terms of the senior public management personnel. I must add that, in my opinion, there are other reasons that also lead to a contradiction of that provision with Constitutional Law. As I have already indicated above, to analyze this article one must start from the degree of autonomy that characterizes municipal corporations, which, from the administrative point of view, allows them to self-organize, provide themselves with human resources and dispose of them, structure themselves internally, establish the policies for managing their personnel as well as the objectives or goals to be met in that area, among other powers. Consequently, if article 18 obliges them to disregard such competences to subject themselves to what is provided therein, this would evidently incur a violation of the constitutionally guaranteed municipal autonomy. Now, the situation goes much further because, precisely in accordance with such powers, municipal corporations would not even be obliged to contract personnel called "senior public management," or to classify human resources under that name, or with the definition that the bill attributes to that type of official in article 5.

Similarly, if they decided to have personnel with that designation and/or the characteristics established in the draft law, the municipalities would have full autonomy to establish the selection and recruitment processes, the requirements to be demanded, the conditions of employment, the probationary periods, among many other aspects inherent to human talent management; consequently, they would have the competence to determine probationary periods shorter than, equal to, or longer than those regulated by the norm under study, as well as to provide that this type of personnel would be appointed on an indefinite basis, or for periods different from those regulated by this Article 18. From this perspective, Mideplán could not have any interference in the municipal corporations to impose upon them the application of conditions such as those being set forth in that numeral.

It must again be brought up that each of the municipalities existing in the country enjoys conditions, characteristics, projects, needs, priorities, and goals to be achieved that are completely different from one another, and the imposition, from a centralized body such as Mideplán, of unique and general guidelines, would violate not only the territorial division of the country but also the specificity of the population and the local interests to which each municipal corporation is devoted, both protected by the Political Constitution.

It is evident that the legislator, when drafting this norm, did not take into account those aspects which, if applied in the terms intended by the draft, would cause a violation of Constitutional Law.

XIV.- Regarding the consultation on the violation of the autonomy of the Autonomous Institutions.- 1) Aspects consulted The consultants consider unconstitutional both Article 2, subsection b) of the draft "Ley Marco de Empleo Público" being processed in legislative file No. 21.336, by including the autonomous institutions within the scope of coverage of that law, as well as numerals 6, 7, 9, 13, 14, 17, 18, 21, 22, 24, 30, and 49 for invading their administrative autonomy enshrined in Article 188 of the Constitution, since they subject them to the provisions, guidelines, regulations, circulars, manuals, etc. issued by the Ministry of National Planning and Economic Policy, on matters related to work planning, employment management, performance, achievement, compensation, and labor relations.

Upon reviewing the consultation, it has been verified that the statement made by the consultants in relation to those numerals lacks adequate substantiation and does not express, in a clear manner, the motives or reasoning for which this concern is raised before the Chamber; moreover, it is not observed that a consultation on constitutionality in the strict sense has been formulated, but rather, a mere enunciation is made regarding the clash that they believe could occur between the powers being granted to MIDEPLAN and the autonomy of the autonomous institutions. Likewise, no justification is observed for the reasons why they consider that such numerals would violate Article 188 of the Political Constitution. In this regard, it must be borne in mind that Article 99 of the "Ley de la Jurisdicción Constitucional" is very clear in establishing that the consultation must express the questioned aspects of the draft and the reasons for which there are doubts or objections of constitutionality; furthermore, all of this must be done in a reasoned and duly substantiated manner; a requirement that is not met in the specific case and, therefore, the consultation cannot be processed in the terms intended by the consultants.

• 2)Conclusion Consequently, it is unanimously declared that the consultation on the constitutionality of the draft "LEY MARCO DE EMPLEO PÚBLICO," being processed in legislative file No. 21.336, is unprocessable regarding Article 2, subsection b) -specifically as it refers to "the autonomous institutions and their attached bodies, including semiautonomous institutions and their attached bodies" and Articles 6, 7, 9, 13, 14, 17, 18, 21, 22, 24, 30, and 49 due to a lack of adequate substantiation from the constitutional standpoint.

XV.- Regarding the consultation on the violation of the principle of legal certainty by the figure of Conscientious Objection.- (drafted by Magistrate Picado Brenes) 1) Aspects consulted In the Optional Legislative Consultation processed in file No. 21-011713-0007-CO, filed by several deputies, considerations are expressed regarding that Article 23, subsection g) of the draft "LEY MARCO DE EMPLEO PÚBLICO," being processed in legislative file No. 21.336, violates the principles of legality and legal certainty, proportionality, and reasonableness. This numeral establishes the possibility of conscientious objection (objeción de conciencia) in training and education processes, as indicated textually:

"ARTICLE 23- Guiding postulates that guide the training and education processes (…)

• g)Public servants may inform the Administration, by means of an affidavit (declaración jurada), of their right to conscientious objection, when their religious, ethical, and moral convictions are violated, for the purposes of training and education programs that are determined to be mandatory for all public servants. (…)" The consultants argue that this norm is unconstitutional because the possibility for public officials to claim conscientious objection in order not to receive training and education that the State has deemed mandatory is harmful to the principles of legality and legal certainty, proportionality, and reasonableness, this because, in their opinion, the norm does not regulate the conditions, parameters, and restrictions that should surround that situation and with which the violation of fundamental human rights encompassed in Conventional Law as well as others fully recognized by the Costa Rican legal system can be prevented. They point out that by means of a simple affidavit, public officials may inform about a right to conscientious objection when the contents of the training and education programs violate, in their opinion, their religious, ethical, or moral convictions. They consider that it is an entirely broad norm that will allow, appealing to totally subjective criteria, any person to refuse to be trained on core topics of the Public Administration. In that sense, they consider that it is not possible to appeal to conscientious objection to promote inequality, mistreatment, and discrimination from a position of power, for example.

In the Optional Legislative Consultation, processed in file No. 21-012118-0007-CO, filed by other deputies, they consult on the constitutionality of Article 23, subsection g), because they consider it allows the violation of the constitutional principles of legality, legal certainty, reasonableness, and proportionality, as well as the International Covenant on Civil and Political Rights (Art. 18.3) and the American Convention on Human Rights (Article 12.3). They state that, in 1948, the Universal Declaration of Human Rights, in its Article 18, recognized that every person has freedom of thought, conscience, and religion, thus there is a recognition of the individual or collective capacity to freely express their beliefs or religion. They add that the International Covenant on Civil and Political Rights, adopted in 1966, in its numeral 18, protects and recognizes the freedom of thought, conscience, and religion of persons, respecting the legal conditions and limitations that allow its full exercise; a norm that, in turn, establishes that the exercise of this right may not override the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others. For their part, they indicate that, in 1987, resolution number 46 of the United Nations Commission on Human Rights recognized conscientious objection with respect to military service and, in that particular case, in safeguarding human rights, conscientious objection supported the refusal to perform military service by virtue of the freedom of thought, conscience, and religion already included in the international framework stemming from the recognition of the right to refuse to render military service to impose Apartheid; a position that was reaffirmed in 1989 when the Commission on Human Rights, through resolution 1989/59, recognized the right to have conscientious objections in relation to military service as a human right, in compliance with the provisions of the Universal Declaration of Human Rights as well as the International Covenant on Civil and Political Rights. The consultants argue that, at the international level, human rights have recognized and analyzed the friction of conscientious objection with the right to health given the possibility that the exercise of that right prevents the provision of correct sanitary and health care to service users. They point out that Article 18.3 of the International Covenant on Civil and Political Rights, as well as Article 12.3 of the American Convention on Human Rights, establish that the freedom to manifest one's own religion and beliefs is subject only to the limitations prescribed by law and that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others. Thus, they state that it must be understood that, for an official who provides services in the health area, the exercise of conscientious objection is appropriate only when that refusal does not imply harm to the human rights of patients (be they men, women, or children). They add that specifically, regarding respect for freedom of conscience in health professionals, the Inter-American Court of Human Rights has resolved that the rights of their patients as users of a public service must be respected, and it is for this reason that there must be a clear way to exercise that right to avoid violations. They recall that, in Costa Rica, the Constitutional Chamber, through resolution No. 2020-001619, has ruled on conscientious objection and has been consistent with respect for human rights in the exercise of the right of conscientious objection, provided there is no friction with other rights. They argue that conscientious objection is understood as a (recognized) right that allows individuals to reject conduct that is being required of them by law based on reasons that are contrary to them or that affect their beliefs. The consultants allege that, in light of the draft law under consultation, what is proposed by Article 23, subsection g), insofar as it includes in an open and unregulated manner the possibility for public officials to refuse to receive technical training and education that are mandatory and necessary for the exercise of the position they hold, with mere communication via affidavit, could be considered an abusive exercise contrary to the human rights of other citizens. The consultants point out that, analyzing the articles of the draft under consultation, in their opinion, a multitude of rights, both of the officials and of the citizens who receive services from these public officials, come into conflict. They indicate that in resolution No. 2020-002965 of the Constitutional Chamber, this body recognized the equality and universality in the treatment that the administration must give to users, so that public officials, in order to exercise their functions in an upright, efficient, and effective manner, necessarily require having the technical and administrative knowledge that allows them to perform their functions. Furthermore, they argue that there is an obligation of the State to train officials so that state operation conforms to the parameters of public service provision that must be guaranteed to citizens. They point out that the necessary training of officials cannot be understood as indoctrination or the imposition of conditions on public servants, but rather it is a necessary transfer or exchange of information that must be conveyed to officials so they perform their functions in accordance with the conditions for which they have been hired. The consultants question how a public official can determine, prior to receiving training, that it violates their personal beliefs or convictions. They affirm that the solution that the Constitutional Chamber has given to this issue refers to the fact that institutional hierarchies must adopt plans to prevent a neglect of public service from occurring because, while it is true the official has that right, the citizen cannot be limited or harmed in relation to a proceeding for which the objecting official excuses themselves from attending. In addition, they state that the Constitutional Chamber has said that officials, when they assume a position for which they must perform certain acts, are obliged to fulfill them without a right to conscientious objection, insofar as they have accepted to exercise public office in accordance with the law in force at the time of their appointment. They consider that the approach that has been given to this issue during the processing of the draft, accompanied by the rejection of motions that sought to clarify and define the exercise of conscientious objection so that there would be no impact on other fundamental rights, ended up being a violation of fundamental rights in itself. They believe that considering conscientious objection as a mere formality, without greater conditions and restrictions, without any technical seriousness, only to polemicize and polarize Costa Rican society, is contrary to the human rights recognized by the Inter-American Court of Human Rights, considering that this contravenes the obligation of the State, which the Legislative Assembly must guarantee, regarding the safeguarding of legality and legal certainty that must accompany the laws issued. They believe that the inclusion of conscientious objection in Article 23, subsection g), of the draft law called "Ley Marco de Empleo Público", legislative file No. 21.336, could constitute a violation of constitutional principles and human rights in the terms indicated.

• 2)Jurisprudential Background This Constitutional Court has ruled in relation to conscientious objection and, in that sense, has recognized its applicability in various areas. Among the first pronouncements, it recognizes freedom of conscience as a subjective individual public right, enforceable by the citizen against the State; in that sense, ruling No. 1993-3173 at 14:57 hours on July 6, 1993, stated:

"VII.- Religious freedom encompasses, in its generic concept, a complex bundle of faculties. In this sense, it refers first to the individual plane, that is, freedom of conscience, which must be considered as a subjective individual public right, wielded against the State, to demand abstention and protection from attacks by other persons or entities. It consists of the judicially guaranteed possibility of accommodating the subject, their religious conduct, and their way of life to what their own conviction prescribes, without being forced to do anything contrary to it. Secondly, it refers to the social plane, the freedom of worship, which translates into the right to externally practice the belief made one's own. Also integrating it are the freedom of proselytism or propaganda, the freedom of congregation or foundation, the freedom of teaching, the right of assembly and association, and the rights of religious communities, etc.

VIII.- Freedom of worship, as an external manifestation of religious freedom, comprises the right to maintain places of worship and to practice it, both indoors and outdoors, always within the limitations established by the legal system, whether by constitutional norm or legal norm. In this sense, it is the constitutional text itself that allows the free exercise in the Republic of other cults -from the Catholic religion-, provided that they 'do not oppose universal morality or good customs' (Article 75).

IX.- Article 75 of the Constitution provides that the State must contribute to the 'maintenance' of the Catholic religion; this constitutional norm cannot be interpreted in a restrictive sense; on the contrary, it is understood that the State has an obligation, in a general sense, to cooperate with the different religious confessions professed by the inhabitants of the country, and specifically with the Catholic Church. This constitutional obligation consists of enabling religious instruction in public educational centers, in the necessary creation for its development, and not specifically in providing economic financing. With this, the supreme norm considers the satisfaction of religious needs to be of general interest, despite the existence of persons who do not participate in them. Furthermore, it must be interpreted, not as an indicator of partiality of the Constitution in favor of a specific religious confession, but as an indicator of a sociological reality, which is the express mention of the confession indisputably most deep-rooted and widespread in our country, which in no way implies discrimination by the public authorities for the other confessions or for non-confessional citizens." Along the same jurisprudential line, through ruling No. 1996-5492 at 16:54 hours on October 16, 1996, in relation to the exercise of conscientious objection in the educational field, it was stated:

"(…) it is clear that the interpretation of the last paragraph of Article 210 of the Education Code made by the respondent officials, and which was communicated to the petitioner by official note dated March 13, 1996, in the sense that he had to teach Religious Education lessons, also citing in support thereof Article 3 of the Fundamental Law of Education and Executive Decree number 10850-E of October twenty-second, nineteen hundred seventy-nine, violates, to the detriment of the amparo petitioner, the religious freedom contained in Articles 75, 28, 29, and 33 of the Political Constitution and considered by the jurisprudence of this Court, on the individual plane, as a subjective individual public right, which can be wielded against the State when it is considered threatened, as in the case at hand, given the petitioner's status as a non-practitioner of the Catholic religion, and to demand from the State itself the necessary protection so that the intimacy of his beliefs is respected on the individual plane. Respect and protection that have not occurred in the instant case, because the official note that the petitioner has received from the respondent officials, as can be deduced from its reading, does not respect his religious convictions, as he is forced to perform an activity contrary to those individual convictions. Consequently, the indicated norm contained in Article 210 of the Education Code must be understood in the sense that there must be willingness from the teacher, in accordance with their religious convictions, to provide that teaching. It is not only a matter of respect for the teacher's freedom of conscience and worship, but also of the protection of the student who would be exposed to receiving deficient or even inconvenient religious education. For the foregoing, it is appropriate to grant the recurso." In the same manner, the Constitutional Chamber, in the area of freedom of conscience in the field of education, recognizes the international protection of freedom of conscience. In Ruling No. 1999-03914 at 16:27 hours on May 20, 1999, it stated as relevant:

"IX.- Article 75 of the Constitution provides that the State must contribute to the 'maintenance' of the Catholic religion; this constitutional norm cannot be interpreted in a restrictive sense; on the contrary, it is understood that the State has an obligation, in a general sense, to cooperate with the different religious confessions professed by the inhabitants of the country, and specifically with the Catholic Church. This constitutional obligation consists of enabling religious instruction in public educational centers, in the necessary creation for its development, and not specifically in providing economic financing. With this, the supreme norm considers the satisfaction of religious needs to be of general interest, despite the existence of persons who do not participate in them. Furthermore, it must be interpreted, not as an indicator of partiality of the Constitution in favor of a specific religious confession, but as an indicator of a sociological reality, which is the express mention of the confession indisputably most deep-rooted and widespread in our country, which in no way implies discrimination by the public authorities for the other confessions or for non-confessional citizens." On the other hand, Article 14 of the Convention on the Rights of the Child establishes:

"1. States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others." From the foregoing, it is concluded that the amparo-protected girl has the right not to be forced to practice acts of worship or to receive religious assistance contrary to her personal convictions. Given that one of the amparo-protected's religious beliefs refers to God's command not to use images or idols of religious connotation, the obligation to wear a badge with the image of the Virgin of Las Mercedes constitutes an imposition contrary to her convictions and to the religious worship she practices. By virtue of the fact that at the Las Mercedes Educational Center, the omission to wear the institution's badge is penalized under the terms indicated in Article 76 of the Reglamento de Evaluación de los Aprendizajes, the amparo-protected has been forced to wear the image of the Virgin of Las Mercedes on her school uniform, a situation that violates the freedom of religion and worship guaranteed in Articles 75 of the Political Constitution, 14 of the United Nations Convention on the Rights of the Child, 24 of the International Covenant on Civil and Political Rights, Article 13.3 of the International Covenant on Economic, Social and Cultural Rights, and 36 of the Fundamental Law of Education." The protection of the Constitutional Chamber regarding conscientious objection, as a guarantee of the right to freedom of worship, was reiterated in Ruling No. 2001-10491 at 15:57 hours on October 16, 2001, in which it was stated:

"IV.- Now then, the denial of the request made by the amparo petitioner was based on three basic things: that the note by which the referred exemption was requested did not appear signed by the minor's legal representative; that it had been submitted after the start of the school year, when the correct thing is to do it at the beginning; and that this is a mandatory subject for all students. None of the three arguments has any legal basis to support it. Numeral 210 of the Education Code is clear in stating that 'Attendance at religion classes is considered mandatory for all children whose parents do not request in writing from the school or college Director that they be exempted from receiving that teaching,' from which it is inferred that the requirement of submitting the referred letter at the beginning of the course is purely and simply an abusive maneuver on the part of the respondent Director to the detriment of the student, as it imposes limits on the freedom of worship that the law does not provide. It is also verified from the cited norm that the mandatory nature to which it refers is conditioned solely on the student's parents not requesting exemption from it in writing, a situation that in the sub litem has occurred, as can be deduced from folios 10 and 32 of the file, where the note addressed in that regard by the amparo petitioner's father to the Director of the Lyceum appears. Finally, it is also not true that the aforementioned letter lacks the signature of the person responsible for the amparo-protected minor, since it can clearly be read in it that one of the two signatures that appear there is made under the subtitle 'FATHER OR GUARDIAN', which should not be disregarded solely because the signature is illegible. As things stand, acting as the respondent Director has done is to breach the principles of reasonableness and proportionality that inform the legal system, as it imposes limits that neither the Political Constitution nor the law require on freedom of worship; hence, said breach has the consequence of emptying the content of the cited freedom of worship established in Article 75 of the Constitution and developed in the aforementioned 210. Therefore, it is appropriate to grant the recurso." In another precedent, the Constitutional Chamber protected a student of the University of Costa Rica whose conscientious objection to not receiving lessons or taking tests on Saturdays due to the religion she professes was not respected. This precedent was later also applied to the labor sphere. In that sense, resolution No. 2002-03018 at 11:12 hours on March 22, 2002, stated:

"III.- Now then, based on the guidelines set forth in the preceding considerando, the right to religious freedom has been violated in the case under our examination with respect to the sphere of cooperative relations that the State must maintain with the different confessions pursuant to Article 45 [sic] of the Political Constitution. Indeed, the refusal of the University of Costa Rica to conduct a makeup examination for the petitioner despite the fact that her religion limits the performance of educational activities on Saturdays affects the right to practice the acts of worship proper to a belief of the petitioner, and as stated in the preceding considerando, that is one of the elements of religious freedom. This Chamber considers that the refusal of the university authorities to conduct a makeup examination is unreasonable, given that holding an extraordinary or makeup examination for the petitioner not only does not affect the proper functioning of the respondent university center, but also is a usual practice recognized by the entire student and teaching population. As things stand, it is evident in the specific case that the University of Costa Rica has disrespected that duty of cooperation and of non-interference by public authorities in the activities of the religious belief of the petitioner. To that extent, the exercise of her religious freedom to act according to a certain creed has been restricted, conditioned, and obstructed. The amparo-protected has been prevented from carrying out activities that constitute acts, manifestations, or expressions of her religious beliefs. By virtue thereof, the Rector of the University of Costa Rica is ordered to accept the petitioner's request so that she is not forced to take examinations on Saturdays, given that this goes against her religious faith and that this ultimately limits and restricts her freedom of worship protected under Article 75 of the Political Constitution. As things stand, it is appropriate to grant the recurso, as is hereby done." In ruling No. 2002-08557 at 15:37 hours on September 3, 2002, the possibility for students, in the exercise of the right contained in constitutional numeral 75, to refuse, due to conscientious objection, to receive religious education instruction was recognized; in that sense, it was stated:

"The freedom of beliefs, recognized by Article 75 of the Constitution, is a genus that encompasses not only religious freedom or the freedom to freely exercise one's worship, but includes the right to develop and cultivate individual convictions without being disturbed by the State. Religious freedom is inserted into the more comprehensive freedom of beliefs born in the history of humanity from the Peace of Westphalia, as a recognition of tolerance by the Church. The main effect of this recognition is that no one can be harmed or favored because of their beliefs. There is also a background of respect for equality before the law in this principle. The right to freely profess one's worship is the freedom to practice a religious belief.

This means freedom of religious expression – not freedom of intimate belief, as that lies beyond the reach of the law – provided it does not affect public order, morality, or public safety (article 28 of the Constitution). It also implies the right of religious association in communities of that nature. Thus, another immediate consequence of religious freedom is the right of the faithful and followers to associate in religious or public-benefit communities. Freedom of belief is incompatible with any attempt by teachers (or, in general, by the State) to influence the religious formation of children (or the population in general); unless the interested party (or, on behalf of the children, their parents) consents to or requests such instruction. Therefore, it is incompatible with Constitutional Law to expel from schools those students who refuse, on grounds of conscientious objection, to fulfill the obligation of receiving religious formation or teaching of a specific kind.

IV.- Article 77 of the Political Constitution recognizes the right to public education, which shall be organized as an integrated process, correlated through its various cycles, from preschool to university. Furthermore, Article 75 of the Constitution establishes freedom of belief, a principle under which Article 210 of the Education Code was drafted, which, where pertinent, states: "Each grade or section of the primary schools of the Republic, without exception, shall receive two teaching hours of religious instruction weekly. Attendance at religion classes shall be considered mandatory for all children whose parents do not request in writing to the school Principal that they be exempted from receiving such instruction." In this way, conscientious objection is regulated for students who, due to their beliefs, refuse to receive religious formation imparted by the State. In the case at hand, it has been duly demonstrated that, by note dated September 25, 2001, the Principal of the Siquirres Night School, (…), accepted the request of the parents of the amparados (protected parties) to exclude them from their obligation to attend "Christian Ethics" classes (folio 2). Nevertheless, (…), Principal of the Siquirres Night School, has prevented the amparados from continuing in their third year of secondary studies because they did not pass the "Christian Ethics" subject in the 2001 school year (folios 2, 3, 4, 22, 23, 24). This Chamber deems that this exclusion from the educational system, to which the amparados (…) have been subjected, constitutes a flagrant violation of the right to education and of religious freedom, for which reason the amparo is granted in full. Consequently, the Principal of the Siquirres Night School is ordered to immediately reincorporate the amparados (…) as regular students of the third year of secondary studies, taking the necessary measures so that they can adapt to the current state of the subjects they are taking." In judgment No. 2003-03018 at 2:48 p.m. on April 22, 2003, this Court protected a student who did not sing the national anthem or perform the salute to the flag, considering that such acts of veneration are contrary to his religious beliefs. In this regard, it stated:

"V.- It is true that the right to adapt one's conduct to one's own convictions cannot be unlimited, since that conduct must not harm public morality, public order, or third parties. However, in this case, none of those circumstances exist. Not singing the National Anthem does not violate public morality or public order, nor does it harm any third party. The text of Article 32 of the Internal Student Regulations must be adapted to the Political Constitution, which is far superior to it. The duty to sing the National Anthem is subordinate to superior human rights such as freedom of thought and religious freedom.

VI.- The Principal also claims that the parents never requested the school to exempt the child from singing the National Anthem. This argument is inadmissible, since it is evident from the grade reports, at folios 68 to 70, that the student did not attend the religion course. It is clear that the school knew the religious creed of the amparado. If the Principal expected a formal request, he was mistaken. The exercise of a fundamental right cannot be subject to a formality. The party most interested in this matter, precisely the holder of the right, the minor, had already communicated his decision to the school." In judgment No. 2005-05573 at 4:07 p.m. on May 10, 2005, the Chamber protected the right of a student at the University of Costa Rica not to take exams on Saturdays, because that is the day which, according to her creed, must be dedicated solely to devotional use. In that sense, it ordered:

"II.- Object of the appeal. The appellant considers that her religious freedom has been violated to her detriment, since she is enrolled in the Open Education Program of the Ministry of Public Education, which seeks to force her to take exams on Saturdays, the day which, according to her creed, must be dedicated solely to devotional use, which is contrary to her religious freedom and freedom of worship.

III.- On the merits. In a matter similar to the one under study, this Court ordered:

"I.- The complaint brought by the appellant concerns the right to religious freedom recognized in Article 75 of the Political Constitution. The appellant essentially argues that forcing her, through the University of Costa Rica, to take exams on Saturdays—the day which, according to her creed, must be dedicated solely to devotional use—is contrary to her religious freedom and freedom of worship.

II.- Delimiting the content of the fundamental right to religious freedom, we can say that it is properly a freedom to decide for oneself one's own ideology, religion, or belief. The freedom we analyze therefore includes: a) the right to profess a religion or to profess none, b) the right to practice the acts of worship specific to a belief, c) the right to conduct oneself in social life according to one's own convictions. Likewise, we have that Article 75 of the Political Constitution guarantees the religious freedom and freedom of worship of individuals and communities, without further limitation, in their manifestations, than that necessary for the maintenance of public order protected by law. Now, the content of the right to religious freedom is not exhausted in protection against external interference within a sphere of individual or collective freedom that allows citizens to act according to the creed they profess, for an external dimension of religious freedom can be appreciated, which translates into the possibility of exercising, immune to any coercion by public authorities, those activities that constitute manifestations or expressions of the religious phenomenon. On this topic, this Chamber, in judgment No. 3173-93 at two-fifty-seven p.m. on June seven, nineteen ninety-three, ordered:

"...VII.- Religious freedom encompasses, in its generic concept, a complex bundle of faculties. In this sense, it refers first to the individual plane, that is, freedom of conscience, which must be considered an individual subjective public right, wielded against the State, to demand abstention and protection from attacks by other persons or entities. It consists of the legally guaranteed possibility for the subject to accommodate his religious conduct and his way of life to what his own conviction prescribes, without being forced to do anything contrary to it. Secondly, it refers to the social plane, freedom of worship, which translates into the right to externally practice the belief made one's own..." In judgment No. 2012-10456 at 5:27 a.m. on August 1, 2012, the Constitutional Chamber resolved an amparo proceeding against the Ministry of Public Education regarding the issue of the Education for Affectivity and Sexuality Program, making it clear that the Ministry of Education must respect the religious and philosophical convictions of parents in the education of their children; that is, the Chamber recognized the right to conscientious objection in the education of minors concerning the subject of sexuality. Regarding what is relevant, the Chamber stated:

"VI.- ON THE RIGHT TO EDUCATION AND THE STATE'S OBLIGATIONS IN MATTERS OF SEXUAL EDUCATION. International Human Rights Law recognizes the right to education, in general, for all persons, whether minors or not, as this Court has indicated in repeated jurisprudence - among others, judgment No. 1791-2004, at nine hours and two minutes on February twenty, two thousand four. In relation to the object of this amparo, the right to education imposes a series of obligations on the State in matters of sexual education and health. In this regard, the Convention on the Elimination of All Forms of Discrimination against Women states:

"Article 10: States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure them equal rights with men in the field of education and in particular to ensure, in conditions of equality between men and women:

(…)

• h)Access to specific educational information to help to ensure the health and well-being of the family".

For its part, the Ibero-American Convention on the Rights of Youth integrates, as part of the right to education, the right to sexual education for young people, by providing the following:

"Article 23: 1. States Parties recognize that the right to education also includes the right to sexual education as a source of personal development, affectivity, and communicative expression, as well as information relating to reproduction and its consequences. 2. Sexual education shall be taught at all educational levels and shall foster responsible conduct in the exercise of sexuality, oriented toward its full acceptance and identity, as well as toward the prevention of sexually transmitted diseases, HIV (AIDS), unwanted pregnancies, and sexual abuse or violence. 3. States Parties recognize the important function and responsibility that corresponds to the family in the sexual education of young people. 4. States Parties shall adopt and implement sexual education policies, establishing plans and programs that ensure information and the full and responsible exercise of this right." Finally, the Convention on the Rights of the Child states:

"Article 19: 1. States Parties shall take all appropriate legislative, administrative, social, and educational measures to protect the child from all forms of physical or mental harm or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while the child is in the care of parents, legal guardian, or any other person who has the care of the child.".

The aforementioned international obligations regarding sexual education and health have been embraced by our legal system, especially in the Childhood and Adolescence Code, which provides the following:

"Article 44.- Competencies of the Ministry of Health.

The Ministry of Health shall ensure that the right to the enjoyment of the highest level of health, access to prevention and treatment services for illnesses, as well as the rehabilitation of the health of minors, is verified. For this purpose, the Ministry of Health shall have the following competencies:

(…)

• c)Guarantee the creation and development of comprehensive care and education programs directed at minors, including programs on sexual and reproductive health; (…)
• g)Guarantee comprehensive treatment programs for adolescents regarding prenatal, perinatal, postnatal, and psychological control." "Article 55.- Obligations of educational authorities.

It shall be the obligation of directors, legal representatives, or persons in charge of general basic education, preschool, maternal, or other public or private centers of education or care for minors:

(…)

• c)To implement the programs on preventive, sexual, and reproductive health education formulated by the relevant ministry." "Article 58.- National policies.

In the design of national educational policies, the State shall:

(…)

• f)Promote the inclusion, in educational programs, of topics related to sexual education, reproduction, teenage pregnancy, drugs, gender violence, sexually transmitted diseases, AIDS, and other serious ailments." As is evident from the transcribed norms, both internationally and from the domestic normative development made from them, there is an obligation for the Costa Rican State to implement sexual education policies for minors. This Court credits that the study program "Education for Integral Affectivity and Sexuality" prepared by the Ministry of Education responds precisely to this conventional and legal obligation. However, this obligation does not imply, in turn, the possibility for the State—at least not in a constitutional state governed by the rule of law—to affect the rights to freedom, conscience, and religion of a part of the population, also established in international human rights instruments, for which reason it is necessary to take actions that allow for the harmonious coexistence of both rights, as detailed below.

VII.- ON THE CLAIM REGARDING THE AFFECTATION OF THE CONSTITUTIONAL RIGHT OF PARENTS IN RELATION TO THE EDUCATION OF THEIR CHILDREN: In this case, this Court's competence does not aim to determine what the specific content of the sexual education guides taught in the national educational system should be; this is a matter that corresponds to the Higher Education Council in accordance with Article 81 of the Political Constitution. Rather, the Chamber's competence is framed within the protection of the fundamental rights of the justiciable parties, particularly that referring to the legal norm of the highest legal rank that recognizes the possibility for parents that their children be educated in a manner consistent with their moral or religious beliefs. In this regard, it is important to cite what international Human Rights instruments state, beginning with the Universal Declaration of Human Rights, which in its Article 26, paragraph 3, specifies that parents have a prior right to choose the kind of education that shall be given to their children. For its part, the International Covenant on Economic, Social and Cultural Rights expresses, in its Article 13, paragraph 3, the following:

"Article 13 (…)

3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians, to choose for their children or wards schools other than those established by the public authorities, provided those schools conform to such minimum standards as may be laid down or approved by the State in matters of education, and to ensure the religious and moral education of their children or wards in conformity with their own convictions." Likewise, the International Covenant on Civil and Political Rights, in its Article 18, paragraph 4, establishes the following:

"Article 18.- (…)

4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians, to ensure the religious and moral education of their children in conformity with their own convictions." This concept is repeated in Article 12, paragraph 4, of the American Convention on Human Rights, which states:

"Article 12.- Freedom of Conscience and Religion (…)

4. Parents and, when applicable, guardians have the right for their children or wards to receive the religious and moral education that is in accordance with their own convictions." Finally, and within this international legal framework applicable to the case, it should be mentioned that the Convention on the Rights of the Child establishes that:

"1) States Parties shall respect the right of the child to freedom of thought, conscience, and religion. 2) States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 3) Freedom to manifest one's own religion shall be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the rights or freedoms of others." Equally, it is evident from the above norms the existence of a state obligation specifically referring to the state activity of education, so that officially provided education could not simply impose its power over the essential content of the rights recognized in the instruments just cited.

VIII.- This topic, in turn, has jurisprudential development in the case law of the European Court of Human Rights. This Court has resolved cases of conscientious objection in the educational sphere due to the invocation of Article 2 of the First Additional Protocol to the European Convention on Human Rights, which imposes on the State the duty to respect the religious and philosophical convictions of parents in the education of their children. Notable is the first approach to the subject, which occurred in the Kjeldsen, Busk Madsen and Pedersen vs. Denmark judgment, where a conflict was specifically analyzed between parents who opposed their children receiving a mandatory subject on integrated sexual education; the Court considered that the purpose pursued by the Danish government with the new law was legitimate, as it sought to combat the number of unwanted pregnancies outside marriage, the number of abortions, and venereal diseases. It also specified that Article 2 of the cited Protocol did not prevent States from disseminating, through teaching or education, information or knowledge that is, directly or not, of a religious or philosophical nature. It did not allow parents to oppose this type of subject matter, as institutionalized instruction risked becoming impracticable, although it did impose on the State the duty of vigilance to ensure that such information inserted into a curriculum was disseminated in an objective, critical, and pluralistic manner, thereby prohibiting the pursuit of a goal of indoctrination, which could indeed affect the religious and philosophical convictions of parents. In this case, the dissenting vote of Judge Verdross is of particular relevance, which became—over time—the majority position of the Court in subsequent cases. According to the cited Judge, detailed and overly precocious sexual education provided by the State under the State's monopoly in the domain of education deprives parents of their primary right to ensure the education of their children in accordance with their own religious convictions. He also pointed out that everything concerning the conscience of children—their moral orientation—is a matter that concerns parents according to Christian doctrine, and therefore the State cannot interpose itself between parents and children against the will of the former. He asks whether, based on Article 2 of the Protocol, parents can oppose mandatory sexual education in a public school, even when said education does not constitute an attempt at indoctrination. To answer this question, he distinguishes between the facts of human sexuality, which are part of biology, and sexual behaviors, including contraception and contraceptive methods. For the cited Judge, these latter are indeed immersed within the moral and conscience sphere, for which reason it is for the parents to be responsible for their formation, not the State; this right of parents cannot be violated, ignored, or disparaged by the State. Therefore, even when information about sexual behaviors has an objective character, it injures the rights of parents insofar as it invades the conscience of minor children, as they may receive an education contrary to the religious convictions of their parents. The doctrine established in that dissenting vote was followed by the cited Court in the Folgero and Zengin v. Turkey judgments. In this latter judgment, the Court concludes that the State is obliged to respect the religious and philosophical convictions of parents throughout the entire public school curriculum. This duty of the State applies to the content of the education and the way of dispensing it, and in that context, parents can demand that the State respect their religious and philosophical convictions.

IX.- The Supreme Court of Justice of the United States of America has also pronounced on the link between education and freedom of conscience. In this regard, in the Wisconsin v. Yoder (1972) judgment, the Court considered, regarding the education provided to children of the Amish religion, that "(…) the essence of all that has been said and written on this subject is that interests of a higher order and those that cannot be exercised otherwise may counterbalance the legitimate claim to the free exercise of a religion. We can accept, therefore, that no matter how strong the State's interest in compulsory general education, it is by no means absolute and does not permit the exclusion or subordination of all other interests. Compliance with the state law requiring compulsory school attendance... would gravely endanger, if not destroy, the free exercise of their faith for the defendants." Thus, religious freedom was considered prevalent over the state interest in compulsory education for the minor children of the Amish.

X.- CONSIDERATIONS ON THE SPECIFIC CASE: In this case, there are sufficient elements of conviction to conclude that the study program "Education for Integral Affectivity and Sexuality" does not refer solely to facts of human sexuality, but also encompasses sexual behaviors. To demonstrate this, it is sufficient to note that the document setting it out establishes the following:

"In Costa Rica, until now, education for sexuality has been mainly presented as an informational process centered on its biological dimension. This study program, within the framework of the current general policy approved by the Higher Education Council in 2001, called Política Educación Integral de La expresión de la Sexualidad Humana (Agreement from Article three of minutes 2001-12-06 modified in its section No.6 by agreement 02-08-04) integrates that dimension, as an indispensable element of sexuality formation, but adds a formative and affective dimension, which is emphasized." (Bold text does not correspond to the original). Further on, it is specified that what is sought with the content and strategies of this program is "(…) to generate attitude changes that enhance respect for and the promotion of the human person," meaning the way students act, their behavior regarding sexuality, which logically implies instilling in them values, knowledge, conceptions, skills, and abilities regarding the phenomenon of sexuality. Proof of what we are affirming is that when specifying what is meant by education for affectivity and integral sexuality, "(…) it starts from the premise that the mission of sexuality is bonding, from the affective, bodily, ethical, and spiritual dimensions, with the support and promotion of emotional maturity." By spiritual is meant that which relates to values, ethical criteria, and the meaning of life." Now, if our society has formally recognized pluralism, democracy, and respect for freedom of thought and belief as its goals, it is to be expected that within it numerous visions and perspectives will arise, prosper, or decline on a wide variety of ideological and moral issues, among which the sexual behaviors of individuals are included, which are often closely related to the religious or philosophical beliefs of persons; similarly, it is also inevitable that those who profess such beliefs will attempt to exercise the aforementioned fundamental right to transmit them to their children. Within this plurality, it is therefore appropriate to question the validity of imposing one vision of sexual behaviors by the State, in the sense of asking which of all is to be that favored vision: that of the Higher Education Council or that of the Minister of Public Education? That of the Ombudsperson or that of the teachers who teach the subject? Should the vision linked to a particular religious practice be imposed, or rather should the criteria of agnostics, atheists, or the amoral be disseminated? Evidently, it is impossible for the content of this type of program to satisfy everyone, that is, to be in accordance with the religious and philosophical beliefs of all parents and their children, hence the State's authority to give it the content it deems most appropriate is recognized. However, given the fact that this type of teaching forms part of the students' moral heritage and affects their scale of values, their beliefs, and their conscience, parents who consider that the content of the sexual education guides negatively affects the religious and philosophical beliefs they wish for their children have no obligation to endure an invasion by the State in an area that Constitutional Law and International Human Rights Law reserve to the sphere of the parent-child relationship. In this direction, it is pertinent to bring up what the Colombian Constitutional Court specified in judgment T 662/99, in the sense that:

"(…) it cannot be affirmed that a student's thoughts or their moral or religious behavior legitimize conduct by the institution aimed at the disregard of fundamental constitutional rights, particularly in the space reserved for their freedom of conscience. As long as it is merely the profession of their ideas or practices consistent with the free exercise of that freedom, and as long as their conduct causes no harm to the student community, individual conscience must be exempt from external impositions." A democratic society is a tolerant society and, therefore, it imposes both respect for the beliefs of all the people who form part of society, and the right that those beliefs be translated into reality, regardless of what others think about them, as well as the right to reject any invasion in the sphere of conscience. Therefore, this Court understands that the appropriate way of reconciling the rights at stake in this case points to the need to establish a mechanism in favor of those parents who consider that the implementation of the "Education for Integral Affectivity and Sexuality" study program substantially affects their fundamental right to effectively influence aspects affecting the moral or religious education of their children, according to the formulation contained in the positive law norms already reviewed.

XI.- Now, this Court considers it important to establish some general ideas about this mechanism for exclusion from the "Education for Integral Affectivity and Sexuality" study program, which is recognized here as part of a valid exercise of a fundamental right. As indicated, the Chamber understands the relevance of sexual education and adopts as its own the concerns regarding the public health and development problems that have been attributed to the lack of sexual education. This, added to the obligations imposed on the State by international law, means that the state educational obligation and its responsibility in this regard are underscored. For parents to be able to exclude their children from the "Education for Integral Affectivity and Sexuality" study program, the Ministry of Public Education must establish the manner in which the minor's representatives can make the respective objection through an agile and simple mechanism, in order to guarantee respect for their fundamental rights related to the education of their children.

By way of example, a simple written communication from the parent to the Director of the Educational Center indicating that their children will not receive that educational content would suffice." In the employment sphere, the Chamber, through judgment No. 2015-008155, of 10:05 a.m. on June 5, 2015, resolved an amparo proceeding in which the dismissal of an official who did not work on Saturdays because he belonged to the Seventh-day Adventist Church was protected; in that regard, it ordered:

"The claimant argues that, despite it being known to traffic authorities that he belongs to the Seventh-day Adventist Church and, therefore, Saturday is a day of rest, the Traffic Delegate of Cartago changed his schedule to include Saturdays, and furthermore, that on the following eleventh of May, he was verbally warned that a report had already been forwarded for his dismissal for not working on Saturdays.

II.- Proven facts. Of importance for the decision in this matter, the following facts are deemed duly demonstrated, either because they have been so accredited or because the respondent has omitted to refer to them as provided in the initial order:

a. On May 10, 2013, the claimant submitted a letter to the Office of the Ministry of Public Works and Transport attesting that he is an active member of the Seventh-day Adventist religious organization (see Legal Report).

b. On April 7, 2015, the Traffic Delegate of Cartago verbally informed the claimant that, due to staffing needs, his schedule had been modified (see legal report).

c. On April 14, 2015, the claimant filed a petition with the Department of Labor Relations of the Ministry of Public Works and Transport stating that he disagrees with working on Saturdays due to his religious condition (see legal report).

d. On April 15, 2015, through official communication DRL-088-2015, the Department of Labor Relations of the MOPT informed the claimant that said department lacks jurisdiction to resolve the request (see legal report).

e. On April 21, in official communication DTC-2015-0240, the claimant was notified of the schedule change.

f. On April 24, 2015, the Personnel Council of the MOPT requested the Legal Director to issue a legal opinion on the claimant's request (see legal report).

g. On May 14, 2015, through official communication 20152143, the Legal Directorate of the Ministry of Public Works and Transport stated: "It is our legal opinion that the Administration must respect the constitutional right of those officials who profess a religious creed whose observance takes place on Saturdays (…)" (see legal report).

h. On May 19, 2015, official communication DGTP-0704-2015 was issued, instructing Mariano Alfaro Mora (Chief of the Traffic Police of Cartago) to modify the claimant's schedule (see legal report).

i. On May 20, 2015, the claimant's Chief, through official communication DTC 2015-0310, stated: "I inform you that I will immediately proceed with the change of the official's work roster, in accordance with the opinion issued by… the Legal Advisory Office… as well as the Agreement of the Personnel Council (…)" (see legal report).

j. The General Directorate of Traffic of the Ministry of Public Works and Transport has not initiated any action for the dismissal of the claimant (see legal report).

III.- Unproven facts. None of relevance for the resolution of this matter.

IV- On the merits. From the report rendered by the respondent authority -which is deemed given under oath with the consequences, including criminal ones, provided for in Article 44 of the Law governing this Jurisdiction- and the evidence provided for the resolution of the matter, although the respondent authorities state they have resolved the petition filed by the claimant on April 8, 2015, regarding the schedule change issued by the Traffic Headquarters of Cartago, it is also true that regarding the request submitted by the claimant (April 14, 2015), the respondent authority communicated the resolution to him on May 20 of this year, which occurred after the notification of the resolution that granted leave to proceed with this amparo (05/18/2015). Now, regarding the dismissal alleged by the claimant, it is clear from the report issued that no such action has been initiated. In this context, the appropriate course is to declare the recourse with merit, solely for purposes of compensation." In judgment No. 2015-011897 of 11:41 a.m. on July 31, 2015, the Constitutional Chamber protected an officer of the Public Force who professes Judaism, a religion for which the Shabbat "Saturday" is a day of rest; in that regard, it stated:

"IV.- Specific case.- Now, in the particular case, it is duly accredited that the claimant, [NAME001], is an active member of the Toras Jai VeAhavas Jesed Association, whose activity is of a religious nature, according to a certificate issued by Rabbi Rinjos Dov Fishman on February 17, 2015. Likewise, he is an officer of the Ministry of Public Security and is stationed at the Police Delegation of Alajuelita. The protected party alleges a violation of his religious freedom -enshrined in Article 75 of the Political Constitution- because on December 9, 2014, he submitted a petition to his superiors in which -due to his religious beliefs- he requested a 5 x 2 work schedule, because he professes Judaism and the Shabbat 'Saturday' is a day of utmost importance as a fundamental part of his beliefs and worship practices, as it is a day of rest. Therefore, they abstain from performing activities unrelated to the worship and adoration specific to that day. However, he asserts that this petition -as well as subsequent ones- have been denied by his superiors for various administrative reasons. For their part, the Chief of the Police Delegation of Alajuelita and the Legal Director of the Ministry of Public Security indicate, in their report, that said Ministry does not oppose Mr. [NAME001]'s religious beliefs, nor the freedom of worship to which he is entitled; however, they argue that the entire operation of a Police Delegation, which is previously established and involves a whole organization of the available personnel, is at stake, so changing one official's roster causes it to be altered, since the amount of personnel available when preparing the daily work plans for said delegation is no longer available. Likewise, they indicate that through official communication No. 0249-2015-D10 of April 14, 2015, a response was provided to the note of April 11, in which the claimant was informed that assigning him the 5 x 2 roster is not feasible, because the functions that allow such a roster are already being performed in the Police Delegation, and the protected party holds the position of Communications Agent, in Occupational Analysis, class 2. In this regard, it is pertinent to clarify that members of the State police forces, like any person, enjoy fundamental rights, and although it has been recognized that they may be subject to certain employment-related limitations due to the function they perform, the truth is that this would be possible only in those cases where the interest of the community, duly proven, is at stake, since otherwise an illegitimate action would be incurred. Considering the foregoing, and after analyzing the elements contributed to the case file, it is estimated that the decision of the respondent authority is contrary to law, because if one takes into account that a large majority of the country's population belongs to Catholicism, and a minority is Protestant, and within that minority an even smaller percentage observes Saturday for religious reasons, it is reasonable to hold that, in the case of Public Force members, few profess those religious beliefs; hence, the fact that these officers are allowed to comply with that precept in no way implies a serious affectation of the public service entrusted to them. In that sense, prior to adopting the decision challenged in this amparo recourse, the respondents were under the obligation to seek the least burdensome solution for the protected party, in order to avoid affecting the provisions of numeral 75 of the Political Constitution; however, the respondents did not proceed in that manner, as the measure adopted entailed an injury to the protected party's religious freedom, and, moreover, was not proportional to the purpose for which it was adopted, since, as indicated previously, the fact that the protected party had been allowed to observe his day of rest did not entail a serious violation of the public interest. That is to say, between two possible solutions, the one most burdensome for the fundamental right is chosen and, consequently, it is violated, in addition to the fact that the measure agreed upon by the respondent authority is neither proportional nor fair in itself, so there is no alternative but to declare the amparo recourse with merit. Consequently, the amparo is admissible as the injury to constitutional Article 75 is accredited, and the respondent officials are immediately ordered to respect Mr. [NAME001]'s Saturday as a day of worship and adoration, which shall always be considered his day of rest." In judgment No. 2017-000228 of 09:15 a.m. on January 13, 2017, the Constitutional Chamber similarly protected a student of the University of Costa Rica so that tests or evaluations would not be administered to him on Saturdays, and stated:

"…in the case before us, it is pertinent to bear in mind that religious freedom, enshrined in Article 75 of the Political Constitution, encompasses, in its generic concept, a complex bundle of faculties. In this sense, firstly, it refers to the individual level, that is, freedom of conscience, which must be considered as an individual public subjective right, asserted against the State, to demand abstention and protection from attacks by other persons or entities. It consists of the legally guaranteed possibility for the individual to accommodate their religious conduct and way of life to what their own conviction prescribes, without being forced to do anything contrary to it. Secondly, it refers to the social level, the freedom of worship, which translates into the right to externally practice the adopted belief. Now, like any fundamental right, the exercise of religious freedom or worship is not unlimited, as the Political Constitution itself provides, in numeral 75, that it may not oppose universal morality nor good customs. Likewise, international treaties such as the International Covenant on Civil and Political Rights provide, in its Article 18, that 'freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.' From the foregoing, it follows that any manifestation of religious freedom may be possible, provided it is not contrary to the morals and good customs of society, or seriously harms the public interest, as should any of these situations arise, the limitation of the cited right would be possible." Regarding conscientious objection in the employment sphere, the Constitutional Chamber recently ruled on the case raised by a judge of the Notarial Court of the Judicial Branch, after the respondent authorities denied the exercise of conscientious objection in response to petitions filed by same-sex persons. In that sense, in judgment No. 2020-001619 of 12:30 p.m. on January 24, 2020, it stated:

"IV.- On the right to conscientious objection (objeción de conciencia). Both in doctrine and in the most authoritative jurisprudence of the Courts that guarantee fundamental rights, conscientious objection has been conceptualized as a fundamental right of every person to refuse to fulfill a duty, which is established in the legal system, because the respective norm is incompatible with their beliefs or convictions, which are based, as a rule, on religious, moral, or ideological convictions. It is held that this right is a logical and necessary derivation of freedom of conscience, and constitutes one of its external manifestations. The recognition and effective protection of this fundamental right is an indisputable distinctive element of a pluralistic society, to the extreme that its non-recognition or its reduction to the minimum expression -severe harm to its essential content rendering it unrecognizable or impracticable- not only denotes its violation but also constitutes a worrying sign that the society in such a situation seeks to impose a single vision, an exclusive and exclusionary thought, on topics and issues where diversity of opinions should prevail, in accordance with numeral 28 of the Fundamental Charter and Articles 12 and 13 of the American Convention on Human Rights, as well as its numeral 6, where military service and, in countries where exemption for reasons of conscience is admitted, the national service established by law in lieu thereof, are expressly established. Like the cited Convention, the European Convention for the Protection of Human Rights and Fundamental Freedoms makes express reference to conscientious objection in the same terms in Article 4.3.b. For its part, the European Charter of Fundamental Rights of the European Union, when referring to freedom of thought, conscience, and religion in its numeral 10, paragraph 2, expressly recognizes the right to conscientious objection in accordance with the national laws governing its exercise. Unlike the Inter-American Court of Human Rights, the European Court of Human Rights (hereinafter the ECtHR) has ruled on the fundamental right to conscientious objection. Regarding mandatory military service, in the case Tblimmenos v. Greece, in 2000, the ECtHR concluded that said State had violated the prohibition of discrimination (Article 14 of the Convention) in relation to the right to freedom of thought, conscience, and religion (Article 9 of the Convention), considering that the exclusion of the applicant from the profession of public accountant was disproportionate in relation to the guarantee of adequate punishment of persons who refuse to serve the country -it involved a Jehovah's Witness who had been sentenced to four years in prison for refusing to enlist in the army-, especially because he had already served his sentence. Six years passed before the ECtHR, in the case Ulke v. Turkey 2006, established limits for the States party to the Convention, prohibiting the infliction of inhuman and degrading treatment (Article 3 of the Convention) against the objecting person. The applicant was a Turkish citizen who refused to perform military service due to his pacifist beliefs, who had been sentenced to prison nine times. Of great importance in this jurisprudential review is the case Bayatyan v. Armenia of 2011, in which the Grand Chamber of the ECtHR holds that although Article 9 of the Convention does not expressly refer to the right to conscientious objection, this is an autonomous right derived from freedom of conscience and must therefore be guaranteed -like any other freedom in the Convention- from arbitrary interference by the State. Thus, a limitation on said right must pass the test of reasonableness and proportionality, since every State action must strictly adhere to the limits defined in that test, that is, that it is a proportional measure that responds to a legitimate and necessary aim in a democratic society. Furthermore, it is important to note that the ECtHR warned that this rule does not apply generally, but must always be evaluated in light of the particular circumstances of each case. This criterion was reiterated in the cases Ercep v. Turkey (2011), Sarda v. Turkey (2012), Tarban v. Turkey (2012), Feti Demitras v. Turkey (2012), and Buldu v. Turkey (2014). The Court has also ruled on conscientious objection in the case of pharmaceutical products and, on another occasion, in the context of property rights. In the case Pichón and Sajous v. France (2001), the Court held that since the sale of contraceptive products was legal and, in that case, occurred by medical prescription, the applicants could not give priority to their religious beliefs and impose them on others to justify their refusal to sell this type of product. In the case Hermann v. Germany (2012), in which the applicant was forced by German law to tolerate hunting on his property and made a conscientious objection based on his pacifist beliefs, the Court ruled in his favor, as there was interference with his property by having to tolerate armed men and hunting dogs on his land. The ECtHR reiterates its position in the cases Chassagnou and Schneider, in the sense that imposing hunting on landowners who oppose it based on ethical beliefs entails a disproportionate burden, incompatible with Article 1 of Protocol 1. Regarding conscientious objection in relation to the use of religious symbols, the ECtHR has ruled on several cases concerning its impact in different areas, specifically in public spaces, in the educational environment, and in the workplace. In this regard, there are four significant cases: Dablab v. Switzerland (2001), Leyla Sahin v. Turkey (2004), Drogu v. France (2008), and Kervanci v. France (2008). From their analysis, it emerges that the ECtHR has maintained a line of support for the margin of appreciation of States, authorizing the limitation on the use of religious symbols, in particular, the use of the Islamic veil. A very interesting case was that of Eweida and Others v. the United Kingdom (2013), in which the ECtHR protected the first applicant for a breach of freedom of conscience and religion, but not the remaining three. The case of Ladele presents special interest; she was a registrar responsible for registering marriages, births, and deaths, who, due to a regulatory change, was obliged to register same-sex unions. The ECtHR reiterated its position that religious freedom encompasses the freedom to manifest beliefs privately, but also entails their practice in community with others and in public. Such manifestations may take the form of worship, teaching, practice, and observance. Since the manifestation of a person's religious beliefs may have an impact on others, restrictions on them must be prescribed by law, be necessary in a democratic society, and pursue a legitimate aim. In turn, to count as a manifestation within the meaning of Article 9 of the Convention, the act in question must be intimately linked to the religion or belief. In this case, it is important to highlight the dissenting opinions of Judges Vucinié and De Gaetano regarding the applicant Ladele, as conscientious objection is viewed as a right that facilitates harmonious interaction with other fundamental rights that may come into tension with it. For both, the ECtHR erred in denying the violation of the rights to freedom of conscience and religion, as well as the right to non-discrimination of the registrar, who, because of her Christian convictions, refused to register marriages between persons of the same sex. They emphasize the importance for a person of moral judgment or conscience, protected by the right to conscientious objection and different from the specific content of religious freedom. They conclude that the majority of the ECtHR erred, as the third applicant's beliefs did not have an impact on the content of her work, but only on its scope. Nor was it proven that she had attempted to impose her beliefs on others, openly or surreptitiously, so the fact that she lost her job was totally disproportionate.

(…)

VI.- Conscientious objection (objeción de conciencia) and the exercise of the jurisdictional function. A not uncontroversial issue is whether a Judge, in the exercise of the jurisdictional function, that is, exercising the ownership of a State power, may or may not exercise the right to conscientious objection. It is clear that there are certain situations in which the right to conscientious objection is not applicable, due to its own nature and generalized character. Doctrine has held that the conscientious objection of a criminal Judge alleging that his conscience does not permit him to impose punishments is not possible. The same can be said in the case of a family Judge who objects to divorce. In all these situations -furthermore, one must bear in mind that when he opted for the position, he voluntarily assumed all its functions-, consequently, we would be breaching an elementary rule of good faith if he subsequently sought to exercise the right to conscientious objection. However, there are other cases where conscientious objection in the jurisdictional function is indeed applicable. Indeed, the Italian Constitutional Court had the opportunity to hear a case in which a Judge objected to substituting the consent of a minor for an abortion, in 1987. In this case, the cited court rejected the question, arguing it was insufficiently substantiated, which caused perplexity, criticism, and intense debate, as there was a certain doctrinal agreement that the question of constitutionality could have been resolved through the extensive interpretation of Article 51 of the Italian Code of Civil Procedure, which allows the recusal in a case of a Judge who asserts 'serious reasons of convenience,' thus making it possible to transfer the case to another Judge who does not raise conscientious objection. As can be observed from the foregoing, some hold that the right to conscientious objection of judges can be exercised through the grounds for recusal; however, being in the presence of an autonomous fundamental right and being a right-duty in this case, it must be exercised in a most personal manner, as it is up to the objector, based on their beliefs or convictions, to determine whether these prevent them from resolving the legal dispute before them. The position of the Colombian Constitutional Court is different; in Tutela judgment No. 388/09 of May 28, 2009, it held an absolute, maximalist position, in the sense that judicial authorities cannot shield themselves behind the right to conscientious objection to refuse to process or decide a matter brought before them. This position empties the essential content of the right to conscientious objection, since for this Court, male and female judges do not enjoy this fundamental right. We shall see that it is possible to guarantee the public service of Administration of Justice under conditions of equality and non-discrimination, admitting the right to conscientious objection in the jurisdictional function, as an important sector of doctrine has rightly maintained.

VII.- On the specific case. Now, in all these matters, one must bear in mind a fundamental premise and a historical constant, in the sense that there are no absolute fundamental rights, except the right not to be subjected to cruel, inhuman, or degrading treatment; consequently, the right to conscientious objection has boundaries and limitations, and in those cases where it collides with another fundamental right, one must resort to the principle of practical concordance and, consequently, it is necessary to perform a balancing test (juicio de ponderación) between the rights in conflict, as will be developed further below. In the sub judice, the claimant states that the contested act violates his right to conscientious objection, since the Superior Council of the Judicial Branch does not take his religious convictions into account and forces him to act against them, by compelling him to perform the act of marriage between persons of the same sex; the situation is radically different when it involves purely administrative actions, for example: the registration of a marriage, as occurred in the Eweida and Others v. the United Kingdom case reviewed above, where it is not possible to exercise the right to conscientious objection. As can be observed, in the sub judice, it does not involve a properly jurisdictional function -one that resolves a legal dispute with the character of res judicata- but rather one of a judicial nature, that is, non-jurisdictional functions established by Law. Faced with this situation, the first thing to bring up is that this fundamental right is inherent to the adjudicator. Secondly, when the objecting person raises the impediment, several extremely important criteria must be followed. The first is that they prove the existence of the reason of conscience and its direct relationship with the legal duty they object to. The second is that it is a supervening situation, as the exercise of this fundamental right is not possible when the adjudicator voluntarily accepted the position and, within their functions, was the legal duty they now seek to object to. And, finally, when the exercise of the fundamental right to conscientious objection is accepted, the Judicial Branch is under the legal duty to replace them, within a peremptory period, in such a way that the structured system provides the user of the Administration of Justice services with service under conditions of effectiveness, efficiency, and equality, that is, their situation is resolved in accordance with the fundamental right to effective judicial protection or prompt and complete justice and without any discrimination. Now, it could be argued that the fundamental right to conscientious objection cannot be exercised when it entails discrimination; however, said position stems from an absolute view and, consequently, empties the essential content of a fundamental right. In this sense, it must be clear that no one in their right mind would oppose the affirmation that the judiciary must be exercised independently, impartially, and without any discrimination. From this viewpoint, it is inadmissible for a Judge to give preferential treatment to some persons and discriminatory treatment to others for political, racial, religious, sexual preference reasons, etc. In the exercise of the judiciary, as well as in the exercise of the administrative function, impartiality is the guiding principle and, consequently, the Judicial Branch is under the duty to provide equal treatment to heterosexual and homosexual persons regarding attention, processing, response time, resolution, and execution of matters, etc. Therefore, it is inadmissible for a judge or an administrative official to refuse to process a person's matter because they have a worldview or lifestyle that they do not share; in these cases, the exercise of the fundamental right to conscientious objection has no place, for example: refusing to perform an act of registration, to process a lawsuit, to execute a ruling, etc. The situation is radically different when it involves performing an act that is openly contrary to their deepest religious, moral, or ideological convictions -as is the celebration of the act of marriage-; in this scenario, to guarantee the exercise of the two fundamental rights in conflict, one must resort to the principle of practical concordance. As German doctrine has rightly maintained, when there is a collision of fundamental rights, the principle of practical concordance must be applied, so that one right cannot be sacrificed for the benefit of the other to such an extent that its essential content is emptied. In this type of situation, the legal operator is, in the first place, called upon to interpret and apply fundamental rights in such a way as to allow the greatest degree of exercise by both parties. In the face of a manifest incompatibility, the balancing test (juicio de ponderación) requires that, when one is sacrificed for the other, the one whose exercise is diminished is limited only to what is strictly necessary to make the exercise of the other possible. And, finally, one must always bear in mind that the balancing test is for the specific case, which means, neither more nor less, that in another situation, the balancing test may well lean in favor of the fundamental right sacrificed in the previous case. Taking the foregoing as a reference framework, the Chamber observes the different variables in the present matter. On the one hand, one might think that the fundamental right to conscientious objection must be sacrificed in its essential content because it has no place whatsoever in a case of discrimination. In other words, judges are obliged to sacrifice, they must set aside their deepest convictions, in this case religious ones, and proceed to perform the marriage.

Under this line of thought, if the Judge does not perform the marriage, it would constitute a discriminatory act. In this regard, the first thing that must be kept in mind is that the principle of equality and non-discrimination is not violated when there is an objective and reasonable justification. In this respect, the Constitutional Chamber (Sala Constitucional) has repeatedly expressed the following:

"The principle of equality, contained in Article 33 of the Political Constitution, does not imply that in all cases, equal treatment must be given regardless of possible differentiating elements of legal relevance that may exist; or, in other words, not every inequality necessarily constitutes discrimination. Equality, as the Chamber has stated, is only violated when the inequality lacks an objective and reasonable justification. But furthermore, the cause justifying the act considered unequal must be evaluated in relation to its purpose and its effects, such that a reasonable relationship of proportionality must necessarily exist between the means employed and the purpose itself. That is, equality must be understood in light of the circumstances present in each specific case in which it is invoked, such that the universal application of the law does not prohibit contemplating different solutions for different situations, as diverse treatment. All of the foregoing means that equality before the law cannot imply material equality or real and effective economic equality" (see votes no. 1770-94 and 1045-94).

The majority of the Court considers that the fact that a Judge raises a conscientious objection (objeción de conciencia) on a matter that, from a religious point of view, is of the utmost importance, does not mean that he is discriminating against a specific person; it is an objective and reasonable justification. What occurs is that he has a different vision of a social and religious institution than the contracting parties may have, and, consequently, forcing him to celebrate the marriage act lacerates his deepest religious convictions and empties the fundamental right of the judge of its essential content. Secondly, it is a public and notorious fact that in a country where there are several notarial judges, the Administration of Justice can perfectly well accept the conscientious objection (objeción de conciencia), which, as expressed supra, must meet all the requirements to be able to exercise this fundamental right, and entrust non-objecting judges with performing marriages between same-sex persons and, moreover, in a State that guarantees all the fundamental rights of persons, establish a system that always allows for having judges available who are willing to provide the service to same-sex persons under conditions of equality with other users of the service. Seen in this way, there is no such act of discrimination, since there will always be judges who will perform the marriage act, thereby satisfying the rights of the contracting parties. On the other hand, it cannot be ignored that Costa Rica is a State that has a system of open notaries (notaría abierta), in which different persons can go to a notary (notario/a) of their free choice to contract marriage, provided that the notary has not raised the conscientious objection (objeción de conciencia) in accordance with numeral 3 of the Guidelines for the Exercise and Control of the Notarial Service (Lineamientos para el Ejercicio y Control del Servicio Notarial) (see La Gaceta no. 23 of February 5, 2020). Finally, and no less important, is that the right to conscientious objection (objeción de conciencia) would apply to those judges who were appointed before the entry into force of marriage between same-sex persons—performing the marriage act between same-sex persons was not among their duties—since for those appointed subsequently, it is clear that they have voluntarily accepted to perform the marriage act for both heterosexual and homosexual persons. In line with the position followed by the majority of the Court, it is important to bring up the words of Judge Neil Gorsuch, to the effect that the place of secular officials is not to judge the religious beliefs—of persons—but only to protect their free exercise, pronounced in the famous Case Masterpiece Cakeshop, Ltd., v. Colorado Civil Rights Commission ET AL.—SEVEN VOTES IN FAVOR AND TWO AGAINST PROTECTING FREEDOM OF CONSCIENCE—in which a same-sex couple requested a Colorado baker in the summer of 2012 to make them a wedding cake; the owner, surnamed Phillips, refused to make the special order, which implied creating and selling them a wedding cake for same-sex couples. It is on record that he offered other products from his shop. At the time of the request, there was no law recognizing same-sex marriage, so the wedding would be held in a State where it was legal and they would offer the celebration in Denver. Jack Phillips described himself as a cake artist and devout Christian, whose main objective in life was to be obedient to the teachings of Jesus Christ, for which reason he sought to honor God through his work at his shop at Masterpiece Cakeshop. Precisely, one of his religious beliefs lay in God's intention for marriage to be the union of a man and a woman, so that creating a wedding cake for a same-sex couple would be equivalent to participating in that celebration that was contrary to his most cherished beliefs. The mother of one of the young men would call Phillips the next day for more explanations, and he answered in similar terms, adding that creating a cake would imply celebrating something that would be contrary to the teachings of the Bible and, furthermore, would imply, in his view, a personal approval of the ceremony and the couple's relationship that they would constitute.

VIII.- Based on what was stated above, the majority of the Court considers that in a pluralistic society, it is necessary that Constitutional Law—values, principles, and norms—authorizes persons to have different visions of political, economic, social, and cultural phenomena, since otherwise one would fall into an authoritarian or totalitarian society in which there is a homogenization or standardization of thought. In that sense, Human Rights Courts are not called upon to impose a single way of thinking, but rather, through a balancing test (juicio de ponderación) and in application of the principles of reasonableness (razonabilidad) and proportionality (proporcionalidad), must permit the maximum exercise of the fundamental rights that are in collision, so that they coexist respectfully. It must be kept in mind that, in those cases of conflict of fundamental rights, the Constitutional Court is not a promoter of a specific ideology or worldview, for when it acts in that way it abandons its mission and, consequently, even if paradoxically, ends up trampling the fundamental rights of the person it must protect. Thus, by virtue of what has been stated above, it is proper to grant the appeal (recurso), with the consequences that will be stated in the operative part.

IX.- Conclusion. The principle of equality and non-discrimination is an essential element of the public service of the Administration of Justice, and therefore its users must receive equal treatment in the attention, processing, resolution, and enforcement of the different matters heard in all judicial instances. For its part, the majority of the Court considers that it is possible to exercise the right to conscientious objection (objeción de conciencia) in the jurisdictional function (función jurisdiccional)—although in the present case it concerns the exercise of a judicial function (función judicial). In these cases, two fundamental rights are reconciled; however, the first one—equality and non-discrimination—is not emptied of its essential content, since in the event of a case of conscientious objection (objeción de conciencia) by a judge regarding performing the marriage act, the Superior Council of the Judicial Branch (Consejo Superior del Poder Judicial) must adopt all necessary measures so that the public service of the Administration of Justice is provided to same-sex couples under the same conditions and response times as it is given to heterosexual persons. Finally, it is clear that all persons appointed after the entry into force of same-sex marriage cannot exercise the right to conscientious objection (objeción de conciencia), since they have voluntarily accepted that function when applying for and accepting the position." On conscientious objection (objeción de conciencia). In a generic sense, conscientious objection (objeción de conciencia) refers to an institution of ancient origin, which has appeared in society since remote times, and involves the possibility of departing from a legal duty or mandate when these clash with or oppose the objector's convictions, without liability being exigible. In other words, it could be considered a kind of resistance to the normative precept, insofar as it is based on the apparent conflict between the moral, religious, or justice obligations of the person and compliance with legal provisions. Conscientious objection (objeción de conciencia) is understood as an external concretization (concreción ad extra) of the right to freedom of conscience (libertad de conciencia), which manifests as a limit on public powers so that they do not interfere with personal convictions. As mentioned in the preceding section, from the first pronouncements of this Constitutional Court (Tribunal Constitucional), it was understood that "…freedom of conscience (libertad de conciencia), which must be considered a subjective individual public right, wielded against the State, to demand abstention and protection from attacks by other persons or entities. It consists of the legally guaranteed possibility for the subject to accommodate their religious conduct and way of life to what their own conviction prescribes, without being forced to do anything contrary to it. Secondly, it refers to the social plane, freedom of worship (libertad de culto), which translates into the right to externally practice the belief made one's own. Furthermore, it is composed of freedom of proselytism or propaganda, freedom of congregation or foundation, freedom of education, the right of assembly and association, and the rights of religious communities, etc." (see judgment No. 3173-93 of 2:57 p.m. on July 6, 1993, doctrine reiterated in judgments No. 5492-96 of 4:54 p.m. on October 16, 1996, No. 2001-10491 of 3:57 p.m. on October 16, 2001, No. 2002-03018 of 11:12 a.m. on March 22, 2002, No. 2002-08557 of 3:37 p.m. on September 3, 2002, No. 2003-03018 of 2:48 p.m. on April 22, 2003, No. 2004-008763 of 12:15 p.m. on August 13, 2004, 2012-10456 of 5:27 a.m. on August 1, 2012, and No. 2014-004575 of 2:30 p.m. on April 2, 2014, among others). From the foregoing, it can be concluded that freedom of conscience (libertad de conciencia) is a fundamental right, which must be guaranteed by a State respectful of religious freedom and of a democratic, broad, and pluralistic society with broad respect for diversity of opinions, beliefs, and moral convictions. Likewise, freedom of thought and conscience are erected as fundamental elements that make up the identity of believers and their conception of life, as well as for atheists, agnostics, skeptics, and indifferent persons. Conscientious objection (objeción de conciencia) must be differentiated from related figures such as civil disobedience (desobediencia civil), given that the objector's intention is not to obstruct the social fulfillment of the legislative precept, but to obtain respect for their own conscience. The difference lies mainly in the purpose of the action. The main objective of civil disobedience (desobediencia civil) is the modification of a normative precept or public policy, for example, the movement for the civil rights of Afro-descendant persons undertaken by Martin Luther King to end racial segregation and discrimination in the United States of America. A distinction must also be made between conscientious objection (objeción de conciencia) and conscientious evasion (evasión de conciencia), as John Rawls points out (A Theory of Justice, 1975); the distinction refers to the publicity of the act and not to its purpose. In that sense, conscientious objection (objeción de conciencia) manifests publicly, since the objector must communicate their refusal to superiors in order to obtain the exemption. Conversely, conscientious evasion (evasión de conciencia) is identified by its essentially secret nature, for example, the person who separates from normative dogmas to secretly undertake an action understood as a moral duty, such as one who takes justice into their own hands in defense of their convictions. Initially, conscientious objection (objeción de conciencia) was conceived as an institution that allowed objectors to disengage from participating in military service without being held liable for desertion. Thus, conscientious objection (objeción de conciencia) to military service was grounded in the right to freedom of thought, conscience, and religion, established in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The right to conscientious objection (objeción de conciencia) to military service is not a right in itself, since it is not directly mentioned in the international instruments of the United Nations, but is qualified as a derived right or as a manifestation of these, since, as indicated, it is derived from an interpretation of the right to freedom of thought, conscience, and religion. It is clear that a progressive and expansive evolution of conscientious objection (objeción de conciencia) has allowed its scope to be broadened in two aspects: first, regarding subjective allegations, allowing the conscientious objector not only to assert their religious beliefs but also other types of convictions, typically ethical, moral, and philosophical; and second, regarding the scope of application, since said instrument is no longer only opposable to compulsory military service but has also moved to the fields of education, healthcare, and labor. Of course, the legal-philosophical justification (justificación iusfilosófica) of conscientious objection (objeción de conciencia) can be approached from various perspectives. From a natural law perspective (visión iusnaturalista), such as that of classical legal realism, as well as from a constructivist or contractualist perspective such as that of John Rawls and Ronald Dworkin influenced by Kantian morality, insofar as they exalt the principle of individual autonomy as that which justifies the exercise of conscientious objection (objeción de conciencia).

On the recognition of conscientious objection (objeción de conciencia) in the labor and educational spheres according to the jurisprudence of the Constitutional Chamber (Sala Constitucional). As indicated in the first section of this considerando, the recognition of conscientious objection (objeción de conciencia) by this Constitutional Court (Tribunal Constitucional) has its origins in 1993 (see judgment No. 3173-93 of 2:57 p.m. on July 6, 1993), referring to the field of education, and from that date to the present, the right of students to conscientious objection (objeción de conciencia) in the educational sphere has been recognized, as an instrument derived from freedom of conscience (libertad de conciencia) and freedom of worship (libertad de culto), stating that "…It consists of the legally guaranteed possibility for the subject to accommodate their religious conduct and way of life to what their own conviction prescribes, without being forced to do anything contrary to it. Secondly, it refers to the social plane, freedom of worship (libertad de culto), which translates into the right to externally practice the belief made one's own. Furthermore, it is composed of freedom of proselytism or propaganda, freedom of congregation or foundation, freedom of education, the right of assembly and association, and the rights of religious communities, etc." This interpretation is common to other latitudes, as for example, in the case of Spain, since judgment 15/1982 of April 23, 1982, the Spanish Constitutional Court recognized conscientious objection (objeción de conciencia) through interpretation of Article 30.2 of the Constitution, which explicitly mentions conscientious objection (objeción de conciencia) for military service in conjunction with the interpretation of Article 16.1, attributing to it a broad content consisting not only of believing or ceasing to believe what one deems convenient, but also the possibility of behaving in personal and social life according to one's own convictions, whatever these may be, expressly stating:

"…both doctrine and comparative law affirm the connection between conscientious objection (objeción de conciencia) and freedom of conscience (libertad de conciencia). For doctrine, conscientious objection (objeción de conciencia) constitutes a specification of freedom of conscience (libertad de conciencia), which entails not only the right to freely form one's own conscience but also to act in a manner consistent with its imperatives. In the Basic Law of Bonn, the right to conscientious objection (objeción de conciencia) is recognized in the same article as freedom of conscience (libertad de conciencia), and likewise, in Resolution 337 of 1967 of the Consultative Assembly of the Council of Europe, it is expressly affirmed that the recognition of conscientious objection (objeción de conciencia) logically derives from the fundamental rights of the individual guaranteed in Art. 9 of the European Convention on Human Rights, which obliges Member States to respect individual freedoms of conscience and religion.

And, since freedom of conscience (libertad de conciencia) is a concretization of ideological freedom (libertad ideológica), which our Constitution recognizes in Art. 16, it can be affirmed that conscientious objection (objeción de conciencia) is a right explicitly and implicitly recognized in the Spanish constitutional order, without the fact that Art. 30.2 uses the expression 'the Law shall regulate' having any value against the argument presented, which does not mean anything other than the necessity of legislative interposition (interpositio legislatoris), not to recognize, but, as the very words indicate, to 'regulate' the right in terms that permit its full applicability and effectiveness." Likewise, the Constitutional Chamber (Sala Constitucional) has transferred the applicability of conscientious objection (objeción de conciencia) to the labor sphere, to resolve situations in which employees or officials wish to depart from the fulfillment of obligations. Specifically, in the conception of conscientious objection (objeción de conciencia) in the labor sphere, the Constitutional Chamber (Sala Constitucional) indicated that "… conscientious objection (objeción de conciencia) has been conceptualized as a fundamental right of every person to refuse to fulfill a duty, which is found in the legal system, because the respective norm is incompatible with their beliefs or convictions, which are based, as a general rule, on religious, moral, or ideological convictions. It is held that this right is a logical and necessary derivation of freedom of conscience (libertad de conciencia), and constitutes one of its external manifestations." (see judgment No. 2020-001619 of 12:30 p.m. on January 24, 2020). In the cited precedent, the Court assessed the possibility that a judge in their judicial function (función judicial) might invoke a conscientious objection (objeción de conciencia) and warned that "…the majority of the Court considers that in a pluralistic society, it is necessary that Constitutional Law—values, principles, and norms—authorizes persons to have different visions of political, economic, social, and cultural phenomena, since otherwise one would fall into an authoritarian or totalitarian society in which there is a homogenization or standardization of thought. In that sense, Human Rights Courts are not called upon to impose a single way of thinking, but rather, through a balancing test (juicio de ponderación) and in application of the principles of reasonableness (razonabilidad) and proportionality (proporcionalidad), must permit the maximum exercise of the fundamental rights that are in collision, so that they coexist respectfully. It must be kept in mind that, in those cases of conflict of fundamental rights, the Constitutional Court is not a promoter of a specific ideology or worldview, for when it acts in that way it abandons its mission and, consequently, even if paradoxically, ends up trampling the fundamental rights of the person it must protect." In the cited ruling, the Constitutional Chamber (Sala Constitucional) finally highlighted that the Administration of Justice is governed by the principle of equality and non-discrimination, as an essential element of public service, which functions as a guarantee so that those administered receive equal treatment in the attention, processing, resolution, and enforcement of the different matters heard in all judicial instances. Likewise, it specified that it is possible to exercise the right to conscientious objection (objeción de conciencia) in the jurisdictional function (función jurisdiccional), although the case it was resolving referred to the exercise of a judicial function (función judicial). Finally, it emphasized that, in these cases, two fundamental rights are reconciled, without neglecting the right to equality and non-discrimination, since in the event of a case of conscientious objection (objeción de conciencia), the Superior Council of the Judicial Branch (Consejo Superior del Poder Judicial) must adopt all necessary measures so that the public service of the Administration of Justice is provided under the same conditions and response times.

International Regulations on conscientious objection (objeción de conciencia) in the universal sphere. Article 18 of the Universal Declaration of Human Rights of 1948 provides that:

"Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance." Almost similarly, Article 18 of the International Covenant on Civil and Political Rights of 1976 prescribes that:

"1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice." Likewise, Article 8 of the International Covenant on Civil and Political Rights of 1976 also states:

"Article 8.

3. (a) No one shall be required to perform forced or compulsory labour; (…)

(c) For the purpose of this paragraph the term "forced or compulsory labour" shall not include:

(ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors;" In the partially transcribed normative precept, a general right to conscientious objection (objeción de conciencia) is not recognized, and an indication is made of the States that legislated on the matter, referring to substitute service. Similarly, compulsory military service should not be considered forced labor. In the International Convention on the Elimination of All Forms of Racial Discrimination of 1969, Article 5 states the following:

"Article 5.

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

(…)

(d) Other civil rights, in particular:

(...)

(...)

(vii) The right to freedom of thought, conscience and religion." International Regulations on conscientious objection (objeción de conciencia) in the regional sphere. The right to freedom of thought, conscience, and religion is also recognized in regional human rights instruments. The Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, in Article 9, states:

"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others." The Charter of Fundamental Rights of the European Union (2000/C 364/01) explicitly recognizes conscientious objection (objeción de conciencia); thus, Article 10 states:

"1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.

2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right." For its part, in the American regional sphere, the American Convention on Human Rights of 1969 states:

"Article 6. Freedom from Slavery 2. No one shall be required to perform forced or compulsory labor. (...)

3. For the purposes of this article, the following do not constitute forced or compulsory labor:

(...) b. military service and, in countries where conscientious objectors are recognized, national service that the law may provide for in lieu of military service; Article 12. Freedom of Conscience and Religion.

"1. Everyone has the right to freedom of conscience and of religion. This right includes freedom to maintain or to change one's religion or beliefs, and freedom to profess or disseminate one's religion or beliefs, either individually or together with others, in public or in private.

2. No one shall be subject to restrictions that might impair his freedom to maintain or to change his religion or beliefs.

3. Freedom to manifest one's religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others." "Article 27. Suspension of Guarantees 1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under this Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.

2. The foregoing provision does not authorize any suspension of the following articles: (...) 6 (Freedom from Slavery); (...) 12 (Freedom of Conscience and Religion) (...), or of the judicial guarantees essential for the protection of such rights." Likewise, the African Charter on Human and Peoples' Rights of 1981, in Article 8 provides:

"Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms." In the American Convention, the right of all persons to freedom of conscience and religion is expressly recognized, which implies the standing to maintain, change, profess, and disseminate one's religion or beliefs. In the American regional sphere, these rights have been the subject of few pronouncements by the Inter-American Court of Human Rights (IACHR). Thus, the high court has pronounced on freedom of conscience and religion in the context of human rights violations suffered by persons who exercised religious activities (Juan Gerardi vs. Guatemala 1982, Dianna Ortiz vs. Guatemala 1997, and Loren Laroye Riebe Star, Jorge Alberto Barón Guttlein y Rodolfo Izal Elorz vs. Mexico 1998). Likewise, the IACHR has pronounced on freedom of conscience in relation to the censorship of the exhibition of a film (Olmedo Bustos et al. vs. Chile 2001). In this pronouncement, the IACHR recognized that the right to freedom of conscience and religion concerns the protection for persons to maintain, change, profess, and disseminate their religion or beliefs. This right is one of the foundations of a democratic society, and in its religious dimension, it constitutes a transcendental element in the protection of the convictions of believers and their way of life.

In the Americas, the right to freedom of conscience and religion cannot be suspended. However, the freedom to manifest one's religion and beliefs may be limited. For these limitations to be legitimate, they must be prescribed by law and be necessary to protect public safety, order, health, or morals, or the rights and freedoms of others. Likewise, it can be inferred from the pronouncements of the IACHR that the right to freedom of conscience and religion can be violated through, for example, denial of entry to one's country of origin; arbitrary detention and hasty expulsion from a country; violation of the right to due process; surveillance; threats; kidnapping; and torture perpetrated by State agents to punish or curtail the religious activities of individuals (Juan Gerardi vs. Guatemala 1982, Dianna Ortiz vs. Guatemala 1997, and Loren Laroye Riebe Star, Jorge Alberto Baro´n Guttlein and Rodolfo Izal Elorz vs. México 1998). The American Convention on Human Rights does not recognize the right to conscientious objection (objeción de conciencia) as such (although it does mention conscientious objection to compulsory military service); rather, this right derives autonomously from the right to freedom of conscience (Article 12 of the American Convention). Conscientious objection stems from the right to freedom of conscience interpreted in light of the provision stating that national service or alternative service established by domestic laws that admit conscientious objection does not constitute forced or compulsory labor (Article 6.3.b of the American Convention). That is, freedom of conscience only protects conscientious objection in the military sphere in cases where domestic legislation admits it (Cristián Daniel Sahli Vera et al. vs. Chile 2005, Alfredo Di´az Bustos vs. Bolivia 2005, and Xavier Alejandro Leo´n Vega vs. Ecuador 2006).

• 3)Specific analysis of the consultation The petitioners consider that Article 23, subsection g) of the draft "LEY MARCO DE EMPLEO PÚBLICO," processed under legislative file No. 21.336, which establishes the possibility of conscientious objection in education and training processes, violates the principles of legality and legal certainty, proportionality, and reasonableness. They consider that said precept conflicts with the Constitution's Law because it allows public officials to claim conscientious objection in order to avoid receiving education and training that the State has deemed mandatory. It violates the principles of legality and legal certainty, proportionality, and reasonableness by not regulating the conditions, parameters, and restrictions that prevent the violation of fundamental human rights encompassed within Conventional Law and fully recognized by our legal system. They indicate that, through a simple sworn statement (declaración jurada), public officials may assert a right of conscientious objection when the contents of education and training programs violate, in their judgment, their religious, ethical, or moral convictions. This is an entirely broad norm that will allow, by appealing to completely subjective criteria, any person to refuse to be trained on core topics of the Public Administration. In that sense, they consider that it is not possible to invoke conscientious objection to promote inequality, mistreatment, and discrimination from a position of power. As has been noted, this Constitutional Court has ruled on conscientious objection in various areas, encompassing education and the workplace. Among the first pronouncements, a formula derived from Articles 28 and 75 of the Political Constitution stands out, understood as an external manifestation (manifestación ad extra) of freedom of conscience and freedom of religion, which, like any externalization or manifestation, must be expressed within the limitations established by the legal system, whether by constitutional norm or legal norm (see judgment No. 3173-93 of 14:57 hours on July 6, 1993). This position has allowed for the resolution of conflicts of constitutional origin in relation to conscientious objections presented in the educational and labor spheres. In this sense, this Court has been of the thesis that conscientious objections arise from the conflict produced between a legal precept and a personal conviction. Likewise, it has been admitted that this objection may be formulated against provisions of any nature, whether normative, public policies, or contractual, insofar as they affect a person's convictions. In the draft bill under consultation, it is clear that the proposed normative precept would allow an official to claim a conscientious objection in order to apply an exemption from a mandatory training or education course deemed contrary to their religious, ethical, and moral convictions. In this regard, the petitioners (combined consultations: file No. 21-011713-0007-CO and file No. 21-012118-0007-CO) state that: 1. The aim of not receiving education and training that the State has deemed mandatory violates the principles of legality and legal certainty, proportionality, and reasonableness by not regulating the conditions, parameters, and restrictions that prevent the violation of fundamental human rights encompassed within Conventional Law and fully recognized by our legal system. 2. That, through a simple sworn statement (declaración jurada), public officials may assert a right of conscientious objection when the contents of education and training programs violate, in their judgment, their religious, ethical, or moral convictions. This is an entirely broad norm that will allow, by appealing to completely subjective criteria, any person to refuse to be trained on core topics of the Public Administration. 3. That the formulation allows, in an open and unregulated manner, the possibility for public officials to refuse to receive technical education and mandatory training necessary for the performance of the position they hold, with mere communication via a sworn statement (declaración jurada). This could be considered an abusive exercise contrary to the human rights of other citizens. Analyzing the articles of the draft bill under consultation, a multitude of rights come into conflict, both those of the officials and those of the citizens who receive services from these public servants. 4. That public officials, in order to perform their duties in an upright, efficient, and effective manner, necessarily require the technical and administrative knowledge that allows them to perform their functions. 5. Furthermore, the State has an obligation to train officials so that state operations are in accordance with the parameters for providing public services that must be guaranteed to citizens. 6. They question how a public official can determine, prior to receiving training, that it violates their personal beliefs or convictions. 7. They claim that including conscientious objection within this draft bill could render it unconstitutional insofar as the State would allow officials to disregard the fulfillment of public duties, which are mandatory and must be performed by someone. 8. Additionally, this constitutional body has also stated that officials, upon assuming a position for which they must perform certain acts, are obligated to fulfill them without the right to conscientious objection, insofar as they have agreed to exercise the public office in accordance with the law in force at the time of their appointment. 9. The refusal to receive training and education on topics appropriate to their position could violate, for example, the citizen's right to receive adequate healthcare, correct service from bodies that administer justice, or a biased or incorrect message from educational institutions. 10. Considering conscientious objection as a mere formality without further conditions and restrictions, lacking any technical seriousness, solely to create controversy and polarize Costa Rican society, is contrary to the human rights recognized by the Inter-American Court of Human Rights, and contradicts the State's obligation which it must guarantee.

Regarding the first formulated claim. The petitioners indicated that if officials do not receive training that the State has deemed mandatory, the principles of legality and legal certainty, proportionality, and reasonableness are violated because the conditions, parameters, and restrictions preventing the violation of fundamental human rights encompassed within Conventional Law and fully recognized by our legal system are not regulated. In this regard, it must be noted that the scope of the norm is delimited in this draft bill so that the public servant does not receive training they consider contrary to their religious, ethical, and moral convictions. Hence, the petitioners' reasoning as stated would not be valid, firstly, because the condition and scope are clearly delimited to a specific scenario, in this case mandatory training, and; secondly, because it does not follow from this that the exercise of conscientious objection violates the fundamental or human rights of individuals. In this sense, it must be remembered that conscientious objection has been a valid mechanism for a person to exercise other rights, such as freedom of conscience and freedom of religion (Art. 75 of the Constitution) which, understood in harmony with the legal system, would have their exercise limited by the rights of third parties (Article 28 of the Constitution). In this sense, judgment No. 2020-001619 of 12:30 hours on January 24, 2020, stated: "... conscientious objection has been conceptualized as a fundamental right of every person to refuse to fulfill a duty, which is found in the legal system, because the respective norm is incompatible with their beliefs or convictions, which are typically based on religious, moral, or ideological convictions. It is held that this right is a logical and necessary derivation of freedom of conscience, and constitutes one of its external manifestations." Regarding the second formulated claim. The petitioners indicate that, through a simple sworn statement (declaración jurada), public officials may assert a right of conscientious objection when the contents of education and training programs violate, in their judgment, their religious, ethical, or moral convictions. This is an entirely broad norm that will allow, by appealing to completely subjective criteria, any person to refuse to be trained on core topics of the Public Administration. In relation to the mechanism used for the purpose of communicating conscientious objection, contrary to what the petitioners have stated, this Chamber considers that it is suitable, insofar as the legislative draft requires sufficient action on the part of the public servant, since it imposes the obligation to report the conscientious objection through a sworn statement (declaración jurada). It is not a lax mechanism; on the contrary, it involves an action through a statement, which must be "sworn," meaning it carries administrative and even criminal consequences when false data are recorded under oath. The sworn statement (declaración jurídica) is an instrument widely used in public administration for matters of various kinds; for example, we find the declaration of assets (declaración de bienes) that public officials annually make before the Contraloría General de la República. It is also used in Public Universities and other entities when professors and/or officials must render information under that format. The Chamber does not consider it a weak or inappropriate instrument for the exercise of the right protected in Article 23, subsection g) of the draft bill under study, because that oath is in reality a promise to tell the truth, and therefore the person issuing it assumes responsibility in case their statements do not conform to the truth. The use of the sworn statement (declaración jurada) in public administration has allowed for the streamlining of procedures and processes to the benefit of the user and also of the Public Administration. For this reason, it is not valid to state that it is a document with completely subjective criteria. As for its practical application, it is relevant to note that, in accordance with the jurisprudential precedents of this Court, and in attention to what was stated in judgment No. 2012-010456 of 05:27 hours on August 1, 2012, conscientious objection can be exercised through "...an agile and simple mechanism," and therefore, the Chamber is of the opinion that the sworn statement (declaración jurada) would fit perfectly because it constitutes an agile and simple mechanism. On the other hand, regarding the subjective scope, this Chamber has already indicated that objection is applicable not only to religious convictions, expanding the scope to moral or ideological convictions (see judgment No. 2020-001619 of 12:30 hours on January 24, 2020), considering that it is perfectly possible for a person to issue a sworn statement (declaración jurada) to reference those moral or ideological convictions in order to oppose within the terms of subsection g) of Article 23, without having the obligation in that document to demonstrate or give a profuse explanation of such convictions - given that this could encroach on their internal and personal sphere - but, at the same time, this does not prevent them from informing the Administration, through a sworn statement (declaración jurada), of their opposition based on their moral or ideological convictions. Likewise, it must be remembered that "...the majority of the Court considers that in a pluralistic society, it is necessary for the Constitution's Law - values, principles, and norms - to authorize individuals to have different visions regarding political, economic, social, and cultural phenomena, because otherwise, one would fall into an authoritarian or totalitarian society where there is a homogenization or standardization of thought. In this sense, Human Rights Courts are not called upon to impose a single thought, but rather, through a balancing test and in application of the principles of reasonableness and proportionality, they must allow the maximum exercise of the fundamental rights that are in collision, so that they coexist respectfully. It must be kept in mind that, in cases of conflict of fundamental rights, the Constitutional Court is not a promoter of a particular ideology or worldview, because when it acts in that way, it abdicates its mission and, consequently, even paradoxically, ends up trampling the fundamental rights of the person it must protect" (see judgment No. 2020-001619 of 12:30 hours on January 24, 2020). In light of this jurisprudential quote, it is therefore valid that a person who thinks differently can express their opposition through a sworn statement (declaración jurada) whereby they are not obliged to expose their convictions openly and explicitly because they wish to safeguard their privacy, but this instrument would allow them to defend their position and demand respect for it. Now, if the recipient of that document considers that it might contain false or inaccurate statements, it must be remembered that the system also provides for that possibility, and for this, there exists an entire legally established procedure through which the veracity of the statements can be verified, and it will be there, through the corresponding channel, where it must be proven that the person did not tell the truth, and where the corresponding sanctions could be applied, including criminal ones. However, this possibility of making false statements cannot become an obstacle to the use of this instrument either, given that, as stated, it is presumed to be true.

Equally, it must be said that it is a simple mechanism because it does not involve cumbersome processing, while being effective and even discreet, allowing the person to exercise their right to conscientious objection and demand respect for it, but also facilitating the protection of their confidentiality and privacy, especially considering cases of people who do not want to reveal their gender identity, their religious beliefs or agnosticism, their personal convictions, among others.

It is thus estimated that subjective breadth is the guarantee of inclusion and recognition of the diverse worldviews, beliefs, and convictions present in a democratic society. Therefore, it is considered that the mechanism devised by the article under consultation through the use of the sworn statement (declaración jurada) conforms to this subjective breadth without harming other rights of the person, and thus is not contrary to the Constitution's Law.

Regarding the third formulated claim. The petitioners indicated that the formulation proposed in the draft bill under study allows, in an open and unregulated manner, the possibility for public officials to refuse to receive technical education and mandatory training necessary for the performance of the position they hold, with mere communication via a sworn statement (declaración jurada), which, in the petitioners' opinion, could be considered an abusive exercise contrary to the human rights of other citizens. Analyzing the articles of the draft bill under consultation, it can be affirmed that several rights come into play, both those of the officials and those of the citizens who receive services from these public servants. In this regard, it must be noted that public servants are hired based on the constitutional principle of proven suitability (idoneidad comprobada), meaning that, in principle, the professional and technical training of officials is previously verified regarding the requirements necessary to perform in various positions. It should be remembered that the regime of public servants is based on two fundamental pillars: proven suitability upon entry and stability in the position. Therefore, the consideration that a professional not attending a course directly impacts their training would be a situation that should be analyzed against a specific case. However, it is also pertinent to mention that every public servant has a constitutional calling to provide quality service in the exercise of their position, and if this person fails to comply with said mandate, they could incur a disciplinary offense, consequently bearing the corresponding responsibility, for which all specific factual circumstances must be evaluated in each case. Hence, if a servant engaged in abusive or arbitrary conduct, in any situation, including conscientious objection, they could be directly subject to the responsibilities indicated in the law in all those cases where there is no valid exemption or justification for responsibility; however, all of this involves mere predictions or speculations that cannot be determined with certainty at this moment, and which will only be established once the specific situation is evaluated, so that, based solely on the numeral under study, it cannot be affirmed that the current wording violates the Constitution's Law.

Regarding the fourth formulated claim. The petitioners indicated that public officials, in order to perform their duties in an upright, efficient, and effective manner, necessarily require the technical and administrative knowledge that allows them to perform their functions. As indicated, selection and appointment processes are based on choosing persons qualified to hold public office, for which a series of academic, technical, and attitudinal requirements, among others, are requested in order to guarantee efficiency in the provision of public services. In the event that a public servant ceased to meet the requirements initially requested by the employer - in this case, the State - the possibility exists to initiate the necessary procedures in order to guarantee maximum efficiency and continuity of services, such as: personnel transfer, reorganization of services, dismissal of the official, etc., all of the above in accordance with what is established in the laws through specific channels, whether administrative or jurisdictional.

Regarding the fifth formulated claim. The petitioners state that there is a State obligation to train officials so that state operations are in accordance with the parameters for providing public services that must be guaranteed to citizens. Regarding the training of public officials, it should be noted that Article 1 of Ley 6362, Ley de Capacitación personal Administración Pública, states:

"Article 1.- The professional training and education (formación profesional y la capacitación) of Public Administration personnel in administrative sciences and techniques is declared to be of public interest, as the most adequate means to promote its comprehensive improvement." Likewise, Article 5 of the same legal instrument provides:

"Article 5.- Professional training and education (formación profesional y la capacitación) constitute a right and a duty of Public Administration officials. As a right, it implies that every servant meeting the required conditions to participate in professionalization and training programs be given the possibility of participating in them. As a duty, the obligation to submit to those in-service training and technical improvement programs demanded by the good performance of the position." There is certainly a recognized public interest in the education (formación) of public servants with the intention of promoting the comprehensive improvement of Public Administration. In relation to the draft bill under consultation, it must be indicated that the objection clause is not antagonistic to what is prescribed in the Ley de Capacitación personal Administración Pública, insofar as it is based on the exercise of the freedoms of conscience and religion of individuals who invoke an objection to mandatory training or education (formación) because they consider it contrary to their religious, ethical, or moral convictions.

Regarding the sixth formulated claim. The petitioners ask: how can a public official determine, prior to receiving training, that it violates their personal beliefs or convictions? In relation to this point, it is clear that the proposed regulation does not establish a temporal condition in which conscientious objection can be raised, which allows the objection to be raised before or during the development of the training or course. It is clear that said objection could only be raised in relation to education or training processes (procesos de formación o capacitación) that are mandatory, in which case, when the servant is informed of the obligation and the name of the program or course as well as its contents, they could validly raise the objection, insofar as it can be inferred from the title or content that it would conflict with their personal convictions. It is not necessary for the servant to begin a course in order to then be able to exercise conscientious objection; this would be as inappropriate as forcing a non-believer to receive religion classes so that they can then indicate whether or not these are contrary to their convictions.

Regarding the seventh formulated claim. The petitioners claim that including conscientious objection within this draft bill could render it unconstitutional insofar as the State would allow officials to disregard the fulfillment of public duties, which are mandatory and must be performed by someone. One of the constitutional obligations of public administrations is the swift and efficient provision of public services. In this sense, by recognizing conscientious objection, the administration is obligated to take the necessary measures so that the fundamental rights of the administered are not diminished by objecting officials. This was stated in judgment 2020-001619 of 12:30 hours on January 24, 2020, noting that "...in these cases, two fundamental rights are reconciled; however, the essential content of the first - equality and non-discrimination - is not emptied, given that when faced with a case of conscientious objection by a judge regarding performing the act of marriage, the Consejo Superior del Poder Judicial must adopt all necessary measures so that the public service of Administration of Justice is provided to same-sex couples under the same conditions and response times as it provides to heterosexual persons." The norm of the draft bill under consultation does not properly refer to the provision of public services, given that its scope is limited to mandatory courses or training. In this case, it could not be understood as disregard for constitutional mandates and the Administration's obligations, since it would only entail the exemption of the objecting person, and all necessary measures must be adopted so that the public service is provided under the same conditions and service response times by non-objecting servants.

Regarding the eighth formulated claim. The petitioners point out that the Constitutional Chamber has stated that officials, upon assuming a position for which they must perform certain acts, are obligated to fulfill them without the right to conscientious objection, insofar as they have agreed to exercise the public office in accordance with the law in force at the time of their appointment. On conscientious objection in the workplace, the Chamber has ruled on several occasions and has protected the freedoms of conscience and religion of public servants. In this sense, in judgment No. 2015-011897 of 11:41 hours on July 31, 2015, the Constitutional Chamber protected an officer of the Public Force (Fuerza Pública) who professes Judaism, indicating that "...the respondents were under an obligation to seek the least burdensome solution for the protected party, so as not to affect what is prescribed by numeral 75 of the Political Constitution; however, the respondents did not proceed in that manner, as the measure adopted involved an injury to the religious freedom of the petitioner (amparado), and, furthermore, was not proportional to the end for which it was adopted, since as previously indicated, the fact that the petitioner had been allowed to observe his day of rest did not entail a serious violation of the public interest. That is, between two possible solutions, the one most burdensome to the fundamental right was chosen and, consequently, it is violated, besides the fact that the measure agreed upon by the recurring authority (SIC), is not proportional nor just in itself, so there is no alternative but to grant the amparo petition." The Inter-American Court of Human Rights recognized the right to freedom of conscience and religion, so that persons may keep, change, profess, and divulge their religion or beliefs. This right is one of the foundations of a democratic society and, in its religious dimension, constitutes a transcendental element in the protection of the convictions of believers and their way of life (Juan Gerardi vs. Guatemala 1982, Dianna Ortiz vs. Guatemala 1997, and Loren Laroye Riebe Star, Jorge Alberto Baro´n Guttlein and Rodolfo Izal Elorz vs. México 1998). It is clear that freedom of conscience and religion finds protection in numeral 12 of the American Convention, which indicates:

Article 12. Freedom of Conscience and Religion.

"1. Everyone has the right to freedom of conscience and religion. This right includes the freedom to maintain or to change one's religion or beliefs, and the freedom to profess or disseminate one's religion or beliefs, either individually or together with others, in public or in private.

(...)" For the reasons stated, although the public servant, upon assuming a position for which they must perform certain acts, is clearly obligated to fulfill it, the truth is that the fulfillment of their functions does not render their fundamental or human rights nugatory. Therefore, it would not be admissible to think that by accepting the position, they ipso facto renounce these rights. It is clear that these are rights which, by their nature, are inalienable because they protect human dignity.

Regarding the ninth formulated claim. The refusal to receive training and education on topics appropriate to their position could violate, for example, the citizen's right to receive adequate healthcare, correct service from bodies that administer justice, or a biased or incorrect message from educational institutions.

As already indicated, conscientious objection (objeción de conciencia) must be differentiated from related figures such as civil disobedience (desobediencia civil), given that the objector's intention is not to obstruct the social fulfillment of the legislative precept—as might be the case by ceasing to provide health services or justice administration—but rather to obtain respect for their own conscience. The difference lies primarily in the purpose of the action. The main objective of civil disobedience is the modification of a normative precept or public policy. Likewise, a distinction must be made between conscientious objection and conscientious evasion (evasión de conciencia); the distinction refers to the publicity of the act and not its purpose. In that sense, conscientious objection is manifested publicly, as the objector must communicate their refusal to superiors in order to obtain the exemption. Conversely, conscientious evasion is identified by its essentially secret nature, for example, a person who departs from normative dogmas to secretly undertake an action understood as a moral duty, such as a doctor who clandestinely performs an abortion procedure with the intention of helping the mother. As mentioned in the previous section, in the event of a public servant's exemption, the Administration has a constitutional and legal obligation to make the necessary arrangements so that the administered parties do not see their fundamental rights diminished before objecting officials, ensuring the speed and quality of the services provided. Likewise, it could not be assumed that, in the absence of a specific training (capacitación), a public servant would issue a biased opinion or cease to provide a service, since this could occur even with training; similarly, the contrary could not be assumed either. Consequently, a violation of the Law of the Constitution (Derecho de la Constitución) is not observed on this point either.

Regarding the tenth claim made. Considering conscientious objection as a mere formality without major conditions and restrictions, without any technical seriousness, solely to polemicize and polarize Costa Rican society, is contrary to the human rights recognized by the Inter-American Court of Human Rights and contravenes the obligation that the State has and must guarantee. As already mentioned, this Chamber (Sala) considers that the procedure relating to the objection clause is suitable, insofar as the legislative bill requires sufficient action on the part of the public servant, consisting of informing of the conscientious objection by means of a sworn statement (declaración jurada). This is consistent with what was indicated by this Tribunal, as in judgment No. 2012-010456 of 05:27 hours on August 1, 2012. Contrary to what the consultants (consultantes) state, the exercise of conscientious objection does not seek to polemicize or polarize society, but rather, on the contrary, seeks respect for the public official's beliefs and, therefore, on this point, an injury to the Law of the Constitution is also not observed.

• 4)Conclusion By virtue of the foregoing, it can be concluded that conscientious objection is understood as an ad extra concretization of the freedoms of conscience and religion, which manifests as a limit against public powers so that they do not interfere with personal convictions. Specifically, it refers to the possibility of departing from a legal duty or mandate when these conflict with or oppose the objector's convictions, without any liability being demanded of them. For their part, freedom of thought and conscience stand as fundamental elements that form the identity of believers and their conception of life, as well as for atheistic, agnostic, skeptical, and indifferent persons. In the consulted bill, it is clear that the proposed normative precept would allow an official to assert conscientious objection so that an exemption is applied regarding a mandatory training (capacitación) or training course (curso de formación) because they consider it contrary to their religious, ethical, and moral convictions. In that sense, it must be remembered that conscientious objection has been the valid mechanism for a person to exercise other rights, such as freedom of conscience and freedom of religion (Art. 75 constitutional) which, understood in harmony with the legal system, their exercise would be limited by the rights of third parties. Regarding the mechanism proposed in the consulted norm, for the purpose of communicating the conscientious objection, this Chamber considers that it is suitable, insofar as the legislative bill requires sufficient action on the part of the public servant, since it requires them to inform of the conscientious objection by means of a sworn statement. Thus, regarding Article 23 subsection g) of the bill for the "LEY MARCO DE EMPLEO PÚBLICO," processed under legislative file No. 21.336, the consultation is answered in the sense that it presents no unconstitutionality defects, because it adequately guarantees the right to conscientious objection.
• 5)Different Reasons and Interpretation Different reasons of Magistrate Rueda Leal regarding subsection g) of Article 23 of the bill.

On this point, the majority of the Chamber cites a series of pronouncements to support its criterion, not all directly linked to conscientious objection. Thus, among the mentioned precedents in which I have formed part of the Tribunal, I concurred with the majority in judgments Nos. 2015-011897 of 11:41 hours on July 31, 2015, 2017-000228 of 09:15 hours on January 13, 2017, and 2017014918 of 09:15 hours on September 22, 2017, the last of my own drafting and all linked to the protection of religious freedoms and freedom of worship. However, no right is absolute and the parameter for constitutionality control is composed of a series of principles, goods, and rights (some of constitutional origin, others conventional), regarding which, when a conflict occurs, on many occasions an optimization task must be carried out, so that the content of the colliding principles, goods, and rights is enhanced in the best possible way, without violating their essential content. In accordance with that guideline, in certain cases I have offered separate reasons or dissenting votes, when the majority of the Tribunal and the undersigned have held differences regarding the harmonization between conscientious objection, the protection of human dignity, the best interests of the child (interés superior del menor), and various principles of international human rights law.

Thus, in judgment No. 2012-10456 of 05:27 hours on August 1, 2012, I set down these different reasons:

"I share the majority's criterion regarding the technical basis for the Study Program for 'Education for Affectivity and Comprehensive Sexuality' (Programa de Estudio de 'Educación para la Afectividad y la Sexualidad Integral'), for being imparted in the Third Cycle of General Basic Education, that is, to all seventh, eighth, and ninth-year secondary students nationwide. Indeed, it is a training program in aspects of sexuality, whose content resulted from consultation with various agencies, organizations, and specialists with knowledge in said area, as well as from several field studies. In this regard, in accordance with the provisions of Article 81 of the Political Constitution, I consider that the definition of the content of educational programs pertains solely to the Consejo Superior de Educación (Higher Council of Education), presided over by the Minister of Public Education, so that the Administration, within broad discretion, is empowered to decide on such aspect as well as determine whom to consult or not. Regarding sexual education, as the majority indicates, there is additionally ample normative support that obliges the State to develop educational programs in that area (Article 10 subsection h of the Convention on the Elimination of All Forms of Discrimination against Women, Article 23 of the Ibero-American Convention on the Rights of Youth, section 19.1 of the Convention on the Rights of the Child, Articles 44, 55, and 58 of the Código de la Niñez y la Adolescencia (Childhood and Adolescence Code)). However, this power does not prevent recognizing the subsidiary and complementary role that the Administration has in this matter, given that education in human sexuality pertains in the first instance to the family, as recognized by the same Higher Council of Education in agreement number 28-01 of June 12, 2001. Without a doubt, as the majority indicates, fathers and mothers, in exercising their right to educate their children, have a fundamental role in their sexual formation, in accordance with a worldview and values that enjoy broad constitutional protection, because it involves the exercise of fundamental rights such as freedom of thought, which includes religious freedom. Precisely, sexual education programs are not merely biological, but contemplate a set of values embodied in models of sexual conduct to be followed, in which, definitively, mothers and fathers assume a determining responsibility, which is constitutionally relevant. Thus, the technical elaboration of sexual education programs pertains to the Administration, and for this there exists a broad margin of discretion to define its form of elaboration; however, regarding its implementation, fathers and mothers hold the right to opine whether such programs are appropriate or not for the formation of their children according to the set of values, religious or not, and ethical parameters embraced by fathers and mothers. This also has ample normative support, as inferred from Article 23 paragraph 3 of the Universal Declaration of Human Rights, Article 13 paragraph 3 of the International Covenant on Economic, Social and Cultural Rights, section 12 paragraph 4) of the American Convention on Human Rights, Articles 2 to 3 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Articles 1 to 3 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, and section 18 paragraph 4 of the International Covenant on Civil and Political Rights. Faced with such a situation, it is evidently necessary to reconcile the powers of the State and the rights of fathers and mothers, making the establishment of some mechanism reasonable in which it is determined whether a student can be excluded or not from the study program for 'Education for Affectivity and Comprehensive Sexuality,' once the criteria of the fathers and mothers have been heard. However, in this matter, not only should fathers and mothers be heard, since adolescents also have the right to express themselves. Indeed, in accordance with the Best Interests of the Child, not only the criteria of the State, fathers, and mothers count, as it is constitutionally unfeasible to disregard the right to an opinion of the adolescents themselves. Indeed, in the sub examine, a fundamental element consists of sexual education programs being directed at seventh, eighth, and ninth-year students, that is, at minors beginning adolescence, a phase of human life that begins with puberty. In this case, regardless of any discussion that might arise to determine the age encompassed by adolescence, it is undeniable that seventh, eighth, and ninth-year students, that is normally those aged twelve and over, are adolescents, which implies emotional and cognitive development superior to that of childhood. Indeed, adolescence constitutes the period in which the minor enters the world of adults, discovers their own identity, constructs their individuality, develops their capacity for relativization, and elaborates their worldview. Precisely, the adolescent needs to act out of personal convictions, and although their degree of maturity does not correspond to that of an adult, thus requiring guidance and orientation, it is no less true that their emotional and cognitive development demands respect for their convictions and values, that is, for the process of forming their personality. Such circumstances do not go unnoticed by the legal institute of the Best Interests of the Child, enshrined in Article 3 of the Convention on the Rights of the Child. This instrument is simultaneously a General Principle and a Right. As a principle, it possesses the legal nature of a guiding norm for the rest of the norms of the legal system. This implies that both in the application of positive law by jurisdictional bodies and in the phase of legal creation and development of government policies by the Legislative and Executive Powers, consideration for the protection and attention of the interests of minors must prevail. From a constitutional viewpoint, that principle is an inescapable frame of reference when interpreting fundamental rights and assessing possible injuries to the constitutional order. As a human right, it is inherent to the minor person by the mere fact of being so, it applies universally and transnationally, and its scope of protection is irreversible. The Best Interests of the Child departs from the overcoming of the Doctrine of the Irregular Situation (Doctrina de la Situación Irregular), in which the minor was not conceived as a rights holder, but as a mere object of intervention by the justice system. Such overcoming occurs through the consecration of the Doctrine of Integral Protection (Doctrina de la Protección Integral), which considers the minor as a subject of rights, not as a mere passive object of guardianship. It implies, for boys, girls, and adolescents, the recognition of their human condition and capacities, respect for their dignity as a human being in the process of development, and attention to their specific needs. Within the framework of this doctrine, the minor acquires the right to be heard and to have their points of view taken into consideration when deciding on matters that affect them. Previously, the boy or girl was considered a subject with an abstract, dependent, static legal interest without a determined projection, and the minor necessarily had to be considered as a subject (lacking autonomy) with a lesser or inferior interest to that of adults, considered ideally or abstractly. Therefore, such minors, vis-à-vis adults, mainly their respective fathers and mothers, were recognized a legal interest in the holding of personality, inferior to that of others. On the contrary, in the current conception, the safeguarding and promotion of childhood is explained according to the theory of integral protection, which conceives the minor as a subject of rights. In this way, the interest of minor persons is no longer a concept removed from the minor's own will, imposed by a tutelary state; on the contrary, in its definition, a diversity of criteria and factors converge, within which the viewpoint of the adult or the State is not definitive. That is, in the full satisfaction of the rights of the young, they count. Precisely, Article 14 of the Convention on the Rights of the Child establishes the following:

'1) States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2) States Parties shall respect the rights and duties of the parents and, where applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 3) Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.' From the foregoing, it is inferred that the State must respect both the right of fathers and mothers to guide their sons and daughters, and the right of the latter to their freedom of thought, conscience, and religion. Furthermore, section 12 paragraph 1 of the cited Convention determines that States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, for which purpose the views of the child shall be given due weight in accordance with the age and maturity of the child. As the Committee on the Rights of the Child rightly points out, such norm refers to the right of the minor to express views specifically related to matters affecting them, as well as the right to participate in decisions and actions that influence their life. Article 12 urges States Parties to present the legal framework and mechanisms necessary to facilitate the active participation of the child in all actions and decisions affecting their life, as well as to respect the commitment to give due weight to these views after they are expressed. On the other hand, according to section 13 of the cited Convention, freedom of expression does not impose this type of commitment or response from the States Parties. However, it establishes an environment of respect, consistent with section 12 cited above, in which children can express their opinions and that, additionally, contributes to the development of capacities so that they can exercise their right to freedom of expression. Consistent with the foregoing, Article 5 of the Código de la Niñez y la Adolescencia pertinently provides, among other elements, that in the process of determining the Principle, the minor must be seen as a subject of rights and responsibilities, and that the application of the Principle cannot be uniform, as it depends on the minor's age, degree of maturity, capacity for discernment, and other personal conditions. So, the attention deserved by the minor's opinion is not the same for all of them, but varies according to their degree of maturity. Precisely, Article 14 subsection b) of the Código de la Niñez y Adolescencia confers on the minor the right to express their opinion in the spheres of their daily life, especially in the family, community, and school, which is not only limited to expressing, but also comprises the right for their opinion to be taken into account according to their emotional development. In this same line of ideas, that normative body, in Article 60 subsection b, determines as an educational principle respect for the rights of the students, especially those of organization, participation, association, and opinion, the latter, particularly, regarding the quality of the education they receive, which evidently includes sexual education. Based on the considerations set forth, I agree with the need for a mechanism to determine whether the exclusion of a student from the study program for 'Education for Affectivity and Comprehensive Sexuality' is appropriate or not; however, I disagree that in that mechanism only the criteria of the fathers and mothers be taken into consideration without the minor having any opportunity to express themselves. Certainly, I recognize that fathers and mothers have the fundamental right to effectively influence aspects affecting the moral or religious education of their children, which could influence the vision and manner of providing sexual education. However, as I have pointed out on previous occasions, the best interest of the child is not paternocentric or statocentric but child-centric (see judgments numbers 2012-001806 of 9:05 hours on February 10, 2012, and 2011-012458 of 15:37 hours on September 13, 2011), which is why the minor also has the right to be heard and for their opinion to be considered. In the case of adolescents, the Principle of the Best Interests of the Child obliges the State to take the minor's opinion into account with greater emphasis given their degree of emotional and cognitive development. Therefore, I consider that minors are entitled to the right to voice their opinion about whether or not to participate in the study program for 'Education for Affectivity and Comprehensive Sexuality,' insofar as it includes aspects that are not merely biological, but contemplate a set of values embodied in models of sexual conduct to be followed, which may conflict with the adolescent's personal beliefs or convictions. The foregoing constitutes application of the doctrine called 'Gillick competence'. In the case Gillick v West Norfolk and Wisbech Area Health Authority, related to the possibility of providing contraceptive treatment to minors under 16 years even without requiring parental consent, the House of Lords affirmed that 'parental rights to control the child do not exist for the benefit of the parents… [but] are established for the benefit of the child and are justified only to the extent that they enable the parent to perform his or her duties towards the child... Of course parental consent should normally be consulted, but that consent may often be unavailable immediately. Under conditions where the patient, whether boy or girl, is capable of understanding what is proposed and of expressing his or her own wishes, I see no good reason for holding that he or she lacks the capacity to express it validly and effectively.' As the minor approaches legal adulthood, parental authority decreases, it being clear that decisions regarding medical treatments to which an adolescent will submit can be determined by the adolescent themselves: 'It is necessary to take into account that a child becomes increasingly independent as it grows older; the older the child, the more -correspondingly- parental authority decreases. For the same reason, the law recognizes no rule of absolute parental authority over any given age. Instead, parental rights are recognized by the law only insofar as they are necessary for the protection of the child, so those rights yield to the child's rights to make their own decisions when they have reached sufficient understanding and intelligence to be capable of making a [informed] decision on their own account.' Consequently, in the specific area of sexual education, I consider that as the minor approaches legal adulthood, parental authority decreases; this thesis, however, depends on the type of matter affecting the minor, since there are evidently other matters in which parental authority is preserved precisely in the interest of the minor, for example, the consumption of harmful substances or the undertaking of dangerous recreational activities. The relevant point, then, is to favor that measure which best benefits the minor, which the judge must assess in the specific case according to a child-centric approach. Furthermore, with due respect for the majority, I do not consider it opportune, by virtue of the Principle of Judicial Self-Restraint (Principio de Autocontención del Juez Constitucional), for this Chamber to establish, with the detail that the majority sets down, the requirements and conditions under which the proposed exclusion mechanism from the study program for 'Education for Affectivity and Comprehensive Sexuality' must operate, since that responsibility falls to the Ministry of Public Education, which does not preclude a subsequent constitutionality review. Consequently, I declare the appeal without merit and clarify that by virtue of the Principle of the Best Interests of the Child, the criteria of adolescents, by virtue of their degree of emotional and cognitive development, must be taken into consideration as recognition of their right to assess the quality of education they should receive according to their personal convictions and beliefs. This applies exclusively to the sexual education program in question, insofar as, as I indicated supra, it contains, besides purely biological aspects, a set of values embodied in models of sexual conduct to be followed that may conflict with the adolescent's personal beliefs or convictions. The assessment is different when it concerns the rest of the academic programs, given that they refer to areas of knowledge in which minors inexorably need to be trained, areas in which they can evidently raise their own opinions and argue critically, but not to the extent of evading the attendance and approval of the courses." Likewise, in judgment No. 2020-001619 of 12:30 hours on January 24, 2020, Magistrate Esquivel Rodríguez and the undersigned dissented from the majority in this sense:

"Por tanto:

Por mayoría se declara con lugar el recurso, en consecuencia se ordena a Fernando Cruz Castro, en su condición de Presidente del Consejo Superior del Poder Judicial, o a quien en su lugar ocupe el cargo, que ajuste el acuerdo dispuesto en el artículo XVII de la sesión n.° 60-19 del 4 de julio de 2019 a los términos de esta sentencia, con el fin de garantizar el acceso, la atención y la resolución expedita del servicio público de administración de justicia en condiciones de igualdad. El Magistrado Rueda Leal y la Magistrada Esquivel Rodríguez salvan el voto y declaran sin lugar el recurso. Se condena al Estado al pago de las costas, daños y perjuicios causados con los hechos que sirven de fundamento a esta declaratoria, los que se liquidarán en ejecución de sentencia de lo contencioso administrativo. Notifíquese esta sentencia a Fernando Cruz Castro, en su condición de Presidente del Consejo Superior del Poder Judicial, o a quien en su lugar ocupe el cargo, de forma personal.

Fernando Castillo V.

Presidente a.i.

Paul Rueda L. Nancy Hernández L.

Luis Fdo. Salazar A. Jorge Araya G.

Marta Esquivel R. Alejandro Delgado F.

Dissenting vote (Voto salvado) of Magistrate Rueda Leal and Magistrate Esquivel Rodríguez, drafted by the former. With the customary respect, we depart from the majority's criterion for the following reasons:

1.- Case-law reference. Given that the majority resolution only mentions some international precedents that are of great relevance in the sub examine, we consider that a balanced weighing merits a transcription of some of their arguments. For example, while the judgment refers to ECtHR case-law related to military service, pharmaceutical products, property rights, and the use of religious symbols, these are matters that may serve as a general reference regarding the existence of a right to conscientious objection, but do not touch upon the substantive issue in the sub íudice: civil marriage between same-sex couples and the right to conscientious objection. The case that does so is Eweida and Others v. United Kingdom. The majority of this Chamber focused on the dissenting opinions without doing justice to the arguments of the ECtHR's decision. On that occasion, that Court ruled on the case of a registrar of births, deaths, and marriages, who opposed registering marriages between homosexual persons:

'102. The Court points out that the third applicant is a Christian, who holds the orthodox Christian view that marriage is the union of one man and one woman for life. She believes that same-sex unions are contrary to God's will and that it would be wrong for her to participate in the creation of an institution equivalent to marriage between a same-sex couple. Because of her refusal to be designated as a registrar of civil partnerships, disciplinary proceedings were initiated against her, culminating in the loss of her employment.

103. The third applicant did not complain under Article 9 taken alone, but alleged that she had suffered discrimination as a result of her Christian beliefs, in violation of Article 14 taken in conjunction with Article 9. For the Court, it is clear that the applicant's objection to officiating at civil partnerships of same-sex couples was directly motivated by her religious beliefs. The events in question fell within the scope of Article 9 and Article 14 was applicable.

104. The Court considers that the meaningful comparison in the present case is with a registrar with no religious objection to same-sex unions. It agrees with the applicant's assertion that the local authority's requirement that all registrars of births, marriages and deaths also be designated as civil partnership registrars had a particularly detrimental impact on her because of her religious beliefs. In order to determine whether the local authority's decision not to make an exception for the applicant and others in her situation amounted to indirect discrimination in violation of Article 14, the Court must consider whether the decision pursued a legitimate aim and was proportionate.

105. The Court of Appeal stated in the present case that the aim pursued by the local authority was to deliver a service that was not only effective in terms of practicality and efficiency, but also that complied with the general policy of being 'an employer and a public authority wholly committed to the promotion of equal opportunities and requiring all its employees to act in a non-discriminatory manner towards others'.' The Court recalls that in its case law under Article 14 it has declared that differences in treatment based on sexual orientation require justification by particularly serious reasons (see, for example, Karner v. Austria, no. 40016/98, § 37, ECHR 2003 IX; Smith and Grady, cited above, § 90; Schalk and Kopf v. Austria, no. 30141/04, § 97, ECHR 2010). It has also declared that same-sex couples are in a significantly similar situation to different-sex couples as regards their need for legal recognition and protection of their relationship, although practice in this regard continues to evolve across Europe, the Contracting States enjoy a wide margin of appreciation as to how this is achieved in the domestic legal system (Schalk and Kopf, cited above, §§ 99-108). In this context, it is evident that the aim pursued by the local authority was legitimate.

106. It remains to be determined whether the means used to achieve this aim were proportionate. The Court takes into account that the consequences for the applicant were serious: given the strength of her religious conviction, she considered that she had no choice but to face disciplinary action, before being appointed as a registrar of civil same-sex unions and, ultimately, she lost her job. Moreover, it cannot be said that, when she signed her employment contract, the applicant expressly waived her right to manifest her religious beliefs by objecting to participating in the union of same-sex couples, given that this requirement was introduced at a later date. On the other hand, however, the local authority's policy sought to guarantee the rights of others that are also protected by the Convention. The Court generally grants the national authorities a wide margin of appreciation when it comes to a balance between competing Convention rights (see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 I). In any event, the Court does not consider that the national authorities, namely the local authority's superior who conducted the disciplinary proceedings and the national courts that rejected the applicant's discrimination claim, exceeded the margin of appreciation available to them. Therefore, it cannot be said that there has been a violation of Article 14 read in conjunction with Article 9 with respect to the third applicant." It is highlighted that this Court considered as a legitimate aim that the respondent State pursued a general policy of promoting equal opportunities and, therefore, required all its employees to act in a non-discriminatory manner towards users, referring specifically to unequal treatment of same-sex couples. It also considered that the measure adopted—the dismissal of the civil servant—was within the State's margin of appreciation.

The majority vote also mentions the decision of the Colombian Constitutional Court, but without delving into that Court's reasons for denying conscientious objection in the exercise of the jurisdictional function:

"5.3. Judicial authorities cannot shield themselves behind conscientious objection to refuse to process or decide a matter that is brought before them Conscientious objection is a right that is guaranteed extensively in the private sphere—when the denial of third-party rights is not at stake. However, it is excluded from being invoked when holding the status of a public authority. Whoever holds such status cannot excuse themselves on grounds of conscience to abstain from fulfilling their constitutional and legal duties, because through such practice they would incur a clear disregard of the provisions of Articles 2 and 6 of the National Constitution. According to the first:

'The essential purposes of the State are: to serve the community, promote general prosperity, and guarantee the effectiveness of the principles, rights, and duties enshrined in the Constitution; to facilitate the participation of all in the decisions that affect them and in the economic, political, administrative, and cultural life of the Nation; to defend national independence, maintain territorial integrity, and ensure peaceful coexistence and the validity of a just order.

The authorities of the Republic are instituted to protect all persons residing in Colombia, in their life, honor, property, beliefs, and other rights and freedoms, and to ensure the fulfillment of the social duties of the State and of individuals.' While the second enshrines:

'Individuals are only liable before the authorities for infringing the Constitution and the laws. Public servants are liable for the same cause and for omission or excess/extralimitation in the exercise of their functions.' The contents of the transcribed articles highlight the role played by public authorities and the substantial differences that arise regarding the meaning and scope of the duties on the heads of these authorities when compared with those on the heads of private individuals regarding the exercise of conscientious objection. When one voluntarily accepts to hold the status of a judicial authority and, even when, as a private individual, one assumes commitments that involve the exercise of the jurisdictional function, one of the consequences, if not the most important, is the commitment to ensure the strict compliance with current regulations.

Indeed, when a judicial official renders their ruling, they are not exercising their free will. In these cases, the judge faces the obligation to resolve the problem brought before them—Art. 230 of the Constitution—, based on the Constitution and other norms that compose the applicable legal system. This is because their function consists precisely in applying the law—understood here in a broad sense—, such that it is not permissible, based on religious, political, philosophical, or any other type of conviction, to fail in their function. The foregoing does not mean that as a person they do not have the possibility of exercising their fundamental rights; it means that in their work of administering justice, their convictions do not relieve them of the responsibility derived from their investiture, and they must administer justice based solely and exclusively on the law, because it is this attitude that ensures that the law governs in a State, and not the personal opinions of public authorities; that is, what defines that a State is governed by the rule of law and not by people, this being the path for the construction and consolidation of the Rule of Law.

Additionally, admitting the possibility of objecting on grounds of conscience to the application of a specific legal precept means, in the case of jurisdictional authorities, accepting the unjustified denial of justice and arbitrarily hindering access to the administration of justice. It must be borne in mind that in the exercise of the judicial function, the protection of fundamental constitutional rights is at stake, which have, in turn, been the result of great efforts by historically discriminated groups of society—as is the case, in the matter before us, with women.

It must also be observed that these conquests crystallized in the form of fundamental rights do not always receive peaceful acceptance by all sectors of society and are frequently exposed to attacks from those who seek to impose an all-encompassing and excluding point of view, incompatible, as already stated, with openness to pluralism and with the need to protect and promote cultural diversity, as provided for in Articles 1 and 7 of the National Constitution in harmony with other precepts contained in the same Fundamental Norm[43].

Here it is fitting, consequently, to affirm that judicial authorities must set aside their conscience-based considerations so that, in the development of the Rule of Law, the right of persons to access justice is guaranteed, and, by that means, ensure that their fundamental constitutional rights are duly respected and protected. The private conscience-based reasons of a judicial official cannot be converted into an obstacle that prevents persons from obtaining prompt and due justice.

It thus appears clear that whoever voluntarily decides to become a member of the judicial branch must set aside their conscience-based considerations when exercising their functions and must apply the current regulations. The situation is different when these persons act in the private sphere, because in that sphere the National Constitution recognizes the full possibility of acting in accordance with the dictates of their conscience and ensures that this will take place without inadmissible interference by the State or private individuals." (Emphasis does not correspond to the original. Sentencia de Tutela n.° 388/09 of 28 May 2009).

From our perspective, we note that as of the date this resolution was issued, there is no express recognition of conscientious objection in our legal system, as does occur in other latitudes (for example, Article 30 of the Spanish Constitution for military service). Given this situation, in Costa Rica, its application is derived from more generic norms related to freedom of conscience, thought, or worship, as was analyzed in this constitutional court through judgment n.° 2012-10456 at 16:27 hours on 1 August 2012 (cited in the majority vote).

2.- Application of conscientious objection. On the delimitation of the legal and the religious order. In our view, the majority ruling falls irremediably into the error of omitting the differentiation between the legal and the religious order, a problem already glimpsed in the writ of application, without the Majority having noticed it. The petitioner stated that the rights of the "... Catholic, Evangelical or Muslim, or Jewish judge (or judicial technical assistants), for whom marriage between same-sex persons goes against their deepest convictions..." are violated. Echoing this claim, the Chamber determined that each of such judges "... has a different vision of a social and religious institution than the contracting parties may have and, consequently, forcing them to celebrate the act of marriage lacerates their deepest religious convictions, and leaves the fundamental right of the adjudicator without essential content." (Emphasis added).

Prior to knowing the specific case, it is appropriate to review some situations of conscientious objection based on religion, to demonstrate general guidelines based on an exercise of induction.

The first example is military service. Some countries provide for military service or compulsory recruitment, and impose sanctions on those who refuse to enlist in the army when requested. It happens that the obligated individual professes a pacifist religion that opposes violence or homicide, which are common situations in war or other kinds of military actions. What occurs then is that military service poses a conflict for the individual: on the one hand, if they comply with it and enlist, they will disobey religious norms; on the other hand, if they act according to their religious beliefs, they will suffer the state sanction for not performing military service.

A second example is abortion. In countries that permit it, a doctor in the state social security system could be forced to perform it in the exercise of their public functions. However, this legal obligation could conflict with their religious belief, based on which life must be safeguarded from conception. Again, the individual finds themselves in a dilemma: either they fulfill their legal duty and incur religious condemnation, or they are exposed to a legal sanction by reason of observing religious mandates. An identical scenario would arise in cases of euthanasia or eugenics, or when the reason for the objection instead stems from ethics.

As extracted from the previous examples, a conflict between two normative orders underlies conscientious objection for religious reasons: the legal and the religious. Given that the individual is subjected to a dilemma that forces them to choose between their religious beliefs and their legal obligation, conscientious objection functions as an escape clause, insofar as it releases the person from their legal duty. The foregoing applies equally when facing a controversy in the ethical sphere.

This type of conflict is perceived in the justification wielded by the ECHR for issuing the Bayatyan v. Armenia decision of 2011, which constituted a paradigm shift in its case law, as the Court itself indicated, by including conscientious objection within the scope of protection of Article 9 of the European Convention on Human Rights. The Court states: "110. In this respect, the Court notes that Article 9 does not explicitly refer to a right to conscientious objection. However, it considers that opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person 's conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9..."[1] (Emphasis added). That is, if the opposition to military service is based on a serious and insurmountable conflict between the obligation to serve in the army and the genuine and deep beliefs of a person, including their conception of the good "life", then its protection could find shelter under Article 9.

In the sub lite, due to the error in the starting point cited supra, the concept of marriage was broadly encompassed, including both civil and religious marriage. We clarify that the petitioner expressly stated that "Not under discussion in this amparo is the human right of every person to FREELY choose the sexual preference with which they feel best. To choose and decide about their sexuality. That right deserves all my respect and I give it." (Capitalization from the original). That is, the problem lies in the celebration or recognition of civil marriage between same-sex persons, and not in their sexual orientation. The petitioner even specifies the object of their disagreement: "It is a notorious fact that the judicial population, specifically judges and technical judicial assistants, in a vast majority profess the Christian faith and for many of them, participating in the processing of marriages between persons of the same sex would be something OPENLY AGAINST THE FAITH THEY PROFESS." (Capitalization from the original).

Unlike the examples presented, the intended conscientious objection does not show, in the sub iudice, a collision between two obligations imposed by the different normative orders, but rather actually constitutes an opposition to the State having its own normative order to regulate civil matters. The individual—in the sub lite, the judge—does not face a dilemma like those presented supra, since we are dealing with two different normative spheres, each of which separately assigns dissimilar consequences to the same event: a homosexual couple enters into marriage. Faced with this situation, the normative response corresponding to the religious sphere of the amparo beneficiary in this matter is to disavow such a claim and deny the marriage, as it does not meet the requirements for a religious marriage (that it be between a man and a woman). Faced with that same factual situation, the State may recognize such a marriage if it meets the other normative requirements, since the State has the power to determine the normative requirements for civil marriage. In other words, when a homosexual couple seeks their union, the religious norm would prescribe to the responsible religious authority "Do not celebrate a religious marriage, as it does not meet the requirements"; while civil law would instruct the civil authority "Celebrate the civil marriage because it meets the legal requirements." Both responses coexist without collision between them: a civil marriage, without religious recognition.

In simpler words, the only way to accept this type of conscientious objection would be if the person's religious creed prohibited the State from regulating civil marriage ("My religion prohibits the State from regulating marriage between persons of the same sex"), which would have to be rejected due to the rule of law in a civil-law regime, as is currently characteristic of the Democratic Rule of Law.

It is evident that these are two entirely different institutions. For this reason, religious marriage (without civil recognition) cannot demand equal treatment to civil marriage. Religious marriage cannot go to courts to discuss community property, inheritance rights, establish family patrimony, alimony rights, etc. Such effects can only arise if the State decides to grant them, but not by decision of the religious authority, but because the State so regulates. On the other hand, a civil marriage could not demand any kind of religious recognition or effect: it could not be considered a sacrament, impose religious vows, claim a position in the eyes of a specific church, etc.

This confusion between civil and religious marriage is evident because—as has occurred in many countries—the religious opposition yields when the civil institution has a different denomination from "marriage", for example, being called "civil union", "civil partnership", etc.

The ignorance of these two normative orders, of these two different institutions, is noticeable in the majority judgment when, in a completely inconsequential manner, it indicates that conscientious objection could not occur in the case of a divorce: "Legal doctrine has held that conscientious objection is not possible for a criminal Judge who alleges that their conscience does not allow them to impose punishments. The same can be affirmed in the case of a Family Court Judge who objects to divorce. In all of these cases—besides, it must be borne in mind that when they opted for the position, they voluntarily assumed all its functions—, consequently, we would be breaching an elementary rule of good faith if they then sought to exercise the right to conscientious objection." (Emphasis added). Do all religions accept divorce? The answer is clearly negative, or they do so in a much more restrictive way than in civil law. Then, why is it prevented to exercise conscientious objection for divorce? Simply, because divorce is civil, not religious one. Civil divorce lacks effects in the religious sphere, in the same way that civil marriage also has none.

It could be argued, as the majority does, that the person appointed to the position of judge voluntarily assumed that they had to execute divorces, an institution already recognized in our legal system. However, what will happen when a new ground for divorce arises, such as incompatibility of characters (legislative file n.° 20.406)? Under the majority's thesis, judges could argue that such a ground did not exist at the time they assumed the position and refuse to apply it by arguing a conscientious objection. Under our thesis, divorce only affects civil marriage, so it lacks consequences in the religious sphere (if a religious marriage concomitantly exists, that union would remain unaffected).

Another case is the recent amendment to numeral 35 of the Family Code. Originally, that norm regulated that the "... husband is the principal obligor to cover the expenses demanded by the family...". At present, that obligation falls on both spouses. Could a judge refuse to apply that norm because their religion (or their ethical belief) is based on patriarchy and the man's duty to be the household provider? In this regard, such a possibility must be denied, since it involves a consequence of civil marriage.

We note that in this exposition, reference is made to conscientious objection with a marked emphasis on the religious aspect. This responds to the grievance formulated by the claimant. However, it is clear that such elucidation proceeds in an identical manner when the conscientious objection is linked to an ethical reason.

Finally, it is necessary to specify that in the judgment of practical concordance where conscientious objection is at stake, it is fundamental to take into consideration the type of opposing constitutional good. In that sense, evidently, when "life" is involved, a relevant quality of this constitutional good weighs with particular force: it is a condition sine qua non for the enjoyment of fundamental rights by the human being, individually considered. Such characteristic is not observed in the sub iudice, where the balancing only concerns religious freedom in relation to other rights, such as equality and access to justice.

3.- With respect to discrimination. On this point, the judgment stated:

"The majority of the Court considers that the fact that a Judge raises a conscientious objection on an issue that, from a religious point of view, is of the utmost significance, does not mean that they are discriminating against a specific person; it involves an objective and reasonable justification. What happens is that they have a different vision of a social and religious institution than the contracting parties may have and, consequently, forcing them to celebrate the act of marriage lacerates their deepest religious convictions, and leaves the fundamental right of the adjudicator without essential content. Secondly, it is a public and notorious fact that in a country where there are several notary judges, the Administration of Justice can well accept conscientious objection, which, as expressed supra, must meet all the requirements for this fundamental right to be exercised, and assign non-objecting judges to perform marriages between persons of the same sex and, even, in a State that guarantees all the fundamental rights of persons, establish a system that allows for always having available judges who are willing to provide the service to persons of the same sex under conditions of equality with other service users. Seen this way, there is no such act of discrimination, since there will always be judges who will perform the act of marriage, thereby satisfying the rights of the contracting persons." According to the majority, there would be no discrimination because civil marriage between persons of the same sex could be performed by other judges (non-objecting ones) or, for the purposes of such marriage, the State could design a "system" to have judges available who provide that service.

On 1 December 1955, Rosa Parks refused to sit in the part of the bus that was reserved for "colored people". The transportation service was not being denied to her; she even had a "special section" for her. However, today it would be untenable to affirm that this differential treatment did not constitute an odious discriminatory act.

Under the majority's solution, homosexual couples will have a "special system" for their marriage to be recognized. Thus, as the majority reasons, the service of the courts of justice would not be denied to them; rather, they would have a system particularly aimed at them. Does this not mean a discriminatory act that violates the constitutional order and is promoted, no more and no less, by the very Court called upon to combat unequal treatment?

The problem in the majority's reasoning lies in the fact that it disregards that conscientious objection cannot be opposed when a serious violation of human dignity derives from it, that is, of its essential core or Kernbereich; in this case, through discrimination contrary to the constitutional and conventional order.

The situation does not improve if a supposed practical concordance is carried out, as the majority intends. It would not cease to be discrimination if the bus driver had refused to transport Rosa Parks alluding to their firmest beliefs; nor would it if the State had established a bus system particularly aimed at Afro-descendants in order to "protect" the beliefs of the "objecting" drivers.

In the hypothetical case of a religion that denied—based on its most deeply rooted creed—the union between persons of different ethnicities (the so-called interracial marriage), of other religions, etc., should the judge's conscientious objection be accepted? Absolutely not. Such objection must be rejected forcefully, because it is justified through an injury to human dignity, regardless of the moment at which the official was appointed to the position.

This limit to conscientious objection also has normative and jurisprudential basis.

In the first place, we have that the Political Constitution guarantees the free exercise of other cults (different from the Catholic religion), provided that "... they do not oppose universal morality or good customs." The American Convention on Human Rights follows this same line by safeguarding freedom of conscience and religion with the following limit: "3. Freedom to manifest one's religion and beliefs may be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others." (Article 12).

The situation is not different in the European sphere. Article 9, used by the ECHR to recognize conscientious objection, stipulates: "2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others." In the sub examine, if it were to be assumed that there is a conscientious objection based on a genuine conflict (which we reject, as explained in the previous point), then such objection would be limited by public morals and the rights of others.

On the jurisprudential side, this Court has affirmed numerous times that a person cannot be discriminated against based on their sexual orientation. In cases, for example, where service or entry to a public establishment (bar, restaurant, etc.) is denied for that reason, the Chamber has been forceful in rejecting such a possibility:

"VI.- This Court, in judgment No. 2014-012703 at 11:51 hrs. on 1 August two thousand fourteen, considered, in what is relevant, the following:

'...IV- ON DISCRIMINATION BASED ON SEXUAL ORIENTATION. Traditionally, persons comprising the LGTB population (acronym collectively designating lesbians, gays, bisexuals, and transgender people) have been subjects of discriminatory actions, whether by action or omission by public authorities or by third parties. The foregoing, despite the fact that under our legal system, any difference in treatment based on a person's sexual orientation is contrary to human dignity and the principle of equality. Sexual orientation is an essential aspect of a person's identity, the protection of which has been recognized through the interpretation of the provisions of different international instruments that form the block of constitutionality, which prohibit discrimination based on sex. By way of example, the International Covenant on Civil and Political Rights in its Article 26 establishes that "all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."; likewise, the American Convention on Human Rights, Pact of San José, Costa Rica, establishes that 'all persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law" (Article 24). However, in the universal protection system of the United Nations, there is a specific declaration known as the Yogyakarta Principles, whose full name is The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, presented in 2007 before the UN Human Rights Council in Geneva. The document contains a series of principles intended to set basic standards to guarantee the protection of the fundamental rights of persons comprising the LGBT population.' In its principle 2, the rights to equality and non-discrimination are established, according to which "all persons have the right to the enjoyment of all human rights, without discrimination on grounds of sexual orientation or gender identity. The law shall prohibit all discrimination and guarantee to all persons equal and effective protection against any discrimination." A proclamation such as this makes visible the need to protect free sexual orientation and gender identity given the human rights violations, marginalization, stigmatization, and prejudices suffered by this population. This Court, in its role of protecting fundamental rights, has safeguarded the sexual orientation of persons as part of respect for human dignity and the principle of equality. Thus, in judgment No. 2007-018660 of 11:17 a.m. on December 21, 2007, and in subsequent ones, this Court has recognized "(...) as a fundamental legal principle contained in the Political Constitution of Costa Rica, respect for the dignity of every human being and, consequently, the absolute prohibition of carrying out any type of discrimination contrary to that dignity. To discriminate, in general terms, is to differentiate to the detriment of the rights and dignity of a human being or group thereof; in this case, of homosexuals. Based on the foregoing, it can be validly affirmed that discrimination on grounds of sexual orientation is contrary to the concept of dignity duly enshrined in the Political Constitution and in the International Treaties on Human Rights signed by our country." Likewise, in judgment No. 2011-13800 of 3:00 p.m. on October 12, 2011, in which the action of unconstitutionality filed against Article 66 of the Reglamento Técnico Penitenciario, Decreto Ejecutivo No. 33876-J, which limited the intimate visits of persons deprived of liberty to contact with a person of a sex different from their own, was upheld, this Chamber held: "(...) human dignity cannot be violated through legal norms that do not respect the inalienable right that each person has to diversity, as occurs with the norm challenged in this action, which establishes a prohibition contrary to human dignity, devoid of objective justification, since it is based on criteria of sexual orientation, illegitimately discriminating against those who have preferences different from those of the majority, whose rights or interests are in no way affected by the free expression of the freedom of the former. Taking into account that the purpose of the norm is to permit contact with the outside world for the purpose of allowing the sexual freedom of inmates, the difference in treatment is not justified, given that persons deprived of liberty with a sexual orientation toward persons of the same sex are in the same factual situation as persons deprived of liberty with a heterosexual orientation, a situation that is contrary not only to the right to equality, but also to the right of persons deprived of liberty to exercise their right to communicate with the outside world through intimate visits" (emphasis added). Even though within this legal context, the reality of the LGTB population has become more visible, social and cultural resistances still persist that project beyond private spheres and spaces and are embodied in administrative actions and even in legal norms that restrict the rights of these persons. Therefore, sexual diversity and its concrete manifestations in social life demand legal recognition that cannot be avoided in a State whose fundamental pillar is respect for human dignity (...)".

VII.- Through its jurisprudential line, this Chamber has recognized as a fundamental legal principle contained in the Political Constitution of Costa Rica, respect for the dignity of every human being and, consequently, the absolute prohibition of carrying out any type of discrimination contrary to that dignity. To discriminate, in general terms, is to differentiate to the detriment of the rights and dignity of a human being or group thereof; in this case, of homosexuals. Based on the foregoing, it can be validly affirmed that discrimination on grounds of sexual orientation is contrary to the concept of dignity duly enshrined in the Political Constitution and in the International Treaties on Human Rights signed by our country. By way of example, the International Covenant on Civil and Political Rights prohibits in its article 26 discrimination on grounds of "race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status"; from which it also follows that acts that violate the right to equality and human dignity of persons due to their sexual orientation are not permitted, since they have the right to access any commercial establishment and to receive equal treatment, without discrimination based on their sexual preference (see judgment No. 2007-018660 of 11:17 a.m. on December 21, 2007).'" (Judgment No. 2018-10289 of 2:36 p.m. on June 26, 2018. The underlining is added).

In this judgment, the Chamber explicitly recognized that discrimination based on sexual orientation constituted an injury to the legal system and an act contrary to human dignity.

Imagine the case of a family restaurant, whose owner opposes civil marriage between homosexual persons, alleging religious beliefs. In the majority's solution, it would be valid for the couple to go to another restaurant that provides the same service or for a "special section" to be set up in the business involved for such couples, where they would be served by persons other than the owner, since, as results from the majority's reasoning, in this way the "rights" of the establishment's owner and those of the homosexual couple are "protected." This aberrant situation demonstrates that in this case an underlying discrimination and an injury to human dignity exist, since conscientious objection is imposed against the grain not only of the rights and freedoms of third parties, but also of public morals, given that such a type of discriminatory treatment will always be incompatible with the latter.

It is not idle to mention that sexual orientation is a category protected by the Pact of San José, as the Inter-American Court of Human Rights has stated in several resolutions (Atala Riffo and daughters vs. Chile, Duque vs. Colombia, and Advisory Opinion OC-24/17).

Let us remember that many population groups have seen their rights recognized thanks to the struggles waged by the generations that preceded them, and that this recognition has not been free of opponents. Women, persons of African descent or indigenous persons, persons born out of wedlock, persons with disabilities, older adults, and homosexuals, even those who profess a certain minority religion, to mention a few examples, are sectors of the population that historically and culturally have been marginalized to varying degrees. Marriage between persons of the same sex is a step in favor of that type of minority, which deserves and must be protected by this Court.

For the reasons stated, we dissent from the vote and declare the appeal without merit.

Paul Rueda L. Marta Esquivel R." Now, regarding the subsection challenged in the sub lite, I again offer considerations differing from the majority. Firstly, I maintain that the Court's reasoning is misguided. In summary, the majority vote considers that a sworn statement (declaración jurada) is an adequate means to exercise conscientious objection, since, should the individual be untruthful, they could be subject to the sanctions (even criminal) established in the legal system. In my opinion, there is an error in this approach regarding the content of the sworn statement. In it, the declarant can attest to facts, which may be true or false. However, they cannot attest to a legal interpretation or normative effects. That is, the person interested in exercising conscientious objection can state that their deepest convictions relate to one topic or another, but they could not impose on the Administration, as the object of the sworn statement, the legal consequence of that statement; in this case, it would be to interpret that their conviction conflicts with a legal obligation and that, therefore, the latter is not opposable to them. By way of example, a taxpayer can declare under oath that their annual earnings do not exceed a certain amount; however, they cannot declare under oath regarding the legal consequence of that fact (for example, whether the Administration must include them in one tax regime or another). In the sub iudice, I consider the situation to be analogous. The declarant may declare under oath regarding their convictions and, based on that, request that the Administration exempt them from a legal obligation. However, the interpretation and assignment of the legal consequence - accepting or not the conscientious objection - will be a decision that rests solely with the latter. Precisely, in the sub examine, I consider that the challenged subsection has this function, that is, it allows the individual to declare their personal beliefs or convictions so that it is the Administration that decides on the appropriate legal consequence. That is, as can be easily inferred from the literal text of the norm under review, what this provision authorizes is - simply and plainly - for public servants to be able to inform the Administration, by means of a sworn statement, of their right to conscientious objection for the purposes of mandatory training and education programs; however, the right to inform does not correlatively entail the automatic obligation of the Administration to grant the petitioner's claim, since, for that, the Administration must carry out an exercise of harmonization and optimization between the principles, goods, and rights at stake, so that in the specific matter the protective substance of each of them is enhanced, but without emptying the essential core (Kernbereich) of any, as would occur if open discriminatory treatment or treatment contrary to human dignity were fostered, as I explain in my dissenting vote to judgment No. 2020-001619, in which case the door to eventual constitutional review would always remain open, for example, through the amparo remedy.

Finally, I reiterate that I dissented from the vote regarding the admissibility of the consultation (consulta) filed in file No. 21-012118-0007-CO. In that respect, I refrain from ruling regarding the objections raised therein.

Dissenting vote of Magistrate Hernández López regarding Article 23, subsection g) of the draft legislation under review.

As stated in the operative part of the judgment (item 54), the decision on the point referring to Article 23, subsection g) of the draft legislation under review is reached by majority, not unanimously, since on this point, as indicated there, I have considered that the norm is contrary to the constitution and would only be in conformity with it if an interpretation is given that includes the indicated limitations, that is, "provided that it is interpreted that the sworn statement referred to in the norm must be subject to a verification process that guarantees that the public official is not evading obligations inherent to their special subjection relationship, which nullify or render empty the constitutional and legal guarantees, limits, and limitations of conscientious objection, among these, security, order, health, and respect for the fundamental rights of persons, particularly human dignity and non-discrimination." I must also clarify that regarding this issue of conscientious objection, two optional legislative consultations (consultas legislativas facultativas) were presented, first that of file 21-011713 and then file 21-012118. This last consultation was rejected on procedural grounds by two fellow Magistrates (Castillo Víquez and Rueda Leal), but not so the first, in which they participated on the merits with the majority opinion stating that they find no constitutional flaws in the norm under review, an opinion from which I differ as I expressly recorded. Having clarified the foregoing, I shall now explain the basis for my reasoning which recognizes the existence of a fundamental right to conscientious objection capable of being exercised regarding the training of public officials (which is what the norm refers to) but with express limits, which must guarantee, at least: security (in the Costa Rican case, there is no army as a permanent institution, so I will not refer to the objection exception permitted in this regard), order, health, and respect for the fundamental rights of persons, particularly human dignity as well as non-discrimination, limits that must be verified in each specific case and for which the possibility of objecting to training cannot be left open in the law by the mere submission of a sworn statement, without further procedure. In this sense, I consider that the way in which this issue was regulated in the draft legislation under review (Article 23, subsection g)) does not conform to the law of the Constitution. Since conscientious objection is a fundamental right, it was not appropriate to declare the unconstitutionality of the norm under review, since this norm, in its first part, does recognize the existence of that fundamental right as such, hence the option that seemed most viable to me is the interpretation in conformity because, as explained below, leaving the norm open as such - in its second part - without the regulation or verification of the conditions for its exercise, does prove injurious to the Constitution. I shall now explain my reasoning.

Relationship between democracy and human rights.

Costa Rica is a constitutional democracy, and consequently, one of its primary goals is to guarantee the protection and promotion of a series of fundamental rights and freedoms as part of its ideological model. Therefore, it is widely recognized that there is a symbiotic relationship between democracy and human rights, so much so that democracy cannot be defined without human rights and the latter can only be properly protected within the framework of a democratic rule of law state. It is unquestionable that both depend on each other and that there is no constitutional state without fundamental rights.

Human rights grant legal and moral standing to each of its inhabitants to claim conditions inherent to their condition as human beings, universally recognized as essential for the exercise of freedoms and a dignified life. In this sense, one of the objectives of the democratic State is to promote the comprehensive development of the individuals that compose it, for which respect and guarantee of a series of legal rights are fundamental, without which human equality and dignity cannot be guaranteed.

Human rights encompass a range of rights (individual or programmatic, depending on the classification used) and are characterized by being interdependent, meaning they relate to each other, and are at the same time indivisible because the recognition and development of each right can only be guaranteed by the recognition of all of them.

In this sense, the protection of fundamental rights is the raison d'être of the democratic State, and its legitimacy is linked to its level of compliance or safeguarding. Fundamental rights and freedoms, in turn, have a legitimizing function for democracy; without their effective fulfillment, democracy is not such, it is merely formal ("democracy light") but lacks its substantial elements. Therefore, in the history of constitutionalism, the consensus has been established that the State justifies its existence and legitimizes itself only to the extent that human rights are duly safeguarded.

The dual dimension of human rights and the obligations of the State.

Human rights, in the social rule of law state, impose concrete obligations, having a dual dimension (subjective and objective). On one hand, they impose duties of protection (not to violate rights) and on the other, they impose mandates for action, positive obligations that become mandates of the State implying a duty of a specific implementation of state activity for the realization of fundamental rights.

In this dual dimension, human rights become supreme values that govern the entire legal system and guide all state activity. They have effects on public authorities, that is, they manifest in the material shaping of legal norms by the Legislature, in the actions of the Executive within the scope of its functions, and in the application and interpretation of legal norms by the judge (essential, for example, in their role of interpreting and weighing rights).

Thus, for example, the Spanish Constitutional Court has understood that from the obligation of submission of all public authorities to the Constitution (lex superior), not only is the negative obligation of the State deduced not to injure the individual or institutional sphere protected by fundamental rights, but also the positive obligation to contribute to the effectiveness of such rights and the values they represent, even when no subjective claim exists on the part of the citizen. In this sense, it has stated:

"As a consequence of this dual nature of fundamental rights, a dual obligation also rests on public authorities: in their traditional subjective dimension, it imposes on them the negative obligation not to injure the sphere of freedom delimited by them; and in their juridical-objective aspect, they generically require that, within the scope of their respective functions, they contribute so that the implementation and enjoyment of fundamental rights are real and effective, whatever the sector of the legal system in which they are concerned." (see Judgment 53/1985) For its part, the German Federal Constitutional Court recognizes that the objective character of fundamental rights starts from understanding that these rights are intended to guarantee the sphere of freedom of the individual against state interventions, but also have an axiological purpose of universal validity, because they radiate throughout every direction and every area of law. They are both defensive rights, negative actions of the State against the citizen, which give the rights holder, as R. Alexy has pointed out, three types of powers: a) The right that the State not prevent or hinder certain actions of the holder; b) The right that the State not affect the established situations or properties of the holder; and c) The right that the State not eliminate the fixed legal positions of the rights holder. Fundamental rights are also principle norms, which, together with their traditional conception as defensive rights, form a value system that permeates all areas of the legal system (see judgment of the German Federal Constitutional Court BVerfG 6, 55 (72), and in particular the Lüth ruling of January 15, 1958, judgment BVerfG 7, 98 (204)).

In other words, fundamental rights today are not limited to acting as subjective rights that the rights holder can enforce against the passive subject, the public authority, or a private individual, but also operate as objective principle norms that govern as supreme guiding principles that bind all branches of the State and constitute true mandates for action and duties of protection for the State. As we shall see later, this directly affects the State's obligation to train and educate in human rights, as part of its objective obligations, particularly for public officials.

Conscientious objection as a fundamental right.

Within the range of fundamental rights, recognized at the constitutional or conventional level, there is no doubt about the existence of conscientious objection as a human right, a topic on which there is broad consensus, although this consensus fades regarding its nature or scope in doctrine and jurisprudence. Conscientious objection is today recognized in the main human rights covenants and declarations, in some cases as a right contained within freedom of thought, conscience, or religion. By way of example, the Universal Declaration of Human Rights, in its article 18, states: "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance." In very similar terms, this basic provision is reproduced in the International Covenant on Civil and Political Rights, in its article 18; in the European Convention for the Protection of Human Rights and Fundamental Freedoms, article 9; and the American Convention on Human Rights, articles 6, paragraph 3, letter b) and 12. The African Charter on Human and Peoples' Rights also generically recognizes freedom of conscience and religion in article 8.

Of course, like any fundamental right, it is not unlimited, and must observe, as the Spanish Constitutional Court has pointed out (SSTC 11/81, 2/82, 110/84 or 120/90, among others), limits in relation to the fundamental rights established by the Constitution itself and which mandate the regulation of their exercise.

Regarding its nature (for example, whether it is an autonomous right or not) and its content or scope, there is no consensus in doctrine or jurisprudence, as different legal systems treat it dissimilarly, although it has been accepted by a majority in cases of mandatory military service or for health personnel on various topics.

Conscientious objection, as is known, implies the right not to be forced to act — pursuant to a legal duty — against one's most deeply held inner convictions or conscience, in such a way that it can be identified as a corollary of freedom of conscience or religion, so the conventional provisions cited above are sufficient to establish its normative recognition at the international level. In our Political Constitution, the Constitutional Chamber has derived it from religious and conscientious freedom, on which it has issued jurisprudence regarding its scope and limitations in some specific cases. By way of example, see judgments 3173-93, 2004-08763, 2014-4575, and in educational matters, judgments 2002-08557, 2012-10456, and more recently in judgment 2020-001619.

The Chamber has also recognized that this right has limits and limitations for health personnel, in their refusal to be vaccinated against covid-19, recognizing that one of the main limits to this right is public health. Thus, for example, in judgment 2020-01619, it states that conscientious objection is not an absolute right:

"(...) one must keep in mind a fundamental premise, and a historical constant, in the sense that there are no absolute fundamental rights, except the right not to be subjected to cruel, inhuman, or degrading treatment, consequently, the right to conscientious objection has limits and limitations and, in those cases where it collides with another fundamental right, one must resort to the principle of practical concordance and, consequently, it is necessary to carry out a balancing test (juicio de ponderación) between the rights in conflict (...)" (the emphasis does not belong to the original).

And in judgment No. 2020-0019433, it adds:

"(...) this Chamber has recognized, firstly, the importance of vaccination as part of the essential health care that the Costa Rican State must guarantee in order to protect the fundamental right to health of all persons, and, secondly, that safeguarding public health and preventing diseases constitutes a constitutionally legitimate aim that can validly justify the mandatory nature of vaccines (...)" (the emphasis does not belong to the original).

The Chamber has indicated that to abstain from this obligation, conscientious objection is not opposable, but only a medical contraindication that must be analyzed and validated by the institution's professionals, through the procedures established in the internal regulations.

For its part, up to now in the Inter-American Human Rights System (SIDH), pronouncements on this matter are scarce and related mainly to military service (see by way of example: Sahli Vera vs. Chile (2005), Alfredo Díaz Bustos vs. Bolivia (2005), Xavier Alejandro León Vega vs. Ecuador (2006), Luis Gabriel Caldas vs. Colombia (2010), all of these before the Inter-American Commission).

However, in the report "Access to Information on Reproductive Health from a Human Rights Perspective" by the IACHR from November 2010, it was recognized that health professionals have the right to respect for their freedom of conscience, and a line of harmonization is adopted between the right to conscientious objection of health personnel and that of service users to receive a service (they must establish referral procedures, as well as respective sanctions for non-compliance with their obligation) in the face of the possible conflict between that freedom and the rights of third parties (patients). In pertinent part, it held:

95. Conscientious objection is a very relevant topic when addressing access to information on reproductive health matters. Many health professionals have their own convictions regarding the use of family planning methods, emergency oral contraception, sterilization, and legal abortion, and prefer not to provide the services. […] the right to conscientious objection of the health professional is a freedom. However, such freedom could collide with the freedom of patients. Consequently, the balance between the rights of health professionals and the rights of patients is maintained through referral. That is, a health professional may refuse to treat a patient, but must refer them without objection to another health professional who can provide what the patient requested [...].

99. In this sense, the IACHR considers that States must guarantee that women are not prevented from accessing reproductive health information and services, and that, faced with situations of conscientious objectors in the health field, they must establish referral procedures, as well as respective sanctions for non-compliance with their obligation. (the highlighting is not from the original) In the text of this report, the IACHR makes an express recognition of conscientious objection as a concrete expression of an individual freedom and, in turn, in the face of the possible conflict between that freedom and the rights of third parties (patients), it outlines the same solution adopted regarding this issue by the ECHR in the case P. and S. vs. Poland (no. 57375/08), of October 30, 2012, that is, the harmonization or conciliation of the right of the objector and the patient, stating:

"106. Insofar as the Government refers in its argument to the right of doctors to refuse to provide certain services for reasons of conscience, based on Article 9 of the Convention, the Court reiterates that the word 'practice' used in Article 9.1 does not cover each and every act or form of behavior motivated or inspired by a religion or a belief (see, among many other authorities, Pichon and Sajous v. France (dec.), no. 49853/99, ECHR 2001-X). For the Court, States are obliged to organize their health service systems in such a way as to guarantee that the effective exercise of freedom of conscience by health professionals in a professional context does not prevent patients from obtaining access to services to which they are entitled under applicable law (see R.R. v. Poland, cited above, no. 27617/04, § 206).

107. In relation to the foregoing, the Court notes that Polish law has recognized the need to guarantee that doctors are not forced to carry out services to which they object and, to that end, provides for a mechanism by virtue of which such refusal can be expressed. This mechanism also includes elements that allow for reconciling the right of conscientious objectors with the interests of the patient, by making it mandatory that such refusal be made in writing and include the patient's medical record and, above all, by imposing on the doctor the obligation to refer the patient to another competent doctor who will carry out the same service." However, it has not been demonstrated that these procedural requirements were fulfilled in the present case or that the applicable legislation governing the exercise of the medical professions was duly observed.” (Translation is our own. The underlining is not in the original).

In the European system, the European Court of Human Rights also contains cases—admittedly not very uniform—but also referring mainly to military service and matters related to health or the use of religious symbols. (See, by way of example regarding military service: Thlimmenos vs. Greece, Ülke vs. Turkey (2006), Bayatyan vs. Armenia (2011, a case from which conscientious objection to compulsory military service is treated as an autonomous right), Erçep vs. Turkey (2011), Savda vs. Turkey (2012), Tarhan vs. Turkey (2012), Feti Demirtaş vs. Turkey (2012) and Buldu vs. Turkey (2014). Regarding health matters (pharmacists) see: Pichon and Sajous vs. France (2001). Regarding the use of religious symbols see: Dahlab vs. Switzerland, Leyla Şahin vs. Turkey, Dogru vs. France and Kervanci vs. France.

Legal obligations of persons entrusted with the provision of public services.

From the examples cited above, we see how a relevant sector of doctrine and jurisprudence recognizes conscientious objection for qualified cases, but with limits that do not exempt from the fulfillment of duties before the law and the duty to exercise this right in a correct balance with the exercise of the rights of third parties.

In that sense, conscientious objection is a right that can only be exercised for very specific or exceptional cases since, by its nature, it implies the possibility of abstaining from the fulfillment of legal duties, and if its exercise were permitted indiscriminately, it would be the very negation of the rule of law. The Spanish Constitutional Court itself has shown itself to be opposed to its generic application in judgment 161/1987, stating:

“The right to be exempted from the fulfillment of constitutional or legal duties because such fulfillment is contrary to one's own convictions is not recognized, nor can it be imagined that it would be in our law or in any law whatsoever, for it would signify the negation of the very idea of the State.” In the case of public service, the possibility of exempting oneself from the fulfillment of legal duties due to conscientious objection is and must be even more restrictive or exceptional than in the case of private individuals, since public service must be exercised under absolute respect for the legal system (principle of legality—including, of course, the fulfillment and respect of human rights), and the principles of objectivity or neutrality, efficiency, and continuity that govern it. That is, the distinction between private individuals and public servants is important when evaluating the conditions for the exercise of this right, because the same assumptions are not applicable or extrapolatable when the objector is a private individual as when they are a public official, among other reasons because the latter has a special relationship of subjection that implies obedience to the current legal system, and the guiding principles of public service require it to be neutral and egalitarian, that is, free from discrimination, efficient, continuous, and, of course, subject to the principle of legality (see, among others, judgment 2011-6221). As I indicated in section 2 of this vote, a Constitutional State of Law like Costa Rica is also obligated to promote human rights through positive actions that create the conditions for their exercise and respect, which implies that, apart from guaranteeing the exercise of public service under the principles of equality, non-discrimination, efficiency, and effectiveness already mentioned, it is obligated to promote education and the promotion of the fulfillment of human rights at a general level and, in particular, among its civil service personnel, who are bound by the regulations, that is, to the fulfillment of the fundamental rights guaranteed by the Political Constitution and the international human rights treaties in force in the Republic. This educational work is particularly relevant when it comes to the protection of persons in a state of vulnerability, cases of discrimination or structurally entrenched inequality, for example, in which it is essential to change the culture through education for the effective fulfillment of current legal norms. That is why what Nelson Mandela said is so relevant when he pointed out that “no one is born hating another person because of the color of his skin, his origin, or his religion.” Hatred and violence are behaviors that can be unlearned and modified through the promotion of positive values in society. Education is one of the main tools to eradicate inequality and hatred; it is the path to fulfill the maxim expressed in the Universal Declaration of Human Rights, in its article 1, which establishes equality and dignity of all human beings as supreme aspirations of humanity:

“All human beings are born free and equal in dignity and rights and, endowed as they are with reason and conscience, must behave fraternally towards one another.” Therefore, to the question of whether a public servant can be a conscientious objector to abstain from the obligation to be trained in the subjects necessary to improve public service (principles of efficiency, objectivity-neutrality, continuity, and legality) or from the State's obligations to promote and respect human rights, the answer is no. They may only do so in very exceptional, regulated circumstances that do not violate the aforementioned assumptions, for which it is necessary to submit the objection presented to a verification process previously established in the law regarding the limits and limitations of the exercise of the right.

In general terms, it can be affirmed that a public servant cannot conscientiously object to cede the fulfillment of their functional duty—except in very qualified cases as analyzed supra—since, although all citizens have the right to freedom of conscience, this right, as indicated, does not protect public servants in the same way as private individuals. And if its invocation and acceptance to abstain from the exercise of functional duties is extremely exceptional, it must be even more so to abstain from the duty to receive training for the improvement of public service and the fulfillment of the State's duty to respect and promote human rights as part of its constitutional and conventional obligations.

Likewise, since conscientious objection is not a right that can be invoked indiscriminately, it requires, in the case of public officials, a verification mechanism to ensure that one of the conditions permitting its exercise is present, among these, a written request (which is satisfied with the sworn declaration), but which cannot be exhausted by this, because, otherwise, it would be encouraging the abstention from functional duties inherent to public service and the rule of law, among these, I repeat, the promotion and respect of human rights or the rights of third parties, a topic that has been addressed in the jurisprudence of other relevant Courts, including the Spanish Constitutional Court in judgment 160/1987. On that occasion, it pointed out that the mere invocation of conscientious objection would not be sufficient to free citizens (much less public officials) from constitutional duties. For the exercise of this right, the limits accepted in the most recognized doctrine and jurisprudence must be respected, among these, I repeat: security (with the exception of compulsory military service in cases where it exists), order, health, and respect for the human rights of persons, in particular human dignity as well as non-discrimination, limits that must be verified as indicated, and for this purpose, the possibility of objecting to training by the mere presentation of a sworn declaration cannot remain open in the law (without a procedure to verify the suitability of the alleged objection), in such a way that I consider that, as regulated in the consulted bill, Article 23 paragraph g) does not conform to the law of the Constitution.

Along the same lines, in judgment 2020-001619 of this Chamber, it was established that since the right to conscientious objection has limits, and limitations if there is a collision of rights, an assessment or balancing must be resorted to, which necessarily implies a verification procedure regarding the suitability or otherwise of the objection raised. In the relevant part, it stated:

“…the right to conscientious objection has limits and limitations and, in those cases where it collides with another fundamental right, one must resort to the principle of practical concordance and, consequently, it is necessary to make a balancing judgment between the rights in conflict.” This balancing judgment cannot be made without verifying that the conditions for the exercise of the right exist.

When analyzing the consulted Article 23 paragraph g), there is no doubt that the Bill would allow public officials, by the mere presentation of the sworn declaration, to have their conscientious objection approved, without establishing a process for reviewing or verifying the suitability of the conscientious objection raised by the public official person in their sworn declaration. It was already explained supra that conscientious objection is not an unlimited right and, like all rights, is subject to limits and limitations, and these limitations require legal regulation within the constitutionally accepted limits and limitations.

The consulted article does not develop the exception processes for the objecting person, but rather promotes a mechanism lacking control, or subsequent contradiction, which could cause public administration personnel to neglect their duty of training, without the Law allowing their hierarchical superiors to question the suitability of the objection and its relationship with the purpose of the latter. This eventuality, due to its effects, could seriously affect the effectiveness of the functioning of the public service, since it would allow an evasion of the duty to train for the improvement of the service provided by the public administration, as part of its constitutional obligations. Likewise, it could foster the non-compliance with duties established in the international regulations in force on human rights, particularly regarding non-discrimination in all its forms. By way of example, article 7 of the Convention against Racial Discrimination ratified by our country expressly states the obligation to educate as a tool for its eradication:

“Article 7. States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention”. (the underlining is not in the original) We must not lose sight of the fact that the proven suitability and efficiency of public officials are requirements that must be maintained throughout the entire relationship of the public servant with the State. The foregoing implies that the Administration may establish the obligation for public officials to carry out training courses related to improving the effectiveness and efficiency of the public service that the State provides to its administered persons. The previous premise is directly related to the right of all persons to access quality public service, which also implies that the Administration has the duty to procure the necessary knowledge so that public officials provide a service that promotes access to and development of human rights and the personal interests of the administered, without any discrimination, purposes that, as developed supra, are of obligatory promotion in a constitutional state of law. Historically and during the last decades, the Public Administration has implemented training courses for its personnel aimed at improving the care of persons who are in conditions of vulnerability (indigenous people, persons with some type of disability, Afro-descendants, women, persons deprived of liberty, children, older adults, without leaving aside LGBTIQ+ persons, victims, among others), being several examples of public policies in favor of the prevention, elimination, and sanction of any conduct of a discriminatory nature. It is even normal for the Branches of the Republic and the rest of the institutions and offices that make up the Public Administration to contain within their institutional objectives, the execution of training courses, both of the nature of obtaining skills specific to the exercise of the respective position, and of user service and the provision of quality public service for the administered.

From the previous analysis, it is important to reiterate that the position of public officials is that of a public servant subject to the principle of legality (article 11 of the Political Constitution). The design of our Constitution imposes on the public function the obligation to provide a service under criteria of objectivity and efficiency in favor of the people, which operate as main elements of its legitimacy. Evidently, the previous premises do not imply that public servants must tolerate, in the exercise of their functions, treatment that undermines their rights, since their status as servants does not eliminate their inherent condition as a person—it is here where conscientious objection operates, depending on the case and the specific situation.

However, as indicated supra, leaving open the possibility for a public official to abstain from necessary training that seeks the suitability and legality of the service—understood in its broadest sense—creates an environment conducive to unsuitability on one hand and discrimination on the other, and in the case of discrimination, to perpetuate discriminatory conducts rooted in culture, educational deficiencies, among others, capable of stripping human rights of their content, especially of persons who are part of groups in a condition of vulnerability, which is particularly relevant when access to public service, in the health system, and common security, among others, is affected or hindered.

No less relevant is it to point out that there are International Human Rights Conventions in force in the Republic that obligate, within their postulates, the States to educate, that is, to train as part of the actions to eradicate the harmful conduct against these rights, aware that otherwise reality is not changed.

Likewise, there are contentious judgments in the inter-American human rights system in which States are condemned to train in a specific subject, obligations from which the State cannot abstain. Thus, for example, in several cases (cf. CASE OF WOMEN VICTIMS OF SEXUAL TORTURE IN ATENCO VS. MEXICO), it has been established that the education and training of public officials is an effective way to eradicate violence against women:

“13. The State must, within a period of two years, create a training plan for officers of the Federal Police and the state of Mexico, and establish a monitoring and oversight mechanism to measure and evaluate the effectiveness of existing policies and institutions regarding accountability and monitoring of the use of force by the Federal Police and the police of the state of Mexico, in the terms of paragraphs 355 to 356 of this Judgment.” (CASE OF WOMEN VICTIMS OF SEXUAL TORTURE IN ATENCO VS. MEXICO JUDGMENT OF NOVEMBER 28, 2018 (Preliminary Objection, Merits, Reparations and Costs) Finally, I consider that the shortcomings indicated cannot be resolved solely through regulatory exercise, since, being regulations on the exercise of a fundamental right (of the objector), these, by constitutional imperative, must be contained in the Law, which implies the need for a verification process for the suitability or otherwise of the alleged objection, regardless of whether the subsequent development of the specific procedure occurs through regulatory power.

In summary, the omission of the consulted norm to establish the need for verification of the public official's sworn declaration leaves conscientious objection open to automatic application, which is incompatible with the constitutional and conventional legal order, and would only be in accordance with the Constitution if it is interpreted that the sworn declaration must be subject to a verification process that guarantees that the public official is not shirking obligations inherent to their special relationship of subjection, which would nullify or strip the content from the constitutional and legal guarantees, limits, and limitations of conscientious objection, such as, among others, order, health, and respect for the human rights of persons, in particular human dignity and non-discrimination, aspects that I consider must be corrected in the consulted Article 23 paragraph g).

XVI.- On the consultation of violation of the right to collective bargaining and the right to unionize.- 1) Aspects Consulted The consulting parties consider that Articles 43 and Transitory Provision XV of the “LEY MARCO DE EMPLEO PÚBLICO” bill, processed in legislative file No. 21,336, violate the fundamental right to bargaining and the right to unionize. Such norms expressly state the following:

“ARTICLE 43- Collective bargaining Through collective bargaining, new obligations or rights shall not be created, nor shall labor conditions be varied regarding:

• a)Salaries or remuneration and varying or modifying what refers to the salary scale or components of the global salary column.
• b)The creation of incentives, compensations, or salary bonuses.
• c)Matters where an additional outlay of resources must be made that affect the national budget or that of a public institution, through expenses that do not conform to the principles of reasonableness and proportionality developed by the Constitutional Chamber of the Supreme Court of Justice.
• d)Prohibitive norms contained in this law.
• e)The creation of new positions.

The conditions agreed upon in the collective bargaining instruments must respect the constitutional principles of reasonableness, proportionality, legality, equality, and budgetary legality. Minutes shall be drawn up for each bargaining session, which shall be published at the latest upon concluding the process, along with a closing act containing the complete text of the clauses that were negotiated and indicating which clauses of the draft were discarded or could not be negotiated due to lack of agreement on them.

In the case of norms that, by their nature or their affectation of the principle of budgetary legality, require legislative or regulatory approval, their effectiveness shall be conditional upon inclusion in the budget law or the respective regulations, as well as upon approval by the Office of the Comptroller General of the Republic, when it affects the budgets of institutions whose ordinary and extraordinary budgets or budgetary modifications require the approval of the latter entity.” “TRANSITORY PROVISION XV- From the entry into force of this law, the heads of public entities are obligated to denounce collective conventions upon their expiration.

In the event that it is decided to renegotiate the convention, it must be adapted in all its extremes to what is established in this law and other regulations issued by the Executive Branch.” The consulting parties consider such norms unconstitutional, in that collective bargaining is prohibited in salary matters, and other topics, which would cover practically everything negotiable, emptying of content the possibility of any agreement seeking to improve the working conditions of workers, in contrast to the provisions of Article 62 of the Constitution, of the Convention concerning the Right to Organise and to Bargain Collectively, 1949, No. 98 of the International Labour Organization (ILO), Articles 4 and 6; the American Convention on Human Rights, Pact of San José, Costa Rica, Article 2; the International Covenant on Economic, Social and Cultural Rights, Articles 2 and 8; the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of San Salvador, Article 5; numeral 7 of the Political Constitution. In addition to Art. 690 of the Labor Code. All of this in further violation of the principle of progressivity. They maintain that Article 43 of the bill consists of an excessive and disproportionate restriction on the right to collective bargaining by prohibiting negotiation on any matter, not only salary-related, but also any matter that implies an additional outlay in budgets, or the creation of positions, or that covers prohibitive matters of this law, such as vacations could be understood (the ILO has referred to vacations as part of the matters to be negotiated collectively, see Recommendation No. 7). The provisions contained in Article 43 and Transitory Provision XV of the bill violate its enjoyment by imposing unreasonable and abusive limitations contrary to the principle of conventionality guaranteed by the American Convention on Human Rights and the International Covenant on Economic, Social and Cultural Rights and its Protocol. Although constitutional jurisprudence has recognized that the right to collective bargaining is subject to constitutional and legality controls, to the principles of reasonableness and proportionality and good use of public funds, such controls cannot lead to emptying this fundamental human right of its content, in violation of the principle of freedom of association, as the bill proposes. Regarding the obligation of institutional heads to denounce collective conventions upon their expiration, the Constitutional Chamber already ruled on the unconstitutionality of said provision, when resolving the facultative consultation regarding the Ley de Fortalecimiento de las Finanzas Públicas bill, processed under file 20580, which contained an identical norm; however, there is insistence on including it again in bill 21336, stating: “I) In relation to the obligatoriness of denouncing the collective convention upon its expiration (Transitory Provision L of Title V 'Transitory Provisions'), in application of the Political Constitution (Articles 62 and 74), the International Conventions of the International Labour Organization and the jurisprudence of this Court, it is interpreted that each head of public entities has the power to denounce or not the respective collective convention, in accordance with the current legal system.” (Resolution No. 2018-19511). Thus, they consider that the provisions of Article 62 of the Political Constitution are violated, as well as the Convention concerning the Right to Organise and to Bargain Collectively, 1949, No. 98 of the International Labour Organization (ILO), Articles 4 and 6; the American Convention on Human Rights, Pact of San José, Costa Rica, Article 2; the International Covenant on Economic, Social and Cultural Rights, Articles 2 and 8; the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of San Salvador, Article 5; constitutional numeral 7 which grants them a rank superior to law, and the constitutional principles of legality and conventionality, since collective bargaining is a fundamental human right.

For the examination of these arguments, what must first be recalled is what this Chamber has established in reiterated jurisprudence regarding the scope and limitations of the fundamental right to collective bargaining, for the purposes of examining whether, in effect, the consulted norms of the bill violate its essential content.

• 2)Jurisprudential Background on the Fundamental Right to Collective Bargaining The trilogy of fundamental rights derived from Collective Labor Law are: the right to unionize, the right to collective bargaining, and the right to the effective resolution of collective conflicts (see judgment No. 2006-03002 of 10:40 hours on March 9, 2006). These rights aim to realize and provide a solution to the need of workers to group together to compensate for the real inferiority in which they find themselves when acting in isolation, vis-à-vis the employer and the generic regulation of their rights in the Labor Code. Specifically, regarding collective conventions, Article 62 of the Political Constitution contemplates their constitutional recognition, their force of law, and the need for such conventions to conform to what the law provides. Indeed, this constitutional norm states that:

“Article 62. Collective labor conventions agreed upon, in accordance with the law, between employers or employers' unions and legally organized workers' unions shall have the force of law.” The location of the norm in the Chapter on Social Rights and Guarantees of the Political Constitution and its content indicate that what is sought to be guaranteed is the right to “collective labor bargaining.” On this particular matter, in judgment No. 2020-12800 of 11:01 hours on July 8, 2020, this Court highlighted the three aspects derived from this norm, namely: a) the recognition of collective bargaining as a constitutional right; b) that the bargaining thus concerted has the force of law; and c) that such conventions must be agreed upon as provided by law. All of which is, moreover, ratified by the Inter-American Court of Human Rights, through Advisory Opinion OC-27/21 of May 5, 2021, when it states the following:

“94. In consideration of the aforementioned, and by way of corollary, the Court considers it pertinent to point out that the right to collective bargaining, as an essential part of freedom of association, is composed of various elements, which include, at a minimum: a) the principle of non-discrimination of the worker in the exercise of union activity, since the guarantee of equality is a prior element for negotiation between employers and workers; b) the non-interference, direct or indirect, of employers in workers' unions in the stages of constitution, functioning, and administration, as this can produce imbalances in the negotiation that undermine the objective of workers to improve their living and working conditions through collective bargaining and other lawful means; and c) the progressive encouragement of voluntary negotiation processes between employers and workers, which allow for improving, through collective contracts, the conditions of employment.” Specifically regarding the right to collective bargaining in the public sector, first, judgment No. 1696-92 of 15:30 hours on August 23, 1992, can be cited, where the Chamber declared the unconstitutionality of the mechanisms of direct settlement, conciliation, and arbitration for officials performing public management, but recognized that it is valid for laborers, workers, or employees who do not participate in the public management of the Administration to enter into collective labor conventions, such that entities with an employment regime of a labor nature (not public), such as State companies, can indeed bargain collectively. A criterion that is reiterated in several subsequent judgments (see No. 2000-07730 and No. 2000-04453).

Subsequently, in judgment No. 2020-008396 of 9:20 a.m. on May 6, 2020, this Court resolved the following regarding collective bargaining agreements in the public sector, ratifying that they are permitted only in the case of workers who do not perform public management:

"V.- Regarding collective bargaining in the public sector.- As is evident from the jurisprudence of this Chamber, as a principle thesis, the employment relationship established between the State (including Municipalities) and its workers is governed by Public Law -and not the Labor Code-, a relationship that has been termed public employment or statutory. That said, it is stated that, as a principle thesis, State workers are subject to a public employment regime because an exception has been made, namely, workers who do not participate in public management, as they are workers of state enterprises. Thus, it has been established that workers who do not participate in public management, being subject to common law, may resort to the procedures for resolving collective conflicts of an economic and social nature provided for in the Labor Code (resolution No. 94-3053) and to arbitration under certain limitations (resolution No. 92-1696); and may enter into collective bargaining agreements (resolution No. 00-4453), albeit also under certain limitations. Thus, the possibility of collective bargaining for workers who do not participate in the public management of the Administration (employees of state economic enterprises or services, charged with management subject to common law), has been repeatedly recognized by this Chamber starting from judgment number 03053-94, a criterion it later reiterated or ratified in judgments 2000-07730 and 2000-04453. The rest of the State's employees, who therefore do participate in public management (these being in general, not only institutional heads and legal and financial control bodies as the Union representative states, but all those workers who exercise public powers), can neither resolve their collective labor conflicts through arbitration (resolution No. 92-1696), nor can they enter into collective bargaining agreements (resolution No. 00-4453), with the execution of collective bargaining agreements celebrated in the public sector being unconstitutional when it involves personnel governed by a statutory relationship. This implies that collective bargaining in the public sector cannot be tolerated, in accordance with constitutional articles 191 and 192. In conclusion, collective bargaining agreements are not entirely prohibited in the public sector, but rather are permitted only in the case of workers who do not perform public management, that is, those covered by articles 3, 111 and 112 of the General Law of Public Administration. The determination in each specific case of which workers are covered by said norms is a matter outside this constitutional jurisdiction and corresponds to the operators of law." (judgment No. 2013-14499) IV.- Regarding the challenged regulations. (...) it must be reiterated that there is no absolute prohibition on entering into collective bargaining agreements in the public sector or that these are per se unconstitutional, since, as already indicated, there is a group of public sector employees who can validly enter into collective bargaining agreements in accordance with the Constitution, specifically, it is "constitutionally possible to apply the institution of collective bargaining agreements ... in the so-called economic enterprises or services of the State and in those personnel nuclei of public institutions and entities in which the nature of the services provided do not participate in public management" (vote No. 2000-004453. The highlighting is not original). In this way, regarding the collective bargaining agreements challenged in this action, these are constitutionally valid with respect to the aforementioned personnel nuclei who work or provide their services for the entities or institutions in question. However, as already indicated in the partially transcribed precedent, it corresponds:

"(...) to each Public Administration to define which are those officials covered by the collective bargaining agreement or with the possibility of negotiating or agreeing on this type of collective bargaining agreements, all in accordance with the criteria of the Public Administration, or that of the Courts of Justice, according to the corresponding decision." (vote No. 2015-7221)".

With respect to the content of labor collective bargaining, the Chamber has referred to the so-called normative clauses (regulating the interaction that arises on the occasion of the provision of the worker's service and the payment of wages or remuneration by the employer), configuration clauses (specifying the personal, temporal, and spatial scope of the agreement and which include the employer's disciplinary power and the exercise of its right to organization and direction) and obligatory clauses (creating rights and obligations between the parties and having to do, primarily, with social peace and the duty to execute the agreement, such as the creation of labor relations boards, installation of training centers), in the following terms:

"Within the specialty of the matter, the parties can only validly agree on what they can legally fulfill, by reason of the contractual nature of the collective agreement and as a principle thesis, it is admitted that its scope be working or labor conditions, without that purpose being extended to regulate extra-labor matters. In other words, the purpose of the collective bargaining agreement is to regulate, on the one hand, the conditions to which individual labor relations must be subject, or what is the same, the so-called normative clauses, which regulate the interaction that arises on the occasion of the provision of the worker's service and the payment of wages or remuneration by the employer, as affirmed by the majority of Labor law doctrine and this leads to the conclusion that anything that could be the subject matter of an individual employment contract can be the subject matter of a collective bargaining agreement; also, within this content, the so-called configuration clauses can be the subject of collective bargaining, which are those that specify the personal, temporal, and spatial scope of the agreement and which include those that limit or establish procedures for the exercise of the employer's rights, especially with regard to disciplinary power and the exercise of its right to organization and direction. In the second order, the obligatory clauses, which are those that create rights and obligations between the parties and have to do, primarily, with social peace and the duty to execute the agreement, such as the creation of labor relations boards, the institution of employer benefits destined for social works within the labor community, installation of training centers, among others. As a synthesis, we will say that collective bargaining agreements, by constitutional provision, have as an immediate purpose the review, inter partes and with the character of law, of the minimum content of the legal benefits that govern labor relations, all with the aim of improving or surpassing that essential minimum." (see judgment No. 2007-18485 of 6:02 p.m. on December 19, 2007).

On this same topic, in judgment No. 2020-12800 of 11:01 a.m. on July 8, 2020, the Chamber considered that a greater right than that recognized by law can be recognized:

"Likewise, it is also not admissible to argue that through collective bargaining greater rights can be recognized for the parties, which is certainly true, but it should be noted that this involves greater concessions regarding validly and legitimately recognized rights, which is not the case for limiting the free negotiation of any of the parties involved. Stated differently, a collective bargaining agreement can recognize a greater right than what the law recognizes, but it cannot limit it. And, in any case, that greater recognition, in accordance with what was stated in the preceding recital, must equally be subject to the Law of the Constitution, in order to achieve the legal harmony upon which an ordering depends." (the emphasis is not original).

For its part, in judgment No. 2008-003935 of 2:48 p.m. on March 12, 2008, the Chamber indicated that Public Administration entities may grant certain incentives or benefits to their workers, which will be constitutionally valid only when they are supported by objective reasons that also translate into better provision of the public service. In this regard, it indicated:

"In other words, this Chamber has not questioned that any entity of the Public Administration may recognize certain incentives or benefits to its workers, since this may constitute a suitable measure to remunerate a special requirement of the job, implying certain professional qualifications or skills from those who perform it, or to compensate a particular risk that characterizes the performance of such functions, be it a material risk (for example, physically dangerous tasks) or a legal one (for example, work likely to generate civil liability)." Now, while the right to collective bargaining in the public sector is recognized, through which rights or benefits can be granted or recognized with greater breadth than what is legally predefined, there are also limits to such negotiations, insofar as they must be reconciled with the exercise of the legal powers of public entities, and respect the limitations necessary to harmonize public spending with budgetary availability and the sound management of public funds. On this matter, the Chamber has referred to the limits of collective bargaining, such as the constitutional principles of reasonableness, proportionality, economy, and efficiency, and the law:

"It has also been indicated, without any detriment to collective bargaining being a right recognized constitutionally and by international instruments of the International Labour Organization, the truth is that its content is also subordinated to constitutional norms and principles, insofar as the decisions taken there, in many cases, entail consequences for public finances. Within this context, its adoption and validity are not solely subject to the mere verification of the adoption procedure, but also to an analysis of substance, to the extent that its content must conform to constitutional norms and principles because public funds are involved. Thus, the obligations agreed upon by public institutions with their employees, as occurs in this type of negotiation, can be subject to analysis of reasonableness, economy, and efficiency, with the aim of preventing the rights of the workers themselves from being disproportionately limited or harmed through a collective bargaining agreement, or to prevent an abusive use of public funds" (see judgment No. 2021-009580 of 9:15 a.m. on May 12, 2021).

Of particular interest is judgment No. 2018-19511, not only because it compiles relevant constitutional jurisprudence on the matter, but because it ratifies that the right to collective bargaining starts from a free and voluntary negotiation; and, moreover, from a minimum or essential content, which is the possibility of negotiating better socio-economic conditions for workers. The Chamber stated that:

"(...) the right to collective bargaining starts from the possibility of free and voluntary negotiation; and, moreover, from a minimum or essential content, which is the possibility of negotiating better socio-economic conditions for workers.

2.4.- On the limits and control of the content of collective bargaining agreements: It is clear, that said negotiation capacity cannot be unrestricted, as this Chamber has stated on several occasions, but that restriction cannot imply an emptying, through law, of the minimum content of that right. The legal restrictions imposed on the right to collective bargaining must conform to the Political Constitution and the International Instruments relating to the matter.

In this sense, what was resolved by this Chamber in Judgment No. 2000-004453 of 2:56 p.m. on May 24, 2000, must be understood, in which it was stated:

"Sixth: Notwithstanding what has already been expressed, it is important to clarify that even in the public sector where it is constitutionally possible to apply the institution of collective bargaining agreements, that is to say, in the so-called economic enterprises or services of the State and in those personnel nuclei of public institutions and entities in which the nature of the services provided do not participate in public management, under the terms of subsection 2 of article 112 of the General Law of Public Administration, the Chamber repeats and confirms its jurisprudence to the effect that the authorization to negotiate cannot be unrestricted, that is, comparable to the situation in which any private employer would find itself, since through this route, laws, regulations, or governmental directives in force cannot be dispensed or exempted, nor can laws that grant or regulate powers of public entities, attributed by reason of normative hierarchy or the special conditions of the Public Administration in relation to its workers, be modified or repealed, a conclusion inferred from article 112 subsection 3) of the General Law of Public Administration and from recital XI of judgment No. 1696-92 of this Chamber". (See in the same sense judgments numbers 2000-006480, 2000-006481, 2000-006482, 2000-006483, 2000-006435, 2000-007730, 2005-006858, 2006-007261 and 2006-17436).

(...)

Thus, with respect to public sector agreements, the Chamber has indicated that laws, regulations, or governmental directives in force must be respected, as well as the legal powers of public entities, attributed based on normative hierarchy or the special conditions of the Public Administration in relation to its workers. Furthermore, the limitations required to harmonize public spending with budgetary availability must be respected in the interest of the citizen's right to the sound management of public funds, derived from numeral 11 of the Constitution (see Judgment No. 2017-013443 of 9:15 a.m. on August 25, 2017).

It must also be understood that the power of negotiation is subject to controls of legality and constitutionality, in consideration of the principles of reasonableness, proportionality, and good use and management of public funds.

(...)

Hence, as an essential part of union freedom -and of its counterpart, union action- is the right of workers to collective bargaining, as an instrument for improving their socio-economic conditions, through incentives, compensation, or salary bonuses. This falls within the four rights comprising union freedom: a) freedom to form union organizations; b) freedom to join a union organization; c) freedom to cease belonging to a union organization; and d) freedom of the member to participate democratically within the union; to which must be added the right of every union organization to develop freely with respect to the State and in relation to society, considered as a whole, always within the respective legal framework.

The foregoing implies, however, according to what has been said, that all those salary components agreed upon through that valid collective bargaining must conform to the principle of constitutional proportionality and reasonableness, as well as to the rest of the legal order. But it is contrary to the Law of the Constitution, specifically to union freedom and the right to collective bargaining, for the legislator to prevent those elements from being agreed upon within a collective bargaining process and to reserve them only to formal law". (the emphasis is not original).

Subsequently, regarding the issue of the mandatory denunciation of collective bargaining agreements, in the same judgment No. 2018-019511 of 9:45 p.m. on November 23, 2018, the Chamber indicated what is stated below:

"(...)

But, it must be insisted, the fact that these controls exist cannot lead to emptying the minimum content of the right to collective bargaining, nor to obliging its denunciation. And, therefore, it is contrary to the very essence of collective bargaining that, even in those sectors where this is constitutionally and legally possible, incentives, compensation, or salary bonuses can only be created through a formal law, emanating from the Legislative Power, because this, as stated, would empty the content of that right and, therefore, would violate the principle of union freedom, which has been developed by this Chamber through its jurisprudence. ...

(...)

Finally, and in relation to the issue of the mandatory denunciation of collective bargaining agreements provided for in Transitory Provision L of the draft law under consultation, (...)

With which it is clear that, as defined by the ILO, a legal provision that would oblige one party to conclude a collective agreement with another would be contrary to the principle of free and voluntary negotiation.

In summary, a provision that forces the denunciation of collective bargaining agreements and, on the other hand, prevents, through these, achieving improved conditions, without any type of modulation, would be contrary to the Law of the Constitution; such that the legislator could not, beforehand, restrict the possibility of entering into collective bargaining agreements between employers and workers, in the public sector where the application of this institution is constitutionally possible, without violating union freedom." Likewise, in judgment No. 2020-12800 of 11:01 a.m. on July 8, 2020, it was indicated as relevant:

"Under this understanding, a norm in that sense would not only be contrary to the principle of free negotiation, but also clearly antagonistic to the principles of reasonableness and proportionality.

It is in this sense that, in the same judgment 2018-19511, the Chamber stated that:

"[E]ach head of public entities has the power to denounce or not the respective collective bargaining agreement, in accordance with the legal order in force." -emphasis added- Thus, if the norm now questioned states, as it indeed does, that both parties to the Collective Bargaining Agreement of the Universidad Nacional commit to not denouncing said Agreement unilaterally, a duty is being imposed on both parties, not only on the University but also on the union, which contradicts the constitutional provision on collective bargaining, by preventing both from the free exercise of the negotiation to which they are entitled within a framework of reasonableness and proportionality, and the complaining party, by forcing it to be unable to validate, together with the union, situations related to the good use of public funds.

In this sense, the action must be granted, because the aforementioned phrase of the last paragraph of article 185 of the Collective Bargaining Agreement of the Universidad Nacional is contrary to the Law of the Constitution, in the terms indicated.

-Conclusion. - Ultimately, since the first part of the last paragraph of article 185 of the Collective Bargaining Agreement of the Universidad Nacional is contrary to the Law of the Constitution, what is appropriate is to grant this action of unconstitutionality, annulling as unconstitutional the phrase 'The parties commit to not denouncing this Agreement unilaterally'." Deriving from the constitutional recognition of the right to collective bargaining in the public sector, as well as from the constitutional limits indicated above, the competence of this jurisdiction to exercise control over the content and scope of collective labor agreements is verified. Thus, in judgment No. 2020-024200 of 12:11 p.m. on December 16, 2020, the Court emphasized that there are no zones of immunity or public actions that escape constitutional submission, even in the case of public enterprises, in the following terms:

III.- COLLECTIVE BARGAINING AGREEMENTS AGAINST THE PARAMETER OF CONSTITUTIONALITY. This Constitutional Court has established solid jurisprudence to the effect that there is a need to submit collective bargaining agreements to the constitutional control exercised by this Chamber. Since judgment No. 2006-17441, it was considered that whatever normative rank is recognized for this type of instruments, it is clear that they are subordinated to constitutional norms and principles. It is for this reason that, despite the constitutional recognition of the right to collective bargaining and its development in various international instruments, there are no zones of 'constitutional immunity' in the Costa Rican legal order, that is, public actions that escape submission to the principle of constitutional regularity. Based on which the Chamber has been consistent that even though they have a constitutional origin, specific collective bargaining agreements can be subjected to the assessment of their constitutional conformity, including those of public enterprises. Likewise, emphasis has been placed on the fact that the obligations contracted by public institutions and their employees can be subject to an analysis of reasonableness, economy, and efficiency, whether to prevent the rights of the workers themselves from being limited or harmed through a collective bargaining agreement, or to prevent an abusive use of public funds (see, among others, judgments 2019-008679, 2019-009222, 2019-016791 and 2019-017398)." From the extensive jurisprudential compendium alluded to, it can be concluded that the right to collective bargaining is a constitutional right recognized in article 62 of our fundamental charter, which has as an immediate purpose the review, inter partes and with the character of law, of the minimum content of the legal benefits that govern labor relations, all with the aim of improving or surpassing that essential minimum. This Chamber has recognized that collective bargaining in the public sector can only be admitted for those workers who do not perform public management, employees of state economic enterprises or services, and those charged with management subject to common law. Regarding the content of collective bargaining in the public sector, it has been indicated that the parties can only validly agree on what they can legally fulfill, by reason of the contractual nature of the collective agreement and it is admitted that its scope be working or labor conditions, without that purpose being extended to regulate extra-labor matters. In this way, a collective bargaining agreement can cover anything that could be related to an individual employment contract (i.e., those that regulate the interaction arising from the provision of the worker's service and the payment of wages or remuneration by the employer), as well as the norms that limit or establish procedures for the exercise of the employer's rights, especially with regard to disciplinary power and the exercise of its right to organization and direction, and the norms that create rights and obligations between the parties and that have to do, primarily, with social peace and the duty to execute the agreement, such as the creation of labor relations boards. It is not about recognizing other rights distinct from those validly and legitimately recognized, but rather seeking greater concessions on those validly and legally recognized rights; hence, a collective bargaining agreement can recognize a greater right than what the law recognizes, but it cannot limit it. In this sense, the possibility of recognizing salary incentives or extra pay has been admitted, as instruments to incentivize greater quality, permanence, efficiency in service, loyalty, and suitability; hence it is contrary to the Law of the Constitution, specifically to union freedom and the right to collective bargaining, for the legislator to prevent those elements from being agreed upon within a collective bargaining process and to reserve them only to formal law. Thus, the Public Administration may grant certain incentives or benefits to its workers, when these are supported by objective reasons that seek better provision of the public service. There exists "a constitutional doctrine of public sector collective bargaining agreements (indispensable in the absence of a formal law regulating them), which can be summarized as follows: all rights, benefits, and advances in the legal minimums (deriving from social legislation from the middle of the last century) contemplated in a collective labor negotiation must be based on objective reasons that seek better provision of the public service, while simultaneously signifying joint social progress and solidarity for public servants and the Administration, respectful, however, of adequate and reasonable management of public funds." And that "collective bargaining agreements not only have the force of law, but also a minimum content intangible for the legislator, among which is the improvement of minimum labor conditions and, therefore, also salary conditions. The foregoing is based on the Christian principles of social justice and solidarity, which, as indicated, are contained in article 74 of the Political Constitution..." (judgment No. 2012-08891 of 4:02 p.m. on June 27, 2012). Since public entities that manage public funds are involved, their content is also subordinated to constitutional norms and principles. Thus, the validity of collective bargaining in the public sector is not solely subject to the mere verification of the adoption procedure, but also to a substantive analysis of the controls of legality and constitutionality, in consideration of the principles of reasonableness, proportionality, and good use and management of public funds, the foregoing with the aim of preventing the rights of the workers themselves from being disproportionately limited or harmed through a collective bargaining agreement, or to prevent an abusive use of public funds. In the Public Administration, the authorization to bargain collectively cannot be unrestricted, that is, comparable to the situation in which any private employer would find itself, since laws, regulations, or governmental directives in force must be respected, as well as the legal powers of public entities, attributed based on normative hierarchy or the special conditions of the Public Administration in relation to its workers. In this way, the obligations contracted by public institutions and their employees can be subject to an analysis of reasonableness, economy, and efficiency, whether to prevent the rights of the workers themselves from being limited or harmed through a collective bargaining agreement, or to prevent an abusive use of public funds. The right to collective bargaining is subject to the jurisdictional control of the Chamber, since, as indicated, it is subordinated to constitutional norms and principles.

• 3)Specific analysis of the matter under consultation (written by Judge Castillo Víquez) The consultants request that the unconstitutionality of article 43 and transitory provision XV of the draft Public Employment Framework Law, file 21336, be declared, for contravening the provisions of article 62 of the Political Constitution and Convention Concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, 1949, No. 98 of the International Labour Organization (ILO), articles 4 and 6; the American Convention on Human Rights, Pact of San José, Costa Rica, article 2; the International Covenant on Economic, Social and Cultural Rights, articles 2 and 8; the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, "Protocol of San Salvador", article 5; constitutional numeral 7 which grants them a rank superior to law, and the constitutional principles of legality and conventionality, since collective bargaining is a fundamental human right and operates as an instrument through which public sector workers in a broad sense, workers of public enterprises, and workers of public enterprises and institutions in competition, can agree on decent working conditions, for which the State bears a double responsibility: on the one hand, that of permanent vigilance to guarantee its exercise without any discrimination, and, on the other, non-state intervention that harms its effective exercise.

On this point, there also exists abundant jurisprudence of the Constitutional Chamber regarding collective bargaining.

Now, regarding specifically collective bargaining in the public sector, it should be noted that, recently, in ruling no. 2018-019511, this Court reviewed its jurisprudence on the subject and highlighted the following points:

This Chamber has recognized, as a principle-based thesis, that the relationship between the State and public servants is a public employment or statutory relationship; in other words, the servant under the public employment regime finds themselves in a state of subjection to the Administration; the latter may unilaterally impose the conditions of the organization and provision of the service to guarantee the public good. This conclusion implies that collective bargaining in the public sector cannot be tolerated, in conformity with constitutional articles 191 and 192. However, the possibility of collective bargaining has been admitted with respect to laborers, workers, or employees who do not participate in the public management of the Administration, such that entities with an employment regime of a labor nature (not public), such as, for example, State enterprises, may indeed bargain collectively in conformity with the provisions that inform Collective Labor Law.

Regarding its content, it has been indicated that the parties may only validly agree on what they can legally fulfill, due to the contractual nature of the collective agreement, and as a principle-based thesis, it is admitted that its scope covers working or labor conditions, without that purpose being extended to regulate extra-labor matters. In other words, the purpose of the collective convention is to regulate, on the one hand, the conditions to which individual labor relations must be subject, or what is the same, the so-called normative clauses, which regulate the interaction that arises by reason of the provision of the worker's service and the payment of wages or remunerations by the employer, and this leads to the conclusion that anything that could be the subject matter of an individual employment contract may be the subject matter of a collective convention; also, within this content, the so-called configuration clauses may be the object of collective bargaining, which are those that specify the personal, temporal, and spatial scope of the convention and among which are included those that limit or establish procedures for the exercise of the employer's rights, especially with regard to disciplinary power and the exercise of their right to organization and direction. In the second order, the obligatory clauses, which are those that create rights and obligations between the parties and that have to do, primarily, with social peace and with the duty to execute the convention, such as the creation of labor relations boards, the institution of employer benefits destined for social works within the labor community, installation of training centers, among others. Ultimately, collective conventions, by constitutional provision, have as their immediate purpose the review, inter partes and with the character of law, of the minimum content of the legal benefits that govern labor relations, all with the aim of improving or surpassing that essential minimum. Likewise, the possibility of recognizing salary incentives or bonuses (sobresueldos) has been admitted, as instruments to incentivize greater quality, permanence, efficiency in the service, loyalty, and suitability. That is, the Public Administration may grant certain incentives or benefits to its workers, when these are supported by objective reasons that seek a better provision of the public service. Moreover, the content of collective conventions must be subject to higher-ranking norms and must respect the framework of fundamental rights embraced in our Political Constitution. In this way, Collective Labor Conventions are subject to the Law of the Constitution; thus, conventional clauses must conform to constitutional norms and principles of equality, prohibition of discrimination, legality, reasonableness, and proportionality, especially when public funds are involved, subject to the principle of budgetary legality.

Now, as the consultative parties themselves indicate, the specific issue raised in this consultation was already analyzed in the aforementioned ruling no. 2018-019511, in which the legislative consultation regarding the bill for the "Law for the Strengthening of Public Finances" (Ley de Fortalecimiento de las Finanzas Publicas) (legislative file no. 20,580) was addressed. As indicated in that ruling, on that occasion it was alleged:

"h) Regarding the alleged unconstitutionality of Article 55, of Chapter VII, 'General Provisions' (Disposiciones generales), of Title III, 'Amendment to the Public Administration Salary Law' (Modificación a la ley de salarios de la administración pública), and of Transitory Provision L, of file 20580, for violation of numerals 62 of the Political Constitution, and Convention No. 98, concerning the Right to Organise and Collective Bargaining, of the International Labour Organization (ILO).

1.- Allegations of the consultative parties: The consultative parties question the constitutionality of section 55, of Chapter VII, 'General Provisions' (Disposiciones generales), of Title III, 'Amendment to the Public Administration Salary Law' (Modificación a la ley de salarios de la administración pública), of Legislative Bill 20,580, which establishes:

'Article 55- Legislative Reserve in the creation of salary incentives and compensations (Reserva de Ley en la creación de incentivos y compensaciones salariales) The creation of incentives or compensations, or salary bonuses (pluses salariales) may only be carried out through law.' They consider that, in this way, despite the fact that the right to collective bargaining is contemplated in numeral 62 of the Political Constitution, it is intended to suppress that right in salary matters, in contrast to the provisions of subparagraphs h), j), and m), of section 690, of the Labor Code.

They add that the character of professional law granted by the legal system to collective conventions consists in that what is agreed upon in them must be adapted to all existing individual or collective contracts, as well as those subsequently entered into in the enterprises, industries, or regions they affect, meaning that the labor conditions agreed upon therein may not be worsened in the future.

Likewise, they cite numeral 4, of the Convention concerning the Right to Organise and Collective Bargaining, of 1949, No. 98, of the International Labour Organization (ILO), where the following is imposed on the States Parties:

'Article 4 Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.' Thus, the right to collective bargaining is ratified in the ILO Declaration on Fundamental Principles and Rights at Work, of 1998, which declares that all Members, even if they have not ratified the conventions in question, have an obligation, arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those conventions, namely: a) freedom of association and the effective recognition of the right to collective bargaining, and b) the effective recognition of the right to collective bargaining.

The consultative parties also question the constitutionality of Transitory Provision L, of Bill No. 20580, which regulates:

'TRANSITORIO L - As of the entry into force of this law, the heads of public entities are under the obligation to denounce collective conventions upon their expiration. In the event that it is decided to renegotiate the convention, it must be adapted in all its aspects to the provisions established in this Law and other regulations issued by the Executive Branch.' They consider that such an obligation limits the right to renegotiation or to automatic extension under the conditions stipulated in subparagraph e), of section 58, of the Labor Code.

In which case, after conducting an analysis of the right to collective bargaining, of collective conventions in the public sector, and of the principle of freedom of association, in light of its own jurisprudence and the norms that integrate the Law of the Constitution, it was concluded:

'(…) that the right to collective bargaining stems from the possibility of free and voluntary negotiation; and, in addition, from a minimum or essential content, which is the possibility of negotiating better socio-economic conditions for workers.

2.4.- On the limits and control of the content of collective conventions: It is clear that said negotiation capacity cannot be unrestricted, as this Chamber has stated on several occasions, but that restriction cannot imply an emptying, by way of law, of the minimum content of that right. The legal restrictions imposed on the right to collective bargaining must be in conformity with the Political Constitution and the International Instruments relating to the matter.

In this regard, the decision rendered by this Chamber in Judgment No. 2000-004453 at 14:56 hours on May 24, 2000, must be understood, in which it was stated:

'Sixth: Notwithstanding what has already been expressed, it is important to clarify that even in the public sector where the application of the institution of collective conventions is constitutionally possible, that is to say, in the so-called State enterprises or economic services and in those personnel nuclei of public institutions and entities in which the nature of the services provided do not participate in public management, in the terms of subparagraph 2 of article 112 of the General Law of Public Administration, the Chamber repeats and confirms its jurisprudence in the sense that the authorization to negotiate cannot be unrestricted, that is, comparable to the situation in which any private employer would find themselves, since by that means, laws, regulations, or governmental directives in force cannot be dispensed or excepted, nor can laws that grant or regulate the powers of public entities, attributed by reason of the normative hierarchy or the special conditions of the Public Administration in relation to its workers, be modified or repealed, a conclusion inferred from article 112 subparagraph 3) of the General Law of Public Administration and from considerando XI of judgment No. 1696-92 of this Chamber.' (See in the same sense judgments numbers 2000-006480, 2000-006481, 2000-006482, 2000-006483, 2000-006435, 2000-007730, 2005-006858, 2006-007261, and 2006-17436).

(…)

Thus, with respect to public sector conventions, the Chamber has indicated that laws, regulations, or governmental directives in force must be respected, as well as the legal powers of public entities, attributed based on the normative hierarchy or the special conditions of the Public Administration in relation to its workers. Furthermore, the limitations required to harmonize public spending with budgetary availability must be respected for the sake of the citizens' right to sound management of public funds, derived from numeral 11 of the Constitution (see Judgment No. 2017-013443 at 9:15 hours on August 25, 2017).

It must also be understood that the power to negotiate is subject to legality and constitutionality controls, in consideration of the principles of reasonableness, proportionality, and good use and management of public funds. Among others, in Judgment No. 2006-17441 at 19:39 hours on November 29, 2006 (previously cited), this Court ruled on the matter, in the following terms:

(…)

But, it must be insisted, the fact that these controls exist cannot lead to emptying the minimum content of the right to collective bargaining, nor to obligating its denunciation. And, therefore, it is contrary to the very essence of collective bargaining that, even in those sectors where this is constitutionally and legally possible, only through a formal law, emanating from the Legislative Branch, can incentives or compensations, or salary bonuses (pluses salariales) be created, since this, as stated, would empty the content of that right and, therefore, would violate the principle of freedom of association, which has been developed by this Chamber through its jurisprudence. …

(…)

Hence, as an essential part of freedom of association -and of its counterpart, trade union action- is the right of workers to collective bargaining, as an instrument for the improvement of their socio-economic conditions, through incentives, compensations, or salary bonuses. This is framed within the four rights that freedom of association comprises: a) freedom to establish trade union organizations; b) freedom to join a trade union organization; c) freedom to cease belonging to a trade union organization; and d) freedom of the member to participate democratically within the union; to which must be added the right of every trade union organization to develop freely with respect to the State and in relation to society, considered as a whole, always within the respective legal framework.

The foregoing implies, indeed, as stated, that all those salary components agreed upon through that valid collective bargaining must adjust to the principle of constitutional proportionality and reasonableness, as well as to the rest of the legal system. But it is contrary to the Law of the Constitution, specifically to freedom of association and the right to collective bargaining, for the legislator to prevent those aspects from being agreed upon within a collective bargaining process and to have them only reserved for formal law.

Finally, and in relation to the issue of the mandatory denunciation of collective conventions provided for in Transitory Provision L, of the consulted bill, the International Labour Organization (ILO), in Report No. 344, of March 2007, Case No. 2460, paragraph 990, expressed:

'990. As regards the court ruling in the Atkins case, according to which the legal prohibition of collective bargaining is acceptable under the United States Constitution because it contains no provision — including the right of free association enshrined in the First Amendment — obliging a party to enter into a contract with another, the Committee, while recalling the importance it attaches to the obligation to bargain in good faith for the maintenance of the harmonious development of industrial relations, wishes to emphasize that voluntary negotiation of collective agreements and, therefore, the autonomy of the social partners in bargaining, constitutes a fundamental aspect of the principles of freedom of association. Collective bargaining, to be effective, must be voluntary in nature and does not imply recourse to measures of coercion which would alter the voluntary nature of such bargaining. No provision of Article 4 of Convention No. 98 obliges a government to impose coercitively a system of collective bargaining on a given organization, governmental intervention which would clearly alter the nature of such bargaining [see Digest, op. cit., paragraphs 925-927 and 934]. Thus, while a legal provision obliging a party to enter into a contract with another would be contrary to the principle of free and voluntary bargaining, provisions such as paragraphs 95-98 of the NCGS, prohibiting public authorities and public employees, including those not engaged in the administration of the state, from entering into an agreement even if they want to do so, is equally contrary to this principle.' With which it is clear that, as the ILO has defined, a legal provision that would oblige a party to conclude a collective agreement with another would be contrary to the principle of free and voluntary bargaining.

In summary, a provision that obliges the denunciation of collective conventions and, on the other hand, that prevents, through these, achieving improvements in conditions, without any type of modulation, would be contrary to the Law of the Constitution; so that the legislator could not, in advance, restrict the possibility of concluding collective conventions between employers and workers, in the public sector where the application of this institution is constitutionally possible, without violating freedom of association.

Consequently, it must be understood that Article 55, of Law No. 2166 (Public Administration Salary Law), as added by the consulted bill, is not unconstitutional, provided it is understood that it does not apply to Public Sector employees who may validly conclude collective conventions in accordance with the Constitution and the law; without prejudice to the legality and constitutionality controls over the result of the negotiation, in consideration of the principles of reasonableness, proportionality, and the good use and management of public funds. Likewise, in relation to Transitory Provision L, of the consulted bill, it must be interpreted that each head of the public entities has the power to denounce or not the respective collective convention, in accordance with the legal system in force.' 4) Conclusion In light of the jurisprudence of the Chamber and, very specifically, of the aforementioned ruling no. 2018-019511, it can be concluded that the consulted norms:

a.- Article 43 does not contain defects of constitutionality, as long as the new obligations or rights obtained through the scope of collective bargaining adjust to the principles of reasonableness, proportionality, and budgetary legality, under the protection of constitutional jurisprudence, and provided that these are collective conventions in which Public Sector employees participate who may validly conclude collective conventions in accordance with the Constitution and the law.

b.- Transitory Provision XV referring to the denunciation of collective conventions is not unconstitutional provided it is interpreted in the same sense as indicated in ruling number 2018-019511 at 21:45 hours on November 23, 2018, that is, in application of the Political Constitution (articles 62 and 74), the International Conventions of the International Labour Organization, and the jurisprudence of this Court, it must be interpreted that each head of the public entities has the power to denounce or not the respective collective convention, in accordance with the legal system in force.

• 5)Dissenting Opinions a) Dissenting opinion of Magistrate Rueda Leal regarding section 43 and Transitory Provision XV of the bill.

Concerning numeral 43 and starting from the premise that it concerns the public sector that may validly carry out collective bargaining, I consider that there are no frictions with constitutionality, given that it only establishes partial limits to collective bargaining, which are intimately linked to the principle of budgetary equilibrium. In my view, the scope of application of collective bargaining includes a variety of topics that go beyond the limits of that article, the negotiation of which would remain unchanged with the eventual entry into force of this bill, for example, those related to the configuration of work, disciplinary regime, trade union organizations, among others. The fact that a law comes to regulate the matters subject to collective bargaining is not only in accordance with the Constitution, but prescribed by it, as I explained in my dissenting opinion set forth in ruling no. 2018-019511:

'After analyzing the claims, I consider that the starting point for the constitutionality analysis must be, precisely, our Political Constitution. Regarding collective bargaining, its section 62 states:

"ARTICLE 62.- Collective labor conventions that, in accordance with the law, are concluded between employers or employers' unions and legally organized workers' unions shall have the force of law." Taking as a basis the expressed claims and the transcribed norms, I note that the task of the constitutional judge is to examine whether the three transcribed texts are reconcilable. Only if a constitutional reading of section 55 is unfeasible would its declaration of unconstitutionality be appropriate.

The first thing I observe is that Article 4 of the Convention imposes the obligation to adopt "…measures appropriate to national conditions, where necessary, to encourage and promote…" (emphasis added) collective bargaining.

Two points stand out from its literal wording. On the one hand, these are measures to encourage and promote collective bargaining. That is, the regulation does not delegate the definition of all elements of the labor contract to collective bargaining; nor is it observed that it limits the configurative power of the legislator in the matter, already guaranteed by constitutional article 62, as will be seen below.

Even more important is the second point. The mentioned section 4 refers to "national conditions," in order to determine the measures to be taken by the State. A basic element of such requirements is the domestic legal system and, unavoidably, the Political Constitution. This referral obliges a review of the text of numeral 62 of our Magna Carta, transcribed supra. Among its regulations, the force of law it grants to collective conventions and the definition of the parties to collective bargaining is noted. For the purposes of the sub examine, it must be underlined that our Constitution expressly rests the regulation of collective bargaining on a legal norm, since the force of law of the collective convention is conditioned upon it being concluded "…in accordance with the law…". This precept not only stipulates the obligation to abide by the law when negotiating a collective convention, but also establishes the duty to legislate on the matter, in order to establish a legal framework that regulates collective bargaining.' Regarding Transitory Provision XV, given its wording, the considerations I expressed in the aforementioned ruling no. 2018-019511, when analyzing an identical transitory provision, are applicable:

'The consultative parties question the constitutionality of transitory provision L of bill 20,580, which indicates:

"TRANSITORIO L - As of the entry into force of this law, the heads of public entities are under the obligation to denounce collective conventions upon their expiration.

In the event that it is decided to renegotiate the convention, it must be adapted in all its aspects to the provisions established in this Law and other regulations issued by the Executive Branch." They consider that such an obligation limits the right to renegotiation or to automatic extension under the conditions stipulated in subparagraph e) of article 58 of the Labor Code.

After analyzing the filing brief, I observe that the reasoning provided by the party refers solely to the apparent opposition of the questioned provision with the cited numeral of the Labor Code. Such a normative conflict is a question of mere legality, outside the powers of this Chamber.

On the other hand, I rule out that the simple mention of an alleged violation of constitutional article 62 is sufficient to satisfy the requirements of a legislative consultation. As required by numeral 99 of the Law of Constitutional Jurisdiction, the optional consultation must be made in a "reasoned memorial," a situation that differentiates it from the mandatory consultation. Thus, the petitioners have the duty to clearly state the reasons for the alleged constitutional violation, as the Chamber has indicated on other occasions:

"In this regard, the Constitutional Chamber, when developing the scope of that norm, through judgment No. 5544-95 at 15:00 hrs. on October 11, 1995, expressed:

'Regarding the consultation refers to article 28 of the Bill for not being formulated reasonably, 'with expression of the questioned aspects of the bill, as well as the reasons for which doubts or objections about its constitutionality were held' (art. 99 of the Law of Constitutional Jurisdiction), since the consultative parties simply point out the consulted topic, dispensing with making any type of constitutional argument, it is not appropriate to address the consultation. Thus, constitutional jurisprudence has repeatedly resolved and for that reason, insofar as this aspect is concerned, there is no ground to address the consultation formulated (See Advisory Opinion No. 5399-95, related to Consultation No. 4773-95 and subsequent interlocutory resolution, No. 501-I-95).'" Regardless of the foregoing, a prima facie analysis of the norm –a limit imposed given the absence of reasoning in the filing brief- does not allow its unconstitutionality to be visualized. I highlight that it is a transitory regulation of limited application to collective conventions where the State appears as the employer party. I emphasize this fact since I consider that the obligation imposed by said provision has the purpose of adjusting collective conventions to the legal framework that would enter into force with the challenged bill. Hence, the possible renegotiation of the convention entails that it be adapted "…in all its aspects to the provisions established in this Law and other regulations issued by the Executive Branch." Likewise, I clarify and underline that such article does not signify the suspension, repeal, or annulment of collective conventions or their provisions, nor does it impose a restriction on their effects that is different from the temporal validity that had been previously agreed upon by the parties.

Now, it must be remembered that the Political Constitution establishes a basic requirement for collective conventions, which is that they be concluded "…in accordance with the law…". Thus, it is clear that the content and form of a collective convention are subject to the law, by constitutional mandate. Ergo, it is not unconstitutional for a norm –like the challenged one- to seek that collective conventions respect the law. Note also that it does not repeal or empty the content of article subparagraph e) of article 58 of the Labor Code, leaving intact the possibility of renegotiating the collective convention.' b) Dissenting opinion of Magistrate Garro Vargas regarding the constitutionality of article 43 The undersigned magistrate considers that art. 43 of the bill submitted for consultation is in itself constitutional, without the need to make any interpretation in the terms proposed by the majority of this Court.

Indeed, the majority affirms that said numeral is not unconstitutional "as long as the new obligations or rights obtained through collective bargaining adjust to the principles of reasonableness, proportionality, and budgetary legality." However, the very text of the consulted norm expressly so provides in its second paragraph, by stating that "The conditions agreed upon in collective bargaining instruments must respect the constitutional principles of reasonableness, proportionality, legality, equality, and budgetary legality (legalidad presupuestaria)." Therefore, from the simple comparison of the norm, it is evident that it already contemplates, in itself, without the need for any interpretation, what was considered by the majority of the Chamber.

Additionally, I consider that the norm in question must be examined in light of the objectives of the general regulatory framework that the legislator is proposing for the entire public sector. One of the main purposes sought by the Legislative Branch is to introduce a series of provisions on the global salary (salario global) as a remuneration system that aspires to equitable and transparent salary recognition, avoiding certain mechanisms that distort the national budget. In this regard, one can consult the statement of motives of the bill, which, in response to the recommendations and general principles of the Organization for Economic Cooperation and Development (OECD) and the Comptroller General of the Republic (CGR), emphasizes the following ideas:

"The public governance evaluation carried out by the OECD in 2015 recommended that the country gradually migrate towards a single salary scheme for new officials, as well as incorporate non-monetary incentives, with the aim of seeking other motivation mechanisms, as shown in the following excerpt from the Costa Rica Public Governance Study:

'Evolve towards a more transparent and sustainable compensation system based on performance including non-monetary incentives. The current compensation system can be simplified by initiating a gradual transition towards a "single salary" system, that is an amalgamation of the base salary and bonuses and remunerations.

Any additional payment above the base salary must be universal and made in the most transparent and simple manner possible’ (…).

Recommendations of the CGR regarding remuneration:

On different occasions, the Comptroller General of the Republic (Contraloría General de la República, CGR) has drawn attention to the need to review the remuneration scheme, mainly those salary incentives that generate disparities between the same types of positions, as is the case with seniority bonuses (anualidades). In the study Retos para la modernización del esquema remunerativo en los ministerios de Gobierno DFOE-SAF-OS-00001-2018, the CGR revealed that there is a set of framework principles that should govern remuneration management in the public sector, such as paying an equal salary under equal conditions and paying a different salary if differences exist, as established in Article 57 of the Political Constitution (…).

Additionally, the recommendations of the Comptroller General of the Republic and the Organisation for Economic Co-operation and Development (Organización para el Desarrollo y la Cooperación Económica) are adopted, which are in line with reducing both vertical and horizontal salary distortions, through the introduction of the global salary (salario global) for new public servants, as well as those who choose to transfer, and for institutional heads.” (The highlighting does not correspond to the original).

It is thus demonstrated that the bill aims to reduce salary inequities in public employment through the introduction of the “global salary” (salario global) concept and, in parallel, to avoid certain salary incentives that, at their core, are considered distorting mechanisms that, ultimately, impact the national budget.

In my opinion, the payment system intended to be implemented, called “global salary” (salario global), is neither implicitly nor explicitly contemplated in the Political Constitution. That is, it is not required, but neither is it prohibited by it. If the law opts for this payment mechanism, under the premises and purposes already examined, it may perfectly constitute a limit on collective bargaining. In other words, if the legislator understands that there should be a regulatory framework establishing guiding postulates to direct compensation management, it would not be appropriate for this entire regulatory and planning effort in the methodology of public servant remuneration to be nullified through collective bargaining. Therefore, it must be considered legitimate that, in collective bargaining, the possibility of “generating new obligations or rights” related to salaries or remuneration, the creation of incentives, compensation or salary bonuses, additional expenditures of resources affecting the national budget, or the creation of new positions be restricted.

It must be taken into account that Art. 62 of the Political Constitution expressly establishes:

“Collective labor agreements that, in accordance with the law, are concluded between employers or employer unions and legally organized worker unions shall have the force of law.” From the constitutional provision itself, it follows that although collective agreements have the force of law between the parties, they must be negotiated and concluded “in accordance with the law.” From the preceding premise, it follows that it is logical, then, that the negotiation and signing of collective agreements must be carried out in correspondence with national legislation. That is, even though they have the rank of law, they are not above legal postulates. Therefore, to be understood as legitimate, these negotiations must be signed under the protection of the applicable legal framework and in subjection to it.

In this vein, if, unanimously, the Chamber finds that there is no unconstitutionality in the fact that the compensation of public employees is intended to migrate toward the concept of “global salary” (salario global), with the express purpose of the legislator to avoid distortions in public spending, it is consistent and logical that the indicated limits on collective bargaining be introduced, precisely so that the new containment rules in the payment of public sector salaries are applied.

Otherwise, through collective agreements – and specifically through provisions that directly affect the payment of salaries – one of the purposes of the bill could be frustrated. That is why it is logical to introduce these measures that respond to a core objective of the bill, namely, transitioning toward a single-salary scheme that avoids unreasonable and disproportionate disparities in the payment of remuneration, to the detriment of public finances.

In light of the considerations outlined, I consider that Art. 43 of the bill is not unconstitutional, but rather introduces reasonable and limited restrictions, which are congruent with and necessary to fulfill the legislator’s intended purpose, regarding remuneration. And, as I have said, the subjection of collective agreements to the law is part of the constitutional design.

• c)Separate reasons of Judge Picado Brenes, regarding Article 43 of the bill concerning collective agreements (point 55 of the Por Tanto) The majority of the Chamber has considered that Article 43 of the Public Employment Framework Bill does not contain constitutional defects as long as the new obligations or rights obtained through the scope of collective bargaining are adjusted to the principles of reasonableness, proportionality, and fiscal legality (legalidad presupuestaria), to constitutional jurisprudence, and to the fact that the Public Sector employees participating may validly enter into collective agreements in accordance with the Constitution and the law.

It is necessary to further clarify the reading given to the provision, as it could harm the minimum content of the fundamental right to collective bargaining, since, as can be deduced from a reading of Article 43, it is prohibited to “generate new obligations or rights, or vary working conditions” referring to “salaries or remuneration and vary or modify the salary scale or components of the global salary column (columna salarial global)”, the “creation of incentives, compensations or salary bonuses”, “prohibitory rules contained in this law” (e.g., vacation time), and “the creation of new positions”. It must be kept in mind that the freedom of negotiation between the parties – which is a characteristic and distinctive feature of the right to collective labor bargaining – as an instrument for the improvement of the socio-economic conditions of workers, entails the possibility for the Administration to grant certain salary incentives, compensations, or benefits to its workers, since this can constitute a suitable measure to compensate for a special requirement of the job position, implying certain professional qualifications or skills for those who perform it, or to compensate for a particular risk characterizing the performance of such functions, whether a material risk (for example, physically dangerous tasks) or one of a legal nature, all of this, provided it is supported by objective reasons leading to a better provision of the public service.

In the specific case of Costa Rica, the benefits and rights contained in the Labor Code (Código de Trabajo) constitute a minimum that must be granted to workers but, from that point onwards, nothing prevents employers – even those from the public sector – from conducting negotiations that allow surpassing those minimums in response to special situations such as those just described. On this point, this Constitutional Tribunal has emphasized that it is contrary to the Law of the Constitution, specifically to trade union freedom (libertad sindical) and the right to collective bargaining, for the legislator to prevent such matters from being agreed upon within collective bargaining and for them to be reserved only to formal law, with ruling n°2018-019511 of 9:45 p.m. on November 23, 2018, being cited as an example, in which it was indicated that it was unconstitutional, as it was “contrary to the very essence of collective bargaining that, even in those sectors where this is constitutionally and legally possible, incentives or compensations, or salary bonuses could only be created through a formal law, emanating from the Legislative Branch, because this, according to what has been said, would empty the content of that right and, therefore, would violate the principle of trade union freedom.” Thus, this Chamber has recognized in its jurisprudence that such aspects – incentives, bonuses, etc. – constitute, within the respective limits of reasonableness, proportionality, and due safeguarding of public funds, elements that can effectively be included in a collective negotiation. Collective agreements enjoy constitutional recognition in Article 62 of the Political Constitution, and they also constitute instruments that seek to realize and resolve the need of workers to group together to compensate for the real inferiority they face when acting in isolation, vis-à-vis the employer and in the face of generic regulation or even omission of their rights in the Labor Code.

At this point, it is noteworthy that the Constitutional Chamber itself, in ruling n°2020-12800 of 11:01 a.m. on July 8, 2020, highlighted the three aspects that derive from Article 62 of the Constitution, namely:

• a)the recognition of collective bargaining as a constitutional right; b) that negotiations thus concluded have the character of force of law; and c) that such agreements must be agreed upon as provided by law.

It must also be said that these elements have also been ratified by the Inter-American Court of Human Rights, through Advisory Opinion OC-27/21 of May 5, 2021, when it indicated the following:

“94. In consideration of the foregoing, and by way of corollary, the Court considers it pertinent to note that the right to collective bargaining, as an essential part of trade union freedom (libertad sindical), is composed of various elements, which include, as a minimum: a) the principle of non-discrimination of the male or female worker in the exercise of trade union activity, since the guarantee of equality is a prerequisite for negotiation between employers and workers; b) the non-direct or indirect interference of employers in workers’ unions in the stages of constitution, operation, and administration, as this can produce imbalances in the negotiation that undermine the objective of workers to improve their living and working conditions through collective agreements and other lawful means; and c) the progressive encouragement of voluntary negotiation processes between employers and workers, which make it possible to improve, through collective contracts, the conditions of employment.” Given the relevance that this subject has had in Costa Rica, it is of interest to note that, regarding the content of collective labor bargaining, the Chamber has referred to so-called normative clauses (which regulate the interaction arising from the provision of the worker’s service and the payment of salaries or remuneration by the employer), configuration clauses (which specify the personal, temporal, and territorial scope of the agreement and among which are included the employer’s disciplinary power and the exercise of its right to organization and direction), and obligatory clauses (which create rights and obligations between the parties and that have to do, primarily, with social peace and the duty to execute the agreement, such as the creation of labor relations boards, installation of training centers), and has stated that:

“Within the specialty of the matter, the parties can only validly agree on what they can legally fulfill, due to the contractual nature of the collective agreement and, as a thesis of principle, it is accepted that its scope is the working or labor conditions, without this purpose being extended to regulate non-labor issues. In other words, the collective agreement has as its object to regulate, on the one hand, the conditions to which individual labor relations must be subject, or what is the same, the so-called normative clauses, which regulate the interaction arising from the provision of the worker’s service and the payment of salaries or remuneration by the employer, as affirmed by the majority of labor law doctrine, and this leads to the conclusion that anything that could be the subject matter of an individual employment contract can be the subject matter of a collective agreement; also, within this content, the so-called configuration clauses can be the subject of collective bargaining, which are those that specify the personal, temporal, and territorial scope of the agreement and among which are included those that limit or set procedures for the exercise of the employer’s rights, especially regarding disciplinary power and the exercise of its right to organization and direction. In the second order, the obligatory clauses, which are those that create rights and obligations between the parties and that have to do, primarily, with social peace and the duty to execute the agreement, such as the creation of labor relations boards, the institution of employer benefits destined for social works within the labor community, installation of training centers, among others. By way of summary, we will say that collective agreements, by constitutional provision, have as their immediate purpose the review, inter partes and with the character of law, of the minimum content of the legal benefits governing labor relations, all of this with the object of improving or surpassing that essential minimum.” (see ruling n°2007-18485 of 6:02 p.m. on December 19, 2007).

On this same subject, in ruling n°2020-12800 of 11:01 a.m. on July 8, 2020, the Chamber deemed that a right greater than that recognized by law can be acknowledged:

“Similarly, it is not admissible to argue that, through collective bargaining, greater rights can be recognized for the parties, which is certainly the case, but it must be noted that these are greater concessions regarding validly and legitimately recognized rights, which is not the case of limiting the free negotiation of any of the involved parties. Put another way, a collective agreement can recognize a greater right than that recognized by law, but it cannot limit it. And, in any event, that greater recognition, in accordance with what was said in the preceding considerando, must likewise be subject to the Law of the Constitution, to thus achieve the legal harmony upon which an order depends.” (the highlighting is not from the original).

For its part, in ruling n°2008-003935 of 2:48 p.m. on March 12, 2008, the Chamber stated that Public Administration entities may grant certain incentives or benefits to their workers, which will be constitutionally valid only when supported by objective reasons that also translate into a better provision of the public service:

“In other words, this Chamber has not questioned that any Public Administration entity may recognize certain incentives or benefits for its workers, since this can constitute a suitable measure to compensate for a special requirement of the job position, implying certain professional qualifications or skills for those who perform it, or to compensate for a particular risk characterizing the performance of such functions, whether a material risk (for example, physically dangerous tasks) or one of a legal nature (for example, work likely to generate civil liability).” Notwithstanding the foregoing, it is also fair to mention that although the right to collective bargaining is recognized in the public sector, through which rights or benefits can be granted or recognized with greater breadth than what is legally predefined, there are also limits to such negotiations, insofar as they must be reconciled with the exercise of the legal competencies of public entities, and respect the limitations necessary to harmonize public spending with fiscal availability and the sound management of public funds and, in that sense, the Chamber has referred to the limits of collective bargaining being the constitutional principles of reasonableness, proportionality, economy, and efficiency, and the law:

“It has been indicated, moreover, that without any detriment to collective bargaining being a right recognized constitutionally and by international instruments of the International Labour Organization, the fact is that its content is also subordinated to constitutional norms and principles, since the decisions taken there, in many cases, entail consequences for public finances. Within this context, its adoption and validity are not solely subject to the mere verification of the adoption procedure, but also to a substantive analysis, insofar as its content must conform to constitutional norms and principles because public funds are involved. Thus, the obligations agreed upon by public institutions for their employees, as occurs in this type of negotiation, can be subject to the analysis of reasonableness, economy, and efficiency, with the object of preventing the rights of the workers themselves from being disproportionately limited or harmed through a collective agreement, or to prevent an abusive use of public funds” (see ruling N°2021-009580 of 9:15 a.m. on May 12, 2021).

This account of the Chamber’s jurisprudence on collective agreements illustrates topics upon which it has ruled, thereby clarifying the extent to which collective bargaining is possible and its terms; also making clear that collective bargaining must be analyzed in light of reasonableness, proportionality, economy, and efficiency.

Having clarified the foregoing and after carrying out a careful reading of Article 43 of the bill under consultation, I can conclude that collective bargaining is not actually being prohibited, even in monetary aspects, despite the phrasing of the first paragraph. It must be observed in detail that from the second paragraph of Article 43 it follows that collective bargaining is possible but adjusted to the constitutional principles of reasonableness, proportionality, legality, equality, and fiscal legality (legalidad presupuestaria); parameters all embodied in the jurisprudential precedents cited above. On the other hand, the third paragraph of Article 43 indicates that negotiation can involve monetary aspects, since it expressly indicates the possibility that the negotiation may have an impact on the principle of fiscal legality and require legislative or regulatory approval, referring to the need to include what has been agreed upon in the budget law or in the respective regulations, as well as approval by the Comptroller General of the Republic (Contraloría General de la República), when it affects the budgets of the institutions. I ask myself: How could an institution’s budget be affected if the negotiation does not deal with some economic aspect related to salary, incentives, bonuses, etc.? Although the wording of the provision is confusing, I must emphasize that what it seeks is to make clear the conditions that must exist for negotiation on economic matters to be possible. By giving this reading to Article 43, I consider that it is not unconstitutional. However, I must emphasize that it is a confusing provision that could present problems in its application.

Discriminatory situations may arise, such as the one that could be generated between public servants who will be subject to the new public employment system – such as, for example, newly hired ones – versus those others who could continue receiving some benefits derived from collective agreements that remain in force. This situation implies an evident contradiction because, if the bill’s objective is to unify the working conditions of all workers included in this new public employment system, provisions like the one under study – included in the same bill – would be creating differences and possible discrimination among public servants, which would indisputably undermine the principle of equality and non-discrimination protected in Article 33 of the Constitution.

In view of what has been said, should the wording of the provision remain in the same terms, its content must be interpreted in light of what is provided in Article 62 of the Constitution and the jurisprudence established by this Tribunal, in such a way that collective bargaining would not be prohibited, but rather, what would not be permitted is for it to be carried out under criteria that do not respect proportionality, reasonableness, and the content of the Constitution and the Law.

• d)Separate reasons of Judge Garro Vargas regarding the constitutionality of Transitory XV I diverge from what was resolved by the majority of the Chamber in response to the legislative consultation in the sense that Transitory XV of the bill is constitutional per se. The provision under consultation states the following:

“From the entry into force of this law, the heads of public entities are obligated to denounce (denunciar) the collective agreements upon their expiration.” The majority of the Chamber proposes to respond to the consultation in the sense that the provision is not unconstitutional “as long as it is interpreted in the same sense as indicated in vote number 2018-019511 of 9:45 p.m. on November 23, 2018, that is, in application of the Political Constitution (Articles 62 and 74), the International Conventions of the International Labour Organization, and the jurisprudence of this Tribunal, it must be interpreted that each head of the public entities has the power to denounce or not the respective collective agreement, in accordance with the current legal system.” That is, initially, the majority of the Chamber is distorting the content of the provision under consultation, because it affirms that the denunciation of the collective agreement is optional; whereas the purpose of the bill is that, upon the “expiration” of the corresponding collective agreement, the head “is obligated to denounce” (está en la obligación de denunciar). The foregoing implies that the collective agreement validly negotiated by the parties must maintain its originally agreed term of validity, but, once the term has concluded, the heads are obligated to file the corresponding denunciation. This is so that a new agreement can subsequently be agreed upon, but under the protection of the legislation being approved and, therefore, taking into account the provisions that seek to restrict the elements causing distortions in the payment of salaries in the public sector (see considerations related to the constitutionality of Art. 43 of the bill).

It is necessary to clarify that the situation presented in the bill under review differs from what was resolved by this Tribunal in ruling No. 2018-019511 — in which I participated —, because in that decision the constitutionality of a provision was examined that, on the contrary, limited or restricted the possibility of the parties to denounce the negotiated collective agreement. That is, the provision that was declared unconstitutional sought to impose the obligation on the parties not to denounce the collective agreement. This implied, therefore, a kind of eternalization of the negotiated terms. For this reason, what I affirm on this occasion does not contradict what was resolved on that opportunity, in which, in light of what is provided in Arts. 62 and 74 of the Political Constitution, it was resolved that the provision was unconstitutional by “unduly contemplat[ing] an obligation to abstain from exercising a right that is recognized by the public order norm governing the collective bargaining system.” Likewise, in said decision, what was resolved in advisory opinion No. 2018-19511 is cited by way of reference, along with some considerations by the International Labour Organization (ILO) indicating that “a legal provision that obligated a party to conclude a contract with another would be contrary to the principle of free and voluntary negotiation.” In this regard, I must clarify that I did not participate in the referred advisory opinion, but, furthermore, I consider that the consideration made does not apply to the case now submitted for our review. Indeed, the ILO’s appreciations refer to a measure that, in an anticipated manner, puts an end to collective bargaining. Whereas in the specific case, a different scenario is involved. The aim is to respect the original term of the negotiation, without its denunciation being demanded in an anticipated manner. On the contrary, the agreed term is respected, and upon “expiration,” denunciation is required. From my point of view, such a scenario does not coincide with the case examined by the ILO, because the early termination of the agreement is not being mandated and it does not infringe upon the terms agreed therein. It only indicates that, once the validity period has concluded, the corresponding adjustments should be carried out “in accordance” with what is provided in the law (as indicated by Art. 62 of the Political Constitution), and one of these, specifically, would be the new public employment law that is being attempted to be approved.

In short, it is a transitory provision that recognizes the legal value of collective agreements already agreed upon in accordance with current legislation, but proposes a legal solution to adjust successive agreements to the new legal provisions, which seek to prevent the salary distortions that impact public budgets.

Consequently, I diverge from the considerations made by the majority of this Chamber and, based on the reasons explained herein, respond to the consultation in the sense that the transitory provision under consultation does not harm the Law of the Constitution.

• e)Separate reasons of Judge Picado Brenes, regarding Transitory XV of the bill concerning the denunciation of collective agreements (point 56 of the Por Tanto) I have concurred with the unanimous vote of the Chamber that has considered that Transitory XV of the Public Employment Framework Bill is not unconstitutional as long as it is interpreted in application of the Political Constitution (Articles 62 and 74), the International Conventions of the International Labour Organization, and the jurisprudence of this Tribunal, such that it must be understood that each head of the public entities has the power to denounce or not the respective collective agreement, in accordance with the current legal system.

In relation to this issue of the denunciation of collective agreements, it is worth remembering that the Constitutional Chamber, in ruling No. 2018-019511 of 9:45 p.m. on November 23, 2018, indicated that one cannot be forced to denounce a collective agreement because this is contrary to the very essence of collective bargaining, and the Chamber stated that:

“(...)

Finally, and in relation to the issue of the mandatory denunciation of collective agreements provided for in Transitory L of the consulted bill, the International Labour Organization (ILO), in Report No. 344, March 2007, Case No. 2460, paragraph 990, expressed:

"990. As regards the court's ruling in the Atkins case, according to which the legal prohibition of collective bargaining is acceptable under the United States Constitution because it contains no provision, including the right of free association enshrined in the First Amendment, that obliges a party to conclude a contract with another, the Committee, while recalling the importance it attaches to the obligation to bargain in good faith for the maintenance of a harmonious development of professional relations, wishes to point out that the voluntary negotiation of collective agreements and, therefore, the autonomy of the social partners in bargaining, constitutes a fundamental aspect of the principles of freedom of association. Collective bargaining, to be effective, must be voluntary in character and does not imply recourse to measures of coercion which would alter the voluntary nature of such bargaining. No provision of Article 4 of Convention No. 98 obliges a government to impose coercitively a system of collective bargaining on a determined organization, governmental intervention that would clearly alter the character of such negotiations [see Digest, op. cit., paragraphs 925-927 and 934]." Therefore, while a legal provision that forced one party to conclude a contract with another would be contrary to the principle of free and voluntary bargaining, provisions such as paragraphs 95-98 of the NCGS, which prohibit public authorities and public employees, including those not involved in the administration of the state, from concluding an agreement, even if they wish to do so, is equally contrary to said principle.” With which it is clear that, as defined by the ILO, a legal provision that forced one party to conclude a collective bargaining agreement (convenio colectivo) with another would be contrary to the principle of free and voluntary bargaining.

In summary, a provision that compels the denunciation of collective bargaining agreements and, on the other hand, that prevents, through them, achieving improved conditions, without any type of modulation, would be contrary to the Law of the Constitution; so that the legislator could not, in advance, restrict the possibility of entering into collective bargaining agreements between employers and workers, in the public sector where the application of this institution is constitutionally possible, without violating union freedom.” Likewise, in judgment No. 2020-12800 of 11:01 a.m. on July 8, 2020, it was indicated, in what is relevant:

“Under this understanding, a norm in that sense would not only be contrary to the principle of free bargaining, but would clearly also be antagonistic to the principles of reasonableness and proportionality.

It is in this sense that, in the same judgment 2018-19511, the Chamber stated that:

“[E]ach head of public entities has the power to denounce or not the respective collective bargaining agreement, in accordance with the legal system in force.” -emphasis added- In such a way, if the norm now challenged states, as it indeed does, that both parties to the Collective Labor Agreement of the Universidad Nacional commit to not unilaterally denounce said Agreement, it is imposing on both parties, not only on the University but also on the union, a duty that contradicts the constitutional provision on collective bargaining, by preventing both from the free exercise of bargaining to which they are entitled within a framework of reasonableness and proportionality, and on the claimant party, forcing it to be unable to validate, jointly with the union, situations related to the proper use of public funds.

In this sense, the action must be granted, because the aforementioned phrase in the last paragraph of Article 185 of the Collective Labor Agreement of the Universidad Nacional is contrary to the Law of the Constitution, in the terms indicated.

-Conclusion. - Ultimately, since the first part of the last paragraph of Article 185 of the Collective Labor Agreement of the Universidad Nacional is contrary to the Law of the Constitution, what is appropriate is to grant this unconstitutionality action, annulling as unconstitutional the phrase “The parties commit to not unilaterally denounce this Agreement.” Consequently, and in the same terms I indicate for Article 43 of the bill under study, I consider that any provision that compels the denunciation of collective bargaining agreements, as Transitorio XV of citation does, must be analyzed in light of what was resolved in cited judgment No. 2018-019511.

As I indicated in the reasons I expressed in relation to Article 43 subject to this consultation, if the wording of this transitory provision is maintained, its content must be interpreted in light of the provisions of Article 62 of the Constitution and the jurisprudence established by this Court, with which collective bargaining would not be prohibited, but rather, what would be prohibited is that they be carried out under criteria that do not respect proportionality, reasonableness, and the content of the Constitution and the Law.

XVII.- Regarding the consultation raised concerning the sanction of generic disqualification (inhabilitación).- (drafted by Magistrate Picado Brenes) 1) Concrete analysis of the aspects consulted The consultants consider that Article 4.a of the bill for the “LEY MARCO DE EMPLEO PÚBLICO”, being processed in legislative file No. 21.336, by establishing a sanction of disqualification (inhabilitación) in a general manner, is violative of constitutional principles. Said norm expressly states the following:

“ARTICLE 4- Guiding Principles The guiding principles of public employment are:

• a)Principle of the State as a single employer (patrono único): stems from the premise that the State is a single center for the imputation of labor rights, regardless of where the public servant works. This implies that, when a public servant transfers from one position to another within the public sector, the employment relationship must be computed as a single one for the purpose of recognizing the corresponding labor rights and answering for functional duties, regardless of the position changes that may occur. Additionally, it entails that sanctions that generate the dismissal of the official without employer liability (responsabilidad patronal) in one institution, in accordance with the legal system in force, will prevent any other entity or body that forms part of the State from hiring them for a period ranging from six months to two years.” The consultants consider it unconstitutional, since, in their view, it is a generic and automatic sanction of disqualification (inhabilitación), which would apply to any type of dismissal, regardless of whether it involves serious or minor offenses, without the sanctioning body being able to assess the seriousness of the conduct and without there being a weighing of the rights that will be affected. They consider that, while it is true the Constitutional Chamber has endorsed sanctions of disqualification (inhabilitación) for holding public office as part of the criteria to guarantee the suitability (idoneidad) of public sector workers, the sanction created in the consulted norm is generic, that is, it would apply to any type of dismissal, regardless of whether it involves serious or minor offenses, deeming that, therefore, it becomes an automatic sanction, for the simple fact of the person being dismissed without employer liability (responsabilidad patronal). In the opinion of those signing the consultation, the offenses that give rise to terminating the employment relationship without employer liability (responsabilidad patronal) do not all, irreparably, constitute the existence of a lack of suitability (idoneidad) to hold positions in all Public Administrations, and they consider that the automatic application of such a severe measure must take into account the type of offense committed, weighing the proportionality and reasonableness of the sanctioning administrative act; however, they estimate that the norm in question does not allow for such weighing or assessment.

At this point, it is relevant to recall, first of all, that the Constitutional Chamber has ruled, on repeated occasions, regarding the sanction of disqualification (inhabilitación), stating that there exists the possibility of temporarily disqualifying a person from holding a public office through administrative channels, so it is not a sanction foreign to the administrative sphere. Thus, for example, in judgment No. 2013-04491 of 4:00 p.m. on April 3, 2013, it ordered the following:

“With which, the pronouncement is not particularly conclusive as to the reasons why the imposition, in an administrative venue, of the disqualification (inhabilitación) for public positions would be unconstitutional. And it is that around this particular type of sanction, the rigid and overwhelmingly founded limits that oppose, for example, the establishment of the penalty of imprisonment by any public authority other than the jurisdictional one are not raised. In this latter sense, Articles 35, 37, and 39 of the Political Constitution; 7 and 8 of the American Convention on Human Rights; 10 and 11 of the Universal Declaration of Human Rights; and 9 of the International Covenant on Civil and Political Rights are unequivocal on the necessity, among other requirements, that a decision of such gravity as the restriction of personal liberty be adopted by means of a judge's act. Disqualification (inhabilitación), on the other hand, is not a sanction that is foreign to the administrative field. In our legal system, for example, norms such as 100 subsection a) of the Administrative Contracting Law (Ley de Contratación Administrativa), 3 of the Mining Code (Código de Minería), 9 subsection f) of the Regulation to the Civil Service Statute (Reglamento al Estatuto de Servicio Civil), and 13 of the Notarial Code (Código Notarial) authorize the respective competent bodies to impose an administrative penalty of that nature, the Chamber having systematically rejected the challenges made against some of them (judgment #2000-5525 of 2:58 p.m. on June 5, 2000, regarding the Administrative Contracting Law; resolutions #2002-6057 of 2:42 p.m. on June 19, 2002, #2002-10940 of 3:08 p.m. on November 20, 2002, #2003-3423 of 3:58 p.m. on April 29, 2003, and #2006-3135 of 10:42 a.m. on March 10, 2006, regarding the Regulation to the Civil Service Statute)”. (The underlining does not correspond to the original) Regarding its constitutional basis, in judgment No. 2006-08493 of 2:43 p.m. on June 14, 2006, it was indicated:

“The disqualification (inhabilitación) is justified in:

“the power that the State has to sanction the offenses committed by its employees in the public function, as well as the need to safeguard and protect itself from the irregular behaviors of its officials, which affect the norms of subordination, and public interests, through the sanctioning power, like any employer, against the non-exact fulfillment of the duties of the public function. Once the disciplinary regime is applied, as an executive and executable act, the norm in question comes into operation. Take into account that the jurisprudence recognizes the existence of reasonable requirements imposed by law, not as a limitation on constitutional Articles 56 and 57, but to guarantee that the provision of the public service conforms to the provisions of numerals 191 and 192 of the Political Constitution. So, prior to the appointment of any public employee, it is lawful for the State to implement additional conditions or requirements for the selection of its employees, and even more so, in case the possibility of a new rehiring arises. Thus, the conditions of the challenged norm are lawful limitations –from a constitutional point of view- imposed in a Law of the Republic that provides for the temporary unsuitable nature (inidoneidad) of former officials for a new public position, in case of having been dismissed without employer liability (responsabilidad patronal), as occurs in the matter under examination. See that the Chamber's jurisprudence even admits that disciplinary investigations are not archived due to the early cessation of the investigated person in their position, so that it can be recorded in files if they request to be appointed again by the administration.” And it is asserted, finally, in that judgment:

“From the above, it is concluded that the existence of a norm that sets the consequences over time of a dismissal, is not unconstitutional, because it precisely exists so that officials who have misused their position or the State's assets cannot be appointed again for a specific term, all to guarantee the morality and legality of the Administration.” (In the same sense see pronouncements #2002-6057 of 2:42 p.m. on June 19, 2002, and #2003-05262 of 2:40 p.m. on June 18, 2003. On the possibility of continuing the administrative procedure, despite the servant's resignation, see rulings #1999-2958 and #622-93 of 3:48 p.m. on February 8, 1993).

To further elaborate, in judgment No. 2012-00267 of 3:34 p.m. on January 11, 2012, the Chamber considered in what is relevant:

“In the case of the norm questioned, it is a regulatory provision that determines the consequences of a dismissal without employer liability (responsabilidad patronal) within the Public Administration, such that public officials who have misused their position or the State's assets cannot be appointed again to a position in the Civil Service for a specific term. Being public employees, they must comply with a certain set of ethical and moral duties, and it is prudent to subject their appointments to the constitutional principle of suitability (idoneidad), as occurs in this case. Furthermore, the Chamber considers it illusory and devoid of all legal logic for an official dismissed for the breach of these principles to attempt to return to the public function immediately, bypassing the protection mechanisms established by the legal system against possible abuses of State property, and that directly affect the ethics and morality that every official must accredit (judgment 2002-5424 11:10 a.m. May 31, 2002). The norm under study establishes a temporary unsuitable nature (inidoneidad) for public officials who were dismissed from their position without employer liability (responsabilidad patronal) and its sole purpose is to protect the Public Administration concerning the moral aptitude of persons who at some time infringed the regulations of the Civil Service Statute (Estatuto de Servicio Civil), so future appointments in the Executive Branch under that regime are conditioned to a determined term. The Chamber takes into account that by judgment number 2001-12005, it was indicated that:

\"It indeed has a clear sense to point out that the suitability (idoneidad) of public servants should not only be understood in a specific sense, ‘academic’ or ‘physical’ for example, but that it should rather be assumed as a conjunction of elements or factors of diverse nature that, evaluated as a whole, result in a person being the most suitable for the position. Furthermore, the Chamber truly does not conceive how the necessary ‘psychological aptitude’ could be ignored, not only in general terms of ‘stability’ or ‘normality,’ but in what refers to the conditions or ‘specific aptitudes’ that certain positions require in a necessary manner to be exercised efficiently. It is therefore, in the Chamber's judgment, an adequate and proportionate means of achieving the constitutional purpose set in Constitutional Articles 191 and 192, insofar as it complements, as explained, the other aspects of suitability (idoneidad); and this same reason is what makes it maintain primacy –in this specific case– over the other constitutional rights that the petitioner considers involved in this controversy, namely, the right to equal treatment and the right to work, to the extent that the psychological aptitude must be considered an integral part of the suitability (idoneidad) required by the Political Constitution itself, as explained. To conclude on this point, it should be noted that, as the Director General of Civil Service points out, the Statute does incorporate within its rules the need for the demonstration –in a broad manner– of suitability (idoneidad) for the position and with it the requirement of verification of psychological suitability (idoneidad). \" Consequently, it is within constitutional parameters for the norm to establish a term of disqualification (inhabilitación) for re-entry into the Civil Service for that public servant who was dismissed without state responsibility. Take into account that it is not an additional sanction to the dismissal, as the plaintiff seems to understand, but the regulation of the legal consequences of a fact, with which the State protects itself from irregular conduct that undermines the subordination that every servant owes to the State as employer, and to the legal system, so that upon verifying an offense for which the sanctioning power had to be applied, as a means to demand exact compliance with the duties of the public function or the breaking of the service relationship according to the existing grounds, this must form part of the requirements for re-entry into the civil service”.

From this perspective then, the questioning raised regarding the possibility of applying a sanction of disqualification (inhabilitación) in the sphere of public employment would not be unconstitutional. In the Chamber's view, these are lawful limitations –from a constitutional point of view- imposed in a law of the Republic, which provides for the temporary unsuitable nature (inidoneidad) of former officials for a new public position, in the event of having been subject to dismissal without employer liability (responsabilidad patronal), as occurs in the matter under examination. The Chamber has also stated that the existence of a norm that sets the consequences over time of a dismissal is not unconstitutional, because it precisely exists so that officials who have misused their position or the State's assets cannot be appointed again for a specific term, all to guarantee the morality and legality of the Administration (see judgment No. 2006-08493 of 2:43 p.m. on June 14, 2006, and in the same sense, pronouncements 2002-6057 of 2:42 p.m. on June 19, 2002, and 2003-05262 of 2:40 p.m. on June 18, 2003). For this Court, it is in accordance with constitutional principles to impose a disqualification (inhabilitación) on an official dismissed with just cause, because one cannot expect that said official can return to the public function immediately, bypassing the protection mechanisms established by the legal system (judgment 2002-5424 of 11:10 a.m. on May 31, 2002). Under this perspective, upon analyzing Article 4.a of the bill under study, it is observed that, in view of the legislator's objective being to constitute the State as a single employer (patrono único), sanctions that generate the dismissal without employer liability (responsabilidad patronal) of the official in one institution, automatically imply an impediment to work in any other entity or body that forms part of the State, for the period established in that norm. At this point, one cannot lose perspective on the State's obligation to safeguard the suitability (idoneidad) that must assist anyone aspiring to a position in the public function, as an integral part of the requirement of numeral 192 of the Political Constitution. However, matters relating to the questions raised by the consultants regarding the relationship between the type of offense committed and the sanction, or regarding the proportionality and reasonableness of the sanctioning administrative act, are issues that must be evaluated in each specific case and as part of due process, and which do not, for that reason, render the norm unconstitutional per se. On the other hand, it is of interest to recall that, in the Costa Rican legal system, some norms referring to disqualification (inhabilitación) can be found with some content similar to that of Article 4 a. under study. Among them, the following can be cited:

• 1)Regulation of the Civil Service Statute (Reglamento del Estatuto del Servicio Civil):

“Article 9 - The requirements to enter the Civil Service, apart from those established by Article 20 of the Statute, are the following:

• d)Not having been dismissed for infringement of the provisions of the Statute, this Regulation, or the autonomous regulations of the institutions covered by the Statutory Regime, during a period of no less than three nor more than ten years prior to the date of entry, according to the seriousness of the offense and in accordance with the guidelines on this matter that will be established by the General Directorate of Civil Service.” 2) Organic Law of the Comptroller General of the Republic (Ley Orgánica de la Contraloría General de la República).

“Article 72.- Prohibition of entry or re-entry of the offender. Anyone who has committed a crime or serious offense (falta grave) against the norms that make up the oversight system, contemplated in this Law, or against the property or good faith of business, may not be appointed to a position in the Public Treasury (Hacienda Pública). This prohibition shall be in effect for a term that shall not be less than two years nor more than eight years, in the judgment of the Comptroller General of the Republic, who shall resolve upon viewing the evidence of the case. Likewise, the prohibition shall apply, for the same term, against former public servants who attempt to re-enter the Public Treasury, when they have committed a crime or serious offense as mentioned in the previous numerals, even if their previous service relationship with the Public Treasury ended without liability on their part. Furthermore, the prohibition established herein shall be applied against the public servant who has been dismissed for having committed a crime or serious offense as already cited.” Thus, temporary disqualification (inhabilitación) through administrative channels of a public servant, to prevent them from accessing public positions, is a figure recognized by this Court, which allows that officials who have breached their ethical and moral duties by misusing their position or State assets, may not be reappointed for a defined term, in order to guarantee the principles of Administration efficiency and proven suitability (idoneidad). This principle of suitability (idoneidad) should not be understood only as the verification of academic, physical, or experiential aptitudes, but extends, in addition, to a series of ethical and moral elements and even psychological ones, which are part of that suitability (idoneidad) required for the exercise of public office, hence it is an adequate means to the constitutional purposes embodied in Articles 191 and 192 of our fundamental charter. In accordance with the above, the disqualification (inhabilitación) provides for the temporary unsuitable nature (inidoneidad) of former officials for a public position, in case of having been dismissed without employer liability (responsabilidad patronal), with which it seeks -as stated supra- to guarantee that the provision of public services conforms to the principles of proven suitability (idoneidad) and efficiency in the public function (Articles 191 and 192 of the Political Constitution). Likewise, it is important to highlight that the Chamber has pointed out that this disqualification (inhabilitación) is not absolute, but is composed of a series of limits that channel its application, among which this Court has highlighted the following: 1) that it has a defined term authorized by law, or that it is imposed for a reasonable term; 2) that it is temporary; 3) that it is duly substantiated; 4) that it is imposed only as a consequence of termination due to proven serious offenses (faltas graves comprobadas). All of which are extremes that must be evaluated in each specific case and as part of due process. Furthermore, all of this must be applied taking into account the special regulations that each institution may have in this regard, with the legal operator performing an interpretive task. In this sense, it must be remembered that, in matters of facultative consultations, this Court only rules on the consulted topics, in such a way that the existence of a kind of endorsement of the consulted bill cannot be interpreted, in that on which there is no pronouncement. If it is considered that there are other elements on this topic, apart from those consulted, that could violate the supremacy of the Political Constitution, the corresponding avenue would remain open for its due discussion (see in that sense judgments 2001-11643, 2001-12459, 2012-9253, 2019-9220 and 2020-010160, among others).

• 2)Conclusion In accordance with the foregoing considerations, it can be concluded that the existence of a norm that establishes disqualification (inhabilitación), as one of the consequences over time of a dismissal, is not unconstitutional. Thus, in the terms indicated and in accordance with constitutional jurisprudence, regarding what was consulted, Article 4.a of the bill for the “LEY MARCO DE EMPLEO PÚBLICO,” being processed in legislative file No. 21.336, is not unconstitutional. Matters concerning applying due process to the dismissal, evaluating the relationship between the type of offense committed and the sanction, or regarding the proportionality and reasonableness of the sanctioning administrative act, and determining the specific norm to apply when special regulations exist in the institution in question, being issues that will fall to the legal operator.
• 3)Note Note by Magistrate Picado Brenes regarding Article 4, subsection a) of the bill referring to the sanction of general disqualification (inhabilitación) (point 57 of the Por Tanto) I concur with the majority vote in considering that the sanction of disqualification (inhabilitación) contained in subsection a) of Article 4 of the bill under study is not unconstitutional in itself; however, I consider it necessary to make some clarifications that, in my view, are important to take into account because they could carry associated unconstitutionalities.

I must start from the premise that, while it is true, and in general terms, the existence of a norm that sets the consequences over time of a dismissal - such as the disqualification (inhabilitación) for holding public office regulated in this numeral 4 subsection a) - is not unconstitutional, it is also true that this must be surrounded by a series of tools that facilitate its correct application, as well as guarantees for the Administration for the benefit of the public service and for the official in protection of their rights. In the specific case of Article 4 subsection a) of the bill, I consider that the wording is lacking in considering these details and this, in practice, could generate problems of a constitutional nature.

Firstly, it should be noted that the norm simply refers to “sanctions that generate the dismissal without employer liability (responsabilidad patronal) of the official in an institution,” which have been understood by the consultants as referring to the sanction of disqualification (inhabilitación); however, it is more than evident that with the openness in the wording of the norm, any other type of sanctions imposed on the worker could fit, both those that currently exist in the legal system and any other that might be created in the future. This single element could generate future problems, for it must be remembered that sanctioning matters must be expressly typified and the word “sanctions” can refer to many situations - indeterminate at this moment - but which, for the purpose of harming a worker, could well encompass a great many behaviors in which the application of subjective criteria could even permeate.

In another order of things, if the norm is interpreted as the consultants do, in the sense that it refers –solely– to the sanction of disqualification (inhabilitación), in my view, this would be an automatic and generic disqualification (inhabilitación) from accessing public positions, to the detriment of any servant who has been dismissed without employer liability (responsabilidad patronal), regardless of the type or seriousness of the offense committed; a situation that leaves aside the parameter of proportionality that must exist between the seriousness of the legal consequence (disqualification (inhabilitación)), the type of sanctioned conduct, and the protected public interest. On the matter, it is relevant to cite the judgment of this Court No. 2009-14027 insofar as it concluded that there must be a constitutionally admissible proportionality between the seriousness of the conduct with respect to the interests sought to be protected and the characteristics and type of sanction legislatively established. In the case of the norm under study, note that it does not explain which offenses are subject to which sanctions, nor does it determine the type of sanction to be applied to each offense or conduct. Furthermore, the article does not establish what the parameter is to determine whether that disqualification (inhabilitación) should be applied for the minimum term of 6 months or the maximum of 2 years.

As the Constitutional Chamber has indicated in reiterated jurisprudence, the Public Administration has the power to temporarily disqualify (inhabilitar) a person through administrative channels from holding a public office when they have made improper use of their position or State assets, and therefore the norm, in general terms, would not be unconstitutional; however, it is essential to point out that such a sanction of disqualification (inhabilitación) is not absolute, but is composed of a series of limits that channel its application: 1) that it has a defined term authorized by law, or that it is imposed for a reasonable term; 2) that it is temporary; 3) that it is duly substantiated; and 4) that it is imposed only as a consequence of the public servant having incurred serious offenses (faltas graves) that are proven through due process, this because there must be a constitutionally valid proportionality between the seriousness of the conduct, the interest sought to be protected, and the type of sanction legislatively established. On the matter, in judgment No. 4425-94 of 8:06 a.m. on August 19, 1994, later cited in resolution No. 2013-015701 of 9:20 a.m. on November 29, 2013, the Chamber considered that this is inappropriate for a former official who has not been separated from the public function for serious offenses (faltas graves).

On that occasion, when referring to the limits for its application, the Chamber emphasized:

“VI.- A corollary of the foregoing recitals would therefore be that the imposition of the sanction challenged here would be constitutional if: a) it has a defined term authorized by law, or is imposed for a reasonable term (it is noted that the three-year and the current five-year term does not appear excessive, provided it is applied under the conditions mentioned and summarized below); b) it were temporary; c) it were expressly pronounced and reasoned; and d) it were imposed only as a consequence of dismissal for serious misconduct, proven through the observance of due process.” (Emphasis not in original).

Now, in the case under study, from reading Article 4(a) it is clear that this numeral does not include tools that allow an assessment of the reasonableness and proportionality of the reproached conduct. It should be noted that said article establishes the automatic and generic debarment (inhabilitación) from holding public office for any public servant who has been dismissed without employer liability, regardless of the type or severity of the misconduct committed, a situation that disregards the proportionality parameter that must exist between the severity of the legal consequence (debarment), the type of sanctioned conduct, and the protected public interest.

In addition to the foregoing, it must be assumed that the objective of a debarment sanction from holding public office is to guarantee the principles of Administration efficiency and proven suitability, since the person who has been sanctioned incurred in some misconduct that undermines those principles, and, in this regard, it must be kept in mind that suitability must not be understood solely as the verification of academic, physical, or experiential aptitudes, but also extends to a series of ethical and moral, and even psychological, elements that are necessary for the exercise of public office, thus making it an appropriate means for the constitutional purposes embodied in Articles 191 and 192 of the Political Constitution. Consequently, if the debarment of a person presupposes their unsuitability—temporary or definitive—to hold a public position—in the event of having been dismissed without employer liability as the rule provides—and this seeks to ensure that the provision of public services conforms to the principles of proven suitability and efficiency in public service (Articles 191 and 192 of the Political Constitution), logic indicates that the determination of that circumstance in the servant will require the fulfillment of a series of requirements previously assessed, by means of which those aptitudes will be evaluated; requirements or conditions that—as stated—are not observed in the rule and that could also imply a harmful omission of fundamental rights, since the wording of the article would allow that determination to be made based on subjective and not very technical criteria.

It is pertinent to cite judgment No. 2002-05424, inasmuch as, when analyzing the constitutionality of Article 72 of the Organic Law of the Comptroller General of the Republic, the Chamber ruled out that the figure of debarment violated the Law of the Constitution, stressing that it safeguarded the moral suitability that must assist anyone aspiring to a position in public service, as an integral part of the requirement of Article 192 of the Political Charter, for having committed serious misconduct, as transcribed below, in pertinent part:

“What the rule establishes is a presumption of temporary unsuitability of the former official who, through dismissal, leaves public service for having committed serious misconduct against the oversight system, against property or good faith in business, or who has committed criminal offenses. The rule bars from public treasury positions anyone who has committed a criminal act or the serious misconduct described in the challenged rule, once disciplinary authority has been exercised...” (emphasis not in original).

Another issue that must be taken into account is the time period, since the Chamber has deemed it harmful to the principle of legal certainty to allow the Administration, in a discretionary manner, to determine the period of time that must elapse for an applicant to be qualified for re-entry into public service without establishing objective parameters for it or maximum caps, hence what was said supra regarding the ambiguity and imprecision of the rule in establishing a period of 6 months to 2 years. In this regard, in cited judgment No. 2012-00267, it was held:

“VIII.- On the other hand, the second paragraph of subparagraph d) of Article 9 establishes that '......A servant who has been dismissed a second time on grounds of dismissal without employer liability in the Executive Branch or in any State institution shall be considered indefinitely ineligible.' The rule provides in the transcribed phrase a measure of a definitive nature, thus becoming a sanction of perpetuity, carrying with it the consequent harm this represents for the rights of the affected person, a situation that openly conflicts with the provisions of Article 40 of the Political Constitution. The only exception to the foregoing is the case in which such ineligibility has been ordered by a condemnatory judicial sentence, so the Administration cannot, through provisions of a general nature, establish a debarment of indefinite duration, and for that reason, this paragraph contradicts Articles 39 and 56 of the Political Charter.

Certainly, the former public employee who has been dismissed on a single occasion (first-time) and the one who has been dismissed on two occasions (repeat offender) are not in an equal situation, and therefore do not deserve equal treatment with respect to the debarment period, but the fact of being a repeat offender does not justify that such discrimination be contrary to human dignity, since the treatment that can ultimately be given to the repeat offender is the same that will eventually be given to the first-time offender, given that the consequences of the dismissal in both cases must be set within reasonable limits. Unsuitability, in this case represented by recidivism, is a circumstance that must be taken into account when individualizing the debarment period, by virtue of the gravity of the facts for which the person was dismissed, and the main parameter to consider as a personal condition of the candidate. Another important aspect is that the employment or life history evaluated in background or life investigations carried out by the Administration, on which the reasons for ineligibility due to unsuitability are based, must not date back more than 10 years (unless there is a judicial resolution so ordering), as well pointed out by the Procuraduría General de la República in its report. The unsuitability motivated by the disciplinary record of the former public employee must take into consideration the time elapsed since such entries, given that they cannot remain valid indefinitely by virtue of the provisions of Article 40 of the Political Constitution. A record of the official's dismissal, whether with or without employer liability, dating back more than ten years and not expunged from the personnel file, would take effect permanently and would also harm the fundamental right to privacy and the presumption of innocence, because it stigmatizes the person and prolongs their guilt. Thus, debarment is not per se unconstitutional, but its effects may become so, if harmful to fundamental rights. The foregoing leads to the recognition of the unconstitutionality of the second paragraph of the cited rule, in which it is made possible to take recidivism into consideration as a parameter inherent to a debarment of indefinite nature upon entry into the civil service career.” XVIII.- Regarding the consulted violation of the right to wage equality and the global salary 1) Aspects consulted The consulting legislators question the following three aspects regarding this Global Salary issue:

-Violation of the principle of separation of powers and of autonomies, due to the fact that a Ministry of the Executive Branch establishes the global salary scale (Art. 34) and, with it, the salaries of the entire State apparatus, including the Judicial Branch, universities, municipalities, and decentralized entities.

-Violation of the principle of wage equality, due to the fact that people occupying equal positions under equal conditions would be receiving a different salary (Transitory Provision XI); in addition, because equal treatment is given to those who are not in conditions of equality, such as health sciences officials, those performing police functions in the Ministry of Security compared with those of the Judicial Investigation Agency, justice administrators, foreign service, trust positions, etc. (Art. 30.a and 34). Likewise, it is consulted that the salaries of legislators are not included within the salary cap (Art. 37).

-Violation of the principle of human dignity at work, due to the fact that the definition of salary (Art. 5.r) excludes the recognition of any other emolument, in cash or in kind, that, directly or indirectly, the employer recognizes to the workers, as provided by ILO Convention No. 100. In addition, because "availability" will be taken into account as a relevant factor for work evaluation (Art. 31.f), to the particular detriment of women, who usually have work outside the office and, therefore, have little "availability." Furthermore, because the salary will be frozen for certain officials and they will not be recognized any increase to the base salary or incentive (Transitory Provision XII).

Once the consultation filing brief was reviewed, it is possible to verify that the questioning raised by the consultants in relation to those articles lacks adequate reasoning and does not clearly express the reasons or rationale for which these doubts are raised before this Chamber. In this regard, it must be kept in mind that Article 99 of the Constitutional Jurisdiction Law is very clear in establishing that the consultation must express the aspects of the bill challenged and the reasons for which there are doubts or objections of constitutionality, as well as that all this must be done in a reasoned and duly substantiated manner; a requirement that is not met in this specific case and, therefore, the consultation cannot be addressed in the terms intended by the consultants. The only two rules that are consulted in a substantiated manner refer to Transitory Provision XI and Transitory Provision XII. Therefore, this Chamber proceeds to rule only on these two ("grounds"). On the understanding that, regarding the rest of the rules, their conformity or not with the Political Constitution is not being examined.

In this regard, before proceeding to the examination of the constitutionality of the challenged rules, it is pertinent to recall the scope and constitutional limitations of constitutional jurisprudence, in salary matters.

• 2)Jurisprudential Background on the fundamental right to wage equality In general, regarding the right to a salary, constitutional jurisprudence has indicated that: "The salary as remuneration owed to the servant by virtue of a statutory relationship, for the services rendered, is not only an obligation of the employer, but a constitutionally protected right." (see opinion No. 2015-009504). A fundamental right that, moreover, is non-waivable (Art. 74 of the Constitution). Then, regarding the fundamental right to wage equality or the right to wage equity, it is understood as that right that allows differentiating salaries according to the conditions of the position (negative aspect), but without being able to carry out discrimination (Art. 68 of the Constitution: "No discrimination may be made regarding salary, ... with respect to any group of workers"). Conversely, it is that right that allows maintaining the same salaries if the conditions of the position are equal (positive aspect). The latter, according to Art. 57 of the Constitution, states: "The salary shall always be equal for equal work under identical efficiency conditions." This is ratified by the Universal Declaration of Human Rights (Art. 23.2: "Everyone, without any discrimination, has the right to equal pay for equal work."), the International Covenant on Economic, Social and Cultural Rights (Art. 7.a.i: "Fair wages and equal remuneration for work of equal value without distinction of any kind..."), and the Protocol of San Salvador (Art. 7.a: "...and fair and equal pay for equal work, without any distinction..."), just to cite a few.

The Chamber has stated that, despite the need to pursue a balanced and fair wage policy, differences in the functions of each position cannot be ignored. In judgment No. 97-1320, it stated:

"I. It is evident that from the constitutional articles deemed infringed (33, 57, 68 and 74), a clear purpose can be derived that, in wage matters, there must be balanced and fair treatment for different labor activities, whether or not they are of a professional nature. This Chamber has so reiterated in its various pronouncements. But, as has also been explained, that balanced treatment presupposes—as in any other case involving an equality dispute—that the differences that exist between the various activities be recognized, so that those that are different are not equated, nor are those that are equal differentiated, in such a way that undue privileges result from overvaluing some, or injustices from undervaluing others." In relation to wage equality in particular, in judgment No. 94-6471, it was stated: "Nor is there observed any impairment to the right to equal pay for identical conditions, since it is evident that where there is a diversity of functions in the descriptive manual of positions, this logically entails wage differences." Furthermore, in judgment No. 15-10348, the Chamber pointed out:

"[The PGR]... the advisory body clarifies that although the intention of the Constituent was to establish a single, uniform wage regime for the entire Public Administration, the truth is that in the case of other Branches of the State distinct from the Executive, autonomous entities, decentralized entities, and public enterprises, their higher hierarchical bodies have full authority to dictate their own policies regarding classification and valuation of positions, as well as to fix, in turn, the respective remunerations in the exercise of their legal power. The PGR concludes by stating that UNED governs its life and internal organization in accordance with the postulates of its organic law and internal statutes, which are a manifestation of the collective university will, as it enjoys a superlative degree of administrative and governmental autonomy, distinct from that of the rest of the decentralized entities, in accordance with Articles 84 and 85 of the Political Constitution, and therefore may freely issue—within the limits of the Constitution—the provisions related to its internal regime regarding employment (including remuneration), for both academic and administrative positions. This Constitutional Court shares the position adopted by the advisory body to settle the merits of this case." That is why, regarding general equality, the following was stated in judgment No. 4090-94:

"It is extremely important to indicate, for the purposes of the issue raised, that the principle of equality established in Article 33 of the Constitution does not have an absolute character, as it does not properly grant a right to be equated to any individual without distinction of circumstances, but rather to demand that the law not differentiate between two or more persons who are in the same legal situation or identical conditions, and equal treatment cannot be claimed when the conditions or circumstances are unequal..." The jurisprudential line of the Chamber has been clear, to the effect of recognizing that the indiscriminate equating of remunerations among the members of public powers is not appropriate, since imposing equal treatment on situations or officials that are objectively in circumstances of inequality would violate, in general, the principle of equality and, specifically in matters of salaries and working conditions, Article 57 of the Constitution. However, if the wage equalization is not indiscriminate but rather attends to objective and supported technical criteria, there would be no inequality:

"Regarding the discrimination invoked, this Chamber, in its reiterated jurisprudence, has indicated that Article 33 of the Political Constitution does not imply that, in all cases, equal treatment must be given, disregarding possible differentiating elements of legal relevance that may exist; or, what is the same, not every inequality necessarily constitutes discrimination. The principle of equality, as this Chamber has stated, is only violated when the inequality is devoid of an objective and reasonable justification." (opinion No. 2000-00953).

Regarding wage increases and human dignity at work, by means of judgment No. 2003-005374, for the majority of the Chamber at that time, there is no fundamental right to cost-of-living increases in cases where the salary is above the minimum wage:

"It is also asserted that there is a fundamental right to the cost-of-living increase. This last argument is not acceptable to the majority of the Chamber, since according to the Political Charter, the only thing that exists as a subjective public right is the right to a salary, a rule that generates the employer's legal duty to remunerate the work of its collaborators with dignity. That is, the rule automatically generates a positive benefit chargeable to the employer, consisting of its duty to remunerate the wage earner with dignity. Thus, pursuant to the provisions of Article 57 of the Constitution, every worker has the right to '...a minimum wage, of periodic adjustment, for a normal workday, that provides them well-being and a dignified existence.' From such a fundamental guarantee, a fundamental right to cost-of-living increases cannot be derived, as is claimed. The rule guarantees a minimum of remuneration, a right that translates into the guarantee of seeing one's work remunerated through a minimum wage, subject to periodic adjustment, which is in no way equivalent to a right to a yearly wage increase in cases where it is above the minimum wage. Moreover, the majority of this Court does not consider that there is evidence in the record that the rule prohibits the plaintiffs' possibility of being remunerated with dignity, so such an allegation must likewise be rejected. Not only is such proof lacking, but moreover, it could not be understood as a manifest circumstance that does not need to be proven." The foregoing was ratified by opinion No. 2004-013421, insofar as it states that there is no fundamental right whatsoever that refers to a salary increase. However, this Court warns that the freezing of salaries is not only a different situation, but must also be temporary and not permanent, as inferred from opinion No. 2003-009952, since such a freeze, which entails a sacrifice for the worker by not seeing their salary increased despite the increase in the cost of living, can only be done for a defined or determined period and only due to extraordinary circumstances or those of national interest. An indefinite freeze over time would illegitimately affect legally consolidated future situations and would constitute a State abuse ad infinitum, as it would not only harm the official's salary but also other rights such as their retirement.

• 3)Concrete analysis of the matter consulted (drafted by Justice Castillo Víquez) In the first optional consultation of constitutionality, the legislators allege that the freezing of salaries established in Transitory Provision XI, subparagraph b), violates Articles 11 and 33 of the Constitution, because it disregards other existing regulations that recognize rights to this sector of health professionals—referring to CCSS officials—and because they will receive a different salary than persons who start working with a higher salary under the same conditions as those already working for the institution. To support the violation in question, they specifically allude to the provisions of the following articles of the bill: 6, 7 d), 9, 13 b), 14, 17, and 18. They also argue that it subjects the CCSS to Mideplán provisions regarding public employment management, for example: it imposes on them the duty to populate and update an employment platform every 6 months. They state that Transitory Provision XI, subparagraph b), intends to modify the salary system to a global salary (salario global), without derogating or modifying other regulations that recognize differentiated adjustments in salary, such as the Law of Incentives for Professionals in Medical Sciences and its regulations, or the Nursing Service Statute.

In the second optional consultation of constitutionality, the consultants state that Transitory Provision XI, as drafted, conceives and promotes the establishment of two different salary scales and remuneration amounts for the same job position, for public officials who perform functions and responsibilities under equal conditions and who will be remunerated differently, without this having a basis in objective and rational elements, a situation that could extend for 12 or 15 years. For the legislators, the principles of wage equality, equity, and non-discrimination, and Articles 33 and 57 of the Fundamental Charter are violated, as well as Articles 167 and 405 of the Labor Code. Furthermore, they maintain that there are no technical or objective studies or reasoning that justify the prevalence of the wage difference proposed in that transitory provision. Finally, Transitory Provision XI transgresses and harms the principle of wage equity established in section 4 c) of the same bill.

As can be deduced from this summary of the grievances in both consultations, the legislators' disagreement focuses on the cited transitory provision, but not so on other rules of the bill. The invocation of rules of the bill, as well as of other current legal regulations—Labor Code and incentive laws in the health area—are supporting arguments wielded to maintain that Transitory Provision XI and, to a lesser extent, XII are unconstitutional. Ergo, the majority will limit itself to the analysis of the challenged transitory rules, and not of other current infra-constitutional rules—which cannot be subject to a priori constitutional review but rather to a posteriori constitutional review—nor of the bill they invoke.

As is well known, transitional law is a legal technique that seeks to respond to the problems of application of rules over time, which arise due to the repeal and effectiveness of another, in which it becomes necessary to adapt prevailing situations to the new reality created by the newly enacted law. Indeed, as legal doctrine has firmly held, transitory provisions form part of Intertemporal Law insofar as they aim to resolve conflicts of laws. Faced with the transitional problems caused by the new law, the legislator establishes a legal regime applicable to pending legal situations. In that sense, the function of the so-called transitory provisions is to regulate, temporarily, certain situations, in order to adjust or accommodate the new regulations or to give distinct and temporary treatment, of an exceptional nature, to certain situations. It is important to emphasize that the basis of the transitory rule lies in that need to respond to problems posed by the entry into force of the new law; that is its essence. It has been said that the content of transitory provisions seeks to resolve several situations. In the first place, whether the new regulations apply or not to legal situations prior to the law, either declaring the application of the new law, the survival of the old law, or establishing a distinct transitory regime than that set out in both laws—the old and the new. Another option available to the legislator, within a range of alternatives, is to provisionally regulate new legal situations when this is intended to facilitate the definitive application of the new law.

Regarding whether or not a violation of the principle of equality occurs due to a transitory rule, it is important to bring up what the Spanish Constitutional Court stated in order 367/2003, of November 13 - ECL:ES:TC:2003:367A.

"On the other hand, it is not noted that the challenged provision incurs the discrimination violative of Article 14 CE alluded to in the Order of Referral by reference to the arguments, certainly confusing, of the plaintiff in the a quo proceeding. At the outset, it must be observed that the application of the calculation rules for the pension's regulatory base has nothing to do with whether retirement occurs early or upon reaching the ordinary age of 65 (age is taken into account for percentage purposes), so there is no valid comparison term on which to base the judgment of equality regarding the alleged discrimination invoked to challenge the provision. Indeed, the rules contained in the fifth transitory provision, 1, LGSS, apply, for any type of retirement occurring after the entry into force of the rule, depending on the date on which the retirement occurred. Since the claimant retired in 2002, what is provided in the last paragraph of the fifth transitory provision, 1, LGSS applies to them, which refers to Article 162.1 LGSS (a provision, moreover, not challenged by the proposing judicial body), that is, dividing the claimant's contribution bases during the 180 months immediately prior to the event causing it by 210. Certainly, if the plaintiff in the a quo proceeding had been born several years earlier, they could have retired before 2002 and other calculation rules would have been applied to them, those in force in the year in which the retirement would have occurred. But that the application of the preceding legislation could have been more beneficial in their case to the plaintiff in the a quo proceeding does not determine that the new regulation may be considered contrary to Article 14 CE for that reason, as the principle of equality cannot constitute a dam against successive legal reforms that the legislator considers necessary to introduce, since said principle does not require that all situations, regardless of the time in which they originated or produced their effects, must receive equal treatment from the law, because that would impinge upon the sphere of competence constitutionally attributed to the legislator and, ultimately, on the natural and necessary evolution of the Legal System (SSTC 119/1987, FJ 3; 88/19991, FJ 2; 38/1995, FJ 4).

As this Court already noted early on in its STC 27/1981, of July 20, FJ 10, on the occasion of a legal reform referring to administrative mutualism, whose arguments can be perfectly transferred to the matter before us, 'the Legal System, by its very nature, resists being frozen at a specific historical moment: it orders relations of human coexistence and must respond to the social reality of each moment, as an instrument of progress and improvement. Normally, it does so by establishing relationships pro futuro. But a rule can hardly prevent the future rule from affecting pre-existing legal relationships, which constitute the foundation of future relationships; and it is for this reason that such rules must often contain transitional cautions that regulate the pace of the substitution of one legal regime for another.... The change of legal regime denounced does not entail the suppression of any already consolidated benefit.' (Bold not original)." In addition to the foregoing, it must be kept in mind that Article 33 of the Political Constitution, which recognizes the principle of equality, implies, as the Constitutional Chamber has recognized in multiple resolutions, that all persons who are in the same situation must be treated equally. On the other hand, "The principle of equality, contained in Article 33 of the Political Constitution, does not imply that, in all cases, equal treatment must be given, disregarding possible differentiating elements of legal relevance that may exist; or, what is the same, not every inequality necessarily constitutes discrimination. Equality, as the Chamber has stated, is only violated when the inequality is devoid of an objective and reasonable justification.

But furthermore, the justification for an act considered unequal must be evaluated in relation to its purpose and its effects, such that there must necessarily exist a reasonable relationship of proportionality between the means employed and the purpose itself. That is, equality must be understood in terms of the circumstances present in each specific case in which it is invoked, such that the universal application of the law does not prohibit contemplating different solutions for different situations, as diverse treatment. All of the foregoing means that equality before the law cannot imply material equality or real and effective economic equality" (see votes no. 1770-94 and 1045-94).

The point lies in determining whether this differentiation of treatment is based on constitutionally legitimate purposes, whether it is objective, that is, whether it is supported by a different factual assumption, whether it is based on relevant differences (tertium comparationis), whether there is proportionality between the constitutional purpose and the differentiated treatment that has been applied and the motive and content of the act, and whether that treatment is suitable for achieving the intended purpose.

In the first scenario, the difference in treatment presupposes that it is based on constitutionally legitimate objectives, which entails three consequences regarding the intended purpose. First, laws cannot pursue purposes that contradict the Law of the Constitution or the norms contained in international Human Rights instruments. Second, when purposes not constitutionally protected are pursued, but which do not contradict its values and principles, the differentiation of treatment must be strictly monitored in relation to the factual assumptions that justify it and the purpose it pursues. Finally, when a constitutionally protected purpose is pursued, the differentiation of treatment will be valid provided it respects the criteria of reasonableness, proportionality, and necessity.

The Constitutional Chamber, in vote No. 4883-97, expressed the following regarding this principle:

"The principle of equality, contained in Article 33 of the Political Constitution, does not imply that in all cases, equal treatment must be given regardless of possible differentiating elements of legal relevance that may exist; or what is the same, not every inequality necessarily constitutes discrimination. Equality, as this Chamber has stated, is only violated when the inequality is devoid of an objective and reasonable justification. But furthermore, the justification for an act considered unequal must be evaluated in relation to its purpose and its effects, such that there must necessarily exist a reasonable relationship of proportionality between the means employed and the purpose itself. That is, equality must be understood in terms of the circumstances present in each specific case in which it is invoked, such that the universal application of the law does not prohibit contemplating different solutions for different situations, with diverse treatment. All of the foregoing means that equality before the law cannot imply material equality or real and effective economic equality.' (Judgment number 6832-95 of 4:15 p.m. on December 13, 1995)." (The bold text does not correspond to the original).

Finally, it must be emphasized that compliance with the principle of financial or budgetary equilibrium in this case is an objective and reasonable justification for concluding that the transitional regulation is in conformity with the Law of the Constitution, especially considering the severely deteriorated fiscal situation of the central Government, which endangers the viability of the Social State of Law and the Costa Rican economy as a whole. In this regard, in advisory opinion no. 2018-18505, we expressed the following:

"On this matter, faced with a critical condition in public finances (duly supported by technical studies), which puts the effective or adequate execution of constitutionally relevant services at risk, the decision by the competent authorities to define and apply suitable measures to alleviate or solve the problem is not only reasonable, but even more, it is unavoidable.

However, it is not the Chamber's role to define specifically what type of remedies should be applied or which is the most adequate, since this forms part of the State's economic policy, which in turn constitutes a matter of government. In reality, constitutional review is constrained to ensuring that solutions are adopted while safeguarding the fundamental rights protected in the Political Constitution and the instruments of international human rights law ratified by Costa Rica, as well as the essential qualities of the country's political regime (in a democratic, free, independent, multiethnic, and pluricultural republic, whose Government is popular, representative, participatory, alternative, and responsible), all of which implies an exercise of weighing and optimizing the diverse constitutional principles, rights, and values at play.

In this context, a harmonious interpretation of the principle of budgetary equilibrium and the Social State of Law is of special importance. The Chamber warns that, for a Social State of Law to persist and fulfill its constitutional and legal purposes, it becomes necessary to carry out sound management of public finances; that is, there must inexorably exist a balance between service rights and state economic solvency, since the former depend on the material possibilities facilitated by the latter, while the purpose of the latter is to strengthen the development of a supportive political system, one in which the less favored strata of society find protection for their human dignity and their right to progress. In other words, the "ideal" Social State of Law is the "possible" Social State of Law, against which action is precisely taken when the principle of budgetary equilibrium is breached, since, in the medium term, this seriously risks or entirely prevents obtaining the necessary resources to sustain a "real" Social State of Law, one that the most vulnerable can truly and effectively enjoy. Therefore, ensuring that we do not fall into a failed or paper Constitution, where constitutionally ranked service rights cannot be effective, is a fundamental task of this Chamber, strictly within what the framework of its competencies allows.

It must be warned, however, that all constitutional principles, values, and precepts must be observed in any circumstances, which the constitutional jurisdiction is permanently responsible for monitoring. Now, by reason of the exercise of weighing or optimization that the constitutional judge performs to resolve some collision between such principles, values, and precepts, the context surrounding the conflict cannot go unnoticed.

Corollary of the foregoing: the non-observance of the principle of budgetary equilibrium has been one of the causes of the current deteriorated state of public finances, a reason that leads this Chamber to underline the transversal nature of said principle and emphasize its real implementation for the sake of the principle of the Social State of Law. The observation of the State of the Nation Program is reiterated: 'This [referring to the structural imbalance in public finances] has put the future of the social welfare state built throughout the second half of the 20th century in check, since its financing and the efficiency of its spending are not sufficient'." Regarding the violation of the principle of legality, the petitioners do not make an adequate argument from the perspective of the Law of the Constitution. Hence, this Tribunal does not issue further consideration on the matter.

• 4)Conclusion For the foregoing reasons, it is concluded, by majority, that Transitory Provisions XI and XII do not violate the principle of equality—equal pay for equal work under identical conditions of efficiency—nor that of legality, and, consequently, they are not unconstitutional.
• 5)Dissenting vote and note a) Dissenting Vote regarding subsection a) of Transitory Provision XI of the bill on salary rules (point 58 of the therefore) by Magistrates Hernández López, Garro Vargas, and Picado Brenes, drafted by the latter We, the undersigned Magistrates, dissent from the vote on this point because we consider that subsection a) of Transitory Provision XI of the bill contains a violation of the fundamental right to equal pay. A reading of said subsection shows that people who hold equal positions, under equal conditions, will receive a different salary. In this way, long-standing public workers who, although they perform the same functions as newly hired public workers, are placed in different salary categories. Specifically, this refers to the following scenario: "Salary lower than the global salary: composite salary lower than the global salary will continue to earn their salary and once it reaches the global salary, they will automatically transfer to that one." Although it is true that the purpose of transitional norms is to make the necessary adjustments for the entry into application of a new law, it is also true that this transition space must be respectful of the fundamental rights of individuals, and, in this specific case, that premise would not be met. Note that public servants with a composite salary lower than what would correspond to them under the global salary system would be those whose right to equal pay would be violated, because despite having started work earlier and performing the same functions as the newly hired worker subject to the global salary, they would be receiving a lower salary than those new employees receive. This constitutes an inequality in pay contrary to the Law of the Constitution, in the same sense evidenced by the Report of the Department of Studies, References, and Technical Services of the Legislative Assembly AL-DEST-CJU-027-2021. From this perspective, closing off the possibility for current officials (with a composite salary lower than the global one) to be able to transfer to the global salary constitutes an inequality devoid of an objective and reasonable justification (see vote no. 1997-4883). As set out in the jurisprudential summary, regarding the fundamental right to equal pay or the right to pay equity, this is understood as that right which allows differentiating salaries according to the conditions of the position (negative aspect), but without being able to carry out discrimination (art. 68 of the Constitution: "No discrimination may be made regarding salary, ... with respect to any group of workers"). Conversely, the right to salary is that right which allows maintaining the same salaries if the conditions of the position are equal (positive aspect). This latter aspect, according to art. 57 of the Constitution, which states: "The salary shall always be equal for equal work under identical conditions of efficiency." Thus, an inequality would occur between current officials, who would have a lower salary, compared to new officials with the global salary. All of which we consider unconstitutional.
• b)Separate note by Magistrate Garro Vargas regarding subsection a) of Transitory Provisions XI and XII of the bill on salary rules (point 58 of the therefore) As a premise for examining the grievance under consultation, it is necessary to state that I am aware of the purpose underlying the bill, in the sense that—in order to safeguard public finances—it is necessary to combat inequities and the triggering or distorting mechanisms of public spending through the uncontrolled payment of bonuses and salary recognitions. The latter has generated uncontrolled growth in spending, which significantly impacts public finances, but above all has created great inequality (in salary and responsibilities) among public servants themselves who perform similar tasks.

Now, in order to examine and contextualize the question of constitutionality raised, it is also necessary to refer to what was stated in the statement of motives of the bill. The parliamentary initiative starts from the objective of improving and updating the compensation mechanisms for all public servants. A careful review of said statement of motives reveals that one of the maxims is precisely to seek equal pay:

"Recommendations of the CGR on the topic of remuneration:

On different occasions, the Office of the Comptroller General of the Republic has drawn attention to the need to review the remuneration scheme, mainly those salary incentives that generate disparities between the same types of positions, as is the case of seniority bonuses (anualidades). In the study Challenges for the modernization of the remuneration scheme in Government ministries DFOE-SAF-OS-00001-2018, the CGR revealed that there is a set of framework principles that should govern the management of remuneration in the public sector, such as the payment of an equal salary under equal conditions and paying a different salary if differences exist, as established in article 57 of the Political Constitution. Specifically, the CGR report indicated the following:

'In the study, it is determined, based on a literature review, that there are general principles towards which remuneration schemes in the public sector can be oriented, with the objective of having a motivated, effective, and efficient human resource. These are: pay equal salary for the same work performed under the same conditions; pay different salary in the presence of differences in the work performed, assigned responsibilities, and required qualifications; pay salaries in government comparable to those for equivalent skills in the private sector; periodically and systematically review remuneration schemes to guarantee their continued validity'." (The highlighted text does not correspond to the original).

Specifically, regarding compensation management, the statement of motives of the bill summarizes it as follows:

"Compensation Management: Guiding postulates are established that guide the management of remuneration and the recognition of monetary and non-monetary incentives for competitiveness, productivity, and performance.

Additionally, recommendations from the Office of the Comptroller General of the Republic and the Organization for Economic Cooperation and Development are adopted, which are in line with reducing both vertical and horizontal salary distortions, through the introduction of the global salary for new public servants, as well as those who choose to transfer, and for institutional heads." (The highlighted text does not correspond to the original).

Therefore, one of the core principles upon which this reform is based is pay equity, as a mechanism precisely intended to avoid salary distortions. Art. 4 of the bill approved in the first debate includes the following:

"c) Principle of pay equity: the remuneration of public servants shall be determined based on strict technical criteria, according to the responsibility and the position they hold, ensuring that salary differences within the same unit or in relation to other included entities and bodies are consistent and reasonable differences, and that the principle of equal function equal pay is respected." (The highlighted text does not correspond to the original).

Now, to address the migration towards that conceived "global salary" compensation scheme, the bill initially proposed the following mechanism:

"TRANSITORY PROVISION XI- Transition to global salary The transition to global salary shall be optional for public servants active on the date this law enters into force. The order as well as the maximum percentages of the total payroll that will gradually migrate to global salary remuneration in each of the public dependencies included in Article 2 of this law shall be determined by regulation." That is, at first, it was considered that one mechanism could be the voluntary transition to the rules of the global salary. However, the Office of the Comptroller General of the Republic (CGR) questioned the possible impact on the fiscal situation and therefore recommended carrying out a series of technical studies to justify the decision. Thus, for example, in report DJ-1737-2020, DFOE-0116-2020 of November 24, 2020, the CGR directed the following recommendations to the Legislative Assembly:

"With the purpose of gradually achieving the expected positive effects of implementing the global salary throughout the public sector, some observations and warnings are provided below regarding the proposed transition mechanisms and their possible impacts on public finances, so that the corresponding assessments are made during the legislative discussion and a feasible, sustainable, and gradual transition can be designed based on a reasonable measure that makes the necessary reform to the public employment regime viable, taking into account that any measure applied will have a multiplier effect whose economic cost will be essential to know and analyze. As a first point, it is observed that the transitory provision does not include newly hired public servants, so it is understood that the global salary modality will directly apply to them once their employment relationship begins. This is consistent with what has been indicated on several occasions by the Office of the Comptroller General, regarding the need for the public employment bill to contemplate simple and technically supported rules regarding the implementation of the global salary, addressing first newly hired public servants and then, gradually, the persons already integrated into the public service. Now, it should be noted that Transitory Provision XI proposes rules to include under that modality the public servants already currently integrated into the public sector, under different scenarios; it is regarding these that the observations and warnings of the Comptroller Body need to be specified. Thus, the first scenario opens the possibility of voluntary transfer to the global salary for those officials who, at the time the law enters into force, earn a composite salary lower than that which will correspond to them as the global salary of their respective category; the second scenario regulates the cessation of increments for public servants who, upon the law entering into force, earn a composite salary higher than the global salary corresponding to their category, the foregoing until the global salary reaches the level of their current remuneration, at which point they will continue under the global salary regime, as will those who choose to maintain the composite scheme in the first scenario. Special attention is deserved by the first scenario, corresponding to voluntary transfer, as it must be warned that this transition modality would have short-term fiscal implications that, in the current situation of public finances, would make its financing unfeasible and would put the effective and sustainable transition to the single salary model and its future benefits at risk. Although this regulation rightly seeks to standardize and homologate the different salary compensation schemes in force in the Public Administration, in order to establish a model that over time eliminates the disparities generated by the composite salary scheme and reduces the unequal and unbalanced structure of the various salary regimes that currently exist, it is essential for its analysis and approval that the legislator have clear and precise data provided by the Executive Branch on the economic estimates that these transition mechanisms entail and that provide evidence that the necessary financing sources will exist to meet the expenditures that may arise, not only at the level of the entire public sector but regarding each institutional reality. To approve the indicated transitory provision, it is essential to have adequate information that allows weighing the implications of this mechanism in order to ensure that a legally and economically viable transition is proposed. Said information will also allow for the astute management—from now on—of possible immediate effects and during the first years on public finances, especially in the current complex economic scenario characterized by the fiscal imbalance that severely compromises the availability of funds to meet new expenditures by the State.

On this matter, to illustrate the relevance of having timely, pertinent, and precise data as indicated, the Office of the Comptroller General conducted an analysis of the 3 effects that the application of the proposed transitory provision would have when applied to 30 Central Government institutions. It was determined—as a reference—that the item for remuneration, on average, could increase between 1 and 5%, said increase could vary between institutions in a range between 0.1 and 12.8% depending on factors such as the defined salary and the organizational structure. The foregoing would imply, at least, an average budgetary forecast of slightly more than 18,000 million colones for that group, the forecast being greater for the entire public sector. Therefore, this Comptroller Body considers that if the idea is maintained and to achieve the transition of public servants currently integrated into the public sector, other transition mechanisms must be assessed that contemplate reasonable, sustainable, and gradual measures to ensure a true reform of the public employment regime. Such a measure could be that, in the case of public servants who at the entry into force of the law earn a salary lower than what corresponds to them according to the relevant global salary category, their transfer is authorized as long as it is viable in accordance with the financial possibilities of the Administration, linked to the behavior of the Central Government debt, such that voluntary transfers can be authorized in accordance with the analysis of the reduction of public debt. The foregoing would not only allow for objective and technical criteria for decision-making but would also be coherent with the public finance consolidation efforts already introduced through Law No. 9635. Thus, voluntary transfers could be allowed only when the Central Government debt is less than 60% of GDP; otherwise, the possibility of transfer will not exist. Additionally, according to the approach established in Transitory Provision XI, it seems not to include the scenario of those public institutions that have already implemented, based on their own regulations, single or global salary schemes and that currently operate under such rules, totally or partially. In such a case, there is no clear observation as to what the procedure would be in those institutions, among which this Comptroller Body is included, so it is suggested to specify in those cases the rules under which the norm would have to be applied." (The highlighted text does not correspond to the original).

From the preceding citation, it is pertinent to highlight that it is stated that the migration towards the compensation scheme designed by the legislator requires studies, since "any measure applied will have a multiplier effect whose economic cost will be essential to know and analyze." Likewise, the CGR emphasized that for the approval of the proposed transitory provision—or any other transitional measure, I would add—it requires "adequate information that allows weighing the implications of this mechanism in order to ensure that a legally and economically viable transition is proposed." In my view, a legally viable transition precisely implies recognizing the constitutional norms that support the salary recognitions of public servants and, furthermore, the economic criteria that reasonably support the respective determination.

In light of the questions raised, the legislator opted for another proposal for a transitory norm, which is the one consulted here. The wording remained as follows:

"a) Those who earn a composite salary lower than what would correspond to their category under the global salary modality will continue to earn their salary in the manner they were doing so and may be increased by the payment for the concept of seniority bonus (anualidad), which legally corresponds to them, and once their composite salary equals the amount that would correspond to them under the global salary scheme, they will automatically transfer to this salary regime, the following month" (the highlighted text does not correspond to the original).

From the reading of the parliamentary proposal, it is evident that the mechanism devised is one in which servants who have a composite salary lower than that defined for their salary column will maintain said salary lower than that which new servants entering the public employment regime under the global salary rules will receive. The possibility of it being equalized will only occur when, through the increase of seniority bonuses (anualidades), the composite salary reaches the same amount as the global salary.

From my perspective, the norm under consultation is openly unreasonable and contrary to the principles governing labor law and specifically that of equal pay, which is contemplated in the Political Constitution. Article 57 of the Constitution mandates: "The salary shall always be equal under identical conditions of efficiency." And article 68 of the Constitution states: "No discrimination may be made regarding salary, advantages, or working conditions between Costa Ricans and foreigners, or with respect to any group of workers." Moreover, the Labor Code, which applies supplementarily in this matter, enshrines said principle by establishing in art. 167: "To set the amount of the salary in each type of work, the quantity and quality of the same shall be taken into account. For equal work, performed in the same position, working day, and conditions of equal efficiency, equal salary corresponds." Regarding this principle, the Constitutional Chamber has referred, for example, in judgment no. 2010-004659, to the following:

"II.- On the principle of equality in general and the principle of equal pay. Equality, as this Tribunal has reiterated, must be understood in terms of the circumstances present in each specific case in which it is invoked, such that the universal application of the law does not prohibit contemplating different solutions for situations that are also diverse:

'Constitutional jurisprudence, through several pronouncements, has managed to distill the content of the principle of equality established in Article 33 of the Constitution, stating that through it, making differences between two or more persons who are in the same legal situation or in identical conditions is prohibited, without being able to claim equal treatment when the conditions or circumstances are unequal, and different treatment is possible for different situations and personal categories. This very simple formula was recognized many years ago by the Constitutional Court, formerly the Supreme Court of Justice, which was in charge of hearing unconstitutionality actions before the creation of this specialized Chamber. But the requirement of equality does not legitimize just any inequality to authorize differentiated treatment; to determine if discrimination is really justified, it is necessary to analyze whether the reason that produces it is reasonable, that is, if, considering the particular circumstances of the case, diverse treatment is justified.' (Judgment No. 1372-92, of fourteen hours and fifty minutes on May twenty-sixth, nineteen ninety-two).

The principle of equal pay, which derives from Articles 33, 57, and 68 of the Political Constitution, must be understood as the right to receive equal remuneration for equal work performed or, as Article 57 itself states, "The salary shall always be equal for equal work under identical conditions of efficiency." That is, equal pay is contemplated under the premise that the same category corresponds to the same salary. Thus provides the first paragraph of Article 68 of the Political Constitution, which establishes: "No discrimination may be made regarding salary, advantages, or working conditions between Costa Ricans and foreigners, or with respect to any type of workers." However, this does not imply that differences in treatment between categories of workers are unconstitutional.

In this regard, this Court has already stated:

    ‘Thus, as a thesis of principle we can maintain that as long as discrimination does not threaten human dignity or as long as the creation of categories that grant people different treatment is reasonable, legal equality is respected. Those who are in the same situation must receive equal treatment. As the rule is not absolute, it must be understood as a mandate to treat equally all those who are part of a specific category. The problem is thus translated into the requirement that categories must not be arbitrary and that the criteria for reforming part of them or being excluded from them must also not be arbitrary.’ Judgment No. 00138-93 of 15:55 hours on January 12, 1993."     The proposed mechanism is therefore contrary to the constitutional principle of equal pay, since two servants who perform the same functions and are within the same technically designed family and job categorization would be receiving dissimilar salaries without a reasonable constitutional basis. This, moreover, is contrary to the origin and motivation of the bill which, as stated, is to pursue pay equity. Indeed, in the specific case, if these are officials already assigned to a public employment regime, this means they have been subjected to a selection process based on proven suitability and to a constant process of performance evaluation, so it seems unreasonable that they would receive a lower salary than what corresponds to them according to the technical valuation of their salary column. This mechanism goes against the logic of salary payment that includes within itself the recognition of experience and training, and devalues these aspects so important for guaranteeing efficiency in public service.

Recall that the principle of equality is violated when a determination is devoid of an objective and reasonable justification. In the specific case, the design chosen for officials who have a composite salary lower than that determined for their salary category lacks such justification. Certainly, it has been said that it is possible for public authority to grant differentiated treatment to different situations (as one might think is the case here —officials with composite salary and officials with global salary—), but that distinction should be founded on an objective, reasonable, and proportionate basis. In the case under examination, it is not clear what that basis is that justifies the salary distinction. It is unreasonable that, despite the existence of a technical decision that qualifies a job position, the more skilled and experienced employee in the position, that is, the one who has demonstrated greater merit, is penalized salary-wise. This, of course, based on the fact that the Administration has already been implementing performance and results evaluation. But even if this were not the case, even if such evaluation has not been carried out, there is nothing to presume that current officials have less experience than new ones, nor are there elements for the legislator to assume as certain that the latter, by the mere fact of being new, are more skilled than the former.

Consequently, it would not be fair for the salary of current workers, whose amount is lower than the global salary assigned to their new class, to remain so indefinitely. This is because it could only be increased through annual increments. Firstly, because it precisely would not correct the main objective of the bill, which is to proscribe existing inequity (salary-work); but also because allowing new personnel hired for that same class or category, under the established global salary, to receive a higher amount than the composite salary, would generate a legal inequality with current servants, who may even have greater experience and career path, which would be unconstitutional due to infringement of the constitutional principle of equal pay and reasonableness. It is clear that it is discriminatory and unreasonable for essential values in remuneration such as experience, training, and demonstrated results (merit) to be devalued, rendered invisible, or not recognized. Similarly, it would be unreasonable if, for example, within the same organization, middle management earned more than upper management precisely because of the design in which the transitional provision in question is conceived. This would likewise constitute discrimination because it is not reasonable for them to earn the same, and even less so if two officials with different responsibility burdens earn less.

From the reading of the CGR's recommendations, it appears that various solutions had been considered to address this transition to that remuneration scheme. Voluntary transition was objected to because it would go against the purpose of the bill and the delicate situation of public finances. But the CGR did recommend the need for the measure to be actuarially justified, which it is not evident was fulfilled in the specific case. That is, based on the statement of purpose and the fiscal situation we find ourselves in, and in light of the constitutional principle of reasonableness, the technical justification of the decision is necessary. Therefore, the absence of a technical justification for the adopted decision is an additional element that results in the unconstitutionality of the proposed transitional measure.

Likewise, the lack of a specific deadline to equalize salaries is another element through which it is possible to argue that the provision harms the principle of reasonableness and, concomitantly, the principle of legal certainty. It is contrary to all logic that an official with experience and satisfactory performance evaluations, from a salary standpoint, is below new officials who lack that desired experience and training in the position. If there is a general salary reform that benefits a specific job position, it must benefit all of them, under penalty of disregarding precisely the principle of pay equity proposed as the germ of this parliamentary initiative.

Legal certainty translates into ensuring that legal situations are not maintained in a precarious state, to the detriment of public order and social peace. In application of the principle of legal certainty, the State is obliged to provide a regulatory framework so that people know what to expect in their dealings with the administration. In the specific case, the decision is devoid of any reasonableness and legal certainty, since it is unknown (there is uncertainty) for how long the official, who performs identical functions and with greater experience, could be receiving a lower salary than that of the new official who starts working under the global salary scheme. That is, it is a measure that is indeterminate in time.

Finally, it must be remembered the constitutional principle of reasonableness of norms: that they are endowed with legitimacy, suitability, necessity, and proportionality in the strict sense. In the specific case, the suitability and proportionality of the measure appear to be broken, since there could be other better-justified mechanisms for making the transition to this salary scheme that are duly supported by actuarial studies, as proposed by the CGR, and that do not disregard the constitutional principles of salary payment.

    c) Separate note of Judge Picado Brenes regarding Transitional Provisions XI and XII of the bill on salary rules (point 58 of the Por Tanto)     By majority, the Chamber has indicated that Transitional Provisions XI and XII of the Public Employment Framework Law bill referring to salary rules are not unconstitutional. On this point, I must clarify that the Chamber, to reach that conclusion, analyzed these transitional provisions solely in relation to the principles of equality and non-discrimination and the principle of financial and budgetary balance. For its part, regarding the principle of legality that was mentioned by the consultants, the Court stated that they did not make an adequate argument from the perspective of Constitutional Law, so no opinion was issued on the matter.

Transitional Provision XI and XII: from their reading, it is clear that they allow people to occupy the same positions under the same conditions but would be receiving a different salary. Certainly, in light of these transitional provisions, different salary regimes would coexist for people who, although they perform the same functions, are located in different salary categories, resulting in a salary differentiation between people who fall into three different scenarios but who perform the same functions.

    Even though the Chamber omits reference to other articles of the bill related to salary remuneration —located in Chapter VIII regarding Compensation Management which includes numerals 30 to 37— it is essential to consider some of them to better explain our position, such as numerals 30 a), 34, and 35:

Art. 30.a and 34: from reading both numerals, it is observed that there will be one single salary, which will always be equal for equal work under identical conditions of efficiency, position, working day, and conditions, regardless of the public institution for which the public servant works. This means then that it will be an equal salary for officials from different institutions, regardless, for example, of whether the lawyer worker serves as a Judge in the Judicial Branch, or as a Judge in an Administrative Tribunal, or as an advisor in a public institution, or in Parliament, or in a ministry. In turn, according to article 34 of the bill, a single salary column is created for grades in each of the labor families. Given that each grade of each family would house, under equal conditions, workers with functions as dissimilar as employees in health sciences, police functions (from the Ministry of Security as well as from the Judicial Investigation Agency), justice administrators, among others, it is more than evident that in light of the bill, in the proposed case of a lawyer, it will only matter that they are a legal professional and for that sole fact, they will be given equal treatment regardless of the place where that lawyer performs their duties. In practice, this means that the functions of a legal professional would be seen as an amalgam of tasks, which can be placed in one place or another, but without taking into account that they must be different depending on the institution in which they work. Clearly, these norms, by applying to the entire State Apparatus equally, without distinction, and under that action framework proposed by the bill in which all lawyers, for example, because they are lawyers, must earn the same, would constitute a violation of the principle of equal pay.

Art. 35: observe that this numeral provides that the salary regime will be unified, will be based on the global salary column, and will apply to the entire public sector, so all institutions will be included. Based on this unified salary regime, the right to equal pay is also violated, because none of the constituent elements of the salary are being considered to determine it, but rather it is simply equality for equality's sake. It is essential to remember that each employee is interested in investing work, dedication and personal effort, knowledge, and skills, if they receive adequate compensation, and, at the organizational level, the effectiveness with which remuneration is managed constitutes a significant difference in increasing or reducing competitiveness, whether organizational or that of the employees. The preparation of a remuneration plan requires care because it has a strong impact on people and on the organization's performance due to its effects and consequences; therefore, for that determination, it is essential that the different functions of the working person be considered and analyzed, and not to do so only because they are a lawyer, using this profession again as an example. Numeral 35 completely forgets that salary policy constitutes a particular and specific aspect of human talent management that is proper and inherent to the organization; therefore, it will cease to exist to become a centralized salary policy that requires equal salary for equal functions without addressing the specificity of each institution, much less its organizational culture, its work environment, shared values, turnover rates, among other aspects that are very specific to each institution and that are very important to consider when establishing a salary policy.

Last paragraph of Transitional Provision XI and Transitional Provision XII: by excluding all public servants from salary increases for cost of living, which would be an unlimited freeze in time and without justification, the right to a salary and the principle of dignity at work are violated.

It is denoted that what is established in the consulted bill, in these norms, goes beyond what was recommended by the OECD in this regard, which recommended migrating gradually towards a single salary scheme, but only for new officials, and within a period of 35 years. In any case, it is also necessary to remember that the OECD does not obligate the country to do anything; it simply issues recommendations that the country must analyze, assess, and determine whether it can apply them or not.

Thus, based on what has been said, from the content of Transitional Provisions XI and XII under study, it would result that three types of workers, under the same employment conditions, could be receiving different salaries. This without counting the freezing of salary increases, without time limit, which goes against human dignity.

I will now proceed to analyze a series of factors that should have been considered in order to then conclude on the constitutionality of Transitional Provisions XI and XII of the Public Employment Framework Law bill referring to salary rules.

    Aspects to be assessed in relation to salaries:

    a) On the right to a salary and its essential content: Article 57 of the Political Constitution establishes that "Every worker shall have the right to a minimum wage, fixed periodically, for a normal working day, which provides them with well-being and a dignified existence. The wage shall always be equal for equal work under identical conditions of efficiency (...)".

    In reiterated jurisprudence, this Court has expressed that the salary is a right of constitutional rank for the worker and an obligation for the employer. In this regard, in judgment No. 6074-95 at 13:21 hours on October 14, 1994, it was indicated in what is relevant:

"In this sense, it is important to point out that the salary, as remuneration due to the worker by virtue of an employment contract, for the work they have performed or must perform or for the services they have provided or must provide, is an obligation of the employer that, due to the utility it represents for the worker and by its very nature, must be paid at regular intervals. It cannot be understood that a regular interval is greater than three months considering the worker's need to meet the expenses generated by daily living. For its part, the Constitution, in its article 57, guarantees the salary of periodic fixing for a normal working day, as a fundamental right of every worker who must face the needs that, like every human being, they have and the subsistence duties of their family."     As can be observed, this economic compensation or retribution, established as a compliance obligation of the employer, which a worker receives for the work performed, seeks to guarantee their maintenance and that of their family; hence this right is protected in order to avoid abuses that undermine their human dignity. This link between the right to a salary and human dignity is found not only in the Political Constitution, but also in instruments of International Law. Thus, article 23.3 of the Universal Declaration of Human Rights establishes:

"3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection."     For its part, article 45.b of the Charter of the Organization of American States, which states that:

"Work is a right and a social duty; it confers dignity on the person who performs it and should be performed under conditions, including a system of fair wages, that ensure life, health, and a decent standard of living for the worker and his family, both during his working years and in old age, or when any circumstance deprives him of the possibility of working." For its part, article XIV of the American Declaration of the Rights and Duties of Man, provides:

"Article XIV: "Every person has the right to work, under proper conditions, and to follow his vocation freely, insofar as existing conditions of employment permit. Every person who works has the right to receive such remuneration as will, in proportion to his capacity and skill, assure him a standard of living suitable for himself and for his family."     From the foregoing, it can be concluded that human dignity is the guiding criterion in the development of the essential content of the right to a salary and its limits, since what is sought is for the worker to have an adequate standard of living, in accordance with their basic needs, and taking into account the activity they perform, the category of task, the degree of specialization, the quality of the work, among other aspects.

Regarding the applicable legal regime, national legislation established a special salary-setting system for servants covered by the statutory regime, which implies that the provisions on minimum wages contained in both the Labor Code (Código de Trabajo) and the Law on Minimum Wages (Ley de Salarios Mínimos) (No. 832 of November 4, 1949), are not applicable to all public servants and employees but neither could they be of general application to private sector employees, and for this reason, this Court has recognized that the public employment regime and its salary setting differ from what is established for the private sector, as they respond to different criteria. Thus, in judgment No. 2021-07445 at 9:15 hours on April 15, 2021, the Chamber indicated in what is relevant:

"a) On the public and private employment regime. On repeated occasions, this Court has pronounced on the statutory regime and its difference with the private sector in this sense:

"III.- On the statutory regime. Our original constituent members established in the 1949 Political Constitution that there must exist an administrative labor regime that would regulate relations between public servants and the State, in order to protect the former from arbitrary dismissals (employment stability) and to professionalize the public function (pursuit of efficiency in service and suitability of the official). The purpose of such endeavor was to ensure that the Public Administration had organizational factors that would allow it to satisfy citizens' right to the proper functioning of public services. To this end, the procedure for selecting and appointing a servant in the Public Administration must comply with the fundamental principles provided for in constitutional articles 191 and 192, with which suitable personnel are sought to occupy a public position, for the purpose of guaranteeing efficiency and effectiveness in the public function. The civil service regime is not erected, then, as a corporate privilege, but as a guarantee of institutional impartiality. To this end, the regulatory framework governing the public function must guarantee the selection of personnel based on criteria of merit and capacity, as well as a fair balance between the rights and responsibilities of public employees. Also, said legislation must provide instruments that facilitate the planning, organization, and most efficient use of personnel for the different administrations. Hence, the public employment labor relationship is subject to certain specificities and principles, such as those of merit and capacity in access, and also to certain rules of public law, such as the incompatibilities regime, which guarantee objectivity and impartiality in the provision of public service... Having stated the foregoing, it is clear and evident that, as of 1949, the legal system regulating the employment relationship between the public administration and its servants in our country is governed by public law, a principle reiterated in article 112 of the General Law of Public Administration (Ley General de la Administración Pública) (see, to this effect, judgment No. 1995-3125 at 16:24 hours on June 14, 1995). This regime necessarily implies —as indicated in the aforementioned precedent— that this relationship, by its very nature, is based on its own general principles, not only distinct from those of labor (private) law, but even often opposed to these... Even less so when such labor provisions could be imposed on the State in its capacity as employer, by bodies external to it in which unrelated, and sometimes contrary, interests to the aims of public administration converge. In accordance with what was indicated by the Chamber in judgment No. 2003-10615, the wording finally given to article 191, together with the process of profound decentralization that the Costa Rican State experienced as of 1949, led to it currently being valid for various statutory relationships to exist in the Administration, in view of the functional independence and administrative autonomy that the legal system ensures to several public institutions. However, 'what is not legitimate —as stated— is for the relations between each Administration-employer and its officials to be governed by rules agreed upon (contractual) between both parties, as validly occurs in private employment relations.' The Chamber has recognized that there are two large categories of employees who provide their services to the State: those who have the status of 'public official' (funcionario público), 'public servant' (servidor público), or 'public employee' (empleado público), and those who work for companies or economic services of the State, responsible for activities subject to common law. The former have been defined as those who, in the performance of their functions, carry out the public management of the State, to whom —consequently— the public employment regime is applicable, with all the principles and characteristics that derive from the provisions of numerals 191 and 192 of the Political Constitution; while the latter are those workers and employees who, although they work for the State, do not have the status of public officials or servants because they do not participate in the public management of the administration, as they are hired by public companies or economic services of the State responsible for activities subject to common law in accordance with the exercise of their private legal capacity, by virtue of which their employment regime is governed by the rules of common law, that is, ordinary labor legislation (see judgment No. 2006-14416).

Corollary to the foregoing, the public employment relationship that applies to public servants is a special relationship of public or statutory law, which due to such legal nature has limitations regarding the application of common labor law. Likewise, its regulation is subject to ordinals 11, 191, and 192 of the Political Constitution...". (Judgment No. 2018-231 at 11:00 hours on January 10, 2018). (Emphasis is not from the original).

Regarding salaries in the public sector, the Chamber specified in judgment No. 1998-3089:

"...The salary policy derived from service relations —between the Administration and its servants (art. 112 LGAP), as a uniform and universal state regime of public employment, is, of course, an integral part of government policy (SSC No. 2294 at 14:48 hours on August 19, 1992). The Plenary Court, in functions of Constitutional Court, when analyzing this matter, among others, stated:

" The goals (typical 'government matter') that the State sets in the remuneration of its servants constitutes an entire salary policy that has to do not only with the retribution of the individually considered person's effort, but also with its consequences on other aspects of the economy, since it can introduce distortion factors in the economic sphere due to social unrest. By 'directive' (directriz) must be understood the 'set of instruments or general rules for the execution of something', that is, guidelines or orientations that serve as a conceptual framework for decision-making. Thus, what relates to the setting of salaries as a general policy in the Public Sector cannot be said to be a principally, exclusively, or predominantly 'administrative' matter, but rather it is more of a 'government' matter, and in which the subjection of a decentralized entity to the Law is not only possible but also necessary and convenient." (Extraordinary Session No. 42 at 13:30 hours on June 14, 1994)." (Emphasis is not from the original).

That is, it is not only a matter of two different employment regimes, but additionally, the public function is compensated according to other principles that govern it. Now, independently of the fact that different statutes exist in the public administration, the validity of which this Court has endorsed (see the aforementioned judgment No. 2018-231 at 11:00 hours on January 10, 2018), concerning the Civil Service Statute (Estatuto de Servicio Civil), a point of interest in this action, given the remission made by impugned ordinal 8 regarding the Salary Regime (Régimen de Sueldos), the following is noted:

"Article 48.- The salaries of officials and employees protected by this law shall be governed according to the following rules:

• a)No employee or official shall earn a salary lower than the minimum corresponding to the performance of the position they occupy.
• b)The salaries of the servants of the Executive Branch shall be determined by a Salary Law (Ley de Salarios) that shall set the minimum, intermediate, and maximum sums corresponding to each category of employment.
• c)For the setting of salaries, fiscal conditions, the modalities of each class of work, the cost of living in the different regions, the salaries prevailing in private companies for analogous positions, and the other factors stipulated in the Labor Code shall be taken into account.
• d)Within the minimum and maximum figures referred to in subsection b), the respective Heads may agree on salary increases, considering factors such as efficiency, seniority, conduct, skills, and other qualities resulting from the periodic evaluation of their servants, all subject to what the Salary Law provides to that effect. The Heads of the various sections of administrative personnel must obtain, prior to such increases, the approval of the hierarchical supervisor; increases that shall be subject to the provisions of subsection e) of this same article; and e) The National Treasury is forbidden to issue payment orders in favor of employees or officials for sums different from the minima set in the Budget or Salary Law; and in the case of the preceding subsection, the increase shall only become effective when it is included in the Ordinary Budget Law, or in an extraordinary budget. The General Directorate of Civil Service (Dirección General de Servicio Civil) shall inform the National Treasury of the salary increases of public servants." (Emphasis is not from the original).

That is, according to that provision, the minimum, medium, and maximum salaries of public officials regulated by the Civil Service Statute are set according to the Salary Law of the Public Administration, for whose effects fiscal conditions, the modalities of each class of work, the cost of living in the different regions, the salaries prevailing in private companies for analogous positions, and the other factors stipulated in the Labor Code must be taken into account. According to article 1 of the Salary Law of the Public Administration, such normative body is issued with the purpose of guaranteeing the efficiency of the Public Administration and constitutes the official retribution system for all classes of positions classified in the Descriptive Manual of Positions (Manual Descriptivo de Puestos), as provided in Chapter X of the Civil Service Statute. For these purposes, numeral 2 of said law indicates that the Descriptive Manual of Positions shall be understood as all the specifications indicating the duties and attributions of the Civil Service classes and the minimum requirements demanded of those who are to perform them. Consequently, these are salaries set by a complex organizational structure of the public sector, which does not necessarily correspond to the characteristics of that existing in the private sector where the parties enjoy freedom of contract.

On the other hand, the article regulates salary scales with a base category of annual increase that will subsequently be modified according to other items, if applicable, such as location allowance (zonaje), exclusive dedication (dedicación exclusiva), annual bonus (anualidad), availability allowance (disponibilidad), and other incentives recently modified by the Public Finance Strengthening Law (Ley de Fortalecimiento de las Finanzas Públicas). Thus, the public employment regime and its determination differ from that established for the private sector, as this Tribunal has recognized:

"XI.- In the opinion of this Chamber, then, Articles 191 and 192 of the Political Constitution (Constitución Política) support the existence, in principle, of an employment regime governed by Public Law (Derecho Público) within the public sector, as has been made clear from the debate in the National Constituent Assembly (Asamblea Nacional Constituyente) and is incipiently reflected in the General Law of Public Administration (Ley General de la Administración Pública). This public employment regime necessarily implies consequences derived from the nature of that relationship, with its own general principles, now not only distinct from those of labor (private) law, but often opposed to them; obviously, the declaration contained in this ruling covers the employment relationship existing between the public administration (or better, administrations) and its servants, but in those sectors where there is a (rational) regulation that refers to a different private employment regime, the solution must be different ..." Emphasis added, see ruling No. 2002-6513 of 14:57 hours on July 3, 2002.

Recently, in the aforementioned ruling No. 2020-13316, the Majority of this Chamber indicated:

"…And neither, as will be said later, is there a mandatory prescription between the salary of public officials and the salary of the private sector, since, in the former, it is agreed upon by the Public Sector Salary Negotiation Commission (Comisión de Negociación de Salarios del Sector Público) through Public Law rules; and, the National Minimum Wage Council (Consejo Nacional de Salarios Mínimos), differently, with different legal principles. Even the base salary used in the public sector is not necessarily equal to the minimum wage, although they could be so or even exceed it; this does not imply a binding linkage on the public budget with what is decided at the private level…". (Emphasis added).

Pursuant to the foregoing and as indicated by the Attorney General's Office (Procuraduría General de la República) in opinion No. C-064-1992, the salary in private enterprise is consistent with its economic prosperity while respecting the minimum wage; on the other hand, in the Public Administration (Administración Pública), it relates to the budget, which is a limit for the actions of the powers and is subject to the principle of legality (principio de legalidad)." From the foregoing, it is concluded that, in matters of employment and salary, the public and private sectors each have their own legal regime: in the private sector, a contractual relationship prevails, while in the public sector, the statutory relationship (relación estatutaria) dominates in accordance with the provisions of Articles 191 and 192 of the Political Constitution. In view of the particular characteristics of the service relationship between the administration and its servants, the salary conditions of public employees are set in accordance with the laws and principles governing public employment, distinct from the criteria prevailing in a merely private law relationship, as indicated.

Based on the above, the jurisprudence of the Chamber has defined the essential content of the right to salary applicable to the public sector as follows:

• 1)Minimum wage (Salario mínimo): "This provision, as this Tribunal has indicated, finds its basis precisely in the Principle of the Social State of Law (Principio del Estado Social de Derecho), which is embodied in our Political Constitution, according to which the Constituent Assembly provided for setting a minimum wage floor that protects the worker and guarantees not only the stimulation of production but also the adequate distribution of wealth (numeral 50), all of the foregoing based on the Christian Principle of Social Justice, contemplated in Article 74 of the same Constitution" (see ruling No. 2021-7445 of 9:15 hours on April 15, 2021).
• 2)Periodic remuneration (Remuneración periódica): "This Constitutional Tribunal (Tribunal Constitucional) has indicated that if work is conceived as a right of the individual, the exercise of which benefits society, and insofar as it guarantees the official periodic remuneration, it would not be acceptable for the State to receive a service without paying the corresponding salary or for it to be paid belatedly" (see ruling No. 2006-008385 of 17:34 hours on June 13, 2006).
• 3)Does not include salary supplements (pluses): "(…) disputes regarding the payment of salary supplements do not affect the essential content of the right to salary, from a constitutional perspective (Article 57 of the Political Constitution), and are therefore conflicts that must be resolved in the ordinary jurisdiction (sede de legalidad)" (see ruling No. 2017-0000170 of 9:05 hours on January 11, 2017).
• 4)Equality (Igualdad): "Article 33 of the Political Constitution states that 'Every person is equal before the law and no discrimination contrary to human dignity shall be practiced.' Likewise, Article 57 states, in what is relevant, that: '...The salary shall always be equal for equal work under identical conditions of efficiency.' … Now, as this Chamber has repeatedly held, the principle of equality does not have an absolute character, for it does not properly grant a right to be equated to any individual without distinction of circumstances, but rather to demand that the law not make differences between two or more persons who are in the same legal situation or identical conditions, and equal treatment cannot be claimed when the circumstances or conditions are unequal" (see ruling No. 2005-03496 of 14:49 hours on March 30, 2005).

On the other hand, the provisions of Article 178 of the Labor Code (Código de Trabajo) must be taken into account:

"The minimum wages (salarios mínimos) set in accordance with the law shall be in force from the effective date of the respective Decree for all workers, with the exception of those who serve the State, its Institutions, and Municipal Corporations and whose remuneration is specifically determined in the corresponding public budget. However, the former and the latter shall annually, when preparing their respective ordinary budgets, make the necessary rectifications so that none of their workers earns a salary lower than the minimum to which they are entitled" (emphasis not in the original).

It must be clarified that the preceding article applies to the system provided by the Law for setting minimum wages, and not in relation to the universally recognized principle of the right to a minimum wage expressly adopted in favor of public servants in the final part of the aforementioned Article 178. Thus, in the public sector, the definition of minimum wages is mainly regulated in the Civil Service Statute (Estatuto de Servicio Civil) and the Public Administration Salary Law (Ley de Salarios de la Administración Pública), without prejudice to other related provisions in other regulatory bodies.

Thus, Article 48 of the Civil Service Statute establishes:

"Article 48.- The salaries of the officials and employees protected by this law shall be governed according to the following rules:

• a)No employee or official shall earn a salary lower than the minimum corresponding to the performance of the position they hold.
• b)The salaries of the servants of the Executive Branch (Poder Ejecutivo) shall be determined by a Salary Law (Ley de Salarios) that shall set the minimum, intermediate, and maximum sums corresponding to each category of employment.
• c)For the setting of salaries, fiscal conditions, the modalities of each type of work, the cost of living in the different regions, the salaries prevailing in private enterprises for analogous positions, and the other factors stipulated in the Labor Code shall be taken into account.
• d)Within the minimum and maximum figures referred to in subsection b), the respective Heads may agree to salary increases, taking into account factors such as efficiency, seniority (antigüedad), conduct, aptitudes, and other qualities resulting from the periodic evaluation (calificación periódica) of their servants, all of this subject to what the Salary Law provides to that effect. The Heads of the various sections of administrative personnel must obtain, prior to such increases, the approval of the hierarchical supervisor; increases that shall be subject to the provisions of subsection e) of this same article; and e) The National Treasury (Tesorería Nacional) is prohibited from issuing disbursements in favor of employees or officials for sums different from the minimums set in the Budget or Salary Law; and in the case of the preceding subsection, the increase shall not become effective until it is included in the Ordinary Budget Law, or in an extraordinary budget. The General Directorate of Civil Service (Dirección General de Servicio Civil) shall inform the National Treasury of the salary increases of public servants." For its part, Article 8 of the Public Administration Salary Law provides:

"ARTICLE 8.- It shall be understood that every salary covers the monthly payment for the respective working day. If it is agreed that the public servant work less time than indicated in the official schedule, they shall earn the salary proportional to the working day that in such case the Minister has authorized. No regular servant shall earn a salary lower than the minimum of the respective category." As indicated, minimum wages seek to ensure that public servants and their families lead a dignified life; however, this salary base does not guarantee, in itself, that the established levels truly meet that condition. Faced with this situation, the Law provides for salary increases in accordance with the decree on minimum wages that the Executive Branch issues every six months and the recognition of salary supplements as fulfillment of collective bargaining agreements (convenios colectivos de trabajo), which seek to adjust the salary to the cost of living. In this regard, in ruling No. 2009-014280 of 15:11 hours on September 9, 2009, this Tribunal stated:

"This Tribunal understands indeed -in adherence to the cited jurisprudence- that an increase scheme that contemplates within its conditions the cost-of-living adjustment (reajuste por costo de vida) does nothing but balance workers' salaries precisely with respect to what their capacity to obtain sustenance for themselves and their families means." Thus, if work is conceived as a right of the individual whose exercise benefits society, and the State as an employer in a statutory relationship has the obligation to periodically pay the salary, which is a constitutionally protected right (see ruling No. 2009-008062 of 21:35 hours on May 13, 2009), it would not be possible to accept that this salary be set in the terms intended by the draft Law under study. The same Chamber has indicated that there must be access to a salary determined through a national policy that must ensure a dignified life and family life; remuneration that must be set through the mechanisms established in international regulations (ILO Conventions Nos. 26, 95, and 131, among other instruments), as well as by the second paragraph of Article 57 of the Constitution, with the purpose of avoiding ruinous and indecorous salaries for individuals (see ruling No. 2019-016791). In this vein, reference must first be made to Convention No. 131 of the International Labour Organization (Organización Internacional del Trabajo), ratified by Costa Rica, from which it is established that although the minimum wage was implemented as a salary policy instrument whose function is to avoid the phenomenon of poverty, it must at the same time guarantee the satisfaction of the needs of workers and their families, and offer social protection, which may come to be considered as permissible minimums, determined through technical studies, with the participation of social actors (see ruling No. 2020-013316). It is equally important to highlight what is stated in Article 3 of that convention, according to which, to determine the level of minimum wages, the needs of workers and their families must be taken into account, bearing in mind the general level of wages in the country, the cost of living, social security benefits, and the relative standard of living of other social groups; as well as economic factors, including the requirements of economic development, levels of productivity, and the desirability of attaining and maintaining a high level of employment.

• b)On salary compensation management (gestión de compensación salarial): Note that Article 30 of the draft law establishes that the salaries of public servants shall be governed according to the postulates established therein: equal salary for equal work; the President of the Republic shall have the highest salary; salary setting shall be done through a remuneration methodology; each job family (familia de puestos) shall have a global salary column (columna de salario global) indicating the position and the remuneration; adjustments or modifications to the salary column shall be made based on technical criteria; and salaries shall be adjusted according to the rules of the Public Administration Salary Law.

Firstly, it must be recalled that this Tribunal has indicated that State salaries must respond to technical criteria and therefore could not be lower than those established by the Executive Decree on minimum wages for other workers (see ruling No. 2019-016791); notwithstanding the foregoing, nowhere in the articles of the draft Law under study is it established that the setting of the "new" salary of public servants will be based on criteria or on technical studies that justify it, nor is mention even made of this in Article 5, which defines the global salary as the remuneration or single amount that a public servant shall receive for the provision of their services, in accordance with the postulates established by the draft. Notwithstanding the foregoing, note that according to Article 30, adjustments or modifications to the salary column shall be made based on technical criteria, which seems nonsensical because such studies should actually exist from the beginning of the salary setting, not only for adjustments or modifications. It cannot be lost sight of, as this Tribunal has also stated, that the setting of a calculation method to establish the salary, even if it is the minimum, is very important, as it has repercussions on the worker who would receive the salary and on the employer, regarding compliance with the established amounts, and this can constitute a level of social pressure that would also have an effect on the population's poverty indices; therefore, it is not an irrelevant issue, the Chamber further stating that, in its practical sense, it refers to a salary policy problem (of public and private employers), which must be generally observed by all respective employers, but, clearly, there is a problem of sufficiency that cannot be associated with each worker, considered individually or in relation to their personal or family needs, but rather one must aspire to a salary average (media salarial) that the representatives of the State, employers, and workers must estimate with fair remuneration for work in the national context, with the help of economic and social mechanisms, to provide workers with a dignified existence and family life, it having to be reiterated, as occurs with many economic, social, and cultural rights, that they cannot be defined in terms of concrete solutions, nor of an individual, nor their specific needs, but of the collectivity, integrally established by technical studies based on a fair mean or average (see in this regard rulings No. 2019-016791 and 2020-013316, among others).

In that sense, upon observing what the global salary means and what the content of Articles 30 to 37 of the Public Employment Framework Law (Ley Marco de Empleo Público) draft implies, it is obvious that a methodological change is being made regarding the adjustment in salary setting, which would require rigorous technical studies determined by specialized bodies, which are lacking in the proposal. From this perspective, the lack of technical support for this "global salary" turns out to be a highly relevant issue, as it cannot be forgotten that it will be the Executive Branch that will have the competence to issue guidelines regarding the remuneration of public servants.

• c)Global salary as static remuneration (remuneración estática): From what emerges from the draft, it is more than evident that this "global salary" being created in the Public Employment Framework Law draft will end up being a static salary (salario estático), which probably at the beginning of its application could be competitive for some positions, but which, over the years and taking into account the country's economic and financial aspects, will become a static salary, without any possibility of increases under any concept, despite the increase in the country's inflation and cost of living. Note that Article 5 of the draft defines the global salary as the remuneration or single amount that a public servant shall receive for the provision of their services, in accordance with the postulates established in this law.
• d)Participation of representative social sectors of workers: Another aspect that is missed in the draft in relation to the salary compensation management protected in Articles 30 to 37 is that related to the participation of representatives of public sector workers. Note that, applying the provisions of ILO Convention 131—which, although it refers to the establishment of minimum wages, can well serve as a general framework for this analysis—Article 4.2 establishes that "for the establishment, application, and modification of such mechanisms, full consultation shall take place with representative organizations of employers and workers concerned, and in the absence thereof, it seeks to allow consultation with representatives of employers and workers concerned." Consequently, if the State, to regulate the minimum wage, must ensure the establishment of a system of full consultation as a mechanism enabling dialogue between the productive sectors and workers of the country, it would have been pertinent to have done so in the case of the global salary that is intended to be established as a "novel topic" in the country, especially when what has been said is taken into account: that at some point it will become a minimum wage, that it is a salary that will be static - a static minimum wage (salario mínimo estático) - and that it is not based on technical criteria. It should be taken into account that the setting of the minimum wage, as conceived in ILO Convention No. 131, is the result of conversations, not impositions—at least as it has been developed in the country—since Article 4.3(a) of the said Convention opens the possibility for the social partners to be on an equal footing, whereby it is clear that the environment that the regulations seek is one that generates conditions of balance, so necessary in this type of negotiation (see ruling No. 2020-013316), but which are missing in the draft under study.
• e)Collective bargaining (negociación colectiva) in salary matters: Article 43 of the draft Law under study cannot be overlooked. As I pointed out in the section analyzing that provision, from my perspective, the consulted draft allows collective bargaining in salary matters but subject to a series of rules. It is important to exercise the right to agree on salary improvements, at some point in the medium or long term, because failing to do so, public servants' salaries will cease to be competitive and this will cause serious departures of officials, not only from the State but, worse still, from the country, with the serious consequences this implies. An example of this can perfectly be seen in the case of health science professionals, who are highly valued abroad and with whom this Public Employment Framework draft completely forgets the existence of specific regulations such as the Law on Incentives for Medical Science Professionals (Ley de Incentivos a los Profesionales en Ciencias Médicas), among others. It should be recalled that this Chamber has indicated that the salary is the remuneration due to the worker by virtue of an employment contract, for the work they have performed or must perform or for the services they have rendered or must render (ruling No. 6074-95), whereby that salary must be commensurate with the work performed, but must also allow the worker to have a dignified life (Article 57 of the Constitution) and be able to meet the needs they have as a human being and the duties of subsistence for their family (see ruling No. 6074-95). Evidently, the possibility of agreeing on salary improvements must exist, since the salary provided for in the draft could be static, which will not allow it to evolve; hence, the constitutional objective of promoting a dignified life would not be achieved.
• f)On the principle of financial or budgetary equilibrium (principio de equilibrio financiero o presupuestario): The Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional) imposes on this Constitutional Tribunal the role of protector of human rights and fundamental rights, and therefore it must pay special attention not to lean toward protecting a principle of legal rank and a purely economic-political nature, above social rights that are within its scope of protection.

It is relevant to cite the document prepared by the Commissioner for Human Rights of the Council of Europe in 2013, visible at www.commissioner.coe.int, according to which the UN Human Rights Council affirmed during its extraordinary period of sessions in 2009 that "the global economic and financial crises do not diminish the responsibility of national authorities and the international community in the realization of human rights." For its part, it mentions that in 2009, the European Committee of Social Rights declared that "the economic crisis should not have the consequence of reducing the protection of the rights recognized by the [European Social] Charter. Therefore, governments are obliged to take all necessary measures to ensure that the rights of the Charter are effectively guaranteed in those periods when beneficiaries need greater protection." It likewise points out that in 2012, "the Human Rights Council welcomed a new set of guiding principles on foreign debt and human rights, which stipulates that governments have the obligation to guarantee the primacy of human rights when making decisions on borrowing and lending." Consequently, that Commissioner concludes that "it is primarily States that must prove that the proposed austerity measures are in line with their human rights obligations." Observe, in turn, that according to the account in that document, the recent jurisprudence of Latvia, Portugal, and Lithuania "illustrates the normative superiority of constitutionally enshrined human rights principles over any unjustified budgetary measure. In Latvia, the Constitutional Court confirmed that the provisions on international loans stipulated in agreements with the IMF/ECB/EC could not serve as an argument to restrict constitutionally guaranteed human rights obligations, consisting of ensuring adequate social security. Both the social consequences of the pension cuts and other less restrictive alternatives should have been taken into account when concluding such agreements. In Portugal, the Constitutional Court declared unconstitutional the reduced budgetary allocations for social rights and ordered their restitution. The Constitutional Court of Lithuania, for its part, has set strict and specific criteria that must be taken into account when assessing, in the course of an economic crisis, in which cases social rights may be limited." All of the foregoing implies that the sound management of public finances referred to by the Chamber in ruling No. 2018-019511, and the balance between entitlements (derechos prestacionales) and state economic solvency, must not be a pretext to reduce the fundamental and human rights of a population; rather, on the contrary, they should be the driving force to oblige those responsible to demand accountability for financial debacles. A Constitutional Tribunal or a Fundamental Rights Tribunal, such as the Constitutional Chamber (Sala Constitucional), must be an interpreter of the Constitution and, as such, must make fundamental and human rights, which it is obliged to safeguard, prevail over such decisions, beyond any budgetary or financial interest of the State. Therefore, if there is a crisis because there is an inadequate application of the principle of budgetary equilibrium, which is of legal and economic rank—not of constitutional rank because Article 176 of the Political Constitution does not state that it is—measures must be adopted to determine who is responsible and to dictate the necessary measures to overcome the said problem.

Regarding Transitory Provisions (Transitorios) XI and XII relating to salary rules:

Transitory Provision XI of the Public Employment Framework Law draft: its application will imply discriminatory and unequal situations because, while the intended adjustment between old employees and new employees is achieved, or between employees who earn more and employees who earn less, a totally contradictory imbalance will occur with the very draft Law that intends "equal salary for equal work." This situation of imbalance, which could take years to correct—because no technical studies are observed indicating how long it will take—, will generate violations of fundamental rights since it will be impossible to avoid—and the draft does not provide for—situations in which a person who works as much as another earns less, or what is the same, "for equal work, unequal salary." This makes the transitory provision unconstitutional.

On the other hand, Transitory Provision XII indicates that public servants will be excluded from salary increases as long as the conditions indicated in subsection d) of Article 11 of Law 9635 on the Strengthening of Public Finances (Ley de Fortalecimiento de las Finanzas Públicas) persist. If it is assumed that the objective of that Law was to improve public finances, it is also true that in a country like Costa Rica, with the levels of financial debacle seen in recent years, linked to serious problems of maladministration of public funds, corruption, among others, it can be concluded that the objective of that Law will be difficult to achieve and, therefore, public officials will not have the right to any cost-of-living increase, whereby, as already stated, the global salary will end up being a static global minimum wage (salario mínimo estático global), causing consequent damages to public sector workers who will see their incomes considerably reduced in the face of the country's high cost of living, inflation, among other economic factors that, without a doubt, will occur in the country.

• d)Different reasons of Judge Rueda Leal, regarding the consulted Transitory Provisions XI and XII.

There are two reasons that lead me to endorse the constitutionality of Transitory Provision XI. The first is that there is no pure equality among all subjects that would be the object—directly or indirectly—of such norms. Indeed, the simple fact of starting the employment relationship at different times—during the validity of different legal norms—can entail a different legal treatment. The limitations in this matter lie in respect for acquired rights (derechos adquiridos) and consolidated legal situations (situaciones jurídicas consolidadas), limitations that—in my opinion and as I stated, for example, in ruling No. 2018-19030 of 17:15 hours on November 14, 2018—are also not absolute. The second derives from the underlying balancing. In my opinion, it is a transitory norm—temporary, by definition—that, contrary to what is alleged, rather seeks salary equality for all public servants, given that its purpose is precisely the salary homogenization (homogenización salarial) of persons who began their employment relationship at different times and under different regulations. This gradual transition is necessary in light of the principle of budgetary equilibrium (principio del equilibrio presupuestario).

With respect to transitory provision XII, I observe that it is a provision on the potential exclusion of salary increases, “…provided the conditions indicated in subsection d) of article 11 of Ley 9635, Fortalecimiento de las Finanzas Públicas, of 3 December 2018, are maintained.” Thus, the norm, as such, refers to an interpretation of legality that is beyond the jurisdiction of this Chamber in this type of proceeding.

XIX.- On the violation of due process (single dismissal proceeding).- (drafted by Judge Picado Brenes) 1) Aspects consulted The petitioners indicate that both the dismissal procedure regulated in article 21 of the bill under study, and the appeals phase against dismissal provided in the following article 22, violate a series of constitutional norms and principles relating to due process, and indicate that the content of these articles is related to article 49 subsection b) -of the same bill- which refers to a series of reforms proposed in relation to the Estatuto de Servicio Civil. They argue that, in the reform intended to be made to article 43 of the Estatuto de Servicio Civil, the aim is to incorporate this dismissal procedure; however, they claim that there are serious differences, inconsistencies and contradictions between both texts. The petitioners consider these contradictions and antinomies generated in the same text to be in violation of the principles of legal certainty and legality and add that there is no clarity regarding deadlines, receipt of evidence, right to defense, among others, mentioning that this was highlighted by the Tribunal de Servicio Civil. They consider that the dismissal procedure is key in the development of public employment relations in public institutions; therefore, they believe that clarity in the process is fundamental for its application since, without a detailed procedure that respects constitutional guarantees, there would be potential nullity and inapplicability, in addition to placing officials in a state of defenselessness and creating an extremely detrimental situation for the administration, which would be unable to proceed with the dismissal of an official, even if grounds exist, due to the lack of a process that respects legality and due process. The petitioners insist that due process is a constitutional guarantee that must be respected in any procedure, both administrative and judicial, allowing compliance with the right of defense and the corresponding procedural guarantees, and recall that among the essential components of due process are the right to be heard, the principle of evidence and legality, the right to appeal, among others, which, the petitioners believe, are being violated in the text of the bill. They allege that both the Corte Suprema de Justicia and the Contraloría General de la República highlighted the flaws and shortcomings contained in the bill regarding the procedure for dismissing officials.

Specifically, the deputies claim that some of the inconsistencies and contradictions found regarding the dismissal procedure are the following:

Automatic disqualification sanction: they indicate that subsection a) of article 4 stipulates the principle of the State as a Single Employer and points out that, by virtue of this principle, sanctions resulting in dismissal without employer responsibility for the official in one institution, in accordance with the current legal system, will prevent any other entity or body that is part of the State from hiring them for a period ranging from six months to two years; however, they argue that the manner in which the established impediment period will be determined is not indicated, nor is the competent body to establish said period. In this regard, it should be noted that this aspect has already been examined in this judgment in a previous recital (recital XVII), therefore, reference is made to what was indicated therein.

Grounds for immediate dismissal (two performance evaluations below 70%): they indicate that the first paragraph of article 21 establishes as grounds for immediate dismissal the fact of obtaining two performance evaluations below 70%, once said evaluations become final. They state that, additionally, the second and third paragraphs establish the obligation for institutions to apply a remedial plan after the first evaluation. The petitioners indicate that the first three paragraphs of this article 21 do not establish procedural rules, but rather grounds for dismissal, so in reality -in their view- they should be included in the previous article, referring to the termination of public employment. They warn that the third paragraph of this article 21 repeats the same provision established in the second paragraph, generating confusion, ambiguity, and possible interpretations, which leads to a lack of clarity regarding the norm. Furthermore, they point out that although both paragraphs refer to the drafting of remedial plans resulting from the performance evaluation, the second paragraph establishes that this plan must be agreed upon with the public servant, while the third does not establish that condition. Likewise, they consider that there is a contradiction between whether the remedial plan should be generated with the advice of human resources or not. In this regard, in the opinion of this Court, it should be indicated that, indeed, there appears to be confusion, insofar as the second and third paragraphs appear to be replicated, with some differences. However, although this may be a case of poor legislative drafting technique, the fact of the matter is that, for this Court, this does not imply its unconstitutionality and, therefore, the argument raised by the petitioners regarding this point is rejected.

15-day or 10-day period: They indicate that subsections b) and c) of this article 21 grant a period of 15 days for the accused servant to oppose the notification of charges; however, they claim that, on the contrary, subsection g) of this same article indicates that said period is 10 days, which they consider to be an evident contradiction in the deadlines indicated for the notification of charges that entails a violation of the principle of legal certainty. In this regard, for the Chamber, although a possible contradiction as well as possible poor legislative drafting technique is observed, this does not mean that the consulted text is unconstitutional, and the arguments raised on this specific point must be rejected.

Appeals: They argue that subsection i) of the same article 21 establishes the appeals for revocation and subsidiary appeal against the resolution ordering an oral reprimand, written warning, or suspension without pay, and warn about the existence, in the legislative record, of a note signed by the Clerk of the Tribunal de Servicio Civil, which indicates: "In addition to the evident contradiction between what is proposed in subsection i of article 22 of the bill and in the reform proposed to subsection i) of article 43 of the Estatuto de Servicio Civil, which establish the appeal for resolutions ordering an oral reprimand, written warning, and suspension without pay, and what is proposed in the reform to article 75 of the Estatuto de Servicio Civil, which provides in the second paragraph that the resolution ordering an oral reprimand, written warning, or suspension without pay for up to one month will only have a revocation appeal." In this regard, for this Court, what has been consulted is not clear, nor is it observed that the consultation on this point is properly substantiated or developed sufficiently to understand the scope of the question intended to be raised. In that sense, it must be taken into account that the bill does not contain a reform to article 75 of the Estatuto de Servicio Civil; nor does it include a reform to article 43 of that normative body, but rather, on the contrary, what is observed from a complete reading of the bill under study is its repeal. Therefore, it is not appropriate to examine this consulted aspect.

Absence of a body that will hear the appeal: The petitioners state that the second paragraph of subsection i) of article 21 under study limits the power of the Tribunal de Servicio Civil to hear appeals filed by public servants working in an institution covered by the Estatuto de Servicio Civil (Law No. 1581); however, it is argued that this subsection does not indicate which body will hear appeals filed by public servants working in institutions not covered by said law, believing that, once again, the principle of legal certainty is violated. In this regard, this Court must state that the issue raised, regarding the lack of clarity of the norm, is not a matter of constitutionality. It will be for the legal operator to determine, in each case, which norm is applicable to the specific situation being analyzed at that time. Consequently, this allegation must be dismissed.

Contradictory subsections: The consulting deputies claim that article 21 of the bill under study grants jurisdiction to resolve dismissals at the first instance to institutional heads and indicates that the process of investigation and resolution of dismissals is carried out internally within each institution. On the other hand, they add that article 22 grants the Tribunal de Servicio Civil jurisdiction at the second instance over appeals against dismissal resolutions; however, they claim that a “subsection is established that contradicts all of the above and states that the Tribunal hears the first instance of dismissals, and that the investigation is carried out by the Dirección General de Servicio Civil, likewise, investigation by the Dirección General de Servicio Civil is excepted when the dismissal proceedings are against officials of the Ministerio de Educación Pública (teachers or administrative staff), when said officials have incurred grounds under article 66, subsection a), of the Código de la Niñez y la Adolescencia, Law No. 7739, indicating that in these cases the investigation will be carried out internally within the Ministerio de Educación Pública, according to the provisions of Title II, Chapter IV, articles 59 and following of the Estatuto de Servicio Civil. This provision makes no sense if all previous provisions grant the Ministers and Institutional Heads the power to investigate and resolve dismissals at the first instance and grant the Tribunal jurisdiction to resolve at the second instance.” In this regard, it is evident that what is consulted is not clear, nor is the grievance properly substantiated or developed. Likewise, from the consultation brief, the “subsection that contradicts all of the above” is not identified. A general reading of the bill does not allow locating a norm like the one described by the petitioners; and, consequently, since an adequate substantiation of the consultation on this point does not exist, the Chamber cannot rule on this matter.

Tribunales Administrativos del Régimen de Pensiones y Jubilaciones del Magisterio Nacional y del Servicio Civil: The petitioners consider that the study of the competencies and bodies responsible for resolving matters related to the dismissal procedure should be taken into consideration, in relation to the provisions of the Ley de Creación de los Tribunales Administrativos del Régimen de Pensiones y Jubilaciones del Magisterio Nacional y del Servicio Civil (Law No. 8777 of 7 October 2009), by which the Tribunal Administrativo del Servicio Civil is created and granted functions to hear appeals in matters of dismissals of workers subject to the employment regime of the Estatuto de Servicio Civil, as well as other matters that by law or regulation must be heard by this Tribunal. The petitioners argue that, despite the foregoing, in the bill under study, no integration was made with that Law, nor were competencies granted or modified to said tribunal, and this omission could generate a conflict of competencies, or else, that Tribunal may have no assigned functions, promoting duplicity of tasks or, in the worst case, a body with personnel and resources without functions. In this regard, it is observed that the bill under consultation, in addition to the provisions of its articles 21 and 22, provides for a series of modifications and reforms to the Estatuto de Servicio Civil and to the cited Ley de Creación de los Tribunales Administrativos del Régimen de Pensiones y Jubilaciones del Magisterio Nacional y del Servicio Civil, to the point of substantially altering the existing dismissal procedure to date for officials covered by said statute. However, despite the foregoing, in relation to the consultation raised on this point, the Chamber observes that there is no argumentation from the petitioners, duly substantiated, that relates such changes to problems of constitutionality; consequently, in the absence of substantiation of this aspect, no ruling is made on the matter.

Different deadlines and appeals: It is argued that there are deadlines and appeals that are processed differently between what is indicated in the bill and Law No. 8777 (Ley de Creación de los Tribunales Administrativos del Régimen de Pensiones y Jubilaciones del Magisterio Nacional y del Servicio Civil). In this regard, it is observed that this consulted point is not developed or properly substantiated, so this Chamber cannot examine the question.

Confusion in areas of jurisdiction: It is indicated that the bill creates absolute confusion regarding the dismissal procedure and the areas of jurisdiction in each of the instances; furthermore, it is pointed out that it is evident that the Tribunal de Servicio Civil cannot be, on the one hand, the competent body to hear dismissals at the first instance and, on the other hand, the one responsible for analyzing these dismissals at the second instance. On this matter, what has been consulted is not developed or properly substantiated, therefore the Chamber cannot examine this aspect.

Confusion between concepts: It is indicated that due process is a constitutional guarantee that must be respected in any procedure, whether administrative or judicial, and in the petitioners' opinion, the procedure contained in the bill (articles 21 and 22) violates what has been developed by the Constitutional Chamber regarding due process: firstly, due to a violation of the principle of legality regarding the regulatory gaps and antinomies generated by the existing contradictions, and, on the other hand, by not contemplating fundamental rights. They point out in the Consultation that this was highlighted by the Corte Suprema de Justicia through official communication No. SP-62-2021 of 3 June 2021, which alerted the legislator to the serious deficiencies of articles 21 and 22 of the bill: confusion between the concepts of caducity (caducidad) and prescription (prescripción), impairment of orality in the process, preliminary exceptions, and others. In this regard, it should be noted that this consulted topic is not developed or properly substantiated in the consultation brief, as the petitioners limit themselves to transcribing an excerpt from what was indicated in official communication No. SP-62-2021, but do not adequately develop their reasoning argumentatively to justify what they intend to consult. Thus, this Chamber cannot examine this point either.

Weaknesses: The petitioners indicate that the Constitutional Chamber, in ruling number 1739-92, established that there is a general right to legality and justice derived from article 41 of the Political Constitution and state that both rights constitute sine qua non conditions without which due process cannot be developed, so much so that when these two rights are infringed, they imply in themselves a violation of due process. They argue that, in the case under study, the procedure developed in the bill (articles 21 and 22) violates what the Constitutional Chamber has stated regarding due process, firstly, due to the violation of the principle of legality regarding the regulatory gaps and antinomies generated by the contradictions previously indicated, and secondly, by not contemplating fundamental rights in this procedure. The petitioners point out that both the Corte Suprema de Justicia and the Contraloría General de la República highlighted weaknesses regarding: 1) indeterminacy and/or confusion between the concepts of caducity (caducidad) and prescription (prescripción); 2) regulation oriented towards institutional hierarchy; 3) impairment of orality in the procedure; 4) means of notification; 5) preliminary exceptions; 6) second appearance; 7) range of sanctions; and 8) extension of appeal deadlines. In relation to this consulted point, in addition to being similar to the previous point, this Court considers that an adequate development has not been made nor has the criterion intended to be consulted been properly substantiated. It should be noted that the petitioners merely make a simple reference to supposed weaknesses detected by the Contraloría General de la República, but do not develop or argue them. Under this situation, the Chamber could not rule, and therefore the consultation on this point is rejected.

Omissions: It is indicated that the bill is remiss in making express derogations of all current regulations that it contradicts and they recall that said derogations, as it is such a complex matter as the public service, are reserved to law and cannot be left subject to the free future and arbitrary interpretation of the legal operator. In this regard, in the Chamber's opinion, what the petitioners qualify as "omissions" could actually be due to a problem of poor legislative technique, which does not necessarily imply, in turn, a problem of constitutionality, such that it will be for the legal operator to determine the potential tacit derogations that may exist at the time of applying the law, if it were to come into effect in this form; consequently, this point does not imply a violation of Constitutional Law.

• 2)Conclusion The consulted aspects of articles 21 and 22 of the "LEY MARCO DE EMPLEO PÚBLICO" bill, processed in legislative record No. 21.336, do not contain violations of the constitutional principle of due process; rather, the majority of what was consulted in this regard refers to problems of legislative drafting technique that the legislator or the legal operator will have to remedy. Furthermore, other consulted aspects were not properly substantiated, so this Chamber refrains from making a substantive ruling on them.

XX.- On the violation of the principle of fiscal sustainability due to the leaves.- (drafted by Judge Picado Brenes) 1) Concrete analysis of the consulted aspects The petitioners claim that articles 39, 40, 41, and 42 of the Bill are contrary to articles 11, 176, 179, and 190 of the Political Constitution, to the principle of reasonableness, to the unequivocal rules of science and technique, to the elementary principles of justice, logic, and convenience, as well as implying a violation of the principle of fiscal sustainability. These articles deal, respectively, with an unpaid leave to reduce the working day by up to one-third, to include paternity leave, as well as to extend maternity leave by up to two additional months.

As is evident from the Bill under study, in summary, the questioned articles refer to the following:

-Article 39: paid leave to reduce the working day by up to one-third, when needed to care for a family member with illness or disability. -Article 40: unpaid leave to reduce the working day by up to one-third, when needed to care for a family member with illness or disability. -Article 41: paternity leave with pay for one month. -Article 42: extension of paid maternity leave for up to two additional months, in cases of premature birth, children with severe disability or chronic illness, and in cases of multiple births.

Specifically, the consulting deputies raise the following allegations:

Lack of cost study: They indicate that, when incorporating these leaves and permits into the bill, no cost study or source of resources to cover them was taken into consideration. In this regard, it cannot be overlooked that the legislator has a wide margin of legislative discretion in the formation of laws; a criterion that has been repeatedly upheld by the Constitutional Chamber, noting that, in principle, it is not strictly necessary for all legislative decisions to be supported by technical or financial studies. Thus, for example, in judgment No. 2018-000230 of 10:40 a.m. on 10 January 2018, this Court indicated that: “[t]he Chamber rejects the notion that, inevitably, all of the legislator’s decisions must include a technical study, since such a situation would nullify the discretion of the legislative body, subjecting it to the criteria of third parties lacking democratic representation. Technical studies are necessary when there is an express norm in this regard (for example, in environmental matters) or when the subject matter requires it, lest discretion be transformed into arbitrariness.” Thus, not all of the legislator's decisions must include a technical study, since such a situation would nullify the discretion of the legislative body, subjecting it to the criteria of third parties lacking democratic representation, stating that technical studies are necessary when there is an express norm in this regard (for example, in environmental matters) or when the subject matter requires it, lest discretion be transformed into arbitrariness (criterion reiterated, among others, in judgment No. 2019-020596 of 7:15 p.m. on 25 October 2019). On this matter, the Chamber has referred to the principle of discretion or free configuration of the legislator, mentioned in judgment No. 2003-05090 of 2:44 p.m. on 11 June 2003, according to which the Asamblea Legislativa, in the exercise of its materially legislative function of issuing norms of a general and abstract nature, that is, laws in the formal and material sense (article 121, subsection 1°, of the Political Constitution), enjoys broad freedom of configuration to develop the constitutional program established by the Constituent Power; a margin of maneuver regarding the regulated subject matter that has also been called legislative discretion, understood as the possibility that this body has -limited only by Constitutional Law-, before a specific need of the social body, to choose the normative solution or rule of Law that it deems most just, appropriate, and suitable to satisfy it, all within the range or plurality of political options freely offered by the electorate through the system of legislative representation (criterion reiterated, among others, in judgment No. 2016-010244 of 9:05 a.m. on 20 July 2016 and recently in judgment 2020-015542 of 11:40 a.m. on 19 August 2020). Under this perspective, the petitioners are not correct in considering that the leaves and permits contained in these articles 39 to 41 are unconstitutional by the mere fact that, according to their claim, they are not justified by cost studies or by the corresponding sources of resources to cover them. On the other hand, the petitioners did not provide sufficient grounds to affirm that the consulted norms per se cause a cost increase that would put State finances at risk, or that there is a lack of resource sources for their implementation. Due to these circumstances, the argument raised on this point is rejected.

Not considering the CCSS’s criterion: They indicate that the criterion that the CCSS might have was not taken into consideration, which, in cases of paid maternity leave, under the terms indicated in article 95 of the Código de Trabajo, must, together with the employer, cover in equal parts the corresponding payment for the leave. The petitioners claim that this constitutes a violation of article 189 of the Political Constitution, as it could lead to a violation of the administrative and financial autonomy of the CCSS. In this regard, in the Chamber’s opinion, while it is true that the bill, by modifying the term of maternity leave or by creating paternity leave, could eventually functionally and financially affect this autonomous institution, it is also true that the criterion of the CCSS was requested. On this matter, it must be taken into account that article 190 of the Political Constitution establishes that “For the discussion and approval of bills relating to an autonomous institution, the Asamblea Legislativa shall first hear the opinion of that institution”; for its part, the Constitutional Chamber, in interpreting that article, has indicated that the consultation established therein must be made when the bill in question affects the essential competencies of autonomous institutions, which does not mean that every bill or any modification related to an autonomous institution through a bill must be consulted to it, but rather only those aspects referring to its constitution or organic structure, or those relating to the essential scope of the competencies of the institutions involved (see judgments No. 2020-008848 of 9:20 a.m. on 13 May 2020, No. 2001-011129 of 1:08 p.m. on 23 October 2001, 2014-007914 of 9:15 a.m. on 6 June 2014, 2012-02675 of 11:52 a.m. on 24 February 2012, and 2008-004569 of 2:30 p.m. on 26 March 2008, among others). However, from the review of legislative record No. 21.336, the Court finds it proven that the project in question was indeed duly consulted to the authorities of the Caja Costarricense de Seguro Social on several occasions, and it is noted that, by official communication No. SJD-885-2019 of 5 July 2019, the Board of Directors of the Caja Costarricense de Seguro Social sent to the Comisión Permanente Ordinaria de Gobierno y Administración of the Asamblea Legislativa the criterion requested from said institution regarding bill No. 21.336 (see folio 592, Volume 2 of the legislative record). Subsequently, at folio 7602 of Volume 28, another criterion issued by that institution regarding the bill is verified. Consequently, it is clear that the bill in its entirety was consulted to the Caja Costarricense de Seguro Social. The latest version of the bill in question, where the norms challenged here are included, was consulted to the CCSS in April 2021; however, there is no record of any response from this institution. It must also be remembered that it is for the legislator to assess whether what was expressed in the consultation warrants a change in the text of the bill. For constitutional purposes, what is verified is the realization of the mandatory consultation to the CCSS, and what happens thereafter is a matter that transcends Constitutional Law. Thus, whether what was expressed by the CCSS in the response to the various consultations made was sufficiently reasoned on this point to prompt the deputies to decide to make a change in the text or not is not of a constitutional nature. Therefore, there is no reason to consider that a violation of constitutional order occurred in this aspect.

Omission of considering the impact on services provided by the CCSS: They consider that the possible impact on the functioning of each institution was also not taken into account, nor the performance in the provision of services they carry out, which must guarantee the continuity and quality of the public service. In this regard, even though the petitioners raise this claim, the Chamber does not observe that they have presented any type of arguments demonstrating unconstitutionality or violation of a constitutional right or principle. At heart, the Chamber considers that the petitioners' opposition lies in the fact that technical-scientific criteria that could eventually have determined an impact on the functioning and performance of the institution were not taken into account; however, it is recalled what was indicated supra in the sense that the drafting of these norms is protected by the principle of legislative discretion or free configuration of the legislator and, therefore, no injury to Constitutional Law is observed, and the questions raised on this point must be rejected.

However, it is warned that in one of the responses provided by the CCSS to the consultations made to it and specifically regarding this topic, that institution stated that since the bill proposes reducing the working day by up to one-third for a maximum of one year, "its application could imply a deterioration of the services provided by the institution, considering that health services are essential and to reverse this situation, overtime would have to be paid to cover the third of the day left by the public servant who avails themselves of this article, which would generate an increase in spending" (see folios 610 and 611 of Volume II of Legislative File No. 21.336). Likewise, with respect to the leaves protected under numerals 41 and 42 of the bill under study, it is noted that the CCSS stated that "the financing that the institution would have to cover the payment of the extension of maternity leave is not defined, and as for paternity leave with pay, it must be considered that the CCSS has a six-calendar-day leave, so an extension of this benefit to officials would imply additional expenses for the institution, by having to make staff substitutions in order to guarantee the continuity of services" (see folio 611 of Volume II of Legislative File No. 21.336). It is the legislator's responsibility to address or not these questions, and it is not a matter of constitutionality for this Chamber to examine whether or not those criteria were considered in the various parliamentary bodies.

Absence of objective reasons or technical criteria for expanding maternity leave grounds: Regarding Article 42, which contemplates the extension of maternity leave, the consultants argue that it is a numeral containing a series of cases in which that extension is applicable (premature birth, children with severe disabilities and/or chronic illnesses, and multiple births); however, they consider that the bill does not contemplate the objective reasons or the technical or scientific criteria that justify including those and other grounds. In this regard, it is again noted that the disagreement lies in the exercise of the legislator's free configuration or discretion and, fundamentally, the consultants' opposition again lies in the fact that technical-scientific criteria were not taken into account to define the cases under which the aforementioned leave could be extended. In this regard, it must be reiterated what was indicated in judgment No. 2018-00230, through which the Constitutional Chamber rejects that, inevitably, all of the legislator's decisions must include a technical study, since that, as has been stated, would nullify the discretion of the legislative body, subjecting it to the criterion of third parties lacking democratic representation. In this sense, it is not proven that, in this case, technical studies were necessary, so that the alleged unconstitutionality is dismissed.

Lack of technical studies regarding paternity leave: Regarding the paternity leave in Article 41 of the bill, which grants a leave with pay for one calendar month, after the day of birth or at the time of adoption of the minor, the consultants claim that the file does not indicate—again—the studies or technical criteria indicating the cost to the State of granting this leave or the source of financing. In this regard, indisputably, on this point the Chamber observes that the consultants' arguments are reiterated concerning what was analyzed supra in point a); consequently, it refers to what was indicated there and reiterates that it is a question that does not have the virtue of violating the Law of the Constitution, so the formulated approach is rejected.

Antinomy between Articles 39 and 40: The consultants allege a supposed antinomy between Articles 39 and 40 (on paid and unpaid leave to reduce the working day by up to one-third, for a maximum of one year, to care for a family member with an illness or disability). They consider that the regulation is not clear, for its application, whether the leave is to be paid or unpaid, while also whether it must be a serious accident or not, considering that this generates legal insecurity and that these contradictions can be found in other regulations; for example, the reform to Article 7 bis of the Civil Service Statute, introduced by subsections b) and e) of Article 49, according to which it is not understood whether the Dirección General de Servicio Civil is a body of MIDEPLAN or remains in the Ministry of the Presidency. Regarding this question, it is concluded that the arguments on which it is based do not refer to an aspect of constitutionality, but to a matter of legislative technique and the quality of the legislator's work, which must be corrected within the Legislative Assembly itself, and, therefore, the claim is rejected.

• 2)Conclusion The Chamber finds no vices of unconstitutionality in the questioned aspects of Articles 39, 40, 41, and 42 of the consulted bill, as it is a matter of legislative discretion, the mandatory consultation with the CCSS was carried out, and there are no elements that must determine that the legislator needed to have a prior technical study in this case. Furthermore, the issue of the alleged contradiction between Articles 39 and 40 of the bill, being a possible legal antinomy, does not have constitutional interest.
• 3)Dissenting Vote and Particular Reasons Dissenting Vote of Magistrate Garro Vargas on the inevacuability of the consultation regarding Articles 39, 40, 41, and 42 of the bill (file 21-11915-007-CO) The legislators consulted the constitutionality of arts. 39, 40, 41, and 42 of the bill. They alleged that these provisions were included on the second day of motions via art. 137 of the Reglamento de la Asamblea Legislativa and questioned that, at the time of incorporating these leaves, no cost study was evaluated to cover their financing. They affirmed that the opinion that the Caja Costarricense de Seguro Social (CCSS) might have was not taken into account and nor was the possible impact on the functioning of institutions and the performance of services valued.

The legislators start from the premise that these leaves were introduced in the final part of the parliamentary proceeding. However, from the careful review of the original bill, it is clear that the statement of motives and the content of the bill contemplated the regulation of the leaves in question. Said bill was published in the Diario Oficial La Gaceta No. 84, Alcance No. 102 of May 8, 2019 (https://www.imprentanacional.go.cr/pub/2019/05/08/ALCA102_08_05_2019.pdf ). For these purposes, the following was proposed:

"Art. 34- Leave to reduce the working day by up to one-third, when required to care for a family member with an illness or disability Paid leave may be granted, for up to one-third of the working day, for a maximum period of one year, so that the public servant may care for a family member by consanguinity or affinity up to the second degree, with a disability or for reasons of terminal illness or accident.

Art. 35- Extension of paid maternity leave for up to two additional months in special cases The paid maternity leave established in Article 95 of the Código de Trabajo will be extended for up to two additional months, for the public servant mother when the following cases occur: premature birth, birth of children with a disability or special needs, birth of children with chronic illnesses, or multiple births.

Art. 36- Paternity Leave Fathers who have a biological child or one in adoption shall enjoy a one-month paternity leave with pay, after the birth or at the time the adoption is finalized." So that regardless of the variations the bill may have had throughout the parliamentary process, the truth is that from its original proposal, the regulation of the leaves now consulted by the legislators was contemplated.

Furthermore, in essence, they question that these leaves do not have the corresponding technical studies and that the bill was not consulted — do they only specify the CCSS? —. However, their assessments are not duly supported. Indeed, from the careful review of the copies of the legislative file, it is certified that the bill was consulted with the CCSS and, furthermore, it was consulted with multiple institutions (see summary of the parliamentary iter contained in the considerative part of this resolution). Furthermore, as noted, these were not provisions included at the end of the bill's consideration, but rather rules that were contemplated from the first initiative of the bill. Finally, the legislators themselves do not make a comparison of these rules with provisions already in force, in order to determine whether they effectively imply a cost for the supposedly affected institutions. Therefore, the legislators' allegations are not duly supported nor do they have the character of founded doubts of constitutionality. They are mere general and abstract assessments that do not allow this Tribunal to carry out a complete analysis of constitutionality (which includes the examination of reasonableness). Remember, to that effect, that art. 99 of the Ley de la Jurisdicción Constitucional indicates that the optional consultation of constitutionality "must be formulated in a reasoned memorial, expressing the questioned aspects of the bill, as well as the reasons for which doubts or objections are held regarding its constitutionality." The omission in fulfilling this requirement warrants declaring this extreme of the legislative consultation inevacuable.

Particular Reasons of Magistrate Picado Brenes on Articles 39, 40, 41, and 42 of the bill regarding new leave cases (point 60 of the Por Tanto) As is clear from the reading of this judgment, by a majority of the members of this Constitutional Chamber, it has been considered that Articles 39, 40, 41, and 42 of the Ley Marco de Empleo Público bill being processed in legislative file No. 21.336, which includes new leave cases, are not unconstitutional. Notwithstanding the above, I deem it necessary to make some additional precisions that must be taken into account when analyzing this numeral.

In general terms, it is necessary to remember that the topics included in these articles under study refer to what have been called "Social Rights," which, in a Social State of Law, have been incorporated into the fundamental text as a series of political objectives of great social relevance whose protection is aimed at ensuring the common good and the satisfaction of people's basic needs.

In the matter under study, they specifically refer to leaves to reduce working days for the sake of caring for family members due to terminal illness or accident, as well as being directed, under some circumstances, to granting paternity leaves or extending those already granted for maternity; aspects of human life that undoubtedly relate to the satisfaction of basic needs.

Regarding this type of rights and their constitutional protection, it must be said that historically they have been born as minimums that have progressively been extended to a greater number of people or circumstances—as would be the case under study—; a trend that does not exclude the development of social security coverage, which also tends to be expansive and connected to the objective of protecting, above all, employees from the misfortunes of which they may be involuntary victims—in the case of illness or accident of family members—but also from positive circumstances such as the birth or incorporation of a new member to the family, which undoubtedly brings with it the right of their father and/or mother, or both, to have specific leaves to begin the attachment process in the family nucleus, which has also fostered the jurisprudential evolution of this Tribunal to confer better conditions on workers (see in a similar sense judgments number 2007-17971 of 14:51 hours of December 12, 2007, and number 2011-003077 of 15:00 hours of March 9, 2011). On this matter, in judgment number 2020-008254 of 17:15 hours of April 30, 2020, the Chamber indicated, in what is relevant, that dialogue between employer and workers allows for an improvement in working conditions in order to achieve a balance between employer demands that guarantee productivity, an optimal psychological state of the worker, and even to shape the circumstances in which said manifestations must be normatively accompanied by a more lax labor regime, inspired by the principles of human solidarity, but always limited by the principle of reasonableness, bearing in mind the provisions of Article 51 of the Constitución Política regarding the protection of the family as well as the mother, the child, the elderly, and the helpless sick. In the same sense, it must be remembered that the Chamber has indicated that, in labor matters, the benefits established in favor of workers find support in the principles of human solidarity and social justice contained in Article 74 of the Constitución Política (see in that sense judgment number 6934-96 of 9:09 hours of December 20, 1996).

Meanwhile, when analyzing topics related to paid leave for workers on the occasion of the birth or adoption of a child, as well as leaves to care for the sick, this Tribunal has not considered this to be unconstitutional as they attend to principles of human solidarity and the understanding that must prevail in social and family relationships between people, without being able to omit citing what was said in judgment No. 2006-17438 of 19:36 hours of November 29, 2006, in which the Chamber stated that "... starting from that special protection that the Constitution grants to the family, the granting of leaves to workers for the birth of their children is justified ...". Similarly, it is appropriate to point out that this Tribunal has also stated that it cannot be forgotten that these are forced, exceptional, and special leaves, which contemplate a number of days that is not considered excessive (see in a similar sense Judgments No. 2006-017593 of 15:00 hours of December 6, 2006, and No. 2006-017441 of 19:39 hours of November 29, 2006) and that "...these are advantages that have been gaining ground within the scope of labor relations and accentuating the property of granting the worker leaves without affecting their salary, so that they can take charge of particular situations that affect them or their family..." (see Judgment No. 2018-008882 of 16:30 hours of June 5, 2018).

Therefore, as far as the merits of the matter are concerned, it must be said that, from the foregoing, it is clear that the jurisprudence of the Chamber has been quite clear in considering the constitutional viability of leaves such as those recognized in these numerals 39, 40, 41, and 42 of the bill under study, which are granted to attend to those specific situations linked to events concerning the family nucleus and that there exists a constitutional protection for that type of social rights, which the Chamber has recognized and fostered.

Under this interpretive perspective, in general terms, I consider that the content of Articles 39, 40, 41, and 42 turns out to be an advancement in the matter of protecting social rights; however, in order to avoid the existence of gray areas that could affect the worker, I must say that, in my opinion, there are some loose ends that need to be highlighted to prevent them from causing injuries to the Law of the Constitution.

Firstly, it should be noted that Article 39 does not contain any protective tool for the worker regarding their remuneration, and this, in the long run, could imply a considerable decrease in their income which, left to the free will of the employer, could generate serious consequences for their assets in the future. Similarly, the rule also does not regulate under what conditions the servant may return to their job when the objective for which they availed themselves of that type of special leave has ceased; a circumstance that, equally left to the employer's freedom, could imply a permanent reduction of their working day or of the employment situation they enjoyed before availing themselves of the leave.

In a similar line of thought, Article 40 would also not regulate those post-leave situations, as it does not clearly establish the conditions under which the public servant could avail themselves of that leave which, although unpaid, could lead the employer to subsequently decide on their dismissal upon realizing—during the worker's absence—that their job position or their person becomes unnecessary. In similar terms, no record is left for the worker's benefit regarding their remuneration, as the employer could perfectly decide upon their return, to liquidate them and rehire them to reduce costs, or modify their working conditions regarding salary, benefits, or the type of functions they would perform upon their re-entry to the job position.

For both the situation regulated in Article 39 and in Article 40, by not clearly regulating in the rule the conditions under which those leaves—paid or unpaid—would be granted, injuries to the fundamental rights of workers could be caused.

In the case of Article 41 of the bill under study, the conditions under which the leave would be granted in the case of adoption of a minor are not clearly regulated, as it should be noted that the rule states "at the time the adoption is finalized," but from this, it is not clear if this refers to:

• a)the moment when the minor is handed over to their adoptive family; b) the moment when the child is declared in a state of abandonment and therefore, can be subject to adoption; c) the moment when a judge orders a judicial placement of a minor in a family without the child necessarily being in a condition to be adopted; d) the moment when a judge issues a judgment formally granting the adoption of a minor to an adopting family.

It should be taken into account that all the above are very different moments that can occur—together or separately—in the adoption process of a minor, but which, at the same time, could all lead to different consequences that, finally, could affect not only the life of the public servant and their emotional and family stability, but also the interests of the Administration because it could be that a leave with pay is granted for this reason, but ultimately the minor—for not having been declared abandoned—could not be adopted and their re-entry to the Patronato Nacional de la Infancia is ordered, such that the Administration should take this circumstance into account as well as the decision of whether, in those cases, it recoups what was paid to the public servant given that the adoption did not conclude as expected.

On the other hand, regarding Article 42 of the bill, it should be noted that, even though the first paragraph of the rule seemed to grant—automatically and without any question—an extension of maternity leave for up to 2 additional calendar months in the birth cases of babies stipulated therein, the second paragraph erases all the above as it conditions that right—which seemed immediate upon the fulfillment of those requirements—to the criterion of the medical professional attending the mother; a criterion that can not only be subjective but also has the power to decide the term of the extension, such that if a physician considers that the mother, despite having experienced the birth of her baby under the conditions stipulated therein, does not require that extension of leave, this would imply that it is not granted, to the detriment of her rights, those of the child, and in an open situation of inequality and discrimination in relation to other mothers whose physician did deem the extension of the leave necessary.

In view of the foregoing, I consider that the rule could have vices of unconstitutionality if these criteria I have indicated are not taken into account and which must be analyzed by the legislator.

XXI.- Regarding the consultation on the exclusion of public enterprises in competition and other exclusions.- (drafted by Magistrate Picado Brenes) 1) Consulted Aspects The consultants consider that Articles 2 and 3 of the bill harm Articles 33 and 191 of the Constitución Política, because the bill should not exclude any institution from its scope of application. They indicate that the Constituent provided, in this way, that the relations between the State and the officials must be governed by a single regulation and a single statute, for all public officials, without generating exclusions or any differentiation, therefore, creating these exclusions would lead to there being public officials of different classes, by applying to them, depending on the institution where they work, one legislation or another, thus violating the spirit of the Constituent insofar as it sought the efficiency of the administration. It must be indicated that Article 2 of the bill under study has already been duly analyzed in previous considerative clauses (see considerative clauses IX, X, XII, and XIII) and, therefore, on this specific point, the Chamber will only pronounce regarding Article 3, which expressly regulates matters relating to exclusions; however, for the purposes of understanding the relationship existing between both numerals in the terms raised by the consultants, it is essential to cite both:

"ARTÍCULO 2- Scope of coverage This law is applicable to the public servants of the following entities and bodies under the principle of the State as sole employer:

• a)The Branches of Government (Executive, Legislative, and Judicial), their auxiliary and attached bodies, and the Tribunal Supremo de Elecciones (TSE), without prejudice to the principle of separation of Powers established in the Constitución Política.
• b)The institutional decentralized public sector comprised of: autonomous institutions and their attached bodies, including state universities, the Caja Costarricense de Seguro Social (CCSS), semi-autonomous institutions and their attached bodies, and state public enterprises.
• c)The territorial decentralized public sector comprised of municipalities, leagues of municipalities, district municipal councils, and their enterprises." "ARTÍCULO 3- Exclusions The following are excluded from the scope of application of this law:
• a)Non-state public entities.
• b)Public enterprises and institutions in competition, except regarding the provisions on collective bargaining.
• c)The Benemérito Cuerpo de Bomberos." 2) Jurisprudential Background In a previous considerative clause this Chamber makes a jurisprudential analysis of what this Tribunal has indicated regarding the existence or not of a single public employment regime. For the purposes of this section, it is appropriate to reiterate the jurisprudential line it has maintained on the possible existence of differentiated regimes and on the exception established in constitutional numeral 192 in the following sense:

"...The legislator, however, opted to regulate the service not in a general manner, but by sectors, thus enacting the Civil Service Statute (which applies to the servants of the Executive Branch) and later other statutes to regulate the provision of services in the remaining branches of the State and in some decentralized institutions(...) It is obvious that in the mind of the constituent was the idea that not all public servants could be covered by the special regime, since the method of selection, the special capacities, the functions of each position, the relationships of trust and dependence are not the same in all cases, hence the principles derived from Article 192 are applicable to certain officials—the majority—not to all. The Constitution itself indicated several cases of freely chosen and removable officials such as government ministers, members of the public force, directors of autonomous institutions, diplomatic representatives, and in general, 'the employees and officials who hold positions of confidence' (art. 140 subsection 1), leaving to the law (the Civil Service Law says Article 140) the determination of other officials, who in very qualified cases, could be excluded from the general regime. This possibility of excluding certain officials is reiterated by Article 192. It is repeated that the constituent's intention was that there be a single law, a Statute, that regulates all public service. However, what is important is that the ordinary legislator was left, by means of the law, the detailed regulation of the coverage of the special regime, which it could do, as it did, in separate laws, without detriment to the constitutional mandate. By way of law, the legislator has excluded several cases from the common regime." (Judgment No. 1990-1119). The emphasis is not from the original.

Because one of the entities excluded from the consulted bill is the Instituto Nacional de Seguros, it is timely to mention what this Chamber said in judgment No. 2013-16637 regarding employment in that institution:

"Regarding this particular rule, the Chamber has indicated in repeated pronouncements, that the Instituto Nacional de Seguros, as a state public enterprise that it is, has the power to give itself its own internal organization, by virtue of this, it is not subject to the provisions of constitutional Article 192 and therefore its workers are not attached to the Statutory Civil Service Regime nor to the principle of lifetime tenure (estabilidad) in public employment. In Judgment No. 2008-11920 of 15:11 hours of July 30, 2008, recently reiterated in No. 2012-4942 of 15:39 hours of April 18, 2012, this Tribunal resolved the same allegations raised by the plaintiff, dismissing the reasons for unconstitutionality given, with the following considerations:

"III.- The plaintiff alleges that in accordance with Article 62 of the Constitución Política, collective agreements have the rank and force of law, so that in accordance with the principle of constitutional supremacy, their value is inferior to any constitutional rule or principle. Constitutional Article 7 grants superior value to law to the international treaties of the I.L.O. For its part, Article 192 contains several constitutional principles that must govern the employment relationship, among which are suitability and lifetime tenure (estabilidad) in employment; in relation to these two elements, as a corollary, removal is provided for by the causes of justified dismissal set forth by labor legislation and the forced reduction of services (restructuring) be it due to lack of funds or in pursuit of achieving a better organization of said services. From this it follows that by constitutional mandate the only way for a public official to be removed from their position or appointment, is through causes of 'justified dismissal', in accordance with the country's labor legislation. The plaintiff makes an error in their analysis, by affirming that the regime established starting from Article 191 of the Constitución Política, specifically the conditions indicated in constitutional Article 192 for public servants - removal for causes foreseen in legislation or by forced reduction of services -, must be applied to the Instituto Nacional de Seguros. Constitutional Article 192 is contained in Title XV 'Civil Service', Single Chapter, which regulates the relationship between the State and public servants for the purpose of guaranteeing the efficiency of the administration. However, and as the plaintiff himself states correctly, the I.N.S is an autonomous institution that enjoys administrative autonomy, which grants it the power to carry out its competencies and attributions, constitutionally or legally conferred, which presuppose the power of self-administration or to dispose of its resources (human, material, financial). Its condition as an autonomous institution is recognized expressly in Article 189 of the Constitución Política; it can establish its own internal organization and determine its content.

By reason of the foregoing, neither Article 192, nor any of those contained in Title XV, are applicable to the Instituto Nacional de Seguros, since it does not form part of the bodies that make up the Public Administration. It is precisely that condition of autonomous institution that places the I.N.S. and its employees in a legal situation entirely different from that of the Executive Branch, its bodies and public servants, who are not protected by the Civil Service Statute (Estatuto del Servicio Civil) and therefore do not enjoy the advantages of that labor legislation, among them the employment stability regime. In judgment 2004-5960, the Chamber determined that the I.N.S. is a public enterprise-public law entity (empresa pública-ente de derecho público), defining it as one that assumes the form of a public entity to carry out a wholly or partially commercial line of business (industry, trade in goods and services, etc.) The servants of the I.N.S. are subject to a private employment regime, which means that the institution has the possibility of directing its labor relations as suits its organization, the public interest, and the achievement of its objectives. This Court has indicated that the I.N.S. is an enterprise whose activity is similar to that carried out by any private individual in terms of selling a specific product. By not performing “public management (gestión pública)”, it may enter into collective bargaining agreements (convenciones colectivas de trabajo) (judgment 4453-2000). […]

IV.- Conclusion. The power of self-organization of the I.N.S. derives from Article 189 of the Political Constitution. It is a public enterprise-public law entity (empresa pública-ente de derecho público), whose servants are not covered by the Civil Service regime but by private labor law; for this reason, it may sign collective bargaining agreements. Based on such premises, the content of Article 160 is valid from a constitutional standpoint, and therefore the action is rejected on the merits.” It is equally timely to cite what this Chamber has stated regarding discussions about the personnel of the Instituto Costarricense de Electricidad, and with greater clarity following the approval of the Telecommunications reform carried out in 2008:

“For its part, the appealed authority alleges that Law No. 8660, Law on the Strengthening and Modernization of Public Entities in the Telecommunications Sector, granted ICE full autonomy to administer its human resources and dispose of them. By virtue of this, the respondent states that ICE employees—save for certain exceptions, among which the protected party is not included—are not public officials, and therefore common labor law is applicable to them. Consequently, ICE was not compelled to institute disciplinary proceedings prior to the dismissal of the amparo petitioner.

For purposes of resolving the sub examine and determining whether the plaintiff’s fundamental rights to due process and to work were indeed violated, it is unavoidable to refer to the regulatory framework that governs the labor relations of ICE officials.

First, Law No. 8660, Law on the Strengthening and Modernization of Public Entities in the Telecommunications Sector (published in La Gaceta No. 156 of August 13, 2008), stipulates:

“ARTICLE 32.- Personnel Statute. ICE shall have full autonomy to administer its human resources and dispose of them, in accordance with labor legislation, the Personnel Statute (Estatuto de personal), and any other instrument negotiated by ICE with its workers. In matters of liability, its servants shall answer according to Public Law.

The validity of the Personnel Statute and the authority of the ICE Board of Directors to issue the rules and policies that regulate working conditions, the creation of positions, remuneration schemes, and the obligations and rights of ICE officials and workers are ratified. (…)

ARTICLE 33.- Labor rights and consolidated legal situations The validity, full legality, and effectiveness of the labor rights, the consolidated legal situations, and the socioeconomic benefits that ICE workers have and have been receiving, in accordance with its Personnel Statute; those of Radiográfica Costarricense Sociedad Anónima (Racsa), in accordance with its Work Regulations; and those of the Compañía Nacional de Fuerza y Luz (CNFL), according to the collective bargaining agreement, are hereby ratified and shall remain in force with the enactment of this Law.” (emphasis added) Regarding the historical background of these articles, it is worth mentioning motion No. 277-69 contained in legislative record No. 69. Said motion—ultimately rejected—sought to eliminate the current Article 33 since it was considered superfluous to ratify the validity of the ICE Personnel Statute. In this regard, Deputy Zamora Chaves explained “there is nothing in this law, at least I have not found it, that repeals the Personnel Statute; therefore, if it does not repeal it, why ratify anything; that is, it remains in force (…)” For his part, the Committee President replied, stating that “I would only add that in reality, with the different pressures and needs received from different groups, on this particular topic, it was a concern expressed by the ICE Unions, that expressions of ratification be made, those statements ratifying the existing Law, and since it is existing and has not been repealed, well, it does no harm in order to give them peace of mind, to state that they are there and that they are ratified in this Law”.

In light of the above, although ICE has full autonomy to administer its human resources, it is no less true that it can only do so in accordance with labor legislation, the Personnel Statute, and any other instrument negotiated by ICE with its workers. Ergo, the Personnel Statute, in force by express provision of law, constitutes a mandatory legal framework of reference for purposes of regulating the administration of human resources, including dismissal procedures.” (Judgment No. 2015-7499).

In relation to the Benemérito Cuerpo de Bomberos and its personnel, this Court has pronounced itself in the following manner:

“II. ON THE SPECIFIC CASE.- In the instant case, the petitioner claims that the respondent party decided to dismiss him without informing him of the reasons that motivated the act and, consequently, requests this Court’s intervention to restore him to his position, since – in his opinion – said dismissal was unjustified, in open violation of his rights of defense and due process. On this matter, the jurisprudence of this Court is abundant and establishes that, given the nature of the respondent party, it is possible to terminate the employment contract without just cause. In this regard, through judgment 2016005950 of 9:05 a.m. on May 4, 2016, this Chamber resolved:

“Article 1 of Law 8228 of March 19, 2002, ‘Law of the Benemérito Cuerpo de Bomberos de Costa Rica’, establishes that the Cuerpo de Bomberos is a deconcentrated body of the Instituto Nacional de Seguros. In this regard, it must be noted that, as established by this Court’s jurisprudence (see judgments No. 2008-11920 and No. 2010-9158 referring to INS, as well as judgments No. 00-7730, 01-244, and 01-12953 regarding other public enterprises), the general legal framework is — in principle — Private Law, which is also the particular legal regime governing its employment relations, where freedom of dismissal prevails, although Public Law is applicable to the members of the Board of Directors (Consejo Directivo), as established by the regulations themselves (Article 26 of the Regulation to the Law of the Cuerpo de Bomberos). In a similar matter involving an INS worker, this Chamber resolved: ‘… it is possible to conclude that the Instituto Nacional de Seguros has the power, based on the cited Article 160, to terminate the employment contract with employer liability, without just cause, at the moment it deems necessary, without thereby incurring any labor violation or generating a conflict with current regulations. This Court, in cases similar to the present one, has considered that these are labor relations governed by private law, and upon studying the cited article, it is determined that what is stipulated therein is appropriate and there is no friction whatsoever with the fundamental rights of the workers of that institution’ (judgment No. 2010-9158; see in the same sense No. 2014-1686).” -emphasis added- Precedent that is applicable in the specific case, since the Chamber finds no reasons to vary its criterion; therefore, any controversy regarding the termination of the amparo petitioner must be resolved through the corresponding ordinary legal channel. Ergo, the appeal becomes inadmissible.” (Judgment No. 2016-12794) 3) Specific analysis of the consultation On this matter, it must first be said that, even though the consulting deputies are of the opinion that this bill should not include the exclusions made in Article 3 thereof, this Chamber recalls that, in accordance with the text of Article 192 of the Constitution itself, national doctrine, and the provisions of Articles 3, 111, and 112 of the Ley General de la Administración Pública, there exists a group of State workers who, due to the nature of their functions or the type of workplace in which they work, are governed by the private labor regime, and therefore are incompatible to be regulated by a public employment law. Secondly, when observing the Costa Rican legal system in an integral manner, the fact of the matter is that it allows for exceptions such as those set forth in Article 3 under study, whereby it is legally possible to exempt certain institutions from a public employment regime, the precise basis for this being what the Constituent Assembly established in Article 192 of the Constitution, by providing at the beginning “with the exceptions that this Constitution and the civil service statute determine”; a phrase that, according to this Court, “obliges one to qualify the previous conclusions regarding the scope of application of the civil service regime or statute.” On this matter, the Chamber has upheld the possible existence of differentiated regimes based on the exception established in Article 192 of the Constitution. As indicated in votes No. 2010-010713 (ratified in SCV 2014-001686, 2014-002686, 2016-017418, 2016-018847, 2016-005950):

“… given that the Instituto Nacional de Seguros acts in the exercise of its capacity under private law, the general principles of employment stability are not applicable to its officials – except for those who hold managerial or superior oversight positions – which is why they can be removed from their positions without just cause, with employer liability, that is, without alleging the commission of any fault against them and with the payment of the corresponding indemnity. (Emphasis not in original).

That being the case, and as this Court has reiterated, the Constituent Assembly itself foresaw that not all State servants could be covered by the special regime, since the method of selection, the special capacities, the functions of each position, and the relationships of trust and dependence are not the same in all cases; hence, the principles derived from Article 192 are applicable to the majority of State workers, but not to all. From this perspective, contrary to what the consulting parties affirmed, it is indeed possible to establish exceptions to the scope of application of the civil service regime or statute; an exclusion that cannot be arbitrary and that must be duly justified. That being said, it is observed that the consulting parties question this provision—Article 3 of the bill under study—pointing out, solely, that the mere criterion of competitiveness is not sufficient to give them differentiated treatment, since they are equally public officials who manage public funds and, as they themselves acknowledge, they are public enterprises and institutions that are subject to the regime of competition; that is, they are not under equal conditions as the other State institutions, as can be inferred from Articles 3, 111, and 112 of the Ley General de la Administración Pública, when they refer to the workers of this type of state enterprises, they are governed by Private Law. To understand the scope of the exclusions in Article 3 cited above, a conceptual differentiation must be made between what is provided in subsection a), which concerns non-state public entities (entes públicos no estatales), and what is covered by subsection b), which refers to public enterprises and institutions in competition, these being the ones regarding which the consulting deputies raise their questioning because, as noted supra, they believe the mere criterion of competitiveness is not sufficient to give them differentiated treatment since they are still public officials who manage public funds. Those first excluded according to the cited Article 3 of the bill under study are the non-state public entities. These entities have a legal nature different from the rest of the State institutions. According to doctrine, they have been conceived as corporate-based bodies, constituted by agreement or by law, which group private interests but are relevant to the State, and are financed by contributions from their members and parafiscal contributions, other direct contributions, and, to a lesser extent, by the State. Therefore, their legal regime is predominantly private, although they are subject to the administrative legality framework regarding the exercise of public powers (potestades de imperio) exerted by legal delegation. Consequently, non-state public entities technically do not belong to the State, but rather exceptionally exercise administrative function, through which they issue administrative acts and are considered part of the Public Administration. Outside of those public powers, they relate to other subjects based on the principle of autonomy of will, which is governed by private law; hence, their labor relations have been considered as governed by private law, and they are, therefore, also reasonably exempted from the public employment regime intended by the Legislative Assembly. Such would be the example of professional associations (colegios profesionales), defined as non-state public entities, and whose workers are governed by private law.

Second, there are the public enterprises and institutions in competition, and within these, examples can be cited such as the Instituto Nacional de Seguros and the Instituto Costarricense de Electricidad, in the area of telecommunications. Regarding the former, INS, it must be said that both in its actions and the labor relationship it maintains with its employees, the application of private law prevails, in accordance with the jurisprudence cited supra. The foregoing is justified insofar as, for the Constitutional Chamber, the Instituto Nacional de Seguros, as a public enterprise, has the power to establish its own internal organization since it is not subject to the provisions of Article 192 of the Constitution, and therefore its workers are not subject to the Statutory Regime of the Civil Service (Régimen Estatutario del Servicio Civil) or to the principle of stability in public employment. This Court has stated the following on this matter:

“(…) the I.N.S is an autonomous institution that enjoys administrative autonomy, which grants it the power to carry out its competencies and attributions, constitutionally or legally conferred, which presuppose the power to self-administer or dispose of its resources (human, material, financial). Its condition as an autonomous institution is expressly recognized in Article 189 of the Political Constitution; it may establish its own internal organization and determine its content. By reason of the foregoing, neither Article 192, nor any of those contained in Title XV, are applicable to the Instituto Nacional de Seguros, since it does not form part of the bodies that make up the Public Administration. It is precisely that condition of autonomous institution that places the I.N.S. and its employees in a legal situation entirely different from that of the Executive Branch, its bodies and public servants, who are not protected by the Civil Service Statute and therefore do not enjoy the advantages of that labor legislation, among them the employment stability regime. In judgment 2004-5960, the Chamber determined that the I.N.S. is a public enterprise-public law entity (empresa pública-ente de derecho público), defining it as one that assumes the form of a public entity to carry out a wholly or partially commercial line of business (industry, trade in goods and services, etc.) The servants of the I.N.S. are subject to a private employment regime, which means that the institution has the possibility of directing its labor relations as suits its organization, the public interest, and the achievement of its objectives. This Court has indicated that the I.N.S. is an enterprise whose activity is similar to that carried out by any private individual in terms of selling a specific product. By not performing ‘public management (gestión pública)’, it may enter into collective bargaining agreements (convenciones colectivas de trabajo) (judgment 4453-2000) (see judgments No. 2013-16637 of 9:20 a.m. on December 13, 2013, No. 2008-11920 of 3:11 p.m. on July 30, 2008, reiterated in No. 2012-4942 of 3:39 p.m. on April 18, 2012).

In a similar sense, the Chamber pronounced itself regarding the Instituto Costarricense de Electricidad, in the previously cited judgment (No. 2015-7499).

Finally, in accordance with the content of Article 3, there is the Benemérito Cuerpo de Bomberos, which, according to the law that created it, No. 8228, is a body of maximum deconcentration (órgano de desconcentración máxima) attached to the Instituto Nacional de Seguros (INS), domiciled in San José and with competence throughout the national territory, to fulfill the functions and competencies that, exclusively, the laws and regulations grant it. It was granted instrumental legal personhood (personería jurídica instrumental) even for contracting and everything related to its personnel:

“Article 2.- Legal personhood The Cuerpo de Bomberos shall have instrumental legal personhood which it shall use in the acts and contracts it adopts to fulfill the decisions of its Board of Directors (Consejo Directivo) and perform the functions indicated by law, in matters of budget administration, administrative contracting (contratación administrativa), human resources, training, inter-institutional coordination, emergency management, and other specific technical competencies…” “Article 7.- Organization The Cuerpo de Bomberos shall operate under the superior direction of a Board of Directors of the Benemérito Cuerpo de Bomberos de Costa Rica (Consejo Directivo del Benemérito Cuerpo de Bomberos de Costa Rica), hereinafter referred to as the Board of Directors, which shall be composed of five members of recognized moral solvency, who shall elect a president from among their members annually. Three members shall be appointed by the Board of Directors (Junta Directiva) of the Instituto Nacional de Seguros, and the remaining two shall be elected by the officials of the Cuerpo de Bomberos, in accordance with the Regulation to this Law. They shall serve in their positions for five years and may be re-elected.

The administration and representation of the Cuerpo de Bomberos shall be vested in the person of the General Director of the Cuerpo de Bomberos, who shall assume the managerial functions of that body.

The Cuerpo de Bomberos shall have the operational, technical, and administrative dependencies necessary for the faithful fulfillment of its public duties and shall have the necessary officials to fulfill the objectives inherent to its management; through this Law, it is authorized to create positions and fill vacant posts.” It is worth highlighting that a 7 bis was added to this Article 7, which was incorporated by Law 8653, Regulatory Law of the Insurance Market (Ley Reguladora del Mercado de Seguros), which provides:

“Article 7 bis.- Organization, functions, functioning, and per diems of the Board of Directors The requirements, incompatibilities, and grounds for removal provided for the members of the Junta Directiva of the Instituto Nacional de Seguros shall apply to the members of the Board of Directors, to the extent reasonably applicable, and with the exception of the rules specific to insurance activity; furthermore, they may be freely removed from their positions by the Junta Directiva of the Instituto Nacional de Seguros, by a majority of five of its members…

The organization and functioning of the Board of Directors shall be governed, where applicable, by the chapter referring to collegiate bodies of the Ley General de la Administración Pública, as well as by the provisions of the Regulation to this Law.

The functions of the Board of Directors of the Cuerpo de Bomberos de Costa Rica are:

• a)To define and authorize the organization of the Cuerpo de Bomberos de Costa Rica, which includes the creation of positions, as well as the definition and assignment of competencies of the functional, operational, technical, and administrative dependencies necessary for the efficient and effective fulfillment of its public duties.
• b)To issue the organization and service regulations necessary for the adequate performance of the Cuerpo de Bomberos' functions.
• c)To appoint, through an internal merit-based competition (concurso interno de atestados), in accordance with applicable legislation, the General Director of the Cuerpo de Bomberos. In the event of a lack of suitable candidates within the same organization, a public competition shall be held.
• d)To remove the General Director of the Cuerpo de Bomberos, in compliance with due process.
• e)To appoint and remove the internal auditor, in accordance with the process established in the Ley General de Control Interno, No. 8292 of July 31, 2002, as well as in the Ley Orgánica de la Contraloría General de la República, No. 7428 of September 7, 1994.
• f)To issue the technical standards and ordering, which shall be mandatory for individuals, whether natural or legal persons, as well as for public or private entities, in matters of safety, fire protection, and human safety.
• g)To hear and resolve on appeal the remedies filed against the resolutions issued by the General Director of the Cuerpo de Bomberos. The resolutions of the Board of Directors shall exhaust the administrative channel (vía administrativa).
• h)To approve the strategic plan and the annual operational plan.
• i)To agree upon budgets, their modifications, and their liquidation, and to submit the corresponding documentation to the Contraloría General de la República for final approval.
• j)To ensure compliance with the provisions of control or technical authorities having competence over the Cuerpo de Bomberos.
• k)To define the fees that the Cuerpo de Bomberos shall charge for the provision of special services and their variations, which shall be established in the Regulation to this Law.
• l)Any other functions provided by law.

The members of the Board of Directors shall earn per diems (dietas) per session, the amount of which shall be equal to fifty percent (50%) of the per diems received by the members of the Junta Directiva of INS, except if they are officials of the same Institution and the sessions are held during working hours, in which case they shall not be entitled to any remuneration.” In line with the foregoing, it is necessary to note that the firefighter regime has its own particularities inherent to the type of function they perform, and that is why the matter has been regulated in Article 9 of the Law of the Benemérito Cuerpo de Bomberos, No. 8228, according to which:

“Article 9.—Firefighter Regime. For the exercise of their positions, firefighters shall be officials with the authority, powers, and attributions granted to them by this Law, its Regulation, and other regulations issued for this purpose by the INS. The disciplinary regime of firefighters must correspond to the nature of their functions and the importance of their public duty.

The labor regime, the working day, and the pension regime of the workers comprising the Cuerpo de Bomberos must address the special conditions of the provision of their services and the labor rights included in current legislation and the collective bargaining agreement.

The Regime for Volunteer, Affiliated, Honorary Firefighters, the Regime for Brigade Members, and others of a similar nature shall be regulated by the INS.” To better understand the reasons why the legislator has decided to exclude the Benemérito Cuerpo de Bomberos from this bill under study, it is necessary to go back to the explanatory memorandum of legislative file No. 13.574, which gave rise to Law 8228 on the Benemérito Cuerpo de Bomberos, and from the reading of which emerges the consideration that fires, spills of toxic chemical products, and natural, technological, or man-made emergencies produce loss of life and substantial property damage, which have repercussions on the economy, development, and social security of the country. Therefore, it is necessary to provide the workers of that body with working conditions adjusted to the type of functions they are responsible for performing, and precisely for reasons of convenience and opportunity, the current Law confers on the Cuerpo de Bomberos the power to determine the operational, technical, and administrative dependencies necessary for the faithful fulfillment of its public duties, as well as the officials necessary to fulfill the objectives inherent to its management, being expressly authorized to create positions and fill vacant posts. This Court considers that, given the nature of the service provided by the Benemérito Cuerpo de Bomberos, irremediably linked to emergency response, it is justified that it have greater agility in its procedures, but also a special regulation adjusted to its working conditions and to the technical and safety aspects it requires; reasons that ground the consideration that the legislator had for this institution to have been exempted from the general public employment regime analyzed in this bill. Of full applicability to the specific case, it is pertinent to recall the consideration made by this Court in relation to the special retirement conditions of the members of the Cuerpo de Bomberos who entered before July 15, 1992, when it was noted that:

“(…) For this Constitutional Court, the retirement conditions of the members of the fire department are certainly unequal to those of the rest of the workers (sic) in the public sector, and even the private sector; however, such unequal treatment is not arbitrary or discriminatory, but rather is supported by an objective, reasonable, and proportional basis, as explained below. First, one must recall what the work of the Cuerpo de Bomberos de Costa Rica consists of, in order to then understand that this difference in treatment is a mechanism devised by the legislator and by the Administration itself, to favor the social condition of this type of workers, aimed at protecting higher interests based on human solidarity and principles of social justice such as those contemplated in Article 74 of the Political Constitution itself.” (…) The work performed by their employees is of great importance to society, since for the sake of attending to emergency situations, they constantly put their lives at risk and are subjected to very different working conditions than the rest." Finally, it is of interest to point out that it will be up to the legal operator to determine the consequences derived from the joint interpretation of this article 3 with articles 3, 111 and 112 of the General Law on Public Administration, given that the indication of regulation by the private law regime only for public enterprises in competition and not for all, would be a matter of legality.

• 4)Conclusion In the terms indicated and in accordance with constitutional jurisprudence, article 3 of the draft "LEY MARCO DE EMPLEO PÚBLICO", being processed in legislative file no. 21.336, is not considered unconstitutional by virtue of making the exclusions indicated therein for public enterprises in competition, non-state public entities, and the Benemérito Cuerpo de Bomberos.

XXII.- Conclusions Regarding procedural defects:

• 1)No substantial procedural defect is found regarding the argument of the inadmissibility of motions 138-231 and 138-250, because the brief of this consultation did not establish which motion amended it and "was stacked upon it"; and regarding the inadmissibility of motion 138-18, because it was based on an uncertain fact (the probability that another motion would be stacked upon it).
• 2)No substantial procedural defect is found regarding the argument of the improper joinder of motion 138-154 because, although improperly joined at the beginning, the President of the Assembly later severed it and allowed its separate discussion.
• 3)No substantial procedural defect is found regarding the argument of the lack of discussion of motion 138-210 by Deputy Paola Vega, because the motion that is said not to have been put up for discussion appears with a withdrawal stamp and the signature of the proposing deputy.

Regarding substantive defects:

• 1)Judicial Branch and Supreme Electoral Tribunal: Regarding articles 12 (database), 13.h (family members in trust-based positions), 15 (postulates of recruitment and selection), 19 (mobility in the workplace or transfers), and 31 (work methodology), consulted with respect to the Judicial Branch and the Supreme Electoral Tribunal, given that sufficient substantiation was not provided to allow this Chamber to have clarity on what was consulted, the consultation is declared unevacuable due to lack of substantiation.
• 2)Judicial Branch: Having analyzed all aspects consulted regarding articles 2 (subsection a), 6 (subsection b), 7 (subsections d, g and p), 9 (second paragraph of subsection a), 13 (subsection f), 14, 17, 18, 21 and 22, 49 (subsections b, g and h), of the draft Law called "LEY MARCO DE EMPLEO PÚBLICO" legislative file no. 21.336, in what refers to the Judicial Branch, this Chamber finds that such norms are contrary to the Law of the Constitution, for violation of the principle of separation of functions, the principle of judicial independence, the particular employment regime of the Judicial Branch, and the constitutional administrative powers of the Supreme Court of Justice.
• 3)Supreme Electoral Tribunal: Having analyzed all aspects consulted regarding articles 2 (subsection a), 6 (subsection b), 7 (subsections d, g and p), 9 (second paragraph of subsection a), 13 (subsections a and f), 14, 17, 18, 21 and 22, of the draft Law called "LEY MARCO DE EMPLEO PÚBLICO" legislative file no. 21.336, in what refers to the Supreme Electoral Tribunal, this Chamber finds that such norms are contrary to the Law of the Constitution, for violation of the principle of separation of functions and of Constitutional articles 9 and 99.
• 4)Public Universities: Regarding articles 11 (employment planning), 15 (postulates of recruitment and selection) and 16 (employment offer), consulted with respect to the Public Universities, given that sufficient substantiation was not provided to allow this Chamber to have clarity on what was consulted, the consultation is declared unevacuable due to lack of substantiation.
• 5)Public Universities: Having analyzed all aspects consulted regarding articles 6, 7, 9 (second paragraph of subsection a), 13 (subsection e), 14, 17, 30 (except for subsection b), 31, 32, 33, 34, 37 (subsection f), of the draft Law called "LEY MARCO DE EMPLEO PÚBLICO" legislative file no. 21.336, regarding the Public Universities, this Chamber finds that such norms are contrary to the Law of the Constitution, for violation of university autonomy. Articles 30.b, 35 and 36 of the draft in question are constitutional, for the reasons already stated.
• 6)Costa Rican Social Security Fund: Having analyzed all aspects consulted regarding articles 2 (subsection b), 6, 7 (subsections d), 9 (second paragraph of subsection a), 13 (subsection b), 14, 17 and 18, of the draft Law called "LEY MARCO DE EMPLEO PÚBLICO" legislative file no. 21.336, regarding the Costa Rican Social Security Fund, this Chamber finds that such norms are contrary to the Law of the Constitution, for violation of the autonomy of government of the CCSS, constitutionally protected (Constitutional art. 73) for this institution.
• 7)Municipalities: Having analyzed all aspects consulted regarding articles 2 (subsection c), 6, 7, 9 (second paragraph of subsection a), 13, 14, 17 and 18 of the draft Law called "LEY MARCO DE EMPLEO PÚBLICO" legislative file no. 21.336, regarding the Municipalities, this Chamber finds that such norms are contrary to the Law of the Constitution, for violation of the autonomy of government of the municipalities, constitutionally enshrined.
• 8)Autonomous institutions: The consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO", processed in legislative file no. 21.336, is declared unevacuable as to article 2 subsection b) -specifically in what refers to "autonomous institutions and their attached bodies, including semi-autonomous institutions and their attached bodies"- and articles 6, 7, 9, 13, 14, 17, 18, 21, 22, 24, 30 and 49 due to the lack of adequate substantiation from a constitutional standpoint.
• 9)Conscientious objection: Regarding article 23 subsection g) of the draft "LEY MARCO DE EMPLEO PÚBLICO", processed in legislative file No. 21.336, referring to conscientious objection, no substantive defects of unconstitutionality are present, because it adequately guarantees the right to conscientious objection.
• 10)Collective bargaining: Article 43 does not contain defects of constitutionality, insofar as the new obligations or rights obtained through collective bargaining conform to the principles of reasonableness, proportionality, and budgetary legality, under the protection of constitutional jurisprudence, and provided it involves collective bargaining agreements in which employees of the Public Sector who may validly enter into collective bargaining agreements in accordance with the Constitution and the law participate.
• 11)Denouncement of collective bargaining agreement: Transitory Provision XV, referring to the denouncement of collective bargaining agreements, is not unconstitutional as long as it is interpreted in the same sense indicated in vote number 2018-019511 of 21:45 hours on November 23, 2018, that is, in application of the Political Constitution (articles 62 and 74), the International Conventions of the International Labour Organization, and the jurisprudence of this Tribunal, it must be interpreted that each head of the public entities has the power to denounce or not the respective collective bargaining agreement, in accordance with the prevailing legal system.
• 12)Disqualification: Article 4.a of the draft "LEY MARCO DE EMPLEO PÚBLICO", processed in legislative file No. 21.336, is not unconstitutional. It being a matter for the legal operator to address everything related to applying due process to dismissal, evaluating the existing relationship between the type of misconduct committed and the sanction, or regarding the proportionality and reasonableness of the sanctioning administrative act, and determining the specific norm to apply when special regulations exist in the institution in question.
• 13)Salary and the principle of equality: Transitory Provisions XI and XII do not violate the principle of equality -equal pay for equal work in identical conditions of efficiency-, nor the principle of legality and, consequently, are not unconstitutional.
• 14)Due process: The aspects consulted on articles 21 and 22 of the draft "LEY MARCO DE EMPLEO PÚBLICO", processed in legislative file no. 21.336, do not contain violations of the principle of constitutional due process; rather, the majority of what was consulted on this matter refers to issues of legislative technique that will be for the legislator or the legal operator to remedy.
• 15)Leave: The Chamber finds no defects of unconstitutionality in the aspects challenged regarding articles 39, 40, 41 and 42 of the draft law consulted, as it is a matter of legislative discretion, given that the mandatory consultation with the CCSS was carried out, and as there are no elements that should determine that the legislator was required to have, beforehand in this case, a technical study. Furthermore, the issue of the alleged contradiction between articles 39 and 40 of the draft, as it involves a possible legal antinomy, is not of constitutional interest.
• 16)Exclusions: In the terms indicated and in accordance with constitutional jurisprudence, article 3 of the draft "LEY MARCO DE EMPLEO PÚBLICO", processed in legislative file no. 21.336, is not considered unconstitutional by virtue of making the exclusions indicated therein for public enterprises in competition, non-state public entities, and the Benemérito Cuerpo de Bomberos.

XXIII.- General Notes Notes by Judge Castillo Víquez on points 1, 4, 6, and 45 of the Por Tanto.- In view of the drafting of the advisory opinion, he waived the notes indicated in points 1, 4, 6, and 45 of the Por Tanto.

Note by Judge Hernández López During the discussion of this matter, I had reserved the drafting of a separate note. However, I dispense with it, as the observations I had on the subject are comprehensively reflected in the drafting of the judgment.

Note by Judge Rueda Leal. Several points must be clarified in this general note to the draft consulted. Respect for the independence of the branches of the Republic and for constitutionally safeguarded autonomies stems from the recognition of their respective constitutional mandates. More than indicating how the subject of public employment must be regulated, the Chamber, in this vote, indicates regulatory impediments or prohibitions, derived from constitutional provisions and the jurisprudence of this Tribunal, and does so precisely in attention to such mandates. By its nature, the legislative consultation on constitutionality does not seek to exhaust the constitutional analysis of a draft law, a situation derived from article 101 of the Law of Constitutional Jurisdiction, when it states that:

"...the opinion does not preclude the possibility that the challenged norm or norms may later be challenged through the means of constitutionality control." Similarly, the opinion rendered by the Chamber does not prevent it from hearing the protection of fundamental rights in situations related to public employment, when it deems it is within its competence (article 7 of the Law of Constitutional Jurisdiction).

The case of article 2 consulted is representative of the complexity of this draft. Its unconstitutionality does not arise from its wording per se, but rather from its effects, as other articles of that draft infringe upon the independence or autonomy of some entity, constitutionally protected, which means that the inclusion made in article 2 contravenes the Constitution. I consider that such complexity will increase exponentially if the norm is approved and fully incorporated into the legal system, as it will have to be combined with other norms that also regulate the matter of public employment, but directed specifically at some of those entities.

In another vein, given the length of this resolution and the number of precedents cited, it would be redundant at every point to add a note to record each time I had saved my vote, stated reasons, or signed a note in any of them, except in some extreme case where I consider it might lead to confusion regarding my particular position.

Final note by Judge Garro Vargas.- THE NORMATIVE PLEXUS GOVERNING THE CONSTITUTIONAL CHAMBER. In previous notes (see judgments 2014-004630, 2015-016070, 2015-019582, 2016-018351, 2020-013316) I have made some considerations regarding the exercise of constitutional control and international instruments as a parameter of evaluation. In this regard, as pertinent and in summary, I indicated the following:

"The function of controlling the conformity of laws and general provisions with treaties and conventions is not expressly provided for in the constitutional text but only in art. 73.d) LJC, but it is not contrary to the former, because it guarantees the effectiveness of art. 7 CP. That function of controlling such conformity is a different function from the one the Chamber exercises by reason of art. 10 CP –constitutionality control– and from the one established in art. 48 CP –providing jurisdictional guarantees for constitutional rights and those of a fundamental nature established in international instruments on human rights–.

When this Chamber exercises its function of constitutionality control, it is not appropriate for it to resort to treaties and use them de facto as if they formed part of the constitutionality parameter. Such instruments, and only if they are duly ratified, can become a parameter of conformity of legal and infra-legal norms with themselves, by reason of what is established in art. 7 CP and 73.d) LJC. This is consistent with a systematic interpretation of the Constitution and the LJC and with respect for the separation of powers, a fundamental principle of any democratic State governed by the rule of law". (The highlighting does not correspond to the original votes).

In the specific case, there is an express reference to the following documents: Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders; the European Charter on the Statute for Judges adopted in Strasbourg; the "Statute of the Iberoamerican Judge" approved at the VI Ibero-American Summit of Presidents of Supreme Courts and Supreme Tribunals of Justice, held in Santa Cruz de Tenerife, Canary Islands, Spain; Report No. 1 of November 23, 2001, rendered by the Consultative Council of European Judges (CCJE); the Statute of Justice and Rights of Persons Using the Judicial System; the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950; the Charter of Fundamental Rights of the European Union (2000/C 364/01); as well as the citation of several resolutions from international tribunals. From my perspective and the rigor with which this Constitutional Tribunal must be managed, said references are merely illustrative, but do not in themselves constitute a binding normative parameter for carrying out constitutionality control.

Note by Judge Araya García The undersigned Judge, in view of the final drafting of this judgment 21-17098, and taking into consideration the arguments and considerations established in this resolution, dispenses with the note I indicated I would record at the time of the vote.

General note by Judge Picado Brenes.- Given that I have already proceeded to express, in the various prior notes and concurring reasons, what is pertinent, I proceed to waive this general note.

XXIV.- DOCUMENTATION PROVIDED TO THE FILE.

The parties are warned that if they have provided any paper document, as well as objects or evidence contained in any additional electronic, computer, magnetic, optical, telematic device or one produced by new technologies, these must be withdrawn from the office within a maximum period of 30 business days counted from the notification of this judgment. Otherwise, any material not withdrawn within this period will be destroyed, in accordance with the provisions of the "Reglamento sobre Expediente Electrónico ante el Poder Judicial", approved by the Full Court in session No. 27-11 of August 22, 2011, article XXVI and published in the Judicial Bulletin number 19 of January 26, 2012, as well as the agreement approved by the Superior Council of the Judicial Branch, in session No. 43-12 held on May 3, 2012, article LXXXI.

Por tanto:

On the admissibility of the consultations:

• 1)By unanimity, the consultation formulated through file no. 21-011713-0007-CO is admitted. Judges Castillo Víquez, Salazar Alvarado and Judge Garro Vargas record separate notes. Judge Rueda Leal gives different reasons regarding the admissibility of this Consultation.
• 2)By unanimity, the consultation formulated through file no. 21-011915-0007-CO is admitted. Judges Hernández López and Garro Vargas give different reasons separately. Judge Salazar Alvarado and Judge Picado Brenes record separate notes.
• 3)By majority, the consultation formulated through file no. 21-012118-0007-CO is admitted. Judge Salazar Alvarado records a note. Judges Castillo Víquez and Rueda Leal save their vote and declare the consultation unevacuable for separate reasons.
• 4)By majority, the consultation formulated through file no. 21-012714-0007-CO by the Supreme Court of Justice is declared unevacuable. Judges Castillo Víquez and Rueda Leal issue separate notes. Judges Garro Vargas and Picado Brenes save their vote and admit the consultation. Judge Garro Vargas records a note.

On the alleged procedural defects:

• 5)By unanimity, the alleged substantial procedural defects are not found regarding: a) The argument of the inadmissibility of reiteration motions numbers 138-231, 138-250, and 138-18; b) The argument of the improper joinder of the reiteration motions; c) The argument of the lack of discussion of motion 138-210.

On the alleged substantive defects regarding the Judicial Branch and the Supreme Electoral Tribunal:

• 6)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is evacuated, in the sense that article 2 subsection a) is not in itself unconstitutional, in that it includes the Judicial Branch and the Supreme Electoral Tribunal in a general regulatory framework for public employment, but it is so in its effects, because some of its norms -as examined below- empty the principle of separation of powers of content. Judges Castillo Víquez and Rueda Leal, and Judges Garro Vargas and Picado Brenes issue separate notes.
• 7)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is evacuated, in the sense that article 6 subsection b) is unconstitutional. It is declared that it is unconstitutional in that it subjects the Judicial Branch and the Supreme Electoral Tribunal to the directive power of the Executive Branch. Judge Rueda Leal issues a note. Judges Garro Vargas and Picado Brenes give different reasons and declare it unconstitutional in that it subjects the Judicial Branch and the Supreme Electoral Tribunal to the stewardship of the General System of Public Employment under the charge of Mideplán.
• 8)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is evacuated, in the sense that subsections d), g) and p) of article 7 are unconstitutional for affecting the independence of the Judicial Branch and the Supreme Electoral Tribunal, insofar as it subjects them to the directive and regulatory power of Mideplán, as well as to the verification of whether or not the purpose of the performance evaluation is met, with this last function corresponding to the above-cited branches according to their internal regulations. Judges Garro Vargas and Picado Brenes give additional reasons.
• 9)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is evacuated, in the sense that the second paragraph of subsection a) of article 9 is unconstitutional, regarding its application to the Judicial Branch and the Supreme Electoral Tribunal.
• 10)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is declared unevacuable regarding article 12 due to lack of substantiation of what was consulted, with respect to the Judicial Branch and the Supreme Electoral Tribunal. Judges Garro Vargas and Picado Brenes issue separate notes.
• 11)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is evacuated, in the sense that article 13 subsection f) is unconstitutional for harming the independence of branches, both with respect to the Judicial Branch and the Supreme Electoral Tribunal. Judges Garro Vargas and Picado Brenes give different reasons.
• 12)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is evacuated, in the sense that article 13 subsection a) is unconstitutional, regarding the Supreme Electoral Tribunal, because all the officials of that body would move to the Civil Service, with the exception of its judges.
• 13)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is declared unevacuable regarding article 13 subsection h), due to the lack of adequate substantiation from a constitutional standpoint of what was consulted regarding the Judicial Branch and the Supreme Electoral Tribunal.
• 14)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is evacuated, in the sense that the first paragraph of article 14 is unconstitutional, regarding the Judicial Branch and the Supreme Electoral Tribunal.
• 15)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is declared unevacuable regarding article 15, due to lack of substantiation of what was consulted.
• 16)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is evacuated, in the sense that the first paragraph of article 17 is unconstitutional, insofar as it subjects the senior management positions of the Judicial Branch and the Supreme Electoral Tribunal to the general provisions, directives, and regulations issued by Mideplán.
• 17)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is evacuated, in the sense that article 18 is unconstitutional because it affects the independence of the Judicial Branch and the Supreme Electoral Tribunal.
• 18)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is declared unevacuable regarding article 19, due to the lack of adequate substantiation from a constitutional standpoint of what was consulted. Judges Garro Vargas and Picado Brenes issue a note.
• 19)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is evacuated, in the sense that articles 21 and 22 are unconstitutional, because the exercise of the disciplinary power over the servants of the Judicial Branch and those of the Supreme Electoral Tribunal is an essential part of judicial and electoral independence. However, the creation of a new cause for dismissal, for failing the performance evaluation on two consecutive occasions, is not unconstitutional as long as it is applied by the Judicial Branch and the Supreme Electoral Tribunal in accordance with their internal regulations.
• 20)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is declared unevacuable regarding article 31, due to the lack of adequate substantiation from a constitutional standpoint of what was consulted. Judge Picado Brenes issues a note.
• 21)By majority, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is evacuated, in the sense that article 49 subsection b) is not unconstitutional, provided it is interpreted that the General Directorate of Civil Service lacks competence regarding matters pertaining to the Judicial Branch and that its special regulations on these matters are not being repealed. Judges Castillo Víquez, Salazar Alvarado and Judge Hernández López save their vote and declare the complaint dismissed because it is not referred to the Judicial Branch, nor does it repeal its special regulations on these matters.
• 22)By majority, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is evacuated, in the sense that subsections g) and h) of article 49 are unconstitutional for violating the independence of the Judicial Branch. Judge Castillo Víquez and Judge Hernández López save their vote and declare that these subsections are not unconstitutional.

On the alleged substantive defects regarding public universities:

• 23)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is evacuated, in the sense that article 6 is unconstitutional insofar as it subjects the public universities to the directive power of the Executive Branch. Judges Garro Vargas and Picado Brenes give different reasons.
• 24)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is evacuated, in the sense that article 7 is unconstitutional in relation to those provisions that subject the public universities to the directive and regulatory power of Mideplán. Judges Garro Vargas and Picado Brenes give additional reasons.
• 25)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is evacuated, in the sense that the second paragraph of subsection a of article 9 is unconstitutional regarding its application to public universities.
• 26)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO" processed in legislative file no. 21.336 is declared unevacuable regarding article 11, due to the lack of adequate substantiation from a constitutional standpoint of what was consulted regarding public universities.
• 27)By unanimity, the consultation on constitutionality regarding the draft "LEY MARCO DE EMPLEO PÚBLICO", processed in legislative file no. 21.336, is evacuated, in the sense that article 13 subsection e) is unconstitutional, for not including in that subsection the servants who carry out research, extension service, and cultural activities of the public universities.

Justices Garro Vargas and Picado Brenes provide additional reasons.

• 28)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Article 14 is unconstitutional, because it subjects the recruitment and selection system for personnel of public universities to the directive authority of Mideplán.
• 29)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is declared unanswerable (inevacuable) with respect to Articles 15 and 16, due to a lack of proper constitutional grounding for the matters consulted regarding public universities.
• 30)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Article 17 is unconstitutional, insofar as it subjects senior management personnel of public universities to the general provisions, directives, and regulations issued by Mideplán. Justices Garro Vargas and Picado Brenes note their position.
• 31)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Article 30 is unconstitutional, insofar as it does not exclude officials who perform substantive tasks—inherent to university activity—and because it does not establish that—in consideration of university autonomy—the construction of the family of the salary column and its characteristics corresponds exclusively and excludably to the highest governing bodies of the university entities. Justices Garro Vargas and Picado Brenes provide different reasons.
• 32)By majority vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Article 30, subsection b) is constitutional. Justices Hernández López, Garro Vargas, and Picado Brenes issue a dissenting vote regarding Article 30, subsection b) and consider that, with respect to university autonomy, it is unconstitutional in its effects for the salary of the President of the Republic to be a cap for universities, when there are technical reasons justifying other remuneration.
• 33)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Articles 31, 32, and 34 are unconstitutional, insofar as they do not exclude officials who perform substantive tasks—inherent to university activity—and because the definition of the relevant job factors, their relative weight, the number of grades required within each family and their characteristics, and the elaboration of the salary column corresponds exclusively and excludably to the highest governing bodies of the university entities. Justices Garro Vargas and Picado Brenes provide different reasons.
• 34)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Article 33 is unconstitutional, insofar as it does not exclude officials who perform substantive tasks—inherent to university autonomy—and subjects the manual of positions for said officials to the analysis and evaluation of Mideplán, which—in consideration of university autonomy—corresponds exclusively and excludably to the highest governing bodies of the university entities. Justices Garro Vargas and Picado Brenes provide different reasons.
• 35)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Articles 35 and 36 are constitutional. Justices Garro Vargas and Picado Brenes provide different reasons separately.
• 36)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Article 37, subsection f) is unconstitutional.

Regarding the substantive defects alleged with respect to the Caja Costarricense de Seguro Social (CCSS):

• 37)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Article 2, subsection b) is not in itself unconstitutional, insofar as some of its provisions—as examined below—include the CCSS within a general regulatory framework for public employment, but it is unconstitutional in its effects since some of its provisions empty its governmental autonomy of content. Justices Castillo Víquez and Rueda Leal, and Justices Garro Vargas and Picado Brenes enter separate notes.
• 38)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Article 6 is unconstitutional, insofar as it subjects the CCSS to the directive authority of the Executive Branch. Justices Garro Vargas and Picado Brenes provide different reasons.
• 39)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that subsection d) of Article 7 is unconstitutional in relation to those provisions that subject the CCSS to the directive and regulatory authority of Mideplán. Justices Garro Vargas and Picado Brenes provide additional reasons.
• 40)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that the second paragraph of subsection a) of Article 9 is unconstitutional regarding its application to the CCSS.
• 41)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Article 13, subsection b) is unconstitutional, for not including the servants who perform substantive and professional tasks related to the constitutional purposes assigned to the CCSS. Justices Garro Vargas and Picado Brenes provide additional reasons.
• 42)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that the first paragraph of Article 14 is unconstitutional, because it subjects the recruitment and selection system for personnel who perform substantive and professional tasks related to the constitutional purposes to the directive authority of Mideplán.
• 43)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Article 17 is unconstitutional, insofar as it subjects the senior public management personnel of the CCSS to the general provisions, directives, and regulations issued by Mideplán.
• 44)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Article 18 is unconstitutional, for affecting the political autonomy of the CCSS regarding the terms of senior public management personnel. Justice Picado Brenes provides additional reasons.

Regarding the substantive defects alleged with respect to the municipalities:

• 45)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Article 2, subsection c) is not in itself unconstitutional, insofar as it includes the municipalities in a general regulatory framework for public employment, but it is unconstitutional in its effects since some of its provisions—as examined below—empty their governmental autonomy of content. Justices Castillo Víquez and Rueda Leal, and Justices Garro Vargas and Picado Brenes enter separate notes.
• 46)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Article 6 is unconstitutional insofar as it subjects the municipalities to the directive authority of the Executive Branch.
• 47)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Article 7 is unconstitutional in relation to those provisions that subject the municipalities to the directive and regulatory authority of Mideplán. Justices Garro Vargas and Picado Brenes provide additional reasons.
• 48)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that the second paragraph of subsection a) of Article 9 is unconstitutional regarding its application to the municipalities. Justice Garro Vargas provides different reasons. Justice Picado Brenes provides additional reasons.
• 49)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Article 13, by not creating a job family for municipal employees, includes all of them in the Civil Service. Justice Garro Vargas provides different reasons. Justice Picado Brenes records additional reasons.
• 50)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that the first paragraph of Article 14 is unconstitutional, because it subjects the recruitment and selection system for personnel who perform substantive and professional tasks related to the constitutional purposes of the municipalities to the directive authority of Mideplán.
• 51)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Article 17 is unconstitutional, insofar as it subjects the senior management positions of the municipalities to the general provisions, directives, and regulations issued by Mideplán.
• 52)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Article 18 is unconstitutional, for affecting the political autonomy of the municipalities regarding the terms of senior public management personnel. Justice Picado Brenes provides different reasons.

Regarding the substantive defects with respect to the autonomous institutions (instituciones autónomas):

• 53)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO,” being processed under legislative file No. 21.336, is declared unanswerable (inevacuable) with respect to Article 2, subsection b) —specifically regarding “the autonomous institutions and their attached bodies, including semi-autonomous institutions and their attached bodies” and Articles 6, 7, 9, 13, 14, 17, 18, 21, 22, 24, 30, and 49 due to a lack of adequate constitutional grounding.

Regarding the other substantive defects:

• 54)By majority vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that subsection g) of Article 23 is not unconstitutional because it adequately guarantees the right to conscientious objection (objeción de conciencia). Justice Rueda Leal provides different reasons regarding what was consulted on this topic in file No. 21-011713-0007-CO. Justice Hernández López considers that Article 23, subsection g) of the consulted draft law is constitutional, provided it is interpreted that the sworn declaration referred to in the norm must be subject to a verification process that guarantees that the public official is not evading obligations inherent to their special subjection relationship, which would nullify or empty the content of the constitutional and legal guarantees and limitations of conscientious objection, such as security, order, health, and respect for the fundamental rights of persons, particularly human dignity and non-discrimination, according to the balancing judgment that must be made in each specific case, as established in ruling 2020-001619 of this Chamber. Justices Castillo Víquez and Rueda Leal omit pronouncement regarding what was consulted on this topic in file No. 21-012118-0007-CO.
• 55)By majority vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Article 43 does not contain constitutional defects, insofar as the new obligations or rights obtained through the scope of collective bargaining conform to the principles of reasonableness, proportionality, and budgetary legality, under the protection of constitutional jurisprudence, and provided it concerns collective bargaining agreements where Public Sector employees who may validly enter into collective bargaining agreements in accordance with the Constitution and the law participate. Justice Rueda Leal and Justices Garro Vargas and Picado Brenes provide different reasons.
• 56)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Transitory Provision XV referring to the denunciation of collective bargaining agreements is not unconstitutional provided it is interpreted in the same sense indicated in vote number 2018-019511 at 21:45 hours on November 23, 2018, that is, in application of the Political Constitution (Articles 62 and 74), the International Conventions of the International Labour Organization, and the jurisprudence of this Court, it must be interpreted that each head of public entities has the power to denounce or not denounce the respective collective bargaining agreement, in accordance with the current legal system. Justice Rueda Leal provides particular reasons regarding this point. Justices Garro Vargas and Picado Brenes provide different reasons.
• 57)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that subsection a) of Article 4 referring to disqualification (inhabilitación) is not unconstitutional. Justice Picado Brenes enters a note.
• 58)By majority vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Transitory Provisions XI and XII referring to salary rules are not unconstitutional. Justice Rueda Leal records different reasons. Justices Hernández López, Garro Vargas, and Picado Brenes issue a dissenting vote and consider subsection a) of Transitory Provision XI unconstitutional for violating the right to wage equality. Justices Garro Vargas and Picado Brenes enter separate notes.
• 59)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Articles 21 and 22 do not contain violations of the principle of constitutional due process, and therefore they are not unconstitutional regarding this consulted topic.
• 60)By majority vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Articles 39, 40, 41, and 42, regarding new leave assumptions, are not unconstitutional. Justice Picado Brenes provides particular reasons. Justice Garro Vargas issues a dissenting vote and declares it unanswerable (inevacuable).
• 61)By unanimous vote, the constitutional consultation on the draft bill for the “LEY MARCO DE EMPLEO PÚBLICO” being processed under legislative file No. 21.336 is resolved, in the sense that Article 3, regarding the scope of exclusions, is not unconstitutional.
• 62)Justices Rueda Leal and Araya García, and Justices Hernández López, Garro Vargas, and Picado Brenes enter separate notes.

Notify the Asamblea Legislativa and the Corte Suprema de Justicia.- Fernando Castillo V.

Paul Rueda L. Nancy Hernández L.

Luis Fdo. Salazar A. Jorge Araya G.

Anamari Garro V. Ana María Picado B.

[1] In this regard, the Court notes that Article 9 does not explicitly refer to the right to conscientious objection. However, it considers that opposition to military service, when motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person's conscience or their religious or other deeply held and genuine beliefs, constitutes a conviction or belief of sufficient force, seriousness, cohesion, and importance to attract the guarantees of Article 9..." Free translation.

Observations from SALA CONSTITUCIONAL voted with ballot Classification prepared by SALA CONSTITUCIONAL of the Poder Judicial. Reproduction and/or distribution for profit is prohibited.

It is a faithful copy of the original - Taken from Nexus.PJ on: 09-05-2026 09:51:13.

Sala Constitucional Clase de asunto: Consulta legislativa facultativa Control constitucional: Sentencia estimatoria Analizado por: SALA CONSTITUCIONAL Sentencia con Voto Salvado Sentencia con nota separada Indicadores de Relevancia Sentencia relevante Sentencia clave Sentencias Relacionadas Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: TRABAJO Subtemas:

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Tema: CONSULTA LEGISLATIVA FACULTATIVA Subtemas:

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017098-21. TRABAJO. CONSULTA LEGISLATIVA FACULTATIVA DE CONSTITUCIONALIDAD, REFERENTE AL PROYECTO DE LEY DENOMINADO "LEY MARCO DE EMPLEO PÚBLICO". EXPEDIENTE LEGISLATIVO N° 21.336.

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Tipo de contenido: Voto de mayoría Rama del Derecho: 6. LEY DE LA JURISDICCIÓN CONSTITUCIONAL ANOTADA CON JURISPRUDENCIA Tema: 101- Pronunciamiento de la Sala Subtemas:

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ARTÍCULO 101 DE LA LEY DE LA JURISDICCIÓN CONSTITUCIONAL. “…el artículo 101 de la Ley de la Jurisdicción Constitucional establece un plazo de un mes para evacuar la consulta de constitucionalidad facultativa a partir de recibidos los expedientes legislativos o su acumulación, salvo causas de interrupción…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 6. LEY DE LA JURISDICCIÓN CONSTITUCIONAL ANOTADA CON JURISPRUDENCIA Tema: 096- Consulta Legislativa de Constitucionalidad Subtemas:

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ARTÍCULO 96 INCISO C) DE LA LEY DE LA JURISDICCIÓN CONSTITUCIONAL. “...Es por ello por lo que la Sala Constitucional ha establecido como momento de inicio del plazo el recibido del expediente legislativo o la acumulación; a partir de esos momentos no es posible admitir nuevas consultas, sean de los (as) diputados (as) o de otros órganos externos al Parlamento. En segundo término, es claro que la Corte Suprema de Justicia conoce esta postura del Tribunal -ha sido una jurisprudencia reiterada-, por ello, y máxime que el proyecto en su versión original y final fueron objeto de consulta constitucional a este poder del Estado de conformidad con el numeral 167 de la Carta Fundamental, es claro que la Corte Suprema de Justicia tenía el tiempo suficiente para hacer la consulta antes de recibido el expediente legislativo o de la acumulación de las consultas. Finalmente, si el inicio del plazo que ha definido la Sala se corriera a causa de nuevas consultas de constitucionalidad facultativas especiales por parte de los órganos externos, el plazo podría ampliarse hasta por cinco meses, todo lo cual conllevaría no solo una vulneración del numeral 101 de la Ley de la Jurisdicción Constitucional, sino que constituiría una interferencia indebida en el iter del proyecto de ley en el procedimiento parlamentario, con el agravante, que los tiempos y momentos políticos en la Asamblea Legislativa son cambiantes y volátiles, por lo que podría, en muchos casos, dar al traste con los acuerdos concertados en la Asamblea Legislativa. De ahí que por las razones antes apuntadas, la consulta presentada por la Corte Suprema de Justicia es inevacuable por extemporánea…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 6. LEY DE LA JURISDICCIÓN CONSTITUCIONAL ANOTADA CON JURISPRUDENCIA Tema: 096- Consulta Legislativa de Constitucionalidad Subtemas:

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ARTÍCULO 96 DE LA LEY DE LA JURISDICCIÓN CONSTITUCIONAL. “…De conformidad con lo que dispone la Ley de la Jurisdicción Constitucional, este Tribunal Constitucional puede ejercer la opinión consultiva previa sobre los proyectos legislativos. Dentro de los diferentes tipos de consulta de constitucionalidad, nos encontramos con la consulta facultativa contemplada en el inciso b) del artículo 96 de la citada ley, planteada por diputados de la Asamblea Legislativa, con los requisitos que se dirán. Además, con la consulta facultativa contemplada en el inciso c) del artículo 96 de la citada ley, planteada por la Corte Suprema de Justicia, en aspectos relacionados con su competencia constitucional. En este caso, nos encontramos con tres consultas facultativas presentadas por diputados y con una consulta presentada por el Presidente de la Corte Suprema de Justicia…

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Tipo de contenido: Voto de mayoría Rama del Derecho: 6. LEY DE LA JURISDICCIÓN CONSTITUCIONAL ANOTADA CON JURISPRUDENCIA Tema: 096- Consulta Legislativa de Constitucionalidad Subtemas:

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ARTÍCULO 96 INCISO B) DE LA LE DE LA JURISDICCIÓN CONSTITUCIONAL. “…No se admiten los rechazos parciales de firmas, realizados el 30 de junio, presentados por tres diputados (Sylvia Patricia Villegas, Walter Muñoz y Shirley Díaz Mejías) por cuanto, independientemente de cuándo se realicen, resulta inadmisible para esta Sala los retiros parciales de firma. Cuando se suscribe una consulta se suscribe en su totalidad, por ello, no se admite una firma parcial ni un retiro parcial, ni antes ni después de recibido el expediente legislativo…” “…Además, el retiro de la firma de otra diputada (Paola Valladares) por el hecho de ser presentada el 07 de julio, con posterioridad a la presentación del expediente legislativo, hace que no se pueda admitir su retiro, y que, por lo tanto, esta consulta mantenga la firma de 10 diputados…” ARTÍCULO 96 INCISO C) DE LA LE DE LA JURISDICCIÓN CONSTITUCIONAL. “…hay que tener presente que la Sala Constitucional tiene un plazo de un mes fijado por ley para evacuar la consulta admitida. En ese sentido, y con el fin de que el trámite de la opinión consultiva no se convierta en un obstáculo para que el Parlamento ejerza la potestad legislativa, este Tribunal tiene que establecer un momento de inicio del plazo para tener certeza cuál es el último día para evacuarla…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 6. LEY DE LA JURISDICCIÓN CONSTITUCIONAL ANOTADA CON JURISPRUDENCIA Tema: 034- Legitimación pasiva. Litis consorcios Subtemas:

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ARTÍCULOS 34 Y 83 DE LA LEY DE LA JURISDICCIÓN CONSTITUCIONAL. “…Sobre todas estas gestiones, con manifestaciones a favor y en contra del proyecto consultado, procede señalar que la intervención adhesiva activa o pasiva no está prevista para los mecanismos de consulta legislativa, en los que pueden existir simples opiniones jurídicas contrapuestas acerca de la regularidad constitucional de un proyecto de ley, lo que sí procede en los procesos de amparo o de acciones de inconstitucionalidad -artículos 34 y 83 de la Ley de la Jurisdicción Constitucional; tal como lo ha indicado esta Sala en casos anteriores por tratarse la consulta facultativa de constitucionalidad de un proyecto de ley, siendo un proceso donde no se admiten coadyuvancias, ni a favor ni en contra del proyecto consultado, lo que procede es la denegatoria del trámite de todos estos escritos…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 121- Atribuciones de la Asamblea Legislativa Subtemas:

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ARTÍCULO 121 INCISO 22) DE LA CONSTITUCIÓN POLÍTICA. “…El tema de vicios sustanciales en el procedimiento parlamentario ha sido analizado en varias oportunidades por esta Sala. La jurisprudencia constitucional ha indicado en general que, la potestad de reglamentación interna de la Asamblea Legislativa se puede ejercer libre y autónomamente, en tanto, claro está, no enfrente disposiciones, principios o valores constitucionales. La potestad del Parlamento para dictar las normas de su propio gobierno interno (interna corporis), no solo está prevista por la Constitución Política en su artículo 121 inciso 22, sino que es consustancial al sistema democrático y específica de la Asamblea Legislativa como poder constitucional, a tenor del Título IX de la Carta Fundamental. Esta potestad es intrínseca de la Asamblea Legislativa, la cual desarrolla, con absoluta independencia de los otros órganos del Estado, en virtud del principio establecido en el artículo 9 de la Carta Fundamental. Sin embargo, como toda potestad, su ejercicio está sujeto a limitaciones, cuales son: el acatamiento del Derecho de la Constitución, es decir, al conjunto de valores, principios y normas constitucionales. En reconocimiento de esa “interna corporis”, esta Sala ha reconocido que su función en materia de procedimiento legislativo es únicamente la de declarar, aquellos vicios sustanciales, que violen los principios y valores constitucionales aplicables a la materia, pues de lo contrario estaría afectando la capacidad autonormativa y funcional del parlamento (interna corporis), distorsionando su papel de guardián de la supremacía constitucional, por el de una especie de senado ad hoc. De esta forma, sólo frente a violaciones evidentes o groseras, de los principios constitucionales que rigen el derecho parlamentario, sería legítima la intervención de esta Jurisdicción Constitucional….” “…En conclusión, de todo lo anterior se desprende que, la facultad de mocionar de todos los diputados de la Asamblea Legislativa admite como únicos límites los que expresamente consten en la Constitución Política, o bien en el Reglamento de la Asamblea Legislativa, siempre que no restrinjan en forma excesiva o afecte el núcleo esencial de dicha atribución (derecho de enmienda del diputado). Por ello, es posible que el presidente de la Asamblea Legislativa proceda a acumular mociones, mediante una resolución motivada…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 188- Instituciones autónomas Subtemas:

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ARTÍCULO 188 DE LA CONSTITUCIÓN POLÍTICA. “…Otra cuestión que necesariamente se debe abordar, partiendo del hecho de que la Asamblea Legislativa, en ejercicio de la potestad de legislar, tiene una competencia constitucional para regular la organización y las funciones de los poderes y los entes descentralizados, no para suprimir las autonomías autoorganizativa o autonormativa -en el caso de las universidades estatales-, la política -en el caso de la municipalidades y la CCSS- y la administrativa -en el caso de las instituciones autónomas-, es si, en lo que atañe a una función típicamente administrativa -empleo público- en relación con ciertos puestos de trabajo vinculados directamente a las competencias exclusivas y excluyentes puede o no afectarlas, las que se derivan de esos grados de independencia, es decir, los puestos relativos a la competencia en las materias en las que hay exclusividad en su ejercicio, los cuales deben ser definidos de forma exclusiva y excluyentes por los órganos constitucionales y los entes con fines constitucionalmente asignados y para lo que les dota de grados de autonomía con basamento constitucional. Quiere esto decir que el legislador tiene un límite en el ejercicio de la potestad de legislar, pues no las puede suprimir, o afectar, en sus elementos esenciales, ni trasladar a otros entes u órganos…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 2. PRINCIPIOS CON JURISPRUDENCIA Tema: Separación y coordinación de funciones estatales Subtemas:

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PRINCIPIO DE SEPARACIÓN DE PODERES. “…De acuerdo al diseño de distribución de competencias, que responde al principio de separación de poderes y a los grados de autonomía, establecido por el constituyente originario a favor de los órganos constitucionales -poderes del Estado- y entes públicos descentralizados por región -corporaciones municipales- y servicios -universidades estatales y la CCSS-, es claro que la potestad de dirección que corresponde al Poder Ejecutivo o a uno de sus órganos -Mideplán- resulta incompatible con ese principio constitucional y los grados de autonomía que gozan ciertos entes. Dicho de otra forma, la potestad de dictar directrices -mandatos especiales que ordenan la actividad de un órgano o un ente fijándole metas y objetivos, mas no un acto concreto- no es constitucional cuando afecta o incide en las competencias exclusivas y excluyentes de los otros poderes del Estado o en los fines constitucionalmente asignados a los entes de base corporativa o institucional que gozan de un grado de autonomía tres -autoorganizativa o normativa- o dos -política- o en aquellas actividades administrativas necesarias para el ejercicio de esas competencias. Partiendo de esta idea cardinal, es claro que en materia de empleo público, en lo que atañe al personal de los poderes del Estado y los entes descentralizados por región y servicio, quienes ejercen tales competencias -jurisdiccionales, parajurisdiccionales, electorales- o participan de la gestión pública relativa a los fines constitucionalmente asignados a los citados entes, así como el personal administrativo de apoyo, profesional o técnico, que defina, de forma exclusiva y excluyente, cada poder y ente, no pueden quedar, de ninguna manera, bajo el poder de dirección del Poder Ejecutivo o de Mideplán. Hay, pues, un núcleo duro, un indisponible para el Poder Ejecutivo, que no puede ser ordenado en su actividad, ni mucho menos mediante el ejercicio de la potestad reglamentaria, que corresponde exclusivamente a cada poder del Estado y cada ente público…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 191- Servicio Civil Subtemas:

NO APLICA.

ARTÍCULO 191 DE LA CONSTITUCIÓN POLÍTICA. “…Se visualiza un régimen de servicio civil, no como un privilegio corporativo, sino como una garantía de la imparcialidad institucional, que regula la función pública, garantiza la selección del personal con base en criterios de mérito y capacidad, así como en un justo equilibrio entre derechos y responsabilidades de los empleados públicos. Se ha indicado también, que dicha legislación debe prever instrumentos que a las diferentes administraciones les faciliten la planificación, ordenación y utilización más eficiente de su personal. De ahí que la relación laboral de empleo público esté sujeta a ciertas especificidades y principios, como los de mérito y capacidad en el acceso, y también a determinadas normas de derecho público, como el régimen de incompatibilidades, que garanticen objetividad e imparcialidad en la prestación del servicio público…Así las cosas, los principios y normas constitucionales que regentan el Servicio Civil se extienden al régimen de empleo público de los entes administrativos, pues la intención del constituyente fue crear un régimen laboral administrativo, con sus propios principios, derivados de la naturaleza estatutaria de la relación entre los funcionarios públicos y el Estado, y aunque lo concibió de un modo general, en el artículo 192 constitucional también dejó prevista la necesidad de establecer excepciones a esa única regulación…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 140- Deberes y atribuciones del Poder Ejecutivo Subtemas:

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ARTÍCULO 140 DE LA CONSTITUCIÓN POLÍTICA. “…Como fácilmente se deduce de lo que llevamos dicho, la intención del constituyente originario fue someter a un régimen de Derecho administrativo -estatutario- todas las relaciones de empleo público, es decir, ningún órgano ni ente de la Administración Pública, central o descentralizada, quedó exento de este deber, de ahí que, si bien pueden existir estatutos especiales -propios de los órganos y entes descentralizados-, siempre y cuando respondan a los principios cardinales que se encuentran consagrados en la Carta Fundamental, también es lo cierto que es constitucionalmente válido que haya un estatuto único que regula las relaciones entre la Administración Pública, central y descentralizada, y sus servidores. Lo anterior significa, que la Asamblea Legislativa está habilitada por el Derecho de la Constitución a establecer un estatuto único que comprenda a todos (as) los (as) servidores (as) públicos, con las excepciones que la Constitución -incisos 1 y 2 del artículo 140- y el citado estatuto determine, por lo que, en este extremo, el proyecto de ley consultado no resulta contrario al citado Derecho y, lógicamente, siempre y cuando no se supriman, afecte en lo esencial, ni se trasladen las competencias exclusivas y excluyentes que le corresponden a los poderes del Estado y a los entes descentralizados a otros órganos y entes según el principio de separación de poderes o funciones o el grado de autonomía, respectivamente…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 2. PRINCIPIOS CON JURISPRUDENCIA Tema: Independencia del juzgador Subtemas:

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INDEPENDENCIA JUDICIAL. “…esta Sala ha entendido como válido y justificado que el Poder Judicial cuente con su propio marco normativo, que regula de forma específica, particular y diferenciada las relaciones de empleo entre dicho Poder y sus servidores, no excluye reconocer que la Asamblea Legislativa está habilitada por el Derecho de la Constitución -conforme la intención del constituyente originario, según se desarrolló en el considerando VIII de este voto- a establecer un estatuto único que comprenda a todos (as) los (as) servidores (as) públicos, incluso a funcionarios (as) del Poder Judicial, siempre y cuando, tal normativa, por su contenido o sus efectos, no suprima, afecte en lo esencial, ni suponga trasladar las competencias exclusivas y excluyentes que le corresponden al Poder Judicial a otros órganos y entes, en infracción del principio de separación de poderes o funciones y, muy en particular, del principio de independencia judicial, tal y como se analizará continuación, respecto de las distintas normas consultadas…” “…En relación con el artículo 7, incisos d), g) y p) resultan inconstitucionales, pues afecta la independencia de Poder Judicial y el Tribunal Supremo de Elecciones, en cuanto los somete a la potestad de dirección y reglamentaria de Mideplán, así como a la verificación de si cumplen o no con el cometido de la evaluación del desempeño y no se excluye de la potestad de dirección. Hay que enfatizar que el principio de separación de poderes o funciones es incompatible con la potestad de dirección y reglamentación que ejerce el Poder Ejecutivo, toda vez que no puede ordenar su actividad, estableciendo metas y objetivos. En lo que atañe a la evaluación del desempeño, queda reserva a cada poder del Estado, toda vez que esta materia es consustancial al ejercicio de sus competencias constitucionales. Quiere esto decir, que, en lo tocante a este extremo, todo el funcionariado de cada poder estaría sometido a las disposiciones internas que cada uno de estos dicten al respecto…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 154- Poder Judicial sometido a la Constitución Política y a la ley Subtemas:

NO APLICA.

ARTÍCULO 154 DE LA CONSTITUCIÓN POLÍTICA. “…Siendo que el mismo artículo 154 constitucional somete al Poder Judicial únicamente a la Constitución y a la ley, pero no, a disposiciones del Poder Ejecutivo. Nótese que, estos son puestos de gran importancia pues estarían referidos, al menos, respecto de quienes integran el Consejo Superior del Poder Judicial, y las jefaturas de la Defensa Pública, Ministerio Público y el Organismo de Investigación Judicial. Puestos que son de gran relevancia, que deben estar particularmente protegidos de la injerencia de otros Poderes de la República, y que requieren la estabilidad del personal necesaria para un adecuado e imparcial desempeño del cargo, lo cual es incompatible con una subordinación a las disposiciones que emita al respecto el Mideplán, como lo dispone la norma en cuestión. Siendo competente al respeto el mismo Poder Judicial, como esta Sala lo ha indicado antes: “… sea el Régimen del Empleo Público, es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones.” (sentencia n°03575-1996). Nótese que, en la sentencia n°2018-019511, en que se conoció de la consulta legislativa respecto del proyecto de "Ley de Fortalecimiento de las Finanzas Publicas" (expediente legislativo nro. 20.580), esta Sala concluyó -luego de realizar una labor interpretativa respecto del contenido del proyecto- que, en concreto, lo previsto en los numerales 46, 47 y 49, atinentes a la “rectoría de la materia empleo público de Mideplán” y “la obligatoriedad de los lineamientos técnicos y metodológicos de la Dirección General del (sic) Servicio Civil”, no aplicaban para el Poder Judicial. Interpretación que se hizo, tomando en consideración el principio de independencia del Poder Judicial. Por ende, se considera existe un vicio de inconstitucionalidad en el artículo 17 objeto de consulta, en los términos expuestos…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 099- Tribunal Supremo de Elecciones Subtemas:

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ARTÍCULO 99 DE LA CONSTITUCIÓN POLÍTICA. “…Tribunal Supremo de Elecciones, como órgano constitucional encargado de organizar, dirigir y fiscalizar la independencia del sufragio, se le otorgó el rango y la independencia propios de un poder del Estado. Por ello goza de plena independencia para cumplir sus cometidos constitucionales. Debido a los problemas electorales que motivaron la revolución de 1948, los miembros de la Asamblea Nacional Constituyente de 1949 tuvieron especial cuidado de la materia electoral, segregando todo lo relativo al sufragio, principalmente de la órbita de los Poderes del Estado, blindando la función electoral por medio de distintos principios y garantías, como lo es en primer lugar, la autonomía de la función electoral. De lo dicho queda claro que el Tribunal Supremo de Elecciones es un órgano constitucional especializado en la materia electoral, que por disposición constitucional goza de la misma independencia de los Poderes del Estado en el ejercicio de sus atribuciones; es decir, tiene plena autonomía para organizar, dirigir y vigilar los procesos electorales y todos los actos relativos al sufragio, con la independencia y rango propios de un Poder estatal. Así, esta Sala Constitucional concluyó que “la esfera de lo electoral es un ámbito constitucional especial, al que no le convienen las mismas reglas que a los demás Poderes Públicos" (sentencia n°2000-06326). Si bien es cierto, los principios constitucionales del régimen de empleo público (idoneidad y estabilidad) también le aplican, se entiende que el TSE cuenta con sus propias normas orgánicas o especiales que les dan competencia exclusiva a sus jerarcas para fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos...” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 009- Supremos Poderes Subtemas:

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ARTÍCULO 9 DE LA CONSTITUCIÓN POLÍTICA. “…La independencia de poderes es esencial en un Estado Constitucional de Derecho. Conforme a tal principio, cada poder es independiente del otro, cada órgano del Estado debe poder ejercer su función con independencia de los otros (art.9° Constitucional). Puede haber interrelación entre ellos, pero nunca subordinación. Además, no solo se trata de una vulneración a los principios de separación de funciones, sino a todo el sistema democrático y de organización del Poder que el Constituyente ha creado en nuestro Estado de Derecho. En el caso específico del TSE, es posible replicar -en lo atinente- las mismas conclusiones ya emitidas respecto del Poder Judicial. Si bien respecto del TSE también aplican lo principios fundamentales del régimen de empleo público, lo cierto es que, para proteger su independencia, debe seguir contando con su propio marco normativo, que regula de forma específica, particular y diferenciada las relaciones de empleo con sus servidores y la evaluación de su desempeño. Lo anterior, a fin de garantizar debidamente la independencia de dicho órgano, para el debido ejercicio de su función electoral y de aquellas otras funciones administrativas esenciales que dan soporte a su función primaria. De allí que resulte inconstitucional admitir que el Poder Ejecutivo, por medio de Mideplán tenga competencias de rectoría respecto de los funcionarios del TSE…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 084- Autonomía universitaria Subtemas:

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ARTÍCULO 84 DE LA CONSTITUCIÓN POLÍTICA. “…La Constitución Política dispone que las universidades gozan de independencia para el desempeño de sus funciones y de plena capacidad jurídica para adquirir derechos y contraer obligaciones, así como para darse su organización y gobierno propios. La línea jurisprudencial de la Sala ha sido clara en establecer que las universidades públicas tienen el grado más alto de autonomía, que es autonomía autoorganizativa o autonomía plena. Esa autonomía, que ha sido clasificada como especial, es completa y por esto, distinta de la del resto de los entes descentralizados de nuestro ordenamiento jurídico (regulados principalmente en otra parte de la Carta Política: artículos 188 y 190), y significa que aquéllas están fuera de la dirección del Poder Ejecutivo y de su jerarquía, que cuentan con todas las facultades y poderes administrativos necesarios para llevar adelante el fin especial que legítimamente se les ha encomendado. Pueden autodeterminarse, en el sentido de que están posibilitadas para establecer sus propios planes, programas, presupuestos, organización interna y estructurar su gobierno. Además, que las universidades públicas tienen poder reglamentario (autónomo y de ejecución); pueden auto estructurarse, repartir sus competencias dentro del ámbito interno del ente, desconcentrarse en lo jurídicamente posible y lícito, regular el servicio que prestan, y decidir libremente sobre su personal. Todas estas son potestades de las modalidades administrativa, política, organizativa y financiera de la autonomía que corresponde a las universidades públicas. La autonomía universitaria tiene como principal finalidad, procurar al ente todas las condiciones jurídicas necesarias para que lleve a cabo con independencia su misión de cultura y educación superiores…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 073- Seguridad social. Caja Costarricense de Seguro Social Subtemas:

NO APLICA.

ARTÍCULO 73 DE LA CONSTITUCIÓN POLÍTICA. “…De lo expuesto se deriva que, la Caja Costarricense de Seguro Social (CCSS), por disposición constitucional (art.73) goza de autonomía administrativa y de gobierno. Lo cual significa que, como ente descentralizado funcional, puede establecer las reglas para la selección de su personal, siendo válido en este caso la existencia de un marco normativo especial para su relación estatutaria, que atienda y asegure su grado de autonomía. Ese grado de autonomía le permite además, auto-administrarse (disponer de sus recursos humanos, materiales y financieros); darse su propia organización interna; la fijación de fines, metas y tipos de medios para realizarlas; la emisión de reglamentos autónomos de servicio o actividad, acorde con las disposiciones normalmente llamadas de política general. Así entonces, como institución autónoma de creación constitucional y con un grado de autonomía mayor (administrativa y de gobierno) le permite estar protegida frente a injerencias del Poder Ejecutivo y de limitaciones a la hora de legislar el Poder Legislativo (quien no puede modificar vía legal su grado de autonomía). Así el Poder Ejecutivo no puede actuar como director o en una relación de jerarquía frente a esta institución, no puede imponerle lineamientos, ni dar órdenes, ni controlar la oportunidad de sus actividades…” “…El propio Constituyente estableció la existencia de excepciones a esa única regulación, precisamente porque no se puede equiparar lo que no es igual, ni lesionar el ámbito de autonomía que tienen determinadas instituciones, tal como la CCSS, toda vez que estas revisten de ciertas características especiales que las diferencia razonablemente del resto de la administración, precisamente para dar cumplimiento a los fines que le fueron encomendados constitucionalmente…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 170- Autonomía municipal Subtemas:

NO APLICA.

ARTÍCULO 170 DE LA CONSTITUCIÓN POLÍTICA. “…Recuérdese que, la autonomía municipal, contenida en el artículo 170 de la Constitución Política, esencialmente se origina en el carácter representativo por ser un gobierno local (única descentralización territorial del país), encargado de administrar los intereses locales. El gobierno local tiene potestad de autonormación y autoadministración, esto quiere decir que pueden dictar sus propios reglamentos para regular su organización interna y los servicios que presta, así como su capacidad de gestionar y promover intereses y servicios locales de manera independiente del Poder Ejecutivo. Es claro, entonces que el Poder Ejecutivo no puede actuar como director o en una relación de jerarquía frente a las municipalidades, y no puede imponerle lineamientos, ni dar órdenes, ni controlar la oportunidad de sus actividades. Por ello, resulta inconstitucional el artículo 9 en cuestión por pretender someter a los departamentos de recursos humanos de los gobiernos locales a aplicar y ejecutar las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que Mideplán le remita…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 2. PRINCIPIOS CON JURISPRUDENCIA Tema: Objeción de Conciencia Subtemas:

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OBJECIÓN DE CONCIENCIA. Sobre la objeción de conciencia. En una acepción genérica, la objeción de conciencia refiere a un instituto de antigua data, que desde tiempos remotos aparece en la sociedad y se trata de la posibilidad de apartarse de un deber o mandato jurídico cuando estos riñen o se contraponen a las convicciones del objetor sin que se le pueda exigir responsabilidad. En otras palabras, se podría considerar una especie de resistencia hacia el precepto normativo, en cuanto este se fundamente en el conflicto aparente entre las obligaciones morales, religiosas o de justicia de la persona y el cumplimiento de disposiciones legales. La objeción de conciencia es entendida como una concreción ad extra del derecho a la libertad de conciencia, que se manifiesta como límite de los poderes públicos para que estos no interfieran con las convicciones personales…” “…En mérito de lo expuesto, puede concluirse que la objeción de conciencia es entendida como una concreción ad extra de las libertades de conciencia y religión, que se manifiesta como límite frente a los poderes públicos para que estos no interfieran con las convicciones personales. Concretamente, se refiere a la posibilidad de apartarse de un deber o mandato jurídico cuando estos riñen o se contraponen a las convicciones del objetor sin que se pueda exigir a este, responsabilidad. Por su parte, la libertad de pensamiento y de conciencia se erigen como elementos fundamentales que conforman la identidad de los creyentes y su concepción de la vida, así como para las personas ateas, agnósticas, escépticas e indiferentes…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 062- Convenciones colectivas Subtemas:

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ARTÍCULO 62 DE LA CONSTITUCIÓN POLÍTICA. “…Del amplio compendio jurisprudencial aludido, se puede concluir que el derecho a la negociación colectiva es un derecho constitucional reconocido en el artículo 62 de nuestra carta fundamental que tiene como fin inmediato la revisión, inter partes y con el carácter de ley, del contenido mínimo de los beneficios legales que ordenan las relaciones laborales, todo ello con el objeto de mejorar o de superar ese mínimo esencial. Esta Sala ha reconocido que solo se pueda admitir la negociación colectiva en el sector público para aquellos trabajadores que no realizan gestión pública, los empleados de empresas o servicios económicos del Estado y los encargados de gestiones sometidas al Derecho común. En cuanto al contenido de la negociación colectiva en el sector público, se ha señalado que las partes solo pueden convenir válidamente sobre lo que jurídicamente puedan cumplir, en razón de la naturaleza contractual del convenio colectivo y se admite que su ámbito sean las condiciones de trabajo o laborales, sin que pueda extenderse ese fin a normar cuestiones extra laborales…” “...En la Administración Pública, la autorización para negociar colectivamente no puede ser irrestricta, o sea, equiparable a la situación en que se encontraría cualquier patrono particular, puesto que se deben respetar las leyes, reglamentos o directrices gubernamentales vigentes, así como las competencias legales de los entes públicos, atribuidas con fundamento en la jerarquía normativa o en las especiales condiciones de la Administración Pública en relación con sus trabajadores. De esta forma, las obligaciones contraídas por las instituciones públicas y sus empleados pueden ser objeto de un análisis de razonabilidad, economía y eficiencia, sea para evitar que a través de una convención colectiva sean limitados o lesionados derechos de los propios trabajadores, sea para evitar que se haga un uso abusivo de fondos públicos. El derecho a la negociación colectiva está sometido al control jurisdiccional de la Sala, pues como se indicó, se encuentra subordinado a las normas y principios constitucionales…” “…b.- El Transitorio XV referido a la denuncia de las convenciones colectivas, no resulta inconstitucional siempre y cuando se interprete en el mismo sentido que se indicó en el voto número 2018-019511 de las 21:45 horas del 23 de noviembre del 2018, es decir, en aplicación de la Constitución Política (artículos 62 y 74), los Convenios Internacionales de la Organización Internacional del Trabajo y la jurisprudencia de este Tribunal, deberá interpretarse que cada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 191- Servicio Civil Subtemas:

NO APLICA.

ARTÍCULOS 191 Y 192 DE LA CONSTITUCIÓN POLÍTICA. “…Entonces, la inhabilitación temporal en vía administrativa de una persona servidora pública, para que acceda a cargos públicos, es una figura reconocida por este Tribunal, la cual permite que funcionarios que hayan faltado a sus deberes éticos y morales haciendo uso indebido de su puesto o de bienes del Estado, puedan no ser nombrados nuevamente por un plazo definido, con el fin de garantizar los principios de eficiencia de la Administración e idoneidad comprobada. Este principio de idoneidad no debe ser entendido únicamente como la comprobación de aptitudes académicas, físicas o de experiencia, sino que se extiende, además, a una serie de elementos éticos y morales e, incluso, psicológicos, que son parte de esa idoneidad que requiere el ejercicio de cargos públicos, de ahí que resulta un medio adecuado a los fines constitucionales plasmados en los artículos 191 y 192 de nuestra carta fundamental. De conformidad con lo anterior, la inhabilitación dispone la inidoneidad temporal de exfuncionarios, a un puesto público, en caso de haber sido despedidos sin responsabilidad patronal, con lo que se busca -como se dijo supra- garantizar que la prestación de los servicios públicos sea conforme a los principios de idoneidad comprobada y eficiencia en la función pública (artículos 191 y 192 de la Constitución Política)…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 057- Salario mínimo Subtemas:

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ARTÍCULO 57 DE LA CONSTITUCIÓN POLÍTICA. SOBRE SALARIO GLOBAL. “…La línea jurisprudencial de la Sala, ha sido clara, en el sentido de que reconocer, que no cabe la equiparación indiscriminada de remuneraciones entre los miembros de los poderes públicos, pues el imponer un tratamiento igual a situaciones o funcionarios que se encuentran objetivamente en circunstancias de desigualdad, quebrantaría, en general, el principio de igualdad y específicamente en materia de salarios y condiciones de trabajo, el 57 de la Constitución…” “…El punto está en determinar si esta diferenciación de trato está fundada en fines legítimos constitucionalmente, en si es objetiva, es decir, si está sustentada en un supuesto de hecho diferente, si está basada en diferencias relevantes (tertium comparationis), si existe proporcionalidad entre el fin constitucional y el trato diferenciado que se ha hecho y el motivo y el contenido del acto y, si ese trato es idóneo para alcanzar el fin que se persigue…” “…En el primer supuesto, la diferencia de trato supone que esté basada en objetivos constitucionalmente legítimos, lo que conlleva tres consecuencias en la finalidad perseguida. En primer lugar, las leyes no pueden perseguir fines que contradigan el Derecho de la Constitución o las normas que se encuentran en los instrumentos internacionales de Derechos Humanos. En segundo término, cuando se persiguen fines no tutelados constitucionalmente, pero que no contradicen sus valores y principios, la diferenciación de trato debe ser estrictamente vigilada en relación con los supuestos de hecho que la justifican y la finalidad que persigue. Por último, cuando se persigue un fin constitucionalmente tutelado, la diferenciación de trato será válida siempre y cuando respete los criterios de razonabilidad, proporcionalidad y sea necesaria…” “…Finalmente, hay que enfatizar que el cumplimiento del principio de equilibrio financiero o presupuestario en este caso, es una justificación objetiva y razonable para concluir que la normativa transitoria es conforme con el Derecho de la Constitución, máxime si se toma en cuenta la situación fiscal tan deteriorada que tiene el Gobierno central, que pone en peligro la viabilidad del Estado Social de Derecho y de la economía costarricense en su conjunto. En esta dirección, en la opinión consultiva n.° 2018-18505…” “…Por las razones anteriores, se concluye, por mayoría, que los Transitorios XI y XII no vulneran el principio de igualdad -igual salario a trabajo igual en idénticas condiciones de eficiencia-, ni el de legalidad y, por consiguiente, no resultan inconstitucionales…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 192- Idoneidad. Nombramiento de servidores públicos Subtemas:

NO APLICA.

ARTÍCULO 192 DE LA CONSTITUCIÓN POLÍTICA. “…Así las cosas, y conforme lo ha reiterado este Tribunal, el propio Constituyente previó que no todos los servidores del Estado podían estar cubiertos por el régimen especial, pues la forma de escogencia, las especiales capacidades, las funciones de cada cargo, las relaciones de confianza y dependencia no son iguales en todos los casos, de ahí que los principios derivados del artículo 192 son aplicables a la mayoría de los trabajadores del Estado, pero no a todos. Desde esta perspectiva, contrario a lo afirmado por los consultantes, sí es posible establecer excepciones al ámbito de aplicación del régimen o estatuto de servicio civil; exclusión que no puede ser arbitraria y que tiene que estar debidamente justificada. Ahora bien, se observa que los consultantes cuestionan esta disposición -artículo 3 del proyecto bajo estudio- señalando, únicamente, que el mero criterio de competitividad no es suficiente para darles un trato diferenciado, pues se trata igualmente de funcionarios públicos que manejan fondos públicos y, como ellos mismos reconocen, se trata de empresas e instituciones públicas que están bajo el régimen de competencia; es decir, no están en igualdad de condiciones que las demás instituciones del Estado conforme se desprende de los artículos 3, 111 y 112 de la Ley General de la Administración Pública, cuando se refieren a los trabajadores de este tipo de empresas estatales, se rigen por el Derecho privado. Para comprender los alcances de las exclusiones del artículo 3 de cita, debe hacerse la diferenciación conceptual entre lo que dispone su inciso a) que son los entes públicos no estatales, y lo que abarca el inciso b) que se refiere a las empresas e instituciones públicas en competencia, siendo éstas respecto de las cuales los diputados consultantes plantean su cuestionamiento pues, como se señaló supra, estiman que el mero criterio de competitividad no es suficiente para darles un trato diferenciado ya que igual son funcionarios públicos que manejan fondos públicos. Los que en primer lugar están excluidos según el citado artículo 3 del proyecto bajo estudio, son los entes públicos no estatales. Estos entes tienen una naturaleza jurídica diferente del resto de instituciones del Estado. Según la doctrina se han concebido como organismos de base corporativa, constituidos a partir de un convenio o de una ley, que agrupa intereses privados, pero que son relevantes para el Estado, los cuales se financian con el aporte de sus agremiados y con contribuciones parafiscales, otros aportes directos, y en menor medida, del Estado. Por ello, su régimen jurídico es predominantemente privado, aunque están sujetos al bloque de legalidad administrativo en lo que respecta al ejercicio de las potestades de imperio que ejerce por delegación legal. En consecuencia, los entes públicos no estatales, técnicamente no pertenecen al Estado, sino que excepcionalmente ejercen función administrativa, por la cual emiten actos administrativos y son considerados parte de la Administración Pública. Fuera de esas potestades de imperio, se relacionan con otros sujetos sobre la base del principio de la autonomía de la voluntad que se rige por el derecho privado; de ahí que, sus relaciones de trabajo se han considerado de derecho privado, y por ello también resultan razonablemente exceptuados del régimen de empleo público pretendido por la Asamblea Legislativa. Tal sería el ejemplo de los colegios profesionales, definidos como entes públicos no estatales, y cuyos trabajadores se rigen por el derecho privado…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto salvado Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: TRABAJO Subtemas:

NO APLICA.

VOTOS SALVADOS Y NOTAS MAGISTRADO FERNANDO CASTILLO VÍQUEZ Sobre la admisibilidad de las consultas:

• 1)Por unanimidad se admite la consulta formulada mediante expediente n°21-011713-0007-CO. Los magistrados Castillo Víquez, Salazar Alvarado y la magistrada Garro Vargas consignan notas separadas. El magistrado Rueda Leal da razones diferentes en cuanto a la admisibilidad de esta Consulta.
• 2)Por mayoría se admite la consulta formulada mediante expediente n°21-012118-0007-CO. El magistrado Salazar Alvarado consigna nota. Los magistrados Castillo Víquez y Rueda Leal salvan el voto y declaran inevacuable la consulta por razones separadas.
• 3)Por mayoría se declara inevacuable la consulta formulada, mediante expediente n°21-012714-0007-CO, por parte de la Corte Suprema de Justicia. Los magistrados Castillo Víquez y Rueda Leal ponen notas separadas. Las magistradas Garro Vargas y Picado Brenes salvan el voto y admiten la consulta. La magistrada Garro Vargas consigna nota.

Sobre los vicios de fondo alegados en cuanto al Poder Judicial y al Tribunal Supremo de Elecciones:

• 4)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 2 inciso a) no es por sí mismo inconstitucional, en cuanto incluye al Poder Judicial y al Tribunal Supremo de Elecciones en un marco regulatorio general de empleo público, pero sí lo es por sus efectos, porque algunas de sus normas -como se examina de seguido- vacían de contenido el principio de separación de poderes. Los magistrados Castillo Víquez y Rueda Leal, y las magistradas Garro Vargas y Picado Brenes ponen notas separadas.
• 5)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 49 inciso b) no es inconstitucional, siempre que se interprete que la Dirección General de Servicio Civil carece de competencia respecto de los asuntos referidos al Poder Judicial y que no se está derogando su normativa especial en estas materias. Los magistrados Castillo Víquez, Salazar Alvarado y la magistrada Hernández López salvan el voto y declaran sin lugar el agravio porque no está referido al Poder Judicial, ni deroga su normativa especial en estas materias.
• 6)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que los incisos g) y h) del artículo 49 son inconstitucionales por violar la independencia del Poder Judicial. El magistrado Castillo Víquez y la magistrada Hernández López salvan el voto y declaran que no son inconstitucionales estos incisos.

Sobre los vicios de fondo alegados en cuanto a la Caja Costarricense de Seguro Social (CCSS):

• 7)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 2 inciso b) no es por sí mismo inconstitucional, en cuanto algunas de sus normas -como se examina de seguido- incluye a la CCSS en un marco regulatorio general de empleo público, pero sí es inconstitucional por sus efectos puesto que algunas de sus normas vacían de contenido su autonomía de gobierno. Los magistrados Castillo Víquez y Rueda Leal, y las magistradas Garro Vargas Picado Brenes ponen notas separadas.

Sobre los vicios de fondo alegados en cuanto a las municipalidades:

• 8)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que, el artículo 2 inciso c) no es por sí mismo inconstitucional, en cuanto incluye a las municipalidades en un marco regulatorio general de empleo público, pero sí lo es por sus efectos puesto que algunas de sus normas -como se examina de seguido- vacían de contenido su autonomía de gobierno. Los magistrados Castillo Víquez y Rueda Leal, y las magistradas Garro Vargas y Picado Brenes ponen notas separadas.

Sobre los demás vicios de fondo:

• 9)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el inciso g) del artículo 23 no es inconstitucional porque garantiza adecuadamente el derecho a la objeción de conciencia. El magistrado Rueda Leal da razones diferentes en cuanto a lo consultado sobre este tema en el expediente n°21-011713-0007-CO. La magistrada Hernández López, considera que el artículo 23 inciso g) del proyecto de Ley consultado, es constitucional, siempre y cuando se interprete que la declaración jurada a que se refiere la norma debe estar sujeta a un proceso de verificación que garantice que el funcionario público no se está sustrayendo de obligaciones propias de su relación de sujeción especial, que dejen sin efecto o sin contenido las garantías y limitaciones constitucionales y legales de la objeción de conciencia, como son la seguridad, el orden, la salud y el respeto a los derechos fundamentales de las personas, en particular de la dignidad humana y no discriminación, según el juicio de ponderación que debe hacerse en cada caso concreto, conforme se estableció en la sentencia 2020-001619 de esta Sala. Los magistrados Castillo Víquez y Rueda Leal omiten pronunciamiento en cuanto a lo consultado sobre este tema en el expediente n°21-012118-0007-CO.

CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto salvado Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: TRABAJO Subtemas:

NO APLICA.

VOTOS SALVADOS Y NOTAS MAGISTRADO PAUL RUEDA LEAL Sobre la admisibilidad de las consultas:

• 1)Por unanimidad se admite la consulta formulada mediante expediente n°21-011713-0007-CO. Los magistrados Castillo Víquez, Salazar Alvarado y la magistrada Garro Vargas consignan notas separadas. El magistrado Rueda Leal da razones diferentes en cuanto a la admisibilidad de esta Consulta.
• 2)Por mayoría se admite la consulta formulada mediante expediente n°21-012118-0007-CO. El magistrado Salazar Alvarado consigna nota. Los magistrados Castillo Víquez y Rueda Leal salvan el voto y declaran inevacuable la consulta por razones separadas.
• 3)Por mayoría se declara inevacuable la consulta formulada, mediante expediente n°21-012714-0007-CO, por parte de la Corte Suprema de Justicia. Los magistrados Castillo Víquez y Rueda Leal ponen notas separadas. Las magistradas Garro Vargas y Picado Brenes salvan el voto y admiten la consulta. La magistrada Garro Vargas consigna nota.

Sobre los vicios de fondo alegados en cuanto al Poder Judicial y al Tribunal Supremo de Elecciones:

• 4)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 2 inciso a) no es por sí mismo inconstitucional, en cuanto incluye al Poder Judicial y al Tribunal Supremo de Elecciones en un marco regulatorio general de empleo público, pero sí lo es por sus efectos, porque algunas de sus normas -como se examina de seguido- vacían de contenido el principio de separación de poderes. Los magistrados Castillo Víquez y Rueda Leal, y las magistradas Garro Vargas y Picado Brenes ponen notas separadas.
• 5)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 6 inciso b) es inconstitucional. Se declara que es inconstitucional en cuanto somete al Poder Judicial y al Tribunal Supremo de Elecciones a la potestad de dirección del Poder Ejecutivo. El magistrado Rueda Leal pone nota. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes y la declaran inconstitucional en cuanto somete al Poder Judicial y al Tribunal Supremo de Elecciones a la rectoría del Sistema General de Empleo Público a cargo de Mideplán.

Sobre los vicios de fondo alegados en cuanto a la Caja Costarricense de Seguro Social (CCSS):

• 6)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 2 inciso b) no es por sí mismo inconstitucional, en cuanto algunas de sus normas -como se examina de seguido- incluye a la CCSS en un marco regulatorio general de empleo público, pero sí es inconstitucional por sus efectos puesto que algunas de sus normas vacían de contenido su autonomía de gobierno. Los magistrados Castillo Víquez y Rueda Leal, y las magistradas Garro Vargas Picado Brenes ponen notas separadas.

Sobre los vicios de fondo alegados en cuanto a las municipalidades:

• 7)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que, el artículo 2 inciso c) no es por sí mismo inconstitucional, en cuanto incluye a las municipalidades en un marco regulatorio general de empleo público, pero sí lo es por sus efectos puesto que algunas de sus normas -como se examina de seguido- vacían de contenido su autonomía de gobierno. Los magistrados Castillo Víquez y Rueda Leal, y las magistradas Garro Vargas y Picado Brenes ponen notas separadas.
• 8)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 6 es inconstitucional en cuanto somete a las municipalidades a la potestad de dirección del Poder Ejecutivo.

Sobre los demás vicios de fondo:

• 9)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el inciso g) del artículo 23 no es inconstitucional porque garantiza adecuadamente el derecho a la objeción de conciencia. El magistrado Rueda Leal da razones diferentes en cuanto a lo consultado sobre este tema en el expediente n°21-011713-0007-CO. La magistrada Hernández López, considera que el artículo 23 inciso g) del proyecto de Ley consultado, es constitucional, siempre y cuando se interprete que la declaración jurada a que se refiere la norma debe estar sujeta a un proceso de verificación que garantice que el funcionario público no se está sustrayendo de obligaciones propias de su relación de sujeción especial, que dejen sin efecto o sin contenido las garantías y limitaciones constitucionales y legales de la objeción de conciencia, como son la seguridad, el orden, la salud y el respeto a los derechos fundamentales de las personas, en particular de la dignidad humana y no discriminación, según el juicio de ponderación que debe hacerse en cada caso concreto, conforme se estableció en la sentencia 2020-001619 de esta Sala. Los magistrados Castillo Víquez y Rueda Leal omiten pronunciamiento en cuanto a lo consultado sobre este tema en el expediente n°21-012118-0007-CO.
• 10)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 43 no contiene vicios de constitucionalidad, en el tanto las nuevas obligaciones o derechos obtenidos al alcance de la negociación colectiva se ajusten a los principios de razonabilidad, proporcionalidad y legalidad presupuestaria, al amparo de la jurisprudencia constitucional, y siempre y cuando se trate de convenciones colectivas donde participen los empleados del Sector Público que válidamente puedan celebrar convenciones colectivas de acuerdo con la Constitución y la ley. El magistrado Rueda Leal y las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 11)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el Transitorio XV referido a la denuncia de las convenciones colectivas, no resulta inconstitucional siempre y cuando se interprete en el mismo sentido que se indicó en el voto número 2018-019511 de las 21:45 horas del 23 de noviembre del 2018, es decir, en aplicación de la Constitución Política (artículos 62 y 74), los Convenios Internacionales de la Organización Internacional del Trabajo y la jurisprudencia de este Tribunal, deberá interpretarse que cada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente. El magistrado Rueda Leal da razones particulares respecto de este punto. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 12)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el Transitorio XI y XII referido a las reglas del salario no resultan inconstitucionales. El magistrado Rueda Leal consigna razones diferentes. Las magistradas Hernández López, Garro Vargas y Picado Brenes salvan el voto y consideran inconstitucional el inciso a) del transitorio XI por violación al derecho de igualdad salarial. Las magistradas Garro Vargas y Picado Brenes ponen notas separadas.
• 13)Los magistrados Rueda Leal y Araya García, y las magistradas Hernández López, Garro Vargas y Picado Brenes consignan notas separadas.

CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto salvado Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: TRABAJO Subtemas:

NO APLICA.

VOTOS SALVADOS Y NOTAS MAGISTRADA NANCY HERNÁNDEZ LÓPEZ Sobre la admisibilidad de las consultas:

• 1)Por unanimidad se admite la consulta formulada mediante expediente n°21-011915-0007-CO. Las magistradas Hernández López y Garro Vargas dan razones diferentes en forma separada. El magistrado Salazar Alvarado y la magistrada Picado Brenes consignan notas separadas.

Sobre los vicios de fondo alegados en cuanto al Poder Judicial y al Tribunal Supremo de Elecciones:

• 2)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 49 inciso b) no es inconstitucional, siempre que se interprete que la Dirección General de Servicio Civil carece de competencia respecto de los asuntos referidos al Poder Judicial y que no se está derogando su normativa especial en estas materias. Los magistrados Castillo Víquez, Salazar Alvarado y la magistrada Hernández López salvan el voto y declaran sin lugar el agravio porque no está referido al Poder Judicial, ni deroga su normativa especial en estas materias.
• 3)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que los incisos g) y h) del artículo 49 son inconstitucionales por violar la independencia del Poder Judicial. El magistrado Castillo Víquez y la magistrada Hernández López salvan el voto y declaran que no son inconstitucionales estos incisos.

Sobre los vicios de fondo alegados en cuanto a las universidades públicas:

• 4)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 30 inciso b) es constitucional. Las magistradas Hernández López, Garro Vargas y Picado Brenes salvan el voto respecto del artículo 30 inciso b) y estiman que, respecto de la autonomía universitaria, es inconstitucional por sus efectos que el salario del presidente de la República sea tope para las universidades, cuando existan razones técnicas que justifiquen otra remuneración.

Sobre los demás vicios de fondo:

• 5)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el inciso g) del artículo 23 no es inconstitucional porque garantiza adecuadamente el derecho a la objeción de conciencia. El magistrado Rueda Leal da razones diferentes en cuanto a lo consultado sobre este tema en el expediente n°21-011713-0007-CO. La magistrada Hernández López, considera que el artículo 23 inciso g) del proyecto de Ley consultado, es constitucional, siempre y cuando se interprete que la declaración jurada a que se refiere la norma debe estar sujeta a un proceso de verificación que garantice que el funcionario público no se está sustrayendo de obligaciones propias de su relación de sujeción especial, que dejen sin efecto o sin contenido las garantías y limitaciones constitucionales y legales de la objeción de conciencia, como son la seguridad, el orden, la salud y el respeto a los derechos fundamentales de las personas, en particular de la dignidad humana y no discriminación, según el juicio de ponderación que debe hacerse en cada caso concreto, conforme se estableció en la sentencia 2020-001619 de esta Sala. Los magistrados Castillo Víquez y Rueda Leal omiten pronunciamiento en cuanto a lo consultado sobre este tema en el expediente n°21-012118-0007-CO.
• 6)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el Transitorio XI y XII referido a las reglas del salario no resultan inconstitucionales. El magistrado Rueda Leal consigna razones diferentes. Las magistradas Hernández López, Garro Vargas y Picado Brenes salvan el voto y consideran inconstitucional el inciso a) del transitorio XI por violación al derecho de igualdad salarial. Las magistradas Garro Vargas y Picado Brenes ponen notas separadas.
• 7)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que los artículos 21 y 22 no contienen violaciones al principio del debido proceso constitucional, por ello no resultan inconstitucionales en cuanto a este tema consultado.
• 8)Los magistrados Rueda Leal y Araya García, y las magistradas Hernández López, Garro Vargas y Picado Brenes consignan notas separadas.

CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto salvado Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: TRABAJO Subtemas:

NO APLICA.

VOTOS SALVADOS Y NOTAS MAGISTRADO LUIS FERNANDO SALAZAR ALVARADO Sobre la admisibilidad de las consultas:

• 1)Por unanimidad se admite la consulta formulada mediante expediente n°21-011713-0007-CO. Los magistrados Castillo Víquez, Salazar Alvarado y la magistrada Garro Vargas consignan notas separadas. El magistrado Rueda Leal da razones diferentes en cuanto a la admisibilidad de esta Consulta.
• 2)Por unanimidad se admite la consulta formulada mediante expediente n°21-011915-0007-CO. Las magistradas Hernández López y Garro Vargas dan razones diferentes en forma separada. El magistrado Salazar Alvarado y la magistrada Picado Brenes consignan notas separadas.
• 3)Por mayoría se admite la consulta formulada mediante expediente n°21-012118-0007-CO. El magistrado Salazar Alvarado consigna nota. Los magistrados Castillo Víquez y Rueda Leal salvan el voto y declaran inevacuable la consulta por razones separadas.

Sobre los vicios de procedimiento alegados:

• 4)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 49 inciso b) no es inconstitucional, siempre que se interprete que la Dirección General de Servicio Civil carece de competencia respecto de los asuntos referidos al Poder Judicial y que no se está derogando su normativa especial en estas materias. Los magistrados Castillo Víquez, Salazar Alvarado y la magistrada Hernández López salvan el voto y declaran sin lugar el agravio porque no está referido al Poder Judicial, ni deroga su normativa especial en estas materias.

CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Nota separada Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: TRABAJO Subtemas:

NO APLICA.

NOTA MAGISTRADO JORGE ARAYA GARCÍA Sobre los demás vicios de fondo:

• 1)Los magistrados Rueda Leal y Araya García, y las magistradas Hernández López, Garro Vargas y Picado Brenes consignan notas separadas.

CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto salvado Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: TRABAJO Subtemas:

NO APLICA.

VOTOS SALVADOS Y NOTAS MAGISTRADA ANAMARI GARRO VARGAS Sobre la admisibilidad de las consultas:

• 1)Por unanimidad se admite la consulta formulada mediante expediente n°21-011713-0007-CO. Los magistrados Castillo Víquez, Salazar Alvarado y la magistrada Garro Vargas consignan notas separadas. El magistrado Rueda Leal da razones diferentes en cuanto a la admisibilidad de esta Consulta.
• 2)Por unanimidad se admite la consulta formulada mediante expediente n°21-011915-0007-CO. Las magistradas Hernández López y Garro Vargas dan razones diferentes en forma separada. El magistrado Salazar Alvarado y la magistrada Picado Brenes consignan notas separadas.
• 3)Por mayoría se declara inevacuable la consulta formulada, mediante expediente n°21-012714-0007-CO, por parte de la Corte Suprema de Justicia. Los magistrados Castillo Víquez y Rueda Leal ponen notas separadas. Las magistradas Garro Vargas y Picado Brenes salvan el voto y admiten la consulta. La magistrada Garro Vargas consigna nota.

Sobre los vicios de fondo alegados en cuanto al Poder Judicial y al Tribunal Supremo de Elecciones:

• 4)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 2 inciso a) no es por sí mismo inconstitucional, en cuanto incluye al Poder Judicial y al Tribunal Supremo de Elecciones en un marco regulatorio general de empleo público, pero sí lo es por sus efectos, porque algunas de sus normas -como se examina de seguido- vacían de contenido el principio de separación de poderes. Los magistrados Castillo Víquez y Rueda Leal, y las magistradas Garro Vargas y Picado Brenes ponen notas separadas.
• 5)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 6 inciso b) es inconstitucional. Se declara que es inconstitucional en cuanto somete al Poder Judicial y al Tribunal Supremo de Elecciones a la potestad de dirección del Poder Ejecutivo. El magistrado Rueda Leal pone nota. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes y la declaran inconstitucional en cuanto somete al Poder Judicial y al Tribunal Supremo de Elecciones a la rectoría del Sistema General de Empleo Público a cargo de Mideplán.
• 6)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que son inconstitucionales los incisos d), g) y, p) del artículo 7 por afectar la independencia del Poder Judicial y del Tribunal Supremo de Elecciones, en cuanto los somete a la potestad de dirección y reglamentación de Mideplán, asimismo a la verificación de si cumple o no con el cometido de la evaluación del desempeño, correspondiendo esta última función a los poderes supra citados según su normativa interna. Las magistradas Garro Vargas y Picado Brenes dan razones adicionales.
• 7)Por unanimidad se declara inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en cuanto al artículo 12 por falta de fundamentación de lo consultado, respecto del Poder Judicial y del Tribunal Supremo de Elecciones. Las magistradas Garro Vargas y Picado Brenes ponen notas separadas.
• 8)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 13 inciso f) es inconstitucional por lesionar la independencia de poderes, tanto respecto del Poder Judicial como del Tribunal Supremo de Elecciones. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 9)Por unanimidad se declara inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en cuanto al artículo 19, por falta de una adecuada fundamentación desde el punto de vista constitucional de lo consultado. Las magistradas Garro Vargas y Picado Brenes ponen nota.

Sobre los vicios de fondo alegados en cuanto a las universidades públicas:

• 10)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 6 es inconstitucional en cuanto somete a las universidades públicas a la potestad de dirección del Poder Ejecutivo. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 11)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 7 es inconstitucional en relación con aquellas disposiciones que someten a las universidades públicas a la potestad de dirección y reglamentación por parte de Mideplán. Las Magistradas Garro Vargas y Picado Brenes dan razones adicionales.
• 12)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO”, que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 13 inciso e) es inconstitucional, por no incluir en tal inciso a los servidores que realizan investigación, acción social y cultural de las universidades públicas. Las magistradas Garro Vargas y Picado Brenes dan razones adicionales.
• 13)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 17 es inconstitucional, en cuanto somete al personal de alta dirección de las universidades públicas a las disposiciones de alcance general, directrices y reglamentos que emita el Mideplán. Las magistradas Garro Vargas y Picado Brenes ponen nota.
• 14)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 30 es inconstitucional, en el tanto no excluye a los funcionarios que realizan labores sustanciales -propias de la actividad universitaria-, y porque no establece que -en atención a la autonomía universitaria- la construcción de la familia de la columna salarial y sus características corresponde en forma exclusiva y excluyente a los máximos órganos de los entes universitarios. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 15)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 30 inciso b) es constitucional. Las magistradas Hernández López, Garro Vargas y Picado Brenes salvan el voto respecto del artículo 30 inciso b) y estiman que, respecto de la autonomía universitaria, es inconstitucional por sus efectos que el salario del presidente de la República sea tope para las universidades, cuando existan razones técnicas que justifiquen otra remuneración.
• 16)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que los artículos 31, 32 y 34 son inconstitucionales, en el tanto no excluyen a los funcionarios que realizan labores sustanciales -propias de la actividad universitaria-, y porque la definición de los factores de trabajo relevante, su peso relativo, el número de grados requeridos dentro de cada familia y sus características, y la elaboración de la columna salarial corresponde en forma exclusiva y excluyente a los máximos órganos de los entes universitarios. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 17)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 33 es inconstitucional, en el tanto no excluye a los funcionarios que realizan labores sustanciales -propias de la autonomía universitaria-, y somete el manual de puestos de dichos funcionarios al análisis y evaluación de Mideplán, lo que -en atención a la autonomía universitaria- corresponde en forma exclusiva y excluyente a los máximos órganos de los entes universitarios. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 18)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que los artículos 35 y 36 son constitucionales. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes por separado.

Sobre los vicios de fondo alegados en cuanto a la Caja Costarricense de Seguro Social (CCSS):

• 19)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 2 inciso b) no es por sí mismo inconstitucional, en cuanto algunas de sus normas -como se examina de seguido- incluye a la CCSS en un marco regulatorio general de empleo público, pero sí es inconstitucional por sus efectos puesto que algunas de sus normas vacían de contenido su autonomía de gobierno. Los magistrados Castillo Víquez y Rueda Leal, y las magistradas Garro Vargas Picado Brenes ponen notas separadas.
• 20)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 6 es inconstitucional, en cuanto somete a la CCSS a la potestad de dirección del Poder Ejecutivo. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 21)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el inciso d) del artículo 7 es inconstitucional en relación con aquellas disposiciones que someten a la CCSS a la potestad de dirección y reglamentación por parte de Mideplán. Las magistradas Garro Vargas y Picado Brenes dan razones adicionales.
• 22)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 13 inciso b) es inconstitucional, por no incluir a los servidores que realizan labores sustanciales y profesionales referentes a los fines constitucionales que se le asignan a la CCSS. Las magistradas Garro Vargas y Picado Brenes dan razones adicionales.

Sobre los vicios de fondo alegados en cuanto a las municipalidades:

• 23)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que, el artículo 2 inciso c) no es por sí mismo inconstitucional, en cuanto incluye a las municipalidades en un marco regulatorio general de empleo público, pero sí lo es por sus efectos puesto que algunas de sus normas -como se examina de seguido- vacían de contenido su autonomía de gobierno. Los magistrados Castillo Víquez y Rueda Leal, y las magistradas Garro Vargas y Picado Brenes ponen notas separadas.
• 24)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 7 es inconstitucional en relación con aquellas disposiciones que someten a las municipalidades a la potestad de dirección y reglamentación por parte de Mideplán. Las Magistradas Garro Vargas y Picado Brenes dan razones adicionales.
• 25)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el párrafo segundo del inciso a del artículo 9 es inconstitucional respecto a su aplicación a las municipalidades. La magistrada Garro Vargas da razones diferentes. La magistrada Picado Brenes da razones adicionales.
• 26)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de “LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 13 al no crear una familia de puestos de los empleados municipales los incluye a todos en el Servicio Civil. La magistrada Garro Vargas da razones diferentes. La magistrada Picado Brenes consigna razones adicionales.

Sobre los demás vicios de fondo:

• 27)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 43 no contiene vicios de constitucionalidad, en el tanto las nuevas obligaciones o derechos obtenidos al alcance de la negociación colectiva se ajusten a los principios de razonabilidad, proporcionalidad y legalidad presupuestaria, al amparo de la jurisprudencia constitucional, y siempre y cuando se trate de convenciones colectivas donde participen los empleados del Sector Público que válidamente puedan celebrar convenciones colectivas de acuerdo con la Constitución y la ley. El magistrado Rueda Leal y las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 28)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el Transitorio XV referido a la denuncia de las convenciones colectivas, no resulta inconstitucional siempre y cuando se interprete en el mismo sentido que se indicó en el voto número 2018-019511 de las 21:45 horas del 23 de noviembre del 2018, es decir, en aplicación de la Constitución Política (artículos 62 y 74), los Convenios Internacionales de la Organización Internacional del Trabajo y la jurisprudencia de este Tribunal, deberá interpretarse que cada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente. El magistrado Rueda Leal da razones particulares respecto de este punto. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 29)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el Transitorio XI y XII referido a las reglas del salario no resultan inconstitucionales. El magistrado Rueda Leal consigna razones diferentes. Las magistradas Hernández López, Garro Vargas y Picado Brenes salvan el voto y consideran inconstitucional el inciso a) del transitorio XI por violación al derecho de igualdad salarial. Las magistradas Garro Vargas y Picado Brenes ponen notas separadas.
• 30)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que los artículos 39, 40, 41 y 42, sobre nuevos supuestos de permisos, no resultan inconstitucionales. La magistrada Picado Brenes da razones particulares. La magistrada Garro Vargas salva el voto y la declara inevacuable.
• 31)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 3, sobre el ámbito de exclusiones, no resulta inconstitucional.
• 32)Los magistrados Rueda Leal y Araya García, y las magistradas Hernández López, Garro Vargas y Picado Brenes consignan notas separadas.

CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto salvado Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: TRABAJO Subtemas:

NO APLICA.

VOTOS SALVADOS Y NOTAS MAGISTRADA ANA MARÍA PICADO BRENES Sobre la admisibilidad de las consultas:

• 1)Por unanimidad se admite la consulta formulada mediante expediente n°21-011915-0007-CO. Las magistradas Hernández López y Garro Vargas dan razones diferentes en forma separada. El magistrado Salazar Alvarado y la magistrada Picado Brenes consignan notas separadas.
• 2)Por mayoría se declara inevacuable la consulta formulada, mediante expediente n°21-012714-0007-CO, por parte de la Corte Suprema de Justicia. Los magistrados Castillo Víquez y Rueda Leal ponen notas separadas. Las magistradas Garro Vargas y Picado Brenes salvan el voto y admiten la consulta. La magistrada Garro Vargas consigna nota.

Sobre los vicios de fondo alegados en cuanto al Poder Judicial y al Tribunal Supremo de Elecciones:

• 3)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 2 inciso a) no es por sí mismo inconstitucional, en cuanto incluye al Poder Judicial y al Tribunal Supremo de Elecciones en un marco regulatorio general de empleo público, pero sí lo es por sus efectos, porque algunas de sus normas -como se examina de seguido- vacían de contenido el principio de separación de poderes. Los magistrados Castillo Víquez y Rueda Leal, y las magistradas Garro Vargas y Picado Brenes ponen notas separadas.
• 4)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 6 inciso b) es inconstitucional. Se declara que es inconstitucional en cuanto somete al Poder Judicial y al Tribunal Supremo de Elecciones a la potestad de dirección del Poder Ejecutivo. El magistrado Rueda Leal pone nota. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes y la declaran inconstitucional en cuanto somete al Poder Judicial y al Tribunal Supremo de Elecciones a la rectoría del Sistema General de Empleo Público a cargo de Mideplán.
• 5)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que son inconstitucionales los incisos d), g) y, p) del artículo 7 por afectar la independencia del Poder Judicial y del Tribunal Supremo de Elecciones, en cuanto los somete a la potestad de dirección y reglamentación de Mideplán, asimismo a la verificación de si cumple o no con el cometido de la evaluación del desempeño, correspondiendo esta última función a los poderes supra citados según su normativa interna. Las magistradas Garro Vargas y Picado Brenes dan razones adicionales.
• 6)Por unanimidad se declara inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en cuanto al artículo 12 por falta de fundamentación de lo consultado, respecto del Poder Judicial y del Tribunal Supremo de Elecciones. Las magistradas Garro Vargas y Picado Brenes ponen notas separadas.
• 7)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 13 inciso f) es inconstitucional por lesionar la independencia de poderes, tanto respecto del Poder Judicial como del Tribunal Supremo de Elecciones. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 8)Por unanimidad se declara inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en cuanto al artículo 19, por falta de una adecuada fundamentación desde el punto de vista constitucional de lo consultado. Las magistradas Garro Vargas y Picado Brenes ponen nota.
• 9)Por unanimidad se declara inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en cuanto al artículo 31, por falta de una adecuada fundamentación desde el punto de vista constitucional de lo consultado. La magistrada Picado Brenes pone nota.

Sobre los vicios de fondo alegados en cuanto a las universidades públicas:

• 10)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 6 es inconstitucional en cuanto somete a las universidades públicas a la potestad de dirección del Poder Ejecutivo. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 11)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 7 es inconstitucional en relación con aquellas disposiciones que someten a las universidades públicas a la potestad de dirección y reglamentación por parte de Mideplán. Las Magistradas Garro Vargas y Picado Brenes dan razones adicionales.
• 12)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO”, que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 13 inciso e) es inconstitucional, por no incluir en tal inciso a los servidores que realizan investigación, acción social y cultural de las universidades públicas. Las magistradas Garro Vargas y Picado Brenes dan razones adicionales.
• 13)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 17 es inconstitucional, en cuanto somete al personal de alta dirección de las universidades públicas a las disposiciones de alcance general, directrices y reglamentos que emita el Mideplán. Las magistradas Garro Vargas y Picado Brenes ponen nota.
• 14)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 30 es inconstitucional, en el tanto no excluye a los funcionarios que realizan labores sustanciales -propias de la actividad universitaria-, y porque no establece que -en atención a la autonomía universitaria- la construcción de la familia de la columna salarial y sus características corresponde en forma exclusiva y excluyente a los máximos órganos de los entes universitarios. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 15)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 30 inciso b) es constitucional. Las magistradas Hernández López, Garro Vargas y Picado Brenes salvan el voto respecto del artículo 30 inciso b) y estiman que, respecto de la autonomía universitaria, es inconstitucional por sus efectos que el salario del presidente de la República sea tope para las universidades, cuando existan razones técnicas que justifiquen otra remuneración.
• 16)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que los artículos 31, 32 y 34 son inconstitucionales, en el tanto no excluyen a los funcionarios que realizan labores sustanciales -propias de la actividad universitaria-, y porque la definición de los factores de trabajo relevante, su peso relativo, el número de grados requeridos dentro de cada familia y sus características, y la elaboración de la columna salarial corresponde en forma exclusiva y excluyente a los máximos órganos de los entes universitarios. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 17)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 33 es inconstitucional, en el tanto no excluye a los funcionarios que realizan labores sustanciales -propias de la autonomía universitaria-, y somete el manual de puestos de dichos funcionarios al análisis y evaluación de Mideplán, lo que -en atención a la autonomía universitaria- corresponde en forma exclusiva y excluyente a los máximos órganos de los entes universitarios. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 18)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que los artículos 35 y 36 son constitucionales. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes por separado.

Sobre los vicios de fondo alegados en cuanto a la Caja Costarricense de Seguro Social (CCSS):

• 19)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 2 inciso b) no es por sí mismo inconstitucional, en cuanto algunas de sus normas -como se examina de seguido- incluye a la CCSS en un marco regulatorio general de empleo público, pero sí es inconstitucional por sus efectos puesto que algunas de sus normas vacían de contenido su autonomía de gobierno. Los magistrados Castillo Víquez y Rueda Leal, y las magistradas Garro Vargas Picado Brenes ponen notas separadas.
• 20)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 6 es inconstitucional, en cuanto somete a la CCSS a la potestad de dirección del Poder Ejecutivo. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 21)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el inciso d) del artículo 7 es inconstitucional en relación con aquellas disposiciones que someten a la CCSS a la potestad de dirección y reglamentación por parte de Mideplán. Las magistradas Garro Vargas y Picado Brenes dan razones adicionales.
• 22)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 13 inciso b) es inconstitucional, por no incluir a los servidores que realizan labores sustanciales y profesionales referentes a los fines constitucionales que se le asignan a la CCSS. Las magistradas Garro Vargas y Picado Brenes dan razones adicionales.
• 23)Por unanimidad se evacua la consulta constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 18 es inconstitucional, por afectar la autonomía política de la CCSS en cuanto a los plazos del personal de alta dirección pública. La magistrada Picado Brenes da razones adicionales.

Sobre los vicios de fondo alegados en cuanto a las municipalidades:

• 24)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que, el artículo 2 inciso c) no es por sí mismo inconstitucional, en cuanto incluye a las municipalidades en un marco regulatorio general de empleo público, pero sí lo es por sus efectos puesto que algunas de sus normas -como se examina de seguido- vacían de contenido su autonomía de gobierno. Los magistrados Castillo Víquez y Rueda Leal, y las magistradas Garro Vargas y Picado Brenes ponen notas separadas.
• 25)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 7 es inconstitucional en relación con aquellas disposiciones que someten a las municipalidades a la potestad de dirección y reglamentación por parte de Mideplán. Las Magistradas Garro Vargas y Picado Brenes dan razones adicionales.
• 26)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el párrafo segundo del inciso a del artículo 9 es inconstitucional respecto a su aplicación a las municipalidades. La magistrada Garro Vargas da razones diferentes. La magistrada Picado Brenes da razones adicionales.
• 27)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de “LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 13 al no crear una familia de puestos de los empleados municipales los incluye a todos en el Servicio Civil. La magistrada Garro Vargas da razones diferentes. La magistrada Picado Brenes consigna razones adicionales.
• 28)Por unanimidad se evacua la consulta constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 18 es inconstitucional, por afectar la autonomía política de las municipalidades respecto de los plazos del personal de alta dirección pública. La magistrada Picado Brenes da razones diferentes.

Sobre los demás vicios de fondo:

• 29)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 43 no contiene vicios de constitucionalidad, en el tanto las nuevas obligaciones o derechos obtenidos al alcance de la negociación colectiva se ajusten a los principios de razonabilidad, proporcionalidad y legalidad presupuestaria, al amparo de la jurisprudencia constitucional, y siempre y cuando se trate de convenciones colectivas donde participen los empleados del Sector Público que válidamente puedan celebrar convenciones colectivas de acuerdo con la Constitución y la ley. El magistrado Rueda Leal y las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 30)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el Transitorio XV referido a la denuncia de las convenciones colectivas, no resulta inconstitucional siempre y cuando se interprete en el mismo sentido que se indicó en el voto número 2018-019511 de las 21:45 horas del 23 de noviembre del 2018, es decir, en aplicación de la Constitución Política (artículos 62 y 74), los Convenios Internacionales de la Organización Internacional del Trabajo y la jurisprudencia de este Tribunal, deberá interpretarse que cada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente. El magistrado Rueda Leal da razones particulares respecto de este punto. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 31)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el inciso a) del artículo 4 referido a la inhabilitación, no resulta inconstitucional. La magistrada Picado Brenes pone nota.
• 32)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el Transitorio XI y XII referido a las reglas del salario no resultan inconstitucionales. El magistrado Rueda Leal consigna razones diferentes. Las magistradas Hernández López, Garro Vargas y Picado Brenes salvan el voto y consideran inconstitucional el inciso a) del transitorio XI por violación al derecho de igualdad salarial. Las magistradas Garro Vargas y Picado Brenes ponen notas separadas.
• 33)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que los artículos 39, 40, 41 y 42, sobre nuevos supuestos de permisos, no resultan inconstitucionales. La magistrada Picado Brenes da razones particulares. La magistrada Garro Vargas salva el voto y la declara inevacuable.
• 34)Los magistrados Rueda Leal y Araya García, y las magistradas Hernández López, Garro Vargas y Picado Brenes consignan notas separadas.

CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 2. PRINCIPIOS CON JURISPRUDENCIA Tema: Unidad Estatal Subtemas:

NO APLICA.

PRINCIPIO DE UNIDAD ESTATAL. “…Hay que tener presente que un Estado unitariamente concentrado como el costarricense, todos los entes públicos están sometidos al principio de unidad estatal, toda vez que autonomía no significa soberanía, sino simple y llanamente independencia en el ejercicio de las competencias exclusivas y excluyentes. Sobre el principio de unidad estatal se ha afirmado que independientemente del grado de autonomía que tenga un ente descentralizado, este está estrechamente vinculado al Estado por una serie de principios y normas que están en el Derecho de la Constitución, a manera ejemplo, los numerales 11, 48, 49, 182, 184 y 192 de la Carta Fundamental, que estatuyen los principios de legalidad, rendición de cuenta y transparencia, el respeto irrestricto a los derechos fundamentales y los derechos públicos subjetivos y su tutela judicial efectiva en las jurisdicciones constitucional y contencioso-administrativa, los principios y procedimientos de contratación administrativa, la aprobación y fiscalización de los presupuestos por parte de la Contraloría General de la República y control de este órgano de relevancia constitucional sobre el uso de los fondos públicos, el sometimiento a los principios nucleares del servicio civil, etc. En esta dirección, no es inconstitucional que el legislador someta a toda la Administración Pública a una ley marco de empleo público, siempre y cuando observe rigurosamente los principios de separación de poderes y no vacíe de contenido los grados de autonomía que el Derecho de la Constitución le otorgan a las universidades del Estado, a la CCSS y a las municipalidades…” CO10/21 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: CONSULTA LEGISLATIVA FACULTATIVA Subtemas:

NO APLICA.

Tema: TRABAJO Subtemas:

NO APLICA.

017098-21. TRABAJO. CONSULTA LEGISLATIVA FACULTATIVA DE CONSTITUCIONALIDAD, REFERENTE AL PROYECTO DE LEY DENOMINADO "LEY MARCO DE EMPLEO PÚBLICO". EXPEDIENTE LEGISLATIVO N° 21.336.

ARTÍCULOS DE LA CONSTITUCIÓN POLÍTICA.

• A)CUESTIONES DE TRAMITE:

I.- De previo.- (redacta el magistrado Castillo Víquez) Quienes suscribimos esta opinión consultiva dejamos constancia de que en este caso hay razones justificadas para no plantear ninguna inhibitoria, pese a que el proyecto de ley consultado nos afecta. En primer lugar, estamos ante una ley de carácter general que afecta a todos los empleados públicos, excepto aquellos que laboran en empresas públicas que están en régimen de competencia, de forma tal que nos afecta en nuestra condición de magistrados (as) -propietarios (as) y suplentes- como aquellos (as) que imparten lecciones en universidades públicas. En segundo término, al afectar la normativa que contiene el proyecto de ley, tanto a los (as) magistrados (as) propietarios (as) como a los (as) magistrados (as) suplentes, estos (as) últimos porque se les paga como salario la sustitución a partir de un día, es lógico suponer de antemano que a todos (as) nos asiste motivo de inhibitoria, por lo que, en aplicación del numeral 29 de la Ley Orgánica del Poder Judicial, el Tribunal debe ser integrado por los mismos magistrados (as) propietarios (as) y suplentes que desde un inicio era los que lo integraban. Dicho en otras palabras, no tiene sentido que todos (as) nos inhibamos, trámite que podría tardar de tres a cinco meses, para llegar al mismo punto de inicio; máxime que en este caso el artículo 101 de la Ley de la Jurisdicción Constitucional establece un plazo de un mes para evacuar la consulta de constitucionalidad facultativa a partir de recibidos los expedientes legislativos o su acumulación, salvo causas de interrupción. También es lógico suponer que la mayoría de los (as) magistrados (as) propietarios (as) y suplentes tienen parientes cercanos -hijos (as), hermanos (as), cuñados (as), etc.-, por lo que les asistiría también motivo de inhibitoria, lo que supondría nuevamente que el Tribunal quedará desintegrado prácticamente en su totalidad. Por otra parte, en la sesión N°22-2021 de la Corte Suprema de Justicia, celebrada el día 02 de junio de 2021, artículo Único, los magistrados suplentes José Paulino Hernández Gutiérrez, Mauricio Chacón Jiménez y Ronald Salazar Murillo participaron de la discusión del proyecto de ley que se consulta, al igual que en la sesión N°27-2021 de 30 de junio de 2021 del citado órgano, artículo I, la magistrada suplente y los magistrados suplentes Lucila Monge Pizarro, José Paulino Hernández Gutiérrez, Mauricio Chacón Jiménez, Alejandro Delgado Faith y Hubert Fernández Argüello participaron de la sesión en la que se acordó plantear una consulta de constitucionalidad facultativa a la Sala Constitucional, por lo que ya adelantaron criterio y, por consiguiente, no podrían ni deberían integrar el Tribunal que va a resolver las consulta de constitucionalidad acumuladas. Finalmente, y no por ello menos importante, hay que tener presente que en el caso de los (as) magistrados (as) suplentes que son abogados (as) litigantes, ese hecho no desvirtúa lo que se viene afirmando, por la elemental razón de que ellos (as) son funcionarios públicos y, cuando ejercen la magistratura, la normativa consultada también los (as) afecta, ya que reciben salario a partir de un día de sustitución. Por lo anterior, lo procedente es que todos los magistrados (as) propietarios (as) conozcan de este asunto; siendo la única inhibitoria presentada y aceptada, la del magistrado propietario Fernando Cruz Castro, en razón de que, por su condición de presidente de la Corte Suprema de Justicia ya ha emitido criterio sobre el proyecto consultado. Además, nótese que este mismo magistrado ha presentado, en representación de toda la Corte Suprema de Justicia, una consulta facultativa por su parte. Así que no puede fungir a la vez como parte y como juez, en este caso. En sustitución del magistrado Cruz Castro se nombró a la suplente, la magistrada suplente Ana María Picado Brenes.

II.- Sobre la admisibilidad de las consultas facultativas de constitucionalidad planteadas.- De conformidad con lo que dispone la Ley de la Jurisdicción Constitucional, este Tribunal Constitucional puede ejercer la opinión consultiva previa sobre los proyectos legislativos. Dentro de los diferentes tipos de consulta de constitucionalidad, nos encontramos con la consulta facultativa contemplada en el inciso b) del artículo 96 de la citada ley, planteada por diputados de la Asamblea Legislativa, con los requisitos que se dirán. Además, con la consulta facultativa contemplada en el inciso c) del artículo 96 de la citada ley, planteada por la Corte Suprema de Justicia, en aspectos relacionados con su competencia constitucional. En este caso, nos encontramos con tres consultas facultativas presentadas por diputados y con una consulta presentada por el Presidente de la Corte Suprema de Justicia. Las cuatro consultas fueron acumuladas a este expediente mediante resoluciones números 2021-15105, 2021-15137 y 2021-15240, del 02 de julio del 2021. Se procede al examen de admisibilidad de cada uno de estos supuestos por separado.

• 1)Sobre la admisibilidad de las consultas facultativas presentadas por los diputados (art.96.b de la Ley de la Jurisdicción Constitucional).- Mediante tres escritos diferentes se presentaron a la Sala Constitucional tres consultas facultativas legislativas presentadas por diputados de la Asamblea Legislativa. La admisibilidad de cada una de estas consultas se examina de forma individualizada.
• a)Consulta facultativa expediente n°21-011713-0007-CO:

El día 17 de junio del 2021, un escrito suscrito por 15 diputados (quedando como válidas 14 firmas), presentan la primera consulta facultativa de constitucionalidad, asignándosele el número de expediente 21-011713-0007-CO. Esta consulta, presentada con base en el art.96.b) de la Ley de la Jurisdicción Constitucional debe reunir dos requisitos para su admisibilidad: debe presentarse por un número no menor de diez diputados y debe hacerse después de que el proyecto consultado haya sido aprobado en primer debate (o antes, si la Asamblea Legislativa tuviere un plazo constitucional o reglamentario para votarlo). Dado que, el primer debate se dio en sesión ordinaria n°17 del 17 de junio del 2021, y esta consulta fue presentada en horas de la tarde de ese día; y dado que, fueron 14 los diputados que finalmente suscribieron la consulta, esta cumple a cabalidad con los requisitos mencionados. Cabe mencionar que, el escrito inicial es firmado por 15 diputados. Luego, antes de la fecha de recibido del expediente legislativo (el 25 de junio, fecha que esta Sala ha tenido como límite para este tipo de escritos, según voto n°2018-019511 y 2014-012887), en fechas 17 y 18 de junio dos diputados solicitaran tener por retirada su firma (diputado Mario Castillo Méndez y la diputada Zoila Rosa Volio Pacheco), retiro que se tiene como válido. Posteriormente, un nuevo diputado (diputado Dragos Dolanescu Valenciano) solicita el 21 de junio (igualmente antes de la fecha de recibido del expediente legislativo) que se agregue su firma a la consulta, agregado que se tiene como válido. Teniendo en ese momento un total de 14 firmas válidas. Debe tomarse en cuenta que, la firma de la diputada Aracelly Salas Eduarte aparece en esta consulta y en la segunda, dado que no puede tenerse por admitida en las dos -según jurisprudencia de esta Sala- se admite como válida únicamente en esta primera consulta. No se admiten los rechazos parciales de firmas, realizados el 30 de junio, presentados por tres diputados (Sylvia Patricia Villegas, Walter Muñoz y Shirley Díaz Mejías) por cuanto, independientemente de cuándo se realicen, resulta inadmisible para esta Sala los retiros parciales de firma. Cuando se suscribe una consulta se suscribe en su totalidad, por ello, no se admite una firma parcial ni un retiro parcial, ni antes ni después de recibido el expediente legislativo.

Por lo tanto, se tiene esta consulta como admitida con la firma de 14 diputados, número que cumple con el requisito mencionado, de ser presentada por un mínimo de 10 diputados.

• b)Consulta facultativa expediente n°21-011915-0007-CO:

La segunda consulta facultativa presentada por diputados fue recibida en esta Sala a las 08:11 horas del 22 de junio del 2021. En el escrito de interposición se consigna la firma de 10 diputados (quedando como válidas 10 firmas). Tramitada bajo expediente n°21-011915-0007-CO y acumulada a este expediente por resolución número 2021-015105 de las 9:15 horas del 2 de julio de 2021. Ahora bien, se observan lo siguientes hechos: la consulta es inicialmente presentada por 10 diputados. Siendo que, una de las diputadas (Aracelly Salas Eduarte) suscribió también la primera consulta n°21-011713-0007-CO, esta Sala tiene la primera firma como válida y por tanto, se tiene por no presentada en ésta segunda consulta, así quedaron nueve firmas como válidas. Sin embargo, luego, un diputado (Melvin Núñez Piña) se adhiere a esta consulta por escrito presentado el 23 de junio, con anterioridad al recibido del expediente legislativo. Así entonces, se tiene esta consulta por presentada con la firma de 10 diputados, número que cumple con el requisito mencionado, de ser presentada por un mínimo de 10 diputados.

• c)Consulta facultativa expediente n°21-012118-0007-CO:

La tercera consulta facultativa presentada por diputados fue recibida en esta Sala a las 18:47 horas del 23 de junio del 2021, con la firma de 10 diputados. Tramitada bajo expediente n°21-012118-0007-CO y acumulada a este expediente por resolución número 2021-015137 de las 9:15 horas del 2 de julio de 2021. Por lo tanto, se cumple con el número mínimo de 10 diputados. Número que no cambia por el hecho de que una diputada (Zoila Rosa Volio) haya suscrito la primera consulta, pues se tuvo por retirada su firma en esa primera consulta (mediante escrito del 18 de junio, antes de recibido el expediente legislativo) y por lo tanto, nada obstaba para tenerla por admitida en esta. Además, el retiro de la firma de otra diputada (Paola Valladares) por el hecho de ser presentada el 07 de julio, con posterioridad a la presentación del expediente legislativo, hace que no se pueda admitir su retiro, y que por lo tanto, esta consulta mantenga la firma de 10 diputados.

Así entonces, por unanimidad se consideran admisibles las primeras dos consultas y por mayoría se considera admisible la tercera consulta. Ello por cuanto, las tres consultas presentadas cumplen con los dos requisitos mencionados. Todas fueron presentadas por al menos 10 diputados, y todas fueron presentadas luego de aprobado el proyecto en primer debate. Además, en cuanto al requisito de orden fijado por esta Sala en estos casos, todas fueron presentadas antes de que se presentara a esta Sala el expediente legislativo, es decir, antes del 25 de junio del 2021. En conclusión, las tres consultas anteriores se tienen por admitidas.

Razones diferentes del magistrado Rueda Leal en cuanto a la admisibilidad de la consulta del expediente n.° 21-011713-0007-CO.

Advierto que en la sentencia n.° 2014-012887 de las 14:30 horas del 8 de agosto de 2014, junto con los Magistrados Cruz Castro y Salazar Alvarado, me pronuncié en este sentido:

“XV.- Nota de los Magistrados Cruz Castro, Rueda Leal y Salazar Alvarado, sobre el retiro de firmas (Redacta el Magistrado Rueda Leal).- Una situación ocurrida durante la tramitación de este expediente ha llamado la atención de los suscritos Magistrados. A raíz de ella, hemos considerado necesario poner esta nota, pues si bien no se trata de un punto cuestionado o de gran incidencia en este proceso de consulta legislativa, sí se ha manifestado de manera patente y requiere, a nuestro criterio, ser abordado. Es necesario observar lo ocurrido en este expediente para comprender a cabalidad la observación de los firmantes.

La primera consulta de constitucionalidad fue planteada el 22 de abril de 2014 por Carmen Granados Fernández, Xinia Espinoza Espinoza, Carmen Muñoz Quesada, Yolanda Acuña Castro, Claudio Monge Pereira, José María Villalta Flórez-Estrada, Juan Carlos Mendoza García, Justo Orozco Álvarez, Luis Fishman Zonzinski, Carlos Góngora Fuentes, Rodolfo Sotomayor Aguilar y José Joaquín Porras Contreras (12 diputados).

El 28 de abril de 2014, Rodolfo Sotomayor Aguilar retira su firma; lo mismo hacen, el 29 de abril de 2014 y mediante sendos memoriales, Carlos Góngora Fuentes y José Joaquín Porras Contreras. Ese mismo día, por escritos separados, María Eugenia Venegas Renauld y Damaris Quintana Porras adicionan sus firmas a la consulta.

En cuanto a la segunda consulta, ella fue planteada el 29 de abril de 2014 por Adonay Enríquez Guevara, Damaris Quintana Porras, Danilo Cubero Corrales, Ernesto Chavarría Ruiz, Fabio Molina Rojas, Luis Fishman Zonzinski, Manuel Hernández Rivera, María Ocampo Baltodano, Mireya Zamora Alvarado y Víctor Hugo Víquez Chaverri (10 diputados). Ese mismo día, Fabio Molina Rojas, María Ocampo Baltodano y Víctor Hugo Víquez Chaverri retiraron sus firmas y, unas horas después, adicionaron nuevamente sus firmas. Posteriormente, el 2 de junio de 2014, ya siendo exdiputados, María Ocampo Baltodano y Víctor Hugo Víquez Chaverri retiraron sus firmas de la consulta.

La Sala se ha referido a la buena fe procesal que debe imperar en los procedimientos de consulta facultativa:

“… En ese particular, esta jurisdicción, es del criterio, que, en la primera ocasión en la que los Diputados formulan una consulta legislativa facultativa, deben de indicar todos y cada uno de los vicios constitucionales -tanto de forma como de fondo-, que estimen presentes en el proyecto de ley. Esto, ya que, de lo contrario, la consulta legislativa facultativa sería empleada como un instrumento para prolongar, indebidamente, el procedimiento legislativo, trastrocando sus fines. La necesidad de consultar en una sola ocasión los posibles defectos de constitucionalidad, obedece también, a la lealtad y buena fe procesales que deben imperar en la utilización de cualquier mecanismo que ofrezca el ordenamiento jurídico para someter a la fiscalización jurisdiccional una determinada conducta. También hay razones de economía procedimental legislativa que imponen esta nueva postura, por cuanto, bien podrían los diputados plantear tantas consultas legislativas facultativas respecto de un proyecto que no ha sufrido modificaciones esenciales o sustanciales, como estimen necesarias, dando lugar a una cadena interminable de consultas. Debe tomarse en consideración, tal y como lo prescribe el ordinal 101, párrafo 2°, de la Ley de la Jurisdicción Constitucional que el dictamen vertido por la Sala Constitucional en la consulta, “En todo caso, no precluye la posibilidad de que posteriormente la norma o normas cuestionadas puedan ser impugnadas por las vías de control de constitucionalidad”. Por consiguiente, en adelante, esta Sala, únicamente, evacuará una nueva consulta legislativa cuando, al haber sido devuelto a la corriente legislativa el proyecto de ley -luego, claro está, de haber sido conocida la primera de tales consultas por este órgano jurisdiccional-, se le hayan introducido al mismo modificaciones o enmiendas de carácter sustancial.” (Sentencia número 2011-14965 de las 9:34 horas del 2 de noviembre de 2011) Admitir el libre desistimiento en la consultas de constitucionalidad da pie para que ocurran situaciones donde, contrario a la buena fe procesal, las firmas de los diputados son retiradas o adicionadas según la estrategia parlamentaria de cada legislador o partido político, y no, como debería ser, con el sincero interés de velar por la constitucionalidad del proyecto. Nuestra opinión es que tal tipo de vicios lleva a una perversión del mecanismo de la consulta facultativa de constitucionalidad, en la medida que la sujeta a los vaivenes y peripecias de la política. En otras palabras, el uso de la consulta parlamentaria facultativa para los efectos de la táctica legislativa contribuye a la judicialización de la política, cuando la independencia judicial y la división de poderes exigen que el Poder Judicial y, como parte de él, la Sala Constitucional se protejan en la medida de lo posible de dicho fenómeno.

Por lo demás, los suscritos enfatizamos que en materia de acciones de inconstitucionalidad, se ha establecido que “no existe norma que autorice el desistimiento de una acción de inconstitucionalidad” (sentencias números 2013-008946 de las 14:30 horas del 3 de julio de 2013, 2013-004620 las 14:30 horas treinta del 10 de abril de 2013 y 2013-005095 de las 14:30 horas del 17 de abril de 2013). En virtud de lo anterior y haciendo especial hincapié en la necesidad de proteger a la Sala Constitucional de las incidencias políticas, consideramos que las consultas legislativas que hayan sido presentadas cumpliendo el requisito del artículo 96 inciso b) de la Ley de la Jurisdicción Constitucional, deben ser tramitadas como corresponda, haciendo caso omiso a las gestiones de retiro de firmas que se presentaren posteriormente”. (Destacado no corresponde al original).

En el sub examine, determino que esta consulta fue presentada originalmente por 15 diputados, entre ellos, el diputado Mario Castillo Méndez y la diputada Zoila Rosa Volio Pacheco. Posteriormente, los días 17 y 18 de junio, ellos solicitaron el retiro de sus firmas en esta consulta. En aplicación de la jurisprudencia transcrita, considero improcedente el retiro de tales firmas, por lo que considero que deben ser agregadas al número total de firmas.

Nota separada de la magistrada Garro Vargas en relación a la admisibilidad de la consulta tramitada en el expediente n°21-011713-0007-CO He considerado necesario consignar esta nota separada para perfilar mi postura en relación con las manifestaciones de los legisladores que plantearon un “retiro parcial” de la consulta legislativa relativa al expediente n.°21-011713-0007-CO.

Como se acreditó que dicha manifestación de voluntad fue planteada luego de recibida la copia certificada íntegra del expediente legislativo ?momento a partir del cual la Sala rechaza la posibilidad de retirar firmas—, estimo que resulta innecesario que este Tribunal se pronuncie sobre si esta es procedente en sí misma. No obstante, coincido con la mayoría de la Sala en el sentido de que no caben los retiros parciales (es decir, sobre el contenido) a consultas legislativas dirigidas ante la Sala Constitucional.

Razones diferentes de la magistrada Hernández López sobre la admisibilidad de la segunda consulta expediente n°21-11915-007-CO Desde la sentencia 2014-012887, he sido consistente en señalar que la firma repetida de diputados en distintas consultas presentadas en tiempo (es decir antes de la recepción del expediente), son admisibles en cuanto tengan temas nuevos no planteados originalmente en la consulta anterior. Desde mi punto de vista, la participación de un mismo diputado o diputada en distintas consultas no está limitada por la ley y por ende, no podría la Sala obstaculizar el ejercicio de esa facultad otorgada a los integrantes del Poder Legislativo mediante una interpretación. Considero que la Sala no debe distinguir donde la ley no distingue y menos con una interpretación restrictiva que limite el ejercicio de esta potestad.

Razones diferentes de la magistrada Garro Vargas en relación a la admisibilidad de la consulta tramitada en el expediente n°21-011915-0007-CO En el caso concreto, y bajo una mejor ponderación, me separo de la línea mayoritaria de la Sala por estimar que sí cabe que un legislador o legisladora pueda firmar una nueva consulta facultativa de constitucionalidad, pese a que haya suscrito otra sobre el mismo proyecto de ley. Lo anterior bajo el entendido de que la firma de la consulta anterior se tenga por no puesta. En otras palabras, una manifestación de voluntad mediante la cual se suscribe una consulta legislativa posterior implica que la firma anterior se tenga por retirada. Todo lo cual podría ser realizado únicamente si es de previo a la recepción de la copia certificada íntegra del expediente legislativo, momento a partir del cual resulta improcedente el retiro o la suma de firmas.

Con esta interpretación se procura cumplir con los requisitos exigidos por la Sala, en el sentido que no es válido que un diputado o diputada suscriba simultáneamente más de una consulta legislativa y, además, se pretende tutelar su más reciente manifestación de voluntad.

Para sostener lo dicho considero que debe tomarse en cuenta lo siguiente: A los legisladores se les admite la posibilidad de retirar la firma o adherirse a una consulta ya formulada, siempre que sea de previo a la recepción de la copia certificada íntegra del expediente legislativo. Por otro lado, tal como está resolviendo la Sala, no cabe el retiro parcial de una consulta ya planteada. De manera que es lógico que se les reconozca la posibilidad de suscribir otra consulta posterior que podría ser más afín a sus convicciones y a sus intereses. En tal caso, se entiende que implícitamente retira su firma de la consulta formulada previamente.

Lo que no resulta admisible ?y en eso coincido con la mayoría de la Sala— es la simultaneidad. Es decir, que se suscriba una consulta posterior y se mantenga y contabilice la firma de la consulta realizada preliminarmente.

Con esta interpretación que propongo se acata la ratio del legislador, que impuso un requisito de un mínimo de diez firmas para admitir una consulta facultativa de constitucionalidad; pero, de forma paralela, se respeta la intención o soberanía del legislador al considerar como válida su más reciente manifestación formal de voluntad. En ese sentido, estimo pertinente traer a colación lo dicho por este Tribunal en anteriores oportunidades:

“El Tribunal, reconociendo el derecho de los diputados para acudir en consulta, ha ejercido su competencia profusamente, dándole respuesta a las consultas legislativas facultativas que se le hacen, pero el ejercicio del derecho debe hacerse en los términos fijados por la ley que rige la Jurisdicción, de manera ordenada y razonada; permitir el acceso en forma indiscriminada, puede conducir a desnaturalizar el proceso y convertirlo en un abuso de ese derecho, puesto que de lógica deberá entenderse, entonces, que puedan formularse tantas consultas como combinaciones de diez diputados sean posibles” (ver la opinión consultiva n.°2000-03220, criterio que fue reiterado posteriormente en las siguientes 2014-12887, 2016-9874 y 2018-019511).

En consecuencia, para los legisladores solo resulta legítimo suscribir una única consulta facultativa de constitucionalidad y no varias, y, de darse esta situación, únicamente se entiende eficaz su última firma, por ser la manifestación de voluntad más reciente. Se entendería que tácitamente se está retirando de la primera consulta legislativa. Estos movimientos, insisto, son válidos únicamente si se concretan de previo a la recepción, por parte de esta Sala Constitucional, de la copia certificada íntegra del expediente legislativo.

Nota separada de la magistrada Picado Brenes en relación a la admisibilidad de la consulta formulada mediante expediente n°21-011915-0007-CO (punto 2 del Por Tanto) Sobre la segunda consulta facultativa presentada por diputados, recibida en esta Sala a las 08:11 horas del 22 de junio del 2021, se observa que el diputado Melvin Núñez Piña se adhiere a esta consulta por escrito presentado el 23 de junio. Es decir, su adhesión se dio con anterioridad a la llegada a la Sala del expediente legislativo. En este sentido, considero que tal adhesión del diputado Melvin Núñez es admisible, precisamente por haberse presentado antes de la llegada del expediente legislativo. Si la adhesión se hubiese presentado después del 25 de junio -fecha en que ingresa a la Sala el expediente Legislativo- dicha adhesión no podría admitirse.

Voto salvado del magistrado Castillo Víquez sobre el expediente n°21-012118-0007-CO Conforme a mi línea de votación (véase, entre otras, la opinión consultiva n.° 2014-012887), declaro inevacuable la tercera consulta de constitucionalidad, toda vez que una diputada retiró su firma de la consulta el 7 de julio del año en curso y, por consiguiente, la consulta queda únicamente con nueve firmas. Ergo, soy de la tesis de que en cualquier momento un (a) diputado (a) puede retirar la firma y, en este caso, la consulta de constitucionalidad no cumple con el requisito de las diez firmas; se trata de una inadmisibilidad sobreviniente. Lo anterior no significa que no concurra a la discusión y votación sobre la objeción de conciencia, toda vez que este extremo se consulta en la primera consulta de constitucionalidad facultativa que sí fue admitida.

Voto salvado del magistrado Rueda Leal con respecto a la consulta formulada en el expediente n.° 21-012118-0007-CO.

Tal como señalé en mis razones diferentes que analizaron la admisibilidad del expediente n.° 21-011713-0007-CO, estimo improcedente el retiro de firmas de los diputados en materia de consultas legislativas. Por este motivo, reitero que rechazo el retiro de firma de la diputada Zoila Rosa Volio Pacheco de la consulta n.° 21-011713-0007-CO. Dado que su firma debe ser agregada a esa consulta, entonces no puede ser validada para el expediente n.° 21-012118-0007-CO, lo que significa que este último queda solo con nueve firmas (incluyendo la de la diputada Paola Valladares, cuyo retiro rechazo de manera análoga). Ahora bien, tal cantidad es insuficiente para cumplir el requisito de admisibilidad establecido por el numeral 96 inciso b) de la Ley de la Jurisdicción Constitucional, que exige la firma de 10 diputados. En ese tanto, declaro inevacuable esta consulta.

Nota del Magistrado Salazar Alvarado respecto de la admisibilidad de la Consulta Legislativa.

En Sentencia N° 2014-012887 de las 14:30 horas del 8 de agosto de 2014, suscribí, junto con los Magistrados Cruz Castro y Rueda Leal, la siguiente nota con respecto al retiro de firmas en el proceso de una consulta legislativa:

“XV.- Nota de los Magistrados Cruz Castro, Rueda Leal y Salazar Alvarado, sobre el retiro de firmas (Redacta el Magistrado Rueda Leal).- “Una situación ocurrida durante la tramitación de este expediente ha llamado la atención de los suscritos Magistrados. A raíz de ella, hemos considerado necesario poner esta nota, pues si bien no se trata de un punto cuestionado o de gran incidencia en este proceso de consulta legislativa, sí se ha manifestado de manera patente y requiere, a nuestro criterio, ser abordado. Es necesario observar lo ocurrido en este expediente para comprender a cabalidad la observación de los firmantes.

“La primera consulta de constitucionalidad fue planteada el 22 de abril de 2014 por Carmen Granados Fernández, Xinia Espinoza Espinoza, Carmen Muñoz Quesada, Yolanda Acuña Castro, Claudio Monge Pereira, José María Villalta Flórez-Estrada, Juan Carlos Mendoza García, Justo Orozco Álvarez, Luis Fishman Zonzinski, Carlos Góngora Fuentes, Rodolfo Sotomayor Aguilar y José Joaquín Porras Contreras (12 diputados).

“El 28 de abril de 2014, Rodolfo Sotomayor Aguilar retira su firma; lo mismo hacen, el 29 de abril de 2014 y mediante sendos memoriales, Carlos Góngora Fuentes y José Joaquín Porras Contreras. Ese mismo día, por escritos separados, María Eugenia Venegas Renauld y Damaris Quintana Porras adicionan sus firmas a la consulta.

“En cuanto a la segunda consulta, ella fue planteada el 29 de abril de 2014 por Adonay Enríquez Guevara, Damaris Quintana Porras, Danilo Cubero Corrales, Ernesto Chavarría Ruiz, Fabio Molina Rojas, Luis Fishman Zonzinski, Manuel Hernández Rivera, María Ocampo Baltodano, Mireya Zamora Alvarado y Víctor Hugo Víquez Chaverri (10 diputados). Ese mismo día, Fabio Molina Rojas, María Ocampo Baltodano y Víctor Hugo Víquez Chaverri retiraron sus firmas y, unas horas después, adicionaron nuevamente sus firmas. Posteriormente, el 2 de junio de 2014, ya siendo exdiputados, María Ocampo Baltodano y Víctor Hugo Víquez Chaverri retiraron sus firmas de la consulta.

“La Sala se ha referido a la buena fe procesal que debe imperar en los procedimientos de consulta facultativa:

“… En ese particular, esta jurisdicción, es del criterio, que, en la primera ocasión en la que los Diputados formulan una consulta legislativa facultativa, deben de indicar todos y cada uno de los vicios constitucionales -tanto de forma como de fondo-, que estimen presentes en el proyecto de ley. Esto, ya que, de lo contrario, la consulta legislativa facultativa sería empleada como un instrumento para prolongar, indebidamente, el procedimiento legislativo, trastrocando sus fines. La necesidad de consultar en una sola ocasión los posibles defectos de constitucionalidad, obedece también, a la lealtad y buena fe procesales que deben imperar en la utilización de cualquier mecanismo que ofrezca el ordenamiento jurídico para someter a la fiscalización jurisdiccional una determinada conducta. También hay razones de economía procedimental legislativa que imponen esta nueva postura, por cuanto, bien podrían los diputados plantear tantas consultas legislativas facultativas respecto de un proyecto que no ha sufrido modificaciones esenciales o sustanciales, como estimen necesarias, dando lugar a una cadena interminable de consultas. Debe tomarse en consideración, tal y como lo prescribe el ordinal 101, párrafo 2°, de la Ley de la Jurisdicción Constitucional que el dictamen vertido por la Sala Constitucional en la consulta, “En todo caso, no precluye la posibilidad de que posteriormente la norma o normas cuestionadas puedan ser impugnadas por las vías de control de constitucionalidad”. Por consiguiente, en adelante, esta Sala, únicamente, evacuará una nueva consulta legislativa cuando, al haber sido devuelto a la corriente legislativa el proyecto de ley -luego, claro está, de haber sido conocida la primera de tales consultas por este órgano jurisdiccional-, se le hayan introducido al mismo modificaciones o enmiendas de carácter sustancial.” (Sentencia número 2011-14965 de las 9:34 horas del 2 de noviembre de 2011).

“Admitir el libre desistimiento en la consultas de constitucionalidad da pie para que ocurran situaciones donde, contrario a la buena fe procesal, las firmas de los diputados son retiradas o adicionadas según la estrategia parlamentaria de cada legislador o partido político, y no, como debería ser, con el sincero interés de velar por la constitucionalidad del proyecto. Nuestra opinión es que tal tipo de vicios lleva a una perversión del mecanismo de la consulta facultativa de constitucionalidad, en la medida que la sujeta a los vaivenes y peripecias de la política. En otras palabras, el uso de la consulta parlamentaria facultativa para los efectos de la táctica legislativa contribuye a la judicialización de la política, cuando la independencia judicial y la división de poderes exigen que el Poder Judicial y, como parte de él, la Sala Constitucional se protejan en la medida de lo posible de dicho fenómeno.

“Por lo demás, los suscritos enfatizamos que en materia de acciones de inconstitucionalidad, se ha establecido que “no existe norma que autorice el desistimiento de una acción de inconstitucionalidad” (sentencias números 2013-008946 de las 14:30 horas del 3 de julio de 2013, 2013-004620 las 14:30 horas treinta del 10 de abril de 2013 y 2013-005095 de las 14:30 horas del 17 de abril de 2013). En virtud de lo anterior y haciendo especial hincapié en la necesidad de proteger a la Sala Constitucional de las incidencias políticas, consideramos que las consultas legislativas que hayan sido presentadas cumpliendo el requisito del artículo 96 inciso b) de la Ley de la Jurisdicción Constitucional, deben ser tramitadas como corresponda, haciendo caso omiso a las gestiones de retiro de firmas que se presentaren posteriormente”.

Luego, en Sentencia N° 2016-004651 de las 12:40 horas del 6 de abril de 2016, consigné otra nota en la que aclaré los alcances de mi posición respecto al tema, en los siguientes términos:

“Si bien, en la Sentencia N° 2014-12887, de las 14:30 horas, del 8 de agosto de 2014, suscribí nota conjunta con los Magistrados Cruz Castro y Rueda Leal, respecto del retiro de firmas en una consulta legislativa de constitucionalidad, en el caso bajo estudio, en el que el recurrente desiste de la presente acción de inconstitucionalidad, coincido con el voto de mayoría, que tiene por desistida la acción, por cuanto, la misma, aún no había sido admitida para estudio cuando el accionante presentó el desistimiento, en virtud de haberse dictado a su favor una sentencia absolutoria, de ahí la diferencia -esencial- con la nota suscrita en aquella consulta. Ergo, sobra decir que, en criterio del suscrito, es viable, desde el punto de vista procesal, desistir de una acción de inconstitucionalidad mientras la misma no haya sido admitida para estudio, como aconteció en ésta”.

De lo dicho en las notas citadas, se desprende que, tanto en vía de consulta legislativa facultativa de constitucionalidad, como en vía de acción de inconstitucionalidad, es válido, para el suscrito, el retiro de firmas o el desistimiento -según el caso- siempre y cuando ello acontezca antes de que la Sala reciba la copia certificada del expediente legislativo (en consulta legislativa facultativa) o no haya sido aún admitida para su estudio (en acción de inconstitucionalidad).

En este mismo orden de ideas, sí es posible, en una consulta legislativa de constitucionalidad, retirar válidamente una firma antes de que la Sala reciba la copia certificada del expediente legislativo -momento a partir del cual corre el plazo mensual para resolver-, así como también debe entenderse, que se debe tener válidamente como consultante al diputado o diputada que, antes de que este Tribunal reciba la referida copia del expediente legislativo, solicite que se le tenga como firmante de la consulta.

En la consulta legislativa N° 21-11713-0007-CO, consta que en total fue presentada inicialmente por quince diputados, de los cuales el diputado Mario Castillo Méndez retira su firma el 17 de junio, y la diputada Zoila Rosa Volio Pacheco se retracta el 18 de junio; a su vez, el diputado Dragos Dolanescu Valenciano, solicitó se le tuviera como firmante de la consulta el 21de junio pasado, todo lo anterior, retiro y presentación de firmas, sucede antes del ingreso del expediente legislativo N° 21.336. En este sentido, no existe impedimento para que tanto la diputada como el diputado puedan retirar sus firmas de la consulta facultativa que en su momento procesal formularon, como fue explicado líneas atrás. Tampoco encuentro impedimento para que se tenga como firmante de la consulta al diputado Dolanescu Valenciano. Dichas gestiones fueron incoadas antes del recibido del expediente legislativo el 25 de junio pasado. Posteriormente, como se explica más adelante, la diputada Aracelly Salas Eduarte, suscribe una segunda consulta legislativa (N° 21-11915-0007-CO, lo que solo afecta su participación en esta consulta legislativa). Ahora bien, dicho lo anterior, la consulta que nos ocupa queda rubricada válidamente por catorce diputados. Finalmente, coincido en que debe rechazarse la solicitud para separarse de algún punto de la consulta, parcialmente (objeción de conciencia), si esa solicitud se formula con posterioridad al ingreso del expediente, como sucedió con las manifestaciones de la diputada Sylvia Patricia Villegas Álvarez y del diputado Walter Muñoz Céspedes, en gestiones del 30 de junio pasado.

En cuanto a la consulta legislativa N° 21-11915-0007-CO, se tiene que fue presentada por diez diputados, si bien la diputada Aracelly Salas Eduarte también había suscrito la consulta legislativa N° 21-11713-0007-CO, es importante mantener la obligación del consultante de señalar todos y cada uno de los vicios constitucionales -tanto de forma como de fondo-, que estimen presentes en el proyecto de ley. Se busca evitar, que la consulta legislativa facultativa sea usada para prolongar el procedimiento legislativo, invirtiendo su finalidad. En este sentido, se deben reiterar las razones dadas en las notas que fueron antes transcritas. En consecuencia, para el suscrito, la firma de la diputada Salas Eduarte sería admisible con la primera, pero no para la segunda. En consecuencia, estimo que se admite con las diez firmas, junto con la presentada por el diputado Melvin Núñez Piña, cuando la presentó el 23 de junio; es decir, antes del 25 de junio que ingresó el expediente legislativo a la Sala.

Finalmente, respecto de la consulta legislativa N° 21-12118-0007-CO, coincido con la mayoría de la Sala de que no es posible admitir el retiro de la firma de la diputada Paola Valladares Rosado, dado que la solicitud fue formulada el 7 de julio pasado, cuando evidentemente había sido aportado a la Sala Constitucional el expediente legislativo, en fecha 25 de junio pasado. Es decir, la solicitud del retiro de su firma no procede con base en el reiterado criterio antes expuesto. En cuanto al problema de la reiteración de la firma de la diputada Zoila Rosa Volio Pacheco (entre la primera y esta última consulta legislativa), estimo que es admisible, pues basta precisar que la petición de tenerla por excluida de la primera consulta fue presentada el 18 de junio, y que la decisión de apoyar a la última consulta legislativa fue posterior a esa fecha, resulta válida porque ocurre antes del ingreso del expediente legislativo. Véase, que esta última consulta legislativa ingresa el día 23 de junio, con posterioridad a la solicitud de retiro (18 de junio), y antes de la fecha del ingreso del expediente legislativo el día 25.

Por todo lo expuesto, lo propio es tenerlos como consultantes, salvo el caso del diputado Castillo Méndez, conforme a los razonamientos expresados.

• 2)Sobre la admisibilidad de la consulta facultativa presentada por el Presidente de la Corte Suprema de Justicia (art.96.c de la Ley de la Jurisdicción Constitucional).- (redacta el Magistrado Castillo Víquez) Por mayoría se declara inevacuable la consulta de constitucionalidad facultativa especial presentada por la Corte Suprema de Justicia por las razones que a continuación se explican. En primer lugar, hay que tener presente que la Sala Constitucional tiene un plazo de un mes fijado por ley para evacuar la consulta admitida. En ese sentido, y con el fin de que el trámite de la opinión consultiva no se convierta en un obstáculo para que el Parlamento ejerza la potestad legislativa, este Tribunal tiene que establecer un momento de inicio del plazo para tener certeza cuál es el último día para evacuarla. Es por ello por lo que la Sala Constitucional ha establecido como momento de inicio del plazo el recibido del expediente legislativo o la acumulación; a partir de esos momentos no es posible admitir nuevas consultas, sean de los (as) diputados (as) o de otros órganos externos al Parlamento. En segundo término, es claro que la Corte Suprema de Justicia conoce esta postura del Tribunal -ha sido una jurisprudencia reiterada-, por ello, y máxime que el proyecto en su versión original y final fueron objeto de consulta constitucional a este poder del Estado de conformidad con el numeral 167 de la Carta Fundamental, es claro que la Corte Suprema de Justicia tenía el tiempo suficiente para hacer la consulta antes de recibido el expediente legislativo o de la acumulación de las consultas. Finalmente, si el inicio del plazo que ha definido la Sala se corriera a causa de nuevas consultas de constitucionalidad facultativas especiales por parte de los órganos externos, el plazo podría ampliarse hasta por cinco meses, todo lo cual conllevaría no solo una vulneración del numeral 101 de la Ley de la Jurisdicción Constitucional, sino que constituiría una interferencia indebida en el iter del proyecto de ley en el procedimiento parlamentario, con el agravante, que los tiempos y momentos políticos en la Asamblea Legislativa son cambiantes y volátiles, por lo que podría, en muchos casos, dar al traste con los acuerdos concertados en la Asamblea Legislativa. De ahí que por las razones antes apuntadas, la consulta presentada por la Corte Suprema de Justicia es inevacuable por extemporánea.

Voto salvado de las magistradas Garro Vargas y Picado Brenes quienes admiten la consulta (con redacción de la última) Esta consulta presentada por la Corte Suprema de Justicia se hace con base en el art.96.c) de la Ley de la Jurisdicción Constitucional. Conforme a tal norma, debe reunir los siguientes requisitos para su admisibilidad: debe tratarse de una consulta sobre un proyecto legislativo (objeto), debe presentarla el órgano legitimado para hacerla (sujeto), debe presentarse después de aprobado el proyecto en primer debate (momento), deberá formularse en memorial razonado con expresión de los aspectos cuestionados (forma) y lo consultado debe estar referido a aspectos relacionados con su competencia constitucional. En este caso, la consulta formulada por la Corte Suprema de Justicia cumple a cabalidad con todos los requisitos anteriores: la consulta se presenta sobre el proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336; la presenta el Presidente de la Corte Suprema de Justicia conforme artículo I del acuerdo de sesión de Corte Plena número 27-2021 del 30 de junio del 2021. Además, se presenta luego de aprobado el proyecto en primer debate (dado el 17 de junio del 2021) y en memorial razonado. Asimismo, lo consultado se refiere a aspectos del proyecto, relacionados con las competencias constitucionales de la Corte Suprema de Justicia. Resulta relevante ahondar en la importancia de este tipo de consultas para el Derecho de la Constitución. Mediante el control previo de constitucionalidad, el legislador ha permitido a varios órganos -relevantes para nuestro sistema democrático- el poder plantear la consulta y con ello evitar que proyectos viciados constitucionalmente por el fondo o la forma integren el ordenamiento positivo. Entonces, además de los diputados, el legislador habilitó a los siguientes órganos para que presentaran consultas en las que la Sala ejerciera el control previo: la Corte Suprema de Justicia, el Tribunal Supremo de Elecciones, la Contraloría General de la República y la Defensoría de los Habitantes. En el caso concreto de la Corte Suprema de Justicia se entiende que la consulta se puede hacer sobre proyectos de ley o mociones incorporadas a ellos, en cuya tramitación, contenido o efectos se estimare como indebidamente ignorados, interpretados o aplicados los principios o normas relativos a su respectiva competencia constitucional. Nótese que se trata de otorgarle a uno de los Poderes de la República, la posibilidad de evitar que un proyecto de ley se apruebe, en contra de lo que consideran son sus competencias constitucionales. Tal como lo dijo desde entonces Alexander Hamilton (uno de padres fundadores de los Estados Unidos), en su ensayo El Federalista N° 78, y como hoy en día la doctrina lo respalda, el Poder judicial es el más débil de los tres Poderes, porque "no tiene influencia sobre la espada o el bolso... Realmente se puede decir que no tiene FUERZA. NI VOLUNTAD, sino simplemente juicio". Así entonces, esta es una de las pocas facultades que el legislador le ha otorgado al Poder Judicial para hacer respetar sus competencias constitucionales, de previo a que la norma sea aprobada como ley de la República. Ahora bien, hay un aspecto que resulta relevante recalcar. Se venía presentando una situación en la práctica: varios grupos de diputados presentaban sobre un mismo proyecto de ley varias consultas legislativas, diferidas en el tiempo, corriendo casi ad infinitum el plazo de un mes que tiene la Sala Constitucional para resolver. De esta forma, ante el vacío legal que regulara el plazo máximo que tenían los diputados para presentar consultas y el momento a partir del cual empezaba a correr el plazo de un mes que se tiene para resolver la consulta, esta Sala determinó, por jurisprudencia constitucional, regular tal situación y estableció que, luego de la fecha en que se tiene por recibida la copia certificada del expediente legislativo, empieza a correr el plazo para evacuar la consulta, y por ello, a partir de allí, no era posible tener por admitidas nuevas consultas facultativas. Sin embargo, nótese que tal limitación resultó aplicable únicamente a las consultas presentadas por diputados (art.96.b) pues la casi totalidad de las consultas que se presentaron durante más de 30 años de historia de esta Sala Constitucional lo fueron por parte de diputados. Además, nótese que, el momento a partir del cual empezaba a correr el plazo de un mes que tiene esta Sala para resolver la consulta, se ha tenido a partir del recibo del expediente legislativo, pero también a partir de la acumulación (ver voto n°2017-009690) o del recibo de la solicitud de prueba para mejor resolver (ver voto n°2014-003969). Por ello, el momento en que la Sala tiene por recibido el expediente legislativo, no puede tenerse como único criterio para empezar a contar el plazo del mes, ni tampoco puede aplicarse como limitante o plazo de caducidad para la admisibilidad de otro tipo de consultas realizadas con base en otros incisos del art.96 de la Ley de la Jurisdicción Constitucional. En primer lugar, establecer la fecha en la que se tiene por recibido el expediente legislativo como una limitante para recibir consultas legislativas nuevas, se determinó así por jurisprudencia y debido a la situación práctica indicada con los diputados, por lo que no resulta aplicable a otros supuestos que no tienen relación con consultas legislativas planteadas por diputados. Nótese que una cosa es la fecha de inicio del plazo del mes para resolver y otra la caducidad de la facultad de presentar nuevas consultas. La fecha de inicio del plazo del mes puede ser, desde el momento en que se recibe el expediente legislativo, pero también, en otros casos, desde la fecha de resolución de la Sala sobre la acumulación o desde la fecha de recibido de una prueba para mejor resolver que se ha ordenado. Ciertamente por jurisprudencia esta Sala ha señalado el momento a partir del cual corre el plazo del mes que tiene para resolver la consulta, pero ello lo ha hecho, como se ha dicho, con ocasión ocasión de la situación particular que se venía presentando con las consultas presentadas por diputados. Así, por ejemplo, se procedió cuando se dijo lo siguiente en el voto n°2007-009469:

“… esta Sala debe señalar que no resulta admisible la gestión que corre agregada a folio 841 del expediente, mediante la cual las y los diputados consultantes pretenden ampliar los argumentos de la consulta a otros aspectos no consultados en su escrito inicial. Lo anterior, no sólo por la inexistencia de una norma legal que los faculte para realizar dicha ampliación, sino además, porque el plazo de un mes con el que cuenta este Tribunal para pronunciarse, se haría imposible de cumplir si se permitiera que en cualquier momento se presenten nuevos argumentos o aspectos a evacuar. Nótese que los consultantes no acuden por aspectos sobrevinientes acaecidos con posterioridad a la presentación del documento inicial, sino que pretenden que la Sala valore nuevos argumentos que no presentaron inicialmente, lo cual es improcedente por las razones indicadas.” En segundo lugar, no se puede hacer depender de un acto del Presidente de la Asamblea Legislativa (fecha en que envía copia del expediente legislativo a la Sala Constitucional) el plazo máximo en que otro Poder de la República, como lo es el Poder Judicial, pueda hacer uso de esta facultad legal de presentar por sí mismo una consulta facultativa de constitucionalidad. Nótese que muy fácilmente, si se admitiera tal argumento, un Poder de la República (Asamblea Legislativa) le estaría impidiendo a otro (Poder Judicial) plantear este control previo de constitucionalidad, y la facultad legal otorgada al Poder Judicial se haría nugatoria en la práctica. Ello en el eventual caso en que, planteada la consulta legislativa en una fecha determinada, en ese mismo acto la Asamblea Legislativa presente copia certificada del expediente legislativo. Por lo demás, no pasa inadvertido a esta minoría lo que podría ocurrir en la realidad en cuanto al tiempo que se necesita para redactar una consulta, pues, desde que el proyecto es votado en primer debate hasta que la Comisión de Redacción lo tiene listo para el público pueden pasar varios días, haciendo dificultoso el acceso inmediato al texto, tal cual quedó aprobado, y con ello, se retrasaría la consulta que cualquier otro órgano habilitado quisiera plantear, pues para hacerlo se debe tener a la vista el texto tal cual fue aprobado. Además, nótese que, la resolución que hace la Presidencia de la Sala Constitucional, cuando tiene por recibida una consulta, se notifica únicamente a la Asamblea Legislativa, no así a los otros órganos habilitados por la Ley de la Jurisdicción Constitucional para poder plantear consultas por ellos mismos. Entonces, no hay una comunicación formal hacia estos otros órganos sobre el recibido de la consulta presentada. En tercer lugar, al tratarse de una consulta, cuyo sujeto legitimado es un órgano de composición compleja, como lo es la Corte Suprema de Justicia, se comprende que, la decisión de acudir en consulta a la Sala Constitucional requiere de su trámite interno, que va desde la discusión en Corte Plena hasta la aprobación del acuerdo respectivo, la redacción, la firma y la presentación de la consulta. Todo este conjunto de actos requiere de tiempo, y no es posible apresurar a la Corte para que lo haga antes del envío del expediente legislativo. Nótese que, el único plazo máximo que el legislador ha dispuesto, es que la consulta se haga antes de la aprobación definitiva del proyecto en cuestión, tal como dispone el último párrafo del art.98 de la Ley de la Jurisdicción Constitucional (“En los demás supuestos, la consulta deberá plantearse antes de la aprobación definitiva.”). No podría ahora, esta Sala actuar contra tal disposición legal para negar la admisibilidad de la consulta realizada por la Corte. En cuarto lugar, en este caso se denota que, ciertamente, la consulta se hizo el 01 de julio del 2021, luego de aprobado el proyecto en primer debate (el 17 de junio del 2021) y antes de su aprobación definitiva. Además, al haberse acumulado mediante resolución 2021-015240 del 02 de julio del 2021, el mismo día en que se acumularon las otras consultas presentadas por los diputados, el plazo de “un mes” que tiene la Sala para resolver, se corre a la fecha de estas resoluciones de acumulación. Por lo tanto, el hecho de que se admita esta consulta de la Corte Suprema de Justicia, en nada mueve el inicio del plazo del mes para resolver, cual es, el 02 de julio del 2021. Es decir, la consulta de la Corte en este caso, no retrasa el plazo con el que cuenta esta Sala para resolver la consulta. No resultando válido que esta Sala sí admita correr el plazo de inicio del mes para que corra a partir del 02 de julio del 2021 y no desde la fecha de recibido del expediente, pero aun así mantenga esta última fecha para limitar la presentación de la consulta realizada por la Corte Suprema de Justicia. En quinto lugar, en el mismo sentido que se dio en el precedente resuelto mediante voto n°2016-018351 de las 11:15 horas del 14 de diciembre del 2016, se tuvo por admitida la consulta facultativa realizada por la Defensoría de los Habitantes (presentada en fecha 14 de noviembre del 2016), aún después de la fecha de recibido del expediente legislativo (aportado el 04 de noviembre del 2016). Situación que no debería ser distinta a la actual, en cuanto a admitir la consulta de la Corte Suprema de Justicia, aún luego de recibido el expediente legislativo. En sexto lugar, en esta materia y cuando hay un vacío legal, debe imperar una interpretación a favor de la posibilidad de control, no excesivamente formalista, ni restrictiva, ello en atención al principio de supremacía constitucional. Tal como lo ha dicho esta Sala en un caso anterior donde había una laguna legal sobre la admisibilidad de las consultas legislativas:

“Ante la laguna normativa sobre la admisibilidad de la consulta (…), este Tribunal Constitucional en aras de los principios de la supremacía constitucional contenido en los artículos 10 de la Constitución Política y 1° de la Ley de la Jurisdicción Constitucional, de la eficacia directa e inmediata de la Constitución, de acuerdo con el cual no es necesario el desarrollo legislativo de los principios, valores y preceptos constitucionales, de la vinculación más fuerte de los derechos fundamentales, de la plenitud hermética del ordenamiento jurídico y de la seguridad, opta por admitirlas para que sean evacuadas en los extremos que más adelante serán determinados. La jurisdicción constitucional debe ser reflejo de la textura abierta y flexible del Derecho de la Constitución y su interpretación debe ser espiritual y no formal. Sobre el particular, el artículo 14 de la Ley de la Jurisdicción Constitucional dispone que “(…) A falta de disposición expresa, se aplicarán los principios del Derecho Constitucional, así como los del Derecho Público y Procesal generales (…)”. Es claro que (…) No podría interpretarse de manera restrictiva esta competencia, tomando en consideración el principio de supremacía constitucional. Por lo anterior, este Tribunal estimó procedente dar curso a las consultas de constitucionalidad presentadas, por cuanto ante la existencia del vacío legal, debe interpretarse en favor de la posibilidad de control…” (ver voto n°2007-009469).

En conclusión, conforme con la jurisprudencia anterior de flexibilidad en la admisibilidad y conforme a los argumentos dados, procedemos a salvar el voto por considerar que esta consulta presentada por la Corte Suprema de Justicia debe también tenerse por admitida. En este sentido, como estimamos esta consulta admisible, corresponde que nos pronunciemos sobre lo consultado a tenor del artículo 99 que rige esta jurisdicción.

• a)Se evacua la consulta y se consideran inconstitucionales los artículos 13, 32, 33, 34 y 36 del proyecto, en cuanto al Poder Judicial.

Sobre el artículo 13 del proyecto de Ley Marco de Empleo Público: Considera la Corte Suprema de Justicia que el artículo 13 del proyecto le otorga a Mideplán la potestad de llenar de contenido las regulaciones propias de las familias creadas en el proyecto de Ley, mediante simple acto administrativo, ello a pesar de que la regulación del funcionamiento del Poder Judicial es reserva de ley y, por ende, como el numeral no determina cómo se llena de contenido a esas “familias” ni sus regulaciones propias, podría ser contrario al Derecho de la Constitución que ese llenado se realice mediante acto administrativo de Mideplán. Se manifiesta que la regulación de las indicadas familias en el artículo 13 del proyecto, es muy pobre, por lo que se entiende que se realizará por ejercicio de la potestad reglamentaria, vía reglamento, e inclusive a través de normativa de rango inferior, toda vez que la distinción entre familias implica un tratamiento singular según el tipo de prestación de servicios de que se trate, lo cual es contrario al artículo 154 de la Constitución Política. Se indica en la consulta que se traslada la posibilidad de definir las diferentes relaciones de empleo en el Poder Judicial a regulaciones propias de normas de rango inferior por parte del Mideplán, con lo cual se está vaciando de contenido la potestad auto normativa del Poder Judicial y trasladando la posibilidad de regulación en reglamentos autónomos, hacia la adopción de otro tipo de reglamentos y peor aún, de disposiciones de alcance general, directrices, circulares, manuales y resoluciones por parte del Mideplán. Se considera que, con lo anterior, se puede poner en riesgo la razón de ser de la norma constitucional indicada en función de la independencia judicial, toda vez que el Mideplán tendrá plenas competencias para determinar la regulación propia de cada familia mediante simple reglamento o, incluso lo que es más grave, mediante acto administrativo, sin respetarse que la regulación del Poder Judicial, en cuanto a su organización y funcionamiento, es de reserva de ley. Se advierte que la reserva de ley del artículo 154 constitucional, es amplia porque pretende salvaguardar la independencia judicial y, consecuentemente, lo relacionado con el funcionamiento del Poder Judicial, no puede dejarse a simple acto administrativo de Mideplán.

Sobre el particular, después del respectivo análisis de lo argumentado en la consulta del Poder Judicial en cuanto al artículo 13, se concluye que efectivamente dicha norma roza con la Constitución. Al revisar la integralidad del proyecto y lo que puede preverse que sucederá con la aplicación específica de ese numeral, es claro que si el contenido de la frase “familias de puestos” así como las regulaciones que la harían aplicable, se emitirán mediante el ejercicio de la potestad reglamentaria, vía reglamento, e inclusive a través de normativa de rango inferior como podría ser a través de disposiciones de alcance general, directrices, circulares, manuales y resoluciones, todo ello emitido por parte del Mideplán, quien será el ente rector de la materia de empleo público.

Sobre el particular, la Sala Constitucional ha sido muy clara en establecer que la independencia del Poder Judicial se traduce, en materia económica y por la inamovilidad de su personal, así como, en lo funcional, por la posibilidad real de tomar sus decisiones de acuerdo con criterios propios y no como resultado de presiones procedentes de determinados grupos, instituciones o personas (ver sentencia número 2000-5493). Recuérdese que la independencia del Poder Judicial se refiere a la existencia de un conjunto de garantías que pretenden evitar llegar a ser controlado por otros órganos gubernamentales, como los poderes Ejecutivo y Legislativo. El Estado de la Justicia afirma que: “A mayor influencia de esos otros actores sobre la selección del personal y de los casos por atender, sobre las decisiones administrativas, la jurisdicción y el cumplimiento de las leyes, menor es la independencia del Poder Judicial” (Informe Estado de la Justicia 1, 2015, página 92). En ese sentido, el sistema de administración de justicia es autónomo en tanto dependa de él mismo y no de otros poderes; a nivel externo esa independencia es la ausencia de presiones o influencias externas que hagan vulnerable a la institución, como resultado de amenazas a la disponibilidad de recursos que le permitan desarrollar su labor con autonomía, a la estabilidad laboral y las posibilidades de ascenso de sus funcionarios, a su integridad y patrimonio, y a sus capacidades de infraestructura para atender las demandas ciudadanas.

Igualmente es de interés recordar que en la opinión consultiva n°2018-019511, en que se conoció de la consulta legislativa respecto del proyecto de "Ley de Fortalecimiento de las Finanzas Publicas" (expediente legislativo nro. 20.580), esta Sala concluyó -luego de realizar una labor interpretativa respecto del contenido del proyecto- que, en concreto, lo previsto en los numerales 46, 47 y 49, atinentes a la “rectoría de la materia empleo público de Mideplán” y “la obligatoriedad de los lineamientos técnicos y metodológicos de la Dirección General del (sic) Servicio Civil”, no aplicaban para el Poder Judicial; interpretación que se hizo tomando en consideración el principio de independencia del Poder Judicial. Luego, además, partir de la opinión consultiva anterior, la Sala ha avalado la existencia, procedencia y necesidad de un régimen particular de empleo público para los servidores del Poder Judicial.

En consecuencia, lo establecido en el artículo 13 del proyecto de Ley Marco de Empleo Público, resulta inconstitucional porque las amplias potestades que se le otorgan a Mideplán, para que vía normativa infralegal, pueda elaborar el contenido de las familias de puestos que se aplicarían en el Poder Judicial, lo cual resulta lesivo del principio de independencia judicial.

Sobre el artículo 32 del proyecto de Ley Marco de Empleo Público: El artículo 32 del proyecto establece que cada familia laboral estará conformada por una serie de grados, cada uno de los cuales representa un grupo de puestos con perfil similar, siendo el Mideplán el que definirá el número de grados requeridos dentro de cada familia laboral así como sus características; grados que consistirán en un rango de puntos de remuneración. Sobre el particular, se afirma en la consulta presentada por la Corte Suprema de Justicia, que de este numeral también se desprenden amplísimas potestades que se le otorgan al Mideplán sobre la posibilidad de llenar el contenido de las familias así como sus características, dejándose esa determinación sujeta al criterio e interpretación de Mideplán, considerando que el deliberado vacío en la regulación de las familias va en beneficio del mero acto administrativo a través del cual Mideplán, lo regulará. Se estima en la consulta que lo anterior se dispone en perjuicio de la independencia que ostenta el Poder Judicial para regular todo lo relativo a la gestión de su recurso humano, pero también en detrimento de la seguridad jurídica en materia de relación de empleo de las personas servidoras judiciales.

Sobre el particular, se concluye que lleva razón la Corte Suprema de Justicia al considerar que esta norma también lesiona el Derecho de la Constitución por cuanto, una vez más, su contenido deja al arbitrio del jerarca de turno de Mideplán, emitir la regulación correspondiente a los grados de las familias laborales, así como también establecer los grupos de puestos del Poder Judicial con perfil similar, sus características, la metodología de evaluación de los puestos de trabajo así como la evaluación en sí misma que será la que determinará los puntos de remuneración de cada grado y la progresión salarial de los puntos que se pagará al servidor, lo cual se hará a partir de una evaluación satisfactoria del desempeño profesional, también realizada por Mideplán. En consecuencia, es más que evidente que competencias que otrora eran propias, exclusivas y excluyentes del Poder Judicial, ahora serán de un órgano del Poder Ejecutivo, con la consiguiente vulneración al principio de independencia judicial que ello implica, pero además, es cierto que se sujetará a los empleados a una constante incerteza en cuanto a esos aspectos que finalmente redundará en una vulneración del principio de seguridad jurídica en su perjuicio.

Del contenido del artículo 32 bajo estudio se desprende que ahí, una vez más, se estarían trasladando competencias constitucionales que le correspondían al órgano de gobierno del Poder Judicial que es la Corte Suprema de Justicia, para dárselas a un órgano del Poder Ejecutivo, lo que indudablemente lesionaría la independencia judicial, pero además va a ocasionar un desequilibrio en la relación de poderes en perjuicio del Poder Judicial porque el Mideplán tendrá amplias potestades en abierta injerencia en el funcionamiento del Poder Judicial, con la consiguiente vulneración del principio de separación de poderes según el cual, un Poder de la República no puede interferir ni imponerse a otro Poder, en el ejercicio de sus funciones y atribuciones que le son propias. En consecuencia, el artículo 32 del proyecto de Ley Marco de Empleo Público, es inconstitucional.

Sobre el artículo 33 del proyecto de Ley Marco de Empleo Público: La Corte Suprema de Justicia estima que el artículo 33 del proyecto bajo estudio es inconstitucional porque, una vez más, le otorga amplias competencias al Mideplán que, según este numeral, será el que realizará la clasificación de puestos de trabajo en familias laborales y grados, ya que todos los puestos del servicio público deberán tener un manual de puestos detallado que será preparado por ese órgano del Poder Ejecutivo. Según este artículo, las descripciones de los puestos de trabajo reflejarán los deberes realmente desempeñados y, una vez que cada trabajo haya sido descrito, analizado y evaluado, el Mideplán lo asignará a una familia laboral y a un grado dentro de esa familia. En la consulta se considera que esa posibilidad de definir las diferentes relaciones de empleo en el Poder Judicial a regulaciones propias de normas de rango inferior hechas por Mideplán, vulnerarían la reserva de ley en esta materia y, por ende, se estaría vaciando de contenido la potestad auto normativa del Poder Judicial, con el consiguiente daño a la independencia judicial, toda vez que el Mideplán tendrá plenas competencias para determinar la regulación propia de cada familia mediante simple reglamento o acto administrativo. Se advierte en la consulta la gravedad de esa situación, en particular con referencia a los fiscales, pues se incorporarían como parte de una familia común, sin distinguir y tomar en cuenta sus características propias y las particularidades del puesto, todo a criterio del Mideplán, pero en perjuicio de la independencia del Poder Judicial, porque abre la posibilidad de una abierta injerencia en su funcionamiento que perfectamente se podría hacer mediante un simple acto administrativo por parte de la persona a cargo de Mideplán. Se considera en la consulta que existe un riesgo porque una serie de cargos del Poder Judicial -como jueces, fiscales, defensores, miembros del Consejo Superior- que deberían de estar vedados a la injerencia de otros Poderes de la República por seguridad jurídica, independencia judicial y tutela de las libertades públicas, con este proyecto estarán ahora sometidos al control de Mideplán; se estima que esto representa un riesgo de llegar a ser un instrumento hostil a la separación de Poderes y un medio en manos de un eventual Poder Ejecutivo que desee emplearla para afectar el sistema democrático hacia alternativas autoritarias.

Al respecto, consideramos que, en cuanto a este punto, lleva razón el cuestionamiento planteado por la Corte Suprema de Justicia en la consulta bajo estudio, toda vez que es cierto que el artículo 33 del proyecto de Ley Marco de Empleo Público, también otorga amplias competencias a Mideplán en lo que se refiere a la potestad para clasificar puestos de trabajo en familias laborales y grados. De la lectura del artículo 33 del proyecto es fácil deducir que se vulnerará la separación de poderes, la reserva de ley establecida constitucionalmente a favor del Poder Judicial, así como la independencia judicial, toda vez que -de nuevo- le atribuye a Mideplán una potestad en cuanto a la gestión del talento humano que siempre ha sido propia del órgano de gobierno del Poder Judicial y que ahora se podrá ejercer, inclusive, a través de simples actos administrativos que van a producir efectos propios en la organización y funcionamiento del Poder Judicial. A partir de tan amplias potestades que se le otorgarán a Mideplán, solo quedarán para el Poder Judicial escasas competencias residuales, las cuales serían insignificantes a la luz de todo lo que se le trasladaría a aquel órgano del Poder Ejecutivo, según se observa en el proyecto de Ley consultado. El Mideplán quedaría con amplias competencias que podrá realizar de manera unilateral y vertical de su parte, en abierta violación a la independencia de poderes, pues le está eliminado competencias constitucionales a la Corte Suprema de Justicia a favor de un órgano del Poder Ejecutivo que, además, es de libre remoción y nombramiento por parte del Presidente de la República. En consecuencia, el artículo 33 resulta lesivo del Derecho de la Constitución y así se declara.

Sobre el artículo 34 del proyecto de Ley Marco de Empleo Público: En el artículo 34 del proyecto bajo estudio se establece la columna salarial global que será elaborada por el Mideplán, la Secretaría Técnica de la Autoridad Presupuestaria y la Dirección General del Servicio Civil. Sobre el particular, en la consulta de la Corte Suprema de Justicia se recuerda que el Poder Judicial tiene competencias constitucionales asignadas en cuanto a su función de gobierno, reconocidas por la propia Sala Constitucional en la sentencia nº 2017-009551 en donde se ha indicado que los artículos 153 y 154 constitucionales contienen atribuciones esenciales, sea habilitaciones explícitas e implícitas del Poder Judicial relacionadas con su función de gobierno y dentro de éstas se encuentra la potestad de la organización del personal del Poder Judicial; función de gobierno que hace a la Corte Suprema de Justicia, la primera intérprete de la normativa aplicable a su personal por tratarse de materia correspondiente a su organización y funcionamiento, y no es dable que mediante simple acto administrativo se le imponga cómo debe regular su relación de empleo público según se pretende con el proyecto de ley consultado, y con el artículo 33, en particular. Se argumenta además en la consulta que a pesar de que esta norma, en principio, establece una relación de cooperación para realizar la columna salarial global, lo que indique el Poder Judicial en nada obliga a los órganos del Ministerio de la Presidencia, del Ministerio de Hacienda y de Mideplán. Aunado a esto se establece que la relación de Mideplán será con la Dirección de Gestión Humana del Poder Judicial y no con la Corte Suprema de Justicia, por lo que hay un grave vicio de inconstitucionalidad, ya que Mideplán “coordinará” con esa Dirección la definición de columna salarial global del Poder Judicial, ignorando del todo al máximo órgano de gobierno del Poder Judicial que es la Corte Plena. Por eso estiman que con este artículo se da una regresión y una afectación al principio de progresividad en el derecho que tienen todas las personas a un Poder Judicial no expuesto a riesgos de injerencia de otros poderes, es decir, a la independencia judicial..." LBH10/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: TRABAJO Subtemas:

NO APLICA.

017098-21. TRABAJO. CONSULTA LEGISLATIVA FACULTATIVA DE CONSTITUCIONALIDAD, REFERENTE AL PROYECTO DE LEY DENOMINADO "LEY MARCO DE EMPLEO PÚBLICO". EXPEDIENTE LEGISLATIVO N° 21.336.

Estimamos que en cuanto a este artículo debe decirse que la Sala Constitucional fue muy clara en la opinión consultiva nº 2018-019511 al señalar que la “rectoría de la materia empleo público de Mideplán” y “la obligatoriedad de los lineamientos técnicos y metodológicos de la Dirección General del (sic) Servicio Civil”, que se contenían en el proyecto de "Ley de Fortalecimiento de las Finanzas Publicas" (expediente legislativo nº 20.580), no aplicaban para el Poder Judicial; interpretación que se hizo tomando en consideración el principio de independencia del Poder Judicial. No obstante, en el proyecto bajo estudio, se observa que el legislador hizo caso omiso de aquel criterio y, en su lugar, ahora somete a consideración de este Tribunal normativa que evidentemente lesiona los principios de separación de poderes y la independencia judicial, toda vez que, con normas como este artículo 34, pretende que el Mideplán junto con la Secretaría Técnica de la Autoridad Presupuestaria y la Dirección General de Servicio Civil, sean los que elaboren la columna salarial global a aplicar a los empleados del Poder Judicial, en absoluta contradicción con lo dispuesto en el artículo 152 constitucional que dispone que “el Poder Judicial se ejerce por la Corte Suprema de Justicia”, y en los artículos 9 y 154 que disponen, respectivamente, el principio de separación de poderes y el principio de independencia de ese Poder de la República. Recuérdese que la Sala ha hecho expresa referencia a la improcedencia de que una instancia externa asuma la rectoría o imponga criterios sobre el Poder Judicial en estas materias y, por el contrario, ha destacado que la independencia y autonomía funcional reconocida expresamente al Poder Judicial en el propio texto constitucional (artículos 9, 152 y siguientes y 177) materializada y garantizada en sus propias normas orgánicas, impone a los jerarcas del Poder Judicial la competencia y la responsabilidad para decidir -sin injerencias indebidas- en las distintas materias, entre ellas, las que actualmente son objeto de regulación en el proyecto de Ley Marco de Empleo Público consultado (ver sentencias n°2019-25268 y 550-91).

Asimismo debe decirse que este Tribunal fue muy claro en la opinión consultiva nº 2018-019511 al señalar que la independencia del Poder Judicial es uno de los cimientos cardinales del Estado de Derecho costarricense y que a partir de los artículos 9, 154 y 156 de la Constitución Política, se ha creado un profuso marco normativo específicamente diseñado para regular al Poder Judicial, como son la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público, la Ley Orgánica del Organismo de Investigación Judicial, la Ley de Salarios del Poder Judicial, el Estatuto de Servicio Judicial, entre otras, que tienen la intención de regular a este Poder y velar porque se garantice su independencia frente a los otros Poderes de la República. Igualmente se señaló en esa resolución que la toma de decisiones en materia laboral, sean generales o concretas:

“… se encuentran ya reguladas por el mencionado marco normativo del Poder Judicial, imposibilitando que una instancia externa asuma la “rectoría” o imponga criterios sobre ese Poder. Es más, dicho marco normativo está diseñado para garantizar la eficiencia de la función judicial y proteger a los servidores judiciales de injerencias externas”.

De esta manera, la Sala ha reconocido que el Poder Judicial es clave para la democracia costarricense, tanto así que “El hecho de que Costa Rica tenga hoy la democracia más antigua y estable de América Latina es inimaginable sin el funcionamiento de un robusto sistema de administración de justicia y sin los esfuerzos recientes para modernizarlo.” (ver voto n°2018-005758). Entonces, “si no se le da la importancia al Poder Judicial en el Estado social y democrático de Derecho para su correcto funcionamiento, su debilitamiento conduce a formas de gobiernos antidemocráticas, prueba de ello es que una de las funciones que primer controlan los gobiernos autoritarios o totalitarios es la judicial, de ahí la importancia de que todo sistema democrático tenga un Poder Judicial robusto.” (ver voto n°2017-09551). Este artículo 34 del proyecto tal como está consignado, sería lesionar al Poder Judicial y a su independencia -como la clave de la robustez de este Poder-, así como al principio de separación de poderes, pero más grave aún, ocasionar su debilitamiento en perjuicio de la democracia.

Por otra parte, debe decirse que, en cuanto a empleo público, es clara la sujeción que tiene el Poder Judicial a los principios fundamentales del régimen de empleo público del artículo 191 constitucional, incluso en concordancia con el artículo 11 de la Constitución Política, toda vez que también está sometido al respectivo procedimiento de evaluación de resultados y rendición de cuentas. Adicionalmente, la Sala ha entendido como válido y justificado que el Poder Judicial cuente con su propio marco normativo que regula de forma específica, particular y diferenciada, las relaciones de empleo entre dicho Poder y sus servidores y la evaluación de su desempeño y, como se dijo supra, se ha reconocido que dicho marco normativo -integrado, entre otros, por la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público, la Ley Orgánica del Organismo de Investigación Judicial, la Ley de Salarios del Poder Judicial y el Estatuto de Servicio Judicial-, está específicamente diseñado para garantizar la eficiencia de la función judicial y la independencia del Poder Judicial, al punto que se ha sentado, como criterio jurisprudencial, que se está en presencia de normativa especial que tiene preponderancia frente a las disposiciones generales y no puede ser derogada, al menos no tácitamente, por una norma posterior de carácter general. En consecuencia, el artículo 34 del proyecto de Ley Marco de Empleo Público, es lesivo del Derecho de la Constitución y así se declara.

Sobre el artículo 36 del proyecto de Ley Marco de Empleo Público: En la consulta se indica que el proyecto supedita la política de remuneración del Poder Judicial a una definición de la Dirección General de Servicio Civil, Mideplán y la Autoridad Presupuestaria del Ministerio de Hacienda, así como la aprobación respectiva por parte del Consejo de Gobierno. Estiman que en ese numeral se crea una competencia para esas tres instancias, supeditándola a la aprobación respectiva del Consejo de Gobierno, obviando las competencias constitucionales del órgano de gobierno del Poder Judicial que es la Corte Suprema de Justicia, con lo cual existe una derogatoria tácita de las competencias de la Corte Suprema de Justicia en materia de definición de remuneración de las personas servidoras judiciales y una abierta injerencia del Poder Ejecutivo en las decisiones que, al respecto, se implementen en el Poder Judicial, anulándose las competencias constitucionales de la Corte Suprema de Justicia y atribuyéndose al Poder Ejecutivo, decisiones que tienen abierto impacto en el funcionamiento del Poder Judicial. Se argumenta además que la relación vertical y absoluta de Consejo de Gobierno con base en la actuación de órganos propios del Poder Ejecutivo, violenta la relación de coordinación-cooperación que debe existir entre Poderes de la República y establece una relación de dirección que implica un vicio de inconstitucionalidad en tanto es una abierta injerencia del Poder Ejecutivo en las decisiones más elementales en materia de remuneraciones del personal de la judicatura, fiscales, etc., sin tomar en consideración, en modo alguno, el parecer de la Corte Suprema de Justicia o el Consejo Superior del Poder Judicial. Se recuerda en la consulta que en el sistema de frenos y contrapesos que regula la Constitución Política, conforme a un Estado democrático, solo una Ley con votación de 38 diputados puede anteponerse al criterio de Corte y no con una mera interpretación del Poder Ejecutivo que se pueda determinar cómo debe ser su funcionamiento. Se recuerda en la consulta que la Corte Suprema de Justicia tiene competencias exclusivas y excluyentes respecto del gobierno del Poder Judicial en materia de fijación salarial de su personal.

En relación con este artículo 36, debe recordarse que la Sala Constitucional en la sentencia número n°550-91 manifestó que en atención al principio de independencia judicial, en el caso específico del Poder Judicial, está plenamente justificado que tenga una regulación especial, separada y diferenciada en materia de remuneración salarial de sus empleados, sujeta a los principios constitucionales fundamentales que prevén los artículos 191 y 192 en cuanto a la idoneidad comprobada:

“(…) en el caso de los poderes, su propia independencia constitucional, garantizada en general por el artículo 9° de la Constitución y, en los del Poder Judicial y del Tribunal Supremo de Elecciones por las de los artículos 99 y siguientes, 152 y siguientes y 177 de la misma, así como sus propias normas orgánicas, imponen a sus jerarcas la atribución y la responsabilidad de fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos, dentro, naturalmente, de sus disponibilidades presupuestarias, independientemente, desde luego, de que sus montos puedan coincidir o no con los de los diputados.” Desde esta perspectiva entonces, le corresponderá al Poder Judicial establecer todo lo relativo a la remuneración salarial de sus empleados, de modo que cualquier interferencia que, sobre la materia, pretenda hacer otro Poder de la República en relación con el Poder Judicial, implicará una lesión a su independencia, pero también a la separación de poderes. La Sala Constitucional en sentencia n°03575-1996, ha sido muy clara al establecer que, en relación con empleo público:

“… es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones”.

Sin duda alguna, lleva razón la anterior cita pues quién más capacitado que cada Poder de la República, para determinar cuáles son las necesidades de personal que tiene o que espera tener, en qué áreas lo necesita, bajo qué condiciones se pueden hacer las contrataciones y qué requisitos solicitar, y cuál sería la correcta remuneración a pagar, entre otros aspectos que, en el caso del Poder Judicial, son propios de su naturaleza y de las funciones que le corresponde llevar a cabo. Desde esta perspectiva, no es válido entonces que sea un ente externo, proveniente del Poder Ejecutivo como es el Mideplán, el que determine la política de remuneración de los empleados del Poder Judicial cuando ni siquiera tiene conocimiento pleno y oportuno sobre las características de sus empleados, las necesidades institucionales y el tipo de remuneración que les corresponde en atención a la peligrosidad de sus funciones, la responsabilidad que tienen en su ejercicio, la urgencia de su actuación, entre otros aspectos que le corresponde al Poder Judicial reconocer y validar. Permitir que sea un órgano externo proveniente del Poder Ejecutivo, el que determine la política de remuneración de los empleados del Poder Judicial, sin tener aquél conocimiento sobre las necesidades institucionales, implica no sólo una vulneración del principio de independencia del Poder Judicial, sino también de la separación de poderes.

En este punto interesa resaltar lo que manifestó la Sala Constitucional en la sentencia nº 2017-009551 en relación con la importancia del Poder Judicial en el Estado de Derecho y del ejercicio de su función administrativa con independencia:

“El Poder Judicial no es hoy en día un poder “vacío” o “devaluado” (como se le consideraba en los inicios del Estado moderno); es precisamente uno de los objetivos claros de los dictadores bajarle el perfil a su independencia, minar la independencia económica o rellenando las cortes con jueces “orientados ideológicamente” (court-packing que afortunadamente no ocurrió en los EEUU a pesar de una amplia mayoría partidaria en el Congreso en sintonía con su presidente F. D. Roosevelt, pero con sombrías críticas entre sus propias filas); si no se le da la importancia al Poder Judicial en el Estado social y democrático de Derecho para su correcto funcionamiento, su debilitamiento conduce a forma de gobiernos antidemocráticas, prueba de ello es que uno de las funciones que primero controlan los gobiernos autoritarios o totalitarios es la judicial, de ahí la importancia de que todo sistema democrático tenga un Poder Judicial robusto.” (…) “tanto las funciones legislativas como las judiciales requieren de una estructura administrativa de apoyo para la consecución de su función esencial o primaria, como lo es la función administrativa que le ayuda a canalizar toda su actividad; la que, lógicamente, alcanza al recurso humano o del personal de los Poderes de la República, entretanto, detrás de la función fundamental está la administrativa del personal, agentes y servidores (as) públicos (as), etc.” No puede dejarse de lado tampoco que este Tribunal en la opinión consultiva n°2018-019511, indicó que las normas especiales que regulan al Poder Judicial velan porque se garantice su independencia respecto de los otros poderes, y la interpretación sistemática constitucional impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias:

“… Entre las normas de este marco se cuentan la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público, la Ley Orgánica del Organismo de Investigación Judicial, la Ley de Salarios del Poder Judicial, el Estatuto de Servicio Judicial (incluida su reforma por la Ley de Carrera Judicial), etc. De manera clara, las normas supra enunciadas tienen la intención de regular concretamente al Poder Judicial, velando por que se garantice su independencia frente a los otros Poderes de la República”.

(…) “Es más, dicho marco normativo está diseñado para garantizar la eficiencia de la función judicial y proteger a los servidores judiciales de injerencias externas, tal como indica el artículo 1 del Estatuto de Servicio Judicial: “Artículo 1º.- El presente Estatuto y sus reglamentos regularán las relaciones entre el Poder Judicial y sus servidores, con el fin de garantizar la eficiencia de la función judicial y de proteger a esos servidores.” Nótese que la norma determina que las relaciones de empleo entre el Poder Judicial y sus servidores se encuentran reguladas por el Estatuto y su reglamento. La interpretación sistemática a que obliga ese numeral impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias. Esto se verifica porque el dictado del reglamento a que refiere la norma es, a su vez, competencia exclusiva de la Corte, como indica el mismo Estatuto: “Artículo 5º.- Antes de dictar un reglamento interior de trabajo, ya sea de carácter general para todos los servidores judiciales o aplicables sólo a un grupo de ellos, la Corte pondrá en conocimiento de esos servidores el proyecto respectivo, por el medio más adecuado, a fin de que hagan por escrito las observaciones del caso, dentro de un término de quince días. La Corte tomará en cuenta esas observaciones para resolver lo que corresponda, y el reglamento que dicte será obligatorio sin más trámite, ocho días después de su publicación en el "Boletín Judicial". Una garantía más de la independencia del Poder Judicial en el tema de empleo es que el Jefe del Departamento de Personal se encuentra vinculado al Presidente de la Corte, excluyendo la injerencia de instancias externas: “Artículo 6º.- El Departamento de Personal del Poder Judicial funcionará bajo la dirección de un Jefe que dependerá directamente del Presidente de la Corte y será nombrado por la Corte Plena”.

Así las cosas, es más que evidente que el artículo 36 del proyecto de Ley Marco de Empleo Público bajo estudio, resulta inconstitucional porque lesiona los principios de separación de poderes y la independencia judicial pues, de su contenido se desprende que la remuneración salarial de los empleados del Poder Judicial provendría de directrices o lineamientos procedentes de otras instancias ajenas al Poder Judicial, específicamente del Poder Ejecutivo, con la consiguiente injerencia de un Poder de la República sobre el Poder Judicial.

En conclusión, consideramos que los artículos 13, 32, 33, 34 y 36 del proyecto de Ley Marco de Empleo Público son inconstitucionales en cuanto se refiere a su aplicación al Poder Judicial. Lo anterior se considera así por cuanto, tal y como se dijo supra, en todos esos artículos se establecen potestades para el Mideplán que interfieren con la independencia del Poder Judicial y con el principio de separación de poderes, debiendo tenerse presente una vez más, que ningún órgano del Poder Ejecutivo, y por lo tanto externo a la Corte Suprema de Justicia pueden emitir directrices u órdenes en materia de empleo público.

• b)Se evacua la consulta y se remite a la opinión vertida en el por tanto de este expediente, respecto de los artículos 6, 7, 9, 13.f, 17, 18 y 21 del proyecto.

En cuanto a este extremo, al igual que por unanimidad este Tribunal indicó, al analizarse cada uno de los artículos 6, 7, 9, 13.f, 17, 18 y 21 del proyecto de Ley Marco de Empleo Público respecto del Poder Judicial, esta minoría considera que son inconstitucionales por las mismas razones ahí señaladas, por lo que se remite a cada punto en concreto de la sentencia general y a las respectivas matizaciones en los votos separados que se fueron consignando en cada apartado. En términos generales, valga mencionar que al amparo de estos artículos del proyecto bajo estudio, se estima que son inconstitucionales porque afectan la independencia de Poder Judicial en cuanto lo somete a la potestad de dirección y reglamentaria de Mideplán, así como a la verificación de si cumplen o no con el cometido de la evaluación del desempeño y no se excluye de la potestad de dirección, debiendo enfatizarse que la potestad de dirección y reglamentación que se atribuye en este proyecto al Poder Ejecutivo es incompatible con el principio de separación de poderes o funciones, toda vez que no le corresponde ordenar su actividad, estableciendo metas y objetivos. En lo que atañe a la evaluación del desempeño, debe quedar reservada a cada poder del Estado, toda vez que esta materia es consustancial al ejercicio de sus competencias constitucionales. En consecuencia, tal obligación para el Departamento de Gestión Humana del Poder Judicial, implicará una violación al principio de separación de poderes y a la independencia judicial, conforme los alcances que la jurisprudencia constitucional le ha dado a tales principios básicos en la democracia costarricense. Recuérdese que, el principio de división de poderes, o como se le conoce más recientemente, principio de separación de funciones, está consagrado en el artículo 9 de la Constitución Política y se erige en “uno de los pilares fundamentales del Estado Democrático, en tanto establece un sistema de frenos y contrapesos que garantiza el respeto de los valores, principios y normas constitucionales en beneficio directo de los habitantes del país.” (sentencia n°2006-013708). Tal principio hace posible que cada Poder del Estado pueda ejercer su función con independencia de los otros (sentencia n°6829-1993), y no solo como un principio de aplicación interna para el buen funcionamiento del Estado de Derecho, sino además, porque el principio de independencia judicial, en su dimensión externa, asegura un conjunto de garantías que pretenden evitar que el Poder Judicial sea controlado por otros órganos gubernamentales. La ausencia de presiones o influencias externas le permiten desarrollar su labor con autonomía, para atender las demandas ciudadanas. Por otro lado, en su dimensión interna, la independencia judicial es más que una garantía para los jueces, pues constituye también “una garantía para los particulares (partes del proceso), en el sentido de que sus casos se decidirán con apego estricto a la Constitución y las leyes” (sentencia n°5795-1998). De esta forma, “estamos ante el derecho de los ciudadanos a contar con jueces independientes” (sentencia n°2001-006632). La independencia del Poder Judicial se traduce, en materia económica y por la inamovilidad de su personal, así como, en lo funcional, por la posibilidad real de tomar sus decisiones de acuerdo con criterios propios y no como resultado de presiones procedentes de determinados grupos, instituciones o personas (ver sentencia n°2000-005493). Entonces, está plenamente justificado que en el caso específico del Poder Judicial tenga una regulación especial, separada y diferenciada, aunque sujeta a los principios constitucionales fundamentales que prevén los artículos 191 y 192 (ver sentencia n°1991-550), pero no bajo las disposiciones generales, directrices y reglamentos de un órgano de otro Poder de la República, como se pretende con este proyecto de ley. Debe tenerse en cuenta que la normativa especial que regula al Poder Judicial “impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias.” (opinión consultiva n°2018-019511); así como que “las atribuciones constitucionales de ordenar, planificar o programar por ejemplo la función administrativa de manejo de personal” (sentencia n°2017-009551) son una parte esencial de la función administrativa del Poder Judicial que coadyuva al efectivo ejercicio de su función judicial, pues “tanto las funciones legislativas como las judiciales requieren de una estructura administrativa de apoyo para la consecución de su función esencial o primaria, como lo es la función administrativa que le ayuda a canalizar toda su actividad; la que, lógicamente, alcanza al recurso humano o del personal de los Poderes de la República, entretanto, detrás de la función fundamental está la administrativa del personal, agentes y servidores (as) públicos (as), etc.” (sentencia n°2017-009551). Finalmente nótese que, en la resolución n°2018-019511, en que se conoció de la consulta legislativa respecto del proyecto de "Ley de Fortalecimiento de las Finanzas Publicas" (expediente legislativo nro. 20.580), esta Sala concluyó -luego de realizar una labor interpretativa respecto del contenido del proyecto- que, en concreto, lo previsto en los numerales 46, 47 y 49, atinentes a la “rectoría de la materia empleo público de Mideplán” y “la obligatoriedad de los lineamientos técnicos y metodológicos de la Dirección General del (sic) Servicio Civil”, no aplicaban para el Poder Judicial; interpretación que se hizo, tomando en consideración el principio de independencia del Poder Judicial. Por otra parte, no es válido que algunos funcionarios del Poder Judicial queden incluidos en una categoría del Estatuto de Servicio Civil, toda vez que ello afecta la independencia del Poder Judicial partiendo del hecho de que el gobierno judicial lo ejerce la Corte Suprema de Justicia, de forma exclusiva y excluyente en lo que atañe a sus competencias constitucionales. Al amparo del artículo 154 constitucional, se somete al Poder Judicial únicamente a la Constitución y a la ley, pero no a disposiciones del Poder Ejecutivo y los puestos de gran relevancia dentro del Poder Judicial, deben estar particularmente protegidos de la injerencia de otros Poderes de la República. Igualmente debe tomarse en cuenta que, en el Poder Judicial, se requiere la estabilidad del personal y ello es necesario para un adecuado e imparcial desempeño del cargo, lo que es incompatible con una subordinación a las disposiciones que emita al respecto el Mideplán.

Aunado a lo anterior debe decirse que el ejercicio de la potestad disciplinaria de los servidores del Poder Judicial es parte esencial de la independencia judicial y ese Poder ya goza de normativa interna que dispone el ejercicio de la potestad disciplinaria, por lo que las normas del proyecto bajo estudio que se refieran a esa materia, no serían de aplicación en el Poder Judicial y tal como esta Sala lo indicó mediante el voto n°2009-004849. Así entonces, en consonancia con el principio de independencia judicial, la entidad con competencia disciplinaria será, exclusivamente el propio Poder Judicial.

• c)Se declara inevacuable la consulta, por falta de fundamentación, respecto de los artículos 1, 5.a, 11, 12, 14, 16, 23, 24, 26, 28, 30, 31, 35, 46, transitorio II, transitorio IV, IX y X.

En la consulta de la Corte Suprema de Justicia, se hace referencia a los artículos 1, 5.a, 11, 12, 14, 16, 23, 24, 26, 28, 30, 31, 35, 46, transitorio II, transitorio IV, IX y X, todos del proyecto de Ley Marco de Empleo Público, como parte de los artículos respecto de los cuales se consideró necesario plantear consulta formal a este Tribunal.

No obstante lo anterior, esta minoría considera que los alegatos planteados en relación con esos numerales carecen completamente de la fundamentación jurídica exigida por el artículo 99 de la Ley de la Jurisdicción Constitucional para admitir este tipo de acciones procesales, pues además de no darse una explicación clara de los argumentos por los cuales se considera que pudiese existir roces de constitucionalidad en esos artículos y normas transitorias, no se hace tampoco una referencia expresa de los principios constitucionales que se consideran infringidos con las normas bajo estudio, ni de los motivos que justifican las inquietudes que llevaron a la Corte Suprema de Justicia a consultar en relación con esos numerales. En ese sentido, debe recordarse que la jurisprudencia de la Sala ha sido enfática en señalar que la consulta debe ser formulada de manera razonada, con indicación clara de lo cuestionado y de los motivos por los cuales se tienen dudas u objeciones al proyecto de ley.

Bajo este orden de consideraciones, al constatarse en el presente caso que se ha omitido cumplir con esos requerimientos, consideramos que resulta inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en cuanto a los artículos 1, 5.a, 11, 12, 14, 16, 23, 24, 26, 28, 30, 31, 35, 46, transitorio II, transitorio IV, IX y X, todos del proyecto de Ley Marco de Empleo Público, por falta de fundamentación de lo consultado.

En conclusión sobre el fondo de lo consultado por la Corte Suprema de Justicia consideramos que: a) Los artículos 13, 32, 33, 34 y 36 del proyecto son inconstitucionales, en cuanto al Poder Judicial; b) Debe remitirse a la opinión vertida en el por tanto de este expediente, respecto de los artículos 6, 7, 9, 13.f, 17, 18 y 21 del proyecto; c) Resulta inevacuable la consulta, por falta de fundamentación, respecto de los artículos 1, 5.a, 11, 12, 14, 16, 23, 24, 26, 28, 30, 31, 35, 46, transitorio II, transitorio IV, IX y X.

Nota del magistrado Rueda Leal con respecto a la consulta planteada en el expediente n.° 21-012714-0007-CO por la Corte Suprema de Justicia.

En el caso de marras, concurro con el criterio de mayoría, toda vez que estimo que una interpretación de la normativa que regula la consulta legislativa obliga a limitar el plazo para interponer tal consulta. En torno a este tema, puntualizo que, en la sentencia n.° 2016-18351 de las 11:15 horas del 14 de diciembre de 2016, la Sala rechazó una gestión de coadyuvancia de la Defensora de los Habitantes y de oficio procedió a tramitarla como una nueva consulta facultativa, que fue entonces acumulada a la original. Tal intervención de la Defensora de los Habitantes ocurrió con posterioridad a la entrega del expediente legislativo del caso. Con respecto a ese precedente, aclaro que no integré el Tribunal en esa oportunidad y, por tanto, no suscribí tal criterio. Considero, en todo caso, que debe imperar el razonamiento desarrollado en esta resolución, pues posibilita que la decisión de la Sala recaiga en un plazo razonable, evitando una interferencia indirecta en el procedimiento legislativo. Por otro lado, rechazo la posibilidad de que la Sala convierta una coadyuvancia en una nueva consulta de manera oficiosa, pues no existe norma alguna que autorice tal proceder y, además, desconoce el formalismo de los procesos de control de constitucionalidad. Véase que la Ley de la Jurisdicción Constitucional sí permite la conversión de un recurso de habeas corpus en uno de amparo (artículo 28), dado que tales procesos buscan la protección de derechos fundamentales y, por ese motivo, se basan en el informalismo para su tramitación. En contraste, el proceso de consulta constitucionalidad tiene otra finalidad, el cual consiste -como su nombre lo indica- en que la Sala revise la constitucionalidad de un proyecto de ley y otros en los términos del numeral 96 de la Ley de cita. La decisión que recae en esos procesos puede incidir en la vigencia del ordenamiento jurídico, por lo que su tramitación está sujeta a estrictos formalismos, lo que lleva a negar tanto la citada coadyuvancia como su conversión de oficio.

Nota de la magistrada Garro Vargas en relación con la admisibilidad de la consulta legislativa planteada por la Corte Suprema de Justicia Además de lo referido en el voto salvado suscrito en conjunto con la magistrada Picado Brenes, estimé oportuno realizar una nota adicional para completar mis ideas en relación con la admisibilidad de la consulta de constitucionalidad formulada por la Corte Suprema de Justicia.

En primer lugar, como manifesté en la nota de la opinión consultiva n.°2020-013837, en nuestro diseño normativo el proceso de formación de las leyes está sometido al control de constitucionalidad, ejercido a través de la Sala Constitucional. Este sistema de control puede ser a priori o a posteriori. En ambos supuestos, y con sus específicas regulaciones, es obligación de este Tribunal examinar —si así se le somete a su consideración? la propuesta normativa y el procedimiento legislativo, con el fin de cotejarlo con las normas, principios y valores que conforman el Derecho de la Constitución. En el control de constitucionalidad a priori le corresponde a la Sala Constitucional fiscalizar y “conocer de las consultas sobre proyectos de reforma constitucional, de aprobación de convenios o tratados internacionales y de otros proyectos de ley, según se disponga en la ley”. Todo lo anterior, como una manifestación del principio de la supremacía constitucional que está consagrado en el art. 10 inciso b) de la Constitución Política y en los arts. 96 y siguientes de la Ley de la Jurisdicción Constitucional (LJC). Esta forma de control de constitucionalidad, igualmente de fuerte y válida que el control a posteriori, tiene una finalidad objetiva o abstracta, pero además preventiva y precautoria. Su propósito es evitar que proyectos de ley que contengan algún vicio de constitucionalidad formen parte del ordenamiento jurídico. En efecto, el propósito de las consultas de constitucionalidad no es otro que hacer valer la “supremacía de las normas y principios constitucionales y del Derecho Internacional o Comunitario vigente en la República, su uniforme interpretación y aplicación, así como los derechos y libertades fundamentales consagrados en la Constitución o en los instrumentos internacionales de derechos humanos vigentes en Costa Rica” (art. 1° de la LJC).

Una vez reconocida la importancia de este tipo de procesos, se hace necesario distinguir que las consultas de constitucionalidad a priori pueden ser legislativas preceptivas ­?sobre proyectos de reforma constitucional o de aprobación de convenios o tratados internacionales— o facultativas —cualquier otro proyecto de ley?. En este segundo caso, pueden participar del control de constitucionalidad otros órganos constitucionales o de configuración legal que tienen una legitimación institucional u orgánica para consultar “proyectos de ley o mociones concretas incorporados a ellos en cuya tramitación, contenido o efectos estimaren como indebidamente ignorados, interpretados o aplicados los principios o normas relativos a su respectiva competencia constitucional” (art. 96 inciso c) de la LJC). Es un recurso excepcionalísimo ?pues en la historia de la Sala Constitucional prácticamente no hay antecedentes de su utilización— que procura permitir que estos órganos constitucionales, que son vitales en la configuración del Estado de Derecho, tengan la legitimación para velar precisamente por las competencias y atribuciones esenciales reconocidas de manera exclusiva y excluyente. Debe hacerse énfasis justamente en que el reconocimiento de esta legitimación deriva de la defensa de su respectiva competencia constitucional, de modo que es un instrumento inspirado en el propio principio de separación de funciones derivado del art. 9 constitucional, que se debe interpretar conjuntamente con las disposiciones que reconocen las funciones de gobierno y de administración judicial a la Corte Suprema de Justicia (arts. 152, 153 y 156 constitucionales), con las que recogen las competencias del Tribunal Supremo de Elecciones en lo relativo a la organización, dirección y vigilancia de los actos relativos al sufragio (art. 99 ídem) y con la que se refieren a la supervisión y vigilancia de la Hacienda Pública en el caso de la Contraloría General de la República (CGR) (art. 183 ídem).

Ahora bien, en relación con los requisitos para su presentación, es preciso destacar que la LJC no distingue y en su art. 98 estipula que deberá ser planteada “después de aprobados (los proyectos de ley) en primer debate y antes de serlo en tercero” y su art. 101 ordena, igualmente para todas las consultas, que la Sala la evacuará dentro del mes siguiente a su recibo. Es decir, los requisitos son los mismos para todos los supuestos examinados, sin que dichos plazos o exigencias dependan unos de otros. Por lo que no resulta admisible que este Tribunal distinga donde la ley no lo hace, y esto se estaría produciendo si se afirma que se trata de un plazo común. De este modo, si se considera que existe una omisión normativa, porque no se contempla los casos en que se presenten simultáneamente varias consultas —las legislativas facultativas y las orgánicas?, dicha laguna no puede ser suplida en detrimento de las prerrogativas dadas a los órganos supra citados para la defensa de sus respectivas competencias constitucionales y, concomitantemente, en perjuicio de la prerrogativa confiada a este Tribunal de velar por la supremacía de las normas y principios constitucionales. Igualmente, estimo que la interpretación y los límites para la admisión de este tipo de consultas no pueden ser tan severos que condicionen a un poder de la república y a un órgano que tienen rango de tal, o a un órgano constitucional como lo es la CGR. Por lo tanto, ante la situación fáctica bajo examen, no comparto la técnica empleada en el sentido de que, para llenar el vacío, se recurriera a una interpretación respecto de límites y requisitos que fueron establecidos para las consultas legislativas facultativas y extrapolarla a las consultas orgánicas, que son tan excepcionales en la labor de esta Sala Constitucional.

En este caso la mayoría indica que “la Sala Constitucional ha establecido como momento de inicio del plazo el recibido del expediente legislativo o la acumulación; a partir de esos momentos no es posible admitir nuevas consultas, sean de los (as) diputados (as) o de otros órganos externos al Parlamento”. Tal afirmación es imprecisa, pues la Sala ha establecido dicho plazo o tope a la propia Asamblea Legislativa, órgano encargado de remitir la copia certificada del expediente legislativo, no así a otros órganos de la república que no tendrían por qué verse supeditados a un límite que fue pensado para el Parlamento. Como se sabe, debido a una conocida y larga práctica de presentar varias consultas legislativas sobre determinados proyectos de ley, esta Sala estableció ese límite con la finalidad de restringir la presentación continua de múltiples consultas que podrían entorpecer tanto el trámite parlamentario como la propia competencia consultiva encomendada a este Tribunal. Nuevamente, si bien se trata de una “jurisprudencia reiterada” ?tal y como lo apunta la mayoría de la Sala— ha sido una línea jurisprudencial aplicada a los legisladores y no a otros órganos facultados legalmente para formular las consultas legislativas de constitucionalidad en defensa de sus competencias constitucionales. Distinto sería el supuesto en que se haya formulado una consulta orgánica o varias consultas orgánicas. En tal caso sí sería factible afirmar que se puede realizar una integración normativa y precisar que, desde el momento en que se presenta una consulta orgánica, el plazo de un mes los rige a todos los demás órganos, siendo que, por lo demás, es algo absolutamente atípico, pues nunca se han interpuesto varias consultas orgánicas de constitucionalidad.

Tampoco comparto que se trate de una “interferencia indebida en el iter del proyecto de ley”, en la medida que estamos ante una facultad otorgada por el propio legislador a otros poderes de la república y a otras autoridades para afinar la constitucionalidad de un determinado proyecto de ley respecto de sus respectivas competencias constitucionales.

Por lo demás, el hecho de que el proyecto de ley le hubiera sido consultado anteriormente a la Corte Suprema de Justicia no implica que este no pueda sufrir modificaciones en el propio iter legislativo que justifiquen una adecuada espera para realizar una consulta formal sobre el texto definitivo, lo cual, además, no puede ser aprobado en forma unilateral por el Presidente de dicha Corte, sino que requería una formal decisión del órgano de gobierno del Poder Judicial, sea la Corte Suprema de Justicia (ver arts. 156 y 167 de la Constitución Política).

Finalmente, tal y como apuntó en nuestro voto salvado, el hecho de admitir a conocimiento esta consulta legislativa no comportaba ningún beneficio anómalo a favor de la Corte Suprema de Justicia, justamente porque el plazo que regía a la Sala fue el de la acumulación de las otras consultas legislativas. Obsérvese que esta consulta orgánica ingresó en fecha 1° de julio de 2021 y el voto mediante el cual se acumularon las consultas legislativas de los legisladores es de fecha 2 de julio de 2021 (ver resoluciones números 2021-015137 y 2021-015105). Por lo tanto, en nada hubiera perjudicado el trámite parlamentario del proyecto de ley consultado si se hubiera admitido esta consulta legislativa y, por lo tanto, se ajustaba la Sala al plazo de evacuación de un mes posterior a la acumulación de las consultas que sí consideró admisibles. Es decir, si la propia Sala tiene el plazo de un mes para la resolución de esta opinión consultiva de ningún modo implicaba entorpecer el procedimiento parlamentario, pues justamente la consulta de la Corte ingresó de previo a la acumulación y, por lo tanto, a la ampliación del plazo para la resolución de las dudas de constitucionalidad formuladas.

En consecuencia, reitero mi consideración en el sentido de que esta consulta orgánica de constitucionalidad es admisible.

III.- Sobre la denegatoria de los escritos presentados el 22, 25, 28, 29 de junio y 05, 13, 15 y 20 de julio del 2021.- A este expediente de consulta legislativa se han presentado varios escritos: El 22 de junio del 2021 el Secretario General del Sindicato de la Salud y la Seguridad Social realiza varias manifestaciones en contra del proyecto de ley consultado. El 25 de junio del 2021 varios diputados presentan lo que denominan “coadyuvancia pasiva” y se manifiestan sobre la constitucionalidad del proyecto consultado. El 28 de junio del 2021 varios representantes de organizaciones sindicales y comunales y de la sociedad civil solicitan declarar inconstitucional el proyecto de ley consultado. El 29 de junio del 2021 varios diputados realizan manifestaciones sobre la conformidad constitucional del proyecto consultado. El 05 de julio del 2021 representantes de la Asociación Cámara de Industrias de Costa Rica plantea lo que denomina “coadyuvancia” y solicitan se rechace la consulta presentada. Luego, el 13 y 15 de julio del 2021, el presidente de la Conferencia Episcopal Nacional de Costa Rica y el Secretario General de la Confederación de Trabajadores Rerum Novarum, respectivamente, presentan lo que denominan coadyuvancia pasiva y se refieren al tema de la objeción de conciencia. Finalmente el 20 de julio del 2021, varios diputados se apersonan a argumentar sobre la inadmisibilidad de la Consulta Facultativa de Constitucionalidad interpuesta por la Corte Suprema de Justicia. Sobre todas estas gestiones, con manifestaciones a favor y en contra del proyecto consultado, procede señalar que la intervención adhesiva activa o pasiva no está prevista para los mecanismos de consulta legislativa, en los que pueden existir simples opiniones jurídicas contrapuestas acerca de la regularidad constitucional de un proyecto de ley, lo que sí procede en los procesos de amparo o de acciones de inconstitucionalidad -artículos 34 y 83 de la Ley de la Jurisdicción Constitucional; tal como lo ha indicado esta Sala en casos anteriores por tratarse la consulta facultativa de constitucionalidad de un proyecto de ley, siendo un proceso donde no se admiten coadyuvancias, ni a favor ni en contra del proyecto consultado, lo que procede es la denegatoria del trámite de todos estos escritos (ver al respecto los votos n°2019-020596, n°2008-15760, n°2007-009469, n°2005-009618, n°2004-1603, entre otros).

IV.- Sobre el plazo para resolver esta consulta.- Cuando se trata de consultas facultativas de constitucionalidad, y en aplicación de lo dispuesto en el artículo 101 de la Ley de la Jurisdicción Constitucional, la Sala Constitucional evacua la consulta dentro del mes siguiente. Como fecha de partida para empezar a contar el inicio de este mes se ha indicado que es, en principio, a partir de la fecha de recibido del expediente legislativo. En este caso, la copia certificada del expediente legislativo consultado se tuvo por recibida mediante resolución de la Sala de las 11:54 horas del 25 de junio del 2021. Sin embargo, al acumularse posteriormente, tres consultas mediante resoluciones del 02 de julio del 2021, el plazo de un mes empezó a contar a partir de esta última fecha. Así entonces el plazo que tiene esta Sala para resolver vencería el día 02 de agosto del 2021.

• B)SOBRE LO CONSULTADO V.- Sobre el objeto de la consulta.- A partir de las tres consultas admisibles presentadas se tiene que se consulta sobre el proyecto denominado "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, tanto por temas de procedimiento como por temas de fondo. En síntesis, se consultan sobre los siguientes aspectos:

Sobre los vicios de PROCEDIMIENTO consultados:

• 1)Vicios sustanciales del procedimiento (violación al derecho de enmienda y participación democrática): Indican los consultantes que la Presidencia incurrió en vicios sustanciales del procedimiento por violación del derecho de enmienda y participación democrática por las razones siguientes:

a. Al emitir la Resolución de admisibilidad de Mociones de Reiteración sobre el proyecto de Ley Marco de Empleo Público, expediente 21.336; b. Al declarar improcedentes mociones que reiteraban mociones de fondo que habían sido aprobadas en Comisión, pero admitir otras; c. Por acumular mociones por considerarlas idénticas, similares o razonablemente equivalentes pero sin acumular otras que sí lo eran, sin un criterio objetivo válido para proceder de esa forma; y, d. Por no poner en conocimiento del Pleno una moción debidamente admitida.

Sobre los vicios de FONDO consultados:

• 2)Violación a la independencia judicial: consultan sobre la constitucionalidad de varios artículos, por considerar que violan los artículos 9, 154 y 156 de la Constitución Política, el art.10 de la Declaración Universal de Derechos Humanos, el art.14 del Pacto Internacional de Derechos Civiles y Políticos y el art.8 de la Convención Americana de Derechos Humanos. Ello por cuanto las disposiciones consultadas pretenden someter al Poder Judicial a las disposiciones que dicte el Ministerio de Planificación Nacional y Política Económica (Mideplán) y a la Dirección General del Servicio Civil, en materia de empleo público.
• 3)Violación por incluir al Tribunal Supremo de Elecciones: consultan sobre la constitucionalidad del artículo 2.a y otros, por considerar que viola los artículos 9 y 99 de la Constitución Política, al obligar al TSE a aplicar y ejecutar las disposiciones de alcance general, directrices y reglamentos que emita el Mideplán (art.6, 7.d, 9, 13.b, 14, 17 y 18) en violación de su independencia, permitiendo una injerencia del Poder Ejecutivo en materia que le está vedada por mandato constitucional y en retroceso del Estado de Derecho.
• 4)Violación de la Autonomía Universitaria: consultan sobre la constitucionalidad del artículo 6 y otros, por considerar que viola el principio de autonomía universitaria contenida en los artículos 84, 85 y 87 de la Constitución Política. Consideran que se viola la autonomía universitaria al someter al régimen de empleo de las personas docentes e investigadoras de las instituciones de educación superior, a planes de desarrollo, regímenes salariales, evaluaciones de desempeño, directrices, órdenes, instrucciones y circulares dictados por Mideplán y en algunos casos por la Dirección General del Servicio Civil y la Autoridad Presupuestaria.
• 5)Violación por incluir a la Caja Costarricense de Seguro Social: consultan sobre la constitucionalidad del artículo 2.b y otros, por considerar que viola la autonomía de la CCSS y los artículos 73, 188, 11, 33 y 140.18 de la Constitución Política. Consideran inconstitucional someter a la CCSS a las directrices, lineamientos y reglamentos que emita Mideplán en temas relacionados con el empleo público sean: planificación del trabajo, organización del trabajo, gestión del empleo, gestión de rendimiento, gestión de la compensación y gestión de las relaciones laborales, así como el conjunto de disposiciones del proyecto que se expone de seguido.
• 6)Violación de la Autonomía de las Municipalidades: consultan sobre la constitucionalidad del artículo 2.c y otros, por considerar que viola la autonomía de las Municipalidades. Ello por cuanto, es inconstitucional sujetar a las Corporaciones Municipales a aplicar y ejecutar las disposiciones de alcance general, directrices y reglamentos que emita el Mideplán en temas relacionados con planificación del trabajo, organización del trabajo, gestión del empleo, gestión del rendimiento o evaluación de desempeño, gestión de la compensación y gestión de las relaciones laborales, la sujeción de las oficinas de recursos humanos al Sistema General de Empleo Público, entre otros.
• 7)Violación de la autonomía de las Instituciones Autónomas: consultan sobre la constitucionalidad del artículo 2.b y otros, por considerar que viola la autonomía de las instituciones autónomas.
• 8)Violación del principio de seguridad jurídica, igualdad, proporcionalidad y razonabilidad (objeción de conciencia): Consultan sobre la constitucionalidad del artículo 23.g, en cuanto incluye la objeción de conciencia, por considerar que viola la posibilidad de que las personas funcionarias públicas puedan alegar la objeción de conciencia con el fin de no recibir formación y capacitaciones que el Estado ha considerado obligatorias. Consideran que es inconstitucional por violentar los principios de legalidad y de seguridad jurídicas, de proporcionalidad y razonabilidad al no regular las condiciones, parámetros y restricciones que impidan la violación de derechos humanos fundamentales comprendidos en el Derecho Convencional y plenamente reconocidos por nuestro ordenamiento jurídico. En ese sentido, consideran que no es posible apelar a la objeción de conciencia para promover la desigualdad, el maltrato y la discriminación desde un puesto de poder, por ejemplo.
• 9)Violación del derecho de sindicación y negociación colectiva: consultan sobre la constitucionalidad del artículo 43 y el transitorio XV del proyecto, por cuanto se prohíbe la negociación colectiva en materia salarial, y otros temas, que abarcaría prácticamente todo lo negociable, vaciando de contenido la posibilidad de cualquier acuerdo que busque mejorar las condiciones labores de las personas trabajadoras en contraposición con lo dispuesto en el artículo 62 constitucional, del Convenio sobre el derecho de sindicación y de negociación colectiva, 1949, N° 98 de la Organización Internacional del Trabajo (OIT), artículos 4 y 6; Convención Americana de Derechos Humanos, Pacto de San José de Costa Rica, artículo 2; Pacto Internacional de los Derechos Económicos, Sociales y Culturales, artículos 2 y 8; el Protocolo Adicional a la Convención Americana sobre Derechos Humanos en Materia de Derechos Económicos, Sociales y Culturales de San Salvador, artículo 5; el numeral 7 de la Constitución Política; además del art. 690 del Código de Trabajo. Todo en violación además del principio de progresividad.
• 10)Violación de los principios de razonabilidad y proporcionalidad (sanción de inhabilitación general): consultan sobre la constitucionalidad del artículo 4.a del proyecto por cuanto incluye una sanción de inhabilitación general, en contraposición de los principios de razonabilidad y proporcionalidad. Indican que se trata de una sanción genérica y automática, que se aplicaría a cualquier tipo de despido, indistintamente si se trata de faltas graves o leves, sin que el órgano sancionador entre a valorar la gravedad de la conducta y sin que exista una ponderación de los derechos que se verán afectados.
• 11)Violación del derecho al salario y el principio de igualdad (salario global): consultan sobre la constitucionalidad de los Transitorios XI y XII que incluyen unas reglas para la aplicación del “salario global”, por considerar que ello viola el derecho al salario (art.57), el principio de no discriminación en materia salarial (art.68), la obligación del Estado de no establecer condiciones contrarias a la dignidad humana (art.56) y la irrenunciabilidad de los derechos (art.74). Además, los art.23 y 28 de la Declaración Universal de Derechos Humanos, art.14 de la Declaración Americana sobre Derechos y Deberes del Hombre, art.6 del Pacto Internacional de Derechos Económicos, Sociales y Culturales, art.7 del Protocolo Adicional a la Convención Americana sobre Derechos Humanos en Materia de Derechos Económicos, Sociales y Culturales de San Salvador. Convenio 131 OIT sobre la fijación de salarios mínimos (ley 5851), Convenio 95 OIT sobre la protección del salario (ley 2561). Convenio 100 OIT Igualdad de salario en labor de hombres y mujeres (ley 2561). Art.1 del Convenio N°111 Relativo a la Discriminación en Materia de Empleo y Ocupación, OIT (Ley 2848). Ello por cuanto, el transitorio permite la coexistencia de tres salarios diferentes para personas que se desempeñan en idénticas funciones y condiciones; y se pretende dar un trato igual a quienes no se encuentran en condiciones de igualdad o jurídicamente idénticas.
• 12)Violación al debido proceso (proceso único de despido): Se consulta sobre los artículos 21 y 22 del proyecto, en el tanto se establece un procedimiento administrativo especial para el despido, pues consideran que no existe claridad en cuanto a plazos, recepción de prueba, derecho de defensa, entre otros. Todo en violación del principio constitucional del debido proceso y seguridad jurídica.
• 13)Violación al principio de sostenibilidad fiscal por la posibilidad de los permisos: Se consulta sobre los artículos 39, 40, 41 y 42 del proyecto en cuanto se establece la posibilidad de un permiso no remunerado para reducir la jornada laboral, el permiso de paternidad y la ampliación de la licencia de maternidad. Consideran que todo ello se hace sin ningún estudio de costos ni fuentes de recursos. Sin contar con el criterio de la CCSS al respecto, pese a que ello incide de manera directa en sus finanzas.
• 14)Violación por la exclusión de las empresas públicas en competencia: Se indica que, si bien las empresas públicas en competencia, telecomunicaciones y seguros principalmente, deben de buscar aumentar su competitividad, hacer una exclusión de los principios de transparencia, excelencia en el servicio, participación ciudadana, carece de motivos objetivos y fundamentados para su exclusión del empleo público. Además, se excluye al Benemérito Cuerpo de Bomberos, que dicen se rigen por el Derecho Privado, pero no se excluyó a otros como Recope y al Instituto Nacional de Aprendizaje.

Cada uno de los vicios anteriores se examinan por separado a continuación. Se procede a revisar únicamente los extremos cuestionados en forma concreta por los consultantes y no aspectos generales de constitucionalidad de la normativa consultada, según lo dispone el artículo 99 de la ley que rige esta jurisdicción. En este sentido debe quedar claro que, sobre aquellas normas del proyecto de ley en cuestión sobre las cuales esta Sala no se pronuncie (sea porque no fueron consultadas o por la fundamentación insuficiente de los consultantes), no se está indicando que sean o que no sean constitucionales, así que debe entenderse que no fueron analizadas por esta Sala y no hay criterio externado sobre su constitucionalidad. Por otro lado, se aclara además que, el texto que tiene a la vista esta Sala para realizar el examen de cada norma consultada, es la “Redacción Final” con fecha 23 de junio del 2021.

VI.- Sobre los vicios de PROCEDIMIENTO consultados.- Los consultantes consideran que la Presidencia incurrió en vicios sustanciales del procedimiento por violación de derecho de enmienda y participación democrática, por las razones siguiente: al emitir la resolución de admisibilidad de mociones de reiteración sobre el proyecto de ley en cuestión; al declarar improcedentes mociones que reiteraban mociones de fondo que habían sido aprobadas en Comisión, pero admitir otras; por acumular mociones al considerarlas idénticas, similares o razonablemente equivalentes, pero sin acumular otras que sí lo eran, sin un criterio objetivo válido para proceder de esa forma; y, por último, por no poner en conocimiento del Pleno una moción debidamente admitida. Para proceder al examen de estos vicios de procedimiento, se procederá primero a indicar la cronología que ha seguido el proyecto consultado (1), se verá la jurisprudencia de esta Sala sobre los vicios sustanciales de procedimiento y las mociones (2), para finalmente examinar lo consultado sobre los vicios de forma (3).

• 1)Cronología del procedimiento legislativo del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336.- A partir de los distintos tomos del expediente legislativo, se tiene que, en resumen, el proyecto de ley consultado siguió el siguiente procedimiento:
• 1)El 08 de abril de 2019, el ministro de la Presidencia presentó a la Secretaría de la Asamblea Legislativa el proyecto “LEY MARCO DE EMPLEO PÚBLICO” expediente N° 21.336 (ver folio 1, Tomo 1 del expediente legislativo).
• 2)El 29 de abril de 2019, el Departamento de Archivo, Investigación y Trámite remitió a la Imprenta Nacional, el expediente legislativo, para su publicación en el Diario Oficial (ver folio 110, Tomo 1 del expediente legislativo).
• 3)El 30 de mayo de 2019, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa recibió el proyecto de estudio.
• 4)Por oficio N° AL-DEST-CO-069-2019 del 6 de junio de 2019, el Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa remitió a la Comisión Permanente Ordinaria de Gobierno y Administración, la lista de consultas obligatorias relativas el expediente N° 21.336 (ver folio 118, Tomo 1 del expediente legislativo).
• 5)Por oficio N° TSE-1388-2019 de 2 de julio de 2019, el presidente del Tribunal Supremo de Elecciones rindió criterio sobre el proyecto de ley N° 21.336 solicitado por la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa (ver folio 450, Tomo 2 del expediente legislativo).
• 6)Por oficio N° SP-146-2019 de 3 de julio de 2019, la Corte Suprema de Justicia contestó la solicitud de criterio de la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa, en relación con el proyecto de ley N° 21.336 (ver folio 496, Tomo 2 del expediente legislativo).
• 7)Por oficio N° SJD-885-2019 de 5 de julio de 2019, la Junta Directiva de la Caja Costarricense de Seguro Social remitió a la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa, el criterio solicitado en relación con el proyecto de ley N° 21.336 (ver folio 592, Tomo 2 del expediente legislativo).
• 8)Por oficio N° DJ-1110 de 30 de agosto de 2019, la Contraloría General de la República remitió a la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa, el criterio solicitado en relación con el proyecto de ley N° 21.336 (ver folio 1541, Tomo 6 del expediente legislativo). (Ver folio 5802, Tomo 20, criterio sobre texto sustitutivo).
• 9)Por oficio N° OJ-132-2019 de 12 de noviembre de 2019, la Procuraduría General de la República remitió a la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa, el criterio solicitado en relación con el proyecto de ley N° 21.336 (ver folio 1975, Tomo 7 del expediente legislativo y folio 3133, Tomo 11). (ver folio 5672, Tomo 19, criterio sobre texto sustitutivo).
• 10)El 3 de marzo de 2020, el Departamento de Servicios Técnicos de la Asamblea Legislativa envió a la Comisión Permanente Ordinaria de Gobierno y Administración, el informe jurídico del expediente legislativo N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (ver folio 1993, Tomo 7 del expediente legislativo).
• 11)Por oficios Mideplán-DM-OF-0663-2020 y DM-620-2020, ambos de 18 de mayo de 2020, los Ministerios de la Presidencia y de Planificación Nacional y Política Económica, enviaron a la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa, el texto sustitutivo del proyecto de ley “LEY MARCO DE EMPLEO PÚBLICO” expediente legislativo N° 21.336 (ver folio 2069, Tomo 7 del expediente legislativo).
• 12)El 16 de junio de 2020, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa aprobó una moción de fondo de texto sustitutivo del expediente N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (ver folios 2142 y 2255, Tomo 8 del expediente legislativo).
• 13)En sesión ordinaria de la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa N° 03 del 16 de junio de 2020, se aprobó una moción para que se consulte el texto sustitutivo del proyecto de ley N° 21.336 a las instituciones y organizaciones públicas señaladas en el acta (ver folio 2256, Tomo 8 del expediente legislativo).
• 14)El 03 de noviembre de 2020, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa aprobó otra moción de fondo de texto sustitutivo del expediente N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (ver folios 4472 y 4589, Tomo 15 del expediente legislativo).
• 15)El 04 de noviembre de 2020, el Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa emitió el informe N° AL-CJU-066-2020, denominado Informe de Consulta “Publicidad de las Sesiones” (ver folio 4643, Tomo 16 del expediente legislativo).
• 16)Según acta N° 21 del 4 de noviembre de 2020, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa aprobó otro texto sustitutivo (ver folios 4648 y 4768 del Tomo 16).
• 17)En sesión ordinaria N° 22 del 10 de noviembre de 2020, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa aprobó una moción para que se publicara el texto del expediente N° 21.336 “Ley Marco de Empleo Público”. Asimismo, para que se realizaran las consultas obligatorias a las instituciones y organizaciones (ver folios 4859 al 4862, Tomo 16 del expediente legislativo).
• 18)El 10 de noviembre de 2020, el Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa emitió el Informe de Consulta N° AL-CJU-068-2020, denominado “Aplicación del Principio de Corrección Formal del Procedimiento para Corregir Vicios Esenciales y no Esenciales en el Trámite Legislativo” (ver folio 4870, Tomo 16 del expediente legislativo).
• 19)El 10 de noviembre de 2020, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa emitió los dictámenes de minoría afirmativo (folio 5263 y siguientes, Tomo 18 del expediente legislativo) y mayoría afirmativo (afirmativo) (folios 5432 y siguientes, Tomo 18 del expediente legislativo).
• 20)Por oficio N° AL-DEST-CO-346-2020 del 12 de noviembre de 2020, el Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa indicó a la Comisión Permanente Ordinaria de Gobierno y Administración, la lista de instituciones a las que deberían hacerse consultas obligatorias sobre el proyecto de ley N° 21.336 (ver folio 5187, Tomo 17 del expediente legislativo).
• 21)El 18 de noviembre de 2020, la Comisión Permanente de Gobierno y Administración entregó al Directorio Legislativo, el proyecto de ley N° 21.336 “Ley Marco de Empleo Público” (ver folio 5567, Tomo 18 del expediente legislativo).
• 22)En sesión ordinaria del Plenario N° 28 del 21 de enero de 2021, se inició la discusión por el fondo en el trámite del primer debate del expediente N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (ver folio 6851, Tomo 25 del expediente legislativo).
• 23)El 4 de febrero de 2021 la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa entregó a la Secretaría del Directorio, el primer informe de mociones vía 137 del expediente N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (ver folio 6910, Tomo 25 del expediente legislativo).
• 24)En la sesión plenaria N° 38 del 18 de febrero de 2021, se presentaron 474 mociones de fondo, las cuales se trasladaron a la Comisión Dictaminadora (ver folios 7574 y 7576, Tomo 28 del expediente legislativo).
• 25)El 10 de marzo de 2021, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa entregó a la Secretaría del Directorio, el segundo informe de mociones vía 137 del expediente N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (ver folio 7661, Tomo 28 del expediente legislativo).
• 26)En sesión ordinaria N° 50 del Plenario Legislativo, del 16 de marzo de 2021, la Presidencia consultó a las señoras y señores diputados, si presentarían mociones de reiteración (art. 138 del Reglamento), lo cual fue confirmado por varias señoras y señores diputados (ver folio 8895, Tomo 35 del expediente legislativo).
• 27)En sesión ordinaria N° 51 del Plenario Legislativo, del 18 de marzo de 2021, la Presidencia emitió una resolución sobre la admisibilidad de las mociones de reiteración (ver folios 8997 al 9004, Tomo 35 del expediente legislativo).
• 28)En sesión extraordinaria del Plenario N° 83 del 22 de marzo de 2021, se conoció la moción de orden de apelación sobre la resolución de la Presidencia respecto a la admisibilidad de las mociones de reiteración, la cual fue desechada. Igualmente, se inició la discusión de las mociones de reiteración (ver folio 9341 al 9351, Tomo 36 del expediente legislativo).
• 29)En sesión extraordinaria del Plenario N° 84 del 23 de marzo de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folio 9554 y 9731, Tomo 38 del expediente legislativo).
• 30)En sesión extraordinaria del Plenario N° 85 del 24 de marzo de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 10046 y 10126, Tomo 40 del expediente legislativo).
• 31)En sesión ordinaria del Plenario N° 052 del 5 de abril de 2021, se anunció la presentación de mociones de revisión y se siguió con el conocimiento de las mociones de reiteración (ver folios 10329 y 10361, Tomo 41 del expediente legislativo).
• 32)En sesión extraordinaria del Plenario N° 86 del 06 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 10446, Tomo 41 y folio 10497, Tomo 42 del expediente legislativo).
• 33)En sesión extraordinaria del Plenario N° 87 del 06 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 10616, Tomo 42 y 10670, Tomo 43 del expediente legislativo).
• 34)El 6 de abril de 2021, el Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa emitió el “Informe sobre el Texto en Discusión en el Plenario del Expediente N° 21336 Ley Marco de Empleo Público: Conexidad, Aspectos de Constitucionalidad y de Procedimiento” (ver folio 10799, Tomo 43 del expediente legislativo).
• 35)En sesión extraordinaria del Plenario N° 88 del 07 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 10996, Tomo 44 y 11264, Tomo 45 del expediente legislativo).
• 36)En sesión extraordinaria del Plenario N° 89 del 07 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folio 11204, Tomo 45 y folio 11250, Tomo 46 del expediente legislativo).
• 37)En sesión extraordinaria del Plenario N° 90 del 08 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 11345 y 11375, Tomo 46 del expediente legislativo).
• 38)En sesión extraordinaria del Plenario N° 91 del 08 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 11476 y 11532, Tomo 47 del expediente legislativo).
• 39)En sesión extraordinaria del Plenario N° 92 del 12 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 11648, Tomo 47 y 11699, Tomo 48 del expediente legislativo).
• 40)En sesión extraordinaria del Plenario N° 93 del 12 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración y de revisión (ver folios 12062 y 12212, Tomo 50 del expediente legislativo).
• 41)En sesión extraordinaria del Plenario N° 94 del 13 de abril de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 12359 y 12412, Tomo 51 del expediente legislativo).
• 42)En sesión extraordinaria del Plenario N° 95 del 13 de abril de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 12521, Tomo 51 y 12583, Tomo 52 del expediente legislativo).
• 43)En sesión extraordinaria del Plenario N° 96 del 14 de abril de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 12761 y 12813, Tomo 53 del expediente legislativo).
• 44)En sesión extraordinaria del Plenario N° 97 del 14 de abril de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 12920 y 12981, Tomo 54 del expediente legislativo).
• 45)En sesión ordinaria del Plenario N° 053 del 15 de abril de 2021, se conocieron mociones de revisión, orden y se continuó la discusión de fondo del proyecto de ley N° 21336 (ver folios 13071 y 13090, Tomo 54 del expediente legislativo).
• 46)En sesión extraordinaria del Plenario N° 99 del 20 de abril de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 13133 y 13207, Tomo 55 del expediente legislativo).
• 47)En sesión extraordinaria del Plenario N° 101 del 21 de abril de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 13346 y 13389, Tomo 56 del expediente legislativo).
• 48)En sesión ordinaria del Plenario N° 06 del 18 de mayo de 2021, se presentó y aprobó una moción de orden de posposición (ver folio 13498, Tomo 57 del expediente legislativo).
• 49)En sesión extraordinaria del Plenario N° 002 del 19 de mayo de 2021, se presentó y aprobó una moción de orden que autorizaba realizar una sesión extraordinaria el 20 de mayo de 2021 (ver folios 13506 y 13508, Tomo 57 del expediente legislativo).
• 50)En sesión extraordinaria del Plenario N° 003 del 20 de mayo de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 13514 y 13611, Tomo 57 del expediente legislativo).
• 51)En sesión ordinaria del Plenario N° 07 del 24 de mayo de 2021, se finalizó el conocimiento de todas las mociones de fondo y de revisión del expediente N° 21.336. Finalmente, se instruyó a la Secretaría del Directorio para realizar las consultas obligatorias y ordenar la publicación del proyecto (ver folios 13770, 13773 y 13852, Tomo 58 del expediente legislativo).
• 52)El 25 de mayo de 2021 el Departamento de Gestión Documental y Archivo Legislativo envió a la Imprenta Nacional, el texto actualizado del proyecto de ley N° 21.336 para su publicación (ver folio 13949, Tomo 58 del expediente legislativo).
• 53)Por oficio N° AL-DSDI-OFI-0053-2021 del 25 de mayo de 2021, se solicitó criterio sobre el texto actualizado del expediente legislativo N° 21.336 a las siguientes autoridades públicas: Corte Suprema de Justicia, Tribunal Supremo de Elecciones, Caja Costarricense de Seguro Social, Consejo Nacional de Rectores, universidades públicas, Consejo Superior de Educación y municipalidades (ver folio 13909, Tomo 58 del expediente legislativo).
• 54)El texto actualizado del proyecto de ley N° 21.336 fue publicado en el Diario Oficial La Gaceta N° 100, Alcance N° 105 del 26 de mayo de 2021 (ver folio 13951, Tomo 58 del expediente legislativo).
• 55)Por oficio del 28 de mayo de 2021, la Contraloría General de la República atendió la solicitud de criterio en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14354, Tomo 60 del expediente legislativo).
• 56)Por oficio N° SCI-544-2021 del 2 de junio de 2021, el Instituto Tecnológico de Cartago aportó el criterio solicitado en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14436, Tomo 61 del expediente legislativo).
• 57)Por oficio N° OF-CNR-14-2021 del 2 de junio de 2021, el Consejo Nacional Rectores aportó el criterio solicitado en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14538, Tomo 61 del expediente legislativo).
• 58)Por oficio N° SP-62-2021 del 03 de junio de 2021, la Corte Suprema de Justicia atendió la solicitud de criterio en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14504, Tomo 61 del expediente legislativo).
• 59)Por oficio N° UNA-SCU-ACUE-136-2021 del 03 de junio de 2021, la Universidad Nacional atendió la solicitud de criterio en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14566, Tomo 61 del expediente legislativo).
• 60)Por oficio TSE-1226-2021 del 03 de junio de 2021, el Tribunal Supremo de Elecciones atendió la solicitud de criterio en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14642, Tomo 62 del expediente legislativo).
• 61)Por oficio N° REF-CU-2021-181 del 04 de junio de 2021, la Universidad Estatal a Distancia atendió la solicitud de criterio en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14631, Tomo 62 del expediente legislativo).
• 62)En sesión ordinaria del Plenario N° 14 del 10 de junio de 2021, se aprobó una moción de alteración del orden del día, para que el expediente legislativo N° 21.336, ocupara el primer lugar antes de los segundos debates, hasta su votación final (ver folios 14751 y 14754, Tomo 63 del expediente legislativo).
• 63)En sesión ordinaria del Plenario N° 15 del 14 de junio de 2021, se aprobó una moción de orden de posposición. Se continuó la discusión por el fondo, en primer debate del proyecto de ley N° 21.336 (ver folio 14794, Tomo 63 del expediente legislativo).
• 64)En sesión ordinaria del Plenario N° 16 del 15 de junio de 2021, se aprobó una moción de orden de posposición. Se continuó la discusión por el fondo, en primer debate, del proyecto de ley N° 21.336 (ver folios 14849 y 14851, Tomo 63 del expediente legislativo).
• 65)En sesión ordinaria del Plenario N° 17 del 17 de junio de 2021, se aprobó una moción de orden de posposición. Se continuó y finalizó la discusión en primer debate del proyecto de ley N° 21.336, quedando aprobado con 32 votos a favor y 15 en contra (ver folios 14922, 14926y 14947, Tomo 64 del expediente legislativo).
• 66)El 17 de junio de 2021, ingresó a la Secretaría de la Sala Constitucional la consulta facultativa de constitucionalidad N° 21-011713-0007-CO, referida al expediente legislativo N° 21.336 “Ley Marco del Empleo Público” (ver folio 14965, Tomo 64 del expediente legislativo).

Ahora bien, las objeciones puntuales de constitucionalidad que se plantean al respecto, son las siguientes:

-Violación del derecho de enmienda, al haber declarado inadmisibles las mociones de reiteración 18, 231 y 250, por tratarse de mociones de fondo que, aun cuando fueron aprobadas por la comisión dictaminadora, fueron modificadas posteriormente: Consideran los diputados, por ejemplo, que la moción 138-231 se declaró inadmisible a pesar de que la proponente indicó a la Presidencia en su apelación que, aunque fue aprobada la moción de fondo que se reiteró, posteriormente se aprobó otra moción que dejó sin efecto la anterior. En igual sentido se expresó el diputado proponente de la moción 138-18; sin embargo, la Presidencia sí admitió la moción 138-345, que reiteró la moción 122-137 también fue aprobada por la Comisión de Gobierno y Administración en la sesión extraordinaria n° 02 del 26 de enero de 2021. Esa diputada sí pudo defender la moción y esta resultó nuevamente aprobada en la sesión extraordinaria del Plenario n° 93.

-Consideran que la resolución mediante la cual se dispuso acumular parcialmente las mociones de reiteración, excede lo dispuesto en los artículos 27 y 138 del Reglamento Legislativo y violenta el derecho de participación democrática, enmienda y razonabilidad: Consideran los diputados que, no se acumularon mociones que sí coincidían, tales como: las mociones de reiteración 184 y 251 que reiteran la moción de fondo 102, las mociones de reiteración 194 y 270 que reiteran la moción de fondo 355, las mociones 138-195 y 138-271 que reiteran la moción de fondo 310 y las mociones 138-130, 138-273 que reiteran la moción de fondo 433 y la moción 344 que debió acumularse a las mociones de reiteración 198 y 272. Estiman la indebida acumulación en el inciso 4 de la moción 138-154, pues esta pretendía modificar el artículo 2 y adicionar el 3, mientras que las otras, solo proponían adicionar el artículo 3. Agregan que, al finalizar el conocimiento de las mociones de reiteración, el presidente puso en conocimiento la moción 138-154 dando la palabra al proponente para su defensa y sometiéndola a votación del Pleno, modificando la resolución de forma unilateral.

-Violación al derecho de enmienda y participación democrática de la diputada Paola Vega Rodríguez: Aducen que, pese a que la moción de reiteración 138-210 fue admitida, pues no consta en la resolución cuestionada que no lo fuera, y tampoco que se acumulara con otras mociones, la Presidencia no la puso en conocimiento del Pleno, por lo que se omitió su posterior votación. Refieren que, lo correspondiente era conocer la moción 138-210, luego de la 138-207 (ya que las mociones 13-208 y 138-209 fueron retiradas por sus proponentes) en la sesión extraordinaria n° 88, celebrada el 7 de abril de 2021.

• 2)Sobre la jurisprudencia de esta Sala en cuanto a vicios sustanciales del procedimiento y el rechazo de mociones.- El tema de vicios sustanciales en el procedimiento parlamentario ha sido analizado en varias oportunidades por esta Sala. La jurisprudencia constitucional ha indicado en general que, la potestad de reglamentación interna de la Asamblea Legislativa se puede ejercer libre y autónomamente, en tanto, claro está, no enfrente disposiciones, principios o valores constitucionales. La potestad del Parlamento para dictar las normas de su propio gobierno interno (interna corporis), no solo está prevista por la Constitución Política en su artículo 121 inciso 22, sino que es consustancial al sistema democrático y específica de la Asamblea Legislativa como poder constitucional, a tenor del Título IX de la Carta Fundamental. Esta potestad es intrínseca de la Asamblea Legislativa, la cual desarrolla, con absoluta independencia de los otros órganos del Estado, en virtud del principio establecido en el artículo 9 de la Carta Fundamental. Sin embargo, como toda potestad, su ejercicio está sujeto a limitaciones, cuales son: el acatamiento del Derecho de la Constitución, es decir, al conjunto de valores, principios y normas constitucionales. En reconocimiento de esa “interna corporis”, esta Sala ha reconocido que su función en materia de procedimiento legislativo es únicamente la de declarar, aquellos vicios sustanciales, que violen los principios y valores constitucionales aplicables a la materia, pues de lo contrario estaría afectando la capacidad autonormativa y funcional del parlamento (interna corporis), distorsionando su papel de guardián de la supremacía constitucional, por el de una especie de senado ad hoc. De esta forma, sólo frente a violaciones evidentes o groseras, de los principios constitucionales que rigen el derecho parlamentario, sería legítima la intervención de esta Jurisdicción Constitucional. Así, los defectos controlables por parte de la Sala, son aquellos que se refieren a la violación de algún requisito o trámite "sustancial" previsto en la Constitución o, en su caso, establecido en el Reglamento de la Asamblea Legislativa. La intervención de la Sala en materia de procedimiento legislativo, conforme a lo señalado, sólo debe darse en caso de la utilización de estas potestades con evidente abuso de poder, que resulte en la anulación de un derecho y no en su armonización con el resto de los principios constitucionales del derecho parlamentario. Luego, en concreto sobre el derecho de enmienda de los diputados, esta Sala ha dicho que, la participación de los diputados en las Comisiones Permanentes Ordinarias está regulado en los artículos 123 y 124 del Reglamento de la Asamblea Legislativa, que reconocen el derecho de cualquier diputado a presentar mociones escritas “que considere como reforma del caso a cada proyecto”, y las mociones de fondo podrán tramitarse desde el día de publicación del proyecto de ley y mientras no haya sido votado el mismo en la Comisión correspondiente. Las mociones de fondo son aquellas propuestas de los diputados destinadas a modificar el proyecto de ley en cuanto al fondo. Es decir, la contribución de cada diputado en el proceso de formación de la ley se ejerce mediante una propuesta escrita, que procura mejorar, aclarar, modificar, suprimir o adicionar las proposiciones normativas incluidas en incisos, artículos, secciones, capítulos o títulos de un proyecto de ley, lo que significa la posibilidad de influir y determinar los contenidos que finalmente son aprobados por la Asamblea Legislativa, y que constituye el ejercicio de un derecho de todos los integrantes de dicho Poder, el derecho de enmienda, que a su vez define uno de los aspectos esenciales de la actividad legislativa y de nuestro régimen democrático. Como todo derecho tiene sus límites, entre los cuales, está el respeto al principio de conexidad, el cual garantiza a su vez, el derecho a la iniciativa en la formación de la ley y la debida publicidad de la propuesta. Ahora bien, en concreto sobre el rechazo de mociones, esta Sala ha resuelto lo siguiente:

-La facultad de mocionar que el Reglamento de la Asamblea Legislativa concede a todos los diputados, tiene como finalidad asegurar la posibilidad de participación de todos los grupos que la conforman, permitiéndoles ejercer, ampliamente, su papel de formadores de la ley, sea que estén en la "situación" o en la "oposición" respecto de la opinión de la mayoría, debido a su carácter de representantes del pueblo (artículo 105 de la Constitución). Los únicos límites admisibles a esta facultad son los que expresamente consten en la Constitución Política, o bien en el Reglamento de la Asamblea Legislativa, siempre que en este último caso no restrinjan, en forma excesiva, el derecho de todo diputado a mocionar, afectando el núcleo esencial de dicha atribución (ver sentencia n°2000-003220).

-La Presidencia de la Comisión puede, en aras de racionalizar la discusión y el debate, incluso de oficio, agrupar mociones que tengan conexión íntima, identidad de contenido o cuando sean razonablemente equivalentes o reiteración de otras pendientes de resolverse o ya resueltas, así como rechazar las que no se ajusten a lo establecido. En caso de ser ayuna de motivación la resolución, el Diputado puede plantear la apelación del caso para que el vicio sea subsanado (ver sentencias números 2007-002901 y 2007-009699).

-La facultad de rechazo de mociones por parte del presidente debe ser entendida restrictivamente y únicamente respecto de cuestiones de forma, oportunidad o razones de evidente improcedencia (ver sentencia n°2005-007428).

-Se configura un vicio sustancial en el procedimiento legislativo que lesiona el derecho de enmienda y de participación, cuando mociones admitidas no son sometidas a votación (ver sentencia n°2008-004569).

En conclusión, de todo lo anterior se desprende que, la facultad de mocionar de todos los diputados de la Asamblea Legislativa admite como únicos límites los que expresamente consten en la Constitución Política, o bien en el Reglamento de la Asamblea Legislativa, siempre que no restrinjan en forma excesiva o afecte el núcleo esencial de dicha atribución (derecho de enmienda del diputado). Por ello, es posible que el presidente de la Asamblea Legislativa proceda a acumular mociones, mediante una resolución motivada.

• 3)Sobre lo consultado.- Tomando como base la jurisprudencia anterior, se procede al examen de lo consultado sobre los vicios de procedimiento. En concreto, se consultan los siguientes tres puntos sobre la resolución adoptada por la Presidencia, sobre la admisibilidad de mociones de reiteración, adoptada en la sesión ordinaria n°51 del 18 de marzo de 2021:

-Declarar inadmisibles mociones de reiteración, porque eran mociones de fondo ya aprobadas en Comisión.

-Acumular unas mociones de reiteración por considerarlas idénticas, pero no acumular otras que sí lo eran.

-No poner en conocimiento del Plenario una moción admitida.

Al respecto, se observa del expediente legislativo lo siguiente:

Ciertamente, en la sesión plenaria ordinaria n° 51 del 18 de marzo de 2021, el Presidente de la Asamblea Legislativa emitió una resolución sobre la admisibilidad de las mociones de reiteración, en la que desarrolla tres puntos (ver folios 8997 al 9017, Tomo 35 del expediente legislativo), refiriéndose este análisis únicamente a los dos primeros, de interés para este estudio”:

I.Se tuvieron por inadmisibles las mociones de reiteración identificadas con los números 18, 231 y 250, por corresponder a mociones de fondo que fueron aprobadas en la comisión dictaminadora.

II.Se agrupó la discusión de varias mociones de reiteración, por considerar que eran “idénticas, similares o razonablemente equivalentes”. Serían discutidas en un solo acto, pero votadas de forma individual.

-Sobre las mociones de reiteración declaradas como inadmisibles, en razón de tenerse como aprobadas en Comisión: Revisado el expediente, se constata la apelación planteada contra el rechazo de la moción 138-231 de la diputada Vega Rodríguez y 138-18 del diputado Abarca Mora, así como la apelación general del diputado Welmer Ramos (diputado proponente de la moción 138-250). Lo anterior es relevante, porque la Sala ha determinado que los vicios de procedimiento deben ser advertidos en su momento, para poder luego consultarse sobre ellos en la consulta de constitucionalidad que se presente. Vista la apelación planteada de estas mociones, procede su examen. Ciertamente habría una arbitrariedad y consecuente vicio sustancial, si se demostrara que, las mociones 138-18, 138-231 y 138-250 fueron aprobadas en Comisión, pero que otra moción aprobada posteriormente en comisión “les cayó encima” y luego se rechazara la posibilidad de reiterarlas. Ahora bien, en el caso de las mociones 138-231 y 138-250, el escrito de interposición de la consulta no advierte con claridad cuál fue esa otra moción que les cayó encima o en qué momento procesal sucedió. En total fueron conocidas 777 mociones de fondo y fueron planteadas 352 de reiteración. Esto implicaría que sea la Sala quien deba revisar todas las mociones de fondo aprobadas, luego de que la moción de fondo referida en la moción de reiteración 138-231 y 138-250, fueran aprobadas, a fin de encontrar, conforme su contenido, la supuesta moción que luego las dejó sin efecto, revisión que, a todas luces, es improcedente por parte de esta Sala. Este Tribunal, en reiteradas ocasiones, ha señalado que en el libelo de interposición deben expresarse no solo los artículos del proyecto cuya constitucionalidad se cuestiona o consulta, sino manifestarse de manera clara y suficiente los motivos por los cuales se estima que una norma del proyecto puede ser inconstitucional, pues caso contrario la consulta sería inadmisible (ver, en este sentido, sentencias números 1995-5399-95, 1995-5544, 1999-7085, 2001-11643 y 2012-9253). En cuanto al caso de la moción 138-18, los consultantes fundamentan el vicio cuando citan lo que el diputado Abarca Mora señaló al apelar lo siguiente:

“…Esa moción se refiere a la moción 329 del segundo día de mociones y que de aprobarse la 80 o la 81 de segundo día de mociones, básicamente quedaría fuera del texto a pesar de que fue aprobada y por eso usted la está excluyendo, ya en repetidas ocasiones en el Plenario se han aceptado y admitido mociones aprobadas precisamente para preservar el espíritu del legislador y en este caso yo le llamo la atención en función de que si usted me rechaza esa moción y se aprueba la 80 o la 81 del segundo día, le podemos hacer un daño al proyecto y borraríamos algo que está hoy en el texto base…”.

Es decir, se pide la admisión de una moción de reiteración de una moción ya aprobada en Comisión, para asegurar que no vaya a ser modificada posteriormente. Sin embargo, aunque en este caso sí estuvo fundamentado el argumento, no puede esta Sala sustentar un vicio de procedimiento en un supuesto incierto, a saber, que se lleguen a aprobar mociones que probablemente le puedan caer encima. Lo que procedería en esos casos es que el diputado interesado, durante la moción de reiteración de la moción que le pueda caer encima, defienda el texto aprobado para que se rechace esa moción de reiteración. Y si ya el Plenario decide ir en contra, esa sería la decisión mayoritaria. Nótese que, no se ha demostrado que sea una costumbre parlamentaria el hecho de admitir mociones de reiteración basadas en el temor de que otra moción la sustituya. Además, según consta a folio 11458 del expediente legislativo, el mismo diputado Abarca votó a favor de la moción que dice afectaba la suya.

-Sobre la indebida acumulación de mociones de reiteración: Se examina únicamente el posible vicio de indebida acumulación de la moción 138-154 por tratarse de un aspecto directamente relacionado con el derecho de enmienda de los diputados. Los otros argumentos, en cuanto a que otras mociones debieron acumularse y no se hizo así, es una decisión de Presidencia que más bien favorece el derecho de enmienda y por ello no puede considerarse como un vicio sustancial, así que no procede en esta sede su examen. Dicho lo anterior, consta que la moción de reiteración 154 fue planteada por el diputado Villalta (ver folio 9308, Tomo 36 del expediente legislativo). Esta moción fue acumulada junto con las mociones 13, 138, 179, 180, 181, 246, 247, 248 y 349, por la presidencia de la Asamblea Legislativa, “por existir una evidente conexidad en los fines pretendidos por los proponentes” (ver folio 8983, Tomo 35). Consta la apelación de la acumulación de la moción 138-154, con fundamento en que, se propone modificar dos artículos (el art.2 y el art.3). Tal como lo hizo ver el promovente en la apelación, dicha moción propone reiterar la moción de fondo que busca modificar el artículo 2 y adicionar el artículo 3 del proyecto de ley, mientras que el resto de las mociones acumuladas solo proponen adicionar el artículo 3. En este sentido se constata que, el presidente de la Asamblea decidió ponerla en conocimiento, indicando que: “es una reposición que se debe hacer por un indebido acumulamiento de mociones. Entonces debemos proceder a conocer la moción 154, de don José María Villalta Flórez-Estrada//. En consecuencia, en discusión la moción 154 y hará uso de la palabra el diputado Villalta Flórez-Estrada.” Así entonces, en este caso, pese a la indebida acumulación inicial, luego fue puesta a discusión de forma separada y el diputado proponente pudo hacer uso de la palabra para defenderla. Por lo tanto, no se evidencia vicio alguno de procedimiento por este aspecto, porque la situación fue subsanada en el momento, como los mismos consultantes indican en su escrito de interposición.

-Sobre la no puesta en discusión de la moción de reiteración 138-210: Se alega la violación al derecho de enmienda y participación democrática de la diputada Paola Vega Rodríguez, toda vez que, pese a que la moción de reiteración 138-210 fue admitida, no consta en la resolución cuestionada que no lo fuera, y tampoco que se acumulara con otras mociones, la Presidencia no la puso en conocimiento del Pleno, por lo que se omitió su posterior votación. Una vez revisada la resolución de la presidencia de ese órgano se tiene que, en efecto, la moción 138-210 no fue rechazada ni acumulada, pero del examen que hace esta Sala del expediente legislativo se plantea la duda sobre si existía voluntad de la proponente en su puesta en discusión. La moción pretendía modificar el inciso c) del artículo 13 o su artículo equivalente en caso de que la numeración variara para que dijera:

“ARTÍCULO 13- Régimen General de Empleo Público c) Personas servidoras públicas que se desempeñan en funciones policiales, de conformidad con el artículo 6 de la Ley General de Policía, N° 7410, de 26 de mayo de 1994, el artículo 2 de la Ley Orgánica del Organismo de Investigación Judicial (OIJ), N° 5524, del 07 de mayo de 1974, y el capítulo IX del Código Municipal, N° 7794, del 30 de abril de 1998.” Se pudo acreditar que en el tomo 45 folios 11214 y 11215, consta esa moción con un sello que dice “retirada” y firmado por la diputada Vega, de fecha 7 de abril. Luego, revisada la sesión extraordinaria n° 88 del Pleno, celebrada el 7 de abril de 2021, el presidente solo mencionó que la diputada Vega había retirado las mociones 166, 195, 201, 224, 172, 192, 194, 195, 196, 199, 200, 205, 206, 208, 209, 211, 212, 213, 214, 224, 228, 229, 230, 169, 175, 176, 177, 184, 202 y 221. De este modo, se constata una contradicción, entre la moción con el sello de “retirada” con la firma de la misma diputada Vega, y luego, lo consignado en el acta donde se omite hacer referencia a tal moción como retirada. Más allá de que es materia ajena a esta Sala determinar en este caso, cuál acto tiene mayor validez, si el sello de retirado con la firma de la diputada o lo consignado en el acta, no se observa que la diputada Vega haya evidenciado o manifestado ante el Plenario la situación. Tal como se dijo supra, los vicios de procedimiento deben ser advertidos en su momento, para luego ser planteados vía consulta de constitucionalidad. En este caso, como se dijo no consta que la diputada Vega haya advertido el vicio, por el contrario, se observa su firma en el sello de “retirada” la moción. Así las cosas, no se puede considerar su falta de discusión como un vicio sustancial del procedimiento.

• 4)Conclusiones 1) No se encuentra vicio de procedimiento sustancial en cuanto al argumento de la inadmisibilidad de las mociones 138-231 y 138-250, ello por cuanto no se fundamentó en el escrito de esta consulta cuál fue la moción que las modificó y “les cayó encima”; y en cuanto a la inadmisibilidad de la moción 138-18, por cuanto se fundamentó en un hecho incierto (la probabilidad de que otra moción le cayera encima).
• 2)No se encuentra vicio de procedimiento sustancial en cuanto al argumento de la indebida acumulación de la moción 138-154 por cuanto, aunque fue indebidamente acumulada al inicio, luego el presidente de la Asamblea la desacumuló y permitió su discusión separada.
• 3)No se encuentra vicio de procedimiento sustancial en cuanto al argumento de la falta de discusión de la moción 138-210 de la diputada Paola Vega, por cuanto tal moción consta en el expediente legislativo con sello de retirada y con la firma de la diputada proponente.

VII.- Sobre los vicios de FONDO consultados y en general sobre el proyecto consultado.- Sobre el proyecto consultado, denominado "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, se admitieron las tres consultas facultativas legislativas presentadas por los diputados. Todas las cuales fueron acumuladas a este expediente principal. Agrupados todos los aspectos de fondo consultados, se tiene que, seis de ellos se refieren al ámbito de cobertura del proyecto (en cuanto a la inclusión del Poder Judicial, del Tribunal Supremo de Elecciones, de las Universidad Públicas, de la Caja Costarricense de Seguro Social, de las Municipalidades y de las Instituciones Autónomas) y a otros temas como la objeción de conciencia, el derecho de negociación colectiva, la sanción de inhabilitación, el salario global y el debido proceso. Cada uno de estos temas se analizará por separado en los considerandos siguientes. Sin embargo, a modo de contextualización procede realizar una explicación general del proyecto consultado. En cuanto a la justificación que se da en la exposición de motivos de este proyecto (ver texto base) se indica que el mismo “tiene el propósito de ser una piedra angular para encaminar el servicio público hacia un ordenamiento jurídico más homogéneo entre sí, dirigido a disminuir las distorsiones generadas por la fragmentación, en un contexto de eficacia y eficiencia.”. Lo anterior por cuanto se considera que: “El Estado debe regular la relación con las personas servidoras públicas, bajo normas y principios generales que rijan a toda la institucionalidad pública, salvaguardando la independencia de poderes y las particularidades de los subregímenes de empleo público, … pero siempre, procurando en todo momento, la satisfacción del interés público, garantizado la ciudadanía reciba bienes y servicios con calidad y oportunidad.” Además se indica que, ya la Ley N°9635, Ley de Fortalecimiento de las Finanzas Públicas otorgó la rectoría del empleo público al Ministerio de Planificación Nacional y Política Económica, en el artículo 46 del título III, buscando con ello revivir el espíritu del constituyente. Finalmente se indica en esta exposición de motivos que, “Este proyecto de Ley Marco de Empleo Público busca atender en conjunto las recomendaciones emitidas por diferentes instancias nacionales e internacionales, tales como la Contraloría General de la República y la Organización para la Cooperación y el Desarrollo.” Siendo que, de seguido se hace referencia a esas recomendaciones, indicando en el caso de la OCDE la recomendación de migrar gradualmente hacia un esquema de salario único para los nuevos funcionarios; y en el caso de “la Contraloría General de la República ha llamado la atención sobre la necesidad de revisar el esquema de remuneraciones, principalmente de aquellos incentivos salariales que generan disparidades entre los mismos tipos de puesto, como es el caso de las anualidades.” Además, “la necesidad de vincular los incentivos a mecanismos de evaluación del desempeño y de su continua revisión.” Luego, con base en esas razones el proyecto pretende crear una Ley Marco de Empleo Público, en un texto de 50 artículos y 15 disposiciones transitorias, para que rija un año después de su publicación. En 10 capítulos se regulan aspectos como:

· CAPÍTULO I. DISPOSICIONES GENERALES · CAPÍTULO II. GOBERNANZA DEL EMPLEO PÚBLICO · CAPÍTULO III. PLANIFICACIÓN DEL EMPLEO PÚBLICO · CAPÍTULO IV. ORGANIZACIÓN DEL TRABAJO · CAPÍTULO V. GESTIÓN DEL EMPLEO · CAPÍTULO VI. GESTIÓN DEL DESARROLLO · CAPÍTULO VII. GESTIÓN DEL DESEMPEÑO · CAPÍTULO VIII. GESTIÓN DE LA COMPENSACIÓN · CAPÍTULO IX. GESTIÓN DE LAS RELACIONES LABORALES · CAPÍTULO X. DISPOSICIONES VARIAS Dentro del articulado, se destacan los siguientes. El objetivo de la ley sería “Regular las relaciones estatutarias, de empleo público y de empleo mixto, entre la Administración Pública y las personas servidoras públicas (…) de conformidad con el imperativo constitucional de un único régimen de empleo público (…)” (art.1). Incluyendo, dentro de su ámbito de cobertura a todo el aparato estatal, centralizado y descentralizado (art.2). Procediendo a excluir, básicamente a los entes públicos no estatales, el Cuerpo de Bomberos y a las empresas públicas en competencia (art.3). Luego, en el capítulo II, se crea un Sistema General de Empleo Público, cuya rectoría estará a cargo del Ministerio de Planificación Nacional y Política Económica (Mideplán), estableciéndose en el art.7 todas sus competencias en un amplio listado que incluye, desde establecer políticas públicas, programas y planes nacionales de empleo público; emitir disposiciones de alcance general, directrices y reglamentos; emitir lineamientos y principios generales para la evaluación de desempeño y; establecer un sistema único y unificado de remuneración de la función pública; entre otras. Luego, en el capítulo IV se indica la existencia de un único régimen general de empleo público, compuesto por ocho familias de puestos (art.8). Estableciéndose reglas generales para todo el proceso de reclutamiento y selección de nuevo ingreso (art.15) y un único procedimiento de despido (art.21). Asimismo, unas reglas generales sobre la evaluación de desempeño (art.29) y sobre el salario (art.30), con el establecimiento de un régimen salarial unificado para todo el servicio público (art.35). Finalmente se establecen reglas generales para temas como vacaciones (art.38), y permisos; además de disposiciones varias, como por ejemplo, en cuanto a las negociaciones colectivas (art.43).

VIII.- Considerando general.- (redacta el magistrado Castillo Víquez) En el Estado Constitucional de Derecho toda norma infraconstitucional debe leerse, interpretarse y aplicarse de conformidad con el Derecho de la Constitución (valores, principios y normas). Partiendo desde esta perspectiva, el análisis del proyecto de ley consultado se realizará adoptando como marco de referencia lo anterior, de forma tal que se hará una lectura integral y teniendo muy en cuenta el principio de separación de poderes o funciones, así como los principios constitucionales que regulan la descentralización administrativa, especialmente los grados de autonomía que poseen los entes descentralizados por región y servicio para realizar los fines constitucionalmente asignados.

Buena parte de las cuestiones consultadas implica realizar un análisis sobre cuál es la relación entre la ley -el ejercicio de la potestad legislativa- con el principio de separación de poderes, la independencia de estos en el ejercicio de sus competencias exclusivas y excluyentes, la autonomía universitaria y la municipal. No hay que perder de vista que no hay un compartimento o un área de exclusión a la ley en lo que atañe a las competencias exclusivas y excluyentes de la Corte Suprema de Justicia, del Tribunal Supremo de Elecciones, de las Universidades del Estado y de las municipalidades. Prueba de lo que venimos afirmando es la existencia de la consulta constitucional regulada en los numerales 88, 98,167 y 190 de la Carta Fundamental. En otras palabras, si el constituyente originario hubiese querido excluir de la potestad de legislar a los poderes del Estado y a los entes descentralizados no hubiese establecido la consulta constitucional cuando la Asamblea Legislativa, en ejercicio de la potestad legislativa, pretende regular la organización y el funcionamiento de esos poderes y esos entes. En caso de las municipalidades, si bien no instituyó la consulta constitucional de manera expresa -para la mayoría de este Tribunal sí-, lo cierto del caso es que la materia local, en la que aplica la autonomía política de conformidad con los numerales 169 y 170 constitucionales, el Parlamento, en ejercicio de la potestad de legislar, puede regular la organización y las competencias municipales.

Otra cuestión que necesariamente se debe abordar, partiendo del hecho de que la Asamblea Legislativa, en ejercicio de la potestad de legislar, tiene una competencia constitucional para regular la organización y las funciones de los poderes y los entes descentralizados, no para suprimir las autonomías autoorganizativa o autonormativa -en el caso de las universidades estatales-, la política -en el caso de la municipalidades y la CCSS- y la administrativa -en el caso de las instituciones autónomas-, es si, en lo que atañe a una función típicamente administrativa -empleo público- en relación con ciertos puestos de trabajo vinculados directamente a las competencias exclusivas y excluyentes puede o no afectarlas, las que se derivan de esos grados de independencia, es decir, los puestos relativos a la competencia en las materias en las que hay exclusividad en su ejercicio, los cuales deben ser definidos de forma exclusiva y excluyentes por los órganos constitucionales y los entes con fines constitucionalmente asignados y para lo que les dota de grados de autonomía con basamento constitucional. Quiere esto decir que el legislador tiene un límite en el ejercicio de la potestad de legislar, pues no las puede suprimir, o afectar, en sus elementos esenciales, ni trasladar a otros entes u órganos.

Hay que tener presente que un Estado unitariamente concentrado como el costarricense, todos los entes públicos están sometidos al principio de unidad estatal, toda vez que autonomía no significa soberanía, sino simple y llanamente independencia en el ejercicio de las competencias exclusivas y excluyentes. Sobre el principio de unidad estatal se ha afirmado que independientemente del grado de autonomía que tenga un ente descentralizado, este está estrechamente vinculado al Estado por una serie de principios y normas que están en el Derecho de la Constitución, a manera ejemplo, los numerales 11, 48, 49, 182, 184 y 192 de la Carta Fundamental, que estatuyen los principios de legalidad, rendición de cuenta y transparencia, el respeto irrestricto a los derechos fundamentales y los derechos públicos subjetivos y su tutela judicial efectiva en las jurisdicciones constitucional y contencioso-administrativa, los principios y procedimientos de contratación administrativa, la aprobación y fiscalización de los presupuestos por parte de la Contraloría General de la República y control de este órgano de relevancia constitucional sobre el uso de los fondos públicos, el sometimiento a los principios nucleares del servicio civil, etc. En esta dirección, no es inconstitucional que el legislador someta a toda la Administración Pública a una ley marco de empleo público, siempre y cuando observe rigurosamente los principios de separación de poderes y no vacíe de contenido los grados de autonomía que el Derecho de la Constitución le otorgan a las universidades del Estado, a la CCSS y a las municipalidades.

No es posible pasar por alto que toda la actividad relativa a nombramientos, evaluaciones, régimen disciplinario, topes salariales, valoración del trabajo, gestión de la compensación, clasificación de puestos, columnas salariales, etc., es una actividad típicamente administrativa. Tampoco se puede obviar que los poderes del Estado con exclusión del ejecutivo -siguiendo un criterio subjetivo es quien realiza la actividad administrativa por naturaleza, artículo 1.° de la Ley General de la Administración Pública-, excepcionalmente realizan actividad administrativa –criterio objetivo, artículo 2, inciso b) del Código Procesal Contencioso-Administrativo-, tal y como ocurre con la materia de empleo público. La clave de bóveda está en determinar si hay actividades administrativas en este ámbito que resultan indispensables para garantizar las competencias exclusivas y excluyentes de los poderes del Estado. La respuesta es afirmativa, en el sentido de que, si bien se trata de una actividad administrativa su ejercicio corresponde a los órganos constitucionales y entes públicos que gozan de autonomía grado tres y dos. Lo que significa, que esos órganos y entes están llamados a acatar los principios y postulados establecidos en la Ley, pero con la particularidad que es a estos a quienes corresponde aplicarla y ceñirse estrictamente a lo que se establezca. Esta postura, hace que resulte inadmisible, desde la óptica constitucional, el ejercicio por parte del Poder Ejecutivo u otro de sus órganos de un poder de jerarquía, de dirección, de reglamentación interna sobre los poderes del Estado, las universidades del Estado, la CCSS y las municipalidades.

De acuerdo al diseño de distribución de competencias, que responde al principio de separación de poderes y a los grados de autonomía, establecido por el constituyente originario a favor de los órganos constitucionales -poderes del Estado- y entes públicos descentralizados por región -corporaciones municipales- y servicios -universidades estatales y la CCSS-, es claro que la potestad de dirección que corresponde al Poder Ejecutivo o a uno de sus órganos -Mideplán- resulta incompatible con ese principio constitucional y los grados de autonomía que gozan ciertos entes. Dicho de otra forma, la potestad de dictar directrices -mandatos especiales que ordenan la actividad de un órgano o un ente fijándole metas y objetivos, mas no un acto concreto- no es constitucional cuando afecta o incide en las competencias exclusivas y excluyentes de los otros poderes del Estado o en los fines constitucionalmente asignados a los entes de base corporativa o institucional que gozan de un grado de autonomía tres -autoorganizativa o normativa- o dos -política- o en aquellas actividades administrativas necesarias para el ejercicio de esas competencias. Partiendo de esta idea cardinal, es claro que en materia de empleo público, en lo que atañe al personal de los poderes del Estado y los entes descentralizados por región y servicio, quienes ejercen tales competencias -jurisdiccionales, parajurisdiccionales, electorales- o participan de la gestión pública relativa a los fines constitucionalmente asignados a los citados entes, así como el personal administrativo de apoyo, profesional o técnico, que defina, de forma exclusiva y excluyente, cada poder y ente, no pueden quedar, de ninguna manera, bajo el poder de dirección del Poder Ejecutivo o de Mideplán. Hay, pues, un núcleo duro, un indisponible para el Poder Ejecutivo, que no puede ser ordenado en su actividad, ni mucho menos mediante el ejercicio de la potestad reglamentaria, que corresponde exclusivamente a cada poder del Estado y cada ente público.

Ahora bien, lo anterior no significa que todo el funcionariado de los poderes del Estado y de los entes supra citados esté excluido de la potestad de dirección. En el caso de los servicios administrativos básicos, auxiliares, que no inciden sobre las competencias exclusivas y excluyentes ni funciones administrativas necesarias para el cumplimiento de estas, cada poder del Estado y ente debe definir de forma exclusiva y excluyente cuáles de estas pueden estar sometidas a la potestad de dirección. Por ello, con base en el principio de independencia de poderes o funciones y los grados de autonomía garantizado constitucionalmente a cada ente, corresponde de manera exclusiva y excluyente a sus máximos órganos – Corte Plena, Consejo Superior del Poder Judicial, Tribunal Supremo de Elecciones, Consejos Universitarios, Rectorías, Junta Directiva y Presidencia Ejecutiva de la Caja Costarricense de Seguro Social, Concejo y Alcaldes Municipales- establecer cuáles son esos servicios administrativos básicos, auxiliares, comunes y similares a toda la Administración Pública que sí estarían sometidas a las potestades de dirección y reglamentaria del Poder Ejecutivo.

Ergo, al no establecer el proyecto de ley esa salvaguarda -una norma clara y precisa- en este sentido, este Tribunal concluye, como se explicará más adelante, que hay una serie de vicios de inconstitucionalidad que quebrantan la independencia judicial, electoral y las autonomías de las universidades del Estado, la CCSS y las Municipalidades.

En otro orden de ideas, también deben tener claro los (as) diputados (as) que todo lo que atañe al funcionariado de los poderes del Estado y los entes con fines constitucionales asignados establezcan como parte de sus competencias -constitucionales o administrativas- lo relativo a la construcción de la familia, los grados de esta, la metodología de valoración de trabajo, los factores de trabajo relevantes a asignar, el salario mínimo y máximo de cada columna, los fundamentos técnicos para fijar los salarios, el manual descriptivo de cada puesto, la evaluación del desempeño, etc., les corresponde, de forma exclusiva y excluyente, definirlo a cada uno de estos, como se explicará al analizar la normativa que se tacha de inconstitucional en las consultadas admitidas.

No menos importante es el hecho de que, lo referente a evaluación del desempeño y el ejercicio de la potestad disciplinaria, queda reservado a cada poder del Estado y a los entes supra citados, toda vez que estas potestades son consustanciales al ejercicio de sus competencias constitucionales o a la realización de los fines constitucionalmente fijados. Quiere esto decir, que en lo tocante a estos temas todo el funcionariado de cada poder y ente quedan sometidos a las disposiciones internas que cada uno de estos dicten al respecto.

Una última cuestión, antes de referirnos a cada agravio que plantean los (as) consultantes, y es que en sentencias número 1992-1696 de las 15:30 horas del 23 de agosto de 1992, 2018-14905 de las 12:30 horas del 7 de setiembre de 2018 y 2018-231 de las 11:00 horas del 10 de enero de 2018, reiteradas en la 2019-14347, se reafirmó que es factible la existencia de diferentes regímenes laborales en la administración pública, siempre y cuando se rijan por los principios comunes de idoneidad y estabilidad en el empleo, tal como el régimen estatutario. Este Tribunal ha señalado que nuestros constituyentes originales consignaron en la Constitución Política de 1949, que debía existir un régimen laboral administrativo que regulara las relaciones entre los servidores públicos y el Estado, a fin de proteger a los primeros de destituciones arbitrarias (estabilidad en el empleo) y de profesionalizar la función pública (búsqueda de la eficiencia en el servicio y de la idoneidad del funcionario). El objeto de tal cometido era procurar que la Administración Pública contara con factores organizativos que le permitieran satisfacer el derecho de los ciudadanos al buen funcionamiento de los servicios públicos. En atención a ello, se dispuso constitucionalmente que el procedimiento para seleccionar y nombrar a un servidor en la Administración Pública debía cumplir con los principios fundamentales que prevén los artículos 191 y 192, con los cuales se procura personal idóneo para ocupar un puesto público, con el propósito de garantizar la eficiencia y efectividad en la función pública.

Se visualiza un régimen de servicio civil, no como un privilegio corporativo, sino como una garantía de la imparcialidad institucional, que regula la función pública, garantiza la selección del personal con base en criterios de mérito y capacidad, así como en un justo equilibrio entre derechos y responsabilidades de los empleados públicos. Se ha indicado también, que dicha legislación debe prever instrumentos que a las diferentes administraciones les faciliten la planificación, ordenación y utilización más eficiente de su personal. De ahí que la relación laboral de empleo público esté sujeta a ciertas especificidades y principios, como los de mérito y capacidad en el acceso, y también a determinadas normas de derecho público, como el régimen de incompatibilidades, que garanticen objetividad e imparcialidad en la prestación del servicio público.

Se estableció que los Constituyentes originarios, al discutir los títulos referentes a las Instituciones Autónomas y al Servicio Civil, estimaron elevarlos a nivel constitucional con el anhelo -por una parte- de desconcentrar el poder del ejecutivo en cuanto a las nuevas funciones que le fueron encomendadas al Estado, y sus influencias político-electorales sobre su funcionamiento. Por otra parte, consideraron los graves efectos que provocaban los cambios de gobierno sobre el personal de la Administración Pública ante la falta de un instrumento jurídico adecuado que los protegiera. En esos precedentes se destacó el siguiente análisis realizado a partir de las actas de la Constituyente:

"El Representante Facio expresó que todos están de acuerdo en que algún día han de estar cobijados los empleados de la Administración Pública por una adecuada Ley de Servicio Civil. También están de acuerdo en que una ley de esta naturaleza es muy compleja y no puede promulgarse de un momento a otro, o de un solo golpe. Es necesario irla adaptando poco a poco a la realidad y conveniencias nacionales. Agregó que en el Proyecto del 49 incorporaron un capítulo especial sobre el Servicio Civil, algunas de cuyas disposiciones las someterán a conocimiento de la Cámara en su oportunidad. En el Proyecto se deja establecida constitucionalmente la carrera administrativa, para que no vuelvan a ocurrir en nuestro país los sucesos pasados, cuando los empleados eran removidos de sus cargos por simples maniobras politiqueras. Sin embargo, los de la Comisión Redactora del Proyecto se dieron cuenta de la diferencia de establecer en Costa Rica la Ley de Servicio Civil. Por eso fue que solucionaron el problema mediante un transitorio, redactado en los términos siguientes:

"Las disposiciones del Título XIII entrarán en vigencia el mismo día que la Ley de Servicio Civil, la cual se aplicará gradualmente, de tal modo que en un plazo (sic) no mayor de diez años, cubra la totalidad de los servidores públicos." (Tomo III, Actas de la Asamblea Nacional Constituyente No. 132, pág. 120 y 121). - Dicha moción -de incluir dos incisos en el artículo 140 de la Constitución Política- fue sometida a votación, alcanzando un empate, por lo que debió ser conocida y votada en la sesión siguiente. En relación al segundo inciso propuesto, fue desechado. - III Conforme con lo anterior, luego de amplias discusiones se aprobó el artículo 140, inciso 1… Por todo lo anterior, se dispuso para el artículo 140, inciso 1) y 2) de la Constitución Política, la aprobación definitiva el artículo 140.-X de las Disposiciones Transitorias, al establecer que:

"La Ley de Servicio Civil no entrará en vigencia antes del ocho de noviembre de mil novecientos cincuenta ni después del primero de junio de mil novecientos cincuenta y tres, según lo acuerde la Asamblea Legislativa. Esa ley podrá, además, disponer que sus normas se apliquen gradualmente a los diversos departamentos de la Administración Pública; en todo caso, dicha ley deberá proteger a la totalidad de los servidores públicos incluidos en el inciso segundo del artículo 140, a más tardar el ocho de noviembre de mil novecientos cincuenta y nueve. Mientras no entre en vigencia la Ley de Servicio Civil, el Presidente de la República y el respectivo Ministro de Gobierno, podrán nombrar y remover libremente a todos los funcionarios de su dependencia, incluso a los Directores y Gerentes de las Instituciones Autónomas y a los integrantes de las Juntas y organismos oficiales, cuyos nombramientos hubieran sido hechos con anterioridad a la fecha de vigencia de esta Constitución, aún cuando tales designaciones lo fueren por período fijo." V Después de aprobado el Capítulo de las Instituciones Autónomas, los constituyentes entraron a conocer el Título y Capítulo Único del Servicio Civil, artículos que definieron el ámbito de aplicación y sus principios. En aquellas fechas, muchos de los servidores públicos, eran removidos de sus puestos para dar cabida a los partidarios del nuevo gobierno, lesionando el funcionamiento de la administración pública. Precisamente para atacar este mal, un grupo de constituyentes propugnó la creación de ese instrumento jurídico a fin de dotar a la Administración Pública de una mayor eficiencia administrativa y funcional. El primer artículo propuesto establecía que "Un estatuto de Servicio Civil regulará las relaciones entre el Estado y los servidores públicos, con el propósito de garantizar la eficiencia de los servicios, los cuales serán desempeñados con un criterio técnico y por el personal estrictamente necesario.". El Diputado Fournier, resumió el propósito del estatuto, al decir que era para regular las relaciones entre el Estado y sus servidores públicos. Ello tuvo -como es de esperar- reacciones de apoyo y de resistencia por parte de algunos diputados, incluyendo el Representante Esquivel quien consideró innecesario su inclusión por existir el artículo 140, inciso 1) y 2) de la Constitución Política, numeral que ya estaba aprobado por la Asamblea Nacional Constituyente. No obstante la resistencia citada, queda claro que el tema no había sido agotado con la sola aprobación de esos incisos, pues incluso el régimen estatutario fue ampliado en su concepto. Así con motivo de la discusión del artículo 192, el Diputado Fournier resaltó:

"Es imprescindible decir lo esencial de la Ley de Servicio Civil, esto es, que a ningún empleado se le podrá remover de su puesto, sino es por causales de despido que establece el Código de Trabajo, o en caso de reducción forzosa de servicios por falta absoluta de fondos o para conseguir una más eficaz y económica organización de los mismos. Se garantizan al empleado y al Estado." Se destacó en la discusión supra referida, que no bastaba la mera enunciación de la Ley de Servicio Civil en la Constitución Política, sino que era necesario citar los principios fundamentales del estatuto de la función pública, la forma de nombramiento a base de idoneidad comprobada, y su remoción, mediante una legislación predeterminada como lo era la legislación de trabajo, o para casos de reducción forzosa de servicios, ya sea por falta de fondos o para conseguir una mejor organización de los mismos. Sin embargo, esta Sala advirtió que lo planteado por el Poder Ejecutivo ante la Asamblea Legislativa el 14 de abril de 1953, según el expediente n.º 1581, fue un proyecto que circunscribió únicamente a sus funcionarios dentro de su ámbito competencial, a pesar de que la voluntad del Constituyente era aprobar un estatuto para el Estado, lo que produjo las consecuencias e interpretaciones aplicativas de una normativa ajena a lo pretendido por el Constituyente. Se advirtió, explícitamente lo siguiente:

“VI… Es claro que la intención del constituyente era la de crear un régimen laboral administrativo. De la lectura de las actas de la Asamblea Nacional Constituyente se distingue la figura del empleado público y del trabajador privado. Es indudable que la ausencia de un régimen jurídico que regule apropiadamente las relaciones entre el Estado y sus servidores, quebranta el artículo 191 de la Constitución Política, lo que conlleva también al quebrantamiento del artículo 11 de la Carta Magna…

VII.Por una parte, la Ley que se emitió (Estatuto del Servicio Civil) tiene alcances parciales, ya que la iniciativa tomada por el Poder Ejecutivo al respecto solamente tuvo como propósito regular las relaciones con sus servidores, esto es, dentro de su ámbito competencial. Desde este ángulo de enfoque, se ha dejado por fuera la regulación de las relaciones de servicio entre los entes públicos menores, pues era algo en lo que no tenía interés el Ejecutivo, o simplemente no era lo que consideraba más urgente. Por otra parte, el Estatuto del Servicio Civil reguló apenas algunos de los aspectos de la relación de los servidores con el Estado como los relativos a derechos, deberes de los servidores, su selección, clasificación, promoción, traslados, disciplina y régimen de despido -entre los más importantes-, que evidentemente atañen a una de las preocupaciones expresadas en la Asamblea Nacional Constituyente, esto es, la que tiene relación con la idoneidad y la eficiencia del servicio, pero no tocó otros aspectos no menos importantes, como es el que subyace en el planteamiento de esta acción, es decir, la regulación del propio régimen económico de esa relación y el sometimiento de los otros entes administrativos al régimen laboral público. Este vacío, sin embargo, no autoriza utilizar mecanismos previstos para una relación privada, a una relación de empleo público que se debe regir por principios propios y diferentes.” (Lo que está entre negritas no corresponde al original).

La Sala fue clara en esos precedentes que, del examen de las discusiones de los Constituyentes, existe un mandato y no una simple recomendación para aplicar a esa relación de empleo entre la administración pública y sus servidores, criterios propios o especiales, para lo cual, conforme al transitorio referido, debía la Asamblea Legislativa promulgar entre el 8 de noviembre de 1950 y el 1 de junio de 1953, la Ley de Servicio Civil que tendría como característica principal su aplicación paulatina en las oficinas de distinta naturaleza de la Administración Pública, lo cual no fue cumplido a cabalidad en su momento.

Tal como quedó expuesto en la línea jurisprudencial inicial, a partir del año 1949, el ordenamiento jurídico que regula la relación de empleo entre la administración pública y sus servidores en nuestro país se rige por el derecho público. Este régimen implica, necesariamente, que esa relación, por su propia naturaleza, se basa en principios generales propios, no solo distintos a los del sector laboral privado, sino incluso, muchas veces contrapuestos a estos.

Según se indicó, el “legislador…, optó por regular el servicio no de modo general, sino por sectores, promulgando así el Estatuto de Servicio Civil (que se aplica a los servidores del Poder Ejecutivo) y posteriormente otros estatutos para regular la prestación de servicios en los restantes poderes del Estado y en algunas instituciones descentralizadas.” (véanse las sentencias n.°1990-1119 de las 14:00 horas del 18 de setiembre de 1990 y n.°2004-7476 de las 14:04 horas del 30 de abril de 2004, entre otras). Y ello, según reconoció este Tribunal, es consecuente con una interpretación sistemática de la Constitución Política, que también reconoce la autonomía de las instituciones autónomas y el grado de independencia a cada uno de los Poderes del Estado.

En sentencia n.° 1999-5966 de las 10:30 horas del 30 de julio de 1999, este Tribunal señaló lo siguiente:

“SEXTO: EL RÉGIMEN DE EMPLEO DE LOS SERVIDORES DE LA COMISIÓN QUE SE CREA EN LA LEY. La consulta indica que "el hecho de que los funcionarios regulares estén sometidos a un régimen de empleo especial" viola el artículo 191 Constitucional y aunque la Sala ya ha establecido en su jurisprudencia que cuando la norma fundamental se refiere a "un estatuto de servicio civil" no dice un único estatuto, pues los distintos Poderes que ejercen el gobierno de la República (artículo 9° constitucional) pueden tener su propio régimen estatutario. En relación con este tema, puede consultarse la abundante jurisprudencia de esta Sala, en particular los fundamentos de las sentencias números 1148-90, de las diecisiete horas del veintiuno de setiembre de mil novecientos noventa y 1696-92, de las 15 horas y treinta minutos del día veintitrés de agosto de mil novecientos noventa y dos. Lo que sí constituye una violación de las previsiones constitucionales dichas, es que un órgano adscrito al Poder Ejecutivo, independientemente de los nombramientos que pudieran o debieran realizarse con motivo y para atender una emergencia, pueda contar con "un régimen especial de empleo" y en el que el papel de la Dirección General de Servicio Civil quede limitado a coordinarlo e inspeccionarlo.

En ese sentido, pues, llevan razón los consultantes y la norma, en los términos que fue concebida, debe eliminarse. Únicamente debería agregarse aquí, que con motivo de una emergencia, se podrían utilizar mecanismos excepcionales de contratación de personal, pero esto estaría autorizado por principio y ni siquiera en base a una norma que lo autorizara.” De este modo, han sido aceptados otros estatutos que regulan esta relación de empleo público; empero, imponiendo en cada una de esas regulaciones como límite esencial, el cumplimiento del principio de idoneidad y de estabilidad en la relación laboral en el sector público, independientemente del régimen diferenciado que se adopte, de conformidad con lo dispuesto en los artículos 191 y 192 constitucionales. Así lo reafirmó esta Sala, en las sentencias números 2001-5694 de las 16:23 horas del 26 de junio de 2001, 2011-014624 de las 15:50 horas de 26 de octubre de 2011, y 2006-17746 de las 14:36 horas del 11 de diciembre de 2006.

Así las cosas, los principios y normas constitucionales que regentan el Servicio Civil se extienden al régimen de empleo público de los entes administrativos, pues la intención del constituyente fue crear un régimen laboral administrativo, con sus propios principios, derivados de la naturaleza estatutaria de la relación entre los funcionarios públicos y el Estado, y aunque lo concibió de un modo general, en el artículo 192 constitucional también dejó prevista la necesidad de establecer excepciones a esa única regulación. Así lo evidenció este Tribunal en la sentencia n.° 1990-1119, al indicar lo siguiente:

“…El legislador, sin embargo, optó por regular el servicio no de modo general, sino por sectores, promulgando así el Estatuto del Servicio Civil (que se aplica a los servidores del Poder Ejecutivo) y posteriormente otros estatutos para regular la prestación de servicios en los restantes poderes del Estado y en algunas instituciones descentralizadas. No obstante, a pesar de que el legislador no recogió la idea del constituyente y reguló sólo parcialmente el servicio público, es lo cierto, que los principios básicos del régimen (escogencia por idoneidad, estabilidad en el empleo) cubren a todos los funcionarios al servicio del Estado, tanto de la administración central, como de los entes descentralizados. Mas, esto en principio, porque el artículo 192 constitucional introduce otros elementos importantes al disponer al inicio “con las excepciones que esta Constitución y el estatuto de servicio civil determinen”, frase que obliga a matizar las conclusiones anteriores respecto al ámbito de aplicación del régimen o estatuto de servicio civil. Es obvio que en la mente del constituyente estaba la idea de que no todos los servidores públicos podían estar cubiertos por el régimen especial, pues la forma de escogencia, las especiales capacidades, las funciones de cada cargo, las relaciones confianza y dependencia no son iguales en todos los casos, de ahí que los principios derivados del artículo 192 son aplicables a ciertos funcionarios –la mayoría- no a todos. La Constitución misma señaló varios casos de funcionarios de libre escogencia y remoción como son los ministros de gobierno, los miembros de la fuerza pública, los directores de instituciones autónomas, representantes diplomáticos, y en general, "los empleados y funcionarios que ocupen cargos de confianza" (art. 140 inciso 1), dejando a la ley (Ley de Servicio Civil dice el artículo 140) la determinación de otros funcionarios, que en casos muy calificados, pudieran ser excluidos del régimen general. Esta posibilidad de excluir ciertos funcionarios la reitera el artículo 192. Se repite que la intención del constituyente fue la de que existiera una sola ley, un Estatuto, que regulara todo el servicio público. No obstante, lo importante es que se dejó al legislador ordinario, por medio de la ley, la regulación en detalle de la cobertura del régimen especial, lo cual podía hacer, como lo hizo, en leyes separadas, sin detrimento del mandato constitucional. Por vía de ley el legislador ha excluido varios casos del régimen común. El Estatuto de Servicio Civil en sus artículos 3, 4 y 5, menciona un buen número de funcionarios que no se consideran dentro del régimen. También por ley especial se han excluido los presidentes ejecutivos de las instituciones autónomas, que son de nombramiento del ejecutivo, y en general, una serie de funcionarios, nombrados casi siempre a plazo fijo, y cuyo denominador común es encontrarse en una relación de servicio no típicamente laboral, bajo un régimen de subordinación jerárquica, sino más bien de dirección o colaboración, donde no median órdenes, sino más bien directrices, en unos casos; o bien, en una relación de confianza que obliga a otorgar una mayor libertad para el nombramiento y la eventual remoción del funcionario; ello independientemente de la naturaleza permanente de la función. Esta relación de confianza puede fundarse, según los requerimientos del cargo, en aspectos puramente subjetivos, de orden personal; pero también puede derivar de elementos objetivos nacidos de una comunidad ideológica (política en el buen sentido del término), necesaria para el buen manejo de la cosa pública conforme a planes y programas. Los casos de excepción, está claro, han de ser muy calificados, con las especiales características señaladas que justifiquen un trato desigual. Así ha de ser, pues por vía de excepción injustificada el legislador podría hacer nugatoria la disposición constitucional que tiende a la estabilidad laboral del empleado público y a la racionalidad del reclutamiento, como regla general. Pero si el cargo tiene alguna característica especial que lo justifique, la excepción será válida.”. (El énfasis no es del original) Como fácilmente se deduce de lo que llevamos dicho, la intención del constituyente originario fue someter a un régimen de Derecho administrativo -estatutario- todas las relaciones de empleo público, es decir, ningún órgano ni ente de la Administración Pública, central o descentralizada, quedó exento de este deber, de ahí que, si bien pueden existir estatutos especiales -propios de los órganos y entes descentralizados-, siempre y cuando respondan a los principios cardinales que se encuentran consagrados en la Carta Fundamental, también es lo cierto que es constitucionalmente válido que haya un estatuto único que regula las relaciones entre la Administración Pública, central y descentralizada, y sus servidores. Lo anterior significa, que la Asamblea Legislativa está habilitada por el Derecho de la Constitución a establecer un estatuto único que comprenda a todos (as) los (as) servidores (as) públicos, con las excepciones que la Constitución -incisos 1 y 2 del artículo 140- y el citado estatuto determine, por lo que, en este extremo, el proyecto de ley consultado no resulta contrario al citado Derecho y, lógicamente, siempre y cuando no se supriman, afecte en lo esencial, ni se trasladen las competencias exclusivas y excluyentes que le corresponden a los poderes del Estado y a los entes descentralizados a otros órganos y entes según el principio de separación de poderes o funciones o el grado de autonomía, respectivamente.

Corresponde ahora el análisis de los agravios -dudas o vicios de inconstitucionalidad- que invocan los (as) consultantes.

Consideraciones particulares de la magistrada Garro Vargas sobre este considerando general Coincido plenamente con lo que el considerando general suscrito por la mayoría afirma:

“No es inconstitucional que el legislador someta a toda la Administración Pública a una ley marco de empleo público, siempre y cuando observe rigurosamente los principios de separación de poderes y no vacíe de contenido los grados de autonomía que el Derecho de la Constitución le otorgan a las universidades del Estado, a la CCSS y a las municipalidades”.

Por eso, como se refleja en las notas que he consignado en esta resolución, estimo que el legislador bien puede establecer un marco normativo general en esta materia, que contenga un modelo de empleo para todos los servidores públicos, en el que se contemplen los lineamientos de compensación, valoración del rendimiento, demostración de la idoneidad y de la responsabilidad en el ejercicio de las funciones, etc. Es decir, ese marco bien podría plasmar y desarrollar los principios constitucionales de idoneidad, estabilidad laboral, eficiencia e inamovilidad, evaluación de resultados, rendición de cuentas, responsabilidad para el cumplimiento de los deberes (todo de conformidad con los arts. 9, 11, 191 y 192 de la Constitución Política).

Sin embargo, en los términos en los que está planteado el proyecto de ley consultado se advierten serios roces con la Constitución. Uno de ellos se refiere al alcance de las competencias de la rectoría ejercida por el Mideplan. A esa cartera ministerial del Poder Ejecutivo se le otorgan unas atribuciones sin tener en consideración la independencia de los poderes de la república ni las autonomías de gobierno reconocidas constitucionalmente.

En estas consideraciones particulares me propongo explicar, con el mayor respeto, por qué tampoco comparto algunas argumentaciones que contiene el considerando general, referidas a las condiciones para que se tenga por inconstitucionales las competencias de dicha rectoría.

Ese considerando, en primer término, hace una distinción entre funcionarios, atendiendo al tipo de labor que realizan:

“La clave de bóveda está en determinar si hay actividades administrativas en este ámbito que resultan indispensables para garantizar las competencias exclusivas y excluyentes de los poderes del Estado”.

Esto significa que la Sala Constitucional, sin fundamento normativo constitucional alguno, divide los funcionarios públicos entre aquellos que ejercen una labor que incide en las competencias exclusivas y excluyentes del poder o de la institución con autonomía reconocida constitucionalmente, y los que ejercen una labor que supuestamente no incide. Tal división la hace en función de señalar que estos últimos sí podrían estar sujetos a tal rectoría:

“[L]a potestad de dictar directrices (…) no es constitucional cuando afecta o incide en las competencias exclusivas y excluyentes de los otros poderes del Estado o en los fines constitucionalmente asignados a los entes de base corporativa o institucional que gozan de un grado de autonomía tres -autoorganizativa o normativa- o dos -política- o en aquellas actividades administrativas necesarias para el ejercicio de esas competencias.

Ergo, según ese considerando, sí sería constitucional el sometimiento a esas directrices cuando no afecta tales competencias. Por eso agrega:

Ahora bien, lo anterior no significa que todo el funcionariado de los poderes del Estado y de los entes supra citados esté excluido de la potestad de dirección. En el caso de los servicios administrativos básicos, auxiliares, que no inciden sobre las competencias exclusivas y excluyentes ni funciones administrativas necesarias para el cumplimiento de estas, cada poder del Estado y ente debe definir de forma exclusiva y excluyente cuáles de estas pueden estar sometidas a la potestad de dirección. Por ello, con base en el principio de independencia de poderes o funciones y los grados de autonomía garantizado constitucionalmente a cada ente, corresponde de manera exclusiva y excluyente a sus máximos órganos – Corte Plena, Consejo Superior del Poder Judicial, Tribunal Supremo de Elecciones, Consejos Universitarios, Rectorías, Junta Directiva y Presidencia Ejecutiva de la Caja Costarricense de Seguro Social, Concejo y Alcaldes Municipales- establecer cuáles son esos servicios administrativos básicos, auxiliares, comunes y similares a toda la Administración Pública que sí estarían sometidas a las potestades de dirección y reglamentaria del Poder Ejecutivo.

Recapitulando: Primero introduce la distinción entre servidores públicos que realizan funciones atinentes a la competencia designada al poder (o institución con autonomía reconocida constitucionalmente) y otros que no las realizan. Luego señala que a los máximos órganos respectivos les corresponde hacer esa distinción. Lo anterior está en función de esclarecer cuáles servicios dentro de cada poder o institución sí estarán sometidos a las potestades de dirección y reglamentación ejercidas por el Mideplan.

Al respecto, en primer lugar, llama la atención que en dicho considerando la mayoría de la Sala Constitucional introduzca un elemento que no está en el proyecto de ley sometido a consulta, y lo presenta como condición de constitucionalidad: que haya una distinción de funcionarios y que la distinción la realice cada poder o institución con autonomía otorgada constitucionamente. Sobre el particular, ha de recordarse que lo que le corresponde a este Tribunal es advertir los presuntos vicios de constitucionalidad consultados y no proponer o realizar consideraciones sobre aspectos que no están expresamente cuestionados en la consulta ni contemplados ni en el proyecto de ley En segundo lugar, con tales argumentaciones obviamente se estaría diciendo que lo inconstitucional sería que los funcionarios que ejercen labores que inciden directamente en las competencias del poder o de la institución en cuestión se encuentren bajo la mencionada rectoría. Y lo inconstitucional también sería que la distinción entre uno y otro tipo de funcionarios la realice el legislador o el Mideplán. Además, se avala que dentro de cada poder existan dos regímenes: los que están sometidos a la rectoría y los que no. Entonces, los funcionarios que no ejercen una labor que supuestamente está directamente vinculada con las competencias exclusivas podrían, según ese considerando general, sin agravio a la Constitución, estar sometidos a la mencionada rectoría. No obstante, estimo que las competencias otorgadas a esa rectoría ejercida por Mideplan sobre esos otros funcionarios tampoco es constitucional, porque incide en la independencia o la autonomía de las respectivas organizaciones en cuestión (poderes, Tribunal Supremo de Elecciones, la Caja Costarricense de Seguro Social, las universidades públicas o las municipalidades). Al respecto, debe tenerse presente que la independencia y la autonomía son cualidades orgánicas, reconocidas constitucionalmente a los poderes o instituciones –según sea el caso–. No son características de los sujetos que ahí laboran. A la vez, la labor de todos los funcionarios que forman parte de ese poder o institución, sin excepción ni distinción, está integrada en la consecución del fin propio y exclusivo de estos. Es verdad que dentro de cada uno de los poderes o de las instituciones que gozan de una autonomía reconocida constitucionalmente hay funcionarios que solo coadyuvan de manera más o menos directa en el ejercicio de las propias competencias de la organización; sin embargo, su labor la desempeñan como parte de un todo unitario, que tiene unos fines específicos. Por ejemplo, un economista puede trabajar como asesor legislativo, como asesor en un ministerio, etc.; lo mismo una secretaria: podría serlo de una municipalidad o de un poder de la república. Sin embargo, aunque la labor de cada uno sea materialmente muy similar a la de un colega suyo que trabaja en otra institución, lo cierto es que se ejerce no desvinculada sino integrada a los fines propios del poder o de la institución de que se trate.

Además, cabe agregar que en el ejercicio de esa labor ese servidor tiene acceso a información y le corresponde establecer relaciones propias de su cargo. Esto último, que parece una banalidad, no lo es, y el legislador lo ha tenido muy en cuenta, al establecer prohibiciones e impedimentos, tanto para funcionarios como para exfuncionarios. Y lo ha tenido en cuenta justamente porque sabe que, aunque la independencia o la autonomía –repito– son cualidades orgánicas y no de los funcionarios de los poderes o instituciones, debe regir un marco normativo que asegure que los sujetos que integran esas organizaciones no lesionen con sus actos la respectiva independencia o autonomía, según sea el caso. Si eso es así, tampoco parece jurídicamente razonable que se entienda como constitucionalmente válido que dentro de cada poder o institución con autonomía dada por la Constitución haya funcionarios estén sometidos a una cartera ministerial del Poder Ejecutivo, como si se tratara de sujetos que no están plenamente integrados a la organización a la que pertenecen. Se consumaría por esta vía, lo que el Constituyente quiso evitar y el legislador hasta la fecha ha procurado resguardar: la no injerencia de un poder en otro o en una institución con autonomía reconocida constitucionalmente.

Entonces, por ser una característica orgánica, la independencia cubre a todo el poder de la república. Lo mismo se podría decir de las instituciones dotadas de autonomía de gobierno. Ahora bien, precisamente como se trata de una cualidad orgánica, es verdad, lo afirma la mayoría:

[Q] ue “resulte inadmisible, desde la óptica constitucional, el ejercicio por parte del Poder Ejecutivo u otro de sus órganos de un poder de jerarquía, de dirección, de reglamentación interna sobre los poderes del Estado, las universidades del Estado, la CCSS y las municipalidades”.

Pero téngase presente que eso es inadmisible respecto de la organización como un todo y de quienes la integran, y esto último sin realizar la distinción entre los funcionarios.

Entonces, sí hay actividades indispensables porque inciden directamente en esas competencias y otras que no; pero eso no significa que estas últimas puedan estar reguladas, controladas, sometidas a un poder distinto de aquel poder –o de aquella institución con autonomía constitucionalmente reconocida– en el que laboran. El hecho de que algunas tareas no sean “indispensables” no separa a los funcionaros que las ejercen de su vinculación a la jerarquía dentro de ese poder o esa institución, según corresponda. Es decir, la sujeción de los servidores públicos al propio poder o institución autónoma hace posible, eficaz, la independencia o de la autonomía otorgada por la Constitución.

El considerando general también señala:

“Tampoco se puede obviar que los poderes del Estado con exclusión del ejecutivo -siguiendo un criterio subjetivo es quien realiza la actividad administrativa por naturaleza, artículo 1.° de la Ley General de la Administración Pública-, excepcionalmente realizan actividad administrativa –criterio objetivo, artículo 2, inciso b) del Código Procesal Contencioso-Administrativo-, tal y como ocurre con la materia de empleo público”.

Estimo que tal afirmación debe matizarse. De hecho, el Código Procesal Contencioso Administrativo señala:

Art. 1. (…) 3) Para los fines de la presente Ley, se entenderá por Administración Pública:

• a)La Administración central.
• b)Los Poderes Legislativo, Judicial y el Tribunal Supremo de Elecciones, cuando realicen funciones administrativas.
• c)La Administración descentralizada, institucional y territorial, y las demás entidades de Derecho público De manera que no es tan preciso afirmar que los poderes –con exclusión del Ejecutivo– sólo por excepción realizan función administrativa. Lo cierto es que todos realizan función administrativa, pero sólo uno (el Poder Ejecutivo, en el nivel central) tiene, como atribución principal, la función administrativa. Es decir, en la distribución orgánica (poderes, órganos, instituciones con autonomía reconocida por la Constitución, gobiernos locales, etc.) todos ejercen función administrativa. Es más, también realizan la normativa y la judicial (aunque ésta en sentido lado: administran justicia administrativa). No obstante, al Poder Ejecutivo se le atribuye por antonomasia la función administrativa o de gobierno, al Poder Legislativo la función normativa y al Poder Judicial la judicial, que, en su caso, es justicia jurisdiccional (aunque también, a lo interno, la administrativa). Pero, es claro que en todos se ejercen las tres funciones que son esenciales para el engranaje y la consecución de los fines del respectivo poder. Lo mismo cabría señalar respecto de los gobiernos locales, las universidades públicas y la Caja Costarricense de Seguro Social. Entonces, para lo que aquí interesa, ha de subrayarse que la función administrativa la ejercen todos los poderes y las instituciones mencionadas, aunque con diversa intensidad y alcance. Por eso, si todos ejercen función administrativa, no parece que se les deba sustraer aquella que se refiere al régimen de sus propios funcionarios, y lo que esto lleva consigo, que –como bien dice el considerando general– es “actividad típicamente administrativa”.

A la luz de lo anterior, tengo mis serias reservas sobre la propuesta de dicho considerando. Incluso si se dijera que, en principio, cada poder o institución sí podría tener la facultad de definir cuáles funcionarios ejercen una labor denominada “indispensable”, lo que se torna inconstitucional es que esa distinción se realice con el propósito de traspasar ese sector de servidores públicos a la sujeción de otro poder de la república, pues ello implicaría romper el modelo republicano diseñado por la Constitución Política. Aceptar dicha propuesta supondría entender que sólo el Poder Ejecutivo ejerce verdadera función administrativa y que eso daría pie a que los otros poderes, al menos en materia de empleo público, puedan –o quizá deban– abdicar de la administración (de su gobierno e, incluso, de su regulación).

Entonces, no corresponde que esta distinción vacíe de contenido la eficacia misma de la independencia de los poderes y de las autonomías reconocidas constitucionalmente. Por eso, si el legislador hiciera esa distinción irrespetaría esas características orgánicas, por lo que resultaría inconstitucional. Otorgarle esa facultad de distinción al propio Mideplan resulta, también desde el punto de vista constitucional, absolutamente inadmisible. Sin embargo, aunque no es inconstitucional en sí misma dar legalmente a los jerarcas de los propios poderes –o a las instituciones dotadas de autonomía de gobierno– la facultad de distinguir los servidores que sí realizan funciones que inciden en las propias competencias exclusivas y excluyentes, de aquellos que supuestamente no las realizan, lo cierto es que tal facultad tampoco sana de raíz las infracciones constitucionales del proyecto de ley sometido a consulta, sobre todo, si tal distinción tiene como objetivo autorizar la rectoría del Mideplan sobre estos últimos funcionarios.

Además, dejar esa definición en manos de los respectivos jerarcas –transitorios per se– es someterlos a una enorme presión por parte los propios servidores subalternos, porque no es difícil imaginar que muchos de ellos estimarán, con o sin razón, que su labor incide directamente en el fin último de la propia institución. Por eso no se puede descartar que el ejercicio de esa facultad pudiese tener el efecto de enconar disparidades e iniquidades, que es justamente lo que el proyecto de ley pretende eliminar. Esto no sólo porque, como he dicho, se estaría avalando que a lo interno de cada organización existieran dos regímenes, sino porque también cabría la posibilidad de que los jerarcas no realicen tal distinción o prácticamente la dejen sin efecto. Entonces, el hecho de que los jerarcas tengan la facultad de hacer esa distinción no necesariamente consigue el efecto deseado en el proyecto. Por lo que la propuesta parece lesionar los principios de razonabilidad y de seguridad jurídica.

El espíritu del establecimiento de un estatuto de servicio civil, según se puede recordar de las actas de la constituyente, y de la lectura de los arts. 191 y 192 de la Constitución Política, es que no hubiera injerencias políticas del Poder Ejecutivo respectivo en las relaciones entre el Estado y los servidores públicos. No obstante, el establecimiento de una rectoría del Sistema General de Empleo Público a cargo del Mideplan, con la expresa posibilidad de emitir disposiciones de alcance general, directrices, reglamentos en relación con la planificación, la organización del trabajo, la gestión de empleo, la gestión del rendimiento, la gestión de la compensación y de las relaciones labores por sobre otros poderes de la república e instituciones con autonomía reconocida constitucionalmente permite lo que pretendía evitar el Constituyente: esa injerencia política. Esto es así porque se trata de una rectoría en manos una cartera del Poder Ejecutivo, cuya cabeza es de libre remoción del Presidente de la República, y sus competencias tienen efectos transversales, pues no conocen las fronteras que señalan la independencia de poderes y las autonomías constitucionalmente establecidas.

Consideraciones particulares de la magistrada Picado Brenes sobre este considerando general Desde mi punto de vista, el tema del empleo público tiene una evidente trascendencia sobre la democracia costarricense, sobre la organización del aparato estatal y en general sobre el Estado de Derecho. Por ello, considero oportuno subrayar algunos aspectos que la Jurisprudencia de esta Sala ha establecido sobre el empleo público y el Estatuto de Servicio Civil. El empleo público en Costa Rica, como un régimen estatutario particular de Derecho Público, tiene sus bases constitucionales en los artículos 191 y 192 de la Constitución Política. Antes de 1949 el empleo público en Costa Rica estaba regulado básicamente por el derecho privado (Código Civil inicialmente y Código de Trabajo posteriormente). Por ello resulta tan trascendental la regulación constitucional de esta materia que se dio en 1949. Del debate en la Asamblea Nacional Constituyente de dichos artículos se concluye que el empleo público en Costa Rica está regulado por un marco jurídico especial, el Derecho Público, constituyendo un verdadero régimen estatutario. Nuestros Constituyentes al discutir los títulos referentes a las Instituciones Autónomas y al Servicio Civil, estimaron elevarlos a nivel constitucional con el anhelo -por una parte- de desconcentrar el poder del Ejecutivo en cuanto a las nuevas funciones que le fueron encomendadas al Estado, y sus influencias político-electorales sobre su funcionamiento. Por otra parte, consideraron los graves efectos que provocaban los cambios de gobierno sobre el personal de la administración pública ante la falta de un instrumento jurídico adecuado que los protegiera (ver voto n°1992-001696). Tal como lo ha dicho esta Sala en anteriores oportunidades (ver voto n°2018-00231), nuestros constituyentes originales consignaron en la Constitución Política de 1949, que debía existir un régimen laboral administrativo que regulara las relaciones entre los servidores públicos y el Estado, a fin de proteger a los primeros de destituciones arbitrarias (estabilidad en el empleo) y de profesionalizar la función pública (búsqueda de la eficiencia en el servicio y de la idoneidad del funcionario). El objeto de tal cometido fue procurar que la Administración Pública contara con factores organizativos que le permitieran satisfacer el derecho de los ciudadanos al buen funcionamiento de los servicios públicos. El régimen de servicio civil no se erige entonces como un privilegio corporativo, sino como una garantía de la imparcialidad institucional. Ahora bien, en cuanto a este tema, en relación con varios aspectos que se consultan, resulta relevante determinar si el Estatuto de Servicio Civil, que menciona el art.191 Constitucional, se refiere a UN único estatuto y si abarca a todos los servidores del Estado (Administración Pública Central y Administración Pública Descentralizada). A raíz de la jurisprudencia constitucional, considero que, resulta acorde al mandato del Constituyente, que pueda haber una ley general de empleo público en Costa Rica. Lo anterior, siempre y cuando se trate de una ley que contenga sólo principios generales, disposiciones generales, criterios orientadores y que respete el resto de principios resguardados en la Constitución, como son el principio de separación de funciones y el grado de autonomías de las distintas instituciones descentralizadas. Esos principios o lineamientos generales servirían para desarrollar la despolitización del empleo público, por medio del aseguramiento del cumplimiento de los principios de ingreso mediante idoneidad comprobada y la permanencia mediante el principio de la estabilidad, según lo establece el art.191 y 192 constitucionales. Lo cual supone entonces que, estaría fuera del marco constitucional, todo lo que exceda lo anterior, por ejemplo, si tal ley pretendiera la creación de una rectoría en materia de empleo público a cargo de un órgano que opere por sobre el resto de los Poderes de la República y por sobre la Administración descentralizada (territorial y funcional); y además, si se establecen normas que pretendan regular aspectos del fuero interno de la independencia de Poderes y de las autonomías. En estos casos, tanto el Poder Ejecutivo, como el Poder Legislativo tienen vedadas sus competencias.

Este tema de cuáles funcionarios públicos y cuáles no, están cubiertos por el Servicio Civil, ya fue abordado por esta Sala (ver sentencia número 1990-01119), donde de manera inicial se dijo lo siguiente:

“II.- En cuanto al punto primero: a cuáles funcionarios cubre el Régimen de Servicio Civil? Un estudio de las actas de la Asamblea Constituyente, revela que los diputados quisieron acoger, con rango constitucional, el régimen especial de servicio público que denominaron servicio civil, y que existía ya en otras constituciones latinoamericanas por aquella fecha. Sin embargo, el constituyente evitó ser excesivamente detallista o reglamentista en esta materia, y se resolvió más bien por incluir en la Constitución sólo los principios fundamentales que habrían de definir dicho régimen, a saber: especialidad para el servidor público, requisito de idoneidad comprobada para el nombramiento y garantía de estabilidad en el servicio, todo con fin de lograr mayor eficiencia en la administración dejando a la ley el desarrollo de la institución. (Acta No. 167, art. 3, T. III). El artículo 191 emplea el término "estatuto" de servicio civil en vez de "régimen" de servicio civil, lo cual tuvo su sentido, pues sobre el criterio minoritario que propugnaba por una regulación dispersa, prevaleció la tesis de que fuera un estatuto, un solo cuerpo legal el que regulara el servicio público, desarrollando las garantías mínimas establecidas por la Constitución. (Acta No. 167, art.3, T. III, pág.477). El legislador, sin embargo, optó por regular el servicio no de modo general, sino por sectores, promulgando así el Estatuto de Servicio Civil (que se aplica a los servidores del Poder Ejecutivo) y posteriormente otros estatutos para regular la prestación de servicios en los restantes poderes del Estado y en algunas instituciones descentralizadas. No obstante, a pesar de que el legislador no recogió la idea del constituyente y reguló sólo parcialmente el servicio público, es lo cierto que los principios básicos del régimen (escogencia por idoneidad, estabilidad en el empleo) cubren a todos los funcionarios al servicio del Estado, tanto de la administración central, como de los entes descentralizados. Mas, esto en principio, porque el artículo 192 constitucional introduce otros elementos importantes al disponer al inicio "con las excepciones que esta Constitución y el estatuto de servicio civil determinen", frase que obliga a matizar las conclusiones anteriores, respecto al ámbito de aplicación del régimen o estatuto de servicio civil. Es obvio que en la mente del constituyente estaba la idea de que no todos los servidores públicos podían estar cubiertos por el régimen especial, pues la forma de escogencia, las especiales capacidades, las funciones de cada cargo, las relaciones de confianza y dependencia no son iguales en todos los casos, de ahí que los principios derivados del artículo 192 son aplicables a ciertos funcionarios -la mayoría- no a todos. La Constitución misma señaló varios casos de funcionarios de libre escogencia y remoción como son los ministros de gobierno, los miembros de la fuerza pública, los directores de instituciones autónomas, representantes diplomáticos, y en general, "los empleados y funcionarios que ocupen cargos de confianza" (art. 140 inciso 1), dejando a la ley (Ley de Servicio Civil dice el artículo 140) la determinación de otros funcionarios, que en casos muy calificados, pudieran ser excluidos del régimen general. Esta posibilidad de excluir ciertos funcionarios la reitera el artículo 192. Se repite que la intención del constituyente fue la de que existiera una sola ley, un Estatuto, que regulara todo el servicio público. No obstante, lo importante es que se dejó al legislador ordinario, por medio de la ley, la regulación en detalle de la cobertura del régimen especial, lo cual podía hacer, como lo hizo, en leyes separadas, sin detrimento del mandato constitucional. Por vía de ley el legislador ha excluido varios casos del régimen común. (…).” Luego, la Sala aclara la posición anterior sobre la existencia de un solo cuerpo legal para realizar una interpretación sistemática de la Constitución, mediante sentencia número 2018-00231, cuando indica lo siguiente:

“III.- Sobre el régimen estatutario. Nuestros constituyentes originales consignaron en la Constitución Política de 1949, que debía existir un régimen laboral administrativo que regulara las relaciones entre los servidores públicos y el Estado, a fin de proteger a los primeros de destituciones arbitrarias (estabilidad en el empleo) y de profesionalizar la función pública (búsqueda de la eficiencia en el servicio y de la idoneidad del funcionario). El objeto de tal cometido fue procurar que la Administración Pública contara con factores organizativos que le permitieran satisfacer el derecho de los ciudadanos al buen funcionamiento de los servicios públicos. Para ello, el procedimiento para seleccionar y nombrar a un servidor en la Administración Pública, debe cumplir con los principios fundamentales que prevén los artículos 191 y 192 constitucionales, con lo que se procura personal idóneo para ocupar un puesto público, con el propósito de garantizar la eficiencia y efectividad en la función pública. El régimen de servicio civil no se erige entonces como un privilegio corporativo, sino como una garantía de la imparcialidad institucional.

(…)

VI… Es claro que la intención del constituyente era la de crear un régimen laboral administrativo. De la lectura de las actas de la Asamblea Nacional Constituyente se distingue la figura del empleado público y del trabajador privado. Es indudable que la ausencia de un régimen jurídico que regule apropiadamente las relaciones entre el Estado y sus servidores, quebranta el artículo 191 de la Constitución Política, lo que conlleva también al quebrantamiento del artículo 11 de la Carta Magna…

(…) XI En opinión de la Sala, entonces, los artículos 191 y 192 de la Constitución Política, fundamentan la existencia, de principio, de un régimen de empleo regido por el Derecho Público, dentro del sector público, como ha quedado claro del debate en la Asamblea Nacional Constituyente y recoge incipientemente la Ley General de la Administración Pública. Este régimen de empleo público implica, necesariamente, consecuencias derivadas de la naturaleza de esa relación, con principios generales propios, ya no solamente distintos a los del derecho laboral (privado), sino muchas veces contrapuestos a éstos…” (…) De acuerdo con lo señalado por la Sala en la sentencia No. 2003-10615, la redacción finalmente dada al artículo 191, junto con el proceso de profunda descentralización que experimentó el Estado costarricense a partir de 1949, conllevaron a que actualmente resulte válida la existencia de diversas relaciones estatutarias en la Administración, en atención a la independencia funcional y autonomía administrativa que el ordenamiento asegura a varias instituciones públicas. Sin embargo, “lo que no resulta legítimo –según se dijo- es que las relaciones entre cada Administración-patrono y sus funcionarios se rijan por reglas concertadas (contractuales) entre ambas partes, como válidamente ocurre en las relaciones de empleo privado.” (…)

Corolario de lo anterior, la relación de empleo público que aplica a los servidores públicos, es una relación especial de derecho público o estatutaria, que por tal naturaleza jurídica tiene limitaciones en cuanto a la aplicación del derecho laboral común. Asimismo, su regulación está sometida a los ordinales 11, 191 y 192 de la Constitución Política. (…)” A partir de lo anterior, considero que se puede llegar a las siguientes conclusiones:

-PRIMERA: Un solo régimen público de empleo público, pero no un UNICO Estatuto, que debe interpretarse a la luz de los Principios de independencia de poderes y de las autonomías: La regulación del empleo público por sectores, “es consecuente con una interpretación sistemática de la Constitución Política, que también reconoce la autonomía de las instituciones autónomas y el grado de independencia a cada uno de los Poderes del Estado.” (ver sentencia n°2018-00231). Así entonces, “cuando la norma fundamental se refiere a "un estatuto de servicio civil" no dice un único estatuto, pues los distintos Poderes que ejercen el gobierno de la República (artículo 9° constitucional) pueden tener su propio régimen estatutario…” (ver sentencia n°1999-005966). Por ello, no puede entenderse “uno” como un único instrumento jurídico, sino como un régimen único de principios y garantías: “al hablar la Constitución de un solo régimen aplicable a los servidores públicos, no restringió el concepto al "estatuto" al de un instrumento jurídico único, sino que pretende concretar el régimen uniforme de principios y garantías que regulen la protección de los derechos laborales del servidor público, especialmente atendiendo a su derecho a la estabilidad” (ver sentencia n°1993-06240). A lo que se refiere el Constituyente entonces, es a un solo régimen público que cubra a todos los funcionarios al servicio del Estado, es decir, a un régimen de Derecho público (donde se garantiza el ingreso por idoneidad y la permanencia con estabilidad), distinto del derecho privado o contractual. Pero no se refiere a un solo cuerpo normativo, pues resulta “válida la existencia de diversas relaciones estatutarias en la Administración, en atención a la independencia funcional y autonomía administrativa que el ordenamiento asegura a varias instituciones públicas.” (ver sentencia n°2018-00231).

-SEGUNDA: Principios del régimen de servicio civil (solo normas con principios generales) de aplicación obligatoria a todo el Estado: Los principios básicos del régimen de servicio civil (escogencia por idoneidad, estabilidad en el empleo) cubren a todos los funcionarios al servicio del Estado, tanto de la administración central, como de los entes descentralizados. Pues, el legislador optó por regular el servicio no de modo general, sino por sectores, promulgando así el Estatuto de Servicio Civil (que se aplica a los servidores del Poder Ejecutivo) y posteriormente otros estatutos para regular la prestación de servicios en los restantes poderes del Estado y en algunas instituciones descentralizadas. Así por ejemplo, la promulgación de la Ley de Personal de la Asamblea Legislativa n° 4556 del 29 de abril de 1970. Pese a esa diversidad de leyes, resulta evidente que los principios constitucionales del servicio civil se aplican a la totalidad de funcionarios públicos y a todos los sectores que existen. Estos principios, y no las normas concretas del Estatuto de Servicio Civil, son los obligatorios para todo el aparato estatal, pues el Constituyente quiso poner fin a la práctica de que muchos de los servidores públicos eran removidos de sus puestos para dar cabida a los partidarios del nuevo gobierno. Es decir, el Constituyente quiso despolitizar el nombramiento y la remoción de funcionarios públicos de sus puestos, con el establecimiento de estos dos grandes principios que se enumeran en el art.192 Constitucional (idoneidad y estabilidad).

-TERCERA: Reconocimiento de varios casos excluidos por el propio Constituyente: En la mente del constituyente estaba la idea de que no todos los servidores públicos podían estar cubiertos por el régimen especial, pues la forma de escogencia, las especiales capacidades, las funciones de cada cargo, las relaciones de confianza y dependencia no son iguales en todos los casos (ver voto n°2018-0231). Así se deja en manos de la misma Constitución y del legislador, varios casos excluidos del régimen común, tal como lo dice la frase con la que comienza el art.192 Constitucional: “Con las excepciones que esta Constitución y el estatuto de servicio civil determinen.” -CUARTA: Reconocimiento de régimen diferenciado de empleo, en varios casos: En diversa jurisprudencia esta Sala ha reconocido un régimen diferenciado que regula, por ejemplo, a los funcionarios judiciales (ver sentencia n°2001-005694 y n°2018-019511), a la Caja Costarricense de Seguro Social (ver sentencia n°2011-014624) y al Instituto Costarricense de Electricidad (ver sentencia n°2006-017746). Es claro, entonces, que el Constituyente hace referencia a un solo régimen de empleo público (de Derecho público y con base en los principios de idoneidad y estabilidad), pero no a un único Estatuto o marco jurídico para todo el aparato estatal.

-QUINTA: La única forma de entender “Un Estatuto” aplicable a todo el Estado es entenderlo como “Un régimen”: La única forma de interpretar correctamente el texto constitucional cuando dice “Un estatuto” lo es en el sentido de entender que existe un solo régimen estatutario, con principios y normas propias, distintas al derecho privado, para resguardar la idoneidad y la estabilidad, pero no para someter a todo el aparato estatal, por encima del principio de independencia de poderes y de las limitaciones de la tutela administrativa, a una serie de normas provenientes de un solo cuerpo normativo. Un solo régimen estatutario, que garantice los principios de idoneidad y estabilidad en todo el régimen de empleo de todo el aparato estatal, es algo muy distinto a centralizar en un solo cuerpo normativo, que le da todas las competencias y potestades en la materia de empleo público a un órgano del Poder Ejecutivo. Pues entenderlo así es totalmente contrario a la intención del Constituyente de despolitizar el empleo público. Es claro que en la mente del constituyente estaba la idea de que NO todos los servidores públicos podrían estar cubiertos por un solo cuerpo normativo, y menos, un cuerpo normativo manejado y centralizado por el Poder Ejecutivo.

-SEXTA: Régimen de autonomías establecido por el Constituyente para evitar la concentración de poder.- El Constituyente de 1949 estableció un sistema de división de poderes y un régimen de autonomías como base de nuestro Derecho de la Constitución. Todo ello quedó plasmado en diferentes artículos del texto constitucional vigente. El principio de separación de poderes (art.9 Constitucional), la autonomía de gobierno de las Municipalidades (art.170), la autonomía de gobierno de la Caja Costarricense del Seguro Social (art. 73), la autonomía plena de las universidades públicas (art. 84 y 85), la autonomía de las instituciones autónomas (art.188). Al respecto el diputado Rodrigo Facio Brenes fue claro al manifestar en el seno de la Asamblea Nacional Constituyente que: “(…) lo que busca el régimen de las autonomías es descentralizar las funciones económicas fundamentales del Estado en términos tales que el crecimiento administrativo propio del mundo moderno no implique una extensión correspondiente del poder político del Ejecutivo. La tesis según la cual el Presidente, o el Ejecutivo, deben tener todas las atribuciones en última instancia; la teoría según la cual el Presidente debe ejercer la jerarquía única de la Administración, esa es la teoría estatista o totalitarizante [sic]; la de las autonomías, la que busca multiplicar los jerarcas para evitar la concentración de poder y de recursos, es la tesis democrática. (…)” (Acta N°166, 13/X/1949, p.5). Todo lo cual se complementa además, con un régimen de descentralización del poder y de despolitización del empleo público, lo cual es incompatible con un solo cuerpo normativo centralizando competencias en el Poder Ejecutivo.

Por lo demás, considero necesario realizar estas dos reflexiones adicionales frente a la Independencia de Poderes y al régimen de autonomías:

-SETIMA: La exclusión de Poderes opera tanto para el Poder Ejecutivo como para el Poder Legislativo.- En el caso concreto del Poder Judicial, existe un ámbito vedado para el Poder Ejecutivo, pero también para el Poder Legislativo. No comparto los argumentos que se indican en el considerando general de esta sentencia, en el sentido de que, “no hay un compartimento o un área de exclusión a la ley en lo que atañe a las competencias exclusivas y excluyentes de la Corte Suprema de Justicia, del Tribunal Supremo de Elecciones, de las Universidades del Estado y de las municipalidades.” Todo lo contrario, en lo que atañe a las competencias exclusivas y excluyentes de la Corte Suprema de Justicia, del Tribunal Supremo de Elecciones, de las Universidades del Estado, de la CCSS y de las municipalidades, SI hay un área de exclusión, pero no solo del Ejecutivo, sino también del Legislador. El Poder Ejecutivo, a través de Mideplán, no podría operar nunca como un jerarca respecto de los Departamentos de Recursos Humanos de la Corte Suprema de Justicia, del Tribunal Supremo de Elecciones, de las Universidades del Estado, de la CCSS y de las municipalidades. Pero además, tampoco el Poder Legislativo, por medio del ejercicio de su potestad legislativa, podría nunca incursionar en aspectos de las competencias internas de esas mismas instituciones. Lo anterior, en virtud de los alcances de protección que tiene el principio constitucional de separación de poderes y de la descentralización administrativa. Así por ejemplo, no podría el legislador dictar normas para indicarle a la Corte Suprema de Justicia, cuáles parámetros seguir y cuáles no en el proceso de selección, reclutamiento, evaluación, salarios, despido, entre otros. Puede establecer lineamientos generales que atiendan al contenido de las normas constitucionales (idoneidad, estabilidad en el empleo, eficiencia, transparencia, control de cuentas), pero no puede incursionar en el cómo debe proceder el Poder Judicial a operacionalizar todos esos aspectos, que son del ámbito de su independencia administrativa. Considero que resulta inadmisible, desde la óptica constitucional, la emisión de normas legales (Poder Legislativo) en relación con las competencias internas del resto de Poderes del Estado. En síntesis, así como resulta inadmisible que el Poder Ejecutivo ejerza un poder de jerarquía, de dirección, de reglamentación interna sobre los poderes del Estado, las universidades del Estado, la CCSS y las municipalidades; asimismo resulta inadmisible que el Poder Legislativo emita leyes que contengan normas que le ordenen a los otros Poderes del Estado o a los entes descentralizados, la forma en cómo proceder con sus competencias.

-OCTAVA: Hay un ámbito de exclusión del Poder Legislativo y del Ejecutivo respecto de CUALESQUIERA de las competencias: Respecto de cualesquiera de las competencias de la Corte Suprema de Justicia, del Tribunal Supremo de Elecciones, de las Universidades del Estado, de la CCSS y de las municipalidades, opera un ámbito de exclusión para el Poder Legislativo y para el Poder Ejecutivo. No comparto la tesis de la mayoría de dividir las competencias de un Poder de la República entre competencias exclusivas y competencias no exclusivas, como si solo se pudiera hablar del principio de separación de poderes en las primeras y no en las segundas. Claramente, en cualesquiera de las competencias asignadas a un Poder de la República, ningún otro puede intervenir. Considero que esas divisiones ponen en peligro los fundamentos de un Estado de Derecho, de considerar que, en las denominadas “competencias no exclusivas ni excluyentes” entonces sí puede haber interferencia de un Poder sobre otro. Nada más peligroso y alejado de lo que debe considerarse como el principio de separación de poderes. En este sentido, proceder a diseccionar, desmembrar, dividir o diferenciar los servicios que presta cada Poder de la República entre: servicios exclusivos y excluyentes, y servicios administrativos auxiliares, para permitir la injerencia de Poderes en estos últimos, es una distorsión odiosa a los fundamentos más básicos de nuestro Estado de Derecho. Sería tanto como admitir que, no se admite que un Poder pueda ingresar “todo su brazo” sobre otro Poder, pero si se admite el ingreso de “una mano de ese brazo”, que en este caso sería justamente esos servicios administrativos auxiliares. Injerencia es injerencia, mucha o poca, pero finalmente es injerencia. Conforme al artículo 16 de la Declaración de derechos del hombre y del ciudadano:

“Una Sociedad en la que no esté establecida la garantía de los Derechos, ni determinada la separación de los Poderes, carece de Constitución. “ En este sentido, dejaríamos de tener una Constitución si se admitiese una atenuación al principio de separación de Poderes. Claramente nuestro artículo 9 Constitucional indica que el Gobierno de la República “lo ejercen el pueblo y tres Poderes distintos e independientes entre sí. El Legislativo, el Ejecutivo y el Judicial.” Así, los tres Poderes de la República son distintos e independientes. No puede haber independencia si un Poder tiene injerencia sobre otro, aún cuando esa injerencia sea solo respecto de los denominados “servicios administrativos auxiliares”. Este sería el caso entonces de que Mideplán pueda tener injerencia sobre los “servicios administrativos auxiliares” del Poder Judicial. Ya lo decía en la Constituyente (acta n°88) el Diputado ESQUIVEL cuando expresó que “el concepto clásico de la independencia de los Poderes constituye un equilibrio entre los distintos organismos del Estado. Además viene a ser una garantía para los ciudadanos.” No se trata entonces de la defensa de un fuero especial del Poder Judicial, por ejemplo, sino de la defensa de la verdadera independencia de Poderes como una garantía para los ciudadanos, para la Constitución y para el Estado de Derecho. Estoy de acuerdo en que, no es inconstitucional que el legislador someta a toda la Administración Pública a una ley marco de empleo público, pero únicamente en cuanto a principios y lineamientos generales y además, como lo dice el considerando general, “siempre y cuando observe rigurosamente los principios de separación de poderes y no vacíe de contenido los grados de autonomía que el Derecho de la Constitución le otorgan a las universidades del Estado, a la CCSS y a las municipalidades.” Pero este condicionamiento se vacía de contenido si se aceptara que, en materia de empleo público, Mideplán (órgano del Poder Ejecutivo) pudiera tener injerencia, competencias, decisión y jerarquía sobre los “servicios administrativos auxiliares” de la Corte Suprema de Justicia, del Tribunal Supremo de Elecciones, de las Universidades del Estado, de la CCSS y de las municipalidades. Aún cuando el considerando general indique que es cada poder del Estado y cada ente quien define cuáles son esos “servicios administrativos auxiliares”, ello no elimina el hecho de que se trataría de una especie de “injerencia consentida”, y por tanto, siempre “injerencia”. En este punto, no se entiende cómo podría ello ser operacionalizado en la práctica, pues puede perfectamente entonces, el Poder Judicial indicar que no tiene servicios administrativos auxiliares, sino que todos los servicios son de su competencia exclusiva y excluyente, y de esa manera, vetar la intervención del Mideplán sobre esos servicios. Por lo demás, debe hacerse notar que, el Poder Judicial por ejemplo, no podría desarrollar todas sus funciones si no contara con todo el personal que tiene, en todas las áreas y con total independencia, pues cada persona, desde el más humilde de los puestos hasta el más alto en la escala jerárquica, son parte de un engranaje que hace que la institución pueda realizar cada día sus funciones y prestar los servicios constitucionalmente asignados.

En síntesis, considero que el Constituyente, al hacer referencia a un Estatuto de Servicio Civil se estaba refiriendo a un régimen general de Derecho Público, con sus dos pilares fundamentales (idoneidad y estabilidad), pero no a un solo marco normativo. De querer el legislador la existencia de una sola ley para regular el empleo público estaría limitado a regular únicamente aspectos generales de los artículos 191 y 192, pero no, como se intentó hacer con el proyecto de ley en consulta, incursionando en aspectos que son de competencia de los distintos Poderes del Estado y de los entes descentralizados. Por lo demás, para la real vigencia del principio constitucional de separación de Poderes, le está completamente vedado a cada Poder de la República incursionar en las competencias de otro Poder, aún cuando se trate de competencias que se consideren “servicios auxiliares administrativos”.

IX.- Sobre la consulta de violación a la independencia judicial.- 1) Aspectos consultados Los consultantes diputados consideran que los siguientes artículos del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, son violatorios del principio de independencia judicial y por tanto de los artículos 9, 154 y 156 de la Constitución Política, el art.10 de la Declaración Universal de Derechos Humanos, el art.14 del Pacto Internacional de Derechos Civiles y Políticos y el art.8 de la Convención Americana de Derechos Humanos. En concreto, consultan sobre los artículos indicados, sea en el encabezado del título general o en el resto del texto del escrito de interposición:

· 2.a (ámbito de cobertura), · 6.b (rectoría de Mideplan), · 7 (competencias de Mideplan), · 9.a (oficinas de Recursos Humanos), · 12 (base de datos) · 13 (familias de puestos), · 14 (reclutamiento y selección), · 15 (postulados de reclutamiento y selección) · 17 (personal de Alta Dirección), · 18 (plazo de prueba y plazo de nombramiento), · 19 (movilidad o traslados) · 21 (régimen único de despido), · 22 (proceso de despido), · 31 (metodología de trabajo) · 49 incisos a, b, g y h (reforma a normativa).

En primer lugar, sobre los artículos 12 (base de datos), 13.h (familia de puestos de confianza), 15 (postulados de reclutamiento y selección), 19 (movilidad o traslados), y 31 (metodología de trabajo), dado que no se realiza la fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, se declara inevacuable la consulta por falta de fundamentación. Observa la Sala que a pesar de lo que señalaron en la consulta, lo cierto del caso es que no lo fundamentaron de manera adecuada y con esa omisión, no le permiten a este Tribunal tener certeza sobre cuál es el cuestionamiento que plantean y los motivos por los cuales pudieron estimar que tales normas, eventualmente, podrían tener problemas de constitucionalidad en general o bien, en concreto, en relación con el Poder Judicial y el Tribunal Supremo de Elecciones. Sobre el particular, debe recordarse lo que dispone el artículo 99 de la Ley de la Jurisdicción Constitucional, el cual dice:

"Artículo 99.- Salvo que se trate de la consulta forzosa prevista en el inciso a) del artículo 96, la consulta deberá formularse en memorial razonado, con expresión de los aspectos cuestionados del proyecto, así como de los motivos por los cuales se tuvieren dudas u objeciones sobre su constitucionalidad." Frente a ese panorama, al no contar la Sala con mayores elementos para realizar el análisis de este numeral, lo que procede es, por unanimidad, declarar inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en cuanto a los artículos 12 (base de datos), 13.h (familia de puestos de confianza), 15 (postulados de reclutamiento y selección), 19 (movilidad o traslados), y 31 (metodología de trabajo), por falta de fundamentación de lo consultado, respecto del Poder Judicial y del Tribunal Supremo de Elecciones. Así entonces, debe entenderse que esta Sala omite realizar pronunciamiento alguno sobre la constitucionalidad o no de estas normas.

Ahora bien, sobre el resto de normas, los consultantes las consideran inconstitucionales por cuanto pretenden someter al Poder Judicial a las disposiciones que dicte el Ministerio de Planificación Nacional y Política Económica (Mideplán) y a la Dirección General del Servicio Civil, en materia de empleo público. Indican que el proyecto permite que un órgano del Poder Ejecutivo se meta en la gestión del empleo del Poder Judicial, incluso dictando resoluciones o circulares (art.7). Permitiendo intromisiones que van más allá de lo puramente administrativo o salarial. Consideran que es evidente la violación a los principios de separación de poderes, autonomía e independencia del Poder Judicial. Indican que, el proyecto violenta el principio de separación de poderes, la autonomía e independencia del Poder Judicial, los principios de legalidad, seguridad, proporcionalidad y razonabilidad, por cuanto pretende regular las relaciones de empleo entre las personas servidoras y el Poder Judicial (art.2.a), sometiéndole a la aplicación del Estatuto de Servicio Civil según la reforma al art.1 de su cuerpo legal (art.49.B), al incluir al Departamento de Gestión Humana de ese Poder a la rectoría de Mideplán (art.6), quedando obligado a aplicar y ejecutar las disposiciones de alcance general, directrices y reglamentos en relación con la planificación del trabajo, las gestiones de empleo, de rendimiento, de compensación y de relacionales laborales que emita Mideplán (art.9), al establecer un único régimen de empleo público del cual formarán parte las personas que administran justicia (art.13), al disponer el reclutamiento y selección del personal del Poder Judicial de acuerdo a disposiciones de alcance general, directrices, reglamentos, circulares, manuales y resoluciones de Mideplán a cada familia de puestos (art.14), al igual que para el personal de alta dirección técnica para el cual dispone de 6 meses de periodo de prueba y 6 años de nombramiento (art.17 y 18), con posibilidad de prórroga anual sujeta a la evaluación de desempeño, y la sujeción de los órganos del Poder Judicial cuyas competencias están asignadas en el Estatuto de Servicio Judicial y la Ley de Salarios del Poder Judicial, de coordinar todo concerniente al empleo público con Mideplán en su condición de órgano rector. Además, del establecimiento de un único procedimiento de despido cuando ya se tiene uno regulado en la normativa especial (art.21 y 22) .

Así entonces se procede al examen de los artículos indicados. Realizándose de previo, un resumen jurisprudencial sobre el tema de independencia judicial, el cual servirá de contexto para el examen de cada artículo consultado.

• 2)Antecedentes Jurisprudenciales sobre el Principio Constitucional de separación de poderes y el principio constitucional de independencia judicial Para comprender lo trascendental que resulta el tema de la independencia judicial para un Estado de Derecho como el nuestro, se debe partir de otro principio básico en todo sistema democrático, el principio de separación de poderes. Desde la Declaración de derechos del hombre y el ciudadano de 1789, en el artículo 16, se indica lo siguiente:

“Artículo 16.- Una Sociedad en la que no esté establecida la garantía de los Derechos, ni determinada la separación de los Poderes, carece de Constitución. “ Lo cual quiere decir que, uno de los dos pilares fundamentales para la existencia verdadera de una Constitución, es el resguardo del principio de separación de poderes. Según reiterada jurisprudencia constitucional sobre este principio, el Gobierno de la República lo ejercen el pueblo y tres Poderes distintos e independientes entre sí: El Legislativo, el Ejecutivo y el Judicial. Consagrado en el artículo 9 de la Constitución Política y se erige en “uno de los pilares fundamentales del Estado Democrático, en tanto establece un sistema de frenos y contrapesos que garantiza el respeto de los valores, principios y normas constitucionales en beneficio directo de los habitantes del país.” (sentencia n°2006-013708). Desde la sentencia n°6829-1993 se indicó que, la teoría de la separación de Poderes se interpreta como la necesidad de que cada Órgano del Estado ejerza su función con independencia de los otros (artículo 9 de la Constitución Política). Si bien no pueden darse interferencias o invasiones a la función asignada, necesariamente deben producirse colaboraciones entre Poderes. En la actualidad, la doctrina y la práctica constitucionales afirman que lo conveniente es hablar de una separación de funciones, es decir, de la distribución de ellas entre los diferentes órganos estatales. Propiamente sobre la independencia del Poder Judicial y la independencia de los jueces existe también abundante jurisprudencia de esta Sala. En general, se ha afirmado que, en los regímenes políticos democráticos, el principio de independencia del juez, en particular, y del Poder Judicial, en general, tiene un valor fundamental porque sobre él descansan la legitimidad del juez y la imparcialidad de la decisión judicial. Se ha indicado que resulta toral para el adecuado funcionamiento del Estado democrático de Derecho –entendido bajo su postulado de primacía del derecho– que la función jurisdiccional pueda ejercerse sin presiones indebidas, en el seno de un Poder Judicial verdaderamente independiente. Principio que, en el caso costarricense, no solo tiene debido sustento constitucional, sino que en múltiples instrumentos internacionales se contempla. Esta Sala ha resaltado desde sus inicios la importancia de la independencia judicial al reafirmar que la administración de justicia es una competencia exclusiva del Poder Judicial (ver sentencia n°1991-0441 y 1994- 2358, 1996-6989, 1999-4555, 2006-7965). La Corte Interamericana de Derechos Humanos –órgano jurisdiccional del Sistema Interamericano de Protección- ha determinado:

“(…) uno de los objetivos principales que tiene la separación de los poderes públicos es la garantía de la independencia de los jueces” (Corte IDH. Caso del Tribunal Constitucional vs. Perú. Fondo, Reparaciones y Costas. Sentencia de 31 de enero de 2001 Serie C No. 71, párr. 73).

Asimismo ha indicado que “Dicho ejercicio autónomo debe ser garantizado por el Estado tanto en su faceta institucional, esto es, en relación con el Poder Judicial como sistema, así como también en conexión con su vertiente individual, es decir, con relación a la persona del juez específico. El objetivo de la protección radica en evitar que el sistema judicial en general y sus integrantes en particular se vean sometidos a posibles restricciones indebidas en el ejercicio de su función por parte de órganos ajenos al Poder Judicial o incluso por parte de aquellos magistrados que ejercen funciones de revisión o apelación. Adicionalmente, el Estado está en el deber de garantizar una apariencia de independencia de la magistratura que inspire legitimidad y confianza suficiente no sólo al justiciable, sino a los ciudadanos en una sociedad democrática”. (Corte IDH. Caso Apitz Barbera y otros “Corte Primera de lo Contencioso Administrativo” vs. Venezuela. Excepción Preliminar, Fondo, Reparaciones y Costas. Sentencia de 5 de agosto de 2008. Serie C No. 182, párr. 55.).

En la sentencia n°1999-1807 se indicó el fundamento constitucional y convencional del principio de independencia judicial, resaltándose la independencia externa (del Poder Judicial como órgano) y la interna (la del juez):

“VIII.- La independencia del Poder Judicial se encuentra garantizada constitucionalmente en los artículos 9 y 154. También la Convención Americana sobre Derechos Humanos, normativa de rango internacional de aplicación directa en nuestro país se refiere al tema. La Convención Americana sobre Derechos Humanos establece la independencia del juez como un derecho humano, al disponer en el artículo 8.1 que: «1.- Toda persona tiene derecho a ser oída, con las debidas garantías y dentro de un plazo razonable, por un juez o tribunal competente, independiente e imparcial, establecido con anterioridad por la ley, en la sustanciación de cualquier acusación penal formulada contra ella, o para la determinación de sus derechos y obligaciones de orden civil, laboral o de cualquier otro carácter. 2.- ...» La independencia del Órgano Judicial se plantea hacia lo externo. El Órgano Judicial es independiente frente a los otros Poderes del Estado, no así el juez cuya independencia debe ser analizada de una forma más compleja. Pero cuando se asegura que un Poder Judicial es independiente, lo mismo se debe predicar de sus jueces, pues éstos son los que deben hacer realidad la función a aquél encomendada. La independencia que verdaderamente debe interesar -sin restarle importancia a la del Órgano Judicial- es la del juez, relacionada con el caso concreto, pues ella es la que funciona como garantía ciudadana, en los términos de la Convención Americana sobre Derechos Humanos. La independencia efectiva del Poder Judicial coadyuva a que los jueces que lo conforman también puedan serlo, pero bien puede darse que el Órgano como un todo tenga normativamente garantizada su independencia, pero que sus miembros no sean independientes, por múltiples razones” (citado en los votos n° 2006-15252, 2008-9495, 2008-16529).

Sobre la relación entre independencia del juez y el principio de imparcialidad, en el voto n°1998-2378 se indicó: “La independencia e imparcialidad del juez constituyen conceptos relacionados entre sí y son indudablemente principios constitucionales en un régimen político como el nuestro. La independencia determina que el juez esté solo sometido a la Constitución y a la Ley y la imparcialidad significa que para la resolución del caso el juez no se dejará llevar por ningún otro interés fuera del de la aplicación correcta de la ley y la solución justa del caso”.

De la independencia judicial como una garantía para los jueces y un derecho fundamental (garantía para las partes del proceso), en la sentencia n°1998-5795 se dispuso: “De lo dispuesto en el artículo 154 de la Constitución Política, que dice: “El Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos” deriva el principio de la independencia del Poder Judicial, el cual comprende tanto al órgano o institución como un todo, como al Juez en el conocimiento de los asuntos que le son sometidos a su juicio. En relación con este funcionario, también debe reconocerse que existe una doble protección a su investidura, ya que la independencia del juez -como garantía de las partes involucradas en el asunto sub judice- es hacia lo externo y lo interno, en el sentido de que se le protege de las influencias e incidencias -tanto externas como internas-, que pueda tener en uno u otro sentido en la decisión de un caso concreto sometido a su conocimiento, para que fallen con estricto apego a lo dispuesto en la normativa vigente; en otros términos, se protege al juez para que ni las partes que intervienen en el proceso, terceros, jueces superiores en grado, miembros “influyentes” de los Poderes del Estado, aún el Judicial, puedan, influir en su decisión, por lo que mucho menos cabría, la obligación -impuesta por parte del superior en grado- de fallar en una determinada manera un caso concreto o coaccionar al juzgador en ese sentido. La garantía de independencia de los jueces más que una garantía para estos funcionarios -que efectivamente si lo es-, constituye una garantía para los particulares (partes del proceso), en el sentido de que sus casos se decidirán con apego estricto a la Constitución y las leyes”.

De lo cual se desprende que, en la definición de Independencia Judicial se incluyen los siguientes dos tipos:

• Independencia judicial externa: se refiere a la existencia de un conjunto de garantías que pretenden evitar que una Corte sea controlada por otros órganos gubernamentales, como los poderes Ejecutivo y Legislativo. Es la relación del Poder Judicial con otros actores del sistema político. En este sentido el sistema de administración de justicia es autónomo en tanto dependa de él mismo y no de otros poderes. Independencia externa es la ausencia de presiones o influencias externas que hagan vulnerable a la institución, como resultado de amenazas a la disponibilidad de recursos que le permitan desarrollar su labor con autonomía, a la estabilidad laboral y las posibilidades de ascenso de sus funcionarios, a su integridad y patrimonio, y a sus capacidades de infraestructura para atender las demandas ciudadanas.

• Independencia judicial interna: tiene que ver con la habilidad de los jueces de dictar sentencias sin miedo a represalias.

La “independencia de ejercicio” (el hecho de que un juez resuelva un conflicto libre de injerencias impropias) se convierte en “independencia estructural” (el conjunto de garantías formales y condiciones estructurales que protegen al juez y al Poder Judicial de cualquier tipo de intervención o control). En el voto n°2001-6632 se enfatizó en la importancia y rango constitucional del principio de independencia del Poder Judicial, además como derecho de los ciudadanos, al indicarse: “Nadie puede hoy restar el valor trascendental que desempeña en el real funcionamiento del Estado democrático de derecho, la independencia de los jueces. Está claramente aceptado que más que un principio, y todavía más allá de lo que pudiera señalarse como un privilegio otorgado al Juez, estamos ante el derecho de los ciudadanos a contar con jueces independientes”. Posteriormente, en la sentencia n°2015-15726 se recalca el principio de independencia judicial, además como un valor fundamental del régimen democrático: “III.- ACERCA DEL PRINCIPIO DE INDEPENDENCIA DEL JUEZ. Dentro de los regímenes políticos democráticos, el principio de independencia del juez, en particular, y del Poder Judicial, en general, tiene un valor fundamental porque sobre él descansan la legitimidad del juez y la imparcialidad de la decisión judicial”. También se puede mencionar la sentencia n° 2000-5493 donde se indicó que la independencia del Poder Judicial se traduce, en materia económica y por la inamovilidad de su personal, así como, en lo funcional, por la posibilidad real de tomar sus decisiones de acuerdo con criterios propios y no como resultado de presiones procedentes de determinados grupos, instituciones o personas:

“En cuanto al principio de independencia judicial, debemos señalar que constitucionalmente este principio deriva del artículo 153 de la Constitución Política que señala: "Corresponde al Poder Judicial además de las funciones que esta Constitución le señala, conocer de las causas civiles, penales, comerciales, de trabajo y contencioso-administrativas así como de las otras que establezca la ley, cualquiera que sea su naturaleza y la calidad de las personas que intervengan; resolver definitivamente sobre ellas y ejecutar las resoluciones que pronuncie, con la ayuda de la fuerza pública si fuere necesario." El artículo 154 constitucional, en este mismo sentido indica: "El Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos." El marco jurídico establecido constitucionalmente relacionado con la independencia judicial se ve complementado por los artículos 1 a 8 al de la Ley Orgánica del Poder Judicial que desarrollan los presupuestos constitucionales. Debemos hacer referencia además de los artículos 162 al 173 de la Ley Orgánica del Poder Judicial que hacen mención de la jurisdicción y competencia de los jueces, en especial interesa citar los siguientes: “Artículo 162. La facultad de administrar justicia se adquiere con el cargo al que está anexa y se pierde o suspende para todos los negocios cuando, por cualquier motivo, el juez deja de serlo o queda suspendido temporalmente en sus funciones." "Artículo 165. Todo juez tiene limitada su competencia al territorio y a la clase de asuntos que le estén señalados para ejercerla; las diligencias que los procesos de que conozca exijan se hagan en el territorio de otro juez, sólo podrán practicarlas por medio de éste, salvo autorización legal en contrario. El juez sólo podrá conocer de los asuntos no sometidos a su competencia, cuando le fuere legalmente prorrogada o delegada. Tomando en consideración el marco jurídico anterior esta Sala considera que el principio de independencia del juzgador podría definirse como aquella potestad dada por la Constitución y la ley por medio de la cual el juez, cumpliendo en su ámbito competencial y jurisdiccional ejerce el poder que le ha sido delegado por el Estado de resolver un conflicto planteado por los particulares o por la misma Administración. Este principio va ligado directamente a los principios de unidad y monopolio de la jurisdicción, así como de imparcialidad y competencia.

La independencia judicial se manifiesta en diversos planos, en el plano externo, se traduce por la autonomía del Poder Judicial en materia económica y por la inamovilidad de su personal, así como, en lo funcional, por la posibilidad real de tomar sus decisiones de acuerdo con criterios propios y no como resultado de presiones procedentes de determinados grupos, instituciones o personas. Ahora bien, en el plano interno, la independencia consiste en la autonomía de que deben gozar en sus decisiones las instancias judiciales inferiores con respecto a las de rango superior. Además, en un Estado Democrático y de Derecho como el nuestro, la otra cara de la independencia es la responsabilidad del personal judicial, así como el control sobre sus actividades. Sobre el contenido y naturaleza de la independencia judicial interna el aparato judicial supone, que los tribunales inferiores gozan de autonomía en sus decisiones jurisdiccionales con respecto a los de rango superior. Sin embargo, legalmente no constituye una violación a este principio la existencia de los recursos tradicionalmente previstos por la ley (apelación, revisión, casación y otros), a menos que sean utilizados en forma irregular”.

Todo lo anterior, se contempla en las siguientes fuentes, algunas de las cuales, no son normas vigentes en Costa Rica, pero son documentos que reflejan una clara doctrina sobre el tema:

• Constitución Política. Art. 9 (independientes), 154 (“El Poder Judicial sólo está sometido a la Constitución y a la ley…”) y 177 (autonomía financiera).

• El art.8.1 de la Convención Americana de Derechos Humanos (“por un juez o tribunal competente, independiente e imparcial”).

• “Principios básicos relativos a la independencia de la judicatura”, adoptados por el Séptimo Congreso de las Naciones Unidas sobre Prevención del Delito y Tratamiento del Delincuente, celebrado en Milán del 26 de agosto al 6 de septiembre de 1985, y confirmados por la Asamblea General en sus resoluciones 40/32 de 29 de noviembre de 1985 y 40/146 de 13 de diciembre de 1985, en el principio 11.

• “Carta Europea sobre el Estatuto de los Jueces”, adoptada en Estrasburgo, entre el 8 y el 10 de julio de 1998, párrafos 6.1 y 6.4.

• “Estatuto del Juez Iberoamericano”, aprobado en la VI Cumbre Iberoamericana de Presidentes de Cortes Supremas y Tribunales Supremos de Justicia, celebrada en Santa Cruz de Tenerife, Islas Canarias, España, los días 23, 24 y 25 de mayo de 2001, en el artículo 32 (“Art. 32. Remuneración. Los jueces deben recibir una remuneración suficiente, irreductible y acorde con la importancia de la función que desempeñan y con las exigencias y responsabilidades que conlleva”) • El Informe N° 1 del 23 de noviembre del 2001, rendido por el Consejo Consultivo de Jueces Europeos (CCJE), al examinar el tema de la independencia e inamovilidad de los jueces. Con respecto al tema de los salarios de los jueces.

• El Estatuto de Justicia y Derechos de las Personas Usuarias del Sistema Judicial, aprobado por la Corte Plena, en cuyos artículos 19, 20, 21, 22, 23 y 24, se hace referencia a la independencia del Poder Judicial y de los jueces. El artículo 49, del citado Estatuto, consagra también, al igual que los instrumentos internacionales examinados, el principio del salario irreductible del juez.

Por otra parte, además de lo dicho sobre la temática de empleo público, debe indicarse que los principios básicos derivados de los artículos 191 y 192 de la Constitución Política no son ajenos al Poder Judicial. Así, por ejemplo, la Sala ha remitido expresamente a los principios derivados de tales numerales al resolver sobre el sistema de nombramiento en el Poder Judicial (voto n°2001-05694). Lo que debe complementarse, necesariamente, con lo dispuesto por el artículo 156 de la Constitución Política, que, respecto del Poder Judicial, establece:

“ARTÍCULO 156.- La Corte Suprema de Justicia es el tribunal superior del Poder Judicial, y de ella dependen los tribunales, funcionarios y empleados en el ramo judicial, sin perjuicio de lo que dispone esta Constitución sobre servicio civil.” Ahora bien -y en lo que interesa a esta consulta-, debe indicarse que existen varios precedentes de la Sala en que, expresamente, se entiende como plenamente justificado que en el caso específico del Poder Judicial tenga una regulación especial, separada y diferenciada -aunque, sujeta a los principios constitucionales fundamentales que prevén los artículos 191 y 192-. Se puede citar, en primer lugar, el voto n°550-1991, que indica:

“(…) en el caso de los poderes, su propia independencia constitucional, garantizada en general por el artículo 9° de la Constitución y, en los del Poder Judicial y del Tribunal Supremo de Elecciones por las de los artículos 99 y siguientes, 152 y siguientes y 177 de la misma, así como sus propias normas orgánicas, imponen a sus jerarcas la atribución y la responsabilidad de fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos, dentro, naturalmente, de sus disponibilidades presupuestarias, independientemente, desde luego, de que sus montos puedan coincidir o no con los de los diputados.” Luego, en el voto n°01472-1994, la Sala indicó que, en efecto, los artículos 191 y 192 de la Constitución Política fundamentan la existencia de “un régimen de empleo regido por el Derecho Público, dentro del sector público”, con “principios generales propios”, por lo que “las relaciones laborales existentes entre el Estado y sus servidores deben concebirse como un todo, regulado por principios, disposiciones y políticas generales, sin distinción, salvo las excepciones expresamente contempladas por la ley, respecto de los centros funcionales de los que dependan aquellos servidores”. Ahora bien, en ese mismo voto, se agregó:

“(…) ha establecido esta Sala que no resulta posible la equiparación, indiscriminada, de remuneraciones entre los miembros de los poderes públicos, pues el imponer un tratamiento igual a situaciones o funcionarios que se encuentran objetivamente en circunstancias de desigualdad, quebrantaría, en general, el principio de igualdad y específicamente en materia de salarios y condiciones de trabajo, el 57 de la Constitución, habida cuenta de no ser los mismos requisitos, limitaciones, prohibiciones o condiciones de ejercicio del cargo de los funcionarios o empleados del ejecutivo con los de los miembros de los demás poderes u órganos constitucionales. En efecto, el principio de igualdad ante la ley no es de carácter absoluto, pues no concede un derecho a ser equiparado a cualquier individuo, sino más bien a exigir que la ley no haga diferencias entre dos o más personas que se encuentren en una misma situación jurídica o en condiciones idénticas, o sea que no puede pretenderse un trato igual cuando las condiciones o circunstancias son desiguales.” Por otra parte, sobre la excepción del Poder Judicial al régimen único de empleo y a política salarial como política de gobierno, en la sentencia n°1994-3309, la Sala expresó:

“VII.- Definida la política salarial como parte de la política de gobierno, es necesario reiterar que cuando el constituyente descentralizó el Poder Ejecutivo, procuró evitar las injerencias arbitrarias y antitécnicas en cuanto a la gestión de cada una de esas instituciones, definida por ley. Pero no optó el legislador constituyente por crear un régimen salarial o laboral segregado del Poder Ejecutivo central, pues no hay duda que el Título XV, Capítulo Unico de la Constitución Política tiene como antecedente inmediato, la práctica anterior de destituir masivamente a los funcionarios y empleados estatales con ocasión de cada cambio de gobierno. La antítesis de esta práctica entonces es un sistema de servicio público estable, profesional, permanente, regido por un cuerpo normativo integrado y coherente, estableciéndose un régimen único de empleo para los servidores públicos que incluye a la totalidad de las instituciones del Estado, con la excepción hecha del artículo 156 de la Carta Magna en cuanto al Poder Judicial”.

Mientras que, en el voto n°1996-03575, la Sala señaló que el órgano estatal competente en materia de empleo público es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particulares condiciones:

“(…) De la jurisprudencia citada se desprende además de la existencia del Régimen de Empleo Público, que el legislador ordinario al desarrollar en la práctica los artículos 191 y 192 de la Constitución Política, no lo hizo mediante la promulgación de una única ley sino que lo hizo mediante la aprobación de varias leyes relacionadas con el tema en cuestión, y ejemplo de ello es el Estatuto de Servicio Civil, el cual es una legislación parcial que le es aplicable únicamente a los servidores del Poder Ejecutivo. En este orden de ideas y de conformidad con el artículo 9 Constitucional, en relación al principio de separación de poderes, interpretado por esta Sala en sentencia N°6829-93 de las ocho y treinta y tres horas del veinticuatro de diciembre de mil novecientos noventa y tres, como una separación de funciones al disponer:

"II.- LA TEORIA DE LA SEPARACION DE PODERES. La teoría de la separación de Poderes tradicionalmente se interpreta como la necesidad de que cada Órgano del Estado ejerza su función con independencia de los otros (artículo 9o.de la Constitución Política). Si bien no pueden darse interferencias o invasiones a la función asignada, necesariamente deben producirse colaboraciones entre Poderes. En la actualidad, la doctrina y la práctica constitucionales afirman que no existe absoluta separación, aún más, nada impide que una misma función - no primaria- sea ejercida por dos Poderes o por todos, razón por la que no se puede hablar de una rígida distribución de competencias en razón de la función y la materia. El Estado es una unidad de acción y de poder, pero esa unidad no existiría si cada Poder fuere un organismo independiente, aislado, con amplia libertad de decisión, por lo que en realidad no se puede hablar de una división de Poderes en sentido estricto; el Poder del Estado es único, aunque las funciones estatales sean varias. Lo conveniente es hablar de una separación de funciones, es decir, de la distribución de ellas entre los diferentes órganos estatales. Esta separación de funciones parte del problema técnico de la división del trabajo: el Estado debe cumplir ciertas funciones y éstas deben ser realizadas por el órgano estatal más competente..." Además, y para mayor abundamiento esta Sala en sentencia número 990-92 de las dieciséis horas treinta minutos del catorce de abril de mil novecientos noventa y dos, dispuso: "Segundo: La positivación del " principio democrático" en el artículo 1° de la Constitución, constituye uno de los pilares, el núcleo vale decir, en que se asienta nuestro sistema republicano y en ese carácter de valor supremo del Estado Constitucional de Derecho, debe tener eficacia directa sobre el resto de fuentes del ordenamiento jurídico infraconstitucional y obviamente sobre el Reglamento, de donde se sigue que la potestad del parlamento para dictar las normas de su propio gobierno interno( interna corporis), no sólo está prevista por la Constitución Política en su artículo 121 inciso 22, sino que es consustancial al sistema democrático y específica de la Asamblea Legislativa como poder constitucional, a tenor del Título IX de la Carta Fundamental..." Así, aplicado el anterior principio a la materia en estudio, sea el Régimen del Empleo Público, es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones.” Lo anterior no óbice, para que se incluya dentro de una Ley de Empleo Público al Poder Judicial, tal como se ha explicado supra, en el considerando general de esta sentencia.

Luego, en el voto n°1999-919, este Tribunal conoció la consulta de constitucionalidad formulada respecto del entonces proyecto de Ley de Administración Financiera de la República y Presupuesto Públicos, que, incluso, contenía -y contiene- una norma análoga a la introducida en el proyecto ahora en consulta, la cual dice:

"Artículo 1.- Ámbito de aplicación La presente ley regula el régimen económico-financiero de los órganos y entes administradores o custodios de los fondos públicos. Será aplicable a:

(…)

• b)Los Poderes Legislativo y Judicial, el Tribunal Supremo de Elecciones, sus dependencias y órganos auxiliares, sin perjuicio del principio de separación de Poderes estatuido en la Constitución Política.

(…)

En tal oportunidad estimó esta Sala que, en efecto, no se infringía el principio de separación de poderes, dado que -según se derivaba del resto del articulado del proyecto- los lineamientos y directrices emitidos por el Poder Ejecutivo requerían, necesariamente, la aprobación de los jerarcas de los órganos mencionados en el citado inciso b, que son “poseedores de independencia funcional constitucional respecto del Poder Ejecutivo”. En concreto, se señaló:

“En lo referente a la separación de poderes, considera esta Sala que, de la lectura atenta de los numerales de cita, se desprende que el proyecto consultado pretende dar a la Autoridad Presupuestaria competencias para elaborar en fase preliminar -pues luego requieren de aprobación por parte del Poder Ejecutivo- los lineamientos y directrices que determinarán el funcionamiento de la Administración en materia presupuestaria. Sobre la eficacia de tales disposiciones ya se referirá la Sala en este mismo considerando. En lo que respecta estrictamente a los órganos abarcados por el inciso b) del artículo 1 del proyecto, todos estos caracterizados por ser poseedores de independencia funcional constitucional respecto del Poder Ejecutivo, el mismo texto de los artículos 21 inciso b) y 23 in fine dispone que la aprobación de tales directrices compete a los jerarcas de tales órganos, cabiendo a la Autoridad Presupuestaria tan solo la función de proponer tales lineamientos. Es decir, que el mismo texto prevé un dispositivo que respeta la independencia funcional dada a los órganos del inciso b) del artículo 1° en materia presupuestaria, ya que el hecho de que los jerarcas de los órganos mencionados no apruebe los lineamientos dichos no acarrea ninguna consecuencia jurídica. Debido a lo anterior, cabe concluir que los artículos citados no representan alguna forma de afrenta a la separación de poderes, consagrada en el artículo 9° constitucional.” LBH10/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: TRABAJO Subtemas:

NO APLICA.

017098-21. TRABAJO. CONSULTA LEGISLATIVA FACULTATIVA DE CONSTITUCIONALIDAD, REFERENTE AL PROYECTO DE LEY DENOMINADO "LEY MARCO DE EMPLEO PÚBLICO". EXPEDIENTE LEGISLATIVO N° 21.336.

Luego, al pronunciarse esta Sala, específicamente sobre el régimen disciplinario en el caso del Poder Judicial y sobre su normativa especial, en el voto n°1995-01265, se indicó:

“(…) debe el accionante tener en cuenta que el Poder Judicial, no obstante que es un Poder del Estado, y regirse por el Derecho Administrativo, tiene un régimen especial en razón de la función que desarrolla; y en materia de relación de empleo público, aunque los principios generales están dados en el Derecho Administrativo y en el Derecho Laboral -como parámetros-, las especificaciones se regulan de conformidad con la normativa que se refiere específicamente al Poder Judicial, así, se rige de conformidad con lo dispuesto en la Ley Orgánica del Poder Judicial, el Estatuto de Servicio Judicial, el Reglamento sobre concurso de antecedentes para nombrar funcionarios que administren justicia, la Ley Orgánica del Organismo de Investigación Judicial, el Reglamento sobre la Calificación para los Empleados del Poder Judicial, etc. Como se observa, se trata de una normativa especial, que no puede ser derogada tácitamente por una norma posterior de carácter general, como afirma el accionante.” (reiterado voto n°2017-003450).

Existen múltiples votos de la Sala en que se destaca la particular relevancia que supone la adecuada regulación y aplicación del régimen disciplinario en resguardo de la independencia del juez. La Sala ha destacado la íntima relación entre la independencia judicial y el sistema de nombramiento, remoción y régimen disciplinario de los jueces. Así, por ejemplo, en el voto n°2009-4849, se realizó un amplio desarrollo sobre este tema:

“(…) Resulta toral para el adecuado funcionamiento del Estado democrático de Derecho –entendido bajo su postulado de primacía del derecho– que la función jurisdiccional pueda ejercerse sin presiones indebidas, en el seno de un Poder Judicial verdaderamente independiente, según lo ha establecido en repetidas ocasiones la Sala:

“A) PRINCIPIO DE INDEPENDENCIA.- La Constitución Política en su artículo 9 establece que el Gobierno de la República es ejercido por tres Poderes distintos e independientes entre sí: Legislativo, Ejecutivo y Judicial. Por otra parte, el párrafo tercero de este artículo señala la existencia del Tribunal Supremo de Elecciones con el rango e independencia de los Poderes del Estado. Debe resaltarse la nota de independencia del Poder Judicial en relación a los otros Poderes del Estado. Esta independencia debe concurrir en los jueces, quienes tienen la misión de administrar justicia.

La independencia es la ausencia de subordinación a otro, el no reconocimiento de un mayor poder o autoridad. La independencia del juez es un concepto jurídico, relativo a la ausencia de subordinación jurídica. La garantía de la inamovilidad y el régimen de incompatibilidades tienen como fin asegurar la total independencia de los miembros del Poder Judicial. (…)

Es así como la independencia es una garantía de la propia función jurisdiccional. La independencia se reputa en relación al juez en cuanto tal, por ser él quien tiene la potestad jurisdiccional. Se trata de impedir vínculos y relaciones que puedan conducir a una reducción fáctica de la libertad del juez.” (sentencia #2883-96 de las 17:00 horas del 13 de junio de 1996) Desde luego el principio postulado en abstracto requiere ser concretizado en cabeza de todos y cada uno de los jueces. En otras palabras, el principio meramente orgánico que se defiende para el Poder Judicial es, al mismo tiempo, la independencia que se garantiza a cada juez en su caso particular, traducida, adicionalmente y por encima de todo, en el derecho fundamental de las partes de todo proceso a contar con un árbitro imparcial que diga el derecho del caso sometido a su conocimiento:

“VIII.- La independencia del Poder Judicial se encuentra garantizada constitucionalmente en los artículos 9 y 154. También la Convención Americana sobre Derechos Humanos, normativa de rango internacional de aplicación directa en nuestro país se refiere al tema. La Convención Americana sobre Derechos Humanos establece la independencia del juez como un derecho humano, al disponer en el artículo 8.1 que:

«1.- Toda persona tiene derecho a ser oída, con las debidas garantías y dentro de un plazo razonable, por un juez o tribunal competente, independiente e imparcial, establecido con anterioridad por la ley, en la sustanciación de cualquier acusación penal formulada contra ella, o para la determinación de sus derechos y obligaciones de orden civil, laboral o de cualquier otro carácter.

2.- ...» La independencia del Órgano Judicial se plantea hacia lo externo. El Órgano Judicial es independiente frente a los otros Poderes del Estado, no así el juez cuya independencia debe ser analizada de una forma más compleja. Pero cuando se asegura que un Poder Judicial es independiente, lo mismo se debe predicar de sus jueces, pues éstos son los que deben hacer realidad la función a aquél encomendada. La independencia que verdaderamente debe interesar -sin restarle importancia a la del Órgano Judicial- es la del juez, relacionada con el caso concreto, pues ella es la que funciona como garantía ciudadana, en los términos de la Convención Americana sobre Derechos Humanos. La independencia efectiva del Poder Judicial coadyuva a que los jueces que lo conforman también puedan serlo, pero bien puede darse que el Órgano como un todo tenga normativamente garantizada su independencia, pero que sus miembros no sean independientes, por múltiples razones.” ( sentencia #5790- 99 de las 16:21 horas del 11 de agosto de 1999) Sobre el tema puede también citarse el pronunciamiento #5795-98 de las 16:12 horas del 11 de agosto de 1998:

“De lo dispuesto en el artículo 154 de la Constitución Política, que dice:

"El Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos" deriva el principio de la independencia del Poder Judicial, el cual comprende tanto al órgano o institución como un todo, como al Juez en el conocimiento de los asuntos que le son sometidos a su juicio. En relación con este funcionario, también debe reconocerse que existe una doble protección a su investidura, ya que la independencia del juez -como garantía de las partes involucradas en el asunto sub judice- es hacia lo externo y lo interno, en el sentido de que se le protege de las influencias e incidencias -tanto externas como internas-, que pueda tener en uno u otro sentido en la decisión de un caso concreto sometido a su conocimiento, para que fallen con estricto apego a lo dispuesto en la normativa vigente; en otros términos, se protege al juez para que ni las partes que intervienen en el proceso, terceros, jueces superiores en grado, miembros "influyentes" de los Poderes del Estado, aún el Judicial, puedan, influir en su decisión, por lo que mucho menos cabría, la obligación -impuesta por parte del superior en grado- de fallar en una determinada manera un caso concreto o coaccionar al juzgador en ese sentido. La garantía de independencia de los jueces más que una garantía para estos funcionarios -que efectivamente si lo es-, constituye una garantía para los particulares (partes del proceso), en el sentido de que sus casos se decidirán con apego estricto a la Constitución y las leyes.” Y en la decisión #2001-6632 de las 16:21 horas del 10 de julio de 2001 se enfatizó en la importancia y rango constitucional del principio de independencia del Poder Judicial:

“Nadie puede hoy restar el valor trascendental que desempeña en el real funcionamiento del Estado democrático de derecho, la independencia de los jueces. Está claramente aceptado que más que un principio, y todavía más allá de lo que pudiera señalarse como un privilegio otorgado al Juez, estamos ante el derecho de los ciudadanos a contar con jueces independientes. Pero, simultáneamente a esta consideración de valor fundamental, puede afirmarse que estamos ante una tarea, si no inconclusa, que al menos demanda una actitud de permanente vigilia, pues es históricamente reciente el verdadero empeño por alcanzar una independencia en este campo. Es más, sincerándonos, podría decirse que todavía este derecho de las personas (ciudadano, justiciable, usuario o como se diga), no está aun bien receptado –incorporado y aplicado- en los ordenamientos jurídicos. Como señalan algunos autores, la fórmula según la cual el juez "sólo" ha de estar sujeto a la ley (similar a como la recoge nuestro artículo 154 Constitucional) se concibió totalmente dirigida a excluir la intervención o injerencia del soberano (monarca) en las decisiones jurisdiccionales. Claro que en el interés de poner al juez a buen recaudo del soberano, se lo adscribía abruptamente a la concepción de una aplicación mecánica o cuasi mecánica de la ley como expresión de la soberanía popular, cuestión ésta que, para fortuna, está hoy totalmente superada. Por ello, en una correcta inteligencia de las bondades institucionales de contar –ayer, hoy y siempre- con jueces independientes, debemos retener el concepto de "soberano" para aplicárselo a cualquiera que, por fuera o más allá de los medios procesalmente dispuestos para revisar las resoluciones de los jueces, quiera imponer indebidamente criterios o formas de actuación a éstos. En el moderno diseño del ordenamiento jurídico costarricense, soberano no es siquiera la ley, ya que el juez no está sujeto por la ley, cualquiera que ésta sea, sino por la ley que a la vez sea legítimamente constitucional, pero en definitiva, incluso habrá hipótesis en las que quedará sujeto, por encima de una disposición Constitucional, por una norma o un principio contenido en algún instrumento internacional de Derechos Humanos vigente en el país. Esto está consagrado en lo más alto de nuestro ordenamiento, y en tal sentido podemos remitirnos al artículo 48 de la Constitución Política. Como se refirió, el artículo 154 Constitucional recoge el principio de la independencia del juez, pero además, no obstante que no cuenta con la potencia jurídica que se quisiera, finalmente puede citarse el Código de Ética Judicial, aprobado definitivamente por nuestra Corte Suprema de Justicia el día veintiocho de febrero del año dos mil, cuyo artículo segundo, en lo conducente, dispone:

"Artículo 2°. PRINCIPIOS A PRIORI DE LAS NORMAS DE ESTE CÓDIGO.

Se entienden como principios apriorísticos, necesarios para un buen desenvolvimiento de la administración de justicia:

… 2. La independencia del Juez o de la Jueza, que solamente está sometido (a) a la Constitución y a la ley, es decir, al ordenamiento jurídico, sus valores y principios superiores…" De conformidad con lo anteriormente expuesto, debe afirmarse que el juez no tiene soberanos sobre sí en el desempeño jurisdiccional y por eso mismo, es que se le protege a través de prohibiciones o incompatibilidades para realizar otro tipo de actividades, dado que también, desde ese ángulo de análisis, la independencia se convierte en garantía de imparcialidad, una nota que debe acompañar el ejercicio de la jurisdicción en el día a día.” IV.- En armonía con la anterior línea jurisprudencial, los Principios Básicos Relativos a la Independencia de la Judicatura, adoptados por el Séptimo Congreso de las Naciones Unidas sobre Prevención del Delito y Tratamiento del Delincuente, celebrado en Milán del 26 de agosto al 6 de septiembre de 1985, y confirmados por la Asamblea General en sus resoluciones 40/32 de 29 de noviembre de 1985 y 40/146 de 13 de diciembre de 1985 disponen:

“Independencia de la judicatura “1. La independencia de la judicatura será garantizada por el Estado y proclamada por la Constitución o la legislación del país. Todas las instituciones gubernamentales y de otra índole respetarán y acatarán la independencia de la judicatura.

2. Los jueces resolverán los asuntos que conozcan con imparcialidad, basándose en los hechos y en consonancia con el derecho, sin restricción alguna y sin influencias, alicientes, presiones, amenazas o intromisiones indebidas, sean directas o indirectas, de cualesquiera sectores o por cualquier motivo. (…)” Texto que confirma que es respecto de los jueces considerados en su esfera individual que resulta especialmente pertinente la diferencia entre la independencia externa e interna, entendiendo la primera como la independencia de otros órganos o entes estatales, así como de grupos de presión en general, mientras que la segunda advierte sobre la coacción que pueda ejercerse dentro de la propia organización judicial, ya sea por autoridades jurisdiccionales de instancias ulteriores o por funcionarios administrativos que están en posición de poder frente a los jueces.

V.- Relación de la independencia judicial con el nombramiento, remoción y régimen disciplinario de los jueces. No es casual que en los diferentes instrumentos y declaraciones que se ocupan del tema de la independencia judicial se aborden aspectos de orden administrativo como son la designación de los jueces, su destitución y la aplicación de sanciones disciplinarias. En esa dimensión práctica e individualizada al final de cuentas se juega su fuero de protección de cara a presiones de toda clase. Un juez que pueda ser designado mediante mecanismos opacos, o cuya destitución o sanción pueda producirse sin justificación suficiente por parte de cualquier tipo de autoridad, es un juez en una situación francamente vulnerable. En los Principios Básicos Relativos a la Independencia de la Judicatura de Naciones Unidas, anteriormente citados, se estipula:

“Medidas disciplinarias, suspensión y separación del cargo.

“17. Toda acusación o queja formulada contra un juez por su actuación judicial y profesional se tramitará con prontitud e imparcialidad con arreglo al procedimiento pertinente. El juez tendrá derecho a ser oído imparcialmente. En esa etapa inicial, el examen de la cuestión será confidencial, a menos que el juez solicite lo contrario.

18. Los jueces sólo podrán ser suspendidos o separados de sus cargos por incapacidad o comportamiento que los inhabilite para seguir desempeñando sus funciones.

19. Todo procedimiento para la adopción de medidas disciplinarias, la suspensión o la separación del cargo se resolverá de acuerdo con las normas establecidas de comportamiento judicial.

20. Las decisiones que se adopten en los procedimientos disciplinarios, de suspensión o de separación del cargo estarán sujetas a una revisión independiente. Podrá no aplicarse este principio a las decisiones del tribunal supremo y a las del órgano legislativo en los procedimientos de recusación o similares.” De la misma forma, el Estatuto del Juez Iberoamericano, adoptado por la Unión Internacional de Magistrados, se ocupa del ejercicio de la potestad sancionatoria sobre los jueces:

“6.- RÉGIMEN DISCIPLINARIO.

La Ley deberá tipificar, de la forma más concretamente posible los hechos que constituyan infracción disciplinaria de los Jueces.

La entidad con competencia disciplinaria será, exclusivamente del propio Poder Judicial.

El procedimiento disciplinario, que podrá ser instado por cualquier persona, órgano de soberanía o del Estado, dará lugar al empleo de todos los medios de defensa y específicamente contradictorio.

Las sanciones disciplinarias más graves sólo podrán ser adoptadas por mayoría cualificada.” Igual tendencia sigue el Estatuto Universal del Juez, aprobado en la reunión del Consejo Central de la Unión Internacional de Magistrados en Taipei, Taiwán, el 17 de noviembre de 1999:

“Art.11: Administración y principios en materia de disciplina.

La gestión administrativa y disciplinaria de los miembros del poder judicial debe ejercerse en condiciones que permitan preservar su independencia, y se fundamenta sobre la puesta en práctica de criterios objetivos y adaptados.

Cuando esto no está suficientemente asegurado por otras vías resultantes de una probada tradición, la administración judicial y la acción disciplinaria deben ser competencia de un órgano independiente integrado por una parte sustancial y representativa de jueces.

Las sanciones disciplinarias frente a los jueces no pueden adoptarse mas que por motivos inicialmente previstos por la ley, y observando reglas de procedimiento predeterminadas.” Adicionalmente, con carácter meramente ilustrativo, se considera relevante traer a colación que la Comisión Europea de la democracia por el derecho, conocida como Comisión de Venecia (órgano consultivo del Consejo de Europa sobre cuestiones constitucionales), al rendir una opinión sobre la Ley sobre responsabilidad y procedimientos disciplinarios de los jueces ordinarios en Georgia, en marzo de 2007, enfatizó en el necesario equilibrio entre la responsabilidad disciplinaria de los jueces y las garantías de su independencia, sin comprometer esta última, limitándola inútilmente. En esa oportunidad, se recordó la disposición 5.1 de la Carta europea sobre el estatuto de los jueces que dice:

“La falta por parte de un juez o una jueza a uno de sus deberes expresamente establecidos en el estatuto no puede dar lugar a una sanción, salvo que sea impuesta mediante una decisión, basada en una proposición, recomendación o acuerdo de una jurisdicción o instancia compuesta por, al menos, una mitad de jueces; y en el marco de un procedimiento contradictorio donde el juez o jueza investigados puedan hacerse asistir por un defensor. La escala de sanciones susceptibles de aplicación debe estar precisada por el estatuto y su aplicación sometida al principio de proporcionalidad. (…)” Así, el régimen disciplinario podría tornarse en una herramienta amenazante para la independencia del juez e, indirectamente, para el Estado de Derecho. Un juez no puede ser separado de su cargo durante la duración de su mandato, ni sancionado, excepto por razones de peso (violación ética, ineptitud, por ejemplo), siguiendo las garantías del debido proceso. Procedimientos apropiados de designación, para ascensos y en materia disciplinaria -que no sólo estén plasmados en el papel, sino que se cumplan en la práctica– son primordiales para proteger lo que se ha denominado la seguridad de permanencia de los jueces. En el caso específico de la potestad sancionatoria, un procedimiento disciplinario bien estructurado, las protecciones de debido proceso y la proporcionalidad entre sanción e infracción, reducen la vulnerabilidad a los abusos que perjudican la independencia judicial.” Por su parte, en el voto n°2017-009551, la Sala analizó la constitucionalidad del inciso g) del artículo 2 de la Ley de Protección al Trabajador, en cuanto preveía: “Entidades supervisadas. Todas las entidades autorizadas, la CCSS en lo relativo al Régimen de Invalidez, Vejez y Muerte y todas las entidades administradoras de regímenes de pensiones creados por leyes o convenciones colectivas, antes de la vigencia de esta ley”. Se cuestionaba, en particular, que la SUPEN pudiese fiscalizar el Fondo de Pensiones y Jubilaciones del Poder Judicial. En tal precedente, se analizó el contenido del principio de separaciones de funciones, en relación con los principios de unidad coordinación y unidad del Estado. Finalmente, se concluyó que que la normativa era constitucional, pues para que fuera inconstitucional debía:

“interfiere, en efecto, con las atribuciones constitucionales de ordenar, planificar o programar por ejemplo la función administrativa de manejo de personal, de impartir justicia o relacionada con ésta, las que estarán fuera del alcance del legislador, pero este no es el caso. Por otra parte, el problema no parece estar transitando en la interferencia que produciría un exceso de regulación del legislador sobre las formas y medios que debe utilizar el Consejo Superior del Poder Judicial para alcanzar los fines fijados para el fondo, si así fuera, podría impugnarse judicialmente por ese motivo”.

En ese mismo voto se recalcó la importancia del Poder Judicial en el Estado de Derecho y del ejercicio de su función administrativa con independencia:

“El Poder Judicial no es hoy en día un poder “vacío” o “devaluado” (como se le consideraba en los inicios del Estado moderno); es precisamente uno de los objetivos claros de los dictadores bajarle el perfil a su independencia, minar la independencia económica o rellenando las cortes con jueces “orientados ideológicamente” (court-packing que afortunadamente no ocurrió en los EEUU a pesar de una amplia mayoría partidaria en el Congreso en sintonía con su presidente F. D. Roosevelt, pero con sombrías críticas entre sus propias filas); si no se le da la importancia al Poder Judicial en el Estado social y democrático de Derecho para su correcto funcionamiento, su debilitamiento conduce a forma de gobiernos antidemocráticas, prueba de ello es que uno de las funciones que primero controlan los gobiernos autoritarios o totalitarios es la judicial, de ahí la importancia de que todo sistema democrático tenga un Poder Judicial robusto.” (…) “tanto las funciones legislativas como las judiciales requieren de una estructura administrativa de apoyo para la consecución de su función esencial o primaria, como lo es la función administrativa que le ayuda a canalizar toda su actividad; la que, lógicamente, alcanza al recurso humano o del personal de los Poderes de la República, entretanto, detrás de la función fundamental está la administrativa del personal, agentes y servidores (as) públicos (as), etc.” Así, en el voto n°2018-019511, en que se conoció de la consulta legislativa respecto del proyecto de "Ley de Fortalecimiento de las Finanzas Publicas" (expediente legislativo nro. 20.580), esta Sala concluyó -luego de realizar una labor interpretativa respecto del contenido del proyecto- que, en concreto, lo previsto en los numerales 46, 47 y 49, atinentes a la “rectoría de la materia empleo público de Mideplán” y “la obligatoriedad de los lineamientos técnicos y metodológicos de la Dirección General del (sic) Servicio Civil”, no aplicaban para el Poder Judicial. Interpretación que se hizo, tomando en consideración el principio de independencia del Poder Judicial. En particular, se indicó:

“La lectura del marco constitucional inicia con el reconocimiento de la independencia del Poder Judicial, uno de los cimientos cardinales de nuestro Estado de Derecho:

“ARTÍCULO 9º-El Gobierno de la República es popular, representativo, participativo, alternativo y responsable. Lo ejercen el pueblo y tres Poderes distintos e independientes entre sí. El Legislativo, el Ejecutivo y el Judicial.

Ninguno de los Poderes puede delegar el ejercicio de funciones que le son propias. (…)” “ARTÍCULO 154.- El Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos.” “ARTÍCULO 156.- La Corte Suprema de Justicia es el tribunal superior del Poder Judicial, y de ella dependen los tribunales, funcionarios y empleados en el ramo judicial, sin perjuicio de lo que dispone esta Constitución sobre servicio civil.” Estas disposiciones constitucionales han dado pie al desarrollo de un profuso marco normativo, específicamente diseñado para regular al Poder Judicial. Entre las normas de este marco se cuentan la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público, la Ley Orgánica del Organismo de Investigación Judicial, la Ley de Salarios del Poder Judicial, el Estatuto de Servicio Judicial (incluida su reforma por la Ley de Carrera Judicial), etc.

De manera clara, las normas supra enunciadas tienen la intención de regular concretamente al Poder Judicial, velando por que se garantice su independencia frente a los otros Poderes de la República.

El hecho de que el Poder Judicial goce de una regulación particular pone en la palestra el segundo punto de análisis de la interpretación sistemática. En este sentido, debe estudiarse si existen normas particulares para el Poder Judicial y verificar su relación con el articulado cuestionado.

Independientemente de que el ordinal 47 del proyecto hable de “salvedades”, se observa que la evaluación del desempeño y la competencia en la toma de decisiones en materia laboral, sean generales o concretas, se encuentran ya reguladas por el mencionado marco normativo del Poder Judicial, imposibilitando que una instancia externa asuma la “rectoría” o imponga criterios sobre ese Poder. Es más, dicho marco normativo está diseñado para garantizar la eficiencia de la función judicial y proteger a los servidores judiciales de injerencias externas, tal como indica el artículo 1 del Estatuto de Servicio Judicial:

“Artículo 1º.- El presente Estatuto y sus reglamentos regularán las relaciones entre el Poder Judicial y sus servidores, con el fin de garantizar la eficiencia de la función judicial y de proteger a esos servidores.” Nótese que la norma determina que las relaciones de empleo entre el Poder Judicial y sus servidores se encuentran reguladas por el Estatuto y su reglamento. La interpretación sistemática a que obliga ese numeral impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias. Esto se verifica porque el dictado del reglamento a que refiere la norma es, a su vez, competencia exclusiva de la Corte, como indica el mismo Estatuto:

“Artículo 5º.- Antes de dictar un reglamento interior de trabajo, ya sea de carácter general para todos los servidores judiciales o aplicables sólo a un grupo de ellos, la Corte pondrá en conocimiento de esos servidores el proyecto respectivo, por el medio más adecuado, a fin de que hagan por escrito las observaciones del caso, dentro de un término de quince días.

La Corte tomará en cuenta esas observaciones para resolver lo que corresponda, y el reglamento que dicte será obligatorio sin más trámite, ocho días después de su publicación en el "Boletín Judicial".” Una garantía más de la independencia del Poder Judicial en el tema de empleo es que el Jefe del Departamento de Personal se encuentra vinculado al Presidente de la Corte, excluyendo la injerencia de instancias externas:

“Artículo 6º.- El Departamento de Personal del Poder Judicial funcionará bajo la dirección de un Jefe que dependerá directamente del Presidente de la Corte y será nombrado por la Corte Plena.” Luego, el detalle de la normativa del Estatuto de Servicio Judicial distingue las diferentes competencias en materia de evaluación del desempeño, lo que corrobora la existencia de normativa especial para ese Poder. Así, verbigracia, los numerales 8 y 10 del Estatuto de Servicio Judicial rezan:

“Artículo 8º.- Corresponde al Jefe del Departamento de Personal:

• c)Establecer los procedimientos e instrumentos técnicos necesarios para una mayor eficiencia del personal entre ellos la calificación periódica de servicios, el expediente y prontuario de cada servidor y los formularios que sean de utilidad técnica; (…)

Artículo 10.- La calificación periódica de servicios se hará anualmente por el Jefe de cada oficina judicial respecto de los subalternos que laboren en ella, usando formularios especiales que el Jefe del Departamento de Personal enviará a las diferentes oficinas en los meses que él determine. (…)” Es decir, las calificaciones periódicas del personal judicial, como sería la evaluación anual, son efectuadas mediante los procedimientos fijados por el Jefe del Departamento de Personal del Poder Judicial. Se trata de normas especiales, atinentes en forma exclusiva al Poder Judicial, que se impondrían a las normas generales del proyecto, dado el caso de que entraren en vigor.

La Sala resalta que el proyecto de ley no deroga ni modifica de manera alguna las disposiciones anteriormente transcritas, ni ninguna otra del Estatuto de Servicio Judicial. Este Estatuto rige la materia de empleo en el Poder Judicial y representa una garantía para los servidores judiciales, en consonancia con los postulados constitucionales que salvaguardan la independencia judicial; su modificación o derogatoria no podría ser tácita ni provenir de una mera inferencia, pues ello denotaría el desconocimiento de las reglas hermenéuticas.

Por otro lado, ante el cuestionamiento de que el artículo 49 del proyecto ordena al Poder Judicial el acatamiento obligatorio de los lineamientos de la Dirección General de Servicio Civil, lo cierto es que la relación entre dicha Dirección y el Poder Judicial conoce una norma específica, según se desprende del citado ordinal 8:

“(…) El Jefe del Departamento de Personal podrá hacer a la Dirección General de Servicio Civil las consultas que fueran necesarias y solicitar a esta Dirección el asesoramiento que corresponda, para la mejor realización de sus funciones. (…)” Es decir, el marco legal del Poder Judicial prevé la potestad del Jefe de su Departamento de Personal (hoy denominado Gestión Humana) de consultar a la Dirección General de Servicio Civil y solicitar su asesoramiento para la realización de sus funciones. Dichas funciones incluyen, tal como se vio, la obligación de determinar los procedimientos e instrumentos técnicos para la calificación periódica del personal (numeral 8 supra citado). Tal disposición de ley especial vuelve inaplicable al Poder Judicial las normas cuestionadas del proyecto n°20.580.

De nuevo, se recuerda que se trata de una norma especial que tiene preponderancia frente a la disposición general. Además, se destaca que las normas del Estatuto de Servicio Judicial permanecerían incólumes tras la reforma propuesta mediante el proyecto n°20.580, pues este no lo modifica ni deroga.

En conclusión, visto que el capítulo VI de la pretendida modificación a la Ley de Salarios de la Administración Pública contempla una excepción al Poder Judicial, aunado al hecho de que este último tiene normativa de rango legal especial relacionada con la evaluación del desempeño de sus funcionarios, no se observa que el proyecto de ley consultado incida realmente en la organización o el funcionamiento del Poder Judicial”.

En ese mismo voto se indicó que las normas especiales que regulan al Poder Judicial velan porque se garantice su independencia respecto de los otros poderes, y la interpretación sistemática constitucional impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias:

“La lectura del marco constitucional inicia con el reconocimiento de la independencia del Poder Judicial, uno de los cimientos cardinales de nuestro Estado de Derecho: “ARTÍCULO 9 º-El Gobierno de la República es popular, representativo, participativo, alternativo y responsable. Lo ejercen el pueblo y tres Poderes distintos e independientes entre sí. El Legislativo, el Ejecutivo y el Judicial. Ninguno de los Poderes puede delegar el ejercicio de funciones que le son propias. (…)” “ARTÍCULO 154.- El Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos.” “ARTÍCULO 156.- La Corte Suprema de Justicia es el tribunal superior del Poder Judicial, y de ella dependen los tribunales, funcionarios y empleados en el ramo judicial, sin perjuicio de lo que dispone esta Constitución sobre servicio civil.” Estas disposiciones constitucionales han dado pie al desarrollo de un profuso marco normativo, específicamente diseñado para regular al Poder Judicial. Entre las normas de este marco se cuentan la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público, la Ley Orgánica del Organismo de Investigación Judicial, la Ley de Salarios del Poder Judicial, el Estatuto de Servicio Judicial (incluida su reforma por la Ley de Carrera Judicial), etc. De manera clara, las normas supra enunciadas tienen la intención de regular concretamente al Poder Judicial, velando por que se garantice su independencia frente a los otros Poderes de la República”.

(…) “Es más, dicho marco normativo está diseñado para garantizar la eficiencia de la función judicial y proteger a los servidores judiciales de injerencias externas, tal como indica el artículo 1 del Estatuto de Servicio Judicial: “Artículo 1º.- El presente Estatuto y sus reglamentos regularán las relaciones entre el Poder Judicial y sus servidores, con el fin de garantizar la eficiencia de la función judicial y de proteger a esos servidores.” Nótese que la norma determina que las relaciones de empleo entre el Poder Judicial y sus servidores se encuentran reguladas por el Estatuto y su reglamento. La interpretación sistemática a que obliga ese numeral impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias. Esto se verifica porque el dictado del reglamento a que refiere la norma es, a su vez, competencia exclusiva de la Corte, como indica el mismo Estatuto: “Artículo 5º.- Antes de dictar un reglamento interior de trabajo, ya sea de carácter general para todos los servidores judiciales o aplicables sólo a un grupo de ellos, la Corte pondrá en conocimiento de esos servidores el proyecto respectivo, por el medio más adecuado, a fin de que hagan por escrito las observaciones del caso, dentro de un término de quince días. La Corte tomará en cuenta esas observaciones para resolver lo que corresponda, y el reglamento que dicte será obligatorio sin más trámite, ocho días después de su publicación en el "Boletín Judicial". Una garantía más de la independencia del Poder Judicial en el tema de empleo es que el Jefe del Departamento de Personal se encuentra vinculado al Presidente de la Corte, excluyendo la injerencia de instancias externas: “Artículo 6º.- El Departamento de Personal del Poder Judicial funcionará bajo la dirección de un Jefe que dependerá directamente del Presidente de la Corte y será nombrado por la Corte Plena”. (Lo subrayado no corresponde al original).

En cuanto al carácter especial que tiene el Estatuto de Servicio Judicial, su escala salarial y su relación con la independencia judicial en esta materia, se indicó lo siguiente:

“El Estatuto rige la materia de empleo en el Poder Judicial y representa una garantía para los servidores judiciales, en consonancia con los postulados constitucionales que salvaguardan la independencia judicial; su modificación o derogatoria no podría ser tácita ni provenir de una mera inferencia, pues ello denotaría el desconocimiento de las reglas hermenéuticas”.

(…) “La Sala no omite subrayar que las normas de la Ley Orgánica del Poder Judicial, Ley de Salarios del Poder Judicial y el Estatuto de Servicio Judicial no se ven afectadas por la reforma propuesta. Dichas normas posibilitan la autonomía del Poder Judicial en lo referido a cambiar su escala salarial o variar los salarios base”.

Concretamente se analizó la materia salarial, al señalar:

“En cuanto a la materia salarial.

Atinente a este punto, el acuerdo ya mencionado plantea:

“2.) De conformidad con el anterior informe, se determina que el proyecto sí afecta la organización y funcionamiento del Poder Judicial, y que hay oposición al mismo, siempre y cuando no se elimine lo referente a:

(…)

d.- Las restricciones establecidas en el proyecto de ley en materia salarial y sus respectivos componentes para los funcionarios y las funcionarias del Poder Judicial.” Tras analizar el articulado del proyecto n°20.580, tocante a las modificaciones a la Ley de Salarios de la Administración Pública, la Sala recuerda que la afectación al sueldo de los funcionarios judiciales puede incidir en la independencia judicial. Según se expresó someramente en el citado voto n°2018-5758 de las 15:40 horas del 12 de abril de 2018:

“(…) Lo que sí es parte de la independencia judicial es que los jueces tengan una suficiencia económica digna, estando activos e inactivos, (…)” Ahora bien, se debe resaltar que la normativa cuestionada no es particular para los funcionarios judiciales, sino que abarca de manera generalizada a la Administración Pública. La importancia de este punto radica en el hecho de que la Sala ha sustentado un criterio sólido en cuanto a la improcedencia de consultas institucionales obligatorias (como las dispuestas en los numerales 167 y 190 de la Constitución Política), cuando un proyecto es de carácter nacional o general:

(…)

En el caso de marras, las normas del proyecto relacionadas con materia salarial tienen aplicación general, sin que este Tribunal tenga elementos para considerar que estas llegarán a afectar en tal grado el sustento financiero de los funcionarios dedicados a la administración de justicia, como para que no se asegure al menos “una suficiencia económica digna”.

La Sala no omite subrayar que las normas de la Ley Orgánica del Poder Judicial, Ley de Salarios del Poder Judicial y el Estatuto de Servicio Judicial no se ven afectadas por la reforma propuesta. Dichas normas posibilitan la autonomía del Poder Judicial en lo referido a cambiar su escala salarial o variar los salarios base. En ese sentido, nótese lo manifestado por la Ministra de Hacienda a Corte Plena:

“En cuanto a la posibilidad de que el proyecto afecte la independencia del Poder Judicial al regular la aplicación de determinados pluses, quisiera señalar de manera respetuosa que el proyecto no afecta o elimina la potestad del Poder Judicial de modificar su escala salarial o modificar los salarios bases. De modo que, si el Poder Judicial considerara que es necesario aumentar el salario de algún funcionario, tiene toda la potestad y autonomía para hacerlo. Particularmente, si el Poder Judicial considera que, ante la regulación de la dedicación exclusiva o las anualidades, es necesario incrementar el salario de algún funcionario, puede hacerlo al amparo de su independencia en materia salarial.” Esta observación no solo es compartida por la Sala, sino que determina con claridad indiscutible que el proyecto consultado no afecta la organización o funcionamiento del Poder Judicial en materia salarial.

Con fundamento en lo supra explicado, la Sala determina que la normativa cuestionada del proyecto legislativo 20.580 no afecta, en el sentido expuesto, la organización o funcionamiento del Poder Judicial.” Finalmente, de forma más reciente, en el voto n°2019-25268, en que se cuestionaban sendos acuerdos de Corte Plena relacionado con el incremento salarial de los jueces, fiscales y defensores (lo mismo que Secretarios de Sala y abogados asistentes), la Sala resolvió:

“Igualmente, este Tribunal, en la sentencia número 550-91 de las 18:50 horas del 15 de marzo de 1991, mencionó que, “en el caso de los poderes, su propia independencia constitucional, garantizada en general por el artículo 9° de la Constitución y, en los del Poder Judicial y del Tribunal Supremo de Elecciones por las de los artículos 99 y siguientes, 152 y siguientes y 177 de la misma, así como sus propias normas orgánicas, imponen a sus jerarcas la atribución y la responsabilidad de fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos, dentro, naturalmente, de sus disponibilidades presupuestarias, independientemente, desde luego, de que sus montos puedan coincidir o no con los de los diputados”. De lo anterior, se deduce que los salarios en el Poder Judicial se deben fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos, dentro, naturalmente, de sus disponibilidades presupuestarias, siendo que existen cargos que ostentarán diferentes remuneraciones, lo cual, no violenta el principio de igualdad.

Asimismo, los acuerdos impugnados no lesionan los principios de razonabilidad ni de proporcionalidad, así como otros principios como son los de legalidad y confianza legítima, puesto que esos acuerdos fueron aprobados por Corte Plena, es decir, por el órgano habilitado normativamente para tal situación. Lo anterior, en atribución a sus competencias constitucionales y legales que le han sido atribuidas. Al respecto, es menester recordar que el artículo 9 de la Constitución Política indica que “el Gobierno de la República es popular, representativo, participativo, alternativo y responsable. Lo ejercen el pueblo y tres Poderes distintos e independientes entre sí. El Legislativo, el Ejecutivo y el Judicial”. Asimismo, el numeral 152 de la Constitución Política señala que “el Poder Judicial se ejerce por la Corte Suprema de Justicia y por los demás tribunales que establezca la ley”. En un sentido similar, el artículo 154 del mismo texto constitucional establece que “el Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos”. Siguiendo la línea impuesta en la Carta Magna, la Ley Orgánica del Poder Judicial, en su artículo 2, menciona que “el Poder Judicial sólo está sometido a la Constitución Política y la ley. Las resoluciones que dicte, en los asuntos de su competencia, no le imponen más responsabilidades que las expresamente señaladas por los preceptos legislativos. No obstante, la autoridad superior de la Corte prevalecerá sobre su desempeño, para garantizar que la administración de justicia sea pronta y cumplida”. Igualmente, el numeral 59 de esa misma ley, señala que “corresponde a la Corte Suprema de Justicia: (…) 3.- Aprobar el proyecto de presupuesto del Poder Judicial, el cual, una vez promulgado por la Asamblea Legislativa, podrá ejecutar por medio del Consejo”. En esta misma línea, el Estatuto de Servicio Civil, en el artículo 8, determina que “corresponde al Jefe del Departamento de Personal: a) Analizar, clasificar y valorar los puestos del Poder Judicial comprendidos en esta ley, y asignarles la respectiva categoría dentro de la Escala de Sueldos de la Ley de Salarios, todo sujeto a la posterior aprobación de la Corte Plena”. Asimismo, el numeral 62 de ese cuerpo normativa, establece que “el Departamento de Personal efectuará los estudios para determinar el monto posible de los beneficios que deban reconocerse a los servidores judiciales de acuerdo con la Ley de Salarios, a fin de que la Corte Plena haga las asignaciones necesarias en el presupuesto de cada año”.

En síntesis, los acuerdos impugnados no lesionan los principios de razonabilidad, ni proporcionalidad, ni legalidad, ni confianza legítima, ya que estos acuerdos fueron aprobados por Corte Plena, es decir, por el órgano habilitado normativamente para tal situación. Lo anterior, en atribución a sus competencias constitucionales y legales que le han sido atribuidas.” De esta forma, con sustento en los precedentes previamente transcritos, se puede derivar que esta Sala ha reconocido que el Poder Judicial es clave para la democracia costarricense, tanto así que, “El hecho de que Costa Rica tenga hoy la democracia más antigua y estable de América Latina es inimaginable sin el funcionamiento de un robusto sistema de administración de justicia y sin los esfuerzos recientes para modernizarlo.” (ver voto n°2018-005758). Así entonces, “si no se le da la importancia al Poder Judicial en el Estado social y democrático de Derecho para su correcto funcionamiento, su debilitamiento conduce a formas de gobiernos antidemocráticas, prueba de ello es que uno de las funciones que primer controlan los gobiernos autoritarios o totalitarios es la judicial, de ahí la importancia de que todo sistema democrático tenga un Poder Judicial robusto.” (ver voto n°2017-09551). Siendo justamente el principio de independencia judicial clave para esta robustez. En cuanto a empleo público, es clara la sujeción del Poder Judicial a los principios fundamentales del régimen de empleo público del art.191. Incluso, en concordancia con el artículo 11 de la Constitución Política, es claro que el Poder Judicial está sometido al respectivo procedimiento de evaluación de resultados y rendición de cuentas. No obstante, la Sala ha entendido como válido y justificado que el Poder Judicial cuente con su propio marco normativo, que regula de forma específica, particular y diferenciada las relaciones de empleo entre dicho Poder y sus servidores y la evaluación de su desempeño. Es más, se ha indicado que dicho marco normativo (integrado, entre otros, por la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público, la Ley Orgánica del Organismo de Investigación Judicial, la Ley de Salarios del Poder Judicial y el Estatuto de Servicio Judicial), está específicamente diseñado para garantizar la eficiencia de la función judicial y la independencia del Poder Judicial. Al punto que se ha sentado, como criterio jurisprudencial, que se está en presencia de normativa especial que tiene preponderancia frente a las disposiciones generales y no puede ser tácitamente derogada por una norma posterior de carácter general. Asimismo, la Sala ha hecho expresa referencia a la improcedencia de que una instancia externa asuma la rectoría o imponga criterios sobre el Poder Judicial en estas materias. Por el contrario, ha destacado que la independencia y autonomía funcional reconocida expresamente al Poder Judicial en el propio texto constitucional (artículos 9, 152 y siguientes y 177) y materializada y garantizada en sus propias normas orgánicas, impone a los jerarcas del Poder Judicial la competencia y la responsabilidad para decidir -sin injerencias indebidas- en las distintas materias que son objeto de regulación en el proyecto de ley consultado.

Finalmente, en cuanto a Derecho Comparado, es oportuno mencionar el artículo 64 de la Constitución Francesa de 1958 se dice que el Presidente de la República es el principal llamado a garantizar la independencia de la autoridad judicial, y que, es una Ley Orgánica, particular del Poder Judicial, la que regulará el estatuto jurídico de los magistrados. Así dice:

“ARTICLE 64.

Le Président de la République est garant de l'indépendance de l'autorité judiciaire.

Il est assisté par le Conseil supérieur de la magistrature.

Une loi organique porte statut des magistrats.

Les magistrats du siège sont inamovibles.” (Traducción libre: “Artículo 64. El Presidente de la República es garante de la independencia de la autoridad judicial. Para ello, el Presidente de la República es asistido por el Consejo Superior de la Magistratura. Una ley orgánica regulará el estatuto jurídico de los Magistrados. Los magistrados elegidos son inamovibles.”) Ahora bien, lo señalado en los distintos precedentes supra citados, en el sentido que esta Sala ha entendido como válido y justificado que el Poder Judicial cuente con su propio marco normativo, que regula de forma específica, particular y diferenciada las relaciones de empleo entre dicho Poder y sus servidores, no excluye reconocer que la Asamblea Legislativa está habilitada por el Derecho de la Constitución -conforme la intención del constituyente originario, según se desarrolló en el considerando VIII de este voto- a establecer un estatuto único que comprenda a todos (as) los (as) servidores (as) públicos, incluso a funcionarios (as) del Poder Judicial, siempre y cuando, tal normativa, por su contenido o sus efectos, no suprima, afecte en lo esencial, ni suponga trasladar las competencias exclusivas y excluyentes que le corresponden al Poder Judicial a otros órganos y entes, en infracción del principio de separación de poderes o funciones y, muy en particular, del principio de independencia judicial, tal y como se analizará continuación, respecto de las distintas normas consultadas.

• 3)Sobre el examen del Articulado consultado Sobre el artículo 2.a (ámbito de cobertura), respecto del Poder Judicial (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 2- Ámbito de cobertura Esta ley es aplicable a las personas servidoras públicas de las siguientes entidades y órganos bajo el principio de Estado como patrono único:

• a)Los Poderes de la República (Ejecutivo, Legislativo y Judicial), sus órganos auxiliares y adscritos, y el Tribunal Supremo de Elecciones (TSE), sin perjuicio del principio de separación de Poderes establecido en la Constitución Política.

(…)” Ante tal panorama, y retomando lo que se expuso supra, en el sentido de que es plausible sujetar a todos los poderes del Estado a un único estatuto de empleo público, con lo que la sujeción del Poder Judicial a esta ley no resulta inconstitucional, sí es inconstitucional por el hecho de no excluir a los (as) funcionarios (as) que ejercen las funciones jurisdiccionales -jueces- o para- jurisdiccionales -fiscales, defensores públicos y profesionales y personal especializado del Organismo de Investigación Judicial, etc.- y los funcionarios del nivel gerencial o de alta dirección política como los denomina el proyecto de ley, al igual que a los funcionarios del Tribunal Supremo de Elecciones que ejercen función electoral -letrados, directores del Departamentos, profesionales, etc., y quienes ejercen cargo de alta dirección política, así como el personal administrativo, profesional y técnico, que defina de forma exclusiva y excluyente cada jerarca del poder respectivo, pues, en estos casos, no es posible someterlo a directrices, disposiciones, circulares, manuales que emita Mideplán. Lo anterior significa, que el Poder Judicial sí estaría sometido a esas potestades que la ley le otorga al Mideplán cuando se trata del resto de los funcionarios -los que defina cada jerarca del Poder Judicial y el Tribunal Supremo de Elecciones de manera exclusiva y excluyente-, que forman parte del staff administrativo, auxiliar o personal de apoyo. Se podrá argumentar en contra de lo que estamos afirmando que el numeral 49 del proyecto de ley consultado, en el inciso g) que adiciona el artículo 85 a la Ley n.° 5155, Estatuto Judicial, de 10 de enero de 1973, en el sentido de que las competencias en el proyecto de ley, para los órganos del Poder Judicial, se realizarán en coordinación con Mideplán, en los que corresponde a los temas a que se refiere el citado proyecto; y el inciso h), que adiciona el artículo 17 a la Ley n.° 2422, Ley de Salarios del Poder Judicial, de 11 de agosto de 1959, en el sentido de que las competencias definidas en el proyecto de ley, para los órganos del Poder Judicial, también es realizada en coordinación con el citado ministerio, en la misma dirección, así como el hecho de que el inciso a) del artículo 2 establece que el ámbito de cobertura el proyecto de ley lo es sin perjuicio del principio de separación de Poderes establecido en la Constitución Política, el Poder Judicial lo hará a través de la coordinación institucional con MIDEPLAN, por lo que no es cierto que está sometido al primero a las directrices, disposiciones, circulares, manuales que emita el segundo en lo que atañe; empero tal objeción resulta injustificada a causa de la imprecisión de la normativa que se pretende aprobar, pues en una materia de tanta importancia la Ley debe de ser clara y precisa, aspecto que, en muchos casos, se echa de menos. De ahí que resulta pertinente concluir que sí hay vicios de inconstitucionalidad. Nótese que en el numeral 3 del proyecto de ley consultado, que regula la exclusión de los entes de esta normativa, no se hace ninguna salvaguarda en favor del Poder Judicial y el Tribunal Supremo de Elecciones.

Sobre el artículo 6 (rectoría de Mideplán), respecto del Poder Judicial (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 6- Creación del Sistema General de Empleo Público La rectoría del Sistema General de Empleo Público estará a cargo del Ministerio de Planificación Nacional y Política Económica (Mideplán). Dicho sistema estará compuesto por lo siguiente:

• a)El Ministerio de Planificación Nacional y Política Económica (Mideplán).
• b)Las oficinas, los departamentos, las áreas, direcciones, unidades o denominaciones homólogas de Gestión de Recursos Humanos de las entidades y los órganos bajo el ámbito de aplicación de la presente ley. (…)” En relación con el artículo 6, inciso b, del proyecto de ley consultado es inconstitucional, toda vez que somete a la potestad de dirección del Poder Ejecutivo al Poder Judicial y al Tribunal Supremo de Elecciones, lo que resulta contrario a los principios de independencia judicial y electoral. De ahí que las oficinas, los departamentos, las áreas, direcciones, unidades de Gestión de Recursos Humanos de estos poderes no pueden estar bajo la citada potestad, excepto en lo que atañe a quienes presten servicios administrativos básicos, auxiliares, que no inciden sobre las competencias exclusivas y excluyentes ni funciones administrativas necesarias para el cumplimiento de estas, definidos, exclusivamente, por los jerarcas del Poder Judicial y el Tribunal Supremo de Elecciones.

Sobre el artículo 7 (competencias de Mideplán), respecto del Poder Judicial (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 7- Competencias del Mideplán Son competencias del Ministerio de Planificación Nacional y Política Económica (Mideplan) las siguientes:

• a)Establecer, dirigir y coordinar la emisión de políticas públicas, programas y planes nacionales de empleo público, conforme a la Ley 5525, Ley de Planificación Nacional, de 2 de mayo de 1974.
• b)Establecer mecanismos de discusión, participación y concertación con las corporaciones municipales a través de la Unión de Gobiernos Locales y las instituciones de educación superior universitaria estatal, en materia de empleo público.
• c)Emitir disposiciones de alcance general, directrices y reglamentos, que tiendan a la estandarización, simplificación y coherencia del empleo público, según lo preceptuado en la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• d)Asesorar a las entidades y los órganos incluidos, bajo el ámbito de cobertura de la presente ley, para la correcta implementación de las políticas públicas, las disposiciones de alcance general, las directrices y los reglamentos que se emitan en el marco de la rectoría política en empleo público y la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• e)Administrar y mantener actualizada la plataforma integrada del empleo público.
• f)Publicar la oferta de empleo público, a través de la plataforma virtual que alimentarán las entidades y los órganos incluidos del ámbito de cobertura de la presente ley.
• g)Emitir los lineamientos y principios generales para la evaluación del desempeño.
• h)Administrar e implementar las acciones de investigación, innovación y formulación de propuestas de empleo público.
• i)Dirigir y coordinar la ejecución de las competencias inherentes en materia de empleo público con el Ministerio de Hacienda, el Ministerio de Trabajo y Seguridad Social, la Autoridad Presupuestaria y la Dirección General de Servicio Civil, entre otras dependencias técnicas en la materia de empleo público, lo concerniente a la materia de empleo público.
• j)Recolectar, analizar y divulgar información en materia de empleo público de las entidades y los órganos para la mejora y modernización de estos. A tal efecto, establecerá un sistema de indicadores, mediante el establecimiento de criterios de coordinación, para homogeneizar la recopilación y difusión de datos.
• k)Preparar una estrategia coherente e integral para el aprendizaje y el desarrollo en todo el servicio público, estableciendo cómo se desarrollará la capacidad a largo plazo para estándares de dirección y competencia profesional más altos y proporcionando orientación a las instituciones públicas sobre cómo planificar y aplicar las actividades dentro de la estrategia.
• l)Coordinar con la Procuraduría de la Ética Pública para emitir las disposiciones de alcance general, las directrices y los reglamentos, para la instrucción de las personas servidoras públicas sobre los deberes, las responsabilidades y las funciones del cargo, así como los deberes éticos que rigen la función pública, que resulten procedentes según la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• m)Establecer un sistema único y unificado de remuneración de la función pública de conformidad con esta ley y especifica del salario y los beneficios de todas las personas funcionarias públicas.
• n)Realizar diagnósticos en materia de recursos humanos de las entidades y los órganos incluidos para lograr un adecuado redimensionamiento de las planillas existentes y la elaboración de criterios generales que delimiten los sectores cuya actividad, por su valor estratégico institucional, así como la vinculación con la actividad sustantiva, se debería reservar para que sean realizadas exclusivamente por personas servidoras públicas. Además, analizar los que sirvan de orientación para delimitar la prestación de los que podrían ser externalizados y las condiciones de prestación de estos.
• o)Prospectar las tendencias globales del futuro del empleo público, con el propósito de informar la planificación de este.
• p)Analizar la eficiencia y eficacia de los mecanismos de evaluación, a efectos de determinar si estos cumplen o no su cometido.
• q)Evaluar el sistema general de empleo público en términos de eficiencia, eficacia, economía, simplicidad y calidad.” En relación con el artículo 7, incisos d), g) y p) resultan inconstitucionales, pues afecta la independencia de Poder Judicial y el Tribunal Supremo de Elecciones, en cuanto los somete a la potestad de dirección y reglamentaria de Mideplán, así como a la verificación de si cumplen o no con el cometido de la evaluación del desempeño y no se excluye de la potestad de dirección. Hay que enfatizar que el principio de separación de poderes o funciones es incompatible con la potestad de dirección y reglamentación que ejerce el Poder Ejecutivo, toda vez que no puede ordenar su actividad, estableciendo metas y objetivos. En lo que atañe a la evaluación del desempeño, queda reserva a cada poder del Estado, toda vez que esta materia es consustancial al ejercicio de sus competencias constitucionales. Quiere esto decir, que, en lo tocante a este extremo, todo el funcionariado de cada poder estaría sometido a las disposiciones internas que cada uno de estos dicten al respecto.

Sobre el artículo 9.a.- Oficinas de Recursos Humanos respecto del Poder Judicial (Redacta la magistrada Picado Brenes) Se consulta sobre el artículo siguiente:

“ARTÍCULO 9- Funciones de las administraciones activas a) Las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos, de las instituciones incluidas en el artículo 2 de la presente ley, seguirán realizando sus funciones de conformidad con las disposiciones normativas atinentes en cada dependencia pública.

Asimismo, aplicarán y ejecutarán las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que el Ministerio de Planificación Nacional y Política Económica (Mideplán) remita a la respectiva institución, según la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

• b)Es responsabilidad de las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos elaborar y aplicar las pruebas de conocimientos, competencias y psicométricas, para efectos de los procesos de reclutamiento y selección de personal, efectuar los concursos internos y externos por oposición y méritos, los cuales deberán cumplir siempre al menos con los estándares que establezca la Dirección General del de Servicio Civil para cada puesto, según su ámbito de competencia, y los lineamientos que se emitan según el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

Además, incorporar dichos concursos en la oferta de empleo público de la Administración Pública y verificar que las personas servidoras públicas reciban la inducción debida sobre los deberes, las responsabilidades y las funciones del puesto, así como los deberes éticos de la función pública generales y particulares de la institución y puesto.

• c)Las oficinas de gestión institucional de recursos humanos, de ministerios e instituciones u órganos adscritos bajo el ámbito de aplicación del Estatuto de Servicio Civil, son dependencias técnicas de la Dirección General de Servicio Civil que, para todos los efectos, deberá coordinar la elaboración de las pruebas de reclutamiento y selección de personal con tales oficinas y desempeñar sus funciones de asesoramiento, capacitación y acompañamiento técnico.” Tal como se observa, el artículo 9 consultado establece ciertas funciones para todas las oficinas, departamentos, áreas, direcciones o las unidades de recursos humanos, de todas las instituciones incluidas en el proyecto, en cuenta, para el Departamento de Gestión Humana del Poder Judicial. Así entonces, en lo que se refiere propiamente a la consulta realizada en cuanto al Poder Judicial, el segundo párrafo del inciso a) le impone al Departamento de Gestión Humana de dicho Poder de la República que aplique y ejecute las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que Mideplán le remita. Lo cual, implicaría que un órgano del Poder Ejecutivo, como lo es Mideplán, le imponga al Poder Judicial la aplicación y ejecución de sus disposiciones, directrices y reglamentos, y en materias que son de resorte exclusivo del Poder Judicial como lo es la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación o salarios y la gestión de las relaciones laborales. Siendo claramente tal obligación para el Departamento de Gestión Humana del Poder Judicial una violación al principio de separación de poderes y a la independencia judicial, conforme los alcances que la jurisprudencia constitucional le ha dado a tales principios básicos de nuestra democracia. Recuérdese que, el principio de división de poderes, o como se le conoce más recientemente, principio de separación de funciones, está consagrado en el artículo 9 de la Constitución Política y se erige en “uno de los pilares fundamentales del Estado Democrático, en tanto establece un sistema de frenos y contrapesos que garantiza el respeto de los valores, principios y normas constitucionales en beneficio directo de los habitantes del país.” (sentencia n°2006-013708). Haciendo posible que cada Poder del Estado pueda ejercer su función con independencia de los otros (sentencia n°6829-1993), y no solo como un principio de aplicación interna para el buen funcionamiento del Estado de Derecho, sino además, porque el principio de independencia judicial, en su dimensión externa, asegura un conjunto de garantías que pretenden evitar que una Corte sea controlada por otros órganos gubernamentales, es la ausencia de presiones o influencias externas que hagan vulnerable a la institución, como resultado de amenazas a la disponibilidad de recursos que le permitan desarrollar su labor con autonomía, a la estabilidad laboral y las posibilidades de ascenso de sus funcionarios, a su integridad y patrimonio, y a sus capacidades de infraestructura para atender las demandas ciudadanas. Por otro lado, en su dimensión interna, la independencia judicial es más que una garantía para los jueces, pues constituye también “una garantía para los particulares (partes del proceso), en el sentido de que sus casos se decidirán con apego estricto a la Constitución y las leyes” (sentencia n°5795-1998), “estamos ante el derecho de los ciudadanos a contar con jueces independientes” (sentencia n°2001-006632). La independencia del Poder Judicial se traduce, en materia económica y por la inamovilidad de su personal, así como, en lo funcional, por la posibilidad real de tomar sus decisiones de acuerdo con criterios propios y no como resultado de presiones procedentes de determinados grupos, instituciones o personas (ver sentencia n°2000-005493). Así está plenamente justificado que en el caso específico del Poder Judicial tenga una regulación especial, separada y diferenciada, aunque sujeta a los principios constitucionales fundamentales que prevén los artículos 191 y 192 (ver sentencia n°1991-550), pero no bajo las disposiciones generales, directrices y reglamentos de un órgano de otro Poder de la República, como lo pretendía esta norma del proyecto consultada. Pues, la normativa especial que regula al Poder Judicial “impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias.” (sentencia n°2018-019511). Ello por cuanto, “…el Régimen del Empleo Público, es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones.” (sentencia n°03575-1996). Siendo “las atribuciones constitucionales de ordenar, planificar o programar por ejemplo la función administrativa de manejo de personal” (sentencia n°2017-009551), una parte esencial de la función administrativa del Poder Judicial que coadyuva al efectivo ejercicio de su función judicial, pues “tanto las funciones legislativas como las judiciales requieren de una estructura administrativa de apoyo para la consecución de su función esencial o primaria, como lo es la función administrativa que le ayuda a canalizar toda su actividad; la que, lógicamente, alcanza al recurso humano o del personal de los Poderes de la República, entretanto, detrás de la función fundamental está la administrativa del personal, agentes y servidores (as) públicos (as), etc.” (sentencia n°2017-009551). Finalmente nótese que, en la sentencia n°2018-019511, en que se conoció de la consulta legislativa respecto del proyecto de "Ley de Fortalecimiento de las Finanzas Publicas" (expediente legislativo nro. 20.580), esta Sala concluyó -luego de realizar una labor interpretativa respecto del contenido del proyecto- que, en concreto, lo previsto en los numerales 46, 47 y 49, atinentes a la “rectoría de la materia empleo público de Mideplán” y “la obligatoriedad de los lineamientos técnicos y metodológicos de la Dirección General del (sic) Servicio Civil”, no aplicaban para el Poder Judicial. Interpretación que se hizo, tomando en consideración el principio de independencia del Poder Judicial. En este sentido, y conforme todo lo anterior, el párrafo segundo del inciso a) del artículo 9 es inconstitucional, respecto a su aplicación al Poder Judicial.

Sobre el artículo 13 (familias de puestos), respecto del Poder Judicial (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 13- Régimen general de empleo público Existirá un único régimen general de empleo público, el cual a su vez estará conformado por las siguientes ocho familias de puestos que serán de aplicación en los órganos y entes de la Administración Pública, según las funciones que ejecute su personal:

• a)Personas servidoras publicas bajo el ámbito de aplicación del título I y del título IV del Estatuto de Servicio Civil, así como a las que se desempeñan en las instituciones señaladas en el artículo 2 de la presente ley, que no estén incluidas en las restantes familias de puestos.
• b)Personas servidoras públicas que se desempeñan en funciones en ciencias de la salud.
• c)Personas servidoras públicas que se desempeñan en funciones policiales.
• d)Personas docentes contempladas en el Estatuto del Servicio Civil, del título II y el título IV.
• e)Personas docentes y académicas de la educación técnica y superior.
• f)Personas que administran justicia y los magistrados del Tribunal Supremo de Elecciones (TSE).
• g)Personas servidoras públicas que se desempeñan en funciones del servicio exterior.
• h)Personas servidoras públicas que se desempeñan en cargos de confianza.

La creación de familias de puestos de empleo público es reserva de ley y deberá estar justificada por criterios técnicos y jurídicos coherentes con una eficiente y eficaz gestión pública.

En todas las categorías descritas con anterioridad, la administración pública superior, por medio de las oficinas o los departamentos de salud ocupacional, deberá contar en cada entidad pública, según lo establece el artículo 300 del Código de Trabajo y su reglamento, con el diagnóstico de sus condiciones de trabajo, el programa de salud ocupacional y cuando existan condiciones de trabajo adversas a su salud deberán crearse los respectivos protocolos de seguridad para salvaguarda de su vida, que será validado a lo interno de esta y con el respectivo aval del Consejo de Salud Ocupacional, para lo cual se le brindará el recurso humano necesario. Dicha instancia dependerá administrativamente de manera directa del jerarca.

En cuanto al inciso f) del artículo 13 es inconstitucional porque no excluye a los funcionarios que realizan funciones para-jurisdiccionales -fiscales, defensores públicos y profesionales y personal especializado del Organismo de Investigación Judicial, etc.- y los funcionarios del nivel gerencial o de alta dirección política, al igual que a los funcionarios del Tribunal Supremo de Elecciones que ejercen función electoral -letrados, directores del Departamentos, profesionales, etc.-, y quienes ejercen cargos de alta dirección política. Además, no se excluye a todo el funcionario administrativo de apoyo, profesional y técnico, que los máximos órganos de los citados poderes del Estado definan, de forma exclusiva y excluyente, como indispensables o consustanciales para el ejercicio de sus competencias constitucionales. Máxime que, de conformidad con ese mismo artículo, inciso a), todos esos funcionarios quedarían incluidos en una categoría del Estatuto de Servicio Civil, lo que afecta la independencia tanto del Poder Judicial como del Tribunal Supremo de Elecciones partiendo del hecho de que el gobierno judicial y electoral lo ejerce la Corte Suprema de Justicia y el Tribunal Supremo de Elecciones de forma exclusiva y excluyente en lo que atañe a sus competencias constitucionales. Finalmente, hay que tener presente que la construcción de la familia, tal y como se explicó supra, corresponde, de forma exclusiva y excluyente, a cada poder del Estado.

Sobre el artículo 14.- Reclutamiento y selección respecto del Poder Judicial (Redacta la magistrada Picado Brenes) Los consultantes cuestionan la constitucionalidad del artículo 14 del proyecto de ley objeto de consulta, toda vez que, en su criterio, podría lesionar los principios de separación de poderes, autonomía e independencia del Poder Judicial, en el tanto se sujeta a las disposiciones que emite un órgano del Poder Ejecutivo, en lo referente a la gestión de empleo, lo cual comprende lo relativo al reclutamiento y selección de su personal. El ordinal 14 en cuestión, dispone lo siguiente:

“ARTÍCULO 14- Reclutamiento y selección El reclutamiento y la selección de las personas servidoras públicas de nuevo ingreso se efectuará con base en su idoneidad comprobada, para lo cual el Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá, con absoluto apego a la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las disposiciones de alcance general, las directrices y los reglamentos, según la respectiva familia de puestos.

En los procesos de reclutamiento y selección no podrá elegirse a un postulante que se encuentre en alguna de las siguientes situaciones:

• a)Estar ligado por parentesco de consanguinidad o de afinidad en línea directa o colateral, hasta tercer grado inclusive, con la jefatura inmediata ni con las personas superiores inmediatas de esta en la respectiva dependencia.
• b)Encontrarse enlistada en el registro de personas inelegibles de la plataforma integrada de empleo público.” Tal como ya fue supra indicado, el Poder Judicial, como poder de la República, no solo debe ser independiente respecto de los otros poderes, conforme lo dispone el ordinal 9 constitucional, sino también garantizar la independencia de los jueces, tal como lo estatuye el artículo 154 de la Constitución Política, como una garantía para los particulares de que sus casos se decidirán con estricto apego a la Constitución y las leyes. En atención a ello, es imprescindible que este Poder de la República disponga todo lo relativo al reclutamiento y selección de su personal, sin interferencia externa alguna. Así lo reiteró puntualmente este Tribunal en la sentencia n.° 2018-19511, al señalar, en lo que interesa lo siguiente:

“…Estas disposiciones constitucionales han dado pie al desarrollo de un profuso marco normativo, específicamente diseñado para regular al Poder Judicial. Entre las normas de este marco se cuentan la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público, la Ley Orgánica del Organismo de Investigación Judicial, la Ley de Salarios del Poder Judicial, el Estatuto de Servicio Judicial (incluida su reforma por la Ley de Carrera Judicial), etc.

De manera clara, las normas supra enunciadas tienen la intención de regular concretamente al Poder Judicial, velando por que se garantice su independencia frente a los otros Poderes de la República.

El hecho de que el Poder Judicial goce de una regulación particular pone en la palestra el segundo punto de análisis de la interpretación sistemática. En este sentido, debe estudiarse si existen normas particulares para el Poder Judicial y verificar su relación con el articulado cuestionado.

Independientemente de que el ordinal 47 del proyecto hable de “salvedades”, se observa que la evaluación del desempeño y la competencia en la toma de decisiones en materia laboral, sean generales o concretas, se encuentran ya reguladas por el mencionado marco normativo del Poder Judicial, imposibilitando que una instancia externa asuma la “rectoría” o imponga criterios sobre ese Poder. Es más, dicho marco normativo está diseñado para garantizar la eficiencia de la función judicial y proteger a los servidores judiciales de injerencias externas, tal como indica el artículo 1 del Estatuto de Servicio Judicial:” En concreto sobre el artículo 1° del Estatuto de Servicio Judicial la Sala indicó en dicho voto que: “Nótese que la norma determina que las relaciones de empleo entre el Poder Judicial y sus servidores se encuentran reguladas por el Estatuto y su reglamento. La interpretación sistemática a que obliga ese numeral impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias. Esto se verifica porque el dictado del reglamento a que refiere la norma es, a su vez, competencia exclusiva de la Corte,” Además agrega que: “Una garantía más de la independencia del Poder Judicial en el tema de empleo es que el Jefe del Departamento de Personal se encuentra vinculado al Presidente de la Corte, excluyendo la injerencia de instancias externas.” Ahora bien, en este caso, este Tribunal considera que el proyecto de ley aquí cuestionado incide en las competencias propias de este Poder de la República, pues más allá de establecer principios o lineamientos generales en materia de empleo público que respeten el principio de separación de funciones, el artículo 14 de estudio, es claro en señalar que será el Ministerio de Planificación Nacional y Política Económica (Mideplán), quien emitirá las disposiciones de alcance general, las directrices y los reglamentos, según la respectiva familia de puestos, que regularán el reclutamiento y la selección de las personas servidoras públicas de nuevo ingreso. Ello, pues conforme lo dispuesto en los ordinales 13 y 2 del mismo proyecto de ley, lo señalado en el ordinal 14 aplicaría al Poder Judicial. Así las cosas, independientemente de que el artículo 2 referido acote que el ámbito de cobertura lo es “sin perjuicio del principio de separación de Poderes establecido en la Constitución Política”, el artículo 14 se aplicaría al Poder Judicial, y en ese sentido, se considera que tal disposición es inconstitucional, al autorizar que un órgano del Poder Ejecutivo, sea quien emita directamente disposiciones de alcance general, directrices y reglamentos, circulares, manuales, y resoluciones relativos a la materia de empleo público, que vacían de contenido las competencias reconocidas a la Corte Suprema de Justicia por el Constituyente original y derivado. Más aún cuando ya existe un marco normativo atinente al Poder Judicial que regula esos aspectos, en los términos que conmina el artículo 192 constitucional. En razón de lo expuesto, la norma consultada excede cualquier marco de cooperación que pueda establecer una política general de empleo público, pues no resulta propio que una dependencia del Poder Ejecutivo -Mideplán-, le dicte a otro Poder, de manera obligatoria, en este caso al Poder Judicial, las pautas o criterios para la selección y reclutamiento de su personal. Ello constituye una clara injerencia externa y, la intromisión del Poder Ejecutivo en aspectos que son competencia exclusiva del Poder Judicial. Por consiguiente, este Tribunal considera que el artículo 14 consultado contiene un vicio de inconstitucionalidad, por lesionar el principio de independencia de funciones que garantizan al Poder Judicial, los ordinales 9 y 154 de la Constitución Política.

Sobre el artículo 17.- Personal de Alta Dirección respecto del Poder Judicial (redacta la magistrada Picado Brenes) Se consulta sobre el artículo siguiente:

“ARTÍCULO 17- Personal de la alta dirección pública El Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá las disposiciones de alcance general, las directrices, y los reglamentos, en materia del personal de la alta dirección pública, que sean acordes con la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, para dotar a la Administración Pública de perfiles con integridad y probada capacidad de gestión, innovación y liderazgo, para procurar el mejoramiento de la prestación de bienes y servicios públicos. (…)” Los consultantes señalan la lesión al principio de separación de funciones y a la independencia del Poder Judicial, por cuanto en esta norma se dispone que, tratándose de puestos de alta dirección será Mideplán quien emita las disposiciones de alcance general, directrices y reglamentos al respecto. En el mismo sentido en que esta Sala ha venido resolviendo estos aspectos, la injerencia de este Ministerio, que es un órgano del Poder Ejecutivo, emitiendo disposiciones de alcance general, directrices y reglamentos al Poder Judicial en materia de los puestos de alta dirección, resulta violatorio del principio de separación de poderes y de independencia judicial. Además, la regulación de todo lo atinente a los puestos de alta gerencia del Poder Judicial ya cuenta con la normativa especial de dicho poder de la República. Existen varios precedentes de la Sala en que, expresamente, se entiende como plenamente justificado que en el caso específico del Poder Judicial tenga una regulación especial, separada y diferenciada -aunque, sujeta a los principios constitucionales fundamentales que prevén los artículos 191 y 192-. Se puede citar, en primer lugar, el voto n°2019-25268 (reiterando lo dicho en el voto n°550-1991), que indica:

“(…) en el caso de los poderes, su propia independencia constitucional, garantizada en general por el artículo 9° de la Constitución y, en los del Poder Judicial y del Tribunal Supremo de Elecciones por las de los artículos 99 y siguientes, 152 y siguientes y 177 de la misma, así como sus propias normas orgánicas, imponen a sus jerarcas la atribución y la responsabilidad de fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos, dentro, naturalmente, de sus disponibilidades presupuestarias, independientemente, desde luego, de que sus montos puedan coincidir o no con los de los diputados.” Siendo que el mismo artículo 154 constitucional somete al Poder Judicial únicamente a la Constitución y a la ley, pero no, a disposiciones del Poder Ejecutivo. Nótese que, estos son puestos de gran importancia pues estarían referidos, al menos, respecto de quienes integran el Consejo Superior del Poder Judicial, y las jefaturas de la Defensa Pública, Ministerio Público y el Organismo de Investigación Judicial. Puestos que son de gran relevancia, que deben estar particularmente protegidos de la injerencia de otros Poderes de la República, y que requieren la estabilidad del personal necesaria para un adecuado e imparcial desempeño del cargo, lo cual es incompatible con una subordinación a las disposiciones que emita al respecto el Mideplán, como lo dispone la norma en cuestión. Siendo competente al respeto el mismo Poder Judicial, como esta Sala lo ha indicado antes: “… sea el Régimen del Empleo Público, es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones.” (sentencia n°03575-1996). Nótese que, en la sentencia n°2018-019511, en que se conoció de la consulta legislativa respecto del proyecto de "Ley de Fortalecimiento de las Finanzas Publicas" (expediente legislativo nro. 20.580), esta Sala concluyó -luego de realizar una labor interpretativa respecto del contenido del proyecto- que, en concreto, lo previsto en los numerales 46, 47 y 49, atinentes a la “rectoría de la materia empleo público de Mideplán” y “la obligatoriedad de los lineamientos técnicos y metodológicos de la Dirección General del (sic) Servicio Civil”, no aplicaban para el Poder Judicial. Interpretación que se hizo, tomando en consideración el principio de independencia del Poder Judicial. Por ende, se considera existe un vicio de inconstitucionalidad en el artículo 17 objeto de consulta, en los términos expuestos.

Sobre el artículo 18.- Plazo de prueba y plazo de nombramiento de Alta Dirección respecto del Poder Judicial (redacta la magistrada Picado Brenes) En relación con esta disposición, los consultantes apuntan nuevamente la lesión al principio de separación de funciones y a la independencia del Poder Judicial, por cuanto se dispone que, tratándose de puestos de alta dirección técnica, el nombramiento será por 6 años con un período de prueba de 6 meses, prorrogables anualmente, sujeto a la evaluación de desempeño, lo cual según indican, incide en materia que es propia de regulación del Poder Judicial. El artículo 18 consultado dispone lo siguiente:

“ARTÍCULO 18- Nombramiento y período de prueba de la alta dirección pública Toda persona servidora pública, que sea nombrada en puestos de alta dirección pública, estará a prueba durante el período de seis meses y su nombramiento se efectuará por un máximo de seis años, con posibilidad de prórroga anual, la cual estará sujeta a los resultados de la evaluación del desempeño. (…)” Al igual que en acápites anteriores, es preciso reiterar que, la regulación de aspectos relativos al nombramiento y selección de personal, tal como también ocurre con los puestos de alta dirección técnica, el período de prueba, plazo o condiciones de prórroga de los nombramientos, son regulaciones propias y atinentes a la autonomía organizacional y administrativa del Poder Judicial, pues se trata de puestos estratégicos de gran importancia para su administración, cuya definición debe corresponder a esta, conforme los fines constitucionales de esa institución. Adviértase que, respecto del Poder Judicial, esos puestos estarían referidos, al menos, respecto de quienes integran el Consejo Superior del Poder Judicial, y las jefaturas de la Defensa Pública, Ministerio Público y el Organismo de Investigación Judicial. Puestos que son de gran relevancia, que deben estar particularmente protegidos de la injerencia de otros Poderes de la República, y que requieren la estabilidad del personal necesaria para un adecuado e imparcial desempeño del cargo, lo cual es incompatible con un nombramiento, cuya prórroga deba ser revisada anualmente como lo dispone la norma en cuestión. Una disposición en ese sentido sería inoperante para este poder de la República, tratándose de puestos de tal relevancia, cuyo nombramiento amerita diferentes concursos y una cuidadosa verificación de atestados de previo a su selección, por lo que, lejos de beneficiar a la administración de justicia, crearía tal inestabilidad, que afectaría el buen gobierno del Poder Judicial. Así las cosas, exigir la periodicidad y prórroga que dispone este artículo 18 para el caso del Poder Judicial, no solo atenta contra el principio de independencia, por estar en contradicción con la normativa especial que el Poder Judicial tiene ya al respecto, sino que resulta irrazonable y desproporcionado, pues el medio escogido por el legislador, no sería el más idóneo para procurar el fin pretendido -valorar la idoneidad del personal-, toda vez que el Poder Judicial ya cuenta con un profuso marco normativo, específicamente diseñado para su regulación, el cual no solamente tiene la intención de regular concretamente al Poder Judicial, velando por que se garantice su independencia frente a los otros Poderes de la República, sino que también asegura el principio de idoneidad que debe prevalecer en la selección de sus funcionarios, por lo que, la norma consultada, lejos de favorecer tal principio constitucional, alteraría de forma irrazonable y desproporcionada la organización de puestos que son fundamentales para la administración de justicia del Poder Judicial, poniendo, incluso, en riesgo la imparcialidad en el ejercicio del cargo que debe prevalecer en esos puestos, ante la continua presión de una prórroga de su nombramiento anual. Asimismo, cabe advertir que, al igual que con el artículo 14 consultado y de lo señalado en el artículo 2 de este proyecto, el ordinal 18 no establece salvedad alguna respecto de la aplicación de esta norma al Poder Judicial, como sí lo hace en este caso para con las universidades públicas, al señalar que, en su caso, se respetarán los plazos y períodos determinados en sus estatutos orgánicos y reglamentos. De ahí que tampoco resulta excluido el Poder Judicial de su aplicación. Por ende, se considera existe un vicio de inconstitucionalidad en el artículo 18 objeto de consulta, en los términos expuestos.

Sobre el artículo 21 (régimen único de despido) y el artículo 22 (proceso de despido) respecto del Poder Judicial (redacta magistrada Picado Brenes) Los artículos consultados disponen lo siguiente:

“ARTÍCULO 21- Procedimiento de despido Será causal de despido inmediato, aplicable a toda persona servidora pública, obtener dos evaluaciones del desempeño consecutivas inferiores a una calificación del setenta por ciento (70%), que se encuentren en firme, una vez agotado el procedimiento de impugnación de la calificación y siempre que se haya acreditado la responsabilidad de la persona servidora pública por dicha evaluación deficiente. Dicha calificación deberá ser debidamente justificada por la jefatura inmediata que la asigne y por la autoridad jerárquica que la confirme, en caso de haber sido recurrida.

Las entidades y los órganos incluidos deberán aplicar planes remediales pactados con la persona servidora pública, y con el asesoramiento de recursos humanos que les permitan determinar las causas por las que las personas servidoras públicas obtienen una calificación inferior al setenta por ciento (70%) y aplicar acciones para mejorar su desempeño. Si pese a la aplicación del plan remedial, la persona servidora pública no logra mejorar su desempeño y obtiene de forma consecutiva otra calificación inferior al setenta por ciento (70%), se configurará la causal de despido inmediato.

Las entidades y los órganos incluidos deberán aplicar planes remediales que les permitan determinar las causas por las que las personas servidoras públicas obtienen una calificación inferior al setenta por ciento (70%) y aplicar acciones para mejorar su desempeño. Si pese a la aplicación del plan remedial, la persona servidora pública no logra mejorar su desempeño y obtiene de forma consecutiva otra calificación inferior al setenta por ciento (70%), se configurará la causal de despido inmediato.

Todo despido justificado se entenderá sin responsabilidad para la Administración Pública y hará perder a la persona servidora pública todos los derechos que esta ley y la normativa aplicable en cada familia de puestos le concede, excepto las proporciones de los extremos laborales que correspondan y los adquiridos conforme a los regímenes de pensiones vigentes, siempre que se realice con observancia de las siguientes reglas:

• a)En todas las dependencias bajo el ámbito de aplicación de esta ley se aplicará un único procedimiento administrativo especial de despido, que garantice la satisfacción del debido proceso y sus principios, el cual deberá ser concluido por acto final en el plazo de dos meses, a partir de su iniciación. La investigación preliminar, en los casos en que se requiera, no dará inicio al procedimiento indicado en el párrafo anterior; no obstante, esta deberá iniciar, bajo pena de prescripción, a más tardar en el plazo de un mes a partir de que el jerarca o la jerarca tenga conocimiento, sea de oficio o por denuncia, de la posible comisión de una falta de uno de sus servidores. El mismo plazo de un mes de prescripción se aplicará si, iniciada la mencionada investigación preliminar, esta permanece paralizada por culpa de la Administración.

Para efectos del plazo de dos meses señalado en el primer párrafo de este inciso, el procedimiento ordinario de despido dará inicio a partir de que el jerarca institucional adopte la decisión de iniciar dicho procedimiento con el nombramiento del órgano director del proceso.

• b)Recibida, por parte del jerarca institucional, queja o denuncia o informado de presunta falta que, en su criterio, amerite el inicio de un procedimiento de despido, este nombrará un órgano director del proceso, el cual formulará por escrito los cargos y dará traslado a la persona servidora pública por un término de quince días, para evacuar toda la prueba ofrecida en una audiencia oral y privada, que notificará personalmente por el correo electrónico institucional del funcionario, correo certificado o por medio de publicación por una única vez en el diario oficial La Gaceta, cuando se demuestre que no existe forma de localizar al presunto infractor. Dentro del plazo indicado, la persona servidora pública deberá presentar, por escrito, sus descargos y podrá ofrecer toda la prueba que considere oportuna para respaldar su defensa, sea documental, testimonial o de cualquier otra índole en abono de estos, así como las excepciones o incidentes que considere oportunos.
• c)Si vencido el plazo que determina el inciso anterior, el servidor no hubiera presentado oposición o si expresamente hubiera manifestado su conformidad con los cargos que se le atribuyen, el jerarca institucional dictará la resolución de despido sin más trámite, salvo que pruebe no haber sido notificado por el órgano director del proceso o haber estado impedido por justa causa para oponerse.
• d)Si el cargo o los cargos que se hacen al empleado o empleada o persona servidora pública implica su responsabilidad penal o cuando sea necesario para el buen éxito del procedimiento administrativo disciplinario de despido o para salvaguardia del decoro de la Administración Pública, el jerarca institucional podrá decretar, en resolución motivada, la suspensión provisional de la persona servidora pública en el ejercicio del cargo. Si se incoara proceso penal en contra de la persona servidora pública, dicha suspensión podrá decretarse en cualquier momento como consecuencia de auto de detención o de prisión preventiva, o sentencia en firme con pena privativa de libertad.
• e)Si el interesado se opusiera dentro del término legal, el órgano director del proceso resolverá las excepciones previas que se hayan presentado y convocará a una comparecencia oral y privada, ante la Administración, en la cual se admitirá y recibirá toda la prueba y alegatos de las partes que sean pertinentes. Asimismo, podrán realizarse antes de la comparecencia las inspecciones oculares y periciales. Se podrá convocar a una segunda comparecencia únicamente cuando haya sido imposible en la primera dejar listo el expediente para su decisión final, y las diligencias pendientes así lo requieran.
• f)Si la persona servidora pública incurriera en nueva causal de despido durante el período de instrucción, se acumularán los cargos en el expediente en trámite y se procederá conforme a lo establecido en este capítulo.
• g)Evacuadas las pruebas, resueltas las excepciones previas presentadas dentro del plazo de los diez días otorgados para oponerse al traslado de cargos y presentadas las conclusiones por las partes o vencido el plazo para ello, se tendrá el expediente debidamente instruido y se elevará el informe respectivo al jerarca institucional para que dicte resolución definitiva.
• h)El jerarca o la jerarca institucional resolverá el despido de la persona servidora pública o declarará la falta de mérito y ordenará el archivo del expediente en este último supuesto. No obstante, en caso de considerar que la falta existe pero que la gravedad de esta no amerita el despido, ordenará una amonestación oral, una advertencia escrita o una suspensión sin goce de salario hasta por un mes, según la gravedad de la falta.
• i)Contra la resolución que ordene la amonestación oral, la advertencia escrita o la suspensión sin goce de salario, hasta por un mes, podrán interponerse los recursos ordinarios de revocatoria con apelación en subsidio, cuando este último resulte procedente, en un plazo de cinco días, contado a partir del día siguiente en que sea notificada dicha resolución. Ambos recursos podrán interponerse en forma conjunta o separada ante el órgano que emite la resolución, quien resolverá el recurso de revocatoria.

En el caso de las personas servidoras públicas que laboran en una institución cubierta por la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953, el recurso de apelación será resuelto por el Tribunal de Servicio Civil. El jerarca o la jerarca remitirá en alzada, al Tribunal de Servicio Civil, el expediente del procedimiento administrativo correspondiente donde conste la resolución de sanción así como la resolución del recurso de revocatoria, con expresión de las razones legales y de los hechos en que se fundamentan ambas resoluciones.

• j)Los casos no previstos en el presente procedimiento, en cuanto no contraríen el texto y los principios procesales que contiene este procedimiento, se resolverán aplicando supletoriamente, según el siguiente orden: la Ley 6227, Ley General de la Administración Pública, las normas del derecho público, los principios generales del derecho público, el Código de Trabajo, el Código Procesal Civil, los principios y las leyes del derecho común, la equidad, las costumbres y los usos locales.

Las instituciones de educación superior universitaria estatal emitirán normativa interna que regule esta materia, de conformidad con los artículos 84, 85 y 87 y el principio de debido proceso contenidos en la Constitución Política; en caso de que no exista normativa institucional al respecto aplicará, supletoriamente, la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las normas de derecho público, los principios generales del derecho público, el Código de Trabajo y el Código Procesal Civil.

ARTÍCULO 22- Fase recursiva Contra la resolución de despido emitida por el jerarca o la jerarca se tendrá un plazo improrrogable de cinco días hábiles, contado a partir de la notificación de la resolución para interponer el recurso de revocatoria y/o el recurso de apelación en subsidio, cuando este último resulte procedente, los cuales se resolverán con arreglo a las siguientes disposiciones:

• a)Si vencido el plazo de cinco días indicados anteriormente no se recurriera la resolución, esta quedará en firme y dará por agotada la vía administrativa.
• b)Si solo se interpuso recurso de revocatoria, lo resuelto por el jerarca o la jerarca será definitivo, la resolución quedará en firme y dará por agotada la vía administrativa.
• c)Si se interponen ambos recursos ordinarios a la vez, se tramitará la apelación, una vez declarada sin lugar la revocatoria.
• d)En el caso de las personas servidoras públicas que laboran en una institución cubierta por la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953, el recurso de apelación se concederá en ambos efectos ante el Tribunal de Servicio Civil. El jerarca o la jerarca remitirá en alzada, al Tribunal de Servicio Civil, el expediente del procedimiento administrativo de despido, donde conste la resolución de despido de la persona servidora pública, así como la resolución del recurso de revocatoria, con expresión de las razones legales y de los hechos en que se fundamentan ambas resoluciones.

Si únicamente se interpuso el recurso de apelación, el jerarca o la jerarca remitirá en alzada, al Tribunal de Servicio Civil, el expediente del procedimiento administrativo de despido donde conste la resolución de despido de la persona servidora pública, con expresión de las razones legales y de los hechos en que se fundamenta dicha resolución.

La resolución que adopte el Tribunal del Servicio Civil en alzada será definitiva, la resolución quedará en firme y agotará la vía administrativa. Dicho fallo es vinculante para el jerarca o la jerarca institucional.

Autorizado el despido por resolución firme, el jerarca o la jerarca institucional tendrá un plazo de caducidad de un mes, contado a partir de la notificación de dicha resolución, para hacerlo efectivo. Para la ejecución del despido por parte del jerarca o la jerarca no se requiere acuerdo adicional, basta la comunicación del cese de su condición de funcionaria a la persona servidora, con base en la resolución firme dictada.

Si el Tribunal de Servicio Civil revocara la sentencia dictada por el jerarca o la jerarca institucional, dictará en el mismo acto nuevo fallo y resolverá si procede la restitución del empleado en su puesto, con pleno goce de sus derechos y el pago en su favor de los salarios caídos.

En caso de que el Tribunal de Servicio Civil considere que la falta existe pero que la gravedad de esta no amerita el despido, podrá ordenar una amonestación oral, una advertencia escrita o una suspensión sin goce de salario hasta por un mes.

Las instituciones de educación superior universitaria estatal emitirán normativa interna que regule esta materia, de conformidad con los artículos 84, 85 y 87 y el principio de debido proceso contenidos en la Constitución Política; en caso de que no exista normativa institucional al respecto, aplicará supletoriamente la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las normas de derecho público, los principios generales del derecho público, el Código de Trabajo y el Código Procesal Civil.” Los diputados consultan sobre los artículos 21 y 22 del proyecto, referido al régimen disciplinario y sancionatorio aplicable al Poder Judicial. Indican que el art.21 establece una nueva causal de despido inmediato cuando el servidor público obtenga dos evaluaciones de desempeño consecutivas inferiores a 70%. Indican que el Poder Judicial cuenta con leyes especiales que regulan el régimen sancionatorio de sus servidores. Agregan que, las nuevas causales establecidas obedecen más a asuntos administrativos que a aspectos jurisdiccionales, lo que provoca una injerencia odiosa y peligrosa para nuestro Estado Social de Derecho y la independencia judicial. Consideran que la nueva causal de despido inmediato consistente en obtener dos calificaciones de desempeño consecutivas inferiores a 70% contenida en el artículo 21, así como las dos nuevas causales graves creadas mediante la reforma al artículo 48 de la Ley de Salarios de la Administración Pública, que se reforma en el artículo 49:A) del proyecto de ley, violentan los principios constitucionales de legalidad, seguridad jurídica, razonabilidad, proporcionalidad, separación de poderes, autonomía e independencia del Poder Judicial y sus órganos auxiliares, permitiendo además la injerencia del Mideplan en asuntos que son de competencia exclusiva de ese Poder de la República tal y como disponen los artículos 9, 154 y 156 de la Constitución Política, y la numerosa legislación internacional citada. Luego, sobre el único procedimiento de despido en relación con el Poder Judicial, indican que, bajo el ámbito de aplicación de esta propuesta de ley existirá un único procedimiento especial de despido (artículo 21). Respecto al régimen recursivo, se le da la potestad al Tribunal de Servicio Civil de resolver todos los recursos de apelación que interpongan contra resoluciones que determinen cualquier tipo de sanción disciplinaria (artículo 21:i) y artículo 22). Consideran que también violenta la independencia y autonomía del Poder Judicial, siendo que éste cuenta con su propia normativa y que por la especialidad de la función que realizan contiene disposiciones particulares en cuanto a competencias, plazos, faltas, sanciones y recursos, según lo establecen los artículos del 174 al 215 de su Ley Orgánica.

Al respecto, esta Sala considera que:

-La creación de una nueva causal de despido, por no pasar la evaluación del desempeño en dos ocasiones consecutivas (según el primer párrafo del art.21 del proyecto), no es inconstitucional en tanto la aplique el Poder Judicial y el Tribunal Supremo de Elecciones de acuerdo con su normativa interna. El establecimiento de esta causal nueva para el despido justificado, no violenta el Derecho de la Constitución, máxime si se entiende que esta nueva causal se aplicaría según las disposiciones internas del Poder Judicial, donde Mideplán no tendría ninguna injerencia.

-Sí resultan inconstitucionales los artículos 21 y 22 del proyecto consultado, respecto de su aplicación al Poder Judicial -y al TSE según se verá-, por cuanto, el ejercicio de la potestad disciplinaria de los servidores del Poder Judicial es parte esencial de la independencia judicial. Así entonces, todo lo que en esas normas se establece en cuanto a procedimiento y fase recursiva no podrían aplicarse al Poder Judicial, el cual ya goza de normativa interna que dispone el ejercicio de la potestad disciplinaria. Tal como esta Sala lo indicó mediante el voto n°2009-004849, todo procedimiento para la adopción de medidas disciplinarias, la suspensión o la separación del cargo se deberá resolver de acuerdo con las normas establecidas de comportamiento judicial. Así entonces, en consonancia con el principio de independencia judicial, la entidad con competencia disciplinaria será, exclusivamente el propio Poder Judicial.

Sobre el artículo 49 incisos a, b, g y h (reforma a normativa) respecto del Poder Judicial (redacta magistrada Picado Brenes) El artículo consultado dispone lo siguiente:

“ARTÍCULO 49- Modificaciones Se modifican las siguientes disposiciones normativas, de la manera que se describe a continuación:

• A)Se reforman los artículos 12 y 48 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957. El texto es el siguiente:

Artículo 12- El incentivo por anualidad se reconocerá el mes inmediato siguiente al aniversario del ingreso o reingreso de la persona servidora pública que labore bajo el esquema de salario compuesto y de acuerdo con las siguientes normas:

• a)Si el servidor es trasladado a un puesto de igual o inferior categoría a la del puesto que esté ocupando, no habrá interrupción alguna en cuanto al cómputo del tiempo para el aumento de salario.
• b)Si el servidor es ascendido, comenzará a percibir el mínimo de anualidades de la nueva categoría; bajo ningún supuesto se revalorizarán los incentivos ya reconocidos.
• c)A las personas servidoras públicas, en propiedad o interinos, se les computará, para efectos de reconocimiento del incentivo por anualidad, el tiempo de servicio prestado en otras entidades del sector público.

Artículo 48- Criterios para la evaluación del desempeño Cada jefatura de la Administración Pública, al inicio del año, deberá asignar y distribuir a todos los funcionarios entre los procesos, proyectos, productos y servicios de la dependencia, estableciendo plazos de entrega y tiempo estimado para su elaboración. Será responsabilidad de cada superior jerárquico dar seguimiento a este plan de trabajo anual; su incumplimiento será considerado falta grave de conformidad con la normativa aplicable.

Para el seguimiento regular y frecuente de las actividades del plan de trabajo, cada administración deberá establecer un sistema informático al efecto, alimentado por cada funcionario con las actividades diarias vinculadas a dichos procesos, proyectos y productos, y el cumplimiento de plazos y tiempos. Será responsabilidad de cada funcionario, incluido todo el nivel directivo, la actualización y el mantenimiento al día de la información necesaria para la evaluación de su desempeño, de conformidad con los procesos, proyectos, productos y servicios asignados particularmente, sus plazos de entrega y tiempos estimados para su elaboración, en dicho sistema informático que la administración pondrá a su disposición. Su incumplimiento será considerado falta grave de conformidad con la normativa aplicable.

El incentivo por anualidad se concederá únicamente mediante la evaluación del desempeño para aquellas personas servidoras públicas que laboren bajo el esquema de salario compuesto, que hayan cumplido con una calificación mínima de "muy bueno" o su equivalente numérico, según la escala definida, de conformidad con las siguientes reglas:

• a)Un ochenta por ciento (80%) de la calificación anual se realizará sobre el cumplimiento de las metas anuales definidas para cada funcionario, de conformidad con lo dispuesto en el presente capítulo.
• b)Un veinte por ciento (20%) será responsabilidad de la jefatura o superior, que se evaluará según el buen rendimiento acorde con las competencias necesarias para el desempeño del puesto.
• B)Se adiciona el inciso l) al artículo 13 y se reforman los artículos 1 y 7 bis de la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953. Los textos son los siguientes:

Artículo 13- Son atribuciones y funciones del director general de Servicio Civil:

[…]

• l)Agotar la vía administrativa de los asuntos sometidos a la competencia de la Dirección General de Servicio Civil.

Artículo 1- Este estatuto y sus reglamentos regularán las relaciones entre el Estado y las personas servidoras públicas, con el propósito de garantizar la eficiencia de la Administración Pública.

Artículo 7 bis- Se dota a la Dirección General de Servicio Civil de personalidad jurídica instrumental únicamente para efectos de manejar su propio presupuesto y con el fin de que cumpla sus objetivos de conformidad con la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953, demás leyes conexas, y administre su patrimonio.

• C)Se reforma el artículo 704 de la Ley 2, Código de Trabajo, de 27 de agosto de 1943. El texto es el siguiente:

(…)

• D)Se reforman los artículos 7, 8, 9 y 10 de la Ley 8777, Creación de los Tribunales Administrativos del Régimen de Pensiones y Jubilaciones del Magisterio Nacional y del Servicio Civil, de 7 de octubre de 2009. Los textos son los siguientes:

(…)

• E)Se reforman los artículos 7 bis y 35 de la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953. Los textos son los siguientes:

(…)

• F)Se reforma el inciso 5) del artículo 112 de la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978. El texto es el siguiente:

(…)

• G)Se adiciona el artículo 85 a la Ley 5155, Estatuto de Servicio Judicial, de 10 de enero de 1973. El texto es el siguiente:

Artículo 85.- Las competencias definidas en la presente ley, para los órganos del Poder Judicial, serán realizadas en coordinación con el Ministerio de Planificación Nacional y Política Económica (Mideplán), en lo que corresponde a los temas a que se refiere la Ley General de Empleo Público.

• H)Se adiciona el artículo 17 a la Ley 2422, Ley de Salarios del Poder Judicial, de 11 de agosto de 1959. El texto es el siguiente:

Artículo 17.- Las competencias definidas en la presente ley, para los órganos del Poder Judicial, serán realizadas en coordinación con el Ministerio de Planificación Nacional y Política Económica (Mideplán), en lo que corresponde a los temas a que se refiere la Ley General de Empleo Público.

• I)Se reforma el artículo 11 de la Ley 6877, Ley de Creación del Servicio Nacional de Aguas, Riego y Avenamiento (Senara), de 18 de julio de 1983. El texto es el siguiente:

(…)

• J)Se reforma el inciso f) del artículo 11 de la Ley 7800, Creación del Instituto Costarricense del Deporte y la Recreación y del Régimen Jurídico de la Educación Física, el Deporte y la Recreación, de 30 de abril de 1998. El texto es el siguiente:

(…)

• K)Se reforma el inciso k) del artículo 42 de la Ley 9694, Ley del Sistema de Estadística Nacional, de 4 de junio de 2019. El texto es el siguiente:

(…)

• L)Se reforma el inciso ch) del artículo 11 de la Ley 4716, Ley de Organización y Funcionamiento del Instituto de Fomento y Asesoría Municipal (IFAM), de 9 de febrero de 1971. El texto es el siguiente:

(…)

• M)Se reforma el inciso I) del artículo 17 de la Ley 2726, Ley Constitutiva del Instituto Costarricense de Acueductos y Alcantarillados, de 14 de abril de 1961. El texto es el siguiente:

(…)

• N)Se reforma el inciso ñ) del artículo 53 Ley 7593, Ley de la Autoridad Reguladora de los Servicios Públicos (Aresep), de 9 de agosto de 1996. El texto es el siguiente:

(…)

• Ñ)Se reforma el inciso t) del artículo 28 de la Ley 7558, Ley Orgánica del Banco Central de Costa Rica, de 3 de noviembre de 1995. El texto es el siguiente: (…)

Los consultantes consideran que el art.49 del proyecto consultado resulta inconstitucional. Particularmente argumentan en contra del inciso a), el inciso b) y los incisos g) y h). Sobre el inciso a) se refieren a las nuevas causales para el despido con justa causa, referidos, según los consultantes a las calificaciones inferiores a 70% y a no alimentar la base de datos. Sobre la primera causal ya esta Sala se pronunció en el considerando anterior, y en cuanto a la segunda causal sobre la alimentación de la base de datos, nótese que no está claramente fundamentada, por ello esta Sala omite pronunciamiento.

Sobre el inciso b) se consulta por cuanto se estaría sometiendo al Poder Judicial al Estatuto de Servicio Civil. Al respecto, observa esta Sala que, el artículo en cuestión adiciona y reforma algunos artículos del Estatuto de Servicio Civil, particularmente el artículo 1, tal como se observa en el siguiente sentido:

Estatuto de Servicio Civil (versión actual) Estatuto de Servicio Civil (propuesta de reforma) Artículo 1º.- Este Estatuto y sus reglamentos regularán las relaciones entre el Poder Ejecutivo y sus servidores, con el propósito de garantizar la eficiencia de la Administración Pública, y proteger a dichos servidores.

Artículo 1- Este estatuto y sus reglamentos regularán las relaciones entre el Estado y las personas servidoras públicas, con el propósito de garantizar la eficiencia de la Administración Pública.

Así entonces, a partir del proyecto consultado, el Estatuto de Servicio Civil regularía las relaciones, no sólo al Poder Ejecutivo, sino en general de todo el Estado, incluido el Poder Judicial. Ello per se no sería inconstitucional, claro está, si se entiende que, la sujeción al Poder Judicial es a principios generales de empleo público y que, ello no implica que se esté derogando la normativa especial del Poder Judicial en estas materias, pues sobre esta materia de empleo público de los funcionarios prevalecería esta normativa especial por sobre el Estatuto de Servicio Civil. Además, la Dirección General de Servicio Civil no podría tener competencia respecto de los asuntos referidos al Poder Judicial. Bajo esta interpretación, el artículo 49 inciso b) no es inconstitucional, siempre que se interprete conforme a lo indicado.

Ahora bien, en el caso de los incisos g) y h) del artículo 49, estos resultan inconstitucionales por violar la independencia del Poder Judicial. Lo anterior por cuanto, por medio de tales incisos se pretendía realizar sendas adiciones al Estatuto de Servicio Judicial y a la Ley de Salarios del Poder Judicial, a efectos de incluir la injerencia de Mideplán en las competencias definidas en esta normativa especial, indicando que los órganos del Poder Judicial deberán realizar las competencias definidas en esas leyes, en coordinación con dicho ministerio. Ello resulta evidentemente violatorio del principio constitucional de independencia judicial, pues se trataría de un órgano del Poder Ejecutivo con el cual, las autoridades competentes del Poder Judicial, estaría obligadas a coordinar el ejercicio de sus competencias, en materia de empleo público de los funcionarios judiciales. Se tendría así a la Corte Plena, el presidente de la Corte Suprema de Justicia, el Consejo de Personal, el Consejo de la Judicatura y el Departamento de Personal en obligada coordinación con Mideplán antes de la adopción de acciones en temas relacionados con el empleo público contenidos en el proyecto de ley sean: planificación del trabajo, organización del trabajo, gestión del empleo, gestión del rendimiento, gestión de la compensación y gestión de las relaciones laborales. En temas que son de competencia exclusiva del Poder Judicial, como lo es el manejo interno de su personal, resulta excluyente cualquier tipo de coordinación obligatoria con otro órgano del Estado. Si bien se trata de coordinación y no de dirección, es lo cierto que, en esta materia, que es propia del fuero interno de independencia judicial, ni siquiera la coordinación resultaría admisible para el ejercicio de competencias exclusivas del Poder Judicial. “La independencia judicial se manifiesta en diversos planos, en el plano externo, se traduce por la autonomía del Poder Judicial en materia económica y por la inamovilidad de su personal, así como, en lo funcional, por la posibilidad real de tomar sus decisiones de acuerdo con criterios propios y no como resultado de presiones procedentes de determinados grupos, instituciones o personas.” (sentencia n°2000-005493). Además, debe recordarse lo que indica el art.154 Constitucional: “El Poder Judicial sólo está sometido a la Constitución y a la ley…”, no hay sumisión, ni siquiera en el plano de la coordinación, con otro órgano de otro poder de la República. Nótese que incluso están fuera del alcance del legislador, “las atribuciones constitucionales de ordenar, planificar o programar por ejemplo la función administrativa de manejo de personal.” (sentencia n°2017-009551), con mucha más razón, estarían fuera del alcance de otro poder de la República. Ello por cuanto, incluso se impide “una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias.” (sentencia n°2018-019511). Por consiguiente, este Tribunal considera que los incisos g y h del artículo 49 contienen un vicio de inconstitucionalidad, por lesionar el principio de independencia de funciones que garantizan al Poder Judicial, los ordinales 9 y 154 de la Constitución Política.

• 4)Conclusión -Sobre los artículos 12 (base de datos), 13.h (familia en puestos de confianza), 15 (postulados de reclutamiento y selección), 19 (movilidad o traslados), y 31 (metodología de trabajo), dado que no se realiza la fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, se declara inevacuable la consulta por falta de fundamentación.

-En los términos indicados y conforme a la jurisprudencia de esta Sala, resultan inconstitucionales del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, los artículos siguientes.

Analizados todos los aspectos consultados en cuanto al artículo 2 (inciso a), 6 (inciso b), 7 (incisos d, g y p), 9 (segundo párrafo del inciso a), 13 (inciso f), 14, 17, 18, 21 y 22, 49 (inciso b, g y h), del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación al principio de separación de funciones, al principio de independencia judicial, al régimen particular de empleo del Poder Judicial y a las competencias constitucionales administrativas de la Corte Suprema de Justicia. La independencia económica, personal, funcional, orgánica e institucional, tanto del Poder Judicial en sí mismo, como de los jueces y auxiliares de la justicia, es esencial en un Estado Constitucional de Derecho. Conforme a tal principio, cada poder es independiente del otro, cada órgano del Estado debe poder ejercer su función con independencia de los otros (art.9° Constitucional). Puede haber interrelación entre ellos, pero nunca subordinación, ni tampoco coordinación obligada en materias propias de la competencia exclusiva y excluyente del Poder Judicial. Es lo cierto es que la lectura integral del proyecto permite concluir que no se garantiza debidamente el principio de separación de poderes, no sólo por la sujeción a Mideplán (artículos 6, 7 y 9 por ejemplo), sino por la imposición de ciertas materias que son de competencia exclusiva y excluyente del Poder Judicial (artículos 14, 17, 18, 21 y 22 por ejemplo). Además, no solo se trata de una vulneración a los principios de separación de funciones y a la independencia judicial, sino a todo el sistema democrático y de organización del Poder que el Constituyente ha creado en nuestro Estado de Derecho. “Una garantía más de la independencia del Poder Judicial en el tema de empleo es que el Jefe del Departamento de Personal se encuentra vinculado al Presidente de la Corte, excluyendo la injerencia de instancias externas.” (voto n°2018-019511).

Finalmente, esta Sala observa del expediente legislativo que, la Corte Suprema de Justicia emitió un criterio desfavorable al proyecto en la consulta que le hiciera la Asamblea Legislativa, cuando indicó lo siguiente, mediante oficio n°SP-62-2021 del 03 de junio del 2021:

“Como se dijo, si bien el nuevo texto del proyecto … se mantiene la latente oposición de incluir al Poder Judicial en una normativa que implica una clara injerencia del Poder Ejecutivo en cuestiones que -constitucional y legalmente- son propias de esta otra institución. (…) se mantiene la base normativa del anterior texto y se pretende regular un régimen de empleo público que no considera aspectos diferenciadores de las entidades y órganos que somete a su ámbito de cobertura. Así, el Poder Judicial sigue formando parte del proyecto, con las consecuencias que eso implica para su estructura interna y funcionamiento, según las observaciones hechas en los anteriores informes.” (subrayado no corresponde al original) (Las notas particulares de los magistrados, sobre este apartado, por realizarse de forma conjunta con el Tribunal Supremo de Elecciones, se incluyen al final del siguiente apartado).

X.- Sobre la consulta de violación a la independencia del Tribunal Supremo de Elecciones.- 1) Aspectos consultados Los consultantes diputados consideran que los siguientes artículos del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, son violatorios del principio de separación de poderes. En concreto, consultan sobre los artículos siguientes, indicados, sea en el encabezado del título general o en el resto del texto del escrito de interposición:

· 2.a (ámbito de cobertura), · 6.b (rectoría de Mideplan), · 7 (competencias de Mideplan), · 9.a (oficinas de Recursos Humanos), · 12 (base de datos), · 13 (familias de puestos), · 14 (reclutamiento y selección), · 15 (postulados de reclutamiento y selección), · 17 (personal de Alta Dirección), · 18 (plazo de prueba y plazo de nombramiento), · 19 (movilidad o traslados), · 21 (régimen único de despido), · 22 (proceso de despido), · 31 (metodología de trabajo), En primer lugar, sobre los artículos 12 (base de datos), 13.h (familia de puestos de confianza), 15 (postulados de reclutamiento y selección), 19 (movilidad o traslados), y 31 (metodología de trabajo), dado que no se realiza la fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, se declara inevacuable la consulta por falta de fundamentación.

En cuanto al resto de artículos, los consultantes consideran que los artículos 2.a, 6, 7, 9, 13, 14, 17, 18, 21 y 22 del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, es violatorio de la independencia del TSE y por tanto, de los artículos 9 y 99 de la Constitución. Los consideran inconstitucionales por cuanto obliga al TSE a aplicar y ejecutar las disposiciones de alcance general, directrices y reglamentos que emita el Mideplán en violación de su independencia, permitiendo una injerencia del Poder Ejecutivo en materia que le está vedada por mandato constitucional y en retroceso del Estado de Derecho. Indican que el art.9 de la Constitución garantiza la independencia del TSE situándolo en el rango de los demás Poderes del Estado, y no solo en cuanto a los actos relativos al sufragio sino respecto a las funciones que establece la propia Constitución y las demás leyes. Así, se advierte la existencia de aspectos que comprometen las competencias legales y constitucionales del TSE, el art.13.a.f que establece un único régimen de empleo público para los servidores y Magistrados del TSE; obligación de aplicar procesos de reclutamiento y selección de personas con las disposiciones de alcance general, directrices y reglamentos emitidos por Mideplán (art.14), sujeción a Mideplán en reclutamiento y selección de personal de alta dirección técnica, obligación de 6 meses de prueba y 6 años de nombramiento (art.17 y 18); un único procedimiento administrativo especial de despido. Además de la inclusión en el art.2.a, la obligación de aplicar y ejecutar las disposiciones de alcance general, directrices y reglamentos que emita el Mideplán violentando la independencia del TSE (arts. 9 y 99) y propone la sujeción e injerencia del Poder Ejecutivo en materia que le está vedada por mandato constitucional aunado el retroceso que implica para el Estado de Derecho.

Así entonces se procede al examen de los artículos indicados. Realizándose de previo, un resumen jurisprudencial sobre el tema de independencia del TSE, el cual servirá de contexto para el examen de cada artículo consultado.

• 2)Antecedentes Jurisprudenciales sobre el Principio Constitucional de Separación de Poderes en cuanto al Tribunal Supremo de Elecciones Respecto del Tribunal Supremo de Elecciones (TSE), debe indicarse que también existe profusa jurisprudencia sobre el fundamento, justificación y relevancia de su independencia. En el voto n°3194-1992, la Sala resolvió:

“En el caso de la materia electoral, la Constitución de 1949 dio especial importancia a la necesidad de segregar todo lo relativo al sufragio, principalmente de la órbita de los poderes políticos del Estado. En esa dirección, estableció una serie de principios y adoptó mecanismos eminentemente formales para garantizar la independencia del sufragio, sobre todo mediante la plena autonomía del órgano llamado a organizarlo, dirigirlo y fiscalizarlo. Originalmente en el artículo 99 constitucional, y luego también en el 9° -por la adición introducida por ley 5704 de 5 de junio de 1975- no sólo se atribuyó al Tribunal Supremo de Elecciones la organización, dirección y vigilancia de los actos relativos al sufragio, sino que, además, se le otorgó el rango e independencia propios de un poder del Estado.” Mientras que en el voto n°00495-1998, se agregó que “aunque (el TSE) no es un Poder del Estado en sentido estricto, sí cumple una función primordial en el Estado costarricense -cual es la de ocuparse de la materia electoral-, y por norma constitucional -transcrito párrafo segundo del artículo 9- se le confiere el rango e independencia de un poder del Estado”. Por su parte, en el voto n°2000-06326, esta Sala precisó:

“III.- DE LA NATURALEZA JURÍDICO-CONSTITUCIONAL DEL TRIBUNAL SUPREMO DE ELECCIONES. Con ocasión de los problemas electorales que motivaron la revolución de 1948, los miembros de la Asamblea Nacional Constituyente de 1949 tuvieron especial cuidado de cuidar la materia electoral, segregando todo lo relativo al sufragio, principalmente de la órbita de los Poderes del Estado, especialmente del Ejecutivo y de la Asamblea Legislativa, sin dejar de lado el Judicial. Establecieron una serie de principios básicos sobre los cuales se desarrolla el ejercicio del sufragio:

"La ley regulará el ejercicio del sufragio de acuerdo con los siguientes principios:

1. Autonomía de la función electoral; 2. Obligación del Estado de inscribir, de oficio, a los ciudadanos en el Registro Civil y de proveerles de cédula de identidad para ejercer el sufragio; 3. Garantías efectivas de libertad, orden, pureza e imparcialidad por parte de las autoridades gubernativas; 4. Garantías de que el sistema para emitir el sufragio les facilita a los ciudadanos el ejercicio de ese derecho; 5. Identificación del elector por medio de cédula con fotografía u otro medio técnico adecuado dispuesto por la ley para tal efecto; 6. Garantías de representación para las minorías; 7. Garantías de pluralismo político; 8. Garantías para la designación de autoridades y candidatos de los partidos políticos, según los principios democráticos y sin discriminación (artículo 95 de la Constitución Política); y adoptaron mecanismos eminentemente formales para garantizar la independencia del sufragio, dotándole de plena autonomía al órgano llamado a organizarlo, dirigirlo y vigilarlo (el Tribunal Supremo de Elecciones), originalmente en los términos del artículo 89 de la Constitución Política, y luego en los del artículo 9 (adicionado mediante Ley número 5704, de 5 de junio de 1975), en virtud del cual, se delegó a este Tribunal, no sólo la competencia de la materia electoral –según se anotó anteriormente-, sino que además se le otorgó el rango e independencia propios de un poder del Estado. De lo dicho queda claro que el Tribunal Supremo de Elecciones es un órgano constitucional especializado en la materia electoral, que por disposición constitucional goza de la misma independencia de los Poderes del Estado en el ejercicio de sus atribuciones; es decir, tiene plena autonomía para organizar, dirigir y vigilar los procesos electorales y todos los actos relativos al sufragio, con la independencia y rango propios de un Poder estatal, lo cual ha sido considerado con anterioridad en la jurisprudencia constitucional en los siguientes términos:

"El Tribunal como órgano constitucional especializado para la materia electoral, con el rango e independencia de los poderes públicos, puede ser investido, sólo que en su ámbito específico, con cualquiera de las funciones del Estado, y de hecho lo está con las tres [que tiene asignadas], tener a su cargo «la organización, dirección y vigilancia de los actos relativos al sufragio, así como las demás funciones que le atribuyan la Constitución y las leyes»" (sentencia número 0980-91, de las 13:30 horas del 24 de mayo de 1991).

En este sentido, y por la importancia que reviste, debe hacerse mención a la facultad interpretativa que la jurisprudencia constitucional reconoció a este tribunal constitucional, obviamente en materia propia de su competencia: la electoral, en los siguientes términos:

"[...] competencias de las los artículos 97 párrafo segundo y 121 inciso 1) excluyen aún a la Asamblea Legislativa y que el 102 termina de reforzar con una no igualada amplitud, sobre todo al atribuirle poderes tan amplios como el de «interpretar en forma exclusiva y obligatoria las disposiciones constitucionales y legales referentes a la materia electoral» inciso 3º)" (sentencia número 0980-91, supra citada).

En virtud de esta especial competencia, de las prerrogativas y potestades del Tribunal Supremo de Elecciones, es que esta Sala Constitucional concluyó que la esfera de lo electoral es "un ámbito constitucional especial, al que no le convienen las mismas reglas que a los demás Poderes Públicos" (sentencia número 3194-92, de las 16:00 del 27 de octubre de 1992). A modo de ejemplo, debemos hacer referencia obligada a la competencia reglamentaria que se la jurisprudencia constitucional le ha reconocido únicamente en relación con la materia propia de su competencia, obviamente la actividad electoral:

(…)

IV.- DEL ÁMBITO DE COMPETENCIA DEL TRIBUNAL SUPREMO DE ELECCIONES: LA MATERIA ELECTORAL A LA LUZ DE LA JURISPRUDENCIA CONSTITUCIONAL. En reiteradas ocasiones esta Sala se ha manifestado acerca de la especial competencia del Tribunal Supremo de Elecciones, la cual es definida por propia disposición constitucional –artículos 9 y 99 de la Constitución Política- como la materia electoral; y en este sentido se pueden consultar las sentencias números 0980-91, 2150-92, 3194-92, 2430-94, 2456-96, 0034-98, 0466-98, 0563-98 y 0969-98. En todas estas resoluciones reconoce la competencia exclusiva que tiene en materia electoral, es y únicamente cuando éste deniegue su competencia que consideró que la Sala Constitucional puede conocer de esa materia, siempre y cuando se alegue que los actos impugnados lesionan derechos fundamentales:

(…) De esta suerte, ha indicado que la actividad electoral comprende las de organizar, dirigir y fiscalizar todos los actos relativos con el proceso de elecciones nacionales (sentencia número 0653-98), la cual se desarrolla en actividades tales como las siguientes, es decir, sin que ello implique una lista limitada, a modo de ejemplo: la regulación de las normas que rigen la deuda política, así como el control que sobre esta materia tiene el Tribunal Supremo de Elecciones en esta materia (0980-91, 3666-93, 0515-94, 0428-98); el control de las regulaciones estatutarias relativas al derecho de elegir y ser elegido en los procesos internos de los partidos políticos (sentencia número 3294-92); la integración del Consejo Municipal, la declaratoria de la elección y las posteriores sustituciones por pérdidas de credenciales de los regidores y síndicos municipales (sentencia número 2430-94); la tramitación del proceso contencioso electoral para conocer de la cancelación o anulación de credenciales de regidores municipales (sentencia número 0034-98); el cierre de negocios comerciales en los que se expende licor y que se encuentran ubicados en el centro de la ciudad de San José a consecuencia de la realización de las plazas públicas que celebran los partidos políticos (sentencia número 0466-98); y la determinación por parte del Tribunal Supremo de Elecciones de donde realizará la celebración solemne el día de las elecciones, para el conteo inicial de los resultados de las elecciones nacionales (0563-98).” Ahora bien, en lo referente específicamente al régimen de empleo público, aplicable al TSE, lo cierto es que no se tienen precedentes concretos sobre esa materia. Aunque sí cabe remitir, nuevamente, al voto n° 550-1991, en cuanto se dispuso:

“(…) en el caso de los poderes, su propia independencia constitucional, garantizada en general por el artículo 9° de la Constitución y, en los del Poder Judicial y del Tribunal Supremo de Elecciones por las de los artículos 99 y siguientes, 152 y siguientes y 177 de la misma, así como sus propias normas orgánicas, imponen a sus jerarcas la atribución y la responsabilidad de fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos, dentro, naturalmente, de sus disponibilidades presupuestarias, independientemente, desde luego, de que sus montos puedan coincidir o no con los de los diputados.” También cabe citar el voto n° 2005-14298 (que conoció de una acción contra el plazo de nombramiento del Oficial Mayor del Registro Civil). En dicho voto la Sala resolvió la acción con expreso sustento en los artículos 191 y 192 de la Constitución Política. Se reiteró que si bien la Constitución hace referencia a un estatuto de servicio civil, lo cierto es que:

“(…) El legislador derivado, optó sin embargo, por regular el servicio no de modo general, sino por sectores, promulgando así el Estatuto de Servicio Civil (que se aplica a los servidores del Poder Ejecutivo) y posteriormente, otros estatutos para regular la prestación de servicios en los restantes poderes del Estado y en algunas instituciones descentralizadas. No obstante, a pesar de que el legislador no recogió la idea del constituyente y reguló sólo parcialmente el servicio público, es lo cierto que los principios básicos del régimen (escogencia por idoneidad, estabilidad en el empleo), cubren a todos los funcionarios al servicio del Estado, tanto de la administración central, como de los entes descentralizados. (…) Se repite que la intención del constituyente originario fue la existencia una sola ley, un Estatuto, que regulara todo el empleo público. No obstante, lo importante es que se delegó en el legislador derivado, la regulación en detalle de la cobertura del régimen especial, lo cual podía hacer, como lo hizo, en leyes separadas, sin detrimento del mandato constitucional.” También se indicó:

“(…) En un Tribunal como éste, donde la materia electoral es su esencia, los principios constitucionales del régimen de empleo público de estabilidad e idoneidad comprobada, deben ser resguardados con mayor celo, por cuanto la intención del constituyente al crear este Poder, fue cercenar por completo la posibilidad de que los funcionarios electorales, se inmiscuyeran en toda actividad política, con el fin de garantizar un Órgano Electoral independiente.” De todo lo antes expuesto se concluye que, al Tribunal Supremo de Elecciones, como órgano constitucional encargado de organizar, dirigir y fiscalizar la independencia del sufragio, se le otorgó el rango y la independencia propios de un poder del Estado. Por ello goza de plena independencia para cumplir sus cometidos constitucionales. Debido a los problemas electorales que motivaron la revolución de 1948, los miembros de la Asamblea Nacional Constituyente de 1949 tuvieron especial cuidado de la materia electoral, segregando todo lo relativo al sufragio, principalmente de la órbita de los Poderes del Estado, blindando la función electoral por medio de distintos principios y garantías, como lo es en primer lugar, la autonomía de la función electoral. De lo dicho queda claro que el Tribunal Supremo de Elecciones es un órgano constitucional especializado en la materia electoral, que por disposición constitucional goza de la misma independencia de los Poderes del Estado en el ejercicio de sus atribuciones; es decir, tiene plena autonomía para organizar, dirigir y vigilar los procesos electorales y todos los actos relativos al sufragio, con la independencia y rango propios de un Poder estatal. Así, esta Sala Constitucional concluyó que “la esfera de lo electoral es un ámbito constitucional especial, al que no le convienen las mismas reglas que a los demás Poderes Públicos" (sentencia n°2000-06326). Si bien es cierto, los principios constitucionales del régimen de empleo público (idoneidad y estabilidad) también le aplican, se entiende que el TSE cuenta con sus propias normas orgánicas o especiales que les dan competencia exclusiva a sus jerarcas para fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos.

Finalmente, al igual que se indicó supra sobre el Poder Judicial, lo anterior no impide que el Legislador dicte una Ley General de Empleo Público en la que se incluya al TSE, siempre y cuando se respete los principios de separación de poderes o de funciones y de independencia electoral.

• 3)Sobre el examen del Articulado consultado Sobre el artículo 2.a (ámbito de cobertura) respecto del Tribunal Supremo de Elecciones (Redacta el magistrado Castillo Víquez) La norma consultada indica lo siguiente:

“ARTÍCULO 2- Ámbito de cobertura Esta ley es aplicable a las personas servidoras públicas de las siguientes entidades y órganos bajo el principio de Estado como patrono único:

• b)Los Poderes de la República (Ejecutivo, Legislativo y Judicial), sus órganos auxiliares y adscritos, y el Tribunal Supremo de Elecciones (TSE), sin perjuicio del principio de separación de Poderes establecido en la Constitución Política.

(…)” Tal como se dijo para el caso del Poder Judicial, ante tal panorama, y retomando lo que se expuso supra, en el sentido de que es plausible sujetar a todos los poderes del Estado a un único estatuto de empleo público, con lo que la sujeción del Poder Judicial y del Tribunal Supremo de Elecciones a esta ley no resulta inconstitucional, sí es inconstitucional por el hecho de no excluir a los (as) funcionarios (as) que ejercen las funciones jurisdiccionales -jueces- o para- jurisdiccionales -fiscales, defensores públicos y profesionales y personal especializado del Organismo de Investigación Judicial, etc.- y los funcionarios del nivel gerencial o de alta dirección política como los denomina el proyecto de ley, al igual que a los funcionarios del Tribunal Supremo de Elecciones que ejercen función electoral -letrados, directores del Departamentos, profesionales, etc.-, y quienes ejercen cargo de alta dirección política, así como el personal administrativo, profesional y técnico, que defina de forma exclusiva y excluyente cada jerarca del poder respectivo, pues, en estos casos, no es posible someterlo a directrices, disposiciones, circulares, manuales que emita Mideplán. Lo anterior significa, que el Poder Judicial y el Tribunal Supremo de Elecciones sí estaría sometido a esas potestades que la ley le otorga al Mideplán cuando se trata del resto de los funcionarios -los que defina cada jerarca del Poder Judicial y el Tribunal Supremo de Elecciones de manera exclusiva y excluyente-, que forman parte del staff administrativo, auxiliar o personal de apoyo.

Sobre el artículo 6 (rectoría de Mideplán), respecto del Tribunal Supremo de Elecciones (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 6- Creación del Sistema General de Empleo Público La rectoría del Sistema General de Empleo Público estará a cargo del Ministerio de Planificación Nacional y Política Económica (Mideplán). Dicho sistema estará compuesto por lo siguiente:

• a)El Ministerio de Planificación Nacional y Política Económica (Mideplán).
• b)Las oficinas, los departamentos, las áreas, direcciones, unidades o denominaciones homólogas de Gestión de Recursos Humanos de las entidades y los órganos bajo el ámbito de aplicación de la presente ley. (…)” En el mismo sentido en que se indicó para el Poder Judicial, en relación con el artículo 6, inciso b, del proyecto de ley consultado es inconstitucional, toda vez que somete a la potestad de dirección del Poder Ejecutivo al Poder Judicial y al Tribunal Supremo de Elecciones, lo que resulta contrario a los principios de independencia judicial y electoral. De ahí que las oficinas, los departamentos, las áreas, direcciones, unidades de Gestión de Recursos Humanos de estos poderes no pueden estar bajo la citada potestad, excepto en lo que atañe a quienes presten servicios administrativos básicos, auxiliares, que no inciden sobre las competencias exclusivas y excluyentes ni funciones administrativas necesarias para el cumplimiento de estas, definidos, exclusivamente, por los jerarcas del Poder Judicial y el Tribunal Supremo de Elecciones.

Sobre el artículo 7 (competencias de Mideplán), respecto del Tribunal Supremo de Elecciones (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 7- Competencias del Mideplán Son competencias del Ministerio de Planificación Nacional y Política Económica (Mideplan) las siguientes:

• a)Establecer, dirigir y coordinar la emisión de políticas públicas, programas y planes nacionales de empleo público, conforme a la Ley 5525, Ley de Planificación Nacional, de 2 de mayo de 1974.
• b)Establecer mecanismos de discusión, participación y concertación con las corporaciones municipales a través de la Unión de Gobiernos Locales y las instituciones de educación superior universitaria estatal, en materia de empleo público.
• c)Emitir disposiciones de alcance general, directrices y reglamentos, que tiendan a la estandarización, simplificación y coherencia del empleo público, según lo preceptuado en la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• d)Asesorar a las entidades y los órganos incluidos, bajo el ámbito de cobertura de la presente ley, para la correcta implementación de las políticas públicas, las disposiciones de alcance general, las directrices y los reglamentos que se emitan en el marco de la rectoría política en empleo público y la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• e)Administrar y mantener actualizada la plataforma integrada del empleo público.
• f)Publicar la oferta de empleo público, a través de la plataforma virtual que alimentarán las entidades y los órganos incluidos del ámbito de cobertura de la presente ley.
• g)Emitir los lineamientos y principios generales para la evaluación del desempeño.
• h)Administrar e implementar las acciones de investigación, innovación y formulación de propuestas de empleo público.
• i)Dirigir y coordinar la ejecución de las competencias inherentes en materia de empleo público con el Ministerio de Hacienda, el Ministerio de Trabajo y Seguridad Social, la Autoridad Presupuestaria y la Dirección General de Servicio Civil, entre otras dependencias técnicas en la materia de empleo público, lo concerniente a la materia de empleo público.
• j)Recolectar, analizar y divulgar información en materia de empleo público de las entidades y los órganos para la mejora y modernización de estos. A tal efecto, establecerá un sistema de indicadores, mediante el establecimiento de criterios de coordinación, para homogeneizar la recopilación y difusión de datos.
• k)Preparar una estrategia coherente e integral para el aprendizaje y el desarrollo en todo el servicio público, estableciendo cómo se desarrollará la capacidad a largo plazo para estándares de dirección y competencia profesional más altos y proporcionando orientación a las instituciones públicas sobre cómo planificar y aplicar las actividades dentro de la estrategia.
• l)Coordinar con la Procuraduría de la Ética Pública para emitir las disposiciones de alcance general, las directrices y los reglamentos, para la instrucción de las personas servidoras públicas sobre los deberes, las responsabilidades y las funciones del cargo, así como los deberes éticos que rigen la función pública, que resulten procedentes según la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• m)Establecer un sistema único y unificado de remuneración de la función pública de conformidad con esta ley y especifica del salario y los beneficios de todas las personas funcionarias públicas.
• n)Realizar diagnósticos en materia de recursos humanos de las entidades y los órganos incluidos para lograr un adecuado redimensionamiento de las planillas existentes y la elaboración de criterios generales que delimiten los sectores cuya actividad, por su valor estratégico institucional, así como la vinculación con la actividad sustantiva, se debería reservar para que sean realizadas exclusivamente por personas servidoras públicas. Además, analizar los que sirvan de orientación para delimitar la prestación de los que podrían ser externalizados y las condiciones de prestación de estos.
• o)Prospectar las tendencias globales del futuro del empleo público, con el propósito de informar la planificación de este.
• p)Analizar la eficiencia y eficacia de los mecanismos de evaluación, a efectos de determinar si estos cumplen o no su cometido.
• q)Evaluar el sistema general de empleo público en términos de eficiencia, eficacia, economía, simplicidad y calidad.” En el mismo sentido que el Poder Judicial, el artículo 7, incisos d), g) y p) resultan inconstitucionales, pues afectan la independencia del Poder Judicial y del Tribunal Supremo de Elecciones, en cuanto los somete a la potestad de dirección y reglamentaria de Mideplán, así como a la verificación de si cumplen o no con el cometido de la evaluación del desempeño y no se excluye de la potestad de dirección. Hay que enfatizar que el principio de separación de poderes o funciones es incompatible con la potestad de dirección y reglamentación que ejerce el Poder Ejecutivo, toda vez que no puede ordenar su actividad, estableciendo metas y objetivos. En lo que atañe a la evaluación del desempeño, queda reserva a cada poder del Estado, toda vez que esta materia es consustancial al ejercicio de sus competencias constitucionales. Quiere esto decir, que, en lo tocante a este extremo, todo el funcionariado de cada poder estaría sometido a las disposiciones internas que cada uno de estos dicten al respecto.

Sobre el artículo 9.a.- Oficinas de Recursos Humanos respecto del Tribunal Supremo de Elecciones (Redacta la magistrada Picado Brenes) El artículo consultado establece lo siguiente:

“ARTÍCULO 9- Funciones de las administraciones activas a) Las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos, de las instituciones incluidas en el artículo 2 de la presente ley, seguirán realizando sus funciones de conformidad con las disposiciones normativas atinentes en cada dependencia pública.

Asimismo, aplicarán y ejecutarán las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que el Ministerio de Planificación Nacional y Política Económica (Mideplán) remita a la respectiva institución, según la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

• b)Es responsabilidad de las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos elaborar y aplicar las pruebas de conocimientos, competencias y psicométricas, para efectos de los procesos de reclutamiento y selección de personal, efectuar los concursos internos y externos por oposición y méritos, los cuales deberán cumplir siempre al menos con los estándares que establezca la Dirección General del de Servicio Civil para cada puesto, según su ámbito de competencia, y los lineamientos que se emitan según el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

Además, incorporar dichos concursos en la oferta de empleo público de la Administración Pública y verificar que las personas servidoras públicas reciban la inducción debida sobre los deberes, las responsabilidades y las funciones del puesto, así como los deberes éticos de la función pública generales y particulares de la institución y puesto.

• c)Las oficinas de gestión institucional de recursos humanos, de ministerios e instituciones u órganos adscritos bajo el ámbito de aplicación del Estatuto de Servicio Civil, son dependencias técnicas de la Dirección General de Servicio Civil que, para todos los efectos, deberá coordinar la elaboración de las pruebas de reclutamiento y selección de personal con tales oficinas y desempeñar sus funciones de asesoramiento, capacitación y acompañamiento técnico.” Tal como se observa, el artículo 9 consultado establece ciertas funciones para todas las oficinas, departamentos, áreas, direcciones o las unidades de recursos humanos, de todas las instituciones incluidas en el proyecto, en cuenta, para Recursos Humanos del TSE. Así entonces, en lo que se refiere propiamente a la consulta realizada en cuanto al TSE, el segundo párrafo del inciso a) le impone a Recursos Humanos que aplique y ejecute las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que Mideplán le remita. Lo cual, implicaría que un órgano del Poder Ejecutivo, como lo es Mideplán, le imponga al TSE la aplicación y ejecución de sus disposiciones, directrices y reglamentos, y en materias que son resorte exclusivo de ese órgano constitucional, como lo es la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación o salarios y la gestión de las relaciones laborales. Siendo claramente tal obligación para Recursos Humanos del TSE una violación al principio de separación de poderes, conforme los alcances que la jurisprudencia constitucional le ha dado a tal principio básico de nuestra democracia. Recuérdese que, el principio de división de poderes, o como se le conoce más recientemente, principio de separación de funciones, está consagrado en el artículo 9 de la Constitución Política y se erige en “uno de los pilares fundamentales del Estado Democrático, en tanto establece un sistema de frenos y contrapesos que garantiza el respeto de los valores, principios y normas constitucionales en beneficio directo de los habitantes del país.” (sentencia n°2006-013708), y que el TSE tiene el rango e independencia propia de un poder de la República (sentencia n°3194-1992). Lo cual implica que, cada Poder del Estado pueda ejercer su función con independencia de los otros (sentencia n°6829-1993). Así el TSE, por su rango de poder del Estado, tiene poderes de organización y dirección propios (sentencia n°2000-06326); además, tiene “sus propias normas orgánicas, imponen a sus jerarcas la atribución y la responsabilidad de fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos…” (sentencia n°550-1991). Ello por cuanto, “…el Régimen del Empleo Público, es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones.” (sentencia n°03575-1996). Por todo lo anterior, se considera que el párrafo primero del artículo 9 consultado resulta violatorio del principio de separación de poderes, en este caso, propiamente del TSE.

Sobre el inciso a) del artículo 13, Familia de puestos respecto del Tribunal Supremo de Elecciones (Redacta la magistrada Picado Brenes) Se procede a examinar el inciso a) del artículo 13 del proyecto, respecto de su aplicación al TSE, ello por cuanto, así fue expresamente consultado por los diputados. Recuérdese que, esta Sala, en materia de consultas facultativas de constitucionalidad, procede a pronunciarse únicamente sobre los temas consultados.

Tal como se observa, el artículo 13 del proyecto establece un único régimen de empleo público, conformado por ocho familias de puestos. En el inciso a) se incluye a “las que se desempeñan en las instituciones señaladas en el artículo 2 de la presente ley, que no estén incluidas en las restantes familias de puestos.” En este caso, tratándose del TSE, se incluye a los magistrados como una familia de puestos (según el inciso f), y todo el resto de funcionarios del TSE dentro de esta primera familia de puestos (inciso a) o dentro de la familia de los puestos de confianza (inciso h). Recuérdese que este inciso h) no está siendo conocido en esta consulta, por lo cual, no se emite pronunciamiento particular sobre esta norma en concreto. Ahora bien, al haberse dejado únicamente a los magistrados como una familia aparte, el resto de funcionarios que no sean de confianza, que correspondan a puestos administrativos de apoyo, profesional y técnico, quedarían dentro de la misma familia que el resto de funcionarios incluidos dentro del Estatuto de Servicio Civil. Ello resulta claramente inconstitucional, con vista en las razones siguiente: En primer lugar, se está dividiendo al personal del TSE pese a que todos coadyuvan al cumplimiento de la función electoral. Solo a los magistrados estarían dentro del grupo indicado en el inciso f), pero todo el resto de funcionarios, que también coadyuvan al ejercicio de esta función tan importante para la democracia costarricense, quedarían integrando otro grupo de familia de puestos. En segundo lugar, todos los funcionarios del TSE que coadyuvan a la función electoral, directamente o por apoyo, requieren contar con toda la independencia de criterio en sus actuaciones. Incluir una parte importante de estos funcionarios junto a otros, que pertenecen a los otros poderes de la República y a otras instituciones, es una situación que pone en riesgo esa independencia de criterio. Máxime si se toma en cuenta que, para ese grupo de familia de puestos será Mideplán (órgano del Poder Ejecutivo) quien emitiría los lineamientos para el proceso de reclutamiento, selección, evaluación, compensación, etc. Es decir, se trataría de casi la totalidad de funcionarios del TSE que estarían totalmente sometidos a las directrices de Mideplán, lo cual es violatorio de la independencia de Poderes, en los términos indicados supra. Claramente una disposición de tal naturaleza es contraria al Derecho de la Constitución. El TSE, como órgano con rango de Poder del Estado, debe gozar de plena independencia en el ejercicio de sus funciones, lo cual implica, independencia para el manejo de su personal. En este caso, con mucho mayor celo que el resto de personal del Servicio Civil, puesto que “la intención del constituyente al crear este Poder, fue cercenar por completo la posibilidad de que los funcionarios electorales, se inmiscuyeran en toda actividad política, con el fin de garantizar un Órgano Electoral independiente.” (sentencia n°2005-14298). Ello no sería posible si se incluye a todo el personal del TSE dentro del mismo grupo de familia de puestos que el resto de los funcionarios del Servicio Civil. Nótese que tales funcionarios del TSE tienen asignadas funciones tan importantes para la actividad electoral como: organizar, dirigir y fiscalizar todos los actos relativos con el proceso de elecciones nacionales; la regulación de las normas que rigen la deuda política, así como el control sobre esta materia; el control de las regulaciones estatutarias relativas al derecho de elegir y ser elegido en los procesos internos de los partidos políticos; la integración del Concejo Municipal; la declaratoria de la elección y las posteriores sustituciones por pérdidas de credenciales de los regidores y síndicos municipales; la tramitación del proceso contencioso electoral para conocer de la cancelación o anulación de credenciales de regidores municipales; el cierre de negocios comerciales en los que se expende licor y que se encuentran ubicados en el centro de la ciudad de San José a consecuencia de la realización de las plazas públicas que celebran los partidos políticos; la determinación de donde realizará la celebración solemne el día de las elecciones, para el conteo inicial de los resultados de las elecciones nacionales; entre muchas otras. Todo lo cual requiere de la garantía de independencia en el manejo de este personal, que no puede quedar unido a la misma familia de puestos que el resto de los servidores públicos del Servicio Civil. Debe tomarse en cuenta que, al pasar a formar parte del servicio civil, a los funcionarios del TSE se les aplicarían las mismas normas que se le aplican a los funcionarios del Poder Ejecutivo que integran el servicio civil, en cuenta los traslados o la movilidad (art.12), entre otros. Lo cual agrava la situación y atenta contra la máxima de mantener la función electoral como una función independiente, al margen de injerencias de los otros Poderes. Así, se constata que el artículo 13 inciso a) es inconstitucional, respecto del Tribunal Supremo de Elecciones, pues casi todos los funcionarios de ese órgano pasarían al Servicio Civil, con excepción de sus magistrados y los empleados que se desempeñen en cargos de confianza. Por ello, considera esta Sala que, el artículo 13 inciso a) es inconstitucional, respecto del TSE -pues fue el único órgano que se consultó sobre este inciso-, pues casi todos los funcionarios de ese órgano pasarían al Servicio Civil.

LBH10/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: TRABAJO Subtemas:

NO APLICA.

017098-21. TRABAJO. CONSULTA LEGISLATIVA FACULTATIVA DE CONSTITUCIONALIDAD, REFERENTE AL PROYECTO DE LEY DENOMINADO "LEY MARCO DE EMPLEO PÚBLICO". EXPEDIENTE LEGISLATIVO N° 21.336.

"... Sobre el inciso f) del artículo 13 (familias de puestos), respecto del Tribunal Supremo de Elecciones (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 13- Régimen general de empleo público Existirá un único régimen general de empleo público, el cual a su vez estará conformado por las siguientes ocho familias de puestos que serán de aplicación en los órganos y entes de la Administración Pública, según las funciones que ejecute su personal:

• a)Personas servidoras publicas bajo el ámbito de aplicación del título I y del título IV del Estatuto de Servicio Civil, así como a las que se desempeñan en las instituciones señaladas en el artículo 2 de la presente ley, que no estén incluidas en las restantes familias de puestos.
• b)Personas servidoras públicas que se desempeñan en funciones en ciencias de la salud.
• c)Personas servidoras públicas que se desempeñan en funciones policiales.
• d)Personas docentes contempladas en el Estatuto del Servicio Civil, del título II y el título IV.
• e)Personas docentes y académicas de la educación técnica y superior.
• f)Personas que administran justicia y los magistrados del Tribunal Supremo de Elecciones (TSE).
• g)Personas servidoras públicas que se desempeñan en funciones del servicio exterior.
• h)Personas servidoras públicas que se desempeñan en cargos de confianza.

La creación de familias de puestos de empleo público es reserva de ley y deberá estar justificada por criterios técnicos y jurídicos coherentes con una eficiente y eficaz gestión pública.

En todas las categorías descritas con anterioridad, la administración pública superior, por medio de las oficinas o los departamentos de salud ocupacional, deberá contar en cada entidad pública, según lo establece el artículo 300 del Código de Trabajo y su reglamento, con el diagnóstico de sus condiciones de trabajo, el programa de salud ocupacional y cuando existan condiciones de trabajo adversas a su salud deberán crearse los respectivos protocolos de seguridad para salvaguarda de su vida, que será validado a lo interno de esta y con el respectivo aval del Consejo de Salud Ocupacional, para lo cual se le brindará el recurso humano necesario. Dicha instancia dependerá administrativamente de manera directa del jerarca.

En el mismo sentido en que se indicó para el Poder Judicial, en cuanto al inciso f) del artículo 13 es inconstitucional porque no excluye a los funcionarios que realizan funciones para-jurisdiccionales -fiscales, defensores públicos y profesionales y personal especializado del Organismo de Investigación Judicial, etc.- y los funcionarios del nivel gerencial o de alta dirección política, al igual a que los funcionarios del Tribunal Supremo de Elecciones que ejercen función electoral -letrados, directores del Departamentos, profesionales, etc.-, y quienes ejercen cargos de alta dirección política. Además, no se excluye a todo el funcionario administrativo de apoyo, profesional y técnico, que los máximos órganos de los citados poderes del Estado definan, de forma exclusiva y excluyente, como indispensables o consustanciales para el ejercicio de sus competencias constitucionales. Máxime que, de conformidad con ese mismo artículo, inciso a), todos esos funcionarios quedarían incluidos en una categoría del Estatuto de Servicio Civil, lo que afecta la independencia tanto del Poder Judicial como del Tribunal Supremo de Elecciones partiendo del hecho de que el gobierno judicial y electoral lo ejerce la Corte Suprema de Justicia y el Tribunal Supremo de Elecciones de forma exclusiva y excluyente en lo que atañe a sus competencias constitucionales. Finalmente, hay que tener presente que la construcción de la familia, tal y como se explicó supra, corresponde, de forma exclusiva y excluyente, a cada poder del Estado.

Sobre el artículo 14.- Reclutamiento y selección respecto del Tribunal Supremo de Elecciones (Redacta la magistrada Picado Brenes) En igual sentido que respecto del Poder Judicial, los consultantes refieren que se lesiona el principio de independencia y la autonomía del Tribunal Supremo de Elecciones, al pretender someterlo también a las disposiciones que emite un órgano del Poder Ejecutivo, en lo relativo al reclutamiento y selección de su personal. El ordinal 14 en cuestión, dispone lo siguiente:

“ARTÍCULO 14- Reclutamiento y selección El reclutamiento y la selección de las personas servidoras públicas de nuevo ingreso se efectuará con base en su idoneidad comprobada, para lo cual el Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá, con absoluto apego a la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las disposiciones de alcance general, las directrices y los reglamentos, según la respectiva familia de puestos.

En los procesos de reclutamiento y selección no podrá elegirse a un postulante que se encuentre en alguna de las siguientes situaciones:

• a)Estar ligado por parentesco de consanguinidad o de afinidad en línea directa o colateral, hasta tercer grado inclusive, con la jefatura inmediata ni con las personas superiores inmediatas de esta en la respectiva dependencia.
• b)Encontrarse enlistada en el registro de personas inelegibles de la plataforma integrada de empleo público.” En igual sentido que se consultó respecto del Poder Judicial, los consultantes refieren que se lesiona el principio de independencia y la autonomía del TSE, al pretender someterlo también a las disposiciones que emite un órgano del Poder Ejecutivo, en lo relativo al reclutamiento y selección de su personal. Tal y como ya fue debidamente acreditado, conforme lo dispuesto en los ordinales 2 y 13 del mismo proyecto de ley, y según lo dispuesto en este artículo 14, el Tribunal Supremo de Elecciones también se vería sujeto a las disposiciones de alcance general, las directrices y los reglamentos que emita Mideplán en relación con el reclutamiento y la selección del personal de nuevo ingreso, lo cual deviene en inconstitucional. El artículo 9 de la Constitución expresa con claridad, que el TSE fue creado por los constituyentes con el rango e independencia de los Poderes del Estado, al cual se le asignó, en forma exclusiva e independiente, la organización, dirección y vigilancia de los actos relativos al sufragio, así como las demás funciones que le atribuyen la Constitución y las leyes, lo cual ha sido plenamente reconocido en la jurisprudencia de este Tribunal (véanse las sentencias n°1992-3194, 1998-495, 2000-6326, y 2012-9139, entre otras). En ese sentido, resulta igualmente inválida cualquier intromisión externa de otro poder en los aspectos propios del Tribunal Supremo de Elecciones, que lesione tal independencia. El Constituyente confirió a este órgano un grado de autonomía tal, para asegurar el debido ejercicio de su función electoral y de aquellas otras funciones administrativas esenciales que dan soporte e imparcialidad a su función principal. Bajo ese entendido, no es posible admitir que un órgano del Poder Ejecutivo, en este caso Mideplán, le imponga al Tribunal Supremo de Elecciones, disposiciones relativas a los procesos de reclutamiento y selección de su personal, materia que, tal y como se ha señalado, es consustancial al grado de autonomía e independencia de la que gozan estos órganos constitucionales. Al igual que en otros supuestos de este proyecto de ley, aun cuando el artículo 2 refiere que el ámbito de cobertura lo es “sin perjuicio del principio de separación de Poderes establecido en la Constitución Política”, el artículo 14 se aplicaría al Tribunal Supremo de Elecciones. En consecuencia, tal ordinal contiene un vicio de inconstitucionalidad, en tanto resulte aplicable al Tribunal Supremo de Elecciones.

Sobre el artículo 17.- Personal de Alta Dirección respecto del Tribunal Supremo de Elecciones (redacta la magistrada Picado Brenes) El artículo consultado establece lo siguiente:

“ARTÍCULO 17- Personal de la alta dirección pública El Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá las disposiciones de alcance general, las directrices, y los reglamentos, en materia del personal de la alta dirección pública, que sean acordes con la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, para dotar a la Administración Pública de perfiles con integridad y probada capacidad de gestión, innovación y liderazgo, para procurar el mejoramiento de la prestación de bienes y servicios públicos. (…)” Los consultantes señalan la lesión al principio de separación de funciones y a la independencia del TSE, por cuanto en esta norma se dispone que, tratándose de puestos de alta dirección será Mideplán quien emita las disposiciones de alcance general, directrices y reglamentos al respecto. En el mismo sentido en que esta Sala ha venido resolviendo estos aspectos, la injerencia de este Ministerio, que es un órgano del Poder Ejecutivo, emitiendo disposiciones de alcance general, directrices y reglamentos al TSE en materia de los puestos de alta dirección, resulta violatorio del principio de separación de poderes. Nótese que, estos son puestos estratégicos de gran importancia para su debida organización, tales como podrían ser la Dirección Ejecutiva, la Dirección General del Registro Civil, la Dirección General del Registro Electoral y Financiamiento de Partidos Políticos, entre otros. En atención a ello y a la imparcialidad que debe revestir este órgano constitucional, es al propio TSE a quien corresponde valorar las necesidades del servicio que presta y determinar las condiciones en que deben ser ocupados esos puestos, para dar cumplimiento a los fines constitucionales que le han sido asignados. Puestos que son de gran relevancia, que deben estar particularmente protegidos de la injerencia de otros Poderes de la República, y que requieren la estabilidad del personal necesaria para un adecuado e imparcial desempeño del cargo, lo cual es incompatible con una subordinación a las disposiciones que emita al respecto el Mideplán, como lo dispone la norma en cuestión. Siendo competente al respeto el mismo TSE, como esta Sala lo ha indicado antes:“… sea el Régimen del Empleo Público, es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones.” (sentencia n°03575-1996). Por ende, se considera existe un vicio de inconstitucionalidad en el artículo 17 objeto de consulta, en los términos expuestos.

Sobre el artículo 18.- Plazo de prueba y plazo de nombramiento del personal de Ata Dirección respecto del Tribunal Supremo de Elecciones (redacta la magistrada Picado Brenes) En criterio de los consultantes, el ordinal 18 consultado resulta inconstitucional, por cuanto incide en materia que es propia de la competencia del Tribunal Supremo de Elecciones, al establecer que, tratándose de puestos de alta dirección técnica, el nombramiento será por 6 años con un período de prueba de 6 meses, prorrogables anualmente, sujetas a la evaluación de desempeño. El artículo 18 consultado dispone lo siguiente:

“ARTÍCULO 18- Nombramiento y período de prueba de la alta dirección pública Toda persona servidora pública, que sea nombrada en puestos de alta dirección pública, estará a prueba durante el período de seis meses y su nombramiento se efectuará por un máximo de seis años, con posibilidad de prórroga anual, la cual estará sujeta a los resultados de la evaluación del desempeño. (…)” Sobre este particular, resulta de aplicación lo ya indicado en relación con el Poder Judicial, en el sentido de que la regulación de aspectos relativos al nombramiento y selección de personal, tal como también ocurre con los puestos de alta dirección técnica, el período de prueba, plazo o condiciones de prórroga de los nombramientos, son regulaciones propias y atinentes a la autonomía organizacional y administrativa del TSE. Se entiende que los puestos de alta dirección técnica, definidos por el propio TSE, son puestos estratégicos de gran importancia para su debida organización, tales como podrían ser la Dirección Ejecutiva, la Dirección General del Registro Civil, la Dirección General del Registro Electoral y Financiamiento de Partidos Políticos, entre otros. En atención a ello y a la imparcialidad que debe revestir este órgano constitucional, es a este a quien corresponde, el valorar las necesidades del servicio que presta y determinar las condiciones en que deben ser ocupados esos puestos, para dar cumplimiento a los fines constitucionales que le han sido asignados, en respeto de la independencia reconocida, siempre y cuando atienda al principio de idoneidad. En su caso, por ejemplo, la conveniencia del período de nombramiento de esos puestos o las condiciones de prórroga podrían estar sujetas o no a períodos electorales, o atender una condición de mayor estabilidad en el puesto como la garantizada en el ordinal 192 constitucional. Todo de acuerdo a su normativa interna, y no, a una normativa genérica como la que se pretende en este proyecto de ley. La definición de tales condiciones es competencia exclusiva a este órgano constitucional especializado. De modo que, en los términos en que está dispuesto el artículo 18 consultado, contiene un vicio de inconstitucionalidad, por violentar el principio de independencia del TSE, a quien le corresponde de manera exclusiva la definición de las condiciones en que se deben desempeñar sus puestos de alta dirección.

Sobre el artículo 21 (régimen único de despido) y el artículo 22 (proceso de despido) respecto del Tribunal Supremo de Elecciones (redacta la magistrada Picado Brenes) Los artículos consultados establecen lo siguiente:

“ARTÍCULO 21- Procedimiento de despido Será causal de despido inmediato, aplicable a toda persona servidora pública, obtener dos evaluaciones del desempeño consecutivas inferiores a una calificación del setenta por ciento (70%), que se encuentren en firme, una vez agotado el procedimiento de impugnación de la calificación y siempre que se haya acreditado la responsabilidad de la persona servidora pública por dicha evaluación deficiente. Dicha calificación deberá ser debidamente justificada por la jefatura inmediata que la asigne y por la autoridad jerárquica que la confirme, en caso de haber sido recurrida.

Las entidades y los órganos incluidos deberán aplicar planes remediales pactados con la persona servidora pública, y con el asesoramiento de recursos humanos que les permitan determinar las causas por las que las personas servidoras públicas obtienen una calificación inferior al setenta por ciento (70%) y aplicar acciones para mejorar su desempeño. Si pese a la aplicación del plan remedial, la persona servidora pública no logra mejorar su desempeño y obtiene de forma consecutiva otra calificación inferior al setenta por ciento (70%), se configurará la causal de despido inmediato.

Las entidades y los órganos incluidos deberán aplicar planes remediales que les permitan determinar las causas por las que las personas servidoras públicas obtienen una calificación inferior al setenta por ciento (70%) y aplicar acciones para mejorar su desempeño. Si pese a la aplicación del plan remedial, la persona servidora pública no logra mejorar su desempeño y obtiene de forma consecutiva otra calificación inferior al setenta por ciento (70%), se configurará la causal de despido inmediato.

Todo despido justificado se entenderá sin responsabilidad para la Administración Pública y hará perder a la persona servidora pública todos los derechos que esta ley y la normativa aplicable en cada familia de puestos le concede, excepto las proporciones de los extremos laborales que correspondan y los adquiridos conforme a los regímenes de pensiones vigentes, siempre que se realice con observancia de las siguientes reglas:

• a)En todas las dependencias bajo el ámbito de aplicación de esta ley se aplicará un único procedimiento administrativo especial de despido, que garantice la satisfacción del debido proceso y sus principios, el cual deberá ser concluido por acto final en el plazo de dos meses, a partir de su iniciación. La investigación preliminar, en los casos en que se requiera, no dará inicio al procedimiento indicado en el párrafo anterior; no obstante, esta deberá iniciar, bajo pena de prescripción, a más tardar en el plazo de un mes a partir de que el jerarca o la jerarca tenga conocimiento, sea de oficio o por denuncia, de la posible comisión de una falta de uno de sus servidores. El mismo plazo de un mes de prescripción se aplicará si, iniciada la mencionada investigación preliminar, esta permanece paralizada por culpa de la Administración.

Para efectos del plazo de dos meses señalado en el primer párrafo de este inciso, el procedimiento ordinario de despido dará inicio a partir de que el jerarca institucional adopte la decisión de iniciar dicho procedimiento con el nombramiento del órgano director del proceso.

• b)Recibida, por parte del jerarca institucional, queja o denuncia o informado de presunta falta que, en su criterio, amerite el inicio de un procedimiento de despido, este nombrará un órgano director del proceso, el cual formulará por escrito los cargos y dará traslado a la persona servidora pública por un término de quince días, para evacuar toda la prueba ofrecida en una audiencia oral y privada, que notificará personalmente por el correo electrónico institucional del funcionario, correo certificado o por medio de publicación por una única vez en el diario oficial La Gaceta, cuando se demuestre que no existe forma de localizar al presunto infractor. Dentro del plazo indicado, la persona servidora pública deberá presentar, por escrito, sus descargos y podrá ofrecer toda la prueba que considere oportuna para respaldar su defensa, sea documental, testimonial o de cualquier otra índole en abono de estos, así como las excepciones o incidentes que considere oportunos.
• c)Si vencido el plazo que determina el inciso anterior, el servidor no hubiera presentado oposición o si expresamente hubiera manifestado su conformidad con los cargos que se le atribuyen, el jerarca institucional dictará la resolución de despido sin más trámite, salvo que pruebe no haber sido notificado por el órgano director del proceso o haber estado impedido por justa causa para oponerse.
• d)Si el cargo o los cargos que se hacen al empleado o empleada o persona servidora pública implica su responsabilidad penal o cuando sea necesario para el buen éxito del procedimiento administrativo disciplinario de despido o para salvaguardia del decoro de la Administración Pública, el jerarca institucional podrá decretar, en resolución motivada, la suspensión provisional de la persona servidora pública en el ejercicio del cargo. Si se incoara proceso penal en contra de la persona servidora pública, dicha suspensión podrá decretarse en cualquier momento como consecuencia de auto de detención o de prisión preventiva, o sentencia en firme con pena privativa de libertad.
• e)Si el interesado se opusiera dentro del término legal, el órgano director del proceso resolverá las excepciones previas que se hayan presentado y convocará a una comparecencia oral y privada, ante la Administración, en la cual se admitirá y recibirá toda la prueba y alegatos de las partes que sean pertinentes. Asimismo, podrán realizarse antes de la comparecencia las inspecciones oculares y periciales. Se podrá convocar a una segunda comparecencia únicamente cuando haya sido imposible en la primera dejar listo el expediente para su decisión final, y las diligencias pendientes así lo requieran.
• f)Si la persona servidora pública incurriera en nueva causal de despido durante el período de instrucción, se acumularán los cargos en el expediente en trámite y se procederá conforme a lo establecido en este capítulo.
• g)Evacuadas las pruebas, resueltas las excepciones previas presentadas dentro del plazo de los diez días otorgados para oponerse al traslado de cargos y presentadas las conclusiones por las partes o vencido el plazo para ello, se tendrá el expediente debidamente instruido y se elevará el informe respectivo al jerarca institucional para que dicte resolución definitiva.
• h)El jerarca o la jerarca institucional resolverá el despido de la persona servidora pública o declarará la falta de mérito y ordenará el archivo del expediente en este último supuesto. No obstante, en caso de considerar que la falta existe pero que la gravedad de esta no amerita el despido, ordenará una amonestación oral, una advertencia escrita o una suspensión sin goce de salario hasta por un mes, según la gravedad de la falta.
• i)Contra la resolución que ordene la amonestación oral, la advertencia escrita o la suspensión sin goce de salario, hasta por un mes, podrán interponerse los recursos ordinarios de revocatoria con apelación en subsidio, cuando este último resulte procedente, en un plazo de cinco días, contado a partir del día siguiente en que sea notificada dicha resolución. Ambos recursos podrán interponerse en forma conjunta o separada ante el órgano que emite la resolución, quien resolverá el recurso de revocatoria.

En el caso de las personas servidoras públicas que laboran en una institución cubierta por la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953, el recurso de apelación será resuelto por el Tribunal de Servicio Civil. El jerarca o la jerarca remitirá en alzada, al Tribunal de Servicio Civil, el expediente del procedimiento administrativo correspondiente donde conste la resolución de sanción así como la resolución del recurso de revocatoria, con expresión de las razones legales y de los hechos en que se fundamentan ambas resoluciones.

• j)Los casos no previstos en el presente procedimiento, en cuanto no contraríen el texto y los principios procesales que contiene este procedimiento, se resolverán aplicando supletoriamente, según el siguiente orden: la Ley 6227, Ley General de la Administración Pública, las normas del derecho público, los principios generales del derecho público, el Código de Trabajo, el Código Procesal Civil, los principios y las leyes del derecho común, la equidad, las costumbres y los usos locales.

Las instituciones de educación superior universitaria estatal emitirán normativa interna que regule esta materia, de conformidad con los artículos 84, 85 y 87 y el principio de debido proceso contenidos en la Constitución Política; en caso de que no exista normativa institucional al respecto aplicará, supletoriamente, la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las normas de derecho público, los principios generales del derecho público, el Código de Trabajo y el Código Procesal Civil.

ARTÍCULO 22- Fase recursiva Contra la resolución de despido emitida por el jerarca o la jerarca se tendrá un plazo improrrogable de cinco días hábiles, contado a partir de la notificación de la resolución para interponer el recurso de revocatoria y/o el recurso de apelación en subsidio, cuando este último resulte procedente, los cuales se resolverán con arreglo a las siguientes disposiciones:

• a)Si vencido el plazo de cinco días indicados anteriormente no se recurriera la resolución, esta quedará en firme y dará por agotada la vía administrativa.
• b)Si solo se interpuso recurso de revocatoria, lo resuelto por el jerarca o la jerarca será definitivo, la resolución quedará en firme y dará por agotada la vía administrativa.
• c)Si se interponen ambos recursos ordinarios a la vez, se tramitará la apelación, una vez declarada sin lugar la revocatoria.
• d)En el caso de las personas servidoras públicas que laboran en una institución cubierta por la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953, el recurso de apelación se concederá en ambos efectos ante el Tribunal de Servicio Civil. El jerarca o la jerarca remitirá en alzada, al Tribunal de Servicio Civil, el expediente del procedimiento administrativo de despido, donde conste la resolución de despido de la persona servidora pública, así como la resolución del recurso de revocatoria, con expresión de las razones legales y de los hechos en que se fundamentan ambas resoluciones.

Si únicamente se interpuso el recurso de apelación, el jerarca o la jerarca remitirá en alzada, al Tribunal de Servicio Civil, el expediente del procedimiento administrativo de despido donde conste la resolución de despido de la persona servidora pública, con expresión de las razones legales y de los hechos en que se fundamenta dicha resolución.

La resolución que adopte el Tribunal del Servicio Civil en alzada será definitiva, la resolución quedará en firme y agotará la vía administrativa. Dicho fallo es vinculante para el jerarca o la jerarca institucional.

Autorizado el despido por resolución firme, el jerarca o la jerarca institucional tendrá un plazo de caducidad de un mes, contado a partir de la notificación de dicha resolución, para hacerlo efectivo. Para la ejecución del despido por parte del jerarca o la jerarca no se requiere acuerdo adicional, basta la comunicación del cese de su condición de funcionaria a la persona servidora, con base en la resolución firme dictada.

Si el Tribunal de Servicio Civil revocara la sentencia dictada por el jerarca o la jerarca institucional, dictará en el mismo acto nuevo fallo y resolverá si procede la restitución del empleado en su puesto, con pleno goce de sus derechos y el pago en su favor de los salarios caídos.

En caso de que el Tribunal de Servicio Civil considere que la falta existe pero que la gravedad de esta no amerita el despido, podrá ordenar una amonestación oral, una advertencia escrita o una suspensión sin goce de salario hasta por un mes.

Las instituciones de educación superior universitaria estatal emitirán normativa interna que regule esta materia, de conformidad con los artículos 84, 85 y 87 y el principio de debido proceso contenidos en la Constitución Política; en caso de que no exista normativa institucional al respecto, aplicará supletoriamente la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las normas de derecho público, los principios generales del derecho público, el Código de Trabajo y el Código Procesal Civil.” Los diputados consultan sobre los artículos 21 y 22 del proyecto, referido al régimen disciplinario y sancionatorio aplicable al Poder Judicial y al TSE. Indican que el art.21 establece una nueva causal de despido inmediato cuando el servidor público obtenga dos evaluaciones de desempeño consecutivas inferiores a 70%. Agregan que, las nuevas causales establecidas obedecen más a asuntos administrativos, por lo que se pretende sujetar a criterios ajenos a su quehacer a un incumplimiento netamente administrativo que podrá acarrear su destitución, provoca una injerencia odiosa y peligrosa para nuestro Estado Social de Derecho. Consideran que la nueva causal de despido inmediato consistente en obtener dos calificaciones de desempeño consecutivas inferiores a 70% contenida en el artículo 21, así como las dos nuevas causales graves creadas mediante la reforma al artículo 48 de la Ley de Salarios de la Administración Pública, que se reforma en el artículo 49:A) del proyecto de ley, violentan los principios constitucionales de legalidad, seguridad jurídica, razonabilidad, proporcionalidad, separación de poderes,. Luego, sobre el único procedimiento de despido, indican que, el proyecto de Ley Marco de Empleo Público establece que será aplicable a todas las personas servidoras públicas bajo el ámbito de aplicación de esta propuesta de ley, un único procedimiento especial de despido (artículo 21). Respecto al régimen recursivo, se le da la potestad al Tribunal de Servicio Civil de resolver todos los recursos de apelación que interpongan contra resoluciones que determinen cualquier tipo de sanción disciplinaria (artículo 21:i) y artículo 22). En relación con el único procedimiento que se crea en los artículos 21 a partir del inciso a) y el 22 del proyecto de ley objeto de esta consulta, consideramos que también violenta la independencia.

Al respecto, esta Sala considera que:

-La creación de una nueva causal de despido, por no pasar la evaluación del desempeño en dos ocasiones consecutivas (según el primer párrafo del art.21 del proyecto), no es inconstitucional en tanto la aplique el Poder Judicial y el Tribunal Supremo de Elecciones de acuerdo con su normativa interna. El establecimiento de esta causal nueva para el despido justificado, no violenta el Derecho de la Constitución, máxime si se entiende que esta nueva causal se aplicaría según las disposiciones internas del TSE, donde Mideplán no tendría ninguna injerencia.

-Sí resultan inconstitucionales los artículos 21 y 22 del proyecto consultado, respecto de su aplicación al TSE -y al Poder Judicial según se dijo supra-, por cuanto, el ejercicio de la potestad disciplinaria de los servidores del TSE es parte esencial de la independencia electoral. Así entonces, todo lo que en esas normas se establece en cuanto a procedimiento y fase recursiva no podrían aplicarse al TSE, el cual ya goza de normativa interna que dispone el ejercicio de la potestad disciplinaria. La adopción de medidas disciplinarias, la suspensión o la separación del cargo se deberá resolver de acuerdo con las normas internas para el resguardo de la función electoral. Así entonces, en consonancia con el principio de independencia de poderes, la entidad con competencia disciplinaria será, en este caso, exclusivamente el propio TSE.

• 4)Conclusión -Sobre los artículos 12 (base de datos), 13.h (familia en puestos de confianza), 15 (postulados de reclutamiento y selección), 19 (movilidad o traslados), y 31 (metodología de trabajo), dado que no se realiza la fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, se declara inevacuable la consulta por falta de fundamentación.

-En los términos indicados y conforme a la jurisprudencia de esta Sala, resultan inconstitucionales del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, los artículos siguientes.

Analizados todos los aspectos consultados en cuanto al artículo 2 (inciso a), 6 (inciso b), 7 (incisos d, g y p), 9 (segundo párrafo del inciso a), 13 (inciso a y f), 14, 17, 18, 21 y 22, del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación al principio de separación de funciones. La independencia de poderes es esencial en un Estado Constitucional de Derecho. Conforme a tal principio, cada poder es independiente del otro, cada órgano del Estado debe poder ejercer su función con independencia de los otros (art.9° Constitucional). Puede haber interrelación entre ellos, pero nunca subordinación. Además, no solo se trata de una vulneración a los principios de separación de funciones, sino a todo el sistema democrático y de organización del Poder que el Constituyente ha creado en nuestro Estado de Derecho. En el caso específico del TSE, es posible replicar -en lo atinente- las mismas conclusiones ya emitidas respecto del Poder Judicial. Si bien respecto del TSE también aplican lo principios fundamentales del régimen de empleo público, lo cierto es que, para proteger su independencia, debe seguir contando con su propio marco normativo, que regula de forma específica, particular y diferenciada las relaciones de empleo con sus servidores y la evaluación de su desempeño. Lo anterior, a fin de garantizar debidamente la independencia de dicho órgano, para el debido ejercicio de su función electoral y de aquellas otras funciones administrativas esenciales que dan soporte a su función primaria. De allí que resulte inconstitucional admitir que el Poder Ejecutivo, por medio de Mideplán tenga competencias de rectoría respecto de los funcionarios del TSE. Pese a que, al igual que ocurre en el caso del Poder Judicial, en el citado artículo 2, se afirma que la ley se aplicaría al TSE “sin perjuicio del principio de separación de Poderes establecido en la Constitución Política” -imperativo impuesto, de por sí, por la propia Constitución-. Es lo cierto es que la lectura integral del proyecto permite concluir que no se garantiza debidamente tal principio, no sólo por la sujeción a Mideplán, sino por la imposición de ciertas materias que son de competencia exclusiva y excluyente del TSE. Las normas del proyecto no evidencian, ni aseguran, la existencia ni la debida operatividad de una efectiva relación de cooperación/coordinación entre el Poder Ejecutivo y el TSE y, muy por el contrario, lo que se pone de manifiesto es que el objetivo general del proyecto consultado es sujetar al TSE a la rectoría del Mideplán y a los criterios técnicos de la Dirección General de Servicio Civil. De hecho, se otorga a Mideplán amplias competencias para emitir “disposiciones generales, directrices y reglamentos”, para desarrollar y regular los distintos aspectos abarcados -en términos genéricos- en el proyecto de ley. Finalmente, se advierte del expediente legislativo que el Tribunal Supremo de Elecciones emitió un criterio desfavorable al proyecto en la consulta que le hiciera la Asamblea Legislativa, cuando indicó lo siguiente, mediante oficio TSE-1226-2021 del 03 de junio del 2021:

“se advierte la existencia de una serie de aspectos que comprometerían las competencias legal y constitucionalmente encargadas a este Tribunal. (…) En nuestro criterio, disponer la inclusión del funcionariado funcionariado electoral en un subrégimen de personas servidoras públicas en general y con ello la subordinación del Tribunal a un órgano del Poder Ejecutivo que ejercería la rectoría en materia de empleo público y sus diversos aspectos, lesionaría gravemente el diseño ideado por el Constituyente y la independencia propia que con rango de Poder del Estado le otorgó a este Tribunal en el artículo 9 constitucional, con el fin de evitar cualquier influencia del Ejecutivo en la conducción de los procesos electorales. (…) Conclusión. Con base en lo expuesto, al estimar que la iniciativa en los términos actualmente propuestos quebrantaría el principio de separación de poderes y supondría un menoscabo a la independencia constitucionalmente otorgada a los organismos electorales, este Tribunal objeta el proyecto consultado, en los términos y con las consecuencias señaladas en el artículo 97 constitucional; quebranto constitucional que solo podría superarse introduciendo los cambios sugeridos en este acuerdo. ACUERDO FIRME”.” 017098-21. TRABAJO. CONSULTA LEGISLATIVA FACULTATIVA DE CONSTITUCIONALIDAD, REFERENTE AL PROYECTO DE LEY DENOMINADO "LEY MARCO DE EMPLEO PÚBLICO". EXPEDIENTE LEGISLATIVO N° 21.336.

CO10/21 RE/CO "... A) CUESTIONES DE TRAMITE:

I.- De previo.- (redacta el magistrado Castillo Víquez) Quienes suscribimos esta opinión consultiva dejamos constancia de que en este caso hay razones justificadas para no plantear ninguna inhibitoria, pese a que el proyecto de ley consultado nos afecta. En primer lugar, estamos ante una ley de carácter general que afecta a todos los empleados públicos, excepto aquellos que laboran en empresas públicas que están en régimen de competencia, de forma tal que nos afecta en nuestra condición de magistrados (as) -propietarios (as) y suplentes- como aquellos (as) que imparten lecciones en universidades públicas. En segundo término, al afectar la normativa que contiene el proyecto de ley, tanto a los (as) magistrados (as) propietarios (as) como a los (as) magistrados (as) suplentes, estos (as) últimos porque se les paga como salario la sustitución a partir de un día, es lógico suponer de antemano que a todos (as) nos asiste motivo de inhibitoria, por lo que, en aplicación del numeral 29 de la Ley Orgánica del Poder Judicial, el Tribunal debe ser integrado por los mismos magistrados (as) propietarios (as) y suplentes que desde un inicio era los que lo integraban. Dicho en otras palabras, no tiene sentido que todos (as) nos inhibamos, trámite que podría tardar de tres a cinco meses, para llegar al mismo punto de inicio; máxime que en este caso el artículo 101 de la Ley de la Jurisdicción Constitucional establece un plazo de un mes para evacuar la consulta de constitucionalidad facultativa a partir de recibidos los expedientes legislativos o su acumulación, salvo causas de interrupción. También es lógico suponer que la mayoría de los (as) magistrados (as) propietarios (as) y suplentes tienen parientes cercanos -hijos (as), hermanos (as), cuñados (as), etc.-, por lo que les asistiría también motivo de inhibitoria, lo que supondría nuevamente que el Tribunal quedará desintegrado prácticamente en su totalidad. Por otra parte, en la sesión N°22-2021 de la Corte Suprema de Justicia, celebrada el día 02 de junio de 2021, artículo Único, los magistrados suplentes José Paulino Hernández Gutiérrez, Mauricio Chacón Jiménez y Ronald Salazar Murillo participaron de la discusión del proyecto de ley que se consulta, al igual que en la sesión N°27-2021 de 30 de junio de 2021 del citado órgano, artículo I, la magistrada suplente y los magistrados suplentes Lucila Monge Pizarro, José Paulino Hernández Gutiérrez, Mauricio Chacón Jiménez, Alejandro Delgado Faith y Hubert Fernández Argüello participaron de la sesión en la que se acordó plantear una consulta de constitucionalidad facultativa a la Sala Constitucional, por lo que ya adelantaron criterio y, por consiguiente, no podrían ni deberían integrar el Tribunal que va a resolver las consulta de constitucionalidad acumuladas. Finalmente, y no por ello menos importante, hay que tener presente que en el caso de los (as) magistrados (as) suplentes que son abogados (as) litigantes, ese hecho no desvirtúa lo que se viene afirmando, por la elemental razón de que ellos (as) son funcionarios públicos y, cuando ejercen la magistratura, la normativa consultada también los (as) afecta, ya que reciben salario a partir de un día de sustitución. Por lo anterior, lo procedente es que todos los magistrados (as) propietarios (as) conozcan de este asunto; siendo la única inhibitoria presentada y aceptada, la del magistrado propietario Fernando Cruz Castro, en razón de que, por su condición de presidente de la Corte Suprema de Justicia ya ha emitido criterio sobre el proyecto consultado. Además, nótese que este mismo magistrado ha presentado, en representación de toda la Corte Suprema de Justicia, una consulta facultativa por su parte. Así que no puede fungir a la vez como parte y como juez, en este caso. En sustitución del magistrado Cruz Castro se nombró a la suplente, la magistrada suplente Ana María Picado Brenes.

II.- Sobre la admisibilidad de las consultas facultativas de constitucionalidad planteadas.- De conformidad con lo que dispone la Ley de la Jurisdicción Constitucional, este Tribunal Constitucional puede ejercer la opinión consultiva previa sobre los proyectos legislativos. Dentro de los diferentes tipos de consulta de constitucionalidad, nos encontramos con la consulta facultativa contemplada en el inciso b) del artículo 96 de la citada ley, planteada por diputados de la Asamblea Legislativa, con los requisitos que se dirán. Además, con la consulta facultativa contemplada en el inciso c) del artículo 96 de la citada ley, planteada por la Corte Suprema de Justicia, en aspectos relacionados con su competencia constitucional. En este caso, nos encontramos con tres consultas facultativas presentadas por diputados y con una consulta presentada por el Presidente de la Corte Suprema de Justicia. Las cuatro consultas fueron acumuladas a este expediente mediante resoluciones números 2021-15105, 2021-15137 y 2021-15240, del 02 de julio del 2021. Se procede al examen de admisibilidad de cada uno de estos supuestos por separado.

• 1)Sobre la admisibilidad de las consultas facultativas presentadas por los diputados (art.96.b de la Ley de la Jurisdicción Constitucional).- Mediante tres escritos diferentes se presentaron a la Sala Constitucional tres consultas facultativas legislativas presentadas por diputados de la Asamblea Legislativa. La admisibilidad de cada una de estas consultas se examina de forma individualizada.
• a)Consulta facultativa expediente n°21-011713-0007-CO:

El día 17 de junio del 2021, un escrito suscrito por 15 diputados (quedando como válidas 14 firmas), presentan la primera consulta facultativa de constitucionalidad, asignándosele el número de expediente 21-011713-0007-CO. Esta consulta, presentada con base en el art.96.b) de la Ley de la Jurisdicción Constitucional debe reunir dos requisitos para su admisibilidad: debe presentarse por un número no menor de diez diputados y debe hacerse después de que el proyecto consultado haya sido aprobado en primer debate (o antes, si la Asamblea Legislativa tuviere un plazo constitucional o reglamentario para votarlo). Dado que, el primer debate se dio en sesión ordinaria n°17 del 17 de junio del 2021, y esta consulta fue presentada en horas de la tarde de ese día; y dado que, fueron 14 los diputados que finalmente suscribieron la consulta, esta cumple a cabalidad con los requisitos mencionados. Cabe mencionar que, el escrito inicial es firmado por 15 diputados. Luego, antes de la fecha de recibido del expediente legislativo (el 25 de junio, fecha que esta Sala ha tenido como límite para este tipo de escritos, según voto n°2018-019511 y 2014-012887), en fechas 17 y 18 de junio dos diputados solicitaran tener por retirada su firma (diputado Mario Castillo Méndez y la diputada Zoila Rosa Volio Pacheco), retiro que se tiene como válido. Posteriormente, un nuevo diputado (diputado Dragos Dolanescu Valenciano) solicita el 21 de junio (igualmente antes de la fecha de recibido del expediente legislativo) que se agregue su firma a la consulta, agregado que se tiene como válido. Teniendo en ese momento un total de 14 firmas válidas. Debe tomarse en cuenta que, la firma de la diputada Aracelly Salas Eduarte aparece en esta consulta y en la segunda, dado que no puede tenerse por admitida en las dos -según jurisprudencia de esta Sala- se admite como válida únicamente en esta primera consulta. No se admiten los rechazos parciales de firmas, realizados el 30 de junio, presentados por tres diputados (Sylvia Patricia Villegas, Walter Muñoz y Shirley Díaz Mejías) por cuanto, independientemente de cuándo se realicen, resulta inadmisible para esta Sala los retiros parciales de firma. Cuando se suscribe una consulta se suscribe en su totalidad, por ello, no se admite una firma parcial ni un retiro parcial, ni antes ni después de recibido el expediente legislativo.

Por lo tanto, se tiene esta consulta como admitida con la firma de 14 diputados, número que cumple con el requisito mencionado, de ser presentada por un mínimo de 10 diputados.

• b)Consulta facultativa expediente n°21-011915-0007-CO:

La segunda consulta facultativa presentada por diputados fue recibida en esta Sala a las 08:11 horas del 22 de junio del 2021. En el escrito de interposición se consigna la firma de 10 diputados (quedando como válidas 10 firmas). Tramitada bajo expediente n°21-011915-0007-CO y acumulada a este expediente por resolución número 2021-015105 de las 9:15 horas del 2 de julio de 2021. Ahora bien, se observan lo siguientes hechos: la consulta es inicialmente presentada por 10 diputados. Siendo que, una de las diputadas (Aracelly Salas Eduarte) suscribió también la primera consulta n°21-011713-0007-CO, esta Sala tiene la primera firma como válida y por tanto, se tiene por no presentada en ésta segunda consulta, así quedaron nueve firmas como válidas. Sin embargo, luego, un diputado (Melvin Núñez Piña) se adhiere a esta consulta por escrito presentado el 23 de junio, con anterioridad al recibido del expediente legislativo. Así entonces, se tiene esta consulta por presentada con la firma de 10 diputados, número que cumple con el requisito mencionado, de ser presentada por un mínimo de 10 diputados.

• c)Consulta facultativa expediente n°21-012118-0007-CO:

La tercera consulta facultativa presentada por diputados fue recibida en esta Sala a las 18:47 horas del 23 de junio del 2021, con la firma de 10 diputados. Tramitada bajo expediente n°21-012118-0007-CO y acumulada a este expediente por resolución número 2021-015137 de las 9:15 horas del 2 de julio de 2021. Por lo tanto, se cumple con el número mínimo de 10 diputados. Número que no cambia por el hecho de que una diputada (Zoila Rosa Volio) haya suscrito la primera consulta, pues se tuvo por retirada su firma en esa primera consulta (mediante escrito del 18 de junio, antes de recibido el expediente legislativo) y por lo tanto, nada obstaba para tenerla por admitida en esta. Además, el retiro de la firma de otra diputada (Paola Valladares) por el hecho de ser presentada el 07 de julio, con posterioridad a la presentación del expediente legislativo, hace que no se pueda admitir su retiro, y que por lo tanto, esta consulta mantenga la firma de 10 diputados.

Así entonces, por unanimidad se consideran admisibles las primeras dos consultas y por mayoría se considera admisible la tercera consulta. Ello por cuanto, las tres consultas presentadas cumplen con los dos requisitos mencionados. Todas fueron presentadas por al menos 10 diputados, y todas fueron presentadas luego de aprobado el proyecto en primer debate. Además, en cuanto al requisito de orden fijado por esta Sala en estos casos, todas fueron presentadas antes de que se presentara a esta Sala el expediente legislativo, es decir, antes del 25 de junio del 2021. En conclusión, las tres consultas anteriores se tienen por admitidas..." "... III.- Sobre la denegatoria de los escritos presentados el 22, 25, 28, 29 de junio y 05, 13, 15 y 20 de julio del 2021.- A este expediente de consulta legislativa se han presentado varios escritos: El 22 de junio del 2021 el Secretario General del Sindicato de la Salud y la Seguridad Social realiza varias manifestaciones en contra del proyecto de ley consultado. El 25 de junio del 2021 varios diputados presentan lo que denominan “coadyuvancia pasiva” y se manifiestan sobre la constitucionalidad del proyecto consultado. El 28 de junio del 2021 varios representantes de organizaciones sindicales y comunales y de la sociedad civil solicitan declarar inconstitucional el proyecto de ley consultado. El 29 de junio del 2021 varios diputados realizan manifestaciones sobre la conformidad constitucional del proyecto consultado. El 05 de julio del 2021 representantes de la Asociación Cámara de Industrias de Costa Rica plantea lo que denomina “coadyuvancia” y solicitan se rechace la consulta presentada. Luego, el 13 y 15 de julio del 2021, el presidente de la Conferencia Episcopal Nacional de Costa Rica y el Secretario General de la Confederación de Trabajadores Rerum Novarum, respectivamente, presentan lo que denominan coadyuvancia pasiva y se refieren al tema de la objeción de conciencia. Finalmente el 20 de julio del 2021, varios diputados se apersonan a argumentar sobre la inadmisibilidad de la Consulta Facultativa de Constitucionalidad interpuesta por la Corte Suprema de Justicia. Sobre todas estas gestiones, con manifestaciones a favor y en contra del proyecto consultado, procede señalar que la intervención adhesiva activa o pasiva no está prevista para los mecanismos de consulta legislativa, en los que pueden existir simples opiniones jurídicas contrapuestas acerca de la regularidad constitucional de un proyecto de ley, lo que sí procede en los procesos de amparo o de acciones de inconstitucionalidad -artículos 34 y 83 de la Ley de la Jurisdicción Constitucional; tal como lo ha indicado esta Sala en casos anteriores por tratarse la consulta facultativa de constitucionalidad de un proyecto de ley, siendo un proceso donde no se admiten coadyuvancias, ni a favor ni en contra del proyecto consultado, lo que procede es la denegatoria del trámite de todos estos escritos (ver al respecto los votos n°2019-020596, n°2008-15760, n°2007-009469, n°2005-009618, n°2004-1603, entre otros).

IV.- Sobre el plazo para resolver esta consulta.- Cuando se trata de consultas facultativas de constitucionalidad, y en aplicación de lo dispuesto en el artículo 101 de la Ley de la Jurisdicción Constitucional, la Sala Constitucional evacua la consulta dentro del mes siguiente. Como fecha de partida para empezar a contar el inicio de este mes se ha indicado que es, en principio, a partir de la fecha de recibido del expediente legislativo. En este caso, la copia certificada del expediente legislativo consultado se tuvo por recibida mediante resolución de la Sala de las 11:54 horas del 25 de junio del 2021. Sin embargo, al acumularse posteriormente, tres consultas mediante resoluciones del 02 de julio del 2021, el plazo de un mes empezó a contar a partir de esta última fecha. Así entonces el plazo que tiene esta Sala para resolver vencería el día 02 de agosto del 2021..." "...

• B)SOBRE LO CONSULTADO V.- Sobre el objeto de la consulta.- A partir de las tres consultas admisibles presentadas se tiene que se consulta sobre el proyecto denominado "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, tanto por temas de procedimiento como por temas de fondo. En síntesis, se consultan sobre los siguientes aspectos:

Sobre los vicios de PROCEDIMIENTO consultados:

• 1)Vicios sustanciales del procedimiento (violación al derecho de enmienda y participación democrática): Indican los consultantes que la Presidencia incurrió en vicios sustanciales del procedimiento por violación del derecho de enmienda y participación democrática por las razones siguientes:

Al emitir la Resolución de admisibilidad de Mociones de Reiteración sobre el proyecto de Ley Marco de Empleo Público, expediente 21.336; Al declarar improcedentes mociones que reiteraban mociones de fondo que habían sido aprobadas en Comisión, pero admitir otras; Por acumular mociones por considerarlas idénticas, similares o razonablemente equivalentes pero sin acumular otras que sí lo eran, sin un criterio objetivo válido para proceder de esa forma; y, Por no poner en conocimiento del Pleno una moción debidamente admitida.

Sobre los vicios de FONDO consultados:

• 2)Violación a la independencia judicial: consultan sobre la constitucionalidad de varios artículos, por considerar que violan los artículos 9, 154 y 156 de la Constitución Política, el art.10 de la Declaración Universal de Derechos Humanos, el art.14 del Pacto Internacional de Derechos Civiles y Políticos y el art.8 de la Convención Americana de Derechos Humanos. Ello por cuanto las disposiciones consultadas pretenden someter al Poder Judicial a las disposiciones que dicte el Ministerio de Planificación Nacional y Política Económica (Mideplán) y a la Dirección General del Servicio Civil, en materia de empleo público.
• 3)Violación por incluir al Tribunal Supremo de Elecciones: consultan sobre la constitucionalidad del artículo 2.a y otros, por considerar que viola los artículos 9 y 99 de la Constitución Política, al obligar al TSE a aplicar y ejecutar las disposiciones de alcance general, directrices y reglamentos que emita el Mideplán (art.6, 7.d, 9, 13.b, 14, 17 y 18) en violación de su independencia, permitiendo una injerencia del Poder Ejecutivo en materia que le está vedada por mandato constitucional y en retroceso del Estado de Derecho.
• 4)Violación de la Autonomía Universitaria: consultan sobre la constitucionalidad del artículo 6 y otros, por considerar que viola el principio de autonomía universitaria contenida en los artículos 84, 85 y 87 de la Constitución Política. Consideran que se viola la autonomía universitaria al someter al régimen de empleo de las personas docentes e investigadoras de las instituciones de educación superior, a planes de desarrollo, regímenes salariales, evaluaciones de desempeño, directrices, órdenes, instrucciones y circulares dictados por Mideplán y en algunos casos por la Dirección General del Servicio Civil y la Autoridad Presupuestaria.
• 5)Violación por incluir a la Caja Costarricense de Seguro Social: consultan sobre la constitucionalidad del artículo 2.b y otros, por considerar que viola la autonomía de la CCSS y los artículos 73, 188, 11, 33 y 140.18 de la Constitución Política. Consideran inconstitucional someter a la CCSS a las directrices, lineamientos y reglamentos que emita Mideplán en temas relacionados con el empleo público sean: planificación del trabajo, organización del trabajo, gestión del empleo, gestión de rendimiento, gestión de la compensación y gestión de las relaciones laborales, así como el conjunto de disposiciones del proyecto que se expone de seguido.
• 6)Violación de la Autonomía de las Municipalidades: consultan sobre la constitucionalidad del artículo 2.c y otros, por considerar que viola la autonomía de las Municipalidades. Ello por cuanto, es inconstitucional sujetar a las Corporaciones Municipales a aplicar y ejecutar las disposiciones de alcance general, directrices y reglamentos que emita el Mideplán en temas relacionados con planificación del trabajo, organización del trabajo, gestión del empleo, gestión del rendimiento o evaluación de desempeño, gestión de la compensación y gestión de las relaciones laborales, la sujeción de las oficinas de recursos humanos al Sistema General de Empleo Público, entre otros.
• 7)Violación de la autonomía de las Instituciones Autónomas: consultan sobre la constitucionalidad del artículo 2.b y otros, por considerar que viola la autonomía de las instituciones autónomas.
• 8)Violación del principio de seguridad jurídica, igualdad, proporcionalidad y razonabilidad (objeción de conciencia): Consultan sobre la constitucionalidad del artículo 23.g, en cuanto incluye la objeción de conciencia, por considerar que viola la posibilidad de que las personas funcionarias públicas puedan alegar la objeción de conciencia con el fin de no recibir formación y capacitaciones que el Estado ha considerado obligatorias. Consideran que es inconstitucional por violentar los principios de legalidad y de seguridad jurídicas, de proporcionalidad y razonabilidad al no regular las condiciones, parámetros y restricciones que impidan la violación de derechos humanos fundamentales comprendidos en el Derecho Convencional y plenamente reconocidos por nuestro ordenamiento jurídico. En ese sentido, consideran que no es posible apelar a la objeción de conciencia para promover la desigualdad, el maltrato y la discriminación desde un puesto de poder, por ejemplo.
• 9)Violación del derecho de sindicación y negociación colectiva: consultan sobre la constitucionalidad del artículo 43 y el transitorio XV del proyecto, por cuanto se prohíbe la negociación colectiva en materia salarial, y otros temas, que abarcaría prácticamente todo lo negociable, vaciando de contenido la posibilidad de cualquier acuerdo que busque mejorar las condiciones labores de las personas trabajadoras en contraposición con lo dispuesto en el artículo 62 constitucional, del Convenio sobre el derecho de sindicación y de negociación colectiva, 1949, N° 98 de la Organización Internacional del Trabajo (OIT), artículos 4 y 6; Convención Americana de Derechos Humanos, Pacto de San José de Costa Rica, artículo 2; Pacto Internacional de los Derechos Económicos, Sociales y Culturales, artículos 2 y 8; el Protocolo Adicional a la Convención Americana sobre Derechos Humanos en Materia de Derechos Económicos, Sociales y Culturales de San Salvador, artículo 5; el numeral 7 de la Constitución Política; además del art. 690 del Código de Trabajo. Todo en violación además del principio de progresividad.
• 10)Violación de los principios de razonabilidad y proporcionalidad (sanción de inhabilitación general): consultan sobre la constitucionalidad del artículo 4.a del proyecto por cuanto incluye una sanción de inhabilitación general, en contraposición de los principios de razonabilidad y proporcionalidad. Indican que se trata de una sanción genérica y automática, que se aplicaría a cualquier tipo de despido, indistintamente si se trata de faltas graves o leves, sin que el órgano sancionador entre a valorar la gravedad de la conducta y sin que exista una ponderación de los derechos que se verán afectados.
• 11)Violación del derecho al salario y el principio de igualdad (salario global): consultan sobre la constitucionalidad de los Transitorios XI y XII que incluyen unas reglas para la aplicación del “salario global”, por considerar que ello viola el derecho al salario (art.57), el principio de no discriminación en materia salarial (art.68), la obligación del Estado de no establecer condiciones contrarias a la dignidad humana (art.56) y la irrenunciabilidad de los derechos (art.74). Además, los art.23 y 28 de la Declaración Universal de Derechos Humanos, art.14 de la Declaración Americana sobre Derechos y Deberes del Hombre, art.6 del Pacto Internacional de Derechos Económicos, Sociales y Culturales, art.7 del Protocolo Adicional a la Convención Americana sobre Derechos Humanos en Materia de Derechos Económicos, Sociales y Culturales de San Salvador. Convenio 131 OIT sobre la fijación de salarios mínimos (ley 5851), Convenio 95 OIT sobre la protección del salario (ley 2561). Convenio 100 OIT Igualdad de salario en labor de hombres y mujeres (ley 2561). Art.1 del Convenio N°111 Relativo a la Discriminación en Materia de Empleo y Ocupación, OIT (Ley 2848). Ello por cuanto, el transitorio permite la coexistencia de tres salarios diferentes para personas que se desempeñan en idénticas funciones y condiciones; y se pretende dar un trato igual a quienes no se encuentran en condiciones de igualdad o jurídicamente idénticas.
• 12)Violación al debido proceso (proceso único de despido): Se consulta sobre los artículos 21 y 22 del proyecto, en el tanto se establece un procedimiento administrativo especial para el despido, pues consideran que no existe claridad en cuanto a plazos, recepción de prueba, derecho de defensa, entre otros. Todo en violación del principio constitucional del debido proceso y seguridad jurídica.
• 13)Violación al principio de sostenibilidad fiscal por la posibilidad de los permisos: Se consulta sobre los artículos 39, 40, 41 y 42 del proyecto en cuanto se establece la posibilidad de un permiso no remunerado para reducir la jornada laboral, el permiso de paternidad y la ampliación de la licencia de maternidad. Consideran que todo ello se hace sin ningún estudio de costos ni fuentes de recursos. Sin contar con el criterio de la CCSS al respecto, pese a que ello incide de manera directa en sus finanzas.
• 14)Violación por la exclusión de las empresas públicas en competencia: Se indica que, si bien las empresas públicas en competencia, telecomunicaciones y seguros principalmente, deben de buscar aumentar su competitividad, hacer una exclusión de los principios de transparencia, excelencia en el servicio, participación ciudadana, carece de motivos objetivos y fundamentados para su exclusión del empleo público. Además, se excluye al Benemérito Cuerpo de Bomberos, que dicen se rigen por el Derecho Privado, pero no se excluyó a otros como Recope y al Instituto Nacional de Aprendizaje.

Cada uno de los vicios anteriores se examinan por separado a continuación. Se procede a revisar únicamente los extremos cuestionados en forma concreta por los consultantes y no aspectos generales de constitucionalidad de la normativa consultada, según lo dispone el artículo 99 de la ley que rige esta jurisdicción. En este sentido debe quedar claro que, sobre aquellas normas del proyecto de ley en cuestión sobre las cuales esta Sala no se pronuncie (sea porque no fueron consultadas o por la fundamentación insuficiente de los consultantes), no se está indicando que sean o que no sean constitucionales, así que debe entenderse que no fueron analizadas por esta Sala y no hay criterio externado sobre su constitucionalidad. Por otro lado, se aclara además que, el texto que tiene a la vista esta Sala para realizar el examen de cada norma consultada, es la “Redacción Final” con fecha 23 de junio del 2021.

VI.- Sobre los vicios de PROCEDIMIENTO consultados.- Los consultantes consideran que la Presidencia incurrió en vicios sustanciales del procedimiento por violación de derecho de enmienda y participación democrática, por las razones siguiente: al emitir la resolución de admisibilidad de mociones de reiteración sobre el proyecto de ley en cuestión; al declarar improcedentes mociones que reiteraban mociones de fondo que habían sido aprobadas en Comisión, pero admitir otras; por acumular mociones al considerarlas idénticas, similares o razonablemente equivalentes, pero sin acumular otras que sí lo eran, sin un criterio objetivo válido para proceder de esa forma; y, por último, por no poner en conocimiento del Pleno una moción debidamente admitida. Para proceder al examen de estos vicios de procedimiento, se procederá primero a indicar la cronología que ha seguido el proyecto consultado (1), se verá la jurisprudencia de esta Sala sobre los vicios sustanciales de procedimiento y las mociones (2), para finalmente examinar lo consultado sobre los vicios de forma (3).

• 1)Cronología del procedimiento legislativo del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336.- A partir de los distintos tomos del expediente legislativo, se tiene que, en resumen, el proyecto de ley consultado siguió el siguiente procedimiento:
• 1)El 08 de abril de 2019, el ministro de la Presidencia presentó a la Secretaría de la Asamblea Legislativa el proyecto “LEY MARCO DE EMPLEO PÚBLICO” expediente N° 21.336 (ver folio 1, Tomo 1 del expediente legislativo).
• 2)El 29 de abril de 2019, el Departamento de Archivo, Investigación y Trámite remitió a la Imprenta Nacional, el expediente legislativo, para su publicación en el Diario Oficial (ver folio 110, Tomo 1 del expediente legislativo).
• 3)El 30 de mayo de 2019, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa recibió el proyecto de estudio.
• 4)Por oficio N° AL-DEST-CO-069-2019 del 6 de junio de 2019, el Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa remitió a la Comisión Permanente Ordinaria de Gobierno y Administración, la lista de consultas obligatorias relativas el expediente N° 21.336 (ver folio 118, Tomo 1 del expediente legislativo).
• 5)Por oficio N° TSE-1388-2019 de 2 de julio de 2019, el presidente del Tribunal Supremo de Elecciones rindió criterio sobre el proyecto de ley N° 21.336 solicitado por la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa (ver folio 450, Tomo 2 del expediente legislativo).
• 6)Por oficio N° SP-146-2019 de 3 de julio de 2019, la Corte Suprema de Justicia contestó la solicitud de criterio de la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa, en relación con el proyecto de ley N° 21.336 (ver folio 496, Tomo 2 del expediente legislativo).
• 7)Por oficio N° SJD-885-2019 de 5 de julio de 2019, la Junta Directiva de la Caja Costarricense de Seguro Social remitió a la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa, el criterio solicitado en relación con el proyecto de ley N° 21.336 (ver folio 592, Tomo 2 del expediente legislativo).
• 8)Por oficio N° DJ-1110 de 30 de agosto de 2019, la Contraloría General de la República remitió a la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa, el criterio solicitado en relación con el proyecto de ley N° 21.336 (ver folio 1541, Tomo 6 del expediente legislativo). (Ver folio 5802, Tomo 20, criterio sobre texto sustitutivo).
• 9)Por oficio N° OJ-132-2019 de 12 de noviembre de 2019, la Procuraduría General de la República remitió a la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa, el criterio solicitado en relación con el proyecto de ley N° 21.336 (ver folio 1975, Tomo 7 del expediente legislativo y folio 3133, Tomo 11). (ver folio 5672, Tomo 19, criterio sobre texto sustitutivo).
• 10)El 3 de marzo de 2020, el Departamento de Servicios Técnicos de la Asamblea Legislativa envió a la Comisión Permanente Ordinaria de Gobierno y Administración, el informe jurídico del expediente legislativo N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (ver folio 1993, Tomo 7 del expediente legislativo).
• 11)Por oficios Mideplán-DM-OF-0663-2020 y DM-620-2020, ambos de 18 de mayo de 2020, los Ministerios de la Presidencia y de Planificación Nacional y Política Económica, enviaron a la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa, el texto sustitutivo del proyecto de ley “LEY MARCO DE EMPLEO PÚBLICO” expediente legislativo N° 21.336 (ver folio 2069, Tomo 7 del expediente legislativo).
• 12)El 16 de junio de 2020, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa aprobó una moción de fondo de texto sustitutivo del expediente N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (ver folios 2142 y 2255, Tomo 8 del expediente legislativo).
• 13)En sesión ordinaria de la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa N° 03 del 16 de junio de 2020, se aprobó una moción para que se consulte el texto sustitutivo del proyecto de ley N° 21.336 a las instituciones y organizaciones públicas señaladas en el acta (ver folio 2256, Tomo 8 del expediente legislativo).
• 14)El 03 de noviembre de 2020, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa aprobó otra moción de fondo de texto sustitutivo del expediente N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (ver folios 4472 y 4589, Tomo 15 del expediente legislativo).
• 15)El 04 de noviembre de 2020, el Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa emitió el informe N° AL-CJU-066-2020, denominado Informe de Consulta “Publicidad de las Sesiones” (ver folio 4643, Tomo 16 del expediente legislativo).
• 16)Según acta N° 21 del 4 de noviembre de 2020, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa aprobó otro texto sustitutivo (ver folios 4648 y 4768 del Tomo 16).
• 17)En sesión ordinaria N° 22 del 10 de noviembre de 2020, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa aprobó una moción para que se publicara el texto del expediente N° 21.336 “Ley Marco de Empleo Público”. Asimismo, para que se realizaran las consultas obligatorias a las instituciones y organizaciones (ver folios 4859 al 4862, Tomo 16 del expediente legislativo).
• 18)El 10 de noviembre de 2020, el Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa emitió el Informe de Consulta N° AL-CJU-068-2020, denominado “Aplicación del Principio de Corrección Formal del Procedimiento para Corregir Vicios Esenciales y no Esenciales en el Trámite Legislativo” (ver folio 4870, Tomo 16 del expediente legislativo).
• 19)El 10 de noviembre de 2020, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa emitió los dictámenes de minoría afirmativo (folio 5263 y siguientes, Tomo 18 del expediente legislativo) y mayoría afirmativo (afirmativo) (folios 5432 y siguientes, Tomo 18 del expediente legislativo).
• 20)Por oficio N° AL-DEST-CO-346-2020 del 12 de noviembre de 2020, el Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa indicó a la Comisión Permanente Ordinaria de Gobierno y Administración, la lista de instituciones a las que deberían hacerse consultas obligatorias sobre el proyecto de ley N° 21.336 (ver folio 5187, Tomo 17 del expediente legislativo).
• 21)El 18 de noviembre de 2020, la Comisión Permanente de Gobierno y Administración entregó al Directorio Legislativo, el proyecto de ley N° 21.336 “Ley Marco de Empleo Público” (ver folio 5567, Tomo 18 del expediente legislativo).
• 22)En sesión ordinaria del Plenario N° 28 del 21 de enero de 2021, se inició la discusión por el fondo en el trámite del primer debate del expediente N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (ver folio 6851, Tomo 25 del expediente legislativo).
• 23)El 4 de febrero de 2021 la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa entregó a la Secretaría del Directorio, el primer informe de mociones vía 137 del expediente N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (ver folio 6910, Tomo 25 del expediente legislativo).
• 24)En la sesión plenaria N° 38 del 18 de febrero de 2021, se presentaron 474 mociones de fondo, las cuales se trasladaron a la Comisión Dictaminadora (ver folios 7574 y 7576, Tomo 28 del expediente legislativo).
• 25)El 10 de marzo de 2021, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa entregó a la Secretaría del Directorio, el segundo informe de mociones vía 137 del expediente N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (ver folio 7661, Tomo 28 del expediente legislativo).
• 26)En sesión ordinaria N° 50 del Plenario Legislativo, del 16 de marzo de 2021, la Presidencia consultó a las señoras y señores diputados, si presentarían mociones de reiteración (art. 138 del Reglamento), lo cual fue confirmado por varias señoras y señores diputados (ver folio 8895, Tomo 35 del expediente legislativo).
• 27)En sesión ordinaria N° 51 del Plenario Legislativo, del 18 de marzo de 2021, la Presidencia emitió una resolución sobre la admisibilidad de las mociones de reiteración (ver folios 8997 al 9004, Tomo 35 del expediente legislativo).
• 28)En sesión extraordinaria del Plenario N° 83 del 22 de marzo de 2021, se conoció la moción de orden de apelación sobre la resolución de la Presidencia respecto a la admisibilidad de las mociones de reiteración, la cual fue desechada. Igualmente, se inició la discusión de las mociones de reiteración (ver folio 9341 al 9351, Tomo 36 del expediente legislativo).
• 29)En sesión extraordinaria del Plenario N° 84 del 23 de marzo de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folio 9554 y 9731, Tomo 38 del expediente legislativo).
• 30)En sesión extraordinaria del Plenario N° 85 del 24 de marzo de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 10046 y 10126, Tomo 40 del expediente legislativo).
• 31)En sesión ordinaria del Plenario N° 052 del 5 de abril de 2021, se anunció la presentación de mociones de revisión y se siguió con el conocimiento de las mociones de reiteración (ver folios 10329 y 10361, Tomo 41 del expediente legislativo).
• 32)En sesión extraordinaria del Plenario N° 86 del 06 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 10446, Tomo 41 y folio 10497, Tomo 42 del expediente legislativo).
• 33)En sesión extraordinaria del Plenario N° 87 del 06 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 10616, Tomo 42 y 10670, Tomo 43 del expediente legislativo).
• 34)El 6 de abril de 2021, el Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa emitió el “Informe sobre el Texto en Discusión en el Plenario del Expediente N° 21336 Ley Marco de Empleo Público: Conexidad, Aspectos de Constitucionalidad y de Procedimiento” (ver folio 10799, Tomo 43 del expediente legislativo).
• 35)En sesión extraordinaria del Plenario N° 88 del 07 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 10996, Tomo 44 y 11264, Tomo 45 del expediente legislativo).
• 36)En sesión extraordinaria del Plenario N° 89 del 07 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folio 11204, Tomo 45 y folio 11250, Tomo 46 del expediente legislativo).
• 37)En sesión extraordinaria del Plenario N° 90 del 08 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 11345 y 11375, Tomo 46 del expediente legislativo).
• 38)En sesión extraordinaria del Plenario N° 91 del 08 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 11476 y 11532, Tomo 47 del expediente legislativo).
• 39)En sesión extraordinaria del Plenario N° 92 del 12 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 11648, Tomo 47 y 11699, Tomo 48 del expediente legislativo).
• 40)En sesión extraordinaria del Plenario N° 93 del 12 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración y de revisión (ver folios 12062 y 12212, Tomo 50 del expediente legislativo).
• 41)En sesión extraordinaria del Plenario N° 94 del 13 de abril de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 12359 y 12412, Tomo 51 del expediente legislativo).
• 42)En sesión extraordinaria del Plenario N° 95 del 13 de abril de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 12521, Tomo 51 y 12583, Tomo 52 del expediente legislativo).
• 43)En sesión extraordinaria del Plenario N° 96 del 14 de abril de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 12761 y 12813, Tomo 53 del expediente legislativo).
• 44)En sesión extraordinaria del Plenario N° 97 del 14 de abril de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 12920 y 12981, Tomo 54 del expediente legislativo).
• 45)En sesión ordinaria del Plenario N° 053 del 15 de abril de 2021, se conocieron mociones de revisión, orden y se continuó la discusión de fondo del proyecto de ley N° 21336 (ver folios 13071 y 13090, Tomo 54 del expediente legislativo).
• 46)En sesión extraordinaria del Plenario N° 99 del 20 de abril de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 13133 y 13207, Tomo 55 del expediente legislativo).
• 47)En sesión extraordinaria del Plenario N° 101 del 21 de abril de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 13346 y 13389, Tomo 56 del expediente legislativo).
• 48)En sesión ordinaria del Plenario N° 06 del 18 de mayo de 2021, se presentó y aprobó una moción de orden de posposición (ver folio 13498, Tomo 57 del expediente legislativo).
• 49)En sesión extraordinaria del Plenario N° 002 del 19 de mayo de 2021, se presentó y aprobó una moción de orden que autorizaba realizar una sesión extraordinaria el 20 de mayo de 2021 (ver folios 13506 y 13508, Tomo 57 del expediente legislativo).
• 50)En sesión extraordinaria del Plenario N° 003 del 20 de mayo de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 13514 y 13611, Tomo 57 del expediente legislativo).
• 51)En sesión ordinaria del Plenario N° 07 del 24 de mayo de 2021, se finalizó el conocimiento de todas las mociones de fondo y de revisión del expediente N° 21.336. Finalmente, se instruyó a la Secretaría del Directorio para realizar las consultas obligatorias y ordenar la publicación del proyecto (ver folios 13770, 13773 y 13852, Tomo 58 del expediente legislativo).
• 52)El 25 de mayo de 2021 el Departamento de Gestión Documental y Archivo Legislativo envió a la Imprenta Nacional, el texto actualizado del proyecto de ley N° 21.336 para su publicación (ver folio 13949, Tomo 58 del expediente legislativo).
• 53)Por oficio N° AL-DSDI-OFI-0053-2021 del 25 de mayo de 2021, se solicitó criterio sobre el texto actualizado del expediente legislativo N° 21.336 a las siguientes autoridades públicas: Corte Suprema de Justicia, Tribunal Supremo de Elecciones, Caja Costarricense de Seguro Social, Consejo Nacional de Rectores, universidades públicas, Consejo Superior de Educación y municipalidades (ver folio 13909, Tomo 58 del expediente legislativo).
• 54)El texto actualizado del proyecto de ley N° 21.336 fue publicado en el Diario Oficial La Gaceta N° 100, Alcance N° 105 del 26 de mayo de 2021 (ver folio 13951, Tomo 58 del expediente legislativo).
• 55)Por oficio del 28 de mayo de 2021, la Contraloría General de la República atendió la solicitud de criterio en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14354, Tomo 60 del expediente legislativo).
• 56)Por oficio N° SCI-544-2021 del 2 de junio de 2021, el Instituto Tecnológico de Cartago aportó el criterio solicitado en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14436, Tomo 61 del expediente legislativo).
• 57)Por oficio N° OF-CNR-14-2021 del 2 de junio de 2021, el Consejo Nacional Rectores aportó el criterio solicitado en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14538, Tomo 61 del expediente legislativo).
• 58)Por oficio N° SP-62-2021 del 03 de junio de 2021, la Corte Suprema de Justicia atendió la solicitud de criterio en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14504, Tomo 61 del expediente legislativo).
• 59)Por oficio N° UNA-SCU-ACUE-136-2021 del 03 de junio de 2021, la Universidad Nacional atendió la solicitud de criterio en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14566, Tomo 61 del expediente legislativo).
• 60)Por oficio TSE-1226-2021 del 03 de junio de 2021, el Tribunal Supremo de Elecciones atendió la solicitud de criterio en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14642, Tomo 62 del expediente legislativo).
• 61)Por oficio N° REF-CU-2021-181 del 04 de junio de 2021, la Universidad Estatal a Distancia atendió la solicitud de criterio en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14631, Tomo 62 del expediente legislativo).
• 62)En sesión ordinaria del Plenario N° 14 del 10 de junio de 2021, se aprobó una moción de alteración del orden del día, para que el expediente legislativo N° 21.336, ocupara el primer lugar antes de los segundos debates, hasta su votación final (ver folios 14751 y 14754, Tomo 63 del expediente legislativo).
• 63)En sesión ordinaria del Plenario N° 15 del 14 de junio de 2021, se aprobó una moción de orden de posposición. Se continuó la discusión por el fondo, en primer debate del proyecto de ley N° 21.336 (ver folio 14794, Tomo 63 del expediente legislativo).
• 64)En sesión ordinaria del Plenario N° 16 del 15 de junio de 2021, se aprobó una moción de orden de posposición. Se continuó la discusión por el fondo, en primer debate, del proyecto de ley N° 21.336 (ver folios 14849 y 14851, Tomo 63 del expediente legislativo).
• 65)En sesión ordinaria del Plenario N° 17 del 17 de junio de 2021, se aprobó una moción de orden de posposición. Se continuó y finalizó la discusión en primer debate del proyecto de ley N° 21.336, quedando aprobado con 32 votos a favor y 15 en contra (ver folios 14922, 14926y 14947, Tomo 64 del expediente legislativo).
• 66)El 17 de junio de 2021, ingresó a la Secretaría de la Sala Constitucional la consulta facultativa de constitucionalidad N° 21-011713-0007-CO, referida al expediente legislativo N° 21.336 “Ley Marco del Empleo Público” (ver folio 14965, Tomo 64 del expediente legislativo).

Ahora bien, las objeciones puntuales de constitucionalidad que se plantean al respecto, son las siguientes:

-Violación del derecho de enmienda, al haber declarado inadmisibles las mociones de reiteración 18, 231 y 250, por tratarse de mociones de fondo que, aun cuando fueron aprobadas por la comisión dictaminadora, fueron modificadas posteriormente: Consideran los diputados, por ejemplo, que la moción 138-231 se declaró inadmisible a pesar de que la proponente indicó a la Presidencia en su apelación que, aunque fue aprobada la moción de fondo que se reiteró, posteriormente se aprobó otra moción que dejó sin efecto la anterior. En igual sentido se expresó el diputado proponente de la moción 138-18; sin embargo, la Presidencia sí admitió la moción 138-345, que reiteró la moción 122-137 también fue aprobada por la Comisión de Gobierno y Administración en la sesión extraordinaria n° 02 del 26 de enero de 2021. Esa diputada sí pudo defender la moción y esta resultó nuevamente aprobada en la sesión extraordinaria del Plenario n° 93.

-Consideran que la resolución mediante la cual se dispuso acumular parcialmente las mociones de reiteración, excede lo dispuesto en los artículos 27 y 138 del Reglamento Legislativo y violenta el derecho de participación democrática, enmienda y razonabilidad: Consideran los diputados que, no se acumularon mociones que sí coincidían, tales como: las mociones de reiteración 184 y 251 que reiteran la moción de fondo 102, las mociones de reiteración 194 y 270 que reiteran la moción de fondo 355, las mociones 138-195 y 138-271 que reiteran la moción de fondo 310 y las mociones 138-130, 138-273 que reiteran la moción de fondo 433 y la moción 344 que debió acumularse a las mociones de reiteración 198 y 272. Estiman la indebida acumulación en el inciso 4 de la moción 138-154, pues esta pretendía modificar el artículo 2 y adicionar el 3, mientras que las otras, solo proponían adicionar el artículo 3. Agregan que, al finalizar el conocimiento de las mociones de reiteración, el presidente puso en conocimiento la moción 138-154 dando la palabra al proponente para su defensa y sometiéndola a votación del Pleno, modificando la resolución de forma unilateral.

-Violación al derecho de enmienda y participación democrática de la diputada Paola Vega Rodríguez: Aducen que, pese a que la moción de reiteración 138-210 fue admitida, pues no consta en la resolución cuestionada que no lo fuera, y tampoco que se acumulara con otras mociones, la Presidencia no la puso en conocimiento del Pleno, por lo que se omitió su posterior votación. Refieren que, lo correspondiente era conocer la moción 138-210, luego de la 138-207 (ya que las mociones 13-208 y 138-209 fueron retiradas por sus proponentes) en la sesión extraordinaria n° 88, celebrada el 7 de abril de 2021.

• 2)Sobre la jurisprudencia de esta Sala en cuanto a vicios sustanciales del procedimiento y el rechazo de mociones.- El tema de vicios sustanciales en el procedimiento parlamentario ha sido analizado en varias oportunidades por esta Sala. La jurisprudencia constitucional ha indicado en general que, la potestad de reglamentación interna de la Asamblea Legislativa se puede ejercer libre y autónomamente, en tanto, claro está, no enfrente disposiciones, principios o valores constitucionales. La potestad del Parlamento para dictar las normas de su propio gobierno interno (interna corporis), no solo está prevista por la Constitución Política en su artículo 121 inciso 22, sino que es consustancial al sistema democrático y específica de la Asamblea Legislativa como poder constitucional, a tenor del Título IX de la Carta Fundamental. Esta potestad es intrínseca de la Asamblea Legislativa, la cual desarrolla, con absoluta independencia de los otros órganos del Estado, en virtud del principio establecido en el artículo 9 de la Carta Fundamental. Sin embargo, como toda potestad, su ejercicio está sujeto a limitaciones, cuales son: el acatamiento del Derecho de la Constitución, es decir, al conjunto de valores, principios y normas constitucionales. En reconocimiento de esa “interna corporis”, esta Sala ha reconocido que su función en materia de procedimiento legislativo es únicamente la de declarar, aquellos vicios sustanciales, que violen los principios y valores constitucionales aplicables a la materia, pues de lo contrario estaría afectando la capacidad autonormativa y funcional del parlamento (interna corporis), distorsionando su papel de guardián de la supremacía constitucional, por el de una especie de senado ad hoc. De esta forma, sólo frente a violaciones evidentes o groseras, de los principios constitucionales que rigen el derecho parlamentario, sería legítima la intervención de esta Jurisdicción Constitucional. Así, los defectos controlables por parte de la Sala, son aquellos que se refieren a la violación de algún requisito o trámite "sustancial" previsto en la Constitución o, en su caso, establecido en el Reglamento de la Asamblea Legislativa. La intervención de la Sala en materia de procedimiento legislativo, conforme a lo señalado, sólo debe darse en caso de la utilización de estas potestades con evidente abuso de poder, que resulte en la anulación de un derecho y no en su armonización con el resto de los principios constitucionales del derecho parlamentario. Luego, en concreto sobre el derecho de enmienda de los diputados, esta Sala ha dicho que, la participación de los diputados en las Comisiones Permanentes Ordinarias está regulado en los artículos 123 y 124 del Reglamento de la Asamblea Legislativa, que reconocen el derecho de cualquier diputado a presentar mociones escritas “que considere como reforma del caso a cada proyecto”, y las mociones de fondo podrán tramitarse desde el día de publicación del proyecto de ley y mientras no haya sido votado el mismo en la Comisión correspondiente. Las mociones de fondo son aquellas propuestas de los diputados destinadas a modificar el proyecto de ley en cuanto al fondo. Es decir, la contribución de cada diputado en el proceso de formación de la ley se ejerce mediante una propuesta escrita, que procura mejorar, aclarar, modificar, suprimir o adicionar las proposiciones normativas incluidas en incisos, artículos, secciones, capítulos o títulos de un proyecto de ley, lo que significa la posibilidad de influir y determinar los contenidos que finalmente son aprobados por la Asamblea Legislativa, y que constituye el ejercicio de un derecho de todos los integrantes de dicho Poder, el derecho de enmienda, que a su vez define uno de los aspectos esenciales de la actividad legislativa y de nuestro régimen democrático. Como todo derecho tiene sus límites, entre los cuales, está el respeto al principio de conexidad, el cual garantiza a su vez, el derecho a la iniciativa en la formación de la ley y la debida publicidad de la propuesta. Ahora bien, en concreto sobre el rechazo de mociones, esta Sala ha resuelto lo siguiente:

-La facultad de mocionar que el Reglamento de la Asamblea Legislativa concede a todos los diputados, tiene como finalidad asegurar la posibilidad de participación de todos los grupos que la conforman, permitiéndoles ejercer, ampliamente, su papel de formadores de la ley, sea que estén en la "situación" o en la "oposición" respecto de la opinión de la mayoría, debido a su carácter de representantes del pueblo (artículo 105 de la Constitución). Los únicos límites admisibles a esta facultad son los que expresamente consten en la Constitución Política, o bien en el Reglamento de la Asamblea Legislativa, siempre que en este último caso no restrinjan, en forma excesiva, el derecho de todo diputado a mocionar, afectando el núcleo esencial de dicha atribución (ver sentencia n°2000-003220).

-La Presidencia de la Comisión puede, en aras de racionalizar la discusión y el debate, incluso de oficio, agrupar mociones que tengan conexión íntima, identidad de contenido o cuando sean razonablemente equivalentes o reiteración de otras pendientes de resolverse o ya resueltas, así como rechazar las que no se ajusten a lo establecido. En caso de ser ayuna de motivación la resolución, el Diputado puede plantear la apelación del caso para que el vicio sea subsanado (ver sentencias números 2007-002901 y 2007-009699).

-La facultad de rechazo de mociones por parte del presidente debe ser entendida restrictivamente y únicamente respecto de cuestiones de forma, oportunidad o razones de evidente improcedencia (ver sentencia n°2005-007428).

-Se configura un vicio sustancial en el procedimiento legislativo que lesiona el derecho de enmienda y de participación, cuando mociones admitidas no son sometidas a votación (ver sentencia n°2008-004569).

En conclusión, de todo lo anterior se desprende que, la facultad de mocionar de todos los diputados de la Asamblea Legislativa admite como únicos límites los que expresamente consten en la Constitución Política, o bien en el Reglamento de la Asamblea Legislativa, siempre que no restrinjan en forma excesiva o afecte el núcleo esencial de dicha atribución (derecho de enmienda del diputado). Por ello, es posible que el presidente de la Asamblea Legislativa proceda a acumular mociones, mediante una resolución motivada.

• 3)Sobre lo consultado.- Tomando como base la jurisprudencia anterior, se procede al examen de lo consultado sobre los vicios de procedimiento. En concreto, se consultan los siguientes tres puntos sobre la resolución adoptada por la Presidencia, sobre la admisibilidad de mociones de reiteración, adoptada en la sesión ordinaria n°51 del 18 de marzo de 2021:

-Declarar inadmisibles mociones de reiteración, porque eran mociones de fondo ya aprobadas en Comisión.

-Acumular unas mociones de reiteración por considerarlas idénticas, pero no acumular otras que sí lo eran.

-No poner en conocimiento del Plenario una moción admitida.

Al respecto, se observa del expediente legislativo lo siguiente:

Ciertamente, en la sesión plenaria ordinaria n° 51 del 18 de marzo de 2021, el Presidente de la Asamblea Legislativa emitió una resolución sobre la admisibilidad de las mociones de reiteración, en la que desarrolla tres puntos (ver folios 8997 al 9017, Tomo 35 del expediente legislativo), refiriéndose este análisis únicamente a los dos primeros, de interés para este estudio”:

Se tuvieron por inadmisibles las mociones de reiteración identificadas con los números 18, 231 y 250, por corresponder a mociones de fondo que fueron aprobadas en la comisión dictaminadora. Se agrupó la discusión de varias mociones de reiteración, por considerar que eran “idénticas, similares o razonablemente equivalentes”. Serían discutidas en un solo acto, pero votadas de forma individual.

-Sobre las mociones de reiteración declaradas como inadmisibles, en razón de tenerse como aprobadas en Comisión: Revisado el expediente, se constata la apelación planteada contra el rechazo de la moción 138-231 de la diputada Vega Rodríguez y 138-18 del diputado Abarca Mora, así como la apelación general del diputado Welmer Ramos (diputado proponente de la moción 138-250). Lo anterior es relevante, porque la Sala ha determinado que los vicios de procedimiento deben ser advertidos en su momento, para poder luego consultarse sobre ellos en la consulta de constitucionalidad que se presente. Vista la apelación planteada de estas mociones, procede su examen. Ciertamente habría una arbitrariedad y consecuente vicio sustancial, si se demostrara que, las mociones 138-18, 138-231 y 138-250 fueron aprobadas en Comisión, pero que otra moción aprobada posteriormente en comisión “les cayó encima” y luego se rechazara la posibilidad de reiterarlas. Ahora bien, en el caso de las mociones 138-231 y 138-250, el escrito de interposición de la consulta no advierte con claridad cuál fue esa otra moción que les cayó encima o en qué momento procesal sucedió. En total fueron conocidas 777 mociones de fondo y fueron planteadas 352 de reiteración. Esto implicaría que sea la Sala quien deba revisar todas las mociones de fondo aprobadas, luego de que la moción de fondo referida en la moción de reiteración 138-231 y 138-250, fueran aprobadas, a fin de encontrar, conforme su contenido, la supuesta moción que luego las dejó sin efecto, revisión que, a todas luces, es improcedente por parte de esta Sala. Este Tribunal, en reiteradas ocasiones, ha señalado que en el libelo de interposición deben expresarse no solo los artículos del proyecto cuya constitucionalidad se cuestiona o consulta, sino manifestarse de manera clara y suficiente los motivos por los cuales se estima que una norma del proyecto puede ser inconstitucional, pues caso contrario la consulta sería inadmisible (ver, en este sentido, sentencias números 1995-5399-95, 1995-5544, 1999-7085, 2001-11643 y 2012-9253). En cuanto al caso de la moción 138-18, los consultantes fundamentan el vicio cuando citan lo que el diputado Abarca Mora señaló al apelar lo siguiente:

“…Esa moción se refiere a la moción 329 del segundo día de mociones y que de aprobarse la 80 o la 81 de segundo día de mociones, básicamente quedaría fuera del texto a pesar de que fue aprobada y por eso usted la está excluyendo, ya en repetidas ocasiones en el Plenario se han aceptado y admitido mociones aprobadas precisamente para preservar el espíritu del legislador y en este caso yo le llamo la atención en función de que si usted me rechaza esa moción y se aprueba la 80 o la 81 del segundo día, le podemos hacer un daño al proyecto y borraríamos algo que está hoy en el texto base…”.

Es decir, se pide la admisión de una moción de reiteración de una moción ya aprobada en Comisión, para asegurar que no vaya a ser modificada posteriormente. Sin embargo, aunque en este caso sí estuvo fundamentado el argumento, no puede esta Sala sustentar un vicio de procedimiento en un supuesto incierto, a saber, que se lleguen a aprobar mociones que probablemente le puedan caer encima. Lo que procedería en esos casos es que el diputado interesado, durante la moción de reiteración de la moción que le pueda caer encima, defienda el texto aprobado para que se rechace esa moción de reiteración. Y si ya el Plenario decide ir en contra, esa sería la decisión mayoritaria. Nótese que, no se ha demostrado que sea una costumbre parlamentaria el hecho de admitir mociones de reiteración basadas en el temor de que otra moción la sustituya. Además, según consta a folio 11458 del expediente legislativo, el mismo diputado Abarca votó a favor de la moción que dice afectaba la suya.

-Sobre la indebida acumulación de mociones de reiteración: Se examina únicamente el posible vicio de indebida acumulación de la moción 138-154 por tratarse de un aspecto directamente relacionado con el derecho de enmienda de los diputados. Los otros argumentos, en cuanto a que otras mociones debieron acumularse y no se hizo así, es una decisión de Presidencia que más bien favorece el derecho de enmienda y por ello no puede considerarse como un vicio sustancial, así que no procede en esta sede su examen. Dicho lo anterior, consta que la moción de reiteración 154 fue planteada por el diputado Villalta (ver folio 9308, Tomo 36 del expediente legislativo). Esta moción fue acumulada junto con las mociones 13, 138, 179, 180, 181, 246, 247, 248 y 349, por la presidencia de la Asamblea Legislativa, “por existir una evidente conexidad en los fines pretendidos por los proponentes” (ver folio 8983, Tomo 35). Consta la apelación de la acumulación de la moción 138-154, con fundamento en que, se propone modificar dos artículos (el art.2 y el art.3). Tal como lo hizo ver el promovente en la apelación, dicha moción propone reiterar la moción de fondo que busca modificar el artículo 2 y adicionar el artículo 3 del proyecto de ley, mientras que el resto de las mociones acumuladas solo proponen adicionar el artículo 3. En este sentido se constata que, el presidente de la Asamblea decidió ponerla en conocimiento, indicando que: “es una reposición que se debe hacer por un indebido acumulamiento de mociones. Entonces debemos proceder a conocer la moción 154, de don José María Villalta Flórez-Estrada//. En consecuencia, en discusión la moción 154 y hará uso de la palabra el diputado Villalta Flórez-Estrada.” Así entonces, en este caso, pese a la indebida acumulación inicial, luego fue puesta a discusión de forma separada y el diputado proponente pudo hacer uso de la palabra para defenderla. Por lo tanto, no se evidencia vicio alguno de procedimiento por este aspecto, porque la situación fue subsanada en el momento, como los mismos consultantes indican en su escrito de interposición.

-Sobre la no puesta en discusión de la moción de reiteración 138-210: Se alega la violación al derecho de enmienda y participación democrática de la diputada Paola Vega Rodríguez, toda vez que, pese a que la moción de reiteración 138-210 fue admitida, no consta en la resolución cuestionada que no lo fuera, y tampoco que se acumulara con otras mociones, la Presidencia no la puso en conocimiento del Pleno, por lo que se omitió su posterior votación. Una vez revisada la resolución de la presidencia de ese órgano se tiene que, en efecto, la moción 138-210 no fue rechazada ni acumulada, pero del examen que hace esta Sala del expediente legislativo se plantea la duda sobre si existía voluntad de la proponente en su puesta en discusión. La moción pretendía modificar el inciso c) del artículo 13 o su artículo equivalente en caso de que la numeración variara para que dijera:

“ARTÍCULO 13- Régimen General de Empleo Público c) Personas servidoras públicas que se desempeñan en funciones policiales, de conformidad con el artículo 6 de la Ley General de Policía, N° 7410, de 26 de mayo de 1994, el artículo 2 de la Ley Orgánica del Organismo de Investigación Judicial (OIJ), N° 5524, del 07 de mayo de 1974, y el capítulo IX del Código Municipal, N° 7794, del 30 de abril de 1998.” Se pudo acreditar que en el tomo 45 folios 11214 y 11215, consta esa moción con un sello que dice “retirada” y firmado por la diputada Vega, de fecha 7 de abril. Luego, revisada la sesión extraordinaria n° 88 del Pleno, celebrada el 7 de abril de 2021, el presidente solo mencionó que la diputada Vega había retirado las mociones 166, 195, 201, 224, 172, 192, 194, 195, 196, 199, 200, 205, 206, 208, 209, 211, 212, 213, 214, 224, 228, 229, 230, 169, 175, 176, 177, 184, 202 y 221. De este modo, se constata una contradicción, entre la moción con el sello de “retirada” con la firma de la misma diputada Vega, y luego, lo consignado en el acta donde se omite hacer referencia a tal moción como retirada. Más allá de que es materia ajena a esta Sala determinar en este caso, cuál acto tiene mayor validez, si el sello de retirado con la firma de la diputada o lo consignado en el acta, no se observa que la diputada Vega haya evidenciado o manifestado ante el Plenario la situación. Tal como se dijo supra, los vicios de procedimiento deben ser advertidos en su momento, para luego ser planteados vía consulta de constitucionalidad. En este caso, como se dijo no consta que la diputada Vega haya advertido el vicio, por el contrario, se observa su firma en el sello de “retirada” la moción. Así las cosas, no se puede considerar su falta de discusión como un vicio sustancial del procedimiento.

• 4)Conclusiones 1) No se encuentra vicio de procedimiento sustancial en cuanto al argumento de la inadmisibilidad de las mociones 138-231 y 138-250, ello por cuanto no se fundamentó en el escrito de esta consulta cuál fue la moción que las modificó y “les cayó encima”; y en cuanto a la inadmisibilidad de la moción 138-18, por cuanto se fundamentó en un hecho incierto (la probabilidad de que otra moción le cayera encima).
• 2)No se encuentra vicio de procedimiento sustancial en cuanto al argumento de la indebida acumulación de la moción 138-154 por cuanto, aunque fue indebidamente acumulada al inicio, luego el presidente de la Asamblea la desacumuló y permitió su discusión separada.
• 3)No se encuentra vicio de procedimiento sustancial en cuanto al argumento de la falta de discusión de la moción 138-210 de la diputada Paola Vega, por cuanto tal moción consta en el expediente legislativo con sello de retirada y con la firma de la diputada proponente.

VII.- Sobre los vicios de FONDO consultados y en general sobre el proyecto consultado.- Sobre el proyecto consultado, denominado "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, se admitieron las tres consultas facultativas legislativas presentadas por los diputados. Todas las cuales fueron acumuladas a este expediente principal. Agrupados todos los aspectos de fondo consultados, se tiene que, seis de ellos se refieren al ámbito de cobertura del proyecto (en cuanto a la inclusión del Poder Judicial, del Tribunal Supremo de Elecciones, de las Universidad Públicas, de la Caja Costarricense de Seguro Social, de las Municipalidades y de las Instituciones Autónomas) y a otros temas como la objeción de conciencia, el derecho de negociación colectiva, la sanción de inhabilitación, el salario global y el debido proceso. Cada uno de estos temas se analizará por separado en los considerandos siguientes. Sin embargo, a modo de contextualización procede realizar una explicación general del proyecto consultado. En cuanto a la justificación que se da en la exposición de motivos de este proyecto (ver texto base) se indica que el mismo “tiene el propósito de ser una piedra angular para encaminar el servicio público hacia un ordenamiento jurídico más homogéneo entre sí, dirigido a disminuir las distorsiones generadas por la fragmentación, en un contexto de eficacia y eficiencia.”. Lo anterior por cuanto se considera que: “El Estado debe regular la relación con las personas servidoras públicas, bajo normas y principios generales que rijan a toda la institucionalidad pública, salvaguardando la independencia de poderes y las particularidades de los subregímenes de empleo público, … pero siempre, procurando en todo momento, la satisfacción del interés público, garantizado la ciudadanía reciba bienes y servicios con calidad y oportunidad.” Además se indica que, ya la Ley N°9635, Ley de Fortalecimiento de las Finanzas Públicas otorgó la rectoría del empleo público al Ministerio de Planificación Nacional y Política Económica, en el artículo 46 del título III, buscando con ello revivir el espíritu del constituyente. Finalmente se indica en esta exposición de motivos que, “Este proyecto de Ley Marco de Empleo Público busca atender en conjunto las recomendaciones emitidas por diferentes instancias nacionales e internacionales, tales como la Contraloría General de la República y la Organización para la Cooperación y el Desarrollo.” Siendo que, de seguido se hace referencia a esas recomendaciones, indicando en el caso de la OCDE la recomendación de migrar gradualmente hacia un esquema de salario único para los nuevos funcionarios; y en el caso de “la Contraloría General de la República ha llamado la atención sobre la necesidad de revisar el esquema de remuneraciones, principalmente de aquellos incentivos salariales que generan disparidades entre los mismos tipos de puesto, como es el caso de las anualidades.” Además, “la necesidad de vincular los incentivos a mecanismos de evaluación del desempeño y de su continua revisión.” Luego, con base en esas razones el proyecto pretende crear una Ley Marco de Empleo Público, en un texto de 50 artículos y 15 disposiciones transitorias, para que rija un año después de su publicación. En 10 capítulos se regulan aspectos como:

CAPÍTULO I. DISPOSICIONES GENERALES CAPÍTULO II. GOBERNANZA DEL EMPLEO PÚBLICO CAPÍTULO III. PLANIFICACIÓN DEL EMPLEO PÚBLICO CAPÍTULO IV. ORGANIZACIÓN DEL TRABAJO CAPÍTULO V. GESTIÓN DEL EMPLEO CAPÍTULO VI. GESTIÓN DEL DESARROLLO CAPÍTULO VII. GESTIÓN DEL DESEMPEÑO CAPÍTULO VIII. GESTIÓN DE LA COMPENSACIÓN CAPÍTULO IX. GESTIÓN DE LAS RELACIONES LABORALES CAPÍTULO X. DISPOSICIONES VARIAS Dentro del articulado, se destacan los siguientes. El objetivo de la ley sería “Regular las relaciones estatutarias, de empleo público y de empleo mixto, entre la Administración Pública y las personas servidoras públicas (…) de conformidad con el imperativo constitucional de un único régimen de empleo público (…)” (art.1). Incluyendo, dentro de su ámbito de cobertura a todo el aparato estatal, centralizado y descentralizado (art.2). Procediendo a excluir, básicamente a los entes públicos no estatales, el Cuerpo de Bomberos y a las empresas públicas en competencia (art.3). Luego, en el capítulo II, se crea un Sistema General de Empleo Público, cuya rectoría estará a cargo del Ministerio de Planificación Nacional y Política Económica (Mideplán), estableciéndose en el art.7 todas sus competencias en un amplio listado que incluye, desde establecer políticas públicas, programas y planes nacionales de empleo público; emitir disposiciones de alcance general, directrices y reglamentos; emitir lineamientos y principios generales para la evaluación de desempeño y; establecer un sistema único y unificado de remuneración de la función pública; entre otras. Luego, en el capítulo IV se indica la existencia de un único régimen general de empleo público, compuesto por ocho familias de puestos (art.8). Estableciéndose reglas generales para todo el proceso de reclutamiento y selección de nuevo ingreso (art.15) y un único procedimiento de despido (art.21). Asimismo, unas reglas generales sobre la evaluación de desempeño (art.29) y sobre el salario (art.30), con el establecimiento de un régimen salarial unificado para todo el servicio público (art.35). Finalmente se establecen reglas generales para temas como vacaciones (art.38), y permisos; además de disposiciones varias, como por ejemplo, en cuanto a las negociaciones colectivas (art.43).

VIII.- Considerando general.- (redacta el magistrado Castillo Víquez) En el Estado Constitucional de Derecho toda norma infraconstitucional debe leerse, interpretarse y aplicarse de conformidad con el Derecho de la Constitución (valores, principios y normas). Partiendo desde esta perspectiva, el análisis del proyecto de ley consultado se realizará adoptando como marco de referencia lo anterior, de forma tal que se hará una lectura integral y teniendo muy en cuenta el principio de separación de poderes o funciones, así como los principios constitucionales que regulan la descentralización administrativa, especialmente los grados de autonomía que poseen los entes descentralizados por región y servicio para realizar los fines constitucionalmente asignados.

Buena parte de las cuestiones consultadas implica realizar un análisis sobre cuál es la relación entre la ley -el ejercicio de la potestad legislativa- con el principio de separación de poderes, la independencia de estos en el ejercicio de sus competencias exclusivas y excluyentes, la autonomía universitaria y la municipal. No hay que perder de vista que no hay un compartimento o un área de exclusión a la ley en lo que atañe a las competencias exclusivas y excluyentes de la Corte Suprema de Justicia, del Tribunal Supremo de Elecciones, de las Universidades del Estado y de las municipalidades. Prueba de lo que venimos afirmando es la existencia de la consulta constitucional regulada en los numerales 88, 98,167 y 190 de la Carta Fundamental. En otras palabras, si el constituyente originario hubiese querido excluir de la potestad de legislar a los poderes del Estado y a los entes descentralizados no hubiese establecido la consulta constitucional cuando la Asamblea Legislativa, en ejercicio de la potestad legislativa, pretende regular la organización y el funcionamiento de esos poderes y esos entes. En caso de las municipalidades, si bien no instituyó la consulta constitucional de manera expresa -para la mayoría de este Tribunal sí-, lo cierto del caso es que la materia local, en la que aplica la autonomía política de conformidad con los numerales 169 y 170 constitucionales, el Parlamento, en ejercicio de la potestad de legislar, puede regular la organización y las competencias municipales.

Otra cuestión que necesariamente se debe abordar, partiendo del hecho de que la Asamblea Legislativa, en ejercicio de la potestad de legislar, tiene una competencia constitucional para regular la organización y las funciones de los poderes y los entes descentralizados, no para suprimir las autonomías autoorganizativa o autonormativa -en el caso de las universidades estatales-, la política -en el caso de la municipalidades y la CCSS- y la administrativa -en el caso de las instituciones autónomas-, es si, en lo que atañe a una función típicamente administrativa -empleo público- en relación con ciertos puestos de trabajo vinculados directamente a las competencias exclusivas y excluyentes puede o no afectarlas, las que se derivan de esos grados de independencia, es decir, los puestos relativos a la competencia en las materias en las que hay exclusividad en su ejercicio, los cuales deben ser definidos de forma exclusiva y excluyentes por los órganos constitucionales y los entes con fines constitucionalmente asignados y para lo que les dota de grados de autonomía con basamento constitucional. Quiere esto decir que el legislador tiene un límite en el ejercicio de la potestad de legislar, pues no las puede suprimir, o afectar, en sus elementos esenciales, ni trasladar a otros entes u órganos.

Hay que tener presente que un Estado unitariamente concentrado como el costarricense, todos los entes públicos están sometidos al principio de unidad estatal, toda vez que autonomía no significa soberanía, sino simple y llanamente independencia en el ejercicio de las competencias exclusivas y excluyentes. Sobre el principio de unidad estatal se ha afirmado que independientemente del grado de autonomía que tenga un ente descentralizado, este está estrechamente vinculado al Estado por una serie de principios y normas que están en el Derecho de la Constitución, a manera ejemplo, los numerales 11, 48, 49, 182, 184 y 192 de la Carta Fundamental, que estatuyen los principios de legalidad, rendición de cuenta y transparencia, el respeto irrestricto a los derechos fundamentales y los derechos públicos subjetivos y su tutela judicial efectiva en las jurisdicciones constitucional y contencioso-administrativa, los principios y procedimientos de contratación administrativa, la aprobación y fiscalización de los presupuestos por parte de la Contraloría General de la República y control de este órgano de relevancia constitucional sobre el uso de los fondos públicos, el sometimiento a los principios nucleares del servicio civil, etc. En esta dirección, no es inconstitucional que el legislador someta a toda la Administración Pública a una ley marco de empleo público, siempre y cuando observe rigurosamente los principios de separación de poderes y no vacíe de contenido los grados de autonomía que el Derecho de la Constitución le otorgan a las universidades del Estado, a la CCSS y a las municipalidades.

No es posible pasar por alto que toda la actividad relativa a nombramientos, evaluaciones, régimen disciplinario, topes salariales, valoración del trabajo, gestión de la compensación, clasificación de puestos, columnas salariales, etc., es una actividad típicamente administrativa. Tampoco se puede obviar que los poderes del Estado con exclusión del ejecutivo -siguiendo un criterio subjetivo es quien realiza la actividad administrativa por naturaleza, artículo 1.° de la Ley General de la Administración Pública-, excepcionalmente realizan actividad administrativa –criterio objetivo, artículo 2, inciso b) del Código Procesal Contencioso-Administrativo-, tal y como ocurre con la materia de empleo público. La clave de bóveda está en determinar si hay actividades administrativas en este ámbito que resultan indispensables para garantizar las competencias exclusivas y excluyentes de los poderes del Estado. La respuesta es afirmativa, en el sentido de que, si bien se trata de una actividad administrativa su ejercicio corresponde a los órganos constitucionales y entes públicos que gozan de autonomía grado tres y dos. Lo que significa, que esos órganos y entes están llamados a acatar los principios y postulados establecidos en la Ley, pero con la particularidad que es a estos a quienes corresponde aplicarla y ceñirse estrictamente a lo que se establezca. Esta postura, hace que resulte inadmisible, desde la óptica constitucional, el ejercicio por parte del Poder Ejecutivo u otro de sus órganos de un poder de jerarquía, de dirección, de reglamentación interna sobre los poderes del Estado, las universidades del Estado, la CCSS y las municipalidades.

De acuerdo al diseño de distribución de competencias, que responde al principio de separación de poderes y a los grados de autonomía, establecido por el constituyente originario a favor de los órganos constitucionales -poderes del Estado- y entes públicos descentralizados por región -corporaciones municipales- y servicios -universidades estatales y la CCSS-, es claro que la potestad de dirección que corresponde al Poder Ejecutivo o a uno de sus órganos -Mideplán- resulta incompatible con ese principio constitucional y los grados de autonomía que gozan ciertos entes. Dicho de otra forma, la potestad de dictar directrices -mandatos especiales que ordenan la actividad de un órgano o un ente fijándole metas y objetivos, mas no un acto concreto- no es constitucional cuando afecta o incide en las competencias exclusivas y excluyentes de los otros poderes del Estado o en los fines constitucionalmente asignados a los entes de base corporativa o institucional que gozan de un grado de autonomía tres -autoorganizativa o normativa- o dos -política- o en aquellas actividades administrativas necesarias para el ejercicio de esas competencias. Partiendo de esta idea cardinal, es claro que en materia de empleo público, en lo que atañe al personal de los poderes del Estado y los entes descentralizados por región y servicio, quienes ejercen tales competencias -jurisdiccionales, parajurisdiccionales, electorales- o participan de la gestión pública relativa a los fines constitucionalmente asignados a los citados entes, así como el personal administrativo de apoyo, profesional o técnico, que defina, de forma exclusiva y excluyente, cada poder y ente, no pueden quedar, de ninguna manera, bajo el poder de dirección del Poder Ejecutivo o de Mideplán. Hay, pues, un núcleo duro, un indisponible para el Poder Ejecutivo, que no puede ser ordenado en su actividad, ni mucho menos mediante el ejercicio de la potestad reglamentaria, que corresponde exclusivamente a cada poder del Estado y cada ente público.

Ahora bien, lo anterior no significa que todo el funcionariado de los poderes del Estado y de los entes supra citados esté excluido de la potestad de dirección. En el caso de los servicios administrativos básicos, auxiliares, que no inciden sobre las competencias exclusivas y excluyentes ni funciones administrativas necesarias para el cumplimiento de estas, cada poder del Estado y ente debe definir de forma exclusiva y excluyente cuáles de estas pueden estar sometidas a la potestad de dirección. Por ello, con base en el principio de independencia de poderes o funciones y los grados de autonomía garantizado constitucionalmente a cada ente, corresponde de manera exclusiva y excluyente a sus máximos órganos – Corte Plena, Consejo Superior del Poder Judicial, Tribunal Supremo de Elecciones, Consejos Universitarios, Rectorías, Junta Directiva y Presidencia Ejecutiva de la Caja Costarricense de Seguro Social, Concejo y Alcaldes Municipales- establecer cuáles son esos servicios administrativos básicos, auxiliares, comunes y similares a toda la Administración Pública que sí estarían sometidas a las potestades de dirección y reglamentaria del Poder Ejecutivo.

Ergo, al no establecer el proyecto de ley esa salvaguarda -una norma clara y precisa- en este sentido, este Tribunal concluye, como se explicará más adelante, que hay una serie de vicios de inconstitucionalidad que quebrantan la independencia judicial, electoral y las autonomías de las universidades del Estado, la CCSS y las Municipalidades.

En otro orden de ideas, también deben tener claro los (as) diputados (as) que todo lo que atañe al funcionariado de los poderes del Estado y los entes con fines constitucionales asignados establezcan como parte de sus competencias -constitucionales o administrativas- lo relativo a la construcción de la familia, los grados de esta, la metodología de valoración de trabajo, los factores de trabajo relevantes a asignar, el salario mínimo y máximo de cada columna, los fundamentos técnicos para fijar los salarios, el manual descriptivo de cada puesto, la evaluación del desempeño, etc., les corresponde, de forma exclusiva y excluyente, definirlo a cada uno de estos, como se explicará al analizar la normativa que se tacha de inconstitucional en las consultadas admitidas.

No menos importante es el hecho de que, lo referente a evaluación del desempeño y el ejercicio de la potestad disciplinaria, queda reservado a cada poder del Estado y a los entes supra citados, toda vez que estas potestades son consustanciales al ejercicio de sus competencias constitucionales o a la realización de los fines constitucionalmente fijados. Quiere esto decir, que en lo tocante a estos temas todo el funcionariado de cada poder y ente quedan sometidos a las disposiciones internas que cada uno de estos dicten al respecto.

Una última cuestión, antes de referirnos a cada agravio que plantean los (as) consultantes, y es que en sentencias número 1992-1696 de las 15:30 horas del 23 de agosto de 1992, 2018-14905 de las 12:30 horas del 7 de setiembre de 2018 y 2018-231 de las 11:00 horas del 10 de enero de 2018, reiteradas en la 2019-14347, se reafirmó que es factible la existencia de diferentes regímenes laborales en la administración pública, siempre y cuando se rijan por los principios comunes de idoneidad y estabilidad en el empleo, tal como el régimen estatutario. Este Tribunal ha señalado que nuestros constituyentes originales consignaron en la Constitución Política de 1949, que debía existir un régimen laboral administrativo que regulara las relaciones entre los servidores públicos y el Estado, a fin de proteger a los primeros de destituciones arbitrarias (estabilidad en el empleo) y de profesionalizar la función pública (búsqueda de la eficiencia en el servicio y de la idoneidad del funcionario). El objeto de tal cometido era procurar que la Administración Pública contara con factores organizativos que le permitieran satisfacer el derecho de los ciudadanos al buen funcionamiento de los servicios públicos. En atención a ello, se dispuso constitucionalmente que el procedimiento para seleccionar y nombrar a un servidor en la Administración Pública debía cumplir con los principios fundamentales que prevén los artículos 191 y 192, con los cuales se procura personal idóneo para ocupar un puesto público, con el propósito de garantizar la eficiencia y efectividad en la función pública.

Se visualiza un régimen de servicio civil, no como un privilegio corporativo, sino como una garantía de la imparcialidad institucional, que regula la función pública, garantiza la selección del personal con base en criterios de mérito y capacidad, así como en un justo equilibrio entre derechos y responsabilidades de los empleados públicos. Se ha indicado también, que dicha legislación debe prever instrumentos que a las diferentes administraciones les faciliten la planificación, ordenación y utilización más eficiente de su personal. De ahí que la relación laboral de empleo público esté sujeta a ciertas especificidades y principios, como los de mérito y capacidad en el acceso, y también a determinadas normas de derecho público, como el régimen de incompatibilidades, que garanticen objetividad e imparcialidad en la prestación del servicio público.

Se estableció que los Constituyentes originarios, al discutir los títulos referentes a las Instituciones Autónomas y al Servicio Civil, estimaron elevarlos a nivel constitucional con el anhelo -por una parte- de desconcentrar el poder del ejecutivo en cuanto a las nuevas funciones que le fueron encomendadas al Estado, y sus influencias político-electorales sobre su funcionamiento. Por otra parte, consideraron los graves efectos que provocaban los cambios de gobierno sobre el personal de la Administración Pública ante la falta de un instrumento jurídico adecuado que los protegiera. En esos precedentes se destacó el siguiente análisis realizado a partir de las actas de la Constituyente:

"El Representante Facio expresó que todos están de acuerdo en que algún día han de estar cobijados los empleados de la Administración Pública por una adecuada Ley de Servicio Civil. También están de acuerdo en que una ley de esta naturaleza es muy compleja y no puede promulgarse de un momento a otro, o de un solo golpe. Es necesario irla adaptando poco a poco a la realidad y conveniencias nacionales. Agregó que en el Proyecto del 49 incorporaron un capítulo especial sobre el Servicio Civil, algunas de cuyas disposiciones las someterán a conocimiento de la Cámara en su oportunidad. En el Proyecto se deja establecida constitucionalmente la carrera administrativa, para que no vuelvan a ocurrir en nuestro país los sucesos pasados, cuando los empleados eran removidos de sus cargos por simples maniobras politiqueras. Sin embargo, los de la Comisión Redactora del Proyecto se dieron cuenta de la diferencia de establecer en Costa Rica la Ley de Servicio Civil. Por eso fue que solucionaron el problema mediante un transitorio, redactado en los términos siguientes:

"Las disposiciones del Título XIII entrarán en vigencia el mismo día que la Ley de Servicio Civil, la cual se aplicará gradualmente, de tal modo que en un plazo (sic) no mayor de diez años, cubra la totalidad de los servidores públicos." (Tomo III, Actas de la Asamblea Nacional Constituyente No. 132, pág. 120 y 121). - Dicha moción -de incluir dos incisos en el artículo 140 de la Constitución Política- fue sometida a votación, alcanzando un empate, por lo que debió ser conocida y votada en la sesión siguiente. En relación al segundo inciso propuesto, fue desechado. - III Conforme con lo anterior, luego de amplias discusiones se aprobó el artículo 140, inciso 1… Por todo lo anterior, se dispuso para el artículo 140, inciso 1) y 2) de la Constitución Política, la aprobación definitiva el artículo 140.-X de las Disposiciones Transitorias, al establecer que:

"La Ley de Servicio Civil no entrará en vigencia antes del ocho de noviembre de mil novecientos cincuenta ni después del primero de junio de mil novecientos cincuenta y tres, según lo acuerde la Asamblea Legislativa. Esa ley podrá, además, disponer que sus normas se apliquen gradualmente a los diversos departamentos de la Administración Pública; en todo caso, dicha ley deberá proteger a la totalidad de los servidores públicos incluidos en el inciso segundo del artículo 140, a más tardar el ocho de noviembre de mil novecientos cincuenta y nueve. Mientras no entre en vigencia la Ley de Servicio Civil, el Presidente de la República y el respectivo Ministro de Gobierno, podrán nombrar y remover libremente a todos los funcionarios de su dependencia, incluso a los Directores y Gerentes de las Instituciones Autónomas y a los integrantes de las Juntas y organismos oficiales, cuyos nombramientos hubieran sido hechos con anterioridad a la fecha de vigencia de esta Constitución, aún cuando tales designaciones lo fueren por período fijo." V Después de aprobado el Capítulo de las Instituciones Autónomas, los constituyentes entraron a conocer el Título y Capítulo Único del Servicio Civil, artículos que definieron el ámbito de aplicación y sus principios. En aquellas fechas, muchos de los servidores públicos, eran removidos de sus puestos para dar cabida a los partidarios del nuevo gobierno, lesionando el funcionamiento de la administración pública. Precisamente para atacar este mal, un grupo de constituyentes propugnó la creación de ese instrumento jurídico a fin de dotar a la Administración Pública de una mayor eficiencia administrativa y funcional. El primer artículo propuesto establecía que "Un estatuto de Servicio Civil regulará las relaciones entre el Estado y los servidores públicos, con el propósito de garantizar la eficiencia de los servicios, los cuales serán desempeñados con un criterio técnico y por el personal estrictamente necesario.". El Diputado Fournier, resumió el propósito del estatuto, al decir que era para regular las relaciones entre el Estado y sus servidores públicos. Ello tuvo -como es de esperar- reacciones de apoyo y de resistencia por parte de algunos diputados, incluyendo el Representante Esquivel quien consideró innecesario su inclusión por existir el artículo 140, inciso 1) y 2) de la Constitución Política, numeral que ya estaba aprobado por la Asamblea Nacional Constituyente. No obstante la resistencia citada, queda claro que el tema no había sido agotado con la sola aprobación de esos incisos, pues incluso el régimen estatutario fue ampliado en su concepto. Así con motivo de la discusión del artículo 192, el Diputado Fournier resaltó:

"Es imprescindible decir lo esencial de la Ley de Servicio Civil, esto es, que a ningún empleado se le podrá remover de su puesto, sino es por causales de despido que establece el Código de Trabajo, o en caso de reducción forzosa de servicios por falta absoluta de fondos o para conseguir una más eficaz y económica organización de los mismos. Se garantizan al empleado y al Estado." Se destacó en la discusión supra referida, que no bastaba la mera enunciación de la Ley de Servicio Civil en la Constitución Política, sino que era necesario citar los principios fundamentales del estatuto de la función pública, la forma de nombramiento a base de idoneidad comprobada, y su remoción, mediante una legislación predeterminada como lo era la legislación de trabajo, o para casos de reducción forzosa de servicios, ya sea por falta de fondos o para conseguir una mejor organización de los mismos. Sin embargo, esta Sala advirtió que lo planteado por el Poder Ejecutivo ante la Asamblea Legislativa el 14 de abril de 1953, según el expediente n.º 1581, fue un proyecto que circunscribió únicamente a sus funcionarios dentro de su ámbito competencial, a pesar de que la voluntad del Constituyente era aprobar un estatuto para el Estado, lo que produjo las consecuencias e interpretaciones aplicativas de una normativa ajena a lo pretendido por el Constituyente. Se advirtió, explícitamente lo siguiente:

“VI… Es claro que la intención del constituyente era la de crear un régimen laboral administrativo. De la lectura de las actas de la Asamblea Nacional Constituyente se distingue la figura del empleado público y del trabajador privado. Es indudable que la ausencia de un régimen jurídico que regule apropiadamente las relaciones entre el Estado y sus servidores, quebranta el artículo 191 de la Constitución Política, lo que conlleva también al quebrantamiento del artículo 11 de la Carta Magna…

VII.Por una parte, la Ley que se emitió (Estatuto del Servicio Civil) tiene alcances parciales, ya que la iniciativa tomada por el Poder Ejecutivo al respecto solamente tuvo como propósito regular las relaciones con sus servidores, esto es, dentro de su ámbito competencial. Desde este ángulo de enfoque, se ha dejado por fuera la regulación de las relaciones de servicio entre los entes públicos menores, pues era algo en lo que no tenía interés el Ejecutivo, o simplemente no era lo que consideraba más urgente. Por otra parte, el Estatuto del Servicio Civil reguló apenas algunos de los aspectos de la relación de los servidores con el Estado como los relativos a derechos, deberes de los servidores, su selección, clasificación, promoción, traslados, disciplina y régimen de despido -entre los más importantes-, que evidentemente atañen a una de las preocupaciones expresadas en la Asamblea Nacional Constituyente, esto es, la que tiene relación con la idoneidad y la eficiencia del servicio, pero no tocó otros aspectos no menos importantes, como es el que subyace en el planteamiento de esta acción, es decir, la regulación del propio régimen económico de esa relación y el sometimiento de los otros entes administrativos al régimen laboral público. Este vacío, sin embargo, no autoriza utilizar mecanismos previstos para una relación privada, a una relación de empleo público que se debe regir por principios propios y diferentes.” (Lo que está entre negritas no corresponde al original).

La Sala fue clara en esos precedentes que, del examen de las discusiones de los Constituyentes, existe un mandato y no una simple recomendación para aplicar a esa relación de empleo entre la administración pública y sus servidores, criterios propios o especiales, para lo cual, conforme al transitorio referido, debía la Asamblea Legislativa promulgar entre el 8 de noviembre de 1950 y el 1 de junio de 1953, la Ley de Servicio Civil que tendría como característica principal su aplicación paulatina en las oficinas de distinta naturaleza de la Administración Pública, lo cual no fue cumplido a cabalidad en su momento.

Tal como quedó expuesto en la línea jurisprudencial inicial, a partir del año 1949, el ordenamiento jurídico que regula la relación de empleo entre la administración pública y sus servidores en nuestro país se rige por el derecho público. Este régimen implica, necesariamente, que esa relación, por su propia naturaleza, se basa en principios generales propios, no solo distintos a los del sector laboral privado, sino incluso, muchas veces contrapuestos a estos.

Según se indicó, el “legislador…, optó por regular el servicio no de modo general, sino por sectores, promulgando así el Estatuto de Servicio Civil (que se aplica a los servidores del Poder Ejecutivo) y posteriormente otros estatutos para regular la prestación de servicios en los restantes poderes del Estado y en algunas instituciones descentralizadas.” (véanse las sentencias n.°1990-1119 de las 14:00 horas del 18 de setiembre de 1990 y n.°2004-7476 de las 14:04 horas del 30 de abril de 2004, entre otras). Y ello, según reconoció este Tribunal, es consecuente con una interpretación sistemática de la Constitución Política, que también reconoce la autonomía de las instituciones autónomas y el grado de independencia a cada uno de los Poderes del Estado.

En sentencia n.° 1999-5966 de las 10:30 horas del 30 de julio de 1999, este Tribunal señaló lo siguiente:

“SEXTO: EL RÉGIMEN DE EMPLEO DE LOS SERVIDORES DE LA COMISIÓN QUE SE CREA EN LA LEY. La consulta indica que "el hecho de que los funcionarios regulares estén sometidos a un régimen de empleo especial" viola el artículo 191 Constitucional y aunque la Sala ya ha establecido en su jurisprudencia que cuando la norma fundamental se refiere a "un estatuto de servicio civil" no dice un único estatuto, pues los distintos Poderes que ejercen el gobierno de la República (artículo 9° constitucional) pueden tener su propio régimen estatutario. En relación con este tema, puede consultarse la abundante jurisprudencia de esta Sala, en particular los fundamentos de las sentencias números 1148-90, de las diecisiete horas del veintiuno de setiembre de mil novecientos noventa y 1696-92, de las 15 horas y treinta minutos del día veintitrés de agosto de mil novecientos noventa y dos. Lo que sí constituye una violación de las previsiones constitucionales dichas, es que un órgano adscrito al Poder Ejecutivo, independientemente de los nombramientos que pudieran o debieran realizarse con motivo y para atender una emergencia, pueda contar con "un régimen especial de empleo" y en el que el papel de la Dirección General de Servicio Civil quede limitado a coordinarlo e inspeccionarlo.

En ese sentido, pues, llevan razón los consultantes y la norma, en los términos que fue concebida, debe eliminarse. Únicamente debería agregarse aquí, que con motivo de una emergencia, se podrían utilizar mecanismos excepcionales de contratación de personal, pero esto estaría autorizado por principio y ni siquiera en base a una norma que lo autorizara.” De este modo, han sido aceptados otros estatutos que regulan esta relación de empleo público; empero, imponiendo en cada una de esas regulaciones como límite esencial, el cumplimiento del principio de idoneidad y de estabilidad en la relación laboral en el sector público, independientemente del régimen diferenciado que se adopte, de conformidad con lo dispuesto en los artículos 191 y 192 constitucionales. Así lo reafirmó esta Sala, en las sentencias números 2001-5694 de las 16:23 horas del 26 de junio de 2001, 2011-014624 de las 15:50 horas de 26 de octubre de 2011, y 2006-17746 de las 14:36 horas del 11 de diciembre de 2006.

Así las cosas, los principios y normas constitucionales que regentan el Servicio Civil se extienden al régimen de empleo público de los entes administrativos, pues la intención del constituyente fue crear un régimen laboral administrativo, con sus propios principios, derivados de la naturaleza estatutaria de la relación entre los funcionarios públicos y el Estado, y aunque lo concibió de un modo general, en el artículo 192 constitucional también dejó prevista la necesidad de establecer excepciones a esa única regulación. Así lo evidenció este Tribunal en la sentencia n.° 1990-1119, al indicar lo siguiente:

“…El legislador, sin embargo, optó por regular el servicio no de modo general, sino por sectores, promulgando así el Estatuto del Servicio Civil (que se aplica a los servidores del Poder Ejecutivo) y posteriormente otros estatutos para regular la prestación de servicios en los restantes poderes del Estado y en algunas instituciones descentralizadas. No obstante, a pesar de que el legislador no recogió la idea del constituyente y reguló sólo parcialmente el servicio público, es lo cierto, que los principios básicos del régimen (escogencia por idoneidad, estabilidad en el empleo) cubren a todos los funcionarios al servicio del Estado, tanto de la administración central, como de los entes descentralizados. Mas, esto en principio, porque el artículo 192 constitucional introduce otros elementos importantes al disponer al inicio “con las excepciones que esta Constitución y el estatuto de servicio civil determinen”, frase que obliga a matizar las conclusiones anteriores respecto al ámbito de aplicación del régimen o estatuto de servicio civil. Es obvio que en la mente del constituyente estaba la idea de que no todos los servidores públicos podían estar cubiertos por el régimen especial, pues la forma de escogencia, las especiales capacidades, las funciones de cada cargo, las relaciones confianza y dependencia no son iguales en todos los casos, de ahí que los principios derivados del artículo 192 son aplicables a ciertos funcionarios –la mayoría- no a todos. La Constitución misma señaló varios casos de funcionarios de libre escogencia y remoción como son los ministros de gobierno, los miembros de la fuerza pública, los directores de instituciones autónomas, representantes diplomáticos, y en general, "los empleados y funcionarios que ocupen cargos de confianza" (art. 140 inciso 1), dejando a la ley (Ley de Servicio Civil dice el artículo 140) la determinación de otros funcionarios, que en casos muy calificados, pudieran ser excluidos del régimen general. Esta posibilidad de excluir ciertos funcionarios la reitera el artículo 192. Se repite que la intención del constituyente fue la de que existiera una sola ley, un Estatuto, que regulara todo el servicio público. No obstante, lo importante es que se dejó al legislador ordinario, por medio de la ley, la regulación en detalle de la cobertura del régimen especial, lo cual podía hacer, como lo hizo, en leyes separadas, sin detrimento del mandato constitucional. Por vía de ley el legislador ha excluido varios casos del régimen común. El Estatuto de Servicio Civil en sus artículos 3, 4 y 5, menciona un buen número de funcionarios que no se consideran dentro del régimen. También por ley especial se han excluido los presidentes ejecutivos de las instituciones autónomas, que son de nombramiento del ejecutivo, y en general, una serie de funcionarios, nombrados casi siempre a plazo fijo, y cuyo denominador común es encontrarse en una relación de servicio no típicamente laboral, bajo un régimen de subordinación jerárquica, sino más bien de dirección o colaboración, donde no median órdenes, sino más bien directrices, en unos casos; o bien, en una relación de confianza que obliga a otorgar una mayor libertad para el nombramiento y la eventual remoción del funcionario; ello independientemente de la naturaleza permanente de la función. Esta relación de confianza puede fundarse, según los requerimientos del cargo, en aspectos puramente subjetivos, de orden personal; pero también puede derivar de elementos objetivos nacidos de una comunidad ideológica (política en el buen sentido del término), necesaria para el buen manejo de la cosa pública conforme a planes y programas. Los casos de excepción, está claro, han de ser muy calificados, con las especiales características señaladas que justifiquen un trato desigual. Así ha de ser, pues por vía de excepción injustificada el legislador podría hacer nugatoria la disposición constitucional que tiende a la estabilidad laboral del empleado público y a la racionalidad del reclutamiento, como regla general. Pero si el cargo tiene alguna característica especial que lo justifique, la excepción será válida.”. (El énfasis no es del original) Como fácilmente se deduce de lo que llevamos dicho, la intención del constituyente originario fue someter a un régimen de Derecho administrativo -estatutario- todas las relaciones de empleo público, es decir, ningún órgano ni ente de la Administración Pública, central o descentralizada, quedó exento de este deber, de ahí que, si bien pueden existir estatutos especiales -propios de los órganos y entes descentralizados-, siempre y cuando respondan a los principios cardinales que se encuentran consagrados en la Carta Fundamental, también es lo cierto que es constitucionalmente válido que haya un estatuto único que regula las relaciones entre la Administración Pública, central y descentralizada, y sus servidores. Lo anterior significa, que la Asamblea Legislativa está habilitada por el Derecho de la Constitución a establecer un estatuto único que comprenda a todos (as) los (as) servidores (as) públicos, con las excepciones que la Constitución -incisos 1 y 2 del artículo 140- y el citado estatuto determine, por lo que, en este extremo, el proyecto de ley consultado no resulta contrario al citado Derecho y, lógicamente, siempre y cuando no se supriman, afecte en lo esencial, ni se trasladen las competencias exclusivas y excluyentes que le corresponden a los poderes del Estado y a los entes descentralizados a otros órganos y entes según el principio de separación de poderes o funciones o el grado de autonomía, respectivamente..." "...

IX.- Sobre la consulta de violación a la independencia judicial.- 1) Aspectos consultados Los consultantes diputados consideran que los siguientes artículos del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, son violatorios del principio de independencia judicial y por tanto de los artículos 9, 154 y 156 de la Constitución Política, el art.10 de la Declaración Universal de Derechos Humanos, el art.14 del Pacto Internacional de Derechos Civiles y Políticos y el art.8 de la Convención Americana de Derechos Humanos. En concreto, consultan sobre los artículos indicados, sea en el encabezado del título general o en el resto del texto del escrito de interposición:

2.a (ámbito de cobertura), 6.b (rectoría de Mideplan), 7 (competencias de Mideplan), 9.a (oficinas de Recursos Humanos), 12 (base de datos) 13 (familias de puestos), 14 (reclutamiento y selección), 15 (postulados de reclutamiento y selección) 17 (personal de Alta Dirección), 18 (plazo de prueba y plazo de nombramiento), 19 (movilidad o traslados) 21 (régimen único de despido), 22 (proceso de despido), 31 (metodología de trabajo) 49 incisos a, b, g y h (reforma a normativa).

En primer lugar, sobre los artículos 12 (base de datos), 13.h (familia de puestos de confianza), 15 (postulados de reclutamiento y selección), 19 (movilidad o traslados), y 31 (metodología de trabajo), dado que no se realiza la fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, se declara inevacuable la consulta por falta de fundamentación. Observa la Sala que a pesar de lo que señalaron en la consulta, lo cierto del caso es que no lo fundamentaron de manera adecuada y con esa omisión, no le permiten a este Tribunal tener certeza sobre cuál es el cuestionamiento que plantean y los motivos por los cuales pudieron estimar que tales normas, eventualmente, podrían tener problemas de constitucionalidad en general o bien, en concreto, en relación con el Poder Judicial y el Tribunal Supremo de Elecciones. Sobre el particular, debe recordarse lo que dispone el artículo 99 de la Ley de la Jurisdicción Constitucional, el cual dice:

"Artículo 99.- Salvo que se trate de la consulta forzosa prevista en el inciso a) del artículo 96, la consulta deberá formularse en memorial razonado, con expresión de los aspectos cuestionados del proyecto, así como de los motivos por los cuales se tuvieren dudas u objeciones sobre su constitucionalidad." Frente a ese panorama, al no contar la Sala con mayores elementos para realizar el análisis de este numeral, lo que procede es, por unanimidad, declarar inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en cuanto a los artículos 12 (base de datos), 13.h (familia de puestos de confianza), 15 (postulados de reclutamiento y selección), 19 (movilidad o traslados), y 31 (metodología de trabajo), por falta de fundamentación de lo consultado, respecto del Poder Judicial y del Tribunal Supremo de Elecciones. Así entonces, debe entenderse que esta Sala omite realizar pronunciamiento alguno sobre la constitucionalidad o no de estas normas.

Ahora bien, sobre el resto de normas, los consultantes las consideran inconstitucionales por cuanto pretenden someter al Poder Judicial a las disposiciones que dicte el Ministerio de Planificación Nacional y Política Económica (Mideplán) y a la Dirección General del Servicio Civil, en materia de empleo público. Indican que el proyecto permite que un órgano del Poder Ejecutivo se meta en la gestión del empleo del Poder Judicial, incluso dictando resoluciones o circulares (art.7). Permitiendo intromisiones que van más allá de lo puramente administrativo o salarial. Consideran que es evidente la violación a los principios de separación de poderes, autonomía e independencia del Poder Judicial. Indican que, el proyecto violenta el principio de separación de poderes, la autonomía e independencia del Poder Judicial, los principios de legalidad, seguridad, proporcionalidad y razonabilidad, por cuanto pretende regular las relaciones de empleo entre las personas servidoras y el Poder Judicial (art.2.a), sometiéndole a la aplicación del Estatuto de Servicio Civil según la reforma al art.1 de su cuerpo legal (art.49.B), al incluir al Departamento de Gestión Humana de ese Poder a la rectoría de Mideplán (art.6), quedando obligado a aplicar y ejecutar las disposiciones de alcance general, directrices y reglamentos en relación con la planificación del trabajo, las gestiones de empleo, de rendimiento, de compensación y de relacionales laborales que emita Mideplán (art.9), al establecer un único régimen de empleo público del cual formarán parte las personas que administran justicia (art.13), al disponer el reclutamiento y selección del personal del Poder Judicial de acuerdo a disposiciones de alcance general, directrices, reglamentos, circulares, manuales y resoluciones de Mideplán a cada familia de puestos (art.14), al igual que para el personal de alta dirección técnica para el cual dispone de 6 meses de periodo de prueba y 6 años de nombramiento (art.17 y 18), con posibilidad de prórroga anual sujeta a la evaluación de desempeño, y la sujeción de los órganos del Poder Judicial cuyas competencias están asignadas en el Estatuto de Servicio Judicial y la Ley de Salarios del Poder Judicial, de coordinar todo concerniente al empleo público con Mideplán en su condición de órgano rector. Además, del establecimiento de un único procedimiento de despido cuando ya se tiene uno regulado en la normativa especial (art.21 y 22) .

Así entonces se procede al examen de los artículos indicados. Realizándose de previo, un resumen jurisprudencial sobre el tema de independencia judicial, el cual servirá de contexto para el examen de cada artículo consultado.

• 2)Antecedentes Jurisprudenciales sobre el Principio Constitucional de separación de poderes y el principio constitucional de independencia judicial Para comprender lo trascendental que resulta el tema de la independencia judicial para un Estado de Derecho como el nuestro, se debe partir de otro principio básico en todo sistema democrático, el principio de separación de poderes. Desde la Declaración de derechos del hombre y el ciudadano de 1789, en el artículo 16, se indica lo siguiente:

“Artículo 16.- Una Sociedad en la que no esté establecida la garantía de los Derechos, ni determinada la separación de los Poderes, carece de Constitución. “ Lo cual quiere decir que, uno de los dos pilares fundamentales para la existencia verdadera de una Constitución, es el resguardo del principio de separación de poderes. Según reiterada jurisprudencia constitucional sobre este principio, el Gobierno de la República lo ejercen el pueblo y tres Poderes distintos e independientes entre sí: El Legislativo, el Ejecutivo y el Judicial. Consagrado en el artículo 9 de la Constitución Política y se erige en “uno de los pilares fundamentales del Estado Democrático, en tanto establece un sistema de frenos y contrapesos que garantiza el respeto de los valores, principios y normas constitucionales en beneficio directo de los habitantes del país.” (sentencia n°2006-013708). Desde la sentencia n°6829-1993 se indicó que, la teoría de la separación de Poderes se interpreta como la necesidad de que cada Órgano del Estado ejerza su función con independencia de los otros (artículo 9 de la Constitución Política). Si bien no pueden darse interferencias o invasiones a la función asignada, necesariamente deben producirse colaboraciones entre Poderes. En la actualidad, la doctrina y la práctica constitucionales afirman que lo conveniente es hablar de una separación de funciones, es decir, de la distribución de ellas entre los diferentes órganos estatales. Propiamente sobre la independencia del Poder Judicial y la independencia de los jueces existe también abundante jurisprudencia de esta Sala. En general, se ha afirmado que, en los regímenes políticos democráticos, el principio de independencia del juez, en particular, y del Poder Judicial, en general, tiene un valor fundamental porque sobre él descansan la legitimidad del juez y la imparcialidad de la decisión judicial. Se ha indicado que resulta toral para el adecuado funcionamiento del Estado democrático de Derecho –entendido bajo su postulado de primacía del derecho– que la función jurisdiccional pueda ejercerse sin presiones indebidas, en el seno de un Poder Judicial verdaderamente independiente. Principio que, en el caso costarricense, no solo tiene debido sustento constitucional, sino que en múltiples instrumentos internacionales se contempla. Esta Sala ha resaltado desde sus inicios la importancia de la independencia judicial al reafirmar que la administración de justicia es una competencia exclusiva del Poder Judicial (ver sentencia n°1991-0441 y 1994- 2358, 1996-6989, 1999-4555, 2006-7965). La Corte Interamericana de Derechos Humanos –órgano jurisdiccional del Sistema Interamericano de Protección- ha determinado:

“(…) uno de los objetivos principales que tiene la separación de los poderes públicos es la garantía de la independencia de los jueces” (Corte IDH. Caso del Tribunal Constitucional vs. Perú. Fondo, Reparaciones y Costas. Sentencia de 31 de enero de 2001 Serie C No. 71, párr. 73).

Asimismo ha indicado que “Dicho ejercicio autónomo debe ser garantizado por el Estado tanto en su faceta institucional, esto es, en relación con el Poder Judicial como sistema, así como también en conexión con su vertiente individual, es decir, con relación a la persona del juez específico. El objetivo de la protección radica en evitar que el sistema judicial en general y sus integrantes en particular se vean sometidos a posibles restricciones indebidas en el ejercicio de su función por parte de órganos ajenos al Poder Judicial o incluso por parte de aquellos magistrados que ejercen funciones de revisión o apelación. Adicionalmente, el Estado está en el deber de garantizar una apariencia de independencia de la magistratura que inspire legitimidad y confianza suficiente no sólo al justiciable, sino a los ciudadanos en una sociedad democrática”. (Corte IDH. Caso Apitz Barbera y otros “Corte Primera de lo Contencioso Administrativo” vs. Venezuela. Excepción Preliminar, Fondo, Reparaciones y Costas. Sentencia de 5 de agosto de 2008. Serie C No. 182, párr. 55.).

En la sentencia n°1999-1807 se indicó el fundamento constitucional y convencional del principio de independencia judicial, resaltándose la independencia externa (del Poder Judicial como órgano) y la interna (la del juez):

“VIII.- La independencia del Poder Judicial se encuentra garantizada constitucionalmente en los artículos 9 y 154. También la Convención Americana sobre Derechos Humanos, normativa de rango internacional de aplicación directa en nuestro país se refiere al tema. La Convención Americana sobre Derechos Humanos establece la independencia del juez como un derecho humano, al disponer en el artículo 8.1 que: «1.- Toda persona tiene derecho a ser oída, con las debidas garantías y dentro de un plazo razonable, por un juez o tribunal competente, independiente e imparcial, establecido con anterioridad por la ley, en la sustanciación de cualquier acusación penal formulada contra ella, o para la determinación de sus derechos y obligaciones de orden civil, laboral o de cualquier otro carácter. 2.- ...» La independencia del Órgano Judicial se plantea hacia lo externo. El Órgano Judicial es independiente frente a los otros Poderes del Estado, no así el juez cuya independencia debe ser analizada de una forma más compleja. Pero cuando se asegura que un Poder Judicial es independiente, lo mismo se debe predicar de sus jueces, pues éstos son los que deben hacer realidad la función a aquél encomendada. La independencia que verdaderamente debe interesar -sin restarle importancia a la del Órgano Judicial- es la del juez, relacionada con el caso concreto, pues ella es la que funciona como garantía ciudadana, en los términos de la Convención Americana sobre Derechos Humanos. La independencia efectiva del Poder Judicial coadyuva a que los jueces que lo conforman también puedan serlo, pero bien puede darse que el Órgano como un todo tenga normativamente garantizada su independencia, pero que sus miembros no sean independientes, por múltiples razones” (citado en los votos n° 2006-15252, 2008-9495, 2008-16529).

Sobre la relación entre independencia del juez y el principio de imparcialidad, en el voto n°1998-2378 se indicó: “La independencia e imparcialidad del juez constituyen conceptos relacionados entre sí y son indudablemente principios constitucionales en un régimen político como el nuestro. La independencia determina que el juez esté solo sometido a la Constitución y a la Ley y la imparcialidad significa que para la resolución del caso el juez no se dejará llevar por ningún otro interés fuera del de la aplicación correcta de la ley y la solución justa del caso”.

De la independencia judicial como una garantía para los jueces y un derecho fundamental (garantía para las partes del proceso), en la sentencia n°1998-5795 se dispuso: “De lo dispuesto en el artículo 154 de la Constitución Política, que dice: “El Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos” deriva el principio de la independencia del Poder Judicial, el cual comprende tanto al órgano o institución como un todo, como al Juez en el conocimiento de los asuntos que le son sometidos a su juicio. En relación con este funcionario, también debe reconocerse que existe una doble protección a su investidura, ya que la independencia del juez -como garantía de las partes involucradas en el asunto sub judice- es hacia lo externo y lo interno, en el sentido de que se le protege de las influencias e incidencias -tanto externas como internas-, que pueda tener en uno u otro sentido en la decisión de un caso concreto sometido a su conocimiento, para que fallen con estricto apego a lo dispuesto en la normativa vigente; en otros términos, se protege al juez para que ni las partes que intervienen en el proceso, terceros, jueces superiores en grado, miembros “influyentes” de los Poderes del Estado, aún el Judicial, puedan, influir en su decisión, por lo que mucho menos cabría, la obligación -impuesta por parte del superior en grado- de fallar en una determinada manera un caso concreto o coaccionar al juzgador en ese sentido. La garantía de independencia de los jueces más que una garantía para estos funcionarios -que efectivamente si lo es-, constituye una garantía para los particulares (partes del proceso), en el sentido de que sus casos se decidirán con apego estricto a la Constitución y las leyes”.

De lo cual se desprende que, en la definición de Independencia Judicial se incluyen los siguientes dos tipos:

• Independencia judicial externa: se refiere a la existencia de un conjunto de garantías que pretenden evitar que una Corte sea controlada por otros órganos gubernamentales, como los poderes Ejecutivo y Legislativo. Es la relación del Poder Judicial con otros actores del sistema político. En este sentido el sistema de administración de justicia es autónomo en tanto dependa de él mismo y no de otros poderes. Independencia externa es la ausencia de presiones o influencias externas que hagan vulnerable a la institución, como resultado de amenazas a la disponibilidad de recursos que le permitan desarrollar su labor con autonomía, a la estabilidad laboral y las posibilidades de ascenso de sus funcionarios, a su integridad y patrimonio, y a sus capacidades de infraestructura para atender las demandas ciudadanas.

• Independencia judicial interna: tiene que ver con la habilidad de los jueces de dictar sentencias sin miedo a represalias.

La “independencia de ejercicio” (el hecho de que un juez resuelva un conflicto libre de injerencias impropias) se convierte en “independencia estructural” (el conjunto de garantías formales y condiciones estructurales que protegen al juez y al Poder Judicial de cualquier tipo de intervención o control). En el voto n°2001-6632 se enfatizó en la importancia y rango constitucional del principio de independencia del Poder Judicial, además como derecho de los ciudadanos, al indicarse: “Nadie puede hoy restar el valor trascendental que desempeña en el real funcionamiento del Estado democrático de derecho, la independencia de los jueces. Está claramente aceptado que más que un principio, y todavía más allá de lo que pudiera señalarse como un privilegio otorgado al Juez, estamos ante el derecho de los ciudadanos a contar con jueces independientes”. Posteriormente, en la sentencia n°2015-15726 se recalca el principio de independencia judicial, además como un valor fundamental del régimen democrático: “III.- ACERCA DEL PRINCIPIO DE INDEPENDENCIA DEL JUEZ. Dentro de los regímenes políticos democráticos, el principio de independencia del juez, en particular, y del Poder Judicial, en general, tiene un valor fundamental porque sobre él descansan la legitimidad del juez y la imparcialidad de la decisión judicial”. También se puede mencionar la sentencia n° 2000-5493 donde se indicó que la independencia del Poder Judicial se traduce, en materia económica y por la inamovilidad de su personal, así como, en lo funcional, por la posibilidad real de tomar sus decisiones de acuerdo con criterios propios y no como resultado de presiones procedentes de determinados grupos, instituciones o personas:

“En cuanto al principio de independencia judicial, debemos señalar que constitucionalmente este principio deriva del artículo 153 de la Constitución Política que señala: "Corresponde al Poder Judicial además de las funciones que esta Constitución le señala, conocer de las causas civiles, penales, comerciales, de trabajo y contencioso-administrativas así como de las otras que establezca la ley, cualquiera que sea su naturaleza y la calidad de las personas que intervengan; resolver definitivamente sobre ellas y ejecutar las resoluciones que pronuncie, con la ayuda de la fuerza pública si fuere necesario." El artículo 154 constitucional, en este mismo sentido indica: "El Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos." El marco jurídico establecido constitucionalmente relacionado con la independencia judicial se ve complementado por los artículos 1 a 8 al de la Ley Orgánica del Poder Judicial que desarrollan los presupuestos constitucionales. Debemos hacer referencia además de los artículos 162 al 173 de la Ley Orgánica del Poder Judicial que hacen mención de la jurisdicción y competencia de los jueces, en especial interesa citar los siguientes: “Artículo 162. La facultad de administrar justicia se adquiere con el cargo al que está anexa y se pierde o suspende para todos los negocios cuando, por cualquier motivo, el juez deja de serlo o queda suspendido temporalmente en sus funciones." "Artículo 165. Todo juez tiene limitada su competencia al territorio y a la clase de asuntos que le estén señalados para ejercerla; las diligencias que los procesos de que conozca exijan se hagan en el territorio de otro juez, sólo podrán practicarlas por medio de éste, salvo autorización legal en contrario. El juez sólo podrá conocer de los asuntos no sometidos a su competencia, cuando le fuere legalmente prorrogada o delegada. Tomando en consideración el marco jurídico anterior esta Sala considera que el principio de independencia del juzgador podría definirse como aquella potestad dada por la Constitución y la ley por medio de la cual el juez, cumpliendo en su ámbito competencial y jurisdiccional ejerce el poder que le ha sido delegado por el Estado de resolver un conflicto planteado por los particulares o por la misma Administración. Este principio va ligado directamente a los principios de unidad y monopolio de la jurisdicción, así como de imparcialidad y competencia.

La independencia judicial se manifiesta en diversos planos, en el plano externo, se traduce por la autonomía del Poder Judicial en materia económica y por la inamovilidad de su personal, así como, en lo funcional, por la posibilidad real de tomar sus decisiones de acuerdo con criterios propios y no como resultado de presiones procedentes de determinados grupos, instituciones o personas. Ahora bien, en el plano interno, la independencia consiste en la autonomía de que deben gozar en sus decisiones las instancias judiciales inferiores con respecto a las de rango superior. Además, en un Estado Democrático y de Derecho como el nuestro, la otra cara de la independencia es la responsabilidad del personal judicial, así como el control sobre sus actividades. Sobre el contenido y naturaleza de la independencia judicial interna el aparato judicial supone, que los tribunales inferiores gozan de autonomía en sus decisiones jurisdiccionales con respecto a los de rango superior. Sin embargo, legalmente no constituye una violación a este principio la existencia de los recursos tradicionalmente previstos por la ley (apelación, revisión, casación y otros), a menos que sean utilizados en forma irregular”.

Todo lo anterior, se contempla en las siguientes fuentes, algunas de las cuales, no son normas vigentes en Costa Rica, pero son documentos que reflejan una clara doctrina sobre el tema:

• Constitución Política. Art. 9 (independientes), 154 (“El Poder Judicial sólo está sometido a la Constitución y a la ley…”) y 177 (autonomía financiera).

• El art.8.1 de la Convención Americana de Derechos Humanos (“por un juez o tribunal competente, independiente e imparcial”).

• “Principios básicos relativos a la independencia de la judicatura”, adoptados por el Séptimo Congreso de las Naciones Unidas sobre Prevención del Delito y Tratamiento del Delincuente, celebrado en Milán del 26 de agosto al 6 de septiembre de 1985, y confirmados por la Asamblea General en sus resoluciones 40/32 de 29 de noviembre de 1985 y 40/146 de 13 de diciembre de 1985, en el principio 11.

• “Carta Europea sobre el Estatuto de los Jueces”, adoptada en Estrasburgo, entre el 8 y el 10 de julio de 1998, párrafos 6.1 y 6.4.

• “Estatuto del Juez Iberoamericano”, aprobado en la VI Cumbre Iberoamericana de Presidentes de Cortes Supremas y Tribunales Supremos de Justicia, celebrada en Santa Cruz de Tenerife, Islas Canarias, España, los días 23, 24 y 25 de mayo de 2001, en el artículo 32 (“Art. 32. Remuneración. Los jueces deben recibir una remuneración suficiente, irreductible y acorde con la importancia de la función que desempeñan y con las exigencias y responsabilidades que conlleva”) • El Informe N° 1 del 23 de noviembre del 2001, rendido por el Consejo Consultivo de Jueces Europeos (CCJE), al examinar el tema de la independencia e inamovilidad de los jueces. Con respecto al tema de los salarios de los jueces.

• El Estatuto de Justicia y Derechos de las Personas Usuarias del Sistema Judicial, aprobado por la Corte Plena, en cuyos artículos 19, 20, 21, 22, 23 y 24, se hace referencia a la independencia del Poder Judicial y de los jueces. El artículo 49, del citado Estatuto, consagra también, al igual que los instrumentos internacionales examinados, el principio del salario irreductible del juez.

Por otra parte, además de lo dicho sobre la temática de empleo público, debe indicarse que los principios básicos derivados de los artículos 191 y 192 de la Constitución Política no son ajenos al Poder Judicial. Así, por ejemplo, la Sala ha remitido expresamente a los principios derivados de tales numerales al resolver sobre el sistema de nombramiento en el Poder Judicial (voto n°2001-05694). Lo que debe complementarse, necesariamente, con lo dispuesto por el artículo 156 de la Constitución Política, que, respecto del Poder Judicial, establece:

“ARTÍCULO 156.- La Corte Suprema de Justicia es el tribunal superior del Poder Judicial, y de ella dependen los tribunales, funcionarios y empleados en el ramo judicial, sin perjuicio de lo que dispone esta Constitución sobre servicio civil.” Ahora bien -y en lo que interesa a esta consulta-, debe indicarse que existen varios precedentes de la Sala en que, expresamente, se entiende como plenamente justificado que en el caso específico del Poder Judicial tenga una regulación especial, separada y diferenciada -aunque, sujeta a los principios constitucionales fundamentales que prevén los artículos 191 y 192-. Se puede citar, en primer lugar, el voto n°550-1991, que indica:

“(…) en el caso de los poderes, su propia independencia constitucional, garantizada en general por el artículo 9° de la Constitución y, en los del Poder Judicial y del Tribunal Supremo de Elecciones por las de los artículos 99 y siguientes, 152 y siguientes y 177 de la misma, así como sus propias normas orgánicas, imponen a sus jerarcas la atribución y la responsabilidad de fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos, dentro, naturalmente, de sus disponibilidades presupuestarias, independientemente, desde luego, de que sus montos puedan coincidir o no con los de los diputados.” Luego, en el voto n°01472-1994, la Sala indicó que, en efecto, los artículos 191 y 192 de la Constitución Política fundamentan la existencia de “un régimen de empleo regido por el Derecho Público, dentro del sector público”, con “principios generales propios”, por lo que “las relaciones laborales existentes entre el Estado y sus servidores deben concebirse como un todo, regulado por principios, disposiciones y políticas generales, sin distinción, salvo las excepciones expresamente contempladas por la ley, respecto de los centros funcionales de los que dependan aquellos servidores”. Ahora bien, en ese mismo voto, se agregó:

“(…) ha establecido esta Sala que no resulta posible la equiparación, indiscriminada, de remuneraciones entre los miembros de los poderes públicos, pues el imponer un tratamiento igual a situaciones o funcionarios que se encuentran objetivamente en circunstancias de desigualdad, quebrantaría, en general, el principio de igualdad y específicamente en materia de salarios y condiciones de trabajo, el 57 de la Constitución, habida cuenta de no ser los mismos requisitos, limitaciones, prohibiciones o condiciones de ejercicio del cargo de los funcionarios o empleados del ejecutivo con los de los miembros de los demás poderes u órganos constitucionales. En efecto, el principio de igualdad ante la ley no es de carácter absoluto, pues no concede un derecho a ser equiparado a cualquier individuo, sino más bien a exigir que la ley no haga diferencias entre dos o más personas que se encuentren en una misma situación jurídica o en condiciones idénticas, o sea que no puede pretenderse un trato igual cuando las condiciones o circunstancias son desiguales.” Por otra parte, sobre la excepción del Poder Judicial al régimen único de empleo y a política salarial como política de gobierno, en la sentencia n°1994-3309, la Sala expresó:

“VII.- Definida la política salarial como parte de la política de gobierno, es necesario reiterar que cuando el constituyente descentralizó el Poder Ejecutivo, procuró evitar las injerencias arbitrarias y antitécnicas en cuanto a la gestión de cada una de esas instituciones, definida por ley. Pero no optó el legislador constituyente por crear un régimen salarial o laboral segregado del Poder Ejecutivo central, pues no hay duda que el Título XV, Capítulo Unico de la Constitución Política tiene como antecedente inmediato, la práctica anterior de destituir masivamente a los funcionarios y empleados estatales con ocasión de cada cambio de gobierno. La antítesis de esta práctica entonces es un sistema de servicio público estable, profesional, permanente, regido por un cuerpo normativo integrado y coherente, estableciéndose un régimen único de empleo para los servidores públicos que incluye a la totalidad de las instituciones del Estado, con la excepción hecha del artículo 156 de la Carta Magna en cuanto al Poder Judicial”.

Mientras que, en el voto n°1996-03575, la Sala señaló que el órgano estatal competente en materia de empleo público es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particulares condiciones:

“(…) De la jurisprudencia citada se desprende además de la existencia del Régimen de Empleo Público, que el legislador ordinario al desarrollar en la práctica los artículos 191 y 192 de la Constitución Política, no lo hizo mediante la promulgación de una única ley sino que lo hizo mediante la aprobación de varias leyes relacionadas con el tema en cuestión, y ejemplo de ello es el Estatuto de Servicio Civil, el cual es una legislación parcial que le es aplicable únicamente a los servidores del Poder Ejecutivo. En este orden de ideas y de conformidad con el artículo 9 Constitucional, en relación al principio de separación de poderes, interpretado por esta Sala en sentencia N°6829-93 de las ocho y treinta y tres horas del veinticuatro de diciembre de mil novecientos noventa y tres, como una separación de funciones al disponer:

"II.- LA TEORIA DE LA SEPARACION DE PODERES. La teoría de la separación de Poderes tradicionalmente se interpreta como la necesidad de que cada Órgano del Estado ejerza su función con independencia de los otros (artículo 9o.de la Constitución Política). Si bien no pueden darse interferencias o invasiones a la función asignada, necesariamente deben producirse colaboraciones entre Poderes. En la actualidad, la doctrina y la práctica constitucionales afirman que no existe absoluta separación, aún más, nada impide que una misma función - no primaria- sea ejercida por dos Poderes o por todos, razón por la que no se puede hablar de una rígida distribución de competencias en razón de la función y la materia. El Estado es una unidad de acción y de poder, pero esa unidad no existiría si cada Poder fuere un organismo independiente, aislado, con amplia libertad de decisión, por lo que en realidad no se puede hablar de una división de Poderes en sentido estricto; el Poder del Estado es único, aunque las funciones estatales sean varias. Lo conveniente es hablar de una separación de funciones, es decir, de la distribución de ellas entre los diferentes órganos estatales. Esta separación de funciones parte del problema técnico de la división del trabajo: el Estado debe cumplir ciertas funciones y éstas deben ser realizadas por el órgano estatal más competente..." Además, y para mayor abundamiento esta Sala en sentencia número 990-92 de las dieciséis horas treinta minutos del catorce de abril de mil novecientos noventa y dos, dispuso: "Segundo: La positivación del " principio democrático" en el artículo 1° de la Constitución, constituye uno de los pilares, el núcleo vale decir, en que se asienta nuestro sistema republicano y en ese carácter de valor supremo del Estado Constitucional de Derecho, debe tener eficacia directa sobre el resto de fuentes del ordenamiento jurídico infraconstitucional y obviamente sobre el Reglamento, de donde se sigue que la potestad del parlamento para dictar las normas de su propio gobierno interno( interna corporis), no sólo está prevista por la Constitución Política en su artículo 121 inciso 22, sino que es consustancial al sistema democrático y específica de la Asamblea Legislativa como poder constitucional, a tenor del Título IX de la Carta Fundamental..." Así, aplicado el anterior principio a la materia en estudio, sea el Régimen del Empleo Público, es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones.” Lo anterior no óbice, para que se incluya dentro de una Ley de Empleo Público al Poder Judicial, tal como se ha explicado supra, en el considerando general de esta sentencia.

Luego, en el voto n°1999-919, este Tribunal conoció la consulta de constitucionalidad formulada respecto del entonces proyecto de Ley de Administración Financiera de la República y Presupuesto Públicos, que, incluso, contenía -y contiene- una norma análoga a la introducida en el proyecto ahora en consulta, la cual dice:

"Artículo 1.- Ámbito de aplicación La presente ley regula el régimen económico-financiero de los órganos y entes administradores o custodios de los fondos públicos. Será aplicable a:

(…)

• b)Los Poderes Legislativo y Judicial, el Tribunal Supremo de Elecciones, sus dependencias y órganos auxiliares, sin perjuicio del principio de separación de Poderes estatuido en la Constitución Política.

(…)

En tal oportunidad estimó esta Sala que, en efecto, no se infringía el principio de separación de poderes, dado que -según se derivaba del resto del articulado del proyecto- los lineamientos y directrices emitidos por el Poder Ejecutivo requerían, necesariamente, la aprobación de los jerarcas de los órganos mencionados en el citado inciso b, que son “poseedores de independencia funcional constitucional respecto del Poder Ejecutivo”. En concreto, se señaló:

“En lo referente a la separación de poderes, considera esta Sala que, de la lectura atenta de los numerales de cita, se desprende que el proyecto consultado pretende dar a la Autoridad Presupuestaria competencias para elaborar en fase preliminar -pues luego requieren de aprobación por parte del Poder Ejecutivo- los lineamientos y directrices que determinarán el funcionamiento de la Administración en materia presupuestaria. Sobre la eficacia de tales disposiciones ya se referirá la Sala en este mismo considerando. En lo que respecta estrictamente a los órganos abarcados por el inciso b) del artículo 1 del proyecto, todos estos caracterizados por ser poseedores de independencia funcional constitucional respecto del Poder Ejecutivo, el mismo texto de los artículos 21 inciso b) y 23 in fine dispone que la aprobación de tales directrices compete a los jerarcas de tales órganos, cabiendo a la Autoridad Presupuestaria tan solo la función de proponer tales lineamientos. Es decir, que el mismo texto prevé un dispositivo que respeta la independencia funcional dada a los órganos del inciso b) del artículo 1° en materia presupuestaria, ya que el hecho de que los jerarcas de los órganos mencionados no apruebe los lineamientos dichos no acarrea ninguna consecuencia jurídica. Debido a lo anterior, cabe concluir que los artículos citados no representan alguna forma de afrenta a la separación de poderes, consagrada en el artículo 9° constitucional.” Luego, al pronunciarse esta Sala, específicamente sobre el régimen disciplinario en el caso del Poder Judicial y sobre su normativa especial, en el voto n°1995-01265, se indicó:

“(…) debe el accionante tener en cuenta que el Poder Judicial, no obstante que es un Poder del Estado, y regirse por el Derecho Administrativo, tiene un régimen especial en razón de la función que desarrolla; y en materia de relación de empleo público, aunque los principios generales están dados en el Derecho Administrativo y en el Derecho Laboral -como parámetros-, las especificaciones se regulan de conformidad con la normativa que se refiere específicamente al Poder Judicial, así, se rige de conformidad con lo dispuesto en la Ley Orgánica del Poder Judicial, el Estatuto de Servicio Judicial, el Reglamento sobre concurso de antecedentes para nombrar funcionarios que administren justicia, la Ley Orgánica del Organismo de Investigación Judicial, el Reglamento sobre la Calificación para los Empleados del Poder Judicial, etc. Como se observa, se trata de una normativa especial, que no puede ser derogada tácitamente por una norma posterior de carácter general, como afirma el accionante.” (reiterado voto n°2017-003450).

Existen múltiples votos de la Sala en que se destaca la particular relevancia que supone la adecuada regulación y aplicación del régimen disciplinario en resguardo de la independencia del juez. La Sala ha destacado la íntima relación entre la independencia judicial y el sistema de nombramiento, remoción y régimen disciplinario de los jueces. Así, por ejemplo, en el voto n°2009-4849, se realizó un amplio desarrollo sobre este tema:

“(…) Resulta toral para el adecuado funcionamiento del Estado democrático de Derecho –entendido bajo su postulado de primacía del derecho– que la función jurisdiccional pueda ejercerse sin presiones indebidas, en el seno de un Poder Judicial verdaderamente independiente, según lo ha establecido en repetidas ocasiones la Sala:

“A) PRINCIPIO DE INDEPENDENCIA.- La Constitución Política en su artículo 9 establece que el Gobierno de la República es ejercido por tres Poderes distintos e independientes entre sí: Legislativo, Ejecutivo y Judicial. Por otra parte, el párrafo tercero de este artículo señala la existencia del Tribunal Supremo de Elecciones con el rango e independencia de los Poderes del Estado. Debe resaltarse la nota de independencia del Poder Judicial en relación a los otros Poderes del Estado. Esta independencia debe concurrir en los jueces, quienes tienen la misión de administrar justicia.

La independencia es la ausencia de subordinación a otro, el no reconocimiento de un mayor poder o autoridad. La independencia del juez es un concepto jurídico, relativo a la ausencia de subordinación jurídica. La garantía de la inamovilidad y el régimen de incompatibilidades tienen como fin asegurar la total independencia de los miembros del Poder Judicial. (…)

Es así como la independencia es una garantía de la propia función jurisdiccional. La independencia se reputa en relación al juez en cuanto tal, por ser él quien tiene la potestad jurisdiccional. Se trata de impedir vínculos y relaciones que puedan conducir a una reducción fáctica de la libertad del juez.” (sentencia #2883-96 de las 17:00 horas del 13 de junio de 1996) Desde luego el principio postulado en abstracto requiere ser concretizado en cabeza de todos y cada uno de los jueces. En otras palabras, el principio meramente orgánico que se defiende para el Poder Judicial es, al mismo tiempo, la independencia que se garantiza a cada juez en su caso particular, traducida, adicionalmente y por encima de todo, en el derecho fundamental de las partes de todo proceso a contar con un árbitro imparcial que diga el derecho del caso sometido a su conocimiento:

“VIII.- La independencia del Poder Judicial se encuentra garantizada constitucionalmente en los artículos 9 y 154. También la Convención Americana sobre Derechos Humanos, normativa de rango internacional de aplicación directa en nuestro país se refiere al tema. La Convención Americana sobre Derechos Humanos establece la independencia del juez como un derecho humano, al disponer en el artículo 8.1 que:

«1.- Toda persona tiene derecho a ser oída, con las debidas garantías y dentro de un plazo razonable, por un juez o tribunal competente, independiente e imparcial, establecido con anterioridad por la ley, en la sustanciación de cualquier acusación penal formulada contra ella, o para la determinación de sus derechos y obligaciones de orden civil, laboral o de cualquier otro carácter.

2.- ...» La independencia del Órgano Judicial se plantea hacia lo externo. El Órgano Judicial es independiente frente a los otros Poderes del Estado, no así el juez cuya independencia debe ser analizada de una forma más compleja. Pero cuando se asegura que un Poder Judicial es independiente, lo mismo se debe predicar de sus jueces, pues éstos son los que deben hacer realidad la función a aquél encomendada. La independencia que verdaderamente debe interesar -sin restarle importancia a la del Órgano Judicial- es la del juez, relacionada con el caso concreto, pues ella es la que funciona como garantía ciudadana, en los términos de la Convención Americana sobre Derechos Humanos. La independencia efectiva del Poder Judicial coadyuva a que los jueces que lo conforman también puedan serlo, pero bien puede darse que el Órgano como un todo tenga normativamente garantizada su independencia, pero que sus miembros no sean independientes, por múltiples razones.” ( sentencia #5790- 99 de las 16:21 horas del 11 de agosto de 1999) Sobre el tema puede también citarse el pronunciamiento #5795-98 de las 16:12 horas del 11 de agosto de 1998:

“De lo dispuesto en el artículo 154 de la Constitución Política, que dice:

"El Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos" deriva el principio de la independencia del Poder Judicial, el cual comprende tanto al órgano o institución como un todo, como al Juez en el conocimiento de los asuntos que le son sometidos a su juicio. En relación con este funcionario, también debe reconocerse que existe una doble protección a su investidura, ya que la independencia del juez -como garantía de las partes involucradas en el asunto sub judice- es hacia lo externo y lo interno, en el sentido de que se le protege de las influencias e incidencias -tanto externas como internas-, que pueda tener en uno u otro sentido en la decisión de un caso concreto sometido a su conocimiento, para que fallen con estricto apego a lo dispuesto en la normativa vigente; en otros términos, se protege al juez para que ni las partes que intervienen en el proceso, terceros, jueces superiores en grado, miembros "influyentes" de los Poderes del Estado, aún el Judicial, puedan, influir en su decisión, por lo que mucho menos cabría, la obligación -impuesta por parte del superior en grado- de fallar en una determinada manera un caso concreto o coaccionar al juzgador en ese sentido. La garantía de independencia de los jueces más que una garantía para estos funcionarios -que efectivamente si lo es-, constituye una garantía para los particulares (partes del proceso), en el sentido de que sus casos se decidirán con apego estricto a la Constitución y las leyes.” Y en la decisión #2001-6632 de las 16:21 horas del 10 de julio de 2001 se enfatizó en la importancia y rango constitucional del principio de independencia del Poder Judicial:

“Nadie puede hoy restar el valor trascendental que desempeña en el real funcionamiento del Estado democrático de derecho, la independencia de los jueces. Está claramente aceptado que más que un principio, y todavía más allá de lo que pudiera señalarse como un privilegio otorgado al Juez, estamos ante el derecho de los ciudadanos a contar con jueces independientes. Pero, simultáneamente a esta consideración de valor fundamental, puede afirmarse que estamos ante una tarea, si no inconclusa, que al menos demanda una actitud de permanente vigilia, pues es históricamente reciente el verdadero empeño por alcanzar una independencia en este campo. Es más, sincerándonos, podría decirse que todavía este derecho de las personas (ciudadano, justiciable, usuario o como se diga), no está aun bien receptado –incorporado y aplicado- en los ordenamientos jurídicos. Como señalan algunos autores, la fórmula según la cual el juez "sólo" ha de estar sujeto a la ley (similar a como la recoge nuestro artículo 154 Constitucional) se concibió totalmente dirigida a excluir la intervención o injerencia del soberano (monarca) en las decisiones jurisdiccionales. Claro que en el interés de poner al juez a buen recaudo del soberano, se lo adscribía abruptamente a la concepción de una aplicación mecánica o cuasi mecánica de la ley como expresión de la soberanía popular, cuestión ésta que, para fortuna, está hoy totalmente superada. Por ello, en una correcta inteligencia de las bondades institucionales de contar –ayer, hoy y siempre- con jueces independientes, debemos retener el concepto de "soberano" para aplicárselo a cualquiera que, por fuera o más allá de los medios procesalmente dispuestos para revisar las resoluciones de los jueces, quiera imponer indebidamente criterios o formas de actuación a éstos. En el moderno diseño del ordenamiento jurídico costarricense, soberano no es siquiera la ley, ya que el juez no está sujeto por la ley, cualquiera que ésta sea, sino por la ley que a la vez sea legítimamente constitucional, pero en definitiva, incluso habrá hipótesis en las que quedará sujeto, por encima de una disposición Constitucional, por una norma o un principio contenido en algún instrumento internacional de Derechos Humanos vigente en el país. Esto está consagrado en lo más alto de nuestro ordenamiento, y en tal sentido podemos remitirnos al artículo 48 de la Constitución Política. Como se refirió, el artículo 154 Constitucional recoge el principio de la independencia del juez, pero además, no obstante que no cuenta con la potencia jurídica que se quisiera, finalmente puede citarse el Código de Ética Judicial, aprobado definitivamente por nuestra Corte Suprema de Justicia el día veintiocho de febrero del año dos mil, cuyo artículo segundo, en lo conducente, dispone:

"Artículo 2°. PRINCIPIOS A PRIORI DE LAS NORMAS DE ESTE CÓDIGO.

Se entienden como principios apriorísticos, necesarios para un buen desenvolvimiento de la administración de justicia:

… 2. La independencia del Juez o de la Jueza, que solamente está sometido (a) a la Constitución y a la ley, es decir, al ordenamiento jurídico, sus valores y principios superiores…" De conformidad con lo anteriormente expuesto, debe afirmarse que el juez no tiene soberanos sobre sí en el desempeño jurisdiccional y por eso mismo, es que se le protege a través de prohibiciones o incompatibilidades para realizar otro tipo de actividades, dado que también, desde ese ángulo de análisis, la independencia se convierte en garantía de imparcialidad, una nota que debe acompañar el ejercicio de la jurisdicción en el día a día.” IV.- En armonía con la anterior línea jurisprudencial, los Principios Básicos Relativos a la Independencia de la Judicatura, adoptados por el Séptimo Congreso de las Naciones Unidas sobre Prevención del Delito y Tratamiento del Delincuente, celebrado en Milán del 26 de agosto al 6 de septiembre de 1985, y confirmados por la Asamblea General en sus resoluciones 40/32 de 29 de noviembre de 1985 y 40/146 de 13 de diciembre de 1985 disponen:

“Independencia de la judicatura “1. La independencia de la judicatura será garantizada por el Estado y proclamada por la Constitución o la legislación del país. Todas las instituciones gubernamentales y de otra índole respetarán y acatarán la independencia de la judicatura.

2. Los jueces resolverán los asuntos que conozcan con imparcialidad, basándose en los hechos y en consonancia con el derecho, sin restricción alguna y sin influencias, alicientes, presiones, amenazas o intromisiones indebidas, sean directas o indirectas, de cualesquiera sectores o por cualquier motivo. (…)” Texto que confirma que es respecto de los jueces considerados en su esfera individual que resulta especialmente pertinente la diferencia entre la independencia externa e interna, entendiendo la primera como la independencia de otros órganos o entes estatales, así como de grupos de presión en general, mientras que la segunda advierte sobre la coacción que pueda ejercerse dentro de la propia organización judicial, ya sea por autoridades jurisdiccionales de instancias ulteriores o por funcionarios administrativos que están en posición de poder frente a los jueces.

V.- Relación de la independencia judicial con el nombramiento, remoción y régimen disciplinario de los jueces. No es casual que en los diferentes instrumentos y declaraciones que se ocupan del tema de la independencia judicial se aborden aspectos de orden administrativo como son la designación de los jueces, su destitución y la aplicación de sanciones disciplinarias. En esa dimensión práctica e individualizada al final de cuentas se juega su fuero de protección de cara a presiones de toda clase. Un juez que pueda ser designado mediante mecanismos opacos, o cuya destitución o sanción pueda producirse sin justificación suficiente por parte de cualquier tipo de autoridad, es un juez en una situación francamente vulnerable. En los Principios Básicos Relativos a la Independencia de la Judicatura de Naciones Unidas, anteriormente citados, se estipula:

“Medidas disciplinarias, suspensión y separación del cargo.

“17. Toda acusación o queja formulada contra un juez por su actuación judicial y profesional se tramitará con prontitud e imparcialidad con arreglo al procedimiento pertinente. El juez tendrá derecho a ser oído imparcialmente. En esa etapa inicial, el examen de la cuestión será confidencial, a menos que el juez solicite lo contrario.

18. Los jueces sólo podrán ser suspendidos o separados de sus cargos por incapacidad o comportamiento que los inhabilite para seguir desempeñando sus funciones.

19. Todo procedimiento para la adopción de medidas disciplinarias, la suspensión o la separación del cargo se resolverá de acuerdo con las normas establecidas de comportamiento judicial.

20. Las decisiones que se adopten en los procedimientos disciplinarios, de suspensión o de separación del cargo estarán sujetas a una revisión independiente. Podrá no aplicarse este principio a las decisiones del tribunal supremo y a las del órgano legislativo en los procedimientos de recusación o similares.” De la misma forma, el Estatuto del Juez Iberoamericano, adoptado por la Unión Internacional de Magistrados, se ocupa del ejercicio de la potestad sancionatoria sobre los jueces:

“6.- RÉGIMEN DISCIPLINARIO.

La Ley deberá tipificar, de la forma más concretamente posible los hechos que constituyan infracción disciplinaria de los Jueces.

La entidad con competencia disciplinaria será, exclusivamente del propio Poder Judicial.

El procedimiento disciplinario, que podrá ser instado por cualquier persona, órgano de soberanía o del Estado, dará lugar al empleo de todos los medios de defensa y específicamente contradictorio.

Las sanciones disciplinarias más graves sólo podrán ser adoptadas por mayoría cualificada.” Igual tendencia sigue el Estatuto Universal del Juez, aprobado en la reunión del Consejo Central de la Unión Internacional de Magistrados en Taipei, Taiwán, el 17 de noviembre de 1999:

“Art.11: Administración y principios en materia de disciplina.

La gestión administrativa y disciplinaria de los miembros del poder judicial debe ejercerse en condiciones que permitan preservar su independencia, y se fundamenta sobre la puesta en práctica de criterios objetivos y adaptados.

Cuando esto no está suficientemente asegurado por otras vías resultantes de una probada tradición, la administración judicial y la acción disciplinaria deben ser competencia de un órgano independiente integrado por una parte sustancial y representativa de jueces.

Las sanciones disciplinarias frente a los jueces no pueden adoptarse mas que por motivos inicialmente previstos por la ley, y observando reglas de procedimiento predeterminadas.” Adicionalmente, con carácter meramente ilustrativo, se considera relevante traer a colación que la Comisión Europea de la democracia por el derecho, conocida como Comisión de Venecia (órgano consultivo del Consejo de Europa sobre cuestiones constitucionales), al rendir una opinión sobre la Ley sobre responsabilidad y procedimientos disciplinarios de los jueces ordinarios en Georgia, en marzo de 2007, enfatizó en el necesario equilibrio entre la responsabilidad disciplinaria de los jueces y las garantías de su independencia, sin comprometer esta última, limitándola inútilmente. En esa oportunidad, se recordó la disposición 5.1 de la Carta europea sobre el estatuto de los jueces que dice:

“La falta por parte de un juez o una jueza a uno de sus deberes expresamente establecidos en el estatuto no puede dar lugar a una sanción, salvo que sea impuesta mediante una decisión, basada en una proposición, recomendación o acuerdo de una jurisdicción o instancia compuesta por, al menos, una mitad de jueces; y en el marco de un procedimiento contradictorio donde el juez o jueza investigados puedan hacerse asistir por un defensor. La escala de sanciones susceptibles de aplicación debe estar precisada por el estatuto y su aplicación sometida al principio de proporcionalidad. (…)” Así, el régimen disciplinario podría tornarse en una herramienta amenazante para la independencia del juez e, indirectamente, para el Estado de Derecho. Un juez no puede ser separado de su cargo durante la duración de su mandato, ni sancionado, excepto por razones de peso (violación ética, ineptitud, por ejemplo), siguiendo las garantías del debido proceso. Procedimientos apropiados de designación, para ascensos y en materia disciplinaria -que no sólo estén plasmados en el papel, sino que se cumplan en la práctica– son primordiales para proteger lo que se ha denominado la seguridad de permanencia de los jueces. En el caso específico de la potestad sancionatoria, un procedimiento disciplinario bien estructurado, las protecciones de debido proceso y la proporcionalidad entre sanción e infracción, reducen la vulnerabilidad a los abusos que perjudican la independencia judicial.” Por su parte, en el voto n°2017-009551, la Sala analizó la constitucionalidad del inciso g) del artículo 2 de la Ley de Protección al Trabajador, en cuanto preveía: “Entidades supervisadas. Todas las entidades autorizadas, la CCSS en lo relativo al Régimen de Invalidez, Vejez y Muerte y todas las entidades administradoras de regímenes de pensiones creados por leyes o convenciones colectivas, antes de la vigencia de esta ley”. Se cuestionaba, en particular, que la SUPEN pudiese fiscalizar el Fondo de Pensiones y Jubilaciones del Poder Judicial. En tal precedente, se analizó el contenido del principio de separaciones de funciones, en relación con los principios de unidad coordinación y unidad del Estado. Finalmente, se concluyó que que la normativa era constitucional, pues para que fuera inconstitucional debía:

“interfiere, en efecto, con las atribuciones constitucionales de ordenar, planificar o programar por ejemplo la función administrativa de manejo de personal, de impartir justicia o relacionada con ésta, las que estarán fuera del alcance del legislador, pero este no es el caso. Por otra parte, el problema no parece estar transitando en la interferencia que produciría un exceso de regulación del legislador sobre las formas y medios que debe utilizar el Consejo Superior del Poder Judicial para alcanzar los fines fijados para el fondo, si así fuera, podría impugnarse judicialmente por ese motivo”.

En ese mismo voto se recalcó la importancia del Poder Judicial en el Estado de Derecho y del ejercicio de su función administrativa con independencia:

“El Poder Judicial no es hoy en día un poder “vacío” o “devaluado” (como se le consideraba en los inicios del Estado moderno); es precisamente uno de los objetivos claros de los dictadores bajarle el perfil a su independencia, minar la independencia económica o rellenando las cortes con jueces “orientados ideológicamente” (court-packing que afortunadamente no ocurrió en los EEUU a pesar de una amplia mayoría partidaria en el Congreso en sintonía con su presidente F. D. Roosevelt, pero con sombrías críticas entre sus propias filas); si no se le da la importancia al Poder Judicial en el Estado social y democrático de Derecho para su correcto funcionamiento, su debilitamiento conduce a forma de gobiernos antidemocráticas, prueba de ello es que uno de las funciones que primero controlan los gobiernos autoritarios o totalitarios es la judicial, de ahí la importancia de que todo sistema democrático tenga un Poder Judicial robusto.” (…) “tanto las funciones legislativas como las judiciales requieren de una estructura administrativa de apoyo para la consecución de su función esencial o primaria, como lo es la función administrativa que le ayuda a canalizar toda su actividad; la que, lógicamente, alcanza al recurso humano o del personal de los Poderes de la República, entretanto, detrás de la función fundamental está la administrativa del personal, agentes y servidores (as) públicos (as), etc.” Así, en el voto n°2018-019511, en que se conoció de la consulta legislativa respecto del proyecto de "Ley de Fortalecimiento de las Finanzas Publicas" (expediente legislativo nro. 20.580), esta Sala concluyó -luego de realizar una labor interpretativa respecto del contenido del proyecto- que, en concreto, lo previsto en los numerales 46, 47 y 49, atinentes a la “rectoría de la materia empleo público de Mideplán” y “la obligatoriedad de los lineamientos técnicos y metodológicos de la Dirección General del (sic) Servicio Civil”, no aplicaban para el Poder Judicial. Interpretación que se hizo, tomando en consideración el principio de independencia del Poder Judicial. En particular, se indicó:

“La lectura del marco constitucional inicia con el reconocimiento de la independencia del Poder Judicial, uno de los cimientos cardinales de nuestro Estado de Derecho:

“ARTÍCULO 9º-El Gobierno de la República es popular, representativo, participativo, alternativo y responsable. Lo ejercen el pueblo y tres Poderes distintos e independientes entre sí. El Legislativo, el Ejecutivo y el Judicial.

Ninguno de los Poderes puede delegar el ejercicio de funciones que le son propias. (…)” “ARTÍCULO 154.- El Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos.” “ARTÍCULO 156.- La Corte Suprema de Justicia es el tribunal superior del Poder Judicial, y de ella dependen los tribunales, funcionarios y empleados en el ramo judicial, sin perjuicio de lo que dispone esta Constitución sobre servicio civil.” Estas disposiciones constitucionales han dado pie al desarrollo de un profuso marco normativo, específicamente diseñado para regular al Poder Judicial. Entre las normas de este marco se cuentan la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público, la Ley Orgánica del Organismo de Investigación Judicial, la Ley de Salarios del Poder Judicial, el Estatuto de Servicio Judicial (incluida su reforma por la Ley de Carrera Judicial), etc.

De manera clara, las normas supra enunciadas tienen la intención de regular concretamente al Poder Judicial, velando por que se garantice su independencia frente a los otros Poderes de la República.

El hecho de que el Poder Judicial goce de una regulación particular pone en la palestra el segundo punto de análisis de la interpretación sistemática. En este sentido, debe estudiarse si existen normas particulares para el Poder Judicial y verificar su relación con el articulado cuestionado.

Independientemente de que el ordinal 47 del proyecto hable de “salvedades”, se observa que la evaluación del desempeño y la competencia en la toma de decisiones en materia laboral, sean generales o concretas, se encuentran ya reguladas por el mencionado marco normativo del Poder Judicial, imposibilitando que una instancia externa asuma la “rectoría” o imponga criterios sobre ese Poder. Es más, dicho marco normativo está diseñado para garantizar la eficiencia de la función judicial y proteger a los servidores judiciales de injerencias externas, tal como indica el artículo 1 del Estatuto de Servicio Judicial:

“Artículo 1º.- El presente Estatuto y sus reglamentos regularán las relaciones entre el Poder Judicial y sus servidores, con el fin de garantizar la eficiencia de la función judicial y de proteger a esos servidores.” Nótese que la norma determina que las relaciones de empleo entre el Poder Judicial y sus servidores se encuentran reguladas por el Estatuto y su reglamento. La interpretación sistemática a que obliga ese numeral impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias. Esto se verifica porque el dictado del reglamento a que refiere la norma es, a su vez, competencia exclusiva de la Corte, como indica el mismo Estatuto:

“Artículo 5º.- Antes de dictar un reglamento interior de trabajo, ya sea de carácter general para todos los servidores judiciales o aplicables sólo a un grupo de ellos, la Corte pondrá en conocimiento de esos servidores el proyecto respectivo, por el medio más adecuado, a fin de que hagan por escrito las observaciones del caso, dentro de un término de quince días.

La Corte tomará en cuenta esas observaciones para resolver lo que corresponda, y el reglamento que dicte será obligatorio sin más trámite, ocho días después de su publicación en el "Boletín Judicial".” Una garantía más de la independencia del Poder Judicial en el tema de empleo es que el Jefe del Departamento de Personal se encuentra vinculado al Presidente de la Corte, excluyendo la injerencia de instancias externas:

“Artículo 6º.- El Departamento de Personal del Poder Judicial funcionará bajo la dirección de un Jefe que dependerá directamente del Presidente de la Corte y será nombrado por la Corte Plena.” Luego, el detalle de la normativa del Estatuto de Servicio Judicial distingue las diferentes competencias en materia de evaluación del desempeño, lo que corrobora la existencia de normativa especial para ese Poder. Así, verbigracia, los numerales 8 y 10 del Estatuto de Servicio Judicial rezan:

“Artículo 8º.- Corresponde al Jefe del Departamento de Personal:

• c)Establecer los procedimientos e instrumentos técnicos necesarios para una mayor eficiencia del personal entre ellos la calificación periódica de servicios, el expediente y prontuario de cada servidor y los formularios que sean de utilidad técnica; (…)

Artículo 10.- La calificación periódica de servicios se hará anualmente por el Jefe de cada oficina judicial respecto de los subalternos que laboren en ella, usando formularios especiales que el Jefe del Departamento de Personal enviará a las diferentes oficinas en los meses que él determine. (…)” Es decir, las calificaciones periódicas del personal judicial, como sería la evaluación anual, son efectuadas mediante los procedimientos fijados por el Jefe del Departamento de Personal del Poder Judicial. Se trata de normas especiales, atinentes en forma exclusiva al Poder Judicial, que se impondrían a las normas generales del proyecto, dado el caso de que entraren en vigor.

La Sala resalta que el proyecto de ley no deroga ni modifica de manera alguna las disposiciones anteriormente transcritas, ni ninguna otra del Estatuto de Servicio Judicial. Este Estatuto rige la materia de empleo en el Poder Judicial y representa una garantía para los servidores judiciales, en consonancia con los postulados constitucionales que salvaguardan la independencia judicial; su modificación o derogatoria no podría ser tácita ni provenir de una mera inferencia, pues ello denotaría el desconocimiento de las reglas hermenéuticas.

Por otro lado, ante el cuestionamiento de que el artículo 49 del proyecto ordena al Poder Judicial el acatamiento obligatorio de los lineamientos de la Dirección General de Servicio Civil, lo cierto es que la relación entre dicha Dirección y el Poder Judicial conoce una norma específica, según se desprende del citado ordinal 8:

“(…) El Jefe del Departamento de Personal podrá hacer a la Dirección General de Servicio Civil las consultas que fueran necesarias y solicitar a esta Dirección el asesoramiento que corresponda, para la mejor realización de sus funciones. (…)” Es decir, el marco legal del Poder Judicial prevé la potestad del Jefe de su Departamento de Personal (hoy denominado Gestión Humana) de consultar a la Dirección General de Servicio Civil y solicitar su asesoramiento para la realización de sus funciones. Dichas funciones incluyen, tal como se vio, la obligación de determinar los procedimientos e instrumentos técnicos para la calificación periódica del personal (numeral 8 supra citado). Tal disposición de ley especial vuelve inaplicable al Poder Judicial las normas cuestionadas del proyecto n°20.580.

De nuevo, se recuerda que se trata de una norma especial que tiene preponderancia frente a la disposición general. Además, se destaca que las normas del Estatuto de Servicio Judicial permanecerían incólumes tras la reforma propuesta mediante el proyecto n°20.580, pues este no lo modifica ni deroga.

En conclusión, visto que el capítulo VI de la pretendida modificación a la Ley de Salarios de la Administración Pública contempla una excepción al Poder Judicial, aunado al hecho de que este último tiene normativa de rango legal especial relacionada con la evaluación del desempeño de sus funcionarios, no se observa que el proyecto de ley consultado incida realmente en la organización o el funcionamiento del Poder Judicial”.

En ese mismo voto se indicó que las normas especiales que regulan al Poder Judicial velan porque se garantice su independencia respecto de los otros poderes, y la interpretación sistemática constitucional impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias:

“La lectura del marco constitucional inicia con el reconocimiento de la independencia del Poder Judicial, uno de los cimientos cardinales de nuestro Estado de Derecho: “ARTÍCULO 9 º-El Gobierno de la República es popular, representativo, participativo, alternativo y responsable. Lo ejercen el pueblo y tres Poderes distintos e independientes entre sí. El Legislativo, el Ejecutivo y el Judicial. Ninguno de los Poderes puede delegar el ejercicio de funciones que le son propias. (…)” “ARTÍCULO 154.- El Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos.” “ARTÍCULO 156.- La Corte Suprema de Justicia es el tribunal superior del Poder Judicial, y de ella dependen los tribunales, funcionarios y empleados en el ramo judicial, sin perjuicio de lo que dispone esta Constitución sobre servicio civil.” Estas disposiciones constitucionales han dado pie al desarrollo de un profuso marco normativo, específicamente diseñado para regular al Poder Judicial. Entre las normas de este marco se cuentan la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público, la Ley Orgánica del Organismo de Investigación Judicial, la Ley de Salarios del Poder Judicial, el Estatuto de Servicio Judicial (incluida su reforma por la Ley de Carrera Judicial), etc. De manera clara, las normas supra enunciadas tienen la intención de regular concretamente al Poder Judicial, velando por que se garantice su independencia frente a los otros Poderes de la República”.

(…) “Es más, dicho marco normativo está diseñado para garantizar la eficiencia de la función judicial y proteger a los servidores judiciales de injerencias externas, tal como indica el artículo 1 del Estatuto de Servicio Judicial: “Artículo 1º.- El presente Estatuto y sus reglamentos regularán las relaciones entre el Poder Judicial y sus servidores, con el fin de garantizar la eficiencia de la función judicial y de proteger a esos servidores.” Nótese que la norma determina que las relaciones de empleo entre el Poder Judicial y sus servidores se encuentran reguladas por el Estatuto y su reglamento. La interpretación sistemática a que obliga ese numeral impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias. Esto se verifica porque el dictado del reglamento a que refiere la norma es, a su vez, competencia exclusiva de la Corte, como indica el mismo Estatuto: “Artículo 5º.- Antes de dictar un reglamento interior de trabajo, ya sea de carácter general para todos los servidores judiciales o aplicables sólo a un grupo de ellos, la Corte pondrá en conocimiento de esos servidores el proyecto respectivo, por el medio más adecuado, a fin de que hagan por escrito las observaciones del caso, dentro de un término de quince días. La Corte tomará en cuenta esas observaciones para resolver lo que corresponda, y el reglamento que dicte será obligatorio sin más trámite, ocho días después de su publicación en el "Boletín Judicial". Una garantía más de la independencia del Poder Judicial en el tema de empleo es que el Jefe del Departamento de Personal se encuentra vinculado al Presidente de la Corte, excluyendo la injerencia de instancias externas: “Artículo 6º.- El Departamento de Personal del Poder Judicial funcionará bajo la dirección de un Jefe que dependerá directamente del Presidente de la Corte y será nombrado por la Corte Plena”. (Lo subrayado no corresponde al original).

En cuanto al carácter especial que tiene el Estatuto de Servicio Judicial, su escala salarial y su relación con la independencia judicial en esta materia, se indicó lo siguiente:

“El Estatuto rige la materia de empleo en el Poder Judicial y representa una garantía para los servidores judiciales, en consonancia con los postulados constitucionales que salvaguardan la independencia judicial; su modificación o derogatoria no podría ser tácita ni provenir de una mera inferencia, pues ello denotaría el desconocimiento de las reglas hermenéuticas”.

(…) “La Sala no omite subrayar que las normas de la Ley Orgánica del Poder Judicial, Ley de Salarios del Poder Judicial y el Estatuto de Servicio Judicial no se ven afectadas por la reforma propuesta. Dichas normas posibilitan la autonomía del Poder Judicial en lo referido a cambiar su escala salarial o variar los salarios base”.

Concretamente se analizó la materia salarial, al señalar:

“En cuanto a la materia salarial.

Atinente a este punto, el acuerdo ya mencionado plantea:

“2.) De conformidad con el anterior informe, se determina que el proyecto sí afecta la organización y funcionamiento del Poder Judicial, y que hay oposición al mismo, siempre y cuando no se elimine lo referente a:

(…)

d.- Las restricciones establecidas en el proyecto de ley en materia salarial y sus respectivos componentes para los funcionarios y las funcionarias del Poder Judicial.” Tras analizar el articulado del proyecto n°20.580, tocante a las modificaciones a la Ley de Salarios de la Administración Pública, la Sala recuerda que la afectación al sueldo de los funcionarios judiciales puede incidir en la independencia judicial. Según se expresó someramente en el citado voto n°2018-5758 de las 15:40 horas del 12 de abril de 2018:

“(…) Lo que sí es parte de la independencia judicial es que los jueces tengan una suficiencia económica digna, estando activos e inactivos, (…)” Ahora bien, se debe resaltar que la normativa cuestionada no es particular para los funcionarios judiciales, sino que abarca de manera generalizada a la Administración Pública. La importancia de este punto radica en el hecho de que la Sala ha sustentado un criterio sólido en cuanto a la improcedencia de consultas institucionales obligatorias (como las dispuestas en los numerales 167 y 190 de la Constitución Política), cuando un proyecto es de carácter nacional o general:

(…)

En el caso de marras, las normas del proyecto relacionadas con materia salarial tienen aplicación general, sin que este Tribunal tenga elementos para considerar que estas llegarán a afectar en tal grado el sustento financiero de los funcionarios dedicados a la administración de justicia, como para que no se asegure al menos “una suficiencia económica digna”.

La Sala no omite subrayar que las normas de la Ley Orgánica del Poder Judicial, Ley de Salarios del Poder Judicial y el Estatuto de Servicio Judicial no se ven afectadas por la reforma propuesta. Dichas normas posibilitan la autonomía del Poder Judicial en lo referido a cambiar su escala salarial o variar los salarios base. En ese sentido, nótese lo manifestado por la Ministra de Hacienda a Corte Plena:

“En cuanto a la posibilidad de que el proyecto afecte la independencia del Poder Judicial al regular la aplicación de determinados pluses, quisiera señalar de manera respetuosa que el proyecto no afecta o elimina la potestad del Poder Judicial de modificar su escala salarial o modificar los salarios bases. De modo que, si el Poder Judicial considerara que es necesario aumentar el salario de algún funcionario, tiene toda la potestad y autonomía para hacerlo. Particularmente, si el Poder Judicial considera que, ante la regulación de la dedicación exclusiva o las anualidades, es necesario incrementar el salario de algún funcionario, puede hacerlo al amparo de su independencia en materia salarial.” Esta observación no solo es compartida por la Sala, sino que determina con claridad indiscutible que el proyecto consultado no afecta la organización o funcionamiento del Poder Judicial en materia salarial.

Con fundamento en lo supra explicado, la Sala determina que la normativa cuestionada del proyecto legislativo 20.580 no afecta, en el sentido expuesto, la organización o funcionamiento del Poder Judicial.” Finalmente, de forma más reciente, en el voto n°2019-25268, en que se cuestionaban sendos acuerdos de Corte Plena relacionado con el incremento salarial de los jueces, fiscales y defensores (lo mismo que Secretarios de Sala y abogados asistentes), la Sala resolvió:

“Igualmente, este Tribunal, en la sentencia número 550-91 de las 18:50 horas del 15 de marzo de 1991, mencionó que, “en el caso de los poderes, su propia independencia constitucional, garantizada en general por el artículo 9° de la Constitución y, en los del Poder Judicial y del Tribunal Supremo de Elecciones por las de los artículos 99 y siguientes, 152 y siguientes y 177 de la misma, así como sus propias normas orgánicas, imponen a sus jerarcas la atribución y la responsabilidad de fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos, dentro, naturalmente, de sus disponibilidades presupuestarias, independientemente, desde luego, de que sus montos puedan coincidir o no con los de los diputados”. De lo anterior, se deduce que los salarios en el Poder Judicial se deben fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos, dentro, naturalmente, de sus disponibilidades presupuestarias, siendo que existen cargos que ostentarán diferentes remuneraciones, lo cual, no violenta el principio de igualdad.

Asimismo, los acuerdos impugnados no lesionan los principios de razonabilidad ni de proporcionalidad, así como otros principios como son los de legalidad y confianza legítima, puesto que esos acuerdos fueron aprobados por Corte Plena, es decir, por el órgano habilitado normativamente para tal situación. Lo anterior, en atribución a sus competencias constitucionales y legales que le han sido atribuidas. Al respecto, es menester recordar que el artículo 9 de la Constitución Política indica que “el Gobierno de la República es popular, representativo, participativo, alternativo y responsable. Lo ejercen el pueblo y tres Poderes distintos e independientes entre sí. El Legislativo, el Ejecutivo y el Judicial”. Asimismo, el numeral 152 de la Constitución Política señala que “el Poder Judicial se ejerce por la Corte Suprema de Justicia y por los demás tribunales que establezca la ley”. En un sentido similar, el artículo 154 del mismo texto constitucional establece que “el Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos”. Siguiendo la línea impuesta en la Carta Magna, la Ley Orgánica del Poder Judicial, en su artículo 2, menciona que “el Poder Judicial sólo está sometido a la Constitución Política y la ley. Las resoluciones que dicte, en los asuntos de su competencia, no le imponen más responsabilidades que las expresamente señaladas por los preceptos legislativos. No obstante, la autoridad superior de la Corte prevalecerá sobre su desempeño, para garantizar que la administración de justicia sea pronta y cumplida”. Igualmente, el numeral 59 de esa misma ley, señala que “corresponde a la Corte Suprema de Justicia: (…) 3.- Aprobar el proyecto de presupuesto del Poder Judicial, el cual, una vez promulgado por la Asamblea Legislativa, podrá ejecutar por medio del Consejo”. En esta misma línea, el Estatuto de Servicio Civil, en el artículo 8, determina que “corresponde al Jefe del Departamento de Personal: a) Analizar, clasificar y valorar los puestos del Poder Judicial comprendidos en esta ley, y asignarles la respectiva categoría dentro de la Escala de Sueldos de la Ley de Salarios, todo sujeto a la posterior aprobación de la Corte Plena”. Asimismo, el numeral 62 de ese cuerpo normativa, establece que “el Departamento de Personal efectuará los estudios para determinar el monto posible de los beneficios que deban reconocerse a los servidores judiciales de acuerdo con la Ley de Salarios, a fin de que la Corte Plena haga las asignaciones necesarias en el presupuesto de cada año”.

En síntesis, los acuerdos impugnados no lesionan los principios de razonabilidad, ni proporcionalidad, ni legalidad, ni confianza legítima, ya que estos acuerdos fueron aprobados por Corte Plena, es decir, por el órgano habilitado normativamente para tal situación. Lo anterior, en atribución a sus competencias constitucionales y legales que le han sido atribuidas.” De esta forma, con sustento en los precedentes previamente transcritos, se puede derivar que esta Sala ha reconocido que el Poder Judicial es clave para la democracia costarricense, tanto así que, “El hecho de que Costa Rica tenga hoy la democracia más antigua y estable de América Latina es inimaginable sin el funcionamiento de un robusto sistema de administración de justicia y sin los esfuerzos recientes para modernizarlo.” (ver voto n°2018-005758). Así entonces, “si no se le da la importancia al Poder Judicial en el Estado social y democrático de Derecho para su correcto funcionamiento, su debilitamiento conduce a formas de gobiernos antidemocráticas, prueba de ello es que uno de las funciones que primer controlan los gobiernos autoritarios o totalitarios es la judicial, de ahí la importancia de que todo sistema democrático tenga un Poder Judicial robusto.” (ver voto n°2017-09551). Siendo justamente el principio de independencia judicial clave para esta robustez. En cuanto a empleo público, es clara la sujeción del Poder Judicial a los principios fundamentales del régimen de empleo público del art.191. Incluso, en concordancia con el artículo 11 de la Constitución Política, es claro que el Poder Judicial está sometido al respectivo procedimiento de evaluación de resultados y rendición de cuentas. No obstante, la Sala ha entendido como válido y justificado que el Poder Judicial cuente con su propio marco normativo, que regula de forma específica, particular y diferenciada las relaciones de empleo entre dicho Poder y sus servidores y la evaluación de su desempeño. Es más, se ha indicado que dicho marco normativo (integrado, entre otros, por la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público, la Ley Orgánica del Organismo de Investigación Judicial, la Ley de Salarios del Poder Judicial y el Estatuto de Servicio Judicial), está específicamente diseñado para garantizar la eficiencia de la función judicial y la independencia del Poder Judicial. Al punto que se ha sentado, como criterio jurisprudencial, que se está en presencia de normativa especial que tiene preponderancia frente a las disposiciones generales y no puede ser tácitamente derogada por una norma posterior de carácter general. Asimismo, la Sala ha hecho expresa referencia a la improcedencia de que una instancia externa asuma la rectoría o imponga criterios sobre el Poder Judicial en estas materias. Por el contrario, ha destacado que la independencia y autonomía funcional reconocida expresamente al Poder Judicial en el propio texto constitucional (artículos 9, 152 y siguientes y 177) y materializada y garantizada en sus propias normas orgánicas, impone a los jerarcas del Poder Judicial la competencia y la responsabilidad para decidir -sin injerencias indebidas- en las distintas materias que son objeto de regulación en el proyecto de ley consultado.

Finalmente, en cuanto a Derecho Comparado, es oportuno mencionar el artículo 64 de la Constitución Francesa de 1958 se dice que el Presidente de la República es el principal llamado a garantizar la independencia de la autoridad judicial, y que, es una Ley Orgánica, particular del Poder Judicial, la que regulará el estatuto jurídico de los magistrados. Así dice:

“ARTICLE 64.

Le Président de la République est garant de l'indépendance de l'autorité judiciaire.

Il est assisté par le Conseil supérieur de la magistrature.

Une loi organique porte statut des magistrats.

Les magistrats du siège sont inamovibles.” (Traducción libre: “Artículo 64. El Presidente de la República es garante de la independencia de la autoridad judicial. Para ello, el Presidente de la República es asistido por el Consejo Superior de la Magistratura. Una ley orgánica regulará el estatuto jurídico de los Magistrados. Los magistrados elegidos son inamovibles.”) Ahora bien, lo señalado en los distintos precedentes supra citados, en el sentido que esta Sala ha entendido como válido y justificado que el Poder Judicial cuente con su propio marco normativo, que regula de forma específica, particular y diferenciada las relaciones de empleo entre dicho Poder y sus servidores, no excluye reconocer que la Asamblea Legislativa está habilitada por el Derecho de la Constitución -conforme la intención del constituyente originario, según se desarrolló en el considerando VIII de este voto- a establecer un estatuto único que comprenda a todos (as) los (as) servidores (as) públicos, incluso a funcionarios (as) del Poder Judicial, siempre y cuando, tal normativa, por su contenido o sus efectos, no suprima, afecte en lo esencial, ni suponga trasladar las competencias exclusivas y excluyentes que le corresponden al Poder Judicial a otros órganos y entes, en infracción del principio de separación de poderes o funciones y, muy en particular, del principio de independencia judicial, tal y como se analizará continuación, respecto de las distintas normas consultadas.

• 3)Sobre el examen del Articulado consultado Sobre el artículo 2.a (ámbito de cobertura), respecto del Poder Judicial (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 2- Ámbito de cobertura Esta ley es aplicable a las personas servidoras públicas de las siguientes entidades y órganos bajo el principio de Estado como patrono único:

• a)Los Poderes de la República (Ejecutivo, Legislativo y Judicial), sus órganos auxiliares y adscritos, y el Tribunal Supremo de Elecciones (TSE), sin perjuicio del principio de separación de Poderes establecido en la Constitución Política.

(…)” Ante tal panorama, y retomando lo que se expuso supra, en el sentido de que es plausible sujetar a todos los poderes del Estado a un único estatuto de empleo público, con lo que la sujeción del Poder Judicial a esta ley no resulta inconstitucional, sí es inconstitucional por el hecho de no excluir a los (as) funcionarios (as) que ejercen las funciones jurisdiccionales -jueces- o para- jurisdiccionales -fiscales, defensores públicos y profesionales y personal especializado del Organismo de Investigación Judicial, etc.- y los funcionarios del nivel gerencial o de alta dirección política como los denomina el proyecto de ley, al igual que a los funcionarios del Tribunal Supremo de Elecciones que ejercen función electoral -letrados, directores del Departamentos, profesionales, etc., y quienes ejercen cargo de alta dirección política, así como el personal administrativo, profesional y técnico, que defina de forma exclusiva y excluyente cada jerarca del poder respectivo, pues, en estos casos, no es posible someterlo a directrices, disposiciones, circulares, manuales que emita Mideplán. Lo anterior significa, que el Poder Judicial sí estaría sometido a esas potestades que la ley le otorga al Mideplán cuando se trata del resto de los funcionarios -los que defina cada jerarca del Poder Judicial y el Tribunal Supremo de Elecciones de manera exclusiva y excluyente-, que forman parte del staff administrativo, auxiliar o personal de apoyo. Se podrá argumentar en contra de lo que estamos afirmando que el numeral 49 del proyecto de ley consultado, en el inciso g) que adiciona el artículo 85 a la Ley n.° 5155, Estatuto Judicial, de 10 de enero de 1973, en el sentido de que las competencias en el proyecto de ley, para los órganos del Poder Judicial, se realizarán en coordinación con Mideplán, en los que corresponde a los temas a que se refiere el citado proyecto; y el inciso h), que adiciona el artículo 17 a la Ley n.° 2422, Ley de Salarios del Poder Judicial, de 11 de agosto de 1959, en el sentido de que las competencias definidas en el proyecto de ley, para los órganos del Poder Judicial, también es realizada en coordinación con el citado ministerio, en la misma dirección, así como el hecho de que el inciso a) del artículo 2 establece que el ámbito de cobertura el proyecto de ley lo es sin perjuicio del principio de separación de Poderes establecido en la Constitución Política, el Poder Judicial lo hará a través de la coordinación institucional con MIDEPLAN, por lo que no es cierto que está sometido al primero a las directrices, disposiciones, circulares, manuales que emita el segundo en lo que atañe; empero tal objeción resulta injustificada a causa de la imprecisión de la normativa que se pretende aprobar, pues en una materia de tanta importancia la Ley debe de ser clara y precisa, aspecto que, en muchos casos, se echa de menos. De ahí que resulta pertinente concluir que sí hay vicios de inconstitucionalidad. Nótese que en el numeral 3 del proyecto de ley consultado, que regula la exclusión de los entes de esta normativa, no se hace ninguna salvaguarda en favor del Poder Judicial y el Tribunal Supremo de Elecciones.

Sobre el artículo 6 (rectoría de Mideplán), respecto del Poder Judicial (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 6- Creación del Sistema General de Empleo Público La rectoría del Sistema General de Empleo Público estará a cargo del Ministerio de Planificación Nacional y Política Económica (Mideplán). Dicho sistema estará compuesto por lo siguiente:

• a)El Ministerio de Planificación Nacional y Política Económica (Mideplán).
• b)Las oficinas, los departamentos, las áreas, direcciones, unidades o denominaciones homólogas de Gestión de Recursos Humanos de las entidades y los órganos bajo el ámbito de aplicación de la presente ley. (…)” En relación con el artículo 6, inciso b, del proyecto de ley consultado es inconstitucional, toda vez que somete a la potestad de dirección del Poder Ejecutivo al Poder Judicial y al Tribunal Supremo de Elecciones, lo que resulta contrario a los principios de independencia judicial y electoral. De ahí que las oficinas, los departamentos, las áreas, direcciones, unidades de Gestión de Recursos Humanos de estos poderes no pueden estar bajo la citada potestad, excepto en lo que atañe a quienes presten servicios administrativos básicos, auxiliares, que no inciden sobre las competencias exclusivas y excluyentes ni funciones administrativas necesarias para el cumplimiento de estas, definidos, exclusivamente, por los jerarcas del Poder Judicial y el Tribunal Supremo de Elecciones.

Sobre el artículo 7 (competencias de Mideplán), respecto del Poder Judicial (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 7- Competencias del Mideplán Son competencias del Ministerio de Planificación Nacional y Política Económica (Mideplan) las siguientes:

• a)Establecer, dirigir y coordinar la emisión de políticas públicas, programas y planes nacionales de empleo público, conforme a la Ley 5525, Ley de Planificación Nacional, de 2 de mayo de 1974.
• b)Establecer mecanismos de discusión, participación y concertación con las corporaciones municipales a través de la Unión de Gobiernos Locales y las instituciones de educación superior universitaria estatal, en materia de empleo público.
• c)Emitir disposiciones de alcance general, directrices y reglamentos, que tiendan a la estandarización, simplificación y coherencia del empleo público, según lo preceptuado en la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• d)Asesorar a las entidades y los órganos incluidos, bajo el ámbito de cobertura de la presente ley, para la correcta implementación de las políticas públicas, las disposiciones de alcance general, las directrices y los reglamentos que se emitan en el marco de la rectoría política en empleo público y la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• e)Administrar y mantener actualizada la plataforma integrada del empleo público.
• f)Publicar la oferta de empleo público, a través de la plataforma virtual que alimentarán las entidades y los órganos incluidos del ámbito de cobertura de la presente ley.
• g)Emitir los lineamientos y principios generales para la evaluación del desempeño.
• h)Administrar e implementar las acciones de investigación, innovación y formulación de propuestas de empleo público.
• i)Dirigir y coordinar la ejecución de las competencias inherentes en materia de empleo público con el Ministerio de Hacienda, el Ministerio de Trabajo y Seguridad Social, la Autoridad Presupuestaria y la Dirección General de Servicio Civil, entre otras dependencias técnicas en la materia de empleo público, lo concerniente a la materia de empleo público.
• j)Recolectar, analizar y divulgar información en materia de empleo público de las entidades y los órganos para la mejora y modernización de estos. A tal efecto, establecerá un sistema de indicadores, mediante el establecimiento de criterios de coordinación, para homogeneizar la recopilación y difusión de datos.
• k)Preparar una estrategia coherente e integral para el aprendizaje y el desarrollo en todo el servicio público, estableciendo cómo se desarrollará la capacidad a largo plazo para estándares de dirección y competencia profesional más altos y proporcionando orientación a las instituciones públicas sobre cómo planificar y aplicar las actividades dentro de la estrategia.
• l)Coordinar con la Procuraduría de la Ética Pública para emitir las disposiciones de alcance general, las directrices y los reglamentos, para la instrucción de las personas servidoras públicas sobre los deberes, las responsabilidades y las funciones del cargo, así como los deberes éticos que rigen la función pública, que resulten procedentes según la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• m)Establecer un sistema único y unificado de remuneración de la función pública de conformidad con esta ley y especifica del salario y los beneficios de todas las personas funcionarias públicas.
• n)Realizar diagnósticos en materia de recursos humanos de las entidades y los órganos incluidos para lograr un adecuado redimensionamiento de las planillas existentes y la elaboración de criterios generales que delimiten los sectores cuya actividad, por su valor estratégico institucional, así como la vinculación con la actividad sustantiva, se debería reservar para que sean realizadas exclusivamente por personas servidoras públicas. Además, analizar los que sirvan de orientación para delimitar la prestación de los que podrían ser externalizados y las condiciones de prestación de estos.
• o)Prospectar las tendencias globales del futuro del empleo público, con el propósito de informar la planificación de este.
• p)Analizar la eficiencia y eficacia de los mecanismos de evaluación, a efectos de determinar si estos cumplen o no su cometido.
• q)Evaluar el sistema general de empleo público en términos de eficiencia, eficacia, economía, simplicidad y calidad.” En relación con el artículo 7, incisos d), g) y p) resultan inconstitucionales, pues afecta la independencia de Poder Judicial y el Tribunal Supremo de Elecciones, en cuanto los somete a la potestad de dirección y reglamentaria de Mideplán, así como a la verificación de si cumplen o no con el cometido de la evaluación del desempeño y no se excluye de la potestad de dirección. Hay que enfatizar que el principio de separación de poderes o funciones es incompatible con la potestad de dirección y reglamentación que ejerce el Poder Ejecutivo, toda vez que no puede ordenar su actividad, estableciendo metas y objetivos. En lo que atañe a la evaluación del desempeño, queda reserva a cada poder del Estado, toda vez que esta materia es consustancial al ejercicio de sus competencias constitucionales. Quiere esto decir, que, en lo tocante a este extremo, todo el funcionariado de cada poder estaría sometido a las disposiciones internas que cada uno de estos dicten al respecto.

Sobre el artículo 9.a.- Oficinas de Recursos Humanos respecto del Poder Judicial (Redacta la magistrada Picado Brenes) Se consulta sobre el artículo siguiente:

“ARTÍCULO 9- Funciones de las administraciones activas a) Las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos, de las instituciones incluidas en el artículo 2 de la presente ley, seguirán realizando sus funciones de conformidad con las disposiciones normativas atinentes en cada dependencia pública.

Asimismo, aplicarán y ejecutarán las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que el Ministerio de Planificación Nacional y Política Económica (Mideplán) remita a la respectiva institución, según la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

• b)Es responsabilidad de las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos elaborar y aplicar las pruebas de conocimientos, competencias y psicométricas, para efectos de los procesos de reclutamiento y selección de personal, efectuar los concursos internos y externos por oposición y méritos, los cuales deberán cumplir siempre al menos con los estándares que establezca la Dirección General del de Servicio Civil para cada puesto, según su ámbito de competencia, y los lineamientos que se emitan según el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

Además, incorporar dichos concursos en la oferta de empleo público de la Administración Pública y verificar que las personas servidoras públicas reciban la inducción debida sobre los deberes, las responsabilidades y las funciones del puesto, así como los deberes éticos de la función pública generales y particulares de la institución y puesto.

• c)Las oficinas de gestión institucional de recursos humanos, de ministerios e instituciones u órganos adscritos bajo el ámbito de aplicación del Estatuto de Servicio Civil, son dependencias técnicas de la Dirección General de Servicio Civil que, para todos los efectos, deberá coordinar la elaboración de las pruebas de reclutamiento y selección de personal con tales oficinas y desempeñar sus funciones de asesoramiento, capacitación y acompañamiento técnico.” Tal como se observa, el artículo 9 consultado establece ciertas funciones para todas las oficinas, departamentos, áreas, direcciones o las unidades de recursos humanos, de todas las instituciones incluidas en el proyecto, en cuenta, para el Departamento de Gestión Humana del Poder Judicial. Así entonces, en lo que se refiere propiamente a la consulta realizada en cuanto al Poder Judicial, el segundo párrafo del inciso a) le impone al Departamento de Gestión Humana de dicho Poder de la República que aplique y ejecute las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que Mideplán le remita. Lo cual, implicaría que un órgano del Poder Ejecutivo, como lo es Mideplán, le imponga al Poder Judicial la aplicación y ejecución de sus disposiciones, directrices y reglamentos, y en materias que son de resorte exclusivo del Poder Judicial como lo es la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación o salarios y la gestión de las relaciones laborales. Siendo claramente tal obligación para el Departamento de Gestión Humana del Poder Judicial una violación al principio de separación de poderes y a la independencia judicial, conforme los alcances que la jurisprudencia constitucional le ha dado a tales principios básicos de nuestra democracia. Recuérdese que, el principio de división de poderes, o como se le conoce más recientemente, principio de separación de funciones, está consagrado en el artículo 9 de la Constitución Política y se erige en “uno de los pilares fundamentales del Estado Democrático, en tanto establece un sistema de frenos y contrapesos que garantiza el respeto de los valores, principios y normas constitucionales en beneficio directo de los habitantes del país.” (sentencia n°2006-013708). Haciendo posible que cada Poder del Estado pueda ejercer su función con independencia de los otros (sentencia n°6829-1993), y no solo como un principio de aplicación interna para el buen funcionamiento del Estado de Derecho, sino además, porque el principio de independencia judicial, en su dimensión externa, asegura un conjunto de garantías que pretenden evitar que una Corte sea controlada por otros órganos gubernamentales, es la ausencia de presiones o influencias externas que hagan vulnerable a la institución, como resultado de amenazas a la disponibilidad de recursos que le permitan desarrollar su labor con autonomía, a la estabilidad laboral y las posibilidades de ascenso de sus funcionarios, a su integridad y patrimonio, y a sus capacidades de infraestructura para atender las demandas ciudadanas. Por otro lado, en su dimensión interna, la independencia judicial es más que una garantía para los jueces, pues constituye también “una garantía para los particulares (partes del proceso), en el sentido de que sus casos se decidirán con apego estricto a la Constitución y las leyes” (sentencia n°5795-1998), “estamos ante el derecho de los ciudadanos a contar con jueces independientes” (sentencia n°2001-006632). La independencia del Poder Judicial se traduce, en materia económica y por la inamovilidad de su personal, así como, en lo funcional, por la posibilidad real de tomar sus decisiones de acuerdo con criterios propios y no como resultado de presiones procedentes de determinados grupos, instituciones o personas (ver sentencia n°2000-005493). Así está plenamente justificado que en el caso específico del Poder Judicial tenga una regulación especial, separada y diferenciada, aunque sujeta a los principios constitucionales fundamentales que prevén los artículos 191 y 192 (ver sentencia n°1991-550), pero no bajo las disposiciones generales, directrices y reglamentos de un órgano de otro Poder de la República, como lo pretendía esta norma del proyecto consultada. Pues, la normativa especial que regula al Poder Judicial “impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias.” (sentencia n°2018-019511). Ello por cuanto, “…el Régimen del Empleo Público, es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones.” (sentencia n°03575-1996). Siendo “las atribuciones constitucionales de ordenar, planificar o programar por ejemplo la función administrativa de manejo de personal” (sentencia n°2017-009551), una parte esencial de la función administrativa del Poder Judicial que coadyuva al efectivo ejercicio de su función judicial, pues “tanto las funciones legislativas como las judiciales requieren de una estructura administrativa de apoyo para la consecución de su función esencial o primaria, como lo es la función administrativa que le ayuda a canalizar toda su actividad; la que, lógicamente, alcanza al recurso humano o del personal de los Poderes de la República, entretanto, detrás de la función fundamental está la administrativa del personal, agentes y servidores (as) públicos (as), etc.” (sentencia n°2017-009551). Finalmente nótese que, en la sentencia n°2018-019511, en que se conoció de la consulta legislativa respecto del proyecto de "Ley de Fortalecimiento de las Finanzas Publicas" (expediente legislativo nro. 20.580), esta Sala concluyó -luego de realizar una labor interpretativa respecto del contenido del proyecto- que, en concreto, lo previsto en los numerales 46, 47 y 49, atinentes a la “rectoría de la materia empleo público de Mideplán” y “la obligatoriedad de los lineamientos técnicos y metodológicos de la Dirección General del (sic) Servicio Civil”, no aplicaban para el Poder Judicial. Interpretación que se hizo, tomando en consideración el principio de independencia del Poder Judicial. En este sentido, y conforme todo lo anterior, el párrafo segundo del inciso a) del artículo 9 es inconstitucional, respecto a su aplicación al Poder Judicial.

Sobre el artículo 13 (familias de puestos), respecto del Poder Judicial (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 13- Régimen general de empleo público Existirá un único régimen general de empleo público, el cual a su vez estará conformado por las siguientes ocho familias de puestos que serán de aplicación en los órganos y entes de la Administración Pública, según las funciones que ejecute su personal:

• a)Personas servidoras publicas bajo el ámbito de aplicación del título I y del título IV del Estatuto de Servicio Civil, así como a las que se desempeñan en las instituciones señaladas en el artículo 2 de la presente ley, que no estén incluidas en las restantes familias de puestos.
• b)Personas servidoras públicas que se desempeñan en funciones en ciencias de la salud.
• c)Personas servidoras públicas que se desempeñan en funciones policiales.
• d)Personas docentes contempladas en el Estatuto del Servicio Civil, del título II y el título IV.
• e)Personas docentes y académicas de la educación técnica y superior.
• f)Personas que administran justicia y los magistrados del Tribunal Supremo de Elecciones (TSE).
• g)Personas servidoras públicas que se desempeñan en funciones del servicio exterior.
• h)Personas servidoras públicas que se desempeñan en cargos de confianza.

La creación de familias de puestos de empleo público es reserva de ley y deberá estar justificada por criterios técnicos y jurídicos coherentes con una eficiente y eficaz gestión pública.

En todas las categorías descritas con anterioridad, la administración pública superior, por medio de las oficinas o los departamentos de salud ocupacional, deberá contar en cada entidad pública, según lo establece el artículo 300 del Código de Trabajo y su reglamento, con el diagnóstico de sus condiciones de trabajo, el programa de salud ocupacional y cuando existan condiciones de trabajo adversas a su salud deberán crearse los respectivos protocolos de seguridad para salvaguarda de su vida, que será validado a lo interno de esta y con el respectivo aval del Consejo de Salud Ocupacional, para lo cual se le brindará el recurso humano necesario. Dicha instancia dependerá administrativamente de manera directa del jerarca.

En cuanto al inciso f) del artículo 13 es inconstitucional porque no excluye a los funcionarios que realizan funciones para-jurisdiccionales -fiscales, defensores públicos y profesionales y personal especializado del Organismo de Investigación Judicial, etc.- y los funcionarios del nivel gerencial o de alta dirección política, al igual que a los funcionarios del Tribunal Supremo de Elecciones que ejercen función electoral -letrados, directores del Departamentos, profesionales, etc.-, y quienes ejercen cargos de alta dirección política. Además, no se excluye a todo el funcionario administrativo de apoyo, profesional y técnico, que los máximos órganos de los citados poderes del Estado definan, de forma exclusiva y excluyente, como indispensables o consustanciales para el ejercicio de sus competencias constitucionales. Máxime que, de conformidad con ese mismo artículo, inciso a), todos esos funcionarios quedarían incluidos en una categoría del Estatuto de Servicio Civil, lo que afecta la independencia tanto del Poder Judicial como del Tribunal Supremo de Elecciones partiendo del hecho de que el gobierno judicial y electoral lo ejerce la Corte Suprema de Justicia y el Tribunal Supremo de Elecciones de forma exclusiva y excluyente en lo que atañe a sus competencias constitucionales. Finalmente, hay que tener presente que la construcción de la familia, tal y como se explicó supra, corresponde, de forma exclusiva y excluyente, a cada poder del Estado.

Sobre el artículo 14.- Reclutamiento y selección respecto del Poder Judicial (Redacta la magistrada Picado Brenes) Los consultantes cuestionan la constitucionalidad del artículo 14 del proyecto de ley objeto de consulta, toda vez que, en su criterio, podría lesionar los principios de separación de poderes, autonomía e independencia del Poder Judicial, en el tanto se sujeta a las disposiciones que emite un órgano del Poder Ejecutivo, en lo referente a la gestión de empleo, lo cual comprende lo relativo al reclutamiento y selección de su personal. El ordinal 14 en cuestión, dispone lo siguiente:

“ARTÍCULO 14- Reclutamiento y selección El reclutamiento y la selección de las personas servidoras públicas de nuevo ingreso se efectuará con base en su idoneidad comprobada, para lo cual el Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá, con absoluto apego a la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las disposiciones de alcance general, las directrices y los reglamentos, según la respectiva familia de puestos.

En los procesos de reclutamiento y selección no podrá elegirse a un postulante que se encuentre en alguna de las siguientes situaciones:

• a)Estar ligado por parentesco de consanguinidad o de afinidad en línea directa o colateral, hasta tercer grado inclusive, con la jefatura inmediata ni con las personas superiores inmediatas de esta en la respectiva dependencia.
• b)Encontrarse enlistada en el registro de personas inelegibles de la plataforma integrada de empleo público.” Tal como ya fue supra indicado, el Poder Judicial, como poder de la República, no solo debe ser independiente respecto de los otros poderes, conforme lo dispone el ordinal 9 constitucional, sino también garantizar la independencia de los jueces, tal como lo estatuye el artículo 154 de la Constitución Política, como una garantía para los particulares de que sus casos se decidirán con estricto apego a la Constitución y las leyes. En atención a ello, es imprescindible que este Poder de la República disponga todo lo relativo al reclutamiento y selección de su personal, sin interferencia externa alguna. Así lo reiteró puntualmente este Tribunal en la sentencia n.° 2018-19511, al señalar, en lo que interesa lo siguiente:

“…Estas disposiciones constitucionales han dado pie al desarrollo de un profuso marco normativo, específicamente diseñado para regular al Poder Judicial. Entre las normas de este marco se cuentan la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público, la Ley Orgánica del Organismo de Investigación Judicial, la Ley de Salarios del Poder Judicial, el Estatuto de Servicio Judicial (incluida su reforma por la Ley de Carrera Judicial), etc.

De manera clara, las normas supra enunciadas tienen la intención de regular concretamente al Poder Judicial, velando por que se garantice su independencia frente a los otros Poderes de la República.

El hecho de que el Poder Judicial goce de una regulación particular pone en la palestra el segundo punto de análisis de la interpretación sistemática. En este sentido, debe estudiarse si existen normas particulares para el Poder Judicial y verificar su relación con el articulado cuestionado.

Independientemente de que el ordinal 47 del proyecto hable de “salvedades”, se observa que la evaluación del desempeño y la competencia en la toma de decisiones en materia laboral, sean generales o concretas, se encuentran ya reguladas por el mencionado marco normativo del Poder Judicial, imposibilitando que una instancia externa asuma la “rectoría” o imponga criterios sobre ese Poder. Es más, dicho marco normativo está diseñado para garantizar la eficiencia de la función judicial y proteger a los servidores judiciales de injerencias externas, tal como indica el artículo 1 del Estatuto de Servicio Judicial:” En concreto sobre el artículo 1° del Estatuto de Servicio Judicial la Sala indicó en dicho voto que: “Nótese que la norma determina que las relaciones de empleo entre el Poder Judicial y sus servidores se encuentran reguladas por el Estatuto y su reglamento. La interpretación sistemática a que obliga ese numeral impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias. Esto se verifica porque el dictado del reglamento a que refiere la norma es, a su vez, competencia exclusiva de la Corte,” Además agrega que: “Una garantía más de la independencia del Poder Judicial en el tema de empleo es que el Jefe del Departamento de Personal se encuentra vinculado al Presidente de la Corte, excluyendo la injerencia de instancias externas.” Ahora bien, en este caso, este Tribunal considera que el proyecto de ley aquí cuestionado incide en las competencias propias de este Poder de la República, pues más allá de establecer principios o lineamientos generales en materia de empleo público que respeten el principio de separación de funciones, el artículo 14 de estudio, es claro en señalar que será el Ministerio de Planificación Nacional y Política Económica (Mideplán), quien emitirá las disposiciones de alcance general, las directrices y los reglamentos, según la respectiva familia de puestos, que regularán el reclutamiento y la selección de las personas servidoras públicas de nuevo ingreso. Ello, pues conforme lo dispuesto en los ordinales 13 y 2 del mismo proyecto de ley, lo señalado en el ordinal 14 aplicaría al Poder Judicial. Así las cosas, independientemente de que el artículo 2 referido acote que el ámbito de cobertura lo es “sin perjuicio del principio de separación de Poderes establecido en la Constitución Política”, el artículo 14 se aplicaría al Poder Judicial, y en ese sentido, se considera que tal disposición es inconstitucional, al autorizar que un órgano del Poder Ejecutivo, sea quien emita directamente disposiciones de alcance general, directrices y reglamentos, circulares, manuales, y resoluciones relativos a la materia de empleo público, que vacían de contenido las competencias reconocidas a la Corte Suprema de Justicia por el Constituyente original y derivado. Más aún cuando ya existe un marco normativo atinente al Poder Judicial que regula esos aspectos, en los términos que conmina el artículo 192 constitucional. En razón de lo expuesto, la norma consultada excede cualquier marco de cooperación que pueda establecer una política general de empleo público, pues no resulta propio que una dependencia del Poder Ejecutivo -Mideplán-, le dicte a otro Poder, de manera obligatoria, en este caso al Poder Judicial, las pautas o criterios para la selección y reclutamiento de su personal. Ello constituye una clara injerencia externa y, la intromisión del Poder Ejecutivo en aspectos que son competencia exclusiva del Poder Judicial. Por consiguiente, este Tribunal considera que el artículo 14 consultado contiene un vicio de inconstitucionalidad, por lesionar el principio de independencia de funciones que garantizan al Poder Judicial, los ordinales 9 y 154 de la Constitución Política.

Sobre el artículo 17.- Personal de Alta Dirección respecto del Poder Judicial (redacta la magistrada Picado Brenes) Se consulta sobre el artículo siguiente:

“ARTÍCULO 17- Personal de la alta dirección pública El Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá las disposiciones de alcance general, las directrices, y los reglamentos, en materia del personal de la alta dirección pública, que sean acordes con la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, para dotar a la Administración Pública de perfiles con integridad y probada capacidad de gestión, innovación y liderazgo, para procurar el mejoramiento de la prestación de bienes y servicios públicos. (…)” Los consultantes señalan la lesión al principio de separación de funciones y a la independencia del Poder Judicial, por cuanto en esta norma se dispone que, tratándose de puestos de alta dirección será Mideplán quien emita las disposiciones de alcance general, directrices y reglamentos al respecto. En el mismo sentido en que esta Sala ha venido resolviendo estos aspectos, la injerencia de este Ministerio, que es un órgano del Poder Ejecutivo, emitiendo disposiciones de alcance general, directrices y reglamentos al Poder Judicial en materia de los puestos de alta dirección, resulta violatorio del principio de separación de poderes y de independencia judicial. Además, la regulación de todo lo atinente a los puestos de alta gerencia del Poder Judicial ya cuenta con la normativa especial de dicho poder de la República. Existen varios precedentes de la Sala en que, expresamente, se entiende como plenamente justificado que en el caso específico del Poder Judicial tenga una regulación especial, separada y diferenciada -aunque, sujeta a los principios constitucionales fundamentales que prevén los artículos 191 y 192-. Se puede citar, en primer lugar, el voto n°2019-25268 (reiterando lo dicho en el voto n°550-1991), que indica:

“(…) en el caso de los poderes, su propia independencia constitucional, garantizada en general por el artículo 9° de la Constitución y, en los del Poder Judicial y del Tribunal Supremo de Elecciones por las de los artículos 99 y siguientes, 152 y siguientes y 177 de la misma, así como sus propias normas orgánicas, imponen a sus jerarcas la atribución y la responsabilidad de fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos, dentro, naturalmente, de sus disponibilidades presupuestarias, independientemente, desde luego, de que sus montos puedan coincidir o no con los de los diputados.” Siendo que el mismo artículo 154 constitucional somete al Poder Judicial únicamente a la Constitución y a la ley, pero no, a disposiciones del Poder Ejecutivo. Nótese que, estos son puestos de gran importancia pues estarían referidos, al menos, respecto de quienes integran el Consejo Superior del Poder Judicial, y las jefaturas de la Defensa Pública, Ministerio Público y el Organismo de Investigación Judicial. Puestos que son de gran relevancia, que deben estar particularmente protegidos de la injerencia de otros Poderes de la República, y que requieren la estabilidad del personal necesaria para un adecuado e imparcial desempeño del cargo, lo cual es incompatible con una subordinación a las disposiciones que emita al respecto el Mideplán, como lo dispone la norma en cuestión. Siendo competente al respeto el mismo Poder Judicial, como esta Sala lo ha indicado antes: “… sea el Régimen del Empleo Público, es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones.” (sentencia n°03575-1996). Nótese que, en la sentencia n°2018-019511, en que se conoció de la consulta legislativa respecto del proyecto de "Ley de Fortalecimiento de las Finanzas Publicas" (expediente legislativo nro. 20.580), esta Sala concluyó -luego de realizar una labor interpretativa respecto del contenido del proyecto- que, en concreto, lo previsto en los numerales 46, 47 y 49, atinentes a la “rectoría de la materia empleo público de Mideplán” y “la obligatoriedad de los lineamientos técnicos y metodológicos de la Dirección General del (sic) Servicio Civil”, no aplicaban para el Poder Judicial. Interpretación que se hizo, tomando en consideración el principio de independencia del Poder Judicial. Por ende, se considera existe un vicio de inconstitucionalidad en el artículo 17 objeto de consulta, en los términos expuestos.

Sobre el artículo 18.- Plazo de prueba y plazo de nombramiento de Alta Dirección respecto del Poder Judicial (redacta la magistrada Picado Brenes) En relación con esta disposición, los consultantes apuntan nuevamente la lesión al principio de separación de funciones y a la independencia del Poder Judicial, por cuanto se dispone que, tratándose de puestos de alta dirección técnica, el nombramiento será por 6 años con un período de prueba de 6 meses, prorrogables anualmente, sujeto a la evaluación de desempeño, lo cual según indican, incide en materia que es propia de regulación del Poder Judicial. El artículo 18 consultado dispone lo siguiente:

“ARTÍCULO 18- Nombramiento y período de prueba de la alta dirección pública Toda persona servidora pública, que sea nombrada en puestos de alta dirección pública, estará a prueba durante el período de seis meses y su nombramiento se efectuará por un máximo de seis años, con posibilidad de prórroga anual, la cual estará sujeta a los resultados de la evaluación del desempeño. (…)” Al igual que en acápites anteriores, es preciso reiterar que, la regulación de aspectos relativos al nombramiento y selección de personal, tal como también ocurre con los puestos de alta dirección técnica, el período de prueba, plazo o condiciones de prórroga de los nombramientos, son regulaciones propias y atinentes a la autonomía organizacional y administrativa del Poder Judicial, pues se trata de puestos estratégicos de gran importancia para su administración, cuya definición debe corresponder a esta, conforme los fines constitucionales de esa institución. Adviértase que, respecto del Poder Judicial, esos puestos estarían referidos, al menos, respecto de quienes integran el Consejo Superior del Poder Judicial, y las jefaturas de la Defensa Pública, Ministerio Público y el Organismo de Investigación Judicial. Puestos que son de gran relevancia, que deben estar particularmente protegidos de la injerencia de otros Poderes de la República, y que requieren la estabilidad del personal necesaria para un adecuado e imparcial desempeño del cargo, lo cual es incompatible con un nombramiento, cuya prórroga deba ser revisada anualmente como lo dispone la norma en cuestión. Una disposición en ese sentido sería inoperante para este poder de la República, tratándose de puestos de tal relevancia, cuyo nombramiento amerita diferentes concursos y una cuidadosa verificación de atestados de previo a su selección, por lo que, lejos de beneficiar a la administración de justicia, crearía tal inestabilidad, que afectaría el buen gobierno del Poder Judicial. Así las cosas, exigir la periodicidad y prórroga que dispone este artículo 18 para el caso del Poder Judicial, no solo atenta contra el principio de independencia, por estar en contradicción con la normativa especial que el Poder Judicial tiene ya al respecto, sino que resulta irrazonable y desproporcionado, pues el medio escogido por el legislador, no sería el más idóneo para procurar el fin pretendido -valorar la idoneidad del personal-, toda vez que el Poder Judicial ya cuenta con un profuso marco normativo, específicamente diseñado para su regulación, el cual no solamente tiene la intención de regular concretamente al Poder Judicial, velando por que se garantice su independencia frente a los otros Poderes de la República, sino que también asegura el principio de idoneidad que debe prevalecer en la selección de sus funcionarios, por lo que, la norma consultada, lejos de favorecer tal principio constitucional, alteraría de forma irrazonable y desproporcionada la organización de puestos que son fundamentales para la administración de justicia del Poder Judicial, poniendo, incluso, en riesgo la imparcialidad en el ejercicio del cargo que debe prevalecer en esos puestos, ante la continua presión de una prórroga de su nombramiento anual. Asimismo, cabe advertir que, al igual que con el artículo 14 consultado y de lo señalado en el artículo 2 de este proyecto, el ordinal 18 no establece salvedad alguna respecto de la aplicación de esta norma al Poder Judicial, como sí lo hace en este caso para con las universidades públicas, al señalar que, en su caso, se respetarán los plazos y períodos determinados en sus estatutos orgánicos y reglamentos. De ahí que tampoco resulta excluido el Poder Judicial de su aplicación. Por ende, se considera existe un vicio de inconstitucionalidad en el artículo 18 objeto de consulta, en los términos expuestos.

Sobre el artículo 21 (régimen único de despido) y el artículo 22 (proceso de despido) respecto del Poder Judicial (redacta magistrada Picado Brenes) Los artículos consultados disponen lo siguiente:

“ARTÍCULO 21- Procedimiento de despido Será causal de despido inmediato, aplicable a toda persona servidora pública, obtener dos evaluaciones del desempeño consecutivas inferiores a una calificación del setenta por ciento (70%), que se encuentren en firme, una vez agotado el procedimiento de impugnación de la calificación y siempre que se haya acreditado la responsabilidad de la persona servidora pública por dicha evaluación deficiente. Dicha calificación deberá ser debidamente justificada por la jefatura inmediata que la asigne y por la autoridad jerárquica que la confirme, en caso de haber sido recurrida.

Las entidades y los órganos incluidos deberán aplicar planes remediales pactados con la persona servidora pública, y con el asesoramiento de recursos humanos que les permitan determinar las causas por las que las personas servidoras públicas obtienen una calificación inferior al setenta por ciento (70%) y aplicar acciones para mejorar su desempeño. Si pese a la aplicación del plan remedial, la persona servidora pública no logra mejorar su desempeño y obtiene de forma consecutiva otra calificación inferior al setenta por ciento (70%), se configurará la causal de despido inmediato.

Las entidades y los órganos incluidos deberán aplicar planes remediales que les permitan determinar las causas por las que las personas servidoras públicas obtienen una calificación inferior al setenta por ciento (70%) y aplicar acciones para mejorar su desempeño. Si pese a la aplicación del plan remedial, la persona servidora pública no logra mejorar su desempeño y obtiene de forma consecutiva otra calificación inferior al setenta por ciento (70%), se configurará la causal de despido inmediato.

Todo despido justificado se entenderá sin responsabilidad para la Administración Pública y hará perder a la persona servidora pública todos los derechos que esta ley y la normativa aplicable en cada familia de puestos le concede, excepto las proporciones de los extremos laborales que correspondan y los adquiridos conforme a los regímenes de pensiones vigentes, siempre que se realice con observancia de las siguientes reglas:

• a)En todas las dependencias bajo el ámbito de aplicación de esta ley se aplicará un único procedimiento administrativo especial de despido, que garantice la satisfacción del debido proceso y sus principios, el cual deberá ser concluido por acto final en el plazo de dos meses, a partir de su iniciación. La investigación preliminar, en los casos en que se requiera, no dará inicio al procedimiento indicado en el párrafo anterior; no obstante, esta deberá iniciar, bajo pena de prescripción, a más tardar en el plazo de un mes a partir de que el jerarca o la jerarca tenga conocimiento, sea de oficio o por denuncia, de la posible comisión de una falta de uno de sus servidores. El mismo plazo de un mes de prescripción se aplicará si, iniciada la mencionada investigación preliminar, esta permanece paralizada por culpa de la Administración.

Para efectos del plazo de dos meses señalado en el primer párrafo de este inciso, el procedimiento ordinario de despido dará inicio a partir de que el jerarca institucional adopte la decisión de iniciar dicho procedimiento con el nombramiento del órgano director del proceso.

• b)Recibida, por parte del jerarca institucional, queja o denuncia o informado de presunta falta que, en su criterio, amerite el inicio de un procedimiento de despido, este nombrará un órgano director del proceso, el cual formulará por escrito los cargos y dará traslado a la persona servidora pública por un término de quince días, para evacuar toda la prueba ofrecida en una audiencia oral y privada, que notificará personalmente por el correo electrónico institucional del funcionario, correo certificado o por medio de publicación por una única vez en el diario oficial La Gaceta, cuando se demuestre que no existe forma de localizar al presunto infractor. Dentro del plazo indicado, la persona servidora pública deberá presentar, por escrito, sus descargos y podrá ofrecer toda la prueba que considere oportuna para respaldar su defensa, sea documental, testimonial o de cualquier otra índole en abono de estos, así como las excepciones o incidentes que considere oportunos.
• c)Si vencido el plazo que determina el inciso anterior, el servidor no hubiera presentado oposición o si expresamente hubiera manifestado su conformidad con los cargos que se le atribuyen, el jerarca institucional dictará la resolución de despido sin más trámite, salvo que pruebe no haber sido notificado por el órgano director del proceso o haber estado impedido por justa causa para oponerse.
• d)Si el cargo o los cargos que se hacen al empleado o empleada o persona servidora pública implica su responsabilidad penal o cuando sea necesario para el buen éxito del procedimiento administrativo disciplinario de despido o para salvaguardia del decoro de la Administración Pública, el jerarca institucional podrá decretar, en resolución motivada, la suspensión provisional de la persona servidora pública en el ejercicio del cargo. Si se incoara proceso penal en contra de la persona servidora pública, dicha suspensión podrá decretarse en cualquier momento como consecuencia de auto de detención o de prisión preventiva, o sentencia en firme con pena privativa de libertad.
• e)Si el interesado se opusiera dentro del término legal, el órgano director del proceso resolverá las excepciones previas que se hayan presentado y convocará a una comparecencia oral y privada, ante la Administración, en la cual se admitirá y recibirá toda la prueba y alegatos de las partes que sean pertinentes. Asimismo, podrán realizarse antes de la comparecencia las inspecciones oculares y periciales. Se podrá convocar a una segunda comparecencia únicamente cuando haya sido imposible en la primera dejar listo el expediente para su decisión final, y las diligencias pendientes así lo requieran.
• f)Si la persona servidora pública incurriera en nueva causal de despido durante el período de instrucción, se acumularán los cargos en el expediente en trámite y se procederá conforme a lo establecido en este capítulo.
• g)Evacuadas las pruebas, resueltas las excepciones previas presentadas dentro del plazo de los diez días otorgados para oponerse al traslado de cargos y presentadas las conclusiones por las partes o vencido el plazo para ello, se tendrá el expediente debidamente instruido y se elevará el informe respectivo al jerarca institucional para que dicte resolución definitiva.
• h)El jerarca o la jerarca institucional resolverá el despido de la persona servidora pública o declarará la falta de mérito y ordenará el archivo del expediente en este último supuesto. No obstante, en caso de considerar que la falta existe pero que la gravedad de esta no amerita el despido, ordenará una amonestación oral, una advertencia escrita o una suspensión sin goce de salario hasta por un mes, según la gravedad de la falta.
• i)Contra la resolución que ordene la amonestación oral, la advertencia escrita o la suspensión sin goce de salario, hasta por un mes, podrán interponerse los recursos ordinarios de revocatoria con apelación en subsidio, cuando este último resulte procedente, en un plazo de cinco días, contado a partir del día siguiente en que sea notificada dicha resolución. Ambos recursos podrán interponerse en forma conjunta o separada ante el órgano que emite la resolución, quien resolverá el recurso de revocatoria.

En el caso de las personas servidoras públicas que laboran en una institución cubierta por la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953, el recurso de apelación será resuelto por el Tribunal de Servicio Civil. El jerarca o la jerarca remitirá en alzada, al Tribunal de Servicio Civil, el expediente del procedimiento administrativo correspondiente donde conste la resolución de sanción así como la resolución del recurso de revocatoria, con expresión de las razones legales y de los hechos en que se fundamentan ambas resoluciones.

• j)Los casos no previstos en el presente procedimiento, en cuanto no contraríen el texto y los principios procesales que contiene este procedimiento, se resolverán aplicando supletoriamente, según el siguiente orden: la Ley 6227, Ley General de la Administración Pública, las normas del derecho público, los principios generales del derecho público, el Código de Trabajo, el Código Procesal Civil, los principios y las leyes del derecho común, la equidad, las costumbres y los usos locales.

Las instituciones de educación superior universitaria estatal emitirán normativa interna que regule esta materia, de conformidad con los artículos 84, 85 y 87 y el principio de debido proceso contenidos en la Constitución Política; en caso de que no exista normativa institucional al respecto aplicará, supletoriamente, la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las normas de derecho público, los principios generales del derecho público, el Código de Trabajo y el Código Procesal Civil.

ARTÍCULO 22- Fase recursiva Contra la resolución de despido emitida por el jerarca o la jerarca se tendrá un plazo improrrogable de cinco días hábiles, contado a partir de la notificación de la resolución para interponer el recurso de revocatoria y/o el recurso de apelación en subsidio, cuando este último resulte procedente, los cuales se resolverán con arreglo a las siguientes disposiciones:

• a)Si vencido el plazo de cinco días indicados anteriormente no se recurriera la resolución, esta quedará en firme y dará por agotada la vía administrativa.
• b)Si solo se interpuso recurso de revocatoria, lo resuelto por el jerarca o la jerarca será definitivo, la resolución quedará en firme y dará por agotada la vía administrativa.
• c)Si se interponen ambos recursos ordinarios a la vez, se tramitará la apelación, una vez declarada sin lugar la revocatoria.
• d)En el caso de las personas servidoras públicas que laboran en una institución cubierta por la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953, el recurso de apelación se concederá en ambos efectos ante el Tribunal de Servicio Civil. El jerarca o la jerarca remitirá en alzada, al Tribunal de Servicio Civil, el expediente del procedimiento administrativo de despido, donde conste la resolución de despido de la persona servidora pública, así como la resolución del recurso de revocatoria, con expresión de las razones legales y de los hechos en que se fundamentan ambas resoluciones.

Si únicamente se interpuso el recurso de apelación, el jerarca o la jerarca remitirá en alzada, al Tribunal de Servicio Civil, el expediente del procedimiento administrativo de despido donde conste la resolución de despido de la persona servidora pública, con expresión de las razones legales y de los hechos en que se fundamenta dicha resolución.

La resolución que adopte el Tribunal del Servicio Civil en alzada será definitiva, la resolución quedará en firme y agotará la vía administrativa. Dicho fallo es vinculante para el jerarca o la jerarca institucional.

Autorizado el despido por resolución firme, el jerarca o la jerarca institucional tendrá un plazo de caducidad de un mes, contado a partir de la notificación de dicha resolución, para hacerlo efectivo. Para la ejecución del despido por parte del jerarca o la jerarca no se requiere acuerdo adicional, basta la comunicación del cese de su condición de funcionaria a la persona servidora, con base en la resolución firme dictada.

Si el Tribunal de Servicio Civil revocara la sentencia dictada por el jerarca o la jerarca institucional, dictará en el mismo acto nuevo fallo y resolverá si procede la restitución del empleado en su puesto, con pleno goce de sus derechos y el pago en su favor de los salarios caídos.

En caso de que el Tribunal de Servicio Civil considere que la falta existe pero que la gravedad de esta no amerita el despido, podrá ordenar una amonestación oral, una advertencia escrita o una suspensión sin goce de salario hasta por un mes.

Las instituciones de educación superior universitaria estatal emitirán normativa interna que regule esta materia, de conformidad con los artículos 84, 85 y 87 y el principio de debido proceso contenidos en la Constitución Política; en caso de que no exista normativa institucional al respecto, aplicará supletoriamente la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las normas de derecho público, los principios generales del derecho público, el Código de Trabajo y el Código Procesal Civil.” Los diputados consultan sobre los artículos 21 y 22 del proyecto, referido al régimen disciplinario y sancionatorio aplicable al Poder Judicial. Indican que el art.21 establece una nueva causal de despido inmediato cuando el servidor público obtenga dos evaluaciones de desempeño consecutivas inferiores a 70%. Indican que el Poder Judicial cuenta con leyes especiales que regulan el régimen sancionatorio de sus servidores. Agregan que, las nuevas causales establecidas obedecen más a asuntos administrativos que a aspectos jurisdiccionales, lo que provoca una injerencia odiosa y peligrosa para nuestro Estado Social de Derecho y la independencia judicial. Consideran que la nueva causal de despido inmediato consistente en obtener dos calificaciones de desempeño consecutivas inferiores a 70% contenida en el artículo 21, así como las dos nuevas causales graves creadas mediante la reforma al artículo 48 de la Ley de Salarios de la Administración Pública, que se reforma en el artículo 49:A) del proyecto de ley, violentan los principios constitucionales de legalidad, seguridad jurídica, razonabilidad, proporcionalidad, separación de poderes, autonomía e independencia del Poder Judicial y sus órganos auxiliares, permitiendo además la injerencia del Mideplan en asuntos que son de competencia exclusiva de ese Poder de la República tal y como disponen los artículos 9, 154 y 156 de la Constitución Política, y la numerosa legislación internacional citada. Luego, sobre el único procedimiento de despido en relación con el Poder Judicial, indican que, bajo el ámbito de aplicación de esta propuesta de ley existirá un único procedimiento especial de despido (artículo 21). Respecto al régimen recursivo, se le da la potestad al Tribunal de Servicio Civil de resolver todos los recursos de apelación que interpongan contra resoluciones que determinen cualquier tipo de sanción disciplinaria (artículo 21:i) y artículo 22). Consideran que también violenta la independencia y autonomía del Poder Judicial, siendo que éste cuenta con su propia normativa y que por la especialidad de la función que realizan contiene disposiciones particulares en cuanto a competencias, plazos, faltas, sanciones y recursos, según lo establecen los artículos del 174 al 215 de su Ley Orgánica.

Al respecto, esta Sala considera que:

-La creación de una nueva causal de despido, por no pasar la evaluación del desempeño en dos ocasiones consecutivas (según el primer párrafo del art.21 del proyecto), no es inconstitucional en tanto la aplique el Poder Judicial y el Tribunal Supremo de Elecciones de acuerdo con su normativa interna. El establecimiento de esta causal nueva para el despido justificado, no violenta el Derecho de la Constitución, máxime si se entiende que esta nueva causal se aplicaría según las disposiciones internas del Poder Judicial, donde Mideplán no tendría ninguna injerencia.

-Sí resultan inconstitucionales los artículos 21 y 22 del proyecto consultado, respecto de su aplicación al Poder Judicial -y al TSE según se verá-, por cuanto, el ejercicio de la potestad disciplinaria de los servidores del Poder Judicial es parte esencial de la independencia judicial. Así entonces, todo lo que en esas normas se establece en cuanto a procedimiento y fase recursiva no podrían aplicarse al Poder Judicial, el cual ya goza de normativa interna que dispone el ejercicio de la potestad disciplinaria. Tal como esta Sala lo indicó mediante el voto n°2009-004849, todo procedimiento para la adopción de medidas disciplinarias, la suspensión o la separación del cargo se deberá resolver de acuerdo con las normas establecidas de comportamiento judicial. Así entonces, en consonancia con el principio de independencia judicial, la entidad con competencia disciplinaria será, exclusivamente el propio Poder Judicial.

Sobre el artículo 49 incisos a, b, g y h (reforma a normativa) respecto del Poder Judicial (redacta magistrada Picado Brenes) El artículo consultado dispone lo siguiente:

“ARTÍCULO 49- Modificaciones Se modifican las siguientes disposiciones normativas, de la manera que se describe a continuación:

• A)Se reforman los artículos 12 y 48 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957. El texto es el siguiente:

Artículo 12- El incentivo por anualidad se reconocerá el mes inmediato siguiente al aniversario del ingreso o reingreso de la persona servidora pública que labore bajo el esquema de salario compuesto y de acuerdo con las siguientes normas:

• a)Si el servidor es trasladado a un puesto de igual o inferior categoría a la del puesto que esté ocupando, no habrá interrupción alguna en cuanto al cómputo del tiempo para el aumento de salario.
• b)Si el servidor es ascendido, comenzará a percibir el mínimo de anualidades de la nueva categoría; bajo ningún supuesto se revalorizarán los incentivos ya reconocidos.
• c)A las personas servidoras públicas, en propiedad o interinos, se les computará, para efectos de reconocimiento del incentivo por anualidad, el tiempo de servicio prestado en otras entidades del sector público.

Artículo 48- Criterios para la evaluación del desempeño Cada jefatura de la Administración Pública, al inicio del año, deberá asignar y distribuir a todos los funcionarios entre los procesos, proyectos, productos y servicios de la dependencia, estableciendo plazos de entrega y tiempo estimado para su elaboración. Será responsabilidad de cada superior jerárquico dar seguimiento a este plan de trabajo anual; su incumplimiento será considerado falta grave de conformidad con la normativa aplicable.

Para el seguimiento regular y frecuente de las actividades del plan de trabajo, cada administración deberá establecer un sistema informático al efecto, alimentado por cada funcionario con las actividades diarias vinculadas a dichos procesos, proyectos y productos, y el cumplimiento de plazos y tiempos. Será responsabilidad de cada funcionario, incluido todo el nivel directivo, la actualización y el mantenimiento al día de la información necesaria para la evaluación de su desempeño, de conformidad con los procesos, proyectos, productos y servicios asignados particularmente, sus plazos de entrega y tiempos estimados para su elaboración, en dicho sistema informático que la administración pondrá a su disposición. Su incumplimiento será considerado falta grave de conformidad con la normativa aplicable.

El incentivo por anualidad se concederá únicamente mediante la evaluación del desempeño para aquellas personas servidoras públicas que laboren bajo el esquema de salario compuesto, que hayan cumplido con una calificación mínima de "muy bueno" o su equivalente numérico, según la escala definida, de conformidad con las siguientes reglas:

• a)Un ochenta por ciento (80%) de la calificación anual se realizará sobre el cumplimiento de las metas anuales definidas para cada funcionario, de conformidad con lo dispuesto en el presente capítulo.
• b)Un veinte por ciento (20%) será responsabilidad de la jefatura o superior, que se evaluará según el buen rendimiento acorde con las competencias necesarias para el desempeño del puesto.
• B)Se adiciona el inciso l) al artículo 13 y se reforman los artículos 1 y 7 bis de la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953. Los textos son los siguientes:

Artículo 13- Son atribuciones y funciones del director general de Servicio Civil:

[…]

• l)Agotar la vía administrativa de los asuntos sometidos a la competencia de la Dirección General de Servicio Civil.

Artículo 1- Este estatuto y sus reglamentos regularán las relaciones entre el Estado y las personas servidoras públicas, con el propósito de garantizar la eficiencia de la Administración Pública.

Artículo 7 bis- Se dota a la Dirección General de Servicio Civil de personalidad jurídica instrumental únicamente para efectos de manejar su propio presupuesto y con el fin de que cumpla sus objetivos de conformidad con la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953, demás leyes conexas, y administre su patrimonio.

• C)Se reforma el artículo 704 de la Ley 2, Código de Trabajo, de 27 de agosto de 1943. El texto es el siguiente:

(…)

• D)Se reforman los artículos 7, 8, 9 y 10 de la Ley 8777, Creación de los Tribunales Administrativos del Régimen de Pensiones y Jubilaciones del Magisterio Nacional y del Servicio Civil, de 7 de octubre de 2009. Los textos son los siguientes:

(…)

• E)Se reforman los artículos 7 bis y 35 de la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953. Los textos son los siguientes:

(…)

• F)Se reforma el inciso 5) del artículo 112 de la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978. El texto es el siguiente:

(…)

• G)Se adiciona el artículo 85 a la Ley 5155, Estatuto de Servicio Judicial, de 10 de enero de 1973. El texto es el siguiente:

Artículo 85.- Las competencias definidas en la presente ley, para los órganos del Poder Judicial, serán realizadas en coordinación con el Ministerio de Planificación Nacional y Política Económica (Mideplán), en lo que corresponde a los temas a que se refiere la Ley General de Empleo Público.

• H)Se adiciona el artículo 17 a la Ley 2422, Ley de Salarios del Poder Judicial, de 11 de agosto de 1959. El texto es el siguiente:

Artículo 17.- Las competencias definidas en la presente ley, para los órganos del Poder Judicial, serán realizadas en coordinación con el Ministerio de Planificación Nacional y Política Económica (Mideplán), en lo que corresponde a los temas a que se refiere la Ley General de Empleo Público.

• I)Se reforma el artículo 11 de la Ley 6877, Ley de Creación del Servicio Nacional de Aguas, Riego y Avenamiento (Senara), de 18 de julio de 1983. El texto es el siguiente:

(…)

• J)Se reforma el inciso f) del artículo 11 de la Ley 7800, Creación del Instituto Costarricense del Deporte y la Recreación y del Régimen Jurídico de la Educación Física, el Deporte y la Recreación, de 30 de abril de 1998. El texto es el siguiente:

(…)

• K)Se reforma el inciso k) del artículo 42 de la Ley 9694, Ley del Sistema de Estadística Nacional, de 4 de junio de 2019. El texto es el siguiente:

(…)

• L)Se reforma el inciso ch) del artículo 11 de la Ley 4716, Ley de Organización y Funcionamiento del Instituto de Fomento y Asesoría Municipal (IFAM), de 9 de febrero de 1971. El texto es el siguiente:

(…)

• M)Se reforma el inciso I) del artículo 17 de la Ley 2726, Ley Constitutiva del Instituto Costarricense de Acueductos y Alcantarillados, de 14 de abril de 1961. El texto es el siguiente:

(…)

• N)Se reforma el inciso ñ) del artículo 53 Ley 7593, Ley de la Autoridad Reguladora de los Servicios Públicos (Aresep), de 9 de agosto de 1996. El texto es el siguiente:

(…)

• Ñ)Se reforma el inciso t) del artículo 28 de la Ley 7558, Ley Orgánica del Banco Central de Costa Rica, de 3 de noviembre de 1995. El texto es el siguiente: (…)

Los consultantes consideran que el art.49 del proyecto consultado resulta inconstitucional. Particularmente argumentan en contra del inciso a), el inciso b) y los incisos g) y h). Sobre el inciso a) se refieren a las nuevas causales para el despido con justa causa, referidos, según los consultantes a las calificaciones inferiores a 70% y a no alimentar la base de datos. Sobre la primera causal ya esta Sala se pronunció en el considerando anterior, y en cuanto a la segunda causal sobre la alimentación de la base de datos, nótese que no está claramente fundamentada, por ello esta Sala omite pronunciamiento.

Sobre el inciso b) se consulta por cuanto se estaría sometiendo al Poder Judicial al Estatuto de Servicio Civil. Al respecto, observa esta Sala que, el artículo en cuestión adiciona y reforma algunos artículos del Estatuto de Servicio Civil, particularmente el artículo 1, tal como se observa en el siguiente sentido:

Estatuto de Servicio Civil (versión actual) Estatuto de Servicio Civil (propuesta de reforma) Artículo 1º.- Este Estatuto y sus reglamentos regularán las relaciones entre el Poder Ejecutivo y sus servidores, con el propósito de garantizar la eficiencia de la Administración Pública, y proteger a dichos servidores.

Artículo 1- Este estatuto y sus reglamentos regularán las relaciones entre el Estado y las personas servidoras públicas, con el propósito de garantizar la eficiencia de la Administración Pública.

Así entonces, a partir del proyecto consultado, el Estatuto de Servicio Civil regularía las relaciones, no sólo al Poder Ejecutivo, sino en general de todo el Estado, incluido el Poder Judicial. Ello per se no sería inconstitucional, claro está, si se entiende que, la sujeción al Poder Judicial es a principios generales de empleo público y que, ello no implica que se esté derogando la normativa especial del Poder Judicial en estas materias, pues sobre esta materia de empleo público de los funcionarios prevalecería esta normativa especial por sobre el Estatuto de Servicio Civil. Además, la Dirección General de Servicio Civil no podría tener competencia respecto de los asuntos referidos al Poder Judicial. Bajo esta interpretación, el artículo 49 inciso b) no es inconstitucional, siempre que se interprete conforme a lo indicado.

Ahora bien, en el caso de los incisos g) y h) del artículo 49, estos resultan inconstitucionales por violar la independencia del Poder Judicial. Lo anterior por cuanto, por medio de tales incisos se pretendía realizar sendas adiciones al Estatuto de Servicio Judicial y a la Ley de Salarios del Poder Judicial, a efectos de incluir la injerencia de Mideplán en las competencias definidas en esta normativa especial, indicando que los órganos del Poder Judicial deberán realizar las competencias definidas en esas leyes, en coordinación con dicho ministerio. Ello resulta evidentemente violatorio del principio constitucional de independencia judicial, pues se trataría de un órgano del Poder Ejecutivo con el cual, las autoridades competentes del Poder Judicial, estaría obligadas a coordinar el ejercicio de sus competencias, en materia de empleo público de los funcionarios judiciales. Se tendría así a la Corte Plena, el presidente de la Corte Suprema de Justicia, el Consejo de Personal, el Consejo de la Judicatura y el Departamento de Personal en obligada coordinación con Mideplán antes de la adopción de acciones en temas relacionados con el empleo público contenidos en el proyecto de ley sean: planificación del trabajo, organización del trabajo, gestión del empleo, gestión del rendimiento, gestión de la compensación y gestión de las relaciones laborales. En temas que son de competencia exclusiva del Poder Judicial, como lo es el manejo interno de su personal, resulta excluyente cualquier tipo de coordinación obligatoria con otro órgano del Estado. Si bien se trata de coordinación y no de dirección, es lo cierto que, en esta materia, que es propia del fuero interno de independencia judicial, ni siquiera la coordinación resultaría admisible para el ejercicio de competencias exclusivas del Poder Judicial. “La independencia judicial se manifiesta en diversos planos, en el plano externo, se traduce por la autonomía del Poder Judicial en materia económica y por la inamovilidad de su personal, así como, en lo funcional, por la posibilidad real de tomar sus decisiones de acuerdo con criterios propios y no como resultado de presiones procedentes de determinados grupos, instituciones o personas.” (sentencia n°2000-005493). Además, debe recordarse lo que indica el art.154 Constitucional: “El Poder Judicial sólo está sometido a la Constitución y a la ley…”, no hay sumisión, ni siquiera en el plano de la coordinación, con otro órgano de otro poder de la República. Nótese que incluso están fuera del alcance del legislador, “las atribuciones constitucionales de ordenar, planificar o programar por ejemplo la función administrativa de manejo de personal.” (sentencia n°2017-009551), con mucha más razón, estarían fuera del alcance de otro poder de la República. Ello por cuanto, incluso se impide “una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias.” (sentencia n°2018-019511). Por consiguiente, este Tribunal considera que los incisos g y h del artículo 49 contienen un vicio de inconstitucionalidad, por lesionar el principio de independencia de funciones que garantizan al Poder Judicial, los ordinales 9 y 154 de la Constitución Política.

• 4)Conclusión -Sobre los artículos 12 (base de datos), 13.h (familia en puestos de confianza), 15 (postulados de reclutamiento y selección), 19 (movilidad o traslados), y 31 (metodología de trabajo), dado que no se realiza la fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, se declara inevacuable la consulta por falta de fundamentación.

-En los términos indicados y conforme a la jurisprudencia de esta Sala, resultan inconstitucionales del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, los artículos siguientes.

Analizados todos los aspectos consultados en cuanto al artículo 2 (inciso a), 6 (inciso b), 7 (incisos d, g y p), 9 (segundo párrafo del inciso a), 13 (inciso f), 14, 17, 18, 21 y 22, 49 (inciso b, g y h), del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación al principio de separación de funciones, al principio de independencia judicial, al régimen particular de empleo del Poder Judicial y a las competencias constitucionales administrativas de la Corte Suprema de Justicia. La independencia económica, personal, funcional, orgánica e institucional, tanto del Poder Judicial en sí mismo, como de los jueces y auxiliares de la justicia, es esencial en un Estado Constitucional de Derecho. Conforme a tal principio, cada poder es independiente del otro, cada órgano del Estado debe poder ejercer su función con independencia de los otros (art.9° Constitucional). Puede haber interrelación entre ellos, pero nunca subordinación, ni tampoco coordinación obligada en materias propias de la competencia exclusiva y excluyente del Poder Judicial. Es lo cierto es que la lectura integral del proyecto permite concluir que no se garantiza debidamente el principio de separación de poderes, no sólo por la sujeción a Mideplán (artículos 6, 7 y 9 por ejemplo), sino por la imposición de ciertas materias que son de competencia exclusiva y excluyente del Poder Judicial (artículos 14, 17, 18, 21 y 22 por ejemplo). Además, no solo se trata de una vulneración a los principios de separación de funciones y a la independencia judicial, sino a todo el sistema democrático y de organización del Poder que el Constituyente ha creado en nuestro Estado de Derecho. “Una garantía más de la independencia del Poder Judicial en el tema de empleo es que el Jefe del Departamento de Personal se encuentra vinculado al Presidente de la Corte, excluyendo la injerencia de instancias externas.” (voto n°2018-019511).

Finalmente, esta Sala observa del expediente legislativo que, la Corte Suprema de Justicia emitió un criterio desfavorable al proyecto en la consulta que le hiciera la Asamblea Legislativa, cuando indicó lo siguiente, mediante oficio n°SP-62-2021 del 03 de junio del 2021:

“Como se dijo, si bien el nuevo texto del proyecto … se mantiene la latente oposición de incluir al Poder Judicial en una normativa que implica una clara injerencia del Poder Ejecutivo en cuestiones que -constitucional y legalmente- son propias de esta otra institución. (…) se mantiene la base normativa del anterior texto y se pretende regular un régimen de empleo público que no considera aspectos diferenciadores de las entidades y órganos que somete a su ámbito de cobertura. Así, el Poder Judicial sigue formando parte del proyecto, con las consecuencias que eso implica para su estructura interna y funcionamiento, según las observaciones hechas en los anteriores informes.” (subrayado no corresponde al original) (Las notas particulares de los magistrados, sobre este apartado, por realizarse de forma conjunta con el Tribunal Supremo de Elecciones, se incluyen al final del siguiente apartado).

X.- Sobre la consulta de violación a la independencia del Tribunal Supremo de Elecciones.- 1) Aspectos consultados Los consultantes diputados consideran que los siguientes artículos del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, son violatorios del principio de separación de poderes. En concreto, consultan sobre los artículos siguientes, indicados, sea en el encabezado del título general o en el resto del texto del escrito de interposición:

2.a (ámbito de cobertura), 6.b (rectoría de Mideplan), 7 (competencias de Mideplan), 9.a (oficinas de Recursos Humanos), 12 (base de datos), 13 (familias de puestos), 14 (reclutamiento y selección), 15 (postulados de reclutamiento y selección), 17 (personal de Alta Dirección), 18 (plazo de prueba y plazo de nombramiento), 19 (movilidad o traslados), 21 (régimen único de despido), 22 (proceso de despido), 31 (metodología de trabajo), En primer lugar, sobre los artículos 12 (base de datos), 13.h (familia de puestos de confianza), 15 (postulados de reclutamiento y selección), 19 (movilidad o traslados), y 31 (metodología de trabajo), dado que no se realiza la fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, se declara inevacuable la consulta por falta de fundamentación.

En cuanto al resto de artículos, los consultantes consideran que los artículos 2.a, 6, 7, 9, 13, 14, 17, 18, 21 y 22 del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, es violatorio de la independencia del TSE y por tanto, de los artículos 9 y 99 de la Constitución. Los consideran inconstitucionales por cuanto obliga al TSE a aplicar y ejecutar las disposiciones de alcance general, directrices y reglamentos que emita el Mideplán en violación de su independencia, permitiendo una injerencia del Poder Ejecutivo en materia que le está vedada por mandato constitucional y en retroceso del Estado de Derecho. Indican que el art.9 de la Constitución garantiza la independencia del TSE situándolo en el rango de los demás Poderes del Estado, y no solo en cuanto a los actos relativos al sufragio sino respecto a las funciones que establece la propia Constitución y las demás leyes. Así, se advierte la existencia de aspectos que comprometen las competencias legales y constitucionales del TSE, el art.13.a.f que establece un único régimen de empleo público para los servidores y Magistrados del TSE; obligación de aplicar procesos de reclutamiento y selección de personas con las disposiciones de alcance general, directrices y reglamentos emitidos por Mideplán (art.14), sujeción a Mideplán en reclutamiento y selección de personal de alta dirección técnica, obligación de 6 meses de prueba y 6 años de nombramiento (art.17 y 18); un único procedimiento administrativo especial de despido. Además de la inclusión en el art.2.a, la obligación de aplicar y ejecutar las disposiciones de alcance general, directrices y reglamentos que emita el Mideplán violentando la independencia del TSE (arts. 9 y 99) y propone la sujeción e injerencia del Poder Ejecutivo en materia que le está vedada por mandato constitucional aunado el retroceso que implica para el Estado de Derecho.

Así entonces se procede al examen de los artículos indicados. Realizándose de previo, un resumen jurisprudencial sobre el tema de independencia del TSE, el cual servirá de contexto para el examen de cada artículo consultado.

• 2)Antecedentes Jurisprudenciales sobre el Principio Constitucional de Separación de Poderes en cuanto al Tribunal Supremo de Elecciones Respecto del Tribunal Supremo de Elecciones (TSE), debe indicarse que también existe profusa jurisprudencia sobre el fundamento, justificación y relevancia de su independencia. En el voto n°3194-1992, la Sala resolvió:

“En el caso de la materia electoral, la Constitución de 1949 dio especial importancia a la necesidad de segregar todo lo relativo al sufragio, principalmente de la órbita de los poderes políticos del Estado. En esa dirección, estableció una serie de principios y adoptó mecanismos eminentemente formales para garantizar la independencia del sufragio, sobre todo mediante la plena autonomía del órgano llamado a organizarlo, dirigirlo y fiscalizarlo. Originalmente en el artículo 99 constitucional, y luego también en el 9° -por la adición introducida por ley 5704 de 5 de junio de 1975- no sólo se atribuyó al Tribunal Supremo de Elecciones la organización, dirección y vigilancia de los actos relativos al sufragio, sino que, además, se le otorgó el rango e independencia propios de un poder del Estado.” Mientras que en el voto n°00495-1998, se agregó que “aunque (el TSE) no es un Poder del Estado en sentido estricto, sí cumple una función primordial en el Estado costarricense -cual es la de ocuparse de la materia electoral-, y por norma constitucional -transcrito párrafo segundo del artículo 9- se le confiere el rango e independencia de un poder del Estado”. Por su parte, en el voto n°2000-06326, esta Sala precisó:

“III.- DE LA NATURALEZA JURÍDICO-CONSTITUCIONAL DEL TRIBUNAL SUPREMO DE ELECCIONES. Con ocasión de los problemas electorales que motivaron la revolución de 1948, los miembros de la Asamblea Nacional Constituyente de 1949 tuvieron especial cuidado de cuidar la materia electoral, segregando todo lo relativo al sufragio, principalmente de la órbita de los Poderes del Estado, especialmente del Ejecutivo y de la Asamblea Legislativa, sin dejar de lado el Judicial. Establecieron una serie de principios básicos sobre los cuales se desarrolla el ejercicio del sufragio:

"La ley regulará el ejercicio del sufragio de acuerdo con los siguientes principios:

Autonomía de la función electoral; Obligación del Estado de inscribir, de oficio, a los ciudadanos en el Registro Civil y de proveerles de cédula de identidad para ejercer el sufragio; Garantías efectivas de libertad, orden, pureza e imparcialidad por parte de las autoridades gubernativas; Garantías de que el sistema para emitir el sufragio les facilita a los ciudadanos el ejercicio de ese derecho; Identificación del elector por medio de cédula con fotografía u otro medio técnico adecuado dispuesto por la ley para tal efecto; Garantías de representación para las minorías; Garantías de pluralismo político; Garantías para la designación de autoridades y candidatos de los partidos políticos, según los principios democráticos y sin discriminación (artículo 95 de la Constitución Política); y adoptaron mecanismos eminentemente formales para garantizar la independencia del sufragio, dotándole de plena autonomía al órgano llamado a organizarlo, dirigirlo y vigilarlo (el Tribunal Supremo de Elecciones), originalmente en los términos del artículo 89 de la Constitución Política, y luego en los del artículo 9 (adicionado mediante Ley número 5704, de 5 de junio de 1975), en virtud del cual, se delegó a este Tribunal, no sólo la competencia de la materia electoral –según se anotó anteriormente-, sino que además se le otorgó el rango e independencia propios de un poder del Estado. De lo dicho queda claro que el Tribunal Supremo de Elecciones es un órgano constitucional especializado en la materia electoral, que por disposición constitucional goza de la misma independencia de los Poderes del Estado en el ejercicio de sus atribuciones; es decir, tiene plena autonomía para organizar, dirigir y vigilar los procesos electorales y todos los actos relativos al sufragio, con la independencia y rango propios de un Poder estatal, lo cual ha sido considerado con anterioridad en la jurisprudencia constitucional en los siguientes términos:

"El Tribunal como órgano constitucional especializado para la materia electoral, con el rango e independencia de los poderes públicos, puede ser investido, sólo que en su ámbito específico, con cualquiera de las funciones del Estado, y de hecho lo está con las tres [que tiene asignadas], tener a su cargo «la organización, dirección y vigilancia de los actos relativos al sufragio, así como las demás funciones que le atribuyan la Constitución y las leyes»" (sentencia número 0980-91, de las 13:30 horas del 24 de mayo de 1991).

En este sentido, y por la importancia que reviste, debe hacerse mención a la facultad interpretativa que la jurisprudencia constitucional reconoció a este tribunal constitucional, obviamente en materia propia de su competencia: la electoral, en los siguientes términos:

"[...] competencias de las los artículos 97 párrafo segundo y 121 inciso 1) excluyen aún a la Asamblea Legislativa y que el 102 termina de reforzar con una no igualada amplitud, sobre todo al atribuirle poderes tan amplios como el de «interpretar en forma exclusiva y obligatoria las disposiciones constitucionales y legales referentes a la materia electoral» inciso 3º)" (sentencia número 0980-91, supra citada).

En virtud de esta especial competencia, de las prerrogativas y potestades del Tribunal Supremo de Elecciones, es que esta Sala Constitucional concluyó que la esfera de lo electoral es "un ámbito constitucional especial, al que no le convienen las mismas reglas que a los demás Poderes Públicos" (sentencia número 3194-92, de las 16:00 del 27 de octubre de 1992). A modo de ejemplo, debemos hacer referencia obligada a la competencia reglamentaria que se la jurisprudencia constitucional le ha reconocido únicamente en relación con la materia propia de su competencia, obviamente la actividad electoral:

(…)

IV.- DEL ÁMBITO DE COMPETENCIA DEL TRIBUNAL SUPREMO DE ELECCIONES: LA MATERIA ELECTORAL A LA LUZ DE LA JURISPRUDENCIA CONSTITUCIONAL. En reiteradas ocasiones esta Sala se ha manifestado acerca de la especial competencia del Tribunal Supremo de Elecciones, la cual es definida por propia disposición constitucional –artículos 9 y 99 de la Constitución Política- como la materia electoral; y en este sentido se pueden consultar las sentencias números 0980-91, 2150-92, 3194-92, 2430-94, 2456-96, 0034-98, 0466-98, 0563-98 y 0969-98. En todas estas resoluciones reconoce la competencia exclusiva que tiene en materia electoral, es y únicamente cuando éste deniegue su competencia que consideró que la Sala Constitucional puede conocer de esa materia, siempre y cuando se alegue que los actos impugnados lesionan derechos fundamentales:

(…) De esta suerte, ha indicado que la actividad electoral comprende las de organizar, dirigir y fiscalizar todos los actos relativos con el proceso de elecciones nacionales (sentencia número 0653-98), la cual se desarrolla en actividades tales como las siguientes, es decir, sin que ello implique una lista limitada, a modo de ejemplo: la regulación de las normas que rigen la deuda política, así como el control que sobre esta materia tiene el Tribunal Supremo de Elecciones en esta materia (0980-91, 3666-93, 0515-94, 0428-98); el control de las regulaciones estatutarias relativas al derecho de elegir y ser elegido en los procesos internos de los partidos políticos (sentencia número 3294-92); la integración del Consejo Municipal, la declaratoria de la elección y las posteriores sustituciones por pérdidas de credenciales de los regidores y síndicos municipales (sentencia número 2430-94); la tramitación del proceso contencioso electoral para conocer de la cancelación o anulación de credenciales de regidores municipales (sentencia número 0034-98); el cierre de negocios comerciales en los que se expende licor y que se encuentran ubicados en el centro de la ciudad de San José a consecuencia de la realización de las plazas públicas que celebran los partidos políticos (sentencia número 0466-98); y la determinación por parte del Tribunal Supremo de Elecciones de donde realizará la celebración solemne el día de las elecciones, para el conteo inicial de los resultados de las elecciones nacionales (0563-98).” Ahora bien, en lo referente específicamente al régimen de empleo público, aplicable al TSE, lo cierto es que no se tienen precedentes concretos sobre esa materia. Aunque sí cabe remitir, nuevamente, al voto n° 550-1991, en cuanto se dispuso:

“(…) en el caso de los poderes, su propia independencia constitucional, garantizada en general por el artículo 9° de la Constitución y, en los del Poder Judicial y del Tribunal Supremo de Elecciones por las de los artículos 99 y siguientes, 152 y siguientes y 177 de la misma, así como sus propias normas orgánicas, imponen a sus jerarcas la atribución y la responsabilidad de fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos, dentro, naturalmente, de sus disponibilidades presupuestarias, independientemente, desde luego, de que sus montos puedan coincidir o no con los de los diputados.” También cabe citar el voto n° 2005-14298 (que conoció de una acción contra el plazo de nombramiento del Oficial Mayor del Registro Civil). En dicho voto la Sala resolvió la acción con expreso sustento en los artículos 191 y 192 de la Constitución Política. Se reiteró que si bien la Constitución hace referencia a un estatuto de servicio civil, lo cierto es que:

“(…) El legislador derivado, optó sin embargo, por regular el servicio no de modo general, sino por sectores, promulgando así el Estatuto de Servicio Civil (que se aplica a los servidores del Poder Ejecutivo) y posteriormente, otros estatutos para regular la prestación de servicios en los restantes poderes del Estado y en algunas instituciones descentralizadas. No obstante, a pesar de que el legislador no recogió la idea del constituyente y reguló sólo parcialmente el servicio público, es lo cierto que los principios básicos del régimen (escogencia por idoneidad, estabilidad en el empleo), cubren a todos los funcionarios al servicio del Estado, tanto de la administración central, como de los entes descentralizados. (…) Se repite que la intención del constituyente originario fue la existencia una sola ley, un Estatuto, que regulara todo el empleo público. No obstante, lo importante es que se delegó en el legislador derivado, la regulación en detalle de la cobertura del régimen especial, lo cual podía hacer, como lo hizo, en leyes separadas, sin detrimento del mandato constitucional.” También se indicó:

“(…) En un Tribunal como éste, donde la materia electoral es su esencia, los principios constitucionales del régimen de empleo público de estabilidad e idoneidad comprobada, deben ser resguardados con mayor celo, por cuanto la intención del constituyente al crear este Poder, fue cercenar por completo la posibilidad de que los funcionarios electorales, se inmiscuyeran en toda actividad política, con el fin de garantizar un Órgano Electoral independiente.” De todo lo antes expuesto se concluye que, al Tribunal Supremo de Elecciones, como órgano constitucional encargado de organizar, dirigir y fiscalizar la independencia del sufragio, se le otorgó el rango y la independencia propios de un poder del Estado. Por ello goza de plena independencia para cumplir sus cometidos constitucionales. Debido a los problemas electorales que motivaron la revolución de 1948, los miembros de la Asamblea Nacional Constituyente de 1949 tuvieron especial cuidado de la materia electoral, segregando todo lo relativo al sufragio, principalmente de la órbita de los Poderes del Estado, blindando la función electoral por medio de distintos principios y garantías, como lo es en primer lugar, la autonomía de la función electoral. De lo dicho queda claro que el Tribunal Supremo de Elecciones es un órgano constitucional especializado en la materia electoral, que por disposición constitucional goza de la misma independencia de los Poderes del Estado en el ejercicio de sus atribuciones; es decir, tiene plena autonomía para organizar, dirigir y vigilar los procesos electorales y todos los actos relativos al sufragio, con la independencia y rango propios de un Poder estatal. Así, esta Sala Constitucional concluyó que “la esfera de lo electoral es un ámbito constitucional especial, al que no le convienen las mismas reglas que a los demás Poderes Públicos" (sentencia n°2000-06326). Si bien es cierto, los principios constitucionales del régimen de empleo público (idoneidad y estabilidad) también le aplican, se entiende que el TSE cuenta con sus propias normas orgánicas o especiales que les dan competencia exclusiva a sus jerarcas para fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos.

Finalmente, al igual que se indicó supra sobre el Poder Judicial, lo anterior no impide que el Legislador dicte una Ley General de Empleo Público en la que se incluya al TSE, siempre y cuando se respete los principios de separación de poderes o de funciones y de independencia electoral.

• 3)Sobre el examen del Articulado consultado Sobre el artículo 2.a (ámbito de cobertura) respecto del Tribunal Supremo de Elecciones (Redacta el magistrado Castillo Víquez) La norma consultada indica lo siguiente:

“ARTÍCULO 2- Ámbito de cobertura Esta ley es aplicable a las personas servidoras públicas de las siguientes entidades y órganos bajo el principio de Estado como patrono único:

• b)Los Poderes de la República (Ejecutivo, Legislativo y Judicial), sus órganos auxiliares y adscritos, y el Tribunal Supremo de Elecciones (TSE), sin perjuicio del principio de separación de Poderes establecido en la Constitución Política.

(…)” Tal como se dijo para el caso del Poder Judicial, ante tal panorama, y retomando lo que se expuso supra, en el sentido de que es plausible sujetar a todos los poderes del Estado a un único estatuto de empleo público, con lo que la sujeción del Poder Judicial y del Tribunal Supremo de Elecciones a esta ley no resulta inconstitucional, sí es inconstitucional por el hecho de no excluir a los (as) funcionarios (as) que ejercen las funciones jurisdiccionales -jueces- o para- jurisdiccionales -fiscales, defensores públicos y profesionales y personal especializado del Organismo de Investigación Judicial, etc.- y los funcionarios del nivel gerencial o de alta dirección política como los denomina el proyecto de ley, al igual que a los funcionarios del Tribunal Supremo de Elecciones que ejercen función electoral -letrados, directores del Departamentos, profesionales, etc.-, y quienes ejercen cargo de alta dirección política, así como el personal administrativo, profesional y técnico, que defina de forma exclusiva y excluyente cada jerarca del poder respectivo, pues, en estos casos, no es posible someterlo a directrices, disposiciones, circulares, manuales que emita Mideplán. Lo anterior significa, que el Poder Judicial y el Tribunal Supremo de Elecciones sí estaría sometido a esas potestades que la ley le otorga al Mideplán cuando se trata del resto de los funcionarios -los que defina cada jerarca del Poder Judicial y el Tribunal Supremo de Elecciones de manera exclusiva y excluyente-, que forman parte del staff administrativo, auxiliar o personal de apoyo.

Sobre el artículo 6 (rectoría de Mideplán), respecto del Tribunal Supremo de Elecciones (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 6- Creación del Sistema General de Empleo Público La rectoría del Sistema General de Empleo Público estará a cargo del Ministerio de Planificación Nacional y Política Económica (Mideplán). Dicho sistema estará compuesto por lo siguiente:

• a)El Ministerio de Planificación Nacional y Política Económica (Mideplán).
• b)Las oficinas, los departamentos, las áreas, direcciones, unidades o denominaciones homólogas de Gestión de Recursos Humanos de las entidades y los órganos bajo el ámbito de aplicación de la presente ley. (…)” En el mismo sentido en que se indicó para el Poder Judicial, en relación con el artículo 6, inciso b, del proyecto de ley consultado es inconstitucional, toda vez que somete a la potestad de dirección del Poder Ejecutivo al Poder Judicial y al Tribunal Supremo de Elecciones, lo que resulta contrario a los principios de independencia judicial y electoral. De ahí que las oficinas, los departamentos, las áreas, direcciones, unidades de Gestión de Recursos Humanos de estos poderes no pueden estar bajo la citada potestad, excepto en lo que atañe a quienes presten servicios administrativos básicos, auxiliares, que no inciden sobre las competencias exclusivas y excluyentes ni funciones administrativas necesarias para el cumplimiento de estas, definidos, exclusivamente, por los jerarcas del Poder Judicial y el Tribunal Supremo de Elecciones.

Sobre el artículo 7 (competencias de Mideplán), respecto del Tribunal Supremo de Elecciones (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 7- Competencias del Mideplán Son competencias del Ministerio de Planificación Nacional y Política Económica (Mideplan) las siguientes:

• a)Establecer, dirigir y coordinar la emisión de políticas públicas, programas y planes nacionales de empleo público, conforme a la Ley 5525, Ley de Planificación Nacional, de 2 de mayo de 1974.
• b)Establecer mecanismos de discusión, participación y concertación con las corporaciones municipales a través de la Unión de Gobiernos Locales y las instituciones de educación superior universitaria estatal, en materia de empleo público.
• c)Emitir disposiciones de alcance general, directrices y reglamentos, que tiendan a la estandarización, simplificación y coherencia del empleo público, según lo preceptuado en la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• d)Asesorar a las entidades y los órganos incluidos, bajo el ámbito de cobertura de la presente ley, para la correcta implementación de las políticas públicas, las disposiciones de alcance general, las directrices y los reglamentos que se emitan en el marco de la rectoría política en empleo público y la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• e)Administrar y mantener actualizada la plataforma integrada del empleo público.
• f)Publicar la oferta de empleo público, a través de la plataforma virtual que alimentarán las entidades y los órganos incluidos del ámbito de cobertura de la presente ley.
• g)Emitir los lineamientos y principios generales para la evaluación del desempeño.
• h)Administrar e implementar las acciones de investigación, innovación y formulación de propuestas de empleo público.
• i)Dirigir y coordinar la ejecución de las competencias inherentes en materia de empleo público con el Ministerio de Hacienda, el Ministerio de Trabajo y Seguridad Social, la Autoridad Presupuestaria y la Dirección General de Servicio Civil, entre otras dependencias técnicas en la materia de empleo público, lo concerniente a la materia de empleo público.
• j)Recolectar, analizar y divulgar información en materia de empleo público de las entidades y los órganos para la mejora y modernización de estos. A tal efecto, establecerá un sistema de indicadores, mediante el establecimiento de criterios de coordinación, para homogeneizar la recopilación y difusión de datos.
• k)Preparar una estrategia coherente e integral para el aprendizaje y el desarrollo en todo el servicio público, estableciendo cómo se desarrollará la capacidad a largo plazo para estándares de dirección y competencia profesional más altos y proporcionando orientación a las instituciones públicas sobre cómo planificar y aplicar las actividades dentro de la estrategia.
• l)Coordinar con la Procuraduría de la Ética Pública para emitir las disposiciones de alcance general, las directrices y los reglamentos, para la instrucción de las personas servidoras públicas sobre los deberes, las responsabilidades y las funciones del cargo, así como los deberes éticos que rigen la función pública, que resulten procedentes según la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• m)Establecer un sistema único y unificado de remuneración de la función pública de conformidad con esta ley y especifica del salario y los beneficios de todas las personas funcionarias públicas.
• n)Realizar diagnósticos en materia de recursos humanos de las entidades y los órganos incluidos para lograr un adecuado redimensionamiento de las planillas existentes y la elaboración de criterios generales que delimiten los sectores cuya actividad, por su valor estratégico institucional, así como la vinculación con la actividad sustantiva, se debería reservar para que sean realizadas exclusivamente por personas servidoras públicas. Además, analizar los que sirvan de orientación para delimitar la prestación de los que podrían ser externalizados y las condiciones de prestación de estos.
• o)Prospectar las tendencias globales del futuro del empleo público, con el propósito de informar la planificación de este.
• p)Analizar la eficiencia y eficacia de los mecanismos de evaluación, a efectos de determinar si estos cumplen o no su cometido.
• q)Evaluar el sistema general de empleo público en términos de eficiencia, eficacia, economía, simplicidad y calidad.” En el mismo sentido que el Poder Judicial, el artículo 7, incisos d), g) y p) resultan inconstitucionales, pues afectan la independencia del Poder Judicial y del Tribunal Supremo de Elecciones, en cuanto los somete a la potestad de dirección y reglamentaria de Mideplán, así como a la verificación de si cumplen o no con el cometido de la evaluación del desempeño y no se excluye de la potestad de dirección. Hay que enfatizar que el principio de separación de poderes o funciones es incompatible con la potestad de dirección y reglamentación que ejerce el Poder Ejecutivo, toda vez que no puede ordenar su actividad, estableciendo metas y objetivos. En lo que atañe a la evaluación del desempeño, queda reserva a cada poder del Estado, toda vez que esta materia es consustancial al ejercicio de sus competencias constitucionales. Quiere esto decir, que, en lo tocante a este extremo, todo el funcionariado de cada poder estaría sometido a las disposiciones internas que cada uno de estos dicten al respecto.

Sobre el artículo 9.a.- Oficinas de Recursos Humanos respecto del Tribunal Supremo de Elecciones (Redacta la magistrada Picado Brenes) El artículo consultado establece lo siguiente:

“ARTÍCULO 9- Funciones de las administraciones activas a) Las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos, de las instituciones incluidas en el artículo 2 de la presente ley, seguirán realizando sus funciones de conformidad con las disposiciones normativas atinentes en cada dependencia pública.

Asimismo, aplicarán y ejecutarán las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que el Ministerio de Planificación Nacional y Política Económica (Mideplán) remita a la respectiva institución, según la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

• b)Es responsabilidad de las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos elaborar y aplicar las pruebas de conocimientos, competencias y psicométricas, para efectos de los procesos de reclutamiento y selección de personal, efectuar los concursos internos y externos por oposición y méritos, los cuales deberán cumplir siempre al menos con los estándares que establezca la Dirección General del de Servicio Civil para cada puesto, según su ámbito de competencia, y los lineamientos que se emitan según el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

Además, incorporar dichos concursos en la oferta de empleo público de la Administración Pública y verificar que las personas servidoras públicas reciban la inducción debida sobre los deberes, las responsabilidades y las funciones del puesto, así como los deberes éticos de la función pública generales y particulares de la institución y puesto.

• c)Las oficinas de gestión institucional de recursos humanos, de ministerios e instituciones u órganos adscritos bajo el ámbito de aplicación del Estatuto de Servicio Civil, son dependencias técnicas de la Dirección General de Servicio Civil que, para todos los efectos, deberá coordinar la elaboración de las pruebas de reclutamiento y selección de personal con tales oficinas y desempeñar sus funciones de asesoramiento, capacitación y acompañamiento técnico.” Tal como se observa, el artículo 9 consultado establece ciertas funciones para todas las oficinas, departamentos, áreas, direcciones o las unidades de recursos humanos, de todas las instituciones incluidas en el proyecto, en cuenta, para Recursos Humanos del TSE. Así entonces, en lo que se refiere propiamente a la consulta realizada en cuanto al TSE, el segundo párrafo del inciso a) le impone a Recursos Humanos que aplique y ejecute las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que Mideplán le remita. Lo cual, implicaría que un órgano del Poder Ejecutivo, como lo es Mideplán, le imponga al TSE la aplicación y ejecución de sus disposiciones, directrices y reglamentos, y en materias que son resorte exclusivo de ese órgano constitucional, como lo es la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación o salarios y la gestión de las relaciones laborales. Siendo claramente tal obligación para Recursos Humanos del TSE una violación al principio de separación de poderes, conforme los alcances que la jurisprudencia constitucional le ha dado a tal principio básico de nuestra democracia. Recuérdese que, el principio de división de poderes, o como se le conoce más recientemente, principio de separación de funciones, está consagrado en el artículo 9 de la Constitución Política y se erige en “uno de los pilares fundamentales del Estado Democrático, en tanto establece un sistema de frenos y contrapesos que garantiza el respeto de los valores, principios y normas constitucionales en beneficio directo de los habitantes del país.” (sentencia n°2006-013708), y que el TSE tiene el rango e independencia propia de un poder de la República (sentencia n°3194-1992). Lo cual implica que, cada Poder del Estado pueda ejercer su función con independencia de los otros (sentencia n°6829-1993). Así el TSE, por su rango de poder del Estado, tiene poderes de organización y dirección propios (sentencia n°2000-06326); además, tiene “sus propias normas orgánicas, imponen a sus jerarcas la atribución y la responsabilidad de fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos…” (sentencia n°550-1991). Ello por cuanto, “…el Régimen del Empleo Público, es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones.” (sentencia n°03575-1996). Por todo lo anterior, se considera que el párrafo primero del artículo 9 consultado resulta violatorio del principio de separación de poderes, en este caso, propiamente del TSE.

Sobre el inciso a) del artículo 13, Familia de puestos respecto del Tribunal Supremo de Elecciones (Redacta la magistrada Picado Brenes) Se procede a examinar el inciso a) del artículo 13 del proyecto, respecto de su aplicación al TSE, ello por cuanto, así fue expresamente consultado por los diputados. Recuérdese que, esta Sala, en materia de consultas facultativas de constitucionalidad, procede a pronunciarse únicamente sobre los temas consultados.

Tal como se observa, el artículo 13 del proyecto establece un único régimen de empleo público, conformado por ocho familias de puestos. En el inciso a) se incluye a “las que se desempeñan en las instituciones señaladas en el artículo 2 de la presente ley, que no estén incluidas en las restantes familias de puestos.” En este caso, tratándose del TSE, se incluye a los magistrados como una familia de puestos (según el inciso f), y todo el resto de funcionarios del TSE dentro de esta primera familia de puestos (inciso a) o dentro de la familia de los puestos de confianza (inciso h). Recuérdese que este inciso h) no está siendo conocido en esta consulta, por lo cual, no se emite pronunciamiento particular sobre esta norma en concreto. Ahora bien, al haberse dejado únicamente a los magistrados como una familia aparte, el resto de funcionarios que no sean de confianza, que correspondan a puestos administrativos de apoyo, profesional y técnico, quedarían dentro de la misma familia que el resto de funcionarios incluidos dentro del Estatuto de Servicio Civil. Ello resulta claramente inconstitucional, con vista en las razones siguiente: En primer lugar, se está dividiendo al personal del TSE pese a que todos coadyuvan al cumplimiento de la función electoral. Solo a los magistrados estarían dentro del grupo indicado en el inciso f), pero todo el resto de funcionarios, que también coadyuvan al ejercicio de esta función tan importante para la democracia costarricense, quedarían integrando otro grupo de familia de puestos. En segundo lugar, todos los funcionarios del TSE que coadyuvan a la función electoral, directamente o por apoyo, requieren contar con toda la independencia de criterio en sus actuaciones. Incluir una parte importante de estos funcionarios junto a otros, que pertenecen a los otros poderes de la República y a otras instituciones, es una situación que pone en riesgo esa independencia de criterio. Máxime si se toma en cuenta que, para ese grupo de familia de puestos será Mideplán (órgano del Poder Ejecutivo) quien emitiría los lineamientos para el proceso de reclutamiento, selección, evaluación, compensación, etc. Es decir, se trataría de casi la totalidad de funcionarios del TSE que estarían totalmente sometidos a las directrices de Mideplán, lo cual es violatorio de la independencia de Poderes, en los términos indicados supra. Claramente una disposición de tal naturaleza es contraria al Derecho de la Constitución. El TSE, como órgano con rango de Poder del Estado, debe gozar de plena independencia en el ejercicio de sus funciones, lo cual implica, independencia para el manejo de su personal. En este caso, con mucho mayor celo que el resto de personal del Servicio Civil, puesto que “la intención del constituyente al crear este Poder, fue cercenar por completo la posibilidad de que los funcionarios electorales, se inmiscuyeran en toda actividad política, con el fin de garantizar un Órgano Electoral independiente.” (sentencia n°2005-14298). Ello no sería posible si se incluye a todo el personal del TSE dentro del mismo grupo de familia de puestos que el resto de los funcionarios del Servicio Civil. Nótese que tales funcionarios del TSE tienen asignadas funciones tan importantes para la actividad electoral como: organizar, dirigir y fiscalizar todos los actos relativos con el proceso de elecciones nacionales; la regulación de las normas que rigen la deuda política, así como el control sobre esta materia; el control de las regulaciones estatutarias relativas al derecho de elegir y ser elegido en los procesos internos de los partidos políticos; la integración del Concejo Municipal; la declaratoria de la elección y las posteriores sustituciones por pérdidas de credenciales de los regidores y síndicos municipales; la tramitación del proceso contencioso electoral para conocer de la cancelación o anulación de credenciales de regidores municipales; el cierre de negocios comerciales en los que se expende licor y que se encuentran ubicados en el centro de la ciudad de San José a consecuencia de la realización de las plazas públicas que celebran los partidos políticos; la determinación de donde realizará la celebración solemne el día de las elecciones, para el conteo inicial de los resultados de las elecciones nacionales; entre muchas otras. Todo lo cual requiere de la garantía de independencia en el manejo de este personal, que no puede quedar unido a la misma familia de puestos que el resto de los servidores públicos del Servicio Civil. Debe tomarse en cuenta que, al pasar a formar parte del servicio civil, a los funcionarios del TSE se les aplicarían las mismas normas que se le aplican a los funcionarios del Poder Ejecutivo que integran el servicio civil, en cuenta los traslados o la movilidad (art.12), entre otros. Lo cual agrava la situación y atenta contra la máxima de mantener la función electoral como una función independiente, al margen de injerencias de los otros Poderes. Así, se constata que el artículo 13 inciso a) es inconstitucional, respecto del Tribunal Supremo de Elecciones, pues casi todos los funcionarios de ese órgano pasarían al Servicio Civil, con excepción de sus magistrados y los empleados que se desempeñen en cargos de confianza. Por ello, considera esta Sala que, el artículo 13 inciso a) es inconstitucional, respecto del TSE -pues fue el único órgano que se consultó sobre este inciso-, pues casi todos los funcionarios de ese órgano pasarían al Servicio Civil.

Sobre el inciso f) del artículo 13 (familias de puestos), respecto del Tribunal Supremo de Elecciones (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 13- Régimen general de empleo público Existirá un único régimen general de empleo público, el cual a su vez estará conformado por las siguientes ocho familias de puestos que serán de aplicación en los órganos y entes de la Administración Pública, según las funciones que ejecute su personal:

• a)Personas servidoras publicas bajo el ámbito de aplicación del título I y del título IV del Estatuto de Servicio Civil, así como a las que se desempeñan en las instituciones señaladas en el artículo 2 de la presente ley, que no estén incluidas en las restantes familias de puestos.
• b)Personas servidoras públicas que se desempeñan en funciones en ciencias de la salud.
• c)Personas servidoras públicas que se desempeñan en funciones policiales.
• d)Personas docentes contempladas en el Estatuto del Servicio Civil, del título II y el título IV.
• e)Personas docentes y académicas de la educación técnica y superior.
• f)Personas que administran justicia y los magistrados del Tribunal Supremo de Elecciones (TSE).
• g)Personas servidoras públicas que se desempeñan en funciones del servicio exterior.
• h)Personas servidoras públicas que se desempeñan en cargos de confianza.

La creación de familias de puestos de empleo público es reserva de ley y deberá estar justificada por criterios técnicos y jurídicos coherentes con una eficiente y eficaz gestión pública.

En todas las categorías descritas con anterioridad, la administración pública superior, por medio de las oficinas o los departamentos de salud ocupacional, deberá contar en cada entidad pública, según lo establece el artículo 300 del Código de Trabajo y su reglamento, con el diagnóstico de sus condiciones de trabajo, el programa de salud ocupacional y cuando existan condiciones de trabajo adversas a su salud deberán crearse los respectivos protocolos de seguridad para salvaguarda de su vida, que será validado a lo interno de esta y con el respectivo aval del Consejo de Salud Ocupacional, para lo cual se le brindará el recurso humano necesario. Dicha instancia dependerá administrativamente de manera directa del jerarca.

En el mismo sentido en que se indicó para el Poder Judicial, en cuanto al inciso f) del artículo 13 es inconstitucional porque no excluye a los funcionarios que realizan funciones para-jurisdiccionales -fiscales, defensores públicos y profesionales y personal especializado del Organismo de Investigación Judicial, etc.- y los funcionarios del nivel gerencial o de alta dirección política, al igual a que los funcionarios del Tribunal Supremo de Elecciones que ejercen función electoral -letrados, directores del Departamentos, profesionales, etc.-, y quienes ejercen cargos de alta dirección política. Además, no se excluye a todo el funcionario administrativo de apoyo, profesional y técnico, que los máximos órganos de los citados poderes del Estado definan, de forma exclusiva y excluyente, como indispensables o consustanciales para el ejercicio de sus competencias constitucionales. Máxime que, de conformidad con ese mismo artículo, inciso a), todos esos funcionarios quedarían incluidos en una categoría del Estatuto de Servicio Civil, lo que afecta la independencia tanto del Poder Judicial como del Tribunal Supremo de Elecciones partiendo del hecho de que el gobierno judicial y electoral lo ejerce la Corte Suprema de Justicia y el Tribunal Supremo de Elecciones de forma exclusiva y excluyente en lo que atañe a sus competencias constitucionales. Finalmente, hay que tener presente que la construcción de la familia, tal y como se explicó supra, corresponde, de forma exclusiva y excluyente, a cada poder del Estado.

Sobre el artículo 14.- Reclutamiento y selección respecto del Tribunal Supremo de Elecciones (Redacta la magistrada Picado Brenes) En igual sentido que respecto del Poder Judicial, los consultantes refieren que se lesiona el principio de independencia y la autonomía del Tribunal Supremo de Elecciones, al pretender someterlo también a las disposiciones que emite un órgano del Poder Ejecutivo, en lo relativo al reclutamiento y selección de su personal. El ordinal 14 en cuestión, dispone lo siguiente:

“ARTÍCULO 14- Reclutamiento y selección El reclutamiento y la selección de las personas servidoras públicas de nuevo ingreso se efectuará con base en su idoneidad comprobada, para lo cual el Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá, con absoluto apego a la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las disposiciones de alcance general, las directrices y los reglamentos, según la respectiva familia de puestos.

En los procesos de reclutamiento y selección no podrá elegirse a un postulante que se encuentre en alguna de las siguientes situaciones:

• a)Estar ligado por parentesco de consanguinidad o de afinidad en línea directa o colateral, hasta tercer grado inclusive, con la jefatura inmediata ni con las personas superiores inmediatas de esta en la respectiva dependencia.
• b)Encontrarse enlistada en el registro de personas inelegibles de la plataforma integrada de empleo público.” En igual sentido que se consultó respecto del Poder Judicial, los consultantes refieren que se lesiona el principio de independencia y la autonomía del TSE, al pretender someterlo también a las disposiciones que emite un órgano del Poder Ejecutivo, en lo relativo al reclutamiento y selección de su personal. Tal y como ya fue debidamente acreditado, conforme lo dispuesto en los ordinales 2 y 13 del mismo proyecto de ley, y según lo dispuesto en este artículo 14, el Tribunal Supremo de Elecciones también se vería sujeto a las disposiciones de alcance general, las directrices y los reglamentos que emita Mideplán en relación con el reclutamiento y la selección del personal de nuevo ingreso, lo cual deviene en inconstitucional. El artículo 9 de la Constitución expresa con claridad, que el TSE fue creado por los constituyentes con el rango e independencia de los Poderes del Estado, al cual se le asignó, en forma exclusiva e independiente, la organización, dirección y vigilancia de los actos relativos al sufragio, así como las demás funciones que le atribuyen la Constitución y las leyes, lo cual ha sido plenamente reconocido en la jurisprudencia de este Tribunal (véanse las sentencias n°1992-3194, 1998-495, 2000-6326, y 2012-9139, entre otras). En ese sentido, resulta igualmente inválida cualquier intromisión externa de otro poder en los aspectos propios del Tribunal Supremo de Elecciones, que lesione tal independencia. El Constituyente confirió a este órgano un grado de autonomía tal, para asegurar el debido ejercicio de su función electoral y de aquellas otras funciones administrativas esenciales que dan soporte e imparcialidad a su función principal. Bajo ese entendido, no es posible admitir que un órgano del Poder Ejecutivo, en este caso Mideplán, le imponga al Tribunal Supremo de Elecciones, disposiciones relativas a los procesos de reclutamiento y selección de su personal, materia que, tal y como se ha señalado, es consustancial al grado de autonomía e independencia de la que gozan estos órganos constitucionales. Al igual que en otros supuestos de este proyecto de ley, aun cuando el artículo 2 refiere que el ámbito de cobertura lo es “sin perjuicio del principio de separación de Poderes establecido en la Constitución Política”, el artículo 14 se aplicaría al Tribunal Supremo de Elecciones. En consecuencia, tal ordinal contiene un vicio de inconstitucionalidad, en tanto resulte aplicable al Tribunal Supremo de Elecciones.

Sobre el artículo 17.- Personal de Alta Dirección respecto del Tribunal Supremo de Elecciones (redacta la magistrada Picado Brenes) El artículo consultado establece lo siguiente:

“ARTÍCULO 17- Personal de la alta dirección pública El Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá las disposiciones de alcance general, las directrices, y los reglamentos, en materia del personal de la alta dirección pública, que sean acordes con la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, para dotar a la Administración Pública de perfiles con integridad y probada capacidad de gestión, innovación y liderazgo, para procurar el mejoramiento de la prestación de bienes y servicios públicos. (…)” Los consultantes señalan la lesión al principio de separación de funciones y a la independencia del TSE, por cuanto en esta norma se dispone que, tratándose de puestos de alta dirección será Mideplán quien emita las disposiciones de alcance general, directrices y reglamentos al respecto. En el mismo sentido en que esta Sala ha venido resolviendo estos aspectos, la injerencia de este Ministerio, que es un órgano del Poder Ejecutivo, emitiendo disposiciones de alcance general, directrices y reglamentos al TSE en materia de los puestos de alta dirección, resulta violatorio del principio de separación de poderes. Nótese que, estos son puestos estratégicos de gran importancia para su debida organización, tales como podrían ser la Dirección Ejecutiva, la Dirección General del Registro Civil, la Dirección General del Registro Electoral y Financiamiento de Partidos Políticos, entre otros. En atención a ello y a la imparcialidad que debe revestir este órgano constitucional, es al propio TSE a quien corresponde valorar las necesidades del servicio que presta y determinar las condiciones en que deben ser ocupados esos puestos, para dar cumplimiento a los fines constitucionales que le han sido asignados. Puestos que son de gran relevancia, que deben estar particularmente protegidos de la injerencia de otros Poderes de la República, y que requieren la estabilidad del personal necesaria para un adecuado e imparcial desempeño del cargo, lo cual es incompatible con una subordinación a las disposiciones que emita al respecto el Mideplán, como lo dispone la norma en cuestión. Siendo competente al respeto el mismo TSE, como esta Sala lo ha indicado antes:“… sea el Régimen del Empleo Público, es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones.” (sentencia n°03575-1996). Por ende, se considera existe un vicio de inconstitucionalidad en el artículo 17 objeto de consulta, en los términos expuestos.

Sobre el artículo 18.- Plazo de prueba y plazo de nombramiento del personal de Ata Dirección respecto del Tribunal Supremo de Elecciones (redacta la magistrada Picado Brenes) En criterio de los consultantes, el ordinal 18 consultado resulta inconstitucional, por cuanto incide en materia que es propia de la competencia del Tribunal Supremo de Elecciones, al establecer que, tratándose de puestos de alta dirección técnica, el nombramiento será por 6 años con un período de prueba de 6 meses, prorrogables anualmente, sujetas a la evaluación de desempeño. El artículo 18 consultado dispone lo siguiente:

“ARTÍCULO 18- Nombramiento y período de prueba de la alta dirección pública Toda persona servidora pública, que sea nombrada en puestos de alta dirección pública, estará a prueba durante el período de seis meses y su nombramiento se efectuará por un máximo de seis años, con posibilidad de prórroga anual, la cual estará sujeta a los resultados de la evaluación del desempeño. (…)” Sobre este particular, resulta de aplicación lo ya indicado en relación con el Poder Judicial, en el sentido de que la regulación de aspectos relativos al nombramiento y selección de personal, tal como también ocurre con los puestos de alta dirección técnica, el período de prueba, plazo o condiciones de prórroga de los nombramientos, son regulaciones propias y atinentes a la autonomía organizacional y administrativa del TSE. Se entiende que los puestos de alta dirección técnica, definidos por el propio TSE, son puestos estratégicos de gran importancia para su debida organización, tales como podrían ser la Dirección Ejecutiva, la Dirección General del Registro Civil, la Dirección General del Registro Electoral y Financiamiento de Partidos Políticos, entre otros. En atención a ello y a la imparcialidad que debe revestir este órgano constitucional, es a este a quien corresponde, el valorar las necesidades del servicio que presta y determinar las condiciones en que deben ser ocupados esos puestos, para dar cumplimiento a los fines constitucionales que le han sido asignados, en respeto de la independencia reconocida, siempre y cuando atienda al principio de idoneidad. En su caso, por ejemplo, la conveniencia del período de nombramiento de esos puestos o las condiciones de prórroga podrían estar sujetas o no a períodos electorales, o atender una condición de mayor estabilidad en el puesto como la garantizada en el ordinal 192 constitucional. Todo de acuerdo a su normativa interna, y no, a una normativa genérica como la que se pretende en este proyecto de ley. La definición de tales condiciones es competencia exclusiva a este órgano constitucional especializado. De modo que, en los términos en que está dispuesto el artículo 18 consultado, contiene un vicio de inconstitucionalidad, por violentar el principio de independencia del TSE, a quien le corresponde de manera exclusiva la definición de las condiciones en que se deben desempeñar sus puestos de alta dirección.

Sobre el artículo 21 (régimen único de despido) y el artículo 22 (proceso de despido) respecto del Tribunal Supremo de Elecciones (redacta la magistrada Picado Brenes) Los artículos consultados establecen lo siguiente:

“ARTÍCULO 21- Procedimiento de despido Será causal de despido inmediato, aplicable a toda persona servidora pública, obtener dos evaluaciones del desempeño consecutivas inferiores a una calificación del setenta por ciento (70%), que se encuentren en firme, una vez agotado el procedimiento de impugnación de la calificación y siempre que se haya acreditado la responsabilidad de la persona servidora pública por dicha evaluación deficiente. Dicha calificación deberá ser debidamente justificada por la jefatura inmediata que la asigne y por la autoridad jerárquica que la confirme, en caso de haber sido recurrida.

Las entidades y los órganos incluidos deberán aplicar planes remediales pactados con la persona servidora pública, y con el asesoramiento de recursos humanos que les permitan determinar las causas por las que las personas servidoras públicas obtienen una calificación inferior al setenta por ciento (70%) y aplicar acciones para mejorar su desempeño. Si pese a la aplicación del plan remedial, la persona servidora pública no logra mejorar su desempeño y obtiene de forma consecutiva otra calificación inferior al setenta por ciento (70%), se configurará la causal de despido inmediato.

Las entidades y los órganos incluidos deberán aplicar planes remediales que les permitan determinar las causas por las que las personas servidoras públicas obtienen una calificación inferior al setenta por ciento (70%) y aplicar acciones para mejorar su desempeño. Si pese a la aplicación del plan remedial, la persona servidora pública no logra mejorar su desempeño y obtiene de forma consecutiva otra calificación inferior al setenta por ciento (70%), se configurará la causal de despido inmediato.

Todo despido justificado se entenderá sin responsabilidad para la Administración Pública y hará perder a la persona servidora pública todos los derechos que esta ley y la normativa aplicable en cada familia de puestos le concede, excepto las proporciones de los extremos laborales que correspondan y los adquiridos conforme a los regímenes de pensiones vigentes, siempre que se realice con observancia de las siguientes reglas:

• a)En todas las dependencias bajo el ámbito de aplicación de esta ley se aplicará un único procedimiento administrativo especial de despido, que garantice la satisfacción del debido proceso y sus principios, el cual deberá ser concluido por acto final en el plazo de dos meses, a partir de su iniciación. La investigación preliminar, en los casos en que se requiera, no dará inicio al procedimiento indicado en el párrafo anterior; no obstante, esta deberá iniciar, bajo pena de prescripción, a más tardar en el plazo de un mes a partir de que el jerarca o la jerarca tenga conocimiento, sea de oficio o por denuncia, de la posible comisión de una falta de uno de sus servidores. El mismo plazo de un mes de prescripción se aplicará si, iniciada la mencionada investigación preliminar, esta permanece paralizada por culpa de la Administración.

Para efectos del plazo de dos meses señalado en el primer párrafo de este inciso, el procedimiento ordinario de despido dará inicio a partir de que el jerarca institucional adopte la decisión de iniciar dicho procedimiento con el nombramiento del órgano director del proceso.

• b)Recibida, por parte del jerarca institucional, queja o denuncia o informado de presunta falta que, en su criterio, amerite el inicio de un procedimiento de despido, este nombrará un órgano director del proceso, el cual formulará por escrito los cargos y dará traslado a la persona servidora pública por un término de quince días, para evacuar toda la prueba ofrecida en una audiencia oral y privada, que notificará personalmente por el correo electrónico institucional del funcionario, correo certificado o por medio de publicación por una única vez en el diario oficial La Gaceta, cuando se demuestre que no existe forma de localizar al presunto infractor. Dentro del plazo indicado, la persona servidora pública deberá presentar, por escrito, sus descargos y podrá ofrecer toda la prueba que considere oportuna para respaldar su defensa, sea documental, testimonial o de cualquier otra índole en abono de estos, así como las excepciones o incidentes que considere oportunos.
• c)Si vencido el plazo que determina el inciso anterior, el servidor no hubiera presentado oposición o si expresamente hubiera manifestado su conformidad con los cargos que se le atribuyen, el jerarca institucional dictará la resolución de despido sin más trámite, salvo que pruebe no haber sido notificado por el órgano director del proceso o haber estado impedido por justa causa para oponerse.
• d)Si el cargo o los cargos que se hacen al empleado o empleada o persona servidora pública implica su responsabilidad penal o cuando sea necesario para el buen éxito del procedimiento administrativo disciplinario de despido o para salvaguardia del decoro de la Administración Pública, el jerarca institucional podrá decretar, en resolución motivada, la suspensión provisional de la persona servidora pública en el ejercicio del cargo. Si se incoara proceso penal en contra de la persona servidora pública, dicha suspensión podrá decretarse en cualquier momento como consecuencia de auto de detención o de prisión preventiva, o sentencia en firme con pena privativa de libertad.
• e)Si el interesado se opusiera dentro del término legal, el órgano director del proceso resolverá las excepciones previas que se hayan presentado y convocará a una comparecencia oral y privada, ante la Administración, en la cual se admitirá y recibirá toda la prueba y alegatos de las partes que sean pertinentes. Asimismo, podrán realizarse antes de la comparecencia las inspecciones oculares y periciales. Se podrá convocar a una segunda comparecencia únicamente cuando haya sido imposible en la primera dejar listo el expediente para su decisión final, y las diligencias pendientes así lo requieran.
• f)Si la persona servidora pública incurriera en nueva causal de despido durante el período de instrucción, se acumularán los cargos en el expediente en trámite y se procederá conforme a lo establecido en este capítulo.
• g)Evacuadas las pruebas, resueltas las excepciones previas presentadas dentro del plazo de los diez días otorgados para oponerse al traslado de cargos y presentadas las conclusiones por las partes o vencido el plazo para ello, se tendrá el expediente debidamente instruido y se elevará el informe respectivo al jerarca institucional para que dicte resolución definitiva.
• h)El jerarca o la jerarca institucional resolverá el despido de la persona servidora pública o declarará la falta de mérito y ordenará el archivo del expediente en este último supuesto. No obstante, en caso de considerar que la falta existe pero que la gravedad de esta no amerita el despido, ordenará una amonestación oral, una advertencia escrita o una suspensión sin goce de salario hasta por un mes, según la gravedad de la falta.
• i)Contra la resolución que ordene la amonestación oral, la advertencia escrita o la suspensión sin goce de salario, hasta por un mes, podrán interponerse los recursos ordinarios de revocatoria con apelación en subsidio, cuando este último resulte procedente, en un plazo de cinco días, contado a partir del día siguiente en que sea notificada dicha resolución. Ambos recursos podrán interponerse en forma conjunta o separada ante el órgano que emite la resolución, quien resolverá el recurso de revocatoria.

En el caso de las personas servidoras públicas que laboran en una institución cubierta por la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953, el recurso de apelación será resuelto por el Tribunal de Servicio Civil. El jerarca o la jerarca remitirá en alzada, al Tribunal de Servicio Civil, el expediente del procedimiento administrativo correspondiente donde conste la resolución de sanción así como la resolución del recurso de revocatoria, con expresión de las razones legales y de los hechos en que se fundamentan ambas resoluciones.

• j)Los casos no previstos en el presente procedimiento, en cuanto no contraríen el texto y los principios procesales que contiene este procedimiento, se resolverán aplicando supletoriamente, según el siguiente orden: la Ley 6227, Ley General de la Administración Pública, las normas del derecho público, los principios generales del derecho público, el Código de Trabajo, el Código Procesal Civil, los principios y las leyes del derecho común, la equidad, las costumbres y los usos locales.

Las instituciones de educación superior universitaria estatal emitirán normativa interna que regule esta materia, de conformidad con los artículos 84, 85 y 87 y el principio de debido proceso contenidos en la Constitución Política; en caso de que no exista normativa institucional al respecto aplicará, supletoriamente, la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las normas de derecho público, los principios generales del derecho público, el Código de Trabajo y el Código Procesal Civil.

ARTÍCULO 22- Fase recursiva Contra la resolución de despido emitida por el jerarca o la jerarca se tendrá un plazo improrrogable de cinco días hábiles, contado a partir de la notificación de la resolución para interponer el recurso de revocatoria y/o el recurso de apelación en subsidio, cuando este último resulte procedente, los cuales se resolverán con arreglo a las siguientes disposiciones:

• a)Si vencido el plazo de cinco días indicados anteriormente no se recurriera la resolución, esta quedará en firme y dará por agotada la vía administrativa.
• b)Si solo se interpuso recurso de revocatoria, lo resuelto por el jerarca o la jerarca será definitivo, la resolución quedará en firme y dará por agotada la vía administrativa.
• c)Si se interponen ambos recursos ordinarios a la vez, se tramitará la apelación, una vez declarada sin lugar la revocatoria.
• d)En el caso de las personas servidoras públicas que laboran en una institución cubierta por la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953, el recurso de apelación se concederá en ambos efectos ante el Tribunal de Servicio Civil. El jerarca o la jerarca remitirá en alzada, al Tribunal de Servicio Civil, el expediente del procedimiento administrativo de despido, donde conste la resolución de despido de la persona servidora pública, así como la resolución del recurso de revocatoria, con expresión de las razones legales y de los hechos en que se fundamentan ambas resoluciones.

Si únicamente se interpuso el recurso de apelación, el jerarca o la jerarca remitirá en alzada, al Tribunal de Servicio Civil, el expediente del procedimiento administrativo de despido donde conste la resolución de despido de la persona servidora pública, con expresión de las razones legales y de los hechos en que se fundamenta dicha resolución.

La resolución que adopte el Tribunal del Servicio Civil en alzada será definitiva, la resolución quedará en firme y agotará la vía administrativa. Dicho fallo es vinculante para el jerarca o la jerarca institucional.

Autorizado el despido por resolución firme, el jerarca o la jerarca institucional tendrá un plazo de caducidad de un mes, contado a partir de la notificación de dicha resolución, para hacerlo efectivo. Para la ejecución del despido por parte del jerarca o la jerarca no se requiere acuerdo adicional, basta la comunicación del cese de su condición de funcionaria a la persona servidora, con base en la resolución firme dictada.

Si el Tribunal de Servicio Civil revocara la sentencia dictada por el jerarca o la jerarca institucional, dictará en el mismo acto nuevo fallo y resolverá si procede la restitución del empleado en su puesto, con pleno goce de sus derechos y el pago en su favor de los salarios caídos.

En caso de que el Tribunal de Servicio Civil considere que la falta existe pero que la gravedad de esta no amerita el despido, podrá ordenar una amonestación oral, una advertencia escrita o una suspensión sin goce de salario hasta por un mes.

Las instituciones de educación superior universitaria estatal emitirán normativa interna que regule esta materia, de conformidad con los artículos 84, 85 y 87 y el principio de debido proceso contenidos en la Constitución Política; en caso de que no exista normativa institucional al respecto, aplicará supletoriamente la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las normas de derecho público, los principios generales del derecho público, el Código de Trabajo y el Código Procesal Civil.” Los diputados consultan sobre los artículos 21 y 22 del proyecto, referido al régimen disciplinario y sancionatorio aplicable al Poder Judicial y al TSE. Indican que el art.21 establece una nueva causal de despido inmediato cuando el servidor público obtenga dos evaluaciones de desempeño consecutivas inferiores a 70%. Agregan que, las nuevas causales establecidas obedecen más a asuntos administrativos, por lo que se pretende sujetar a criterios ajenos a su quehacer a un incumplimiento netamente administrativo que podrá acarrear su destitución, provoca una injerencia odiosa y peligrosa para nuestro Estado Social de Derecho. Consideran que la nueva causal de despido inmediato consistente en obtener dos calificaciones de desempeño consecutivas inferiores a 70% contenida en el artículo 21, así como las dos nuevas causales graves creadas mediante la reforma al artículo 48 de la Ley de Salarios de la Administración Pública, que se reforma en el artículo 49:A) del proyecto de ley, violentan los principios constitucionales de legalidad, seguridad jurídica, razonabilidad, proporcionalidad, separación de poderes,. Luego, sobre el único procedimiento de despido, indican que, el proyecto de Ley Marco de Empleo Público establece que será aplicable a todas las personas servidoras públicas bajo el ámbito de aplicación de esta propuesta de ley, un único procedimiento especial de despido (artículo 21). Respecto al régimen recursivo, se le da la potestad al Tribunal de Servicio Civil de resolver todos los recursos de apelación que interpongan contra resoluciones que determinen cualquier tipo de sanción disciplinaria (artículo 21:i) y artículo 22). En relación con el único procedimiento que se crea en los artículos 21 a partir del inciso a) y el 22 del proyecto de ley objeto de esta consulta, consideramos que también violenta la independencia.

Al respecto, esta Sala considera que:

-La creación de una nueva causal de despido, por no pasar la evaluación del desempeño en dos ocasiones consecutivas (según el primer párrafo del art.21 del proyecto), no es inconstitucional en tanto la aplique el Poder Judicial y el Tribunal Supremo de Elecciones de acuerdo con su normativa interna. El establecimiento de esta causal nueva para el despido justificado, no violenta el Derecho de la Constitución, máxime si se entiende que esta nueva causal se aplicaría según las disposiciones internas del TSE, donde Mideplán no tendría ninguna injerencia.

-Sí resultan inconstitucionales los artículos 21 y 22 del proyecto consultado, respecto de su aplicación al TSE -y al Poder Judicial según se dijo supra-, por cuanto, el ejercicio de la potestad disciplinaria de los servidores del TSE es parte esencial de la independencia electoral. Así entonces, todo lo que en esas normas se establece en cuanto a procedimiento y fase recursiva no podrían aplicarse al TSE, el cual ya goza de normativa interna que dispone el ejercicio de la potestad disciplinaria. La adopción de medidas disciplinarias, la suspensión o la separación del cargo se deberá resolver de acuerdo con las normas internas para el resguardo de la función electoral. Así entonces, en consonancia con el principio de independencia de poderes, la entidad con competencia disciplinaria será, en este caso, exclusivamente el propio TSE.

• 4)Conclusión -Sobre los artículos 12 (base de datos), 13.h (familia en puestos de confianza), 15 (postulados de reclutamiento y selección), 19 (movilidad o traslados), y 31 (metodología de trabajo), dado que no se realiza la fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, se declara inevacuable la consulta por falta de fundamentación.

-En los términos indicados y conforme a la jurisprudencia de esta Sala, resultan inconstitucionales del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, los artículos siguientes.

Analizados todos los aspectos consultados en cuanto al artículo 2 (inciso a), 6 (inciso b), 7 (incisos d, g y p), 9 (segundo párrafo del inciso a), 13 (inciso a y f), 14, 17, 18, 21 y 22, del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación al principio de separación de funciones. La independencia de poderes es esencial en un Estado Constitucional de Derecho. Conforme a tal principio, cada poder es independiente del otro, cada órgano del Estado debe poder ejercer su función con independencia de los otros (art.9° Constitucional). Puede haber interrelación entre ellos, pero nunca subordinación. Además, no solo se trata de una vulneración a los principios de separación de funciones, sino a todo el sistema democrático y de organización del Poder que el Constituyente ha creado en nuestro Estado de Derecho. En el caso específico del TSE, es posible replicar -en lo atinente- las mismas conclusiones ya emitidas respecto del Poder Judicial. Si bien respecto del TSE también aplican lo principios fundamentales del régimen de empleo público, lo cierto es que, para proteger su independencia, debe seguir contando con su propio marco normativo, que regula de forma específica, particular y diferenciada las relaciones de empleo con sus servidores y la evaluación de su desempeño. Lo anterior, a fin de garantizar debidamente la independencia de dicho órgano, para el debido ejercicio de su función electoral y de aquellas otras funciones administrativas esenciales que dan soporte a su función primaria. De allí que resulte inconstitucional admitir que el Poder Ejecutivo, por medio de Mideplán tenga competencias de rectoría respecto de los funcionarios del TSE. Pese a que, al igual que ocurre en el caso del Poder Judicial, en el citado artículo 2, se afirma que la ley se aplicaría al TSE “sin perjuicio del principio de separación de Poderes establecido en la Constitución Política” -imperativo impuesto, de por sí, por la propia Constitución-. Es lo cierto es que la lectura integral del proyecto permite concluir que no se garantiza debidamente tal principio, no sólo por la sujeción a Mideplán, sino por la imposición de ciertas materias que son de competencia exclusiva y excluyente del TSE. Las normas del proyecto no evidencian, ni aseguran, la existencia ni la debida operatividad de una efectiva relación de cooperación/coordinación entre el Poder Ejecutivo y el TSE y, muy por el contrario, lo que se pone de manifiesto es que el objetivo general del proyecto consultado es sujetar al TSE a la rectoría del Mideplán y a los criterios técnicos de la Dirección General de Servicio Civil. De hecho, se otorga a Mideplán amplias competencias para emitir “disposiciones generales, directrices y reglamentos”, para desarrollar y regular los distintos aspectos abarcados -en términos genéricos- en el proyecto de ley. Finalmente, se advierte del expediente legislativo que el Tribunal Supremo de Elecciones emitió un criterio desfavorable al proyecto en la consulta que le hiciera la Asamblea Legislativa, cuando indicó lo siguiente, mediante oficio TSE-1226-2021 del 03 de junio del 2021:

“se advierte la existencia de una serie de aspectos que comprometerían las competencias legal y constitucionalmente encargadas a este Tribunal. (…) En nuestro criterio, disponer la inclusión del funcionariado funcionariado electoral en un subrégimen de personas servidoras públicas en general y con ello la subordinación del Tribunal a un órgano del Poder Ejecutivo que ejercería la rectoría en materia de empleo público y sus diversos aspectos, lesionaría gravemente el diseño ideado por el Constituyente y la independencia propia que con rango de Poder del Estado le otorgó a este Tribunal en el artículo 9 constitucional, con el fin de evitar cualquier influencia del Ejecutivo en la conducción de los procesos electorales. (…) Conclusión. Con base en lo expuesto, al estimar que la iniciativa en los términos actualmente propuestos quebrantaría el principio de separación de poderes y supondría un menoscabo a la independencia constitucionalmente otorgada a los organismos electorales, este Tribunal objeta el proyecto consultado, en los términos y con las consecuencias señaladas en el artículo 97 constitucional; quebranto constitucional que solo podría superarse introduciendo los cambios sugeridos en este acuerdo. ACUERDO FIRME”.”..." " XI.- Sobre la consulta de violación a la Autonomía Universitaria.- 1) Aspectos consultados Los consultantes diputados consideran que los siguientes artículos del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, son violatorios de la autonomía universitaria. En concreto, consultan sobre los artículos siguientes, indicados, sea en el encabezado del título general o en el resto del texto del escrito de interposición:

6 (rectoría de Mideplan), 7 (competencias de Mideplan), 9.a (oficinas de Recursos Humanos), 11 (planificación del empleo), 13 (familias de puestos), 14 (reclutamiento y selección), 15 y 16 (postulados de reclutamiento y selección y oferta de empleo), 17 (personal de Alta Dirección), 30 (postulados gestión de compensación) 31 (valoración de trabajo) 32 (grados dentro de las familias laborales) 33 (clasificación de puestos de trabajo) 34 (columna salarial global) 35 (régimen salarial unificado) 36 (política de remuneración) 37.f) (salario global de rectores) Al respecto, lo primero que se debe indicar es que, sobre los artículos 11 (planificación del empleo), 15 (postulados de reclutamiento y selección), 16 (oferta de empleo), los consultantes no realizan una fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, razón por la cual se declara inevacuable la consulta en relación a dichos artículos. Al realizar una lectura detallada de este argumento efectuado por los consultantes, se llega a la conclusión de que no se trata de un cuestionamiento de constitucionalidad que se le esté planteando a la Sala, sino más bien de una especie de queja que no cuenta con la debida fundamentación sobre los motivos por los cuales los diputados estiman que podría contener algún roce con el Derecho de la Constitución. Obsérvese que se trata de un simple enunciado en el que se indica que tales artículos del proyecto podrían contraponerse a la autonomía universitaria, sin que se indiquen los motivos o razones por las cuales ello podría ser cierto o no, sin hacer mención de los eventuales principios o normas constitucionales lesionados. Es decir, no contiene un razonamiento claro de los argumentos que, en criterio de los consultantes, harían que la norma sea inconstitucional. En consecuencia, no se cumple el requisito establecido en el artículo 99 de la Ley de la Jurisdicción Constitucional según el cual, la consulta debe formularse en memorial razonado, con expresión de los aspectos cuestionados en el proyecto y de los motivos por los cuales hay dudas u objeciones de constitucionalidad. Así las cosas, se declara inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n°21.336, en cuanto a los artículos 11 (planificación del empleo), 15 (postulados de reclutamiento y selección), 16 (oferta de empleo), por falta de una adecuada fundamentación desde el punto de vista constitucional.

Ahora bien, respecto del resto de artículos consultados, los diputados consultantes los consideran inconstitucionales por cuanto violan el principio de autonomía universitaria contenida en los artículos 84, 85 y 87 de la Constitución Política. Consideran que se viola la autonomía universitaria al someter al régimen de empleo a las personas docentes e investigadoras de las instituciones de educación superior, a planes de desarrollo, regímenes salariales, evaluaciones de desempeño, directrices, órdenes, instrucciones y circulares dictados por Mideplán y en algunos casos por la Dirección General de Servicio Civil y la Autoridad Presupuestaria. Con el establecimiento de Mideplán como órgano rector (art.6) y sus competencias (art.7), tal Ministerio no se limitará solo a diseñar los lineamientos generales de la política de empleo público sino que dará órdenes específicas para organizar su gestión de empleo, definiendo los criterios a utilizar en las pruebas de conocimiento, competencias y psicométricas para la selección de personal y la forma precisa en que deben efectuarse los concursos internos y externos, cómo debe cada entidad realizar sus procesos de evaluación, diseñar la política salarial interna y de control, lo que excede las potestades de dirección y coordinación. Se obliga a que las oficinas de recursos humanos de universidades ajusten las pruebas de conocimiento, competencias y psicométricas, los concursos internos y externos por oposición y méritos a las reglas de la Dirección General de Servicio Civil. Las universidades deberán nombrar a las personas docentes acatando las órdenes que sobre la materia establezca la Dirección General de Servicio Civil. El proyecto no incorpora la posibilidad de diferencias salariales por razones de mérito que incluyan conocimientos, experiencia y producción de conocimiento como fundamentación para esas diferencias, esenciales para las Universidades. Alegan que el proyecto resulta irrazonable y desproporcionado pues no hay estudios que demuestren el supuesto ahorro generado en las finanzas públicas, como consecuencia de la inclusión de las universidades en el proyecto, pues su presupuesto no se relaciona con el sostenimiento de las finanzas públicas de la Administración Central. Resulta imposible no visualizar la magnitud del poder que otorga dicho proyecto al Poder Ejecutivo, para que proceda regular, fiscalizar e incidir en las relaciones laborales de las universidades, lo que significa un sometimiento del pensamiento crítico a la clase política.

Seguidamente se procede al análisis por separado de cada uno de los artículos cuestionados. De previo se realiza un resumen jurisprudencial sobre el tema de autonomía universitaria, el cual servirá de contexto para el examen de cada artículo consultado.

• 2)Antecedentes Jurisprudenciales sobre la Autonomía Universitaria Conforme al artículo 84 Constitucional (“ARTÍCULO 84.- La Universidad de Costa Rica es una institución de cultura superior que goza de independencia para el desempeño de sus funciones y de plena capacidad jurídica para adquirir derechos y contraer obligaciones, así como para darse su organización y gobierno propios. Las demás instituciones de educación superior universitaria del Estado tendrán la misma independencia funcional e igual capacidad jurídica que la Universidad de Costa Rica. // El Estado las dotará de patrimonio propio y colaborará en su financiación.) las universidades públicas o universidades estatales gozan de un grado especial de autonomía, que se puede denominar autonomía universitaria. Conforme a la jurisprudencia constitucional tal autonomía abarca tanto la autonomía administrativa, política, financiera y organizativa. Por lo tanto, las universidades públicas cuentan con todas las facultades y poderes administrativos para llevar a cabo su misión. Así pueden autodeterminarse, en el sentido de que están facultadas para establecer sus planes, programas, presupuestos, organización interna y estructurar su propio gobierno, todo dentro de los límites establecidos por la propia Constitución Política y las leyes especiales que reglamentan su organización y funcionamiento (ver voto n°2012-011473). La Constitución Política dispone que las universidades gozan de independencia para el desempeño de sus funciones y de plena capacidad jurídica para adquirir derechos y contraer obligaciones, así como para darse su organización y gobierno propios. La línea jurisprudencial de la Sala ha sido clara en establecer que las universidades públicas tienen el grado más alto de autonomía, que es autonomía autoorganizativa o autonomía plena. Esa autonomía, que ha sido clasificada como especial, es completa y por esto, distinta de la del resto de los entes descentralizados de nuestro ordenamiento jurídico (regulados principalmente en otra parte de la Carta Política: artículos 188 y 190), y significa que aquéllas están fuera de la dirección del Poder Ejecutivo y de su jerarquía, que cuentan con todas las facultades y poderes administrativos necesarios para llevar adelante el fin especial que legítimamente se les ha encomendado. Pueden autodeterminarse, en el sentido de que están posibilitadas para establecer sus propios planes, programas, presupuestos, organización interna y estructurar su gobierno. Además, que las universidades públicas tienen poder reglamentario (autónomo y de ejecución); pueden auto estructurarse, repartir sus competencias dentro del ámbito interno del ente, desconcentrarse en lo jurídicamente posible y lícito, regular el servicio que prestan, y decidir libremente sobre su personal. Todas estas son potestades de las modalidades administrativa, política, organizativa y financiera de la autonomía que corresponde a las universidades públicas. La autonomía universitaria tiene como principal finalidad, procurar al ente todas las condiciones jurídicas necesarias para que lleve a cabo con independencia su misión de cultura y educación superiores. (ver sentencia n°1992-495, n°1993-1313, n°2002-8867 y n°2008-013091). Así se desprende de las palabras del Constituyente Fernando Baudrit cuando dijo:

“Lo que perseguimos es evitarle a la Universidad la amenaza de futuros Congresos movidos por intereses politiqueros ... Mañana, si la Universidad no se adapta al ambiente político imperante, un Congreso, con el propósito de liquidarla, lo podrá conseguir fácilmente rebajando el subsidio del Estado. Ya dije que si no estuviéramos viviendo el régimen actual, la Universidad habría desaparecido, o bien se hubiera convertido en una dócil dependencia del Poder Ejecutivo. Ya se tramaba, en este mismo recinto, y por el último Congreso en ese sentido. Hasta se barajaban los nombres de las personas que nos iban a sustituir, en la dirección de la Universidad. ¿Quién nos asegura que en el futuro no podría presentarse una situación parecida? Precisamente para evitar que esto pueda llegar a presentarse. Es necesario, indispensable, dotar a la Universidad de Costa Rica de una auténtica independencia administrativa, docente y económica.” (Acta 160, 4/X/1949, tomo III, p.395.)”.

Ello está íntimamente relacionado con la libertad de cátedra de las universidades y de ser, las universidades, crisoles (escenario de la fusión de muy diversas ideas) de la creación de pensamiento, crítica y construcción del conocimiento. Función básica en toda sociedad democrática. Así que, la autonomía de las universidades públicas las protege frente al Poder Ejecutivo y al resto de la Administración Pública; pero también frente a la ley, para impedir que el legislador delegue en autoridades administrativas potestades capaces de imponer a las universidades decisiones sobre el ámbito de sus competencias, como lo sería la regulación de los cursos, acción social, investigación, examen de ingreso, conferir grados académicos universitarios, entre otros, tal como reiteradamente lo ha dicho esta Sala en las sentencias n°1993-1313 y n°1996-276).

La autonomía universitaria es necesaria para que la institución cumpla con sus objetivos, los que correrían el riesgo de ser obstaculizados si se permite la intromisión del Poder Ejecutivo y del Legislativo. Esta Sala ha advertido que las universidades públicas no son simples instituciones de enseñanza sino que tienen fines más elevados, comprometidos con el desarrollo del país en general y de los costarricenses en particular. Concretamente señaló:(…) La autonomía universitaria tiene como principal finalidad procurar al ente todas las condiciones jurídicas necesarias para que lleve a cabo con independencia su misión de cultura y educación superiores. En ese sentido la Universidad no es una simple institución de enseñanza (…), pues a ella corresponde la función compleja, integrante de su naturaleza, de realizar y profundizar la investigación científica, cultivar las artes y las letras en su máxima expresión, analizar y criticar, con objetividad, conocimiento y racionalidad elevados, la realidad social, cultural, política y económica de su pueblo y el mundo, proponer soluciones a los grandes problemas y por ello en el caso de los países subdesarrollados o poco desarrollados como el nuestro, servir de impulsora a ideas y acciones para alcanzar el desarrollo en todos los niveles (espiritual, científico y material), contribuyendo con esa labor a la realización efectiva de los valores fundamentales de la identidad costarricense, que pueden resumirse … en los de la democracia, el Estado Social de Derecho, la dignidad esencial del ser humano y el ‘sistema de libertad’, además de la paz (artículo 12 de la Constitución Política) y la Justicia (41 ídem); en síntesis …que la Universidad, como centro de pensamiento libre, debe y tiene que estar exenta de presiones o medidas de cualquier naturaleza que tiendan a impedirle cumplir, o atenten contra ese su gran cometido (…)” (sentencia n°2008-013091) La Sala Constitucional al analizar el tema de la autonomía universitaria ha ahondado en aspectos muy específicos que inciden en la materialización de dicha autonomía, tal como lo es lo relacionado con el salario de los funcionarios universitarios. Es así como en la sentencia n° 2015-10248 aborda el tema del salario en los siguientes términos: “…la autonomía universitaria que les asiste a los centros de educación superior públicos (dispuesta con rango constitucional), alcanza para que estos –por medio de sus más altos órganos jerárquicos- establezcan la modalidad en que resolverán el régimen remunerativo de sus servidores “…siempre atendiendo a principios constitucionales elementales que rigen todo el aparato público, como la razonabilidad y proporcionalidad, así como el adecuado resguardo de las finanzas públicas (…).” Sin embargo, en el ejercicio de su autonomía, la UNED tiene la posibilidad de reconocer de manera diferenciada el pago de anualidades de las personas que vienen de laborar fuera de esa institución, toda vez que la especificidad de la dinámica universitaria y su administración, justifica una valoración diversa entre la anualidad proveniente de otra dependencia pública y la de aquella desarrollada propiamente dentro de la universidad. Así, resulta razonable que al tiempo servido dentro de la estructura organizativa de la UNED se le reconozca un mayor plus salarial mayor que a aquel laborado en otras dependencias públicas”.

Ahora bien, en cuanto a las limitaciones de esta autonomía, se pueden citar en primero lugar, las sentencias n°2016-02419 y n°2016-18087 en las que la Sala procedió a abordar la cuestión de los principios constitucionales del empleo público y se hace un juicio de ponderación entre dos principios constitucionales: el de la autonomía universitaria (artículo 84, párrafo 1°, de la Constitución) y el principio del sistema de méritos para acceder a la función pública mediante la idoneidad comprobada, (artículo 192 de la Constitución). La Sala se decantó por este último y manifestó que, pese a la autonomía las universidades públicas están sujetas a los principios, valores, preceptos y jurisprudencia constitucionales que los interpretan:

“La autonomía plena o del tercer grado reconocida a las universidades públicas en el ordinal 84, párrafo 1°, de la Constitución tiene, también, límites infranqueables, de modo que no puede entenderse, bajo ningún concepto, como un concepto jurídico indeterminado que habilite de manera indeterminada y abierta a los centros de enseñanza superior universitaria. La autonomía es una noción del Derecho Administrativo constitucional que, obviamente, debe entenderse dentro de las coordenadas del Estado Constitucional de Derecho. Ciertamente, como lo ha afirmado reiteradamente este Tribunal tal autonomía universitaria les habilita para dictar sus propias normas jurídicas fundamentales de organización. Empero, no puede extralimitarse tal potestad, puesto que, sin duda alguna, se encuentra limitada por el propio Derecho de la Constitución, esto es, los valores, principios, preceptos y jurisprudencia constitucionales. Las universidades ciertamente gozan de autonomía, pero no de soberanía, la soberanía, únicamente, la tiene el propio Estado. No puede entenderse, so pena de fragmentar la soberanía, que las universidades se pueden constituir en especie de micro-estados dentro del propio Estado costarricense. No cabe la menor duda que las universidades públicas al ejercer su autonomía, también, están sujetas a los principios, valores, preceptos y jurisprudencia constitucionales que los interpretan. Las universidades no pueden abstraerse del Derecho de la Constitución o del orden constitucional. Dentro de los límites infranqueables de la autonomía universitaria destacan, obviamente, los derechos fundamentales y humanos que son de aplicación directa e inmediata y que, desde luego, vinculan a todos los poderes públicos, incluidas, desde luego las universidades. Los derechos fundamentales y humanos que dimanan de la dignidad de la persona son la base del entero ordenamiento jurídico, por consiguiente cualquier regulación, incluso la emitida en el ejercicio de la autonomía plena o universitaria debe respetarlos y procurar su goce efectivo. (…) “En la doctrina del neo constitucionalismo, grandes juristas (Ronald Dworkin, Robert Alexy, Martin Borowsky, etc.) han recomendado para resolver los casos difíciles (hard cases) donde concurren principios en sentido contrario, la aplicación del denominado “juicio de ponderación”. El juicio de ponderación exige, mediante la utilización de los principios de razonabilidad y de proporcionalidad en sentido amplio, determinar cuál de los principios tienen mayor peso, consistencia, valor para concederle preferencia, sin que suponga la derogación del principio que es desplazado y que permanece vigente. En efecto, hay casos que no se pueden resolver mediante la aplicación de la clásica subsunción, por cuanto, no existe una regla de derecho claramente aplicable al mismo. En el presente asunto es evidente que se pueden entender que entran en confrontación o colisión (en sentido contrario) dos principios constitucionales, a saber: a) la autonomía universitaria reconocida en el artículo 84, párrafo 1°, de la Constitución y b) el principio del sistema de méritos para acceder a la función pública mediante la idoneidad comprobada contemplado en el artículo 192 de la Constitución. Consecuentemente, al actuar en sentido contrario sendos principios se impone un juicio de ponderación para determinar cuál tiene, en el caso concreto a resolver, mayor peso, consistencia y, por ende, preferencia. En nuestro criterio el principio del sistema de méritos para acceder a la función pública tiene un mayor peso al encontrarse conexo con otros valores, principios o si se quiere bienes constitucionales que determinan que se incline la balanza a su favor”.

A partir de allí se reforzó la idea de que las universidades estatales gozan de autonomía plena, pero no de soberanía, la cual reside únicamente en el Estado, y por tanto, debe entenderse que la normativa universitaria debe sujetarse a los valores y principios constitucionales. En ese sentido se han acogido algunas acciones de inconstitucionalidad en contra de normativa que puede resultar irrazonable o desproporcionada (ver voto n°2007-0055) o por la primacía de derechos fundamentales sobre algunas decisiones (ver voto n°2009-01675). Asimismo, al considerar que no se vulneraba la autonomía universitaria por el ingreso de la Fuerza Pública en el recinto universitario (ver votos n°2010-9339 y n°2019-03879), y al mantenimiento de las competencias de control, vigilancia y fiscalización por parte de la Contraloría General de la República (ver voto n°2012-09215, n°2012-10665). Por otro lado, el criterio más abundante es que la autonomía de las universidades es amplia y se extiende, por ejemplo, a modificar, suprimir y crear plazas (votos n°1999-9976 y 2002-7261) o, que es parte de la autonomía administrativa de los entes autónomos el poder disponer libremente de los recursos humanos, materiales y financieros (voto n°2002-9076). Además, se pueden mencionar sentencias sobre la autonomía universitaria referida en concreto a la materia de educación y cuestiones afines (ver voto n°1992-495 y 2012-9215). También se encuentran sentencias, donde se afirma que una mayor injerencia del Poder Ejecutivo o Poder Legislativo en relación con materias que no forman parte del núcleo central de las funciones esenciales, no lesiona su autonomía (ver votos n°94-3309, 96-276, y 2016-18087).

• 3)Análisis concreto de lo consultado Sobre el artículo 6.- Potestad de Dirección de Mideplán respecto de las Universidades Públicas (redacta magistrado Castillo Víquez) De la jurisprudencia de la Sala Constitucional se puede concluir que son dos los aspectos que la Sala ha señalado en sus sentencias de manera constante, en relación con las universidades y su autonomía: 1.- Las universidades no son microestados y, en ese sentido, deben someterse al Derecho de la Constitución; 2.- El Poder Ejecutivo no puede ejercer la potestad de dirección y reglamentación en la materia que corresponde a las universidades, según el fin constitucionalmente asignado -docencia, investigación y extensión social y cultural y su grado de autonomía.

En lo que atañe a la materia de empleo público, tal y como de seguido se pasa a explicar, la Sala ha analizado muchos de los temas al respecto, tales como: concursos, requisitos de nombramiento, evaluaciones, salarios, vacaciones y permisos, y ha sentado una jurisprudencia clara y precisa. El criterio más abundante, es que la autonomía de las universidades es amplia y se extiende, por ejemplo, a modificar, suprimir y crear plazas (votos No. 9976-99 y 7261-2002) o que es parte de la autonomía administrativa de los entes autónomos el poder disponer libremente de los recursos humanos, materiales y financieros (voto No. 9076-2002). Empero, la autonomía universitaria está referida a la materia de educación y cuestiones afines (voto No. 92-495 y 12-9215). Lo anterior significa que una mayor injerencia del Poder Ejecutivo o Poder Legislativo en relación con materias que no forman parte del núcleo central de las funciones esenciales relacionados con los fines constitucionalmente asignados, no lesiona su autonomía (votos Nos. 94-3309, 96-276, y 16-18087 este último con voto salvado del magistrado Rueda Leal). Así, pues, la Constitución Política dispone que las universidades gozan de independencia para el desempeño de sus funciones y de plena capacidad jurídica para adquirir derechos y contraer obligaciones, así como para darse su organización y gobierno propios (artículo 84). Sin embargo, lo anterior no significa que no estén vinculados a lo que dispone el legislador cuando se trata de cuestiones generales no relativas a los fines constitucionalmente asignados. En esta dirección, en la opinión consultiva No. 2018-19511, que analizó la consulta sobre la Ley de Fortalecimiento de las Finanzas Públicas, se estableció, en lo que interesa, lo siguiente:

“(…) el proyecto de ley consultado no lesiona la Constitución Política, pues como ya se indicó, se trata de una cuestión de política económica general del Estado ligada a la planificación y el desarrollo nacionales, campos en los que las instituciones autónomas se encuentran sujetas a la ley por tratarse de materia de gobierno y cuya conveniencia u oportunidad no corresponde valorar a este Tribunal, porque contraría al principio de autocontención del juez constitucional…”.

No menos importante es tener presente que la Constitución Política establece una reserva normativa en favor de las universidades del Estado. En efecto, en la sentencia n.° 1313-93, la Sala Constitucional expresó, a propósito de la Ley de Creación de la Universidad Estatal a Distancia, lo siguiente:

“Los conceptos expuestos nos indican, claramente, que fue la intención del Constituyente concederles a las universidades estatales un marco general de autonomía según lo que expresa el artículo 84 de la Constitución Política, y además, de un trato especial en lo que atañe al procedimiento legislativo para la discusión y aprobación de proyectos de ley, en materias que sin estar dentro del ámbito autonómico, tengan que ver con las universidades estatales, según lo dispone el artículo 88 ídem. Véase incluso lo dicho por los constituyentes proponentes de la moción completa del texto del citado artículo 88, de donde se deduce claramente su intención, no de excluir la ley del ámbito de competencia de la Universidad, sino, única y exclusivamente, de establecer esa mayoría especial cuando hubiere un criterio negativo del ente sobre el proyecto de Ley, cuando no fuera materia considerada bajo el régimen del artículo 84 : "El Diputado Facio usó de la palabra ... Recuérdese brevemente -dijo- que el corporativismo es un régimen antidemocrático, que suplanta las decisiones de una Asamblea libremente electa por el pueblo, por las de las corporaciones -corporaciones que no son instituciones técnicas del Estado, sino representaciones de gremios, de intereses profesionales- corporaciones éstas que son formadas, manipuladas y dirigidas por la política única del Estado omnipotente, del Estado totalitario. Nada más lejos que la intención de la moción; nada más apartado de su propósito. Lo que deseamos, sencillamente es conjugar la libertad soberana de la Asamblea popularmente electa, con los requerimientos técnicos del mundo moderno. Que sus pronunciamientos sean libres, pero que esa libertad se ejerza racionalmente, sobre el apoyo no de corporaciones, que representan intereses privados, sino de instituciones públicas, que por públicas, representan también al pueblo, y que, por técnicas, representan mejor sus intereses en el campo de las funciones que les han sido encomendadas. ¿Qué eso implica formalmente cierta restricción a la actividad del Congreso? Ciertamente es así, pero eso, lejos de ser un abandono de la democracia, es simplemente una adecuación de la democracia a problemas que existen hoy ... Sostiene el Dr. Jiménez de Aréchega, que la autonomía no puede significar sólo independencia con respecto al Poder Ejecutivo, sino también con respecto al Poder Legislativo, ya que si la Constitución la establece a favor de tal o cual organismo, es porque supone que las materias correspondientes deben ser manejadas al margen de la política y de la lucha de partidos; que entender de otro modo la autonomía es relativizar ésta a tal punto que sería como hacerla desaparecer. Pues bien, en la moción no se pide tanto; se pide sólo que se escuche al Consejo Universitario en tratándose de cuestiones universitarias...”. - (Véase: Acta número 161 de la Asamblea Nacional Constituyente de 1949. Tomo III, Imprenta Nacional, San José, 1956, págs. 410-414; los subrayados son de esta sentencia).- En otras palabras, y esta es la conclusión ineludible e indubitable de la larga pero trascendental serie de citas anteriores, el Constituyente.- no le quitó ni impidió a la Asamblea la potestad de legislar respecto de las materias puestas bajo la competencia de las instituciones de educación superior, o de las relacionadas directamente con ellas -para usar los propios términos de la Ley Fundamental-, y la única condición expresa que al respecto le impuso, fue la de oírlas previamente, para discutir y aprobar los proyectos de ley correspondientes, salvo lo que atañe a la facultad de organización y de darse el propio gobierno, según la independencia claramente otorgada en el artículo 84 constitucional”. La negrilla no es del original.

En relación con los límites de la Asamblea Legislativa, en ejercicio de la potestad de legislar, sobre las materias puestas bajo la competencia exclusiva y excluyentes de las Universidades del Estado este Tribunal fijó la siguiente postura:

“...Si bien es cierto -como ya se comprobó- la Asamblea Legislativa puede regular lo concerniente a la materia de las universidades, le está vedado imposibilitar, restar o disminuir a esas instituciones, aquellas potestades que les son necesarias para cumplir su correspondiente finalidad y que conforman su propia autonomía. Es decir, para expresarlo en los términos de cierta doctrina relevante, esos entes tienen la titularidad y el ejercicio inicial, independiente e irrestricto de todas las potestades administrativas y docentes para el cumplimiento de su especialización material, sin que ésto pueda ser menoscabado por la Ley. Pero además, dentro de la modalidad docente explicada, también sirve de escudo a esa autonomía, la libertad de cátedra (artículo 87 de la Carta Política), que se puede entender como la potestad de la universidad de decidir el contenido de la enseñanza que imparte, sin estar sujeta a lo dispuesto por poderes externos a ella, o bien, en el sentido de la facultad de los docentes universitarios de expresar sus ideas al interno de la institución, permitiendo la coexistencia de diferentes corrientes de pensamiento (véase sobre las limitaciones legítimas de la libertad, el precitado voto 3550-92). Por supuesto, también, que esos entes por disposición constitucional (artículo 85), están sujetos a coordinación por el "cuerpo encargado" que ahí se indica, y a tomar en cuenta los lineamientos que establezca el Plan Nacional de Desarrollo Vigente”.

Como puede fácilmente deducirse, la autonomía universitaria no es sinónimo de soberanía, una especie de extraterritorialidad. Todo lo contrario, las universidades del Estado están sometidas al ordenamiento jurídico, lo que significa que el legislador está autorizado por el Derecho de la Constitución a sujetarlas a la normativa que considere pertinente, en especial en aquellos casos cuando se trata de normas que tienen un alcance de carácter general. Incluso se puede sostener, con base en el Derecho de la Constitución, que si bien el artículo 84 establece una reserva normativa en favor de las universidades, creando un subsistema jurídico particular, esa reserva está referida a la “organización del servicio universitario”. (véase dictamen No. C-086-96 de 5 de junio de 1996 de la Procuraduría General de la República). “Por lo que la universidad queda sujeta a todas las regulaciones legales que afecten por igual a los demás sujetos del ordenamiento jurídico, precisamente por basarse en razones a todos comunes, extrañas a su especialización funcional, aunque indirectamente interfiera con la prestación de su servicio y la organización de sus medios. Asimismo, ha estimado la Procuraduría que en el ejercicio de su potestad normativa, la universidad está sujeta al ordenamiento jurídico general, por lo que no puede afectar las disposiciones estatales que, por ejemplo, otorgan beneficios a los trabajadores universitarios en su condición de servidores de la Administración Pública. En el mismo orden de ideas, en el dictamen N° C-191-98 10 de setiembre de l998, la Procuraduría consideró que la potestad normativa de la universidad no significa “inmunidad frente a las reglas legislativas de empleo público genéricas para toda la Administración Pública”. Se considera que está fuera del ámbito organizativo propio de la Universidad la regulación del empleo público, con lo que se reitera el dictamen N° C-184-97 antes citado”.

De modo que la autonomía de los entes universitarios -autonormativa o autoorganizativa, que lógicamente comprende la administrativa y de gobierno de esos entes está referida estrictamente al ámbito garantizado por la autonomía universitaria: la actividad académica, la investigación y las actividades de extensión social o cultural. Fuera de ese ámbito, las Universidades están sujetas a las regulaciones legales dirigidas a todos los sujetos del ordenamiento jurídico en tanto que tales.

En materia de sus competencias, que conlleva la organización del servicio universitario, en los que la autonomía universitaria y en concreto referidos a la actividad académica, la investigación o actividades de extensión social o cultural despliega toda su fuerza, resulta incompatible con esta la potestad de dirección del Poder Ejecutivo o uno de sus órganos, en este caso Mideplán, ni mucho menos la potestad reglamentaria. Dicho de otra forma, el constituyente originario al asignarle fines constitucionales a las universidades las dotó de la máxima autonomía, para garantizar la independencia en el ejercicio de sus competencias, ámbito del cual no se sustrae la materia de empleo público cuando está vinculada a esos fines o se trata de funciones administrativas, profesionales y técnicas, necesarias para esas funciones de conformidad con lo que dispongan las autoridades universitarias, de forma exclusiva y excluyente, tal y como se explicará cuando se analice en concreto la normativa consultada.

En cuanto a las normas concretas: Hay varias potestades que se mencionan regularmente en el proyecto en relación con el Mideplán, en su condición de órgano rector del empleo público y su relación con las entidades a quienes aplicaría esta ley, señaladas en el artículo 2. Se trata de su potestad de emitir disposiciones de alcance general, directrices y los reglamentos. La extensión y vinculatoriedad de algunas de estas potestades e instrumentos pueden determinar si el proyecto tiene o no roces de constitucionalidad.

En relación con el artículo 6, resulta inconstitucional, pues no se excluye de la potestad de dirección a los funcionarios que participan de la actividad académica, la investigación o actividades de extensión social o cultural, y quienes ejercen cargos de alta dirección política, así como todo aquel funcionariado administrativo de apoyo, profesional y técnico, que establezcan los máximos órganos de las universidades del Estado. Ergo, solo resulta constitucional la norma en lo que atañe al personal de administrativo básico, auxiliar, que estaría en la familia de puestos de conformidad con el numeral 13, inciso a) del proyecto de ley. Esta tesis encuentra sustento en la sentencia 96-0276, en la cual la Sala señaló:

“II.- Cabe, en primer término referirse a la autonomía que la Constitución les otorga a las universidades, para señalar que ésta, aunque muy amplia, es autonomía administrativa… Tampoco esa autonomía se extiende a las materias no universitarias, es decir, las no relativas a la docencia o investigación en la enseñanza superior…”..." LBH10/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: TRABAJO Subtemas:

NO APLICA.

017098-21. TRABAJO. CONSULTA LEGISLATIVA FACULTATIVA DE CONSTITUCIONALIDAD, REFERENTE AL PROYECTO DE LEY DENOMINADO "LEY MARCO DE EMPLEO PÚBLICO". EXPEDIENTE LEGISLATIVO N° 21.336. "... Sobre el artículo 7.- Competencias de Mideplán respecto de las Universidades Públicas (redacta magistrado Castillo Víquez) En relación con el artículo 7, se mantiene el mismo criterio vertido respecto al numeral 6, además somete a la potestad de reglamentación de Mideplán en materias donde hay una potestad exclusiva y excluyente a favor de las universidades del Estado para alcanzar el fin constitucional asignado por el constituyente originario.

Sobre el artículo 9.a.- Oficina de Recursos Humanos en las Universidades Públicas (redacta magistrada Picado Brenes) La norma consultada establece lo siguiente:

“ARTÍCULO 9- Funciones de las administraciones activas a) Las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos, de las instituciones incluidas en el artículo 2 de la presente ley, seguirán realizando sus funciones de conformidad con las disposiciones normativas atinentes en cada dependencia pública.

Asimismo, aplicarán y ejecutarán las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que el Ministerio de Planificación Nacional y Política Económica (Mideplán) remita a la respectiva institución, según la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

• b)Es responsabilidad de las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos elaborar y aplicar las pruebas de conocimientos, competencias y psicométricas, para efectos de los procesos de reclutamiento y selección de personal, efectuar los concursos internos y externos por oposición y méritos, los cuales deberán cumplir siempre al menos con los estándares que establezca la Dirección General del de Servicio Civil para cada puesto, según su ámbito de competencia, y los lineamientos que se emitan según el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

Además, incorporar dichos concursos en la oferta de empleo público de la Administración Pública y verificar que las personas servidoras públicas reciban la inducción debida sobre los deberes, las responsabilidades y las funciones del puesto, así como los deberes éticos de la función pública generales y particulares de la institución y puesto.

• c)Las oficinas de gestión institucional de recursos humanos, de ministerios e instituciones u órganos adscritos bajo el ámbito de aplicación del Estatuto de Servicio Civil, son dependencias técnicas de la Dirección General de Servicio Civil que, para todos los efectos, deberá coordinar la elaboración de las pruebas de reclutamiento y selección de personal con tales oficinas y desempeñar sus funciones de asesoramiento, capacitación y acompañamiento técnico.” Tal como se observa, el artículo 9 consultado establece ciertas funciones para todas las oficinas, departamentos, áreas, direcciones o las unidades de recursos humanos, de todas las instituciones incluidas en el proyecto, en cuenta, para las oficinas de recursos humanos de las Universidades Públicas. Así entonces, en lo que se refiere propiamente a la consulta realizada en cuanto a las Universidades Públicas, el segundo párrafo del inciso a) le impone las distintas oficinas de recursos humanos de dichas universidades que apliquen y ejecuten las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que Mideplán le remita. Lo cual, implicaría que un órgano del Poder Ejecutivo, como lo es Mideplán, le imponga a las Universidades Públicas la aplicación y ejecución de sus disposiciones, directrices y reglamentos, y en materias que son de resorte exclusivo ellas, vista su autonomía plena, como lo es la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación o salarios y la gestión de las relaciones laborales. Siendo claramente tal obligación para las oficinas de recursos humanos de las Universidades Públicas una violación al contenido de la autonomía plena de que gozan las universidades del Estado. Recuérdese que, esta Sala ha establecido los alcances de esta autonomía indicando que la misma alcanza para establecer sus planes, programas, presupuestos, organización interna y estructura de su gobierno (ver sentencia n°2008-013091). Así que las Universidades Públicas están facultadas para establecer sus planes, programas, presupuestos, organización interna y estructurar su propio gobierno, todo dentro de los límites establecidos por la propia Constitución Política y las leyes especiales que reglamentan su organización y funcionamiento (ver sentencia n°2012-011473). Significa que las Universidades Públicas están fuera de la dirección del Poder Ejecutivo y de su jerarquía, que cuentan con todas las facultades y poderes administrativos necesarios para llevar adelante el fin especial que legítimamente se les ha encomendado; que pueden autodeterminarse; tienen poder reglamentario (autónomo y de ejecución); pueden autoestructurarse, repartir sus competencias dentro del ámbito interno del ente, desconcentrarse en lo jurídicamente posible y lícito, regular el servicio que prestan, y decidir libremente sobre su personal (ver sentencia n°2002-008867 y n°2008-13091). Así, está plenamente justificado que sea incompatible con su grado de autonomía estar bajo las disposiciones generales, directrices y reglamentos de un órgano de otro Poder de la República, como lo pretendía esta norma del proyecto consultada. En este sentido, el párrafo segundo del inciso a del artículo 9 es inconstitucional respecto a su aplicación a las universidades públicas.

Sobre el artículo 13.e.- Familia de Puestos respecto de las Universidades Públicas (redacta magistrado Castillo Víquez) Sobre el artículo 13, inciso e) alegan los consultantes que la potestad constitucional que tienen las universidades de establecer sus propios planes de educación podría verse afectada si el personal universitario está sometido al control, dirección, planificación y órdenes del gobierno de turno. Dicha normativa es inconstitucional, por no incluir en el citado inciso a los servidores que realizan investigación, acción social y cultural, así como el personal administrativo, profesional y técnico, necesario para alcanzar los fines constitucionalmente asignados a las universidades del Estado, en los términos que se explica en el considerando general.

Sobre el artículo 14.- Reclutamiento y selección en las Universidades Públicas (redacta magistrada Picado Brenes) Los consultantes cuestionan la constitucionalidad del artículo 14 del proyecto de ley objeto de consulta, toda vez que, en su criterio, podría lesionar la autonomía universitaria, en el tanto sujeta a las universidades públicas a las disposiciones que emite un órgano del Poder Ejecutivo, en lo referente a la gestión de empleo, lo cual comprende lo relativo al reclutamiento y selección de su personal. El ordinal 14 en cuestión, dispone lo siguiente:

“ARTÍCULO 14- Reclutamiento y selección El reclutamiento y la selección de las personas servidoras públicas de nuevo ingreso se efectuará con base en su idoneidad comprobada, para lo cual el Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá, con absoluto apego a la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las disposiciones de alcance general, las directrices y los reglamentos, según la respectiva familia de puestos.

En los procesos de reclutamiento y selección no podrá elegirse a un postulante que se encuentre en alguna de las siguientes situaciones:

• a)Estar ligado por parentesco de consanguinidad o de afinidad en línea directa o colateral, hasta tercer grado inclusive, con la jefatura inmediata ni con las personas superiores inmediatas de esta en la respectiva dependencia.
• b)Encontrarse enlistada en el registro de personas inelegibles de la plataforma integrada de empleo público.” Tal como ya fue supra indicado, las universidades públicas costarricenses gozan de un estatus autonómico privilegiado en el sector público descentralizado, toda vez que dicha independencia se extiende a los ámbitos administrativo, político, financiero y organizativo (sentencia n°2002-008867). En atención a ello, es imprescindible que dispongan todo lo relativo al reclutamiento y selección de su personal, sin interferencia externa alguna. Véase lo indicado en la sentencia n°2008-013091, cuando indica que las universidades públicas: “…están fuera de la dirección del Poder Ejecutivo y de su jerarquía, que cuentan con todas las facultades y poderes administrativos necesarios para llevar adelante el fin especial que legítimamente se les ha encomendado; que pueden auto-determinarse, en el sentido de que están posibilitadas para establecer sus planes, programas, presupuestos, organización interna y estructurar su gobierno propio. Tienen poder reglamentario (autónomo y de ejecución); pueden auto-estructurarse, repartir sus competencias dentro del ámbito interno del ente, desconcentrarse en lo jurídicamente posible y lícito, regular el servicio que prestan y decidir libremente sobre su personal…” En este caso, este Tribunal considera que el proyecto de ley consultado incide en las competencias propias de las Universidades Públicas, pues más allá de establecer principios o lineamientos generales en materia de empleo público que respeten el principio de separación de funciones, el artículo 14 de estudio, es claro en señalar que será el Ministerio de Planificación Nacional y Política Económica (Mideplán), quien emitirá las disposiciones de alcance general, las directrices y los reglamentos, según la respectiva familia de puestos, que regularán el reclutamiento y la selección de las personas servidoras públicas de nuevo ingreso. Ello, pues conforme lo dispuesto en los ordinales 13 y 2 del mismo proyecto de ley, lo señalado en el ordinal 14 aplicaría a las Universidades Públicas. Así las cosas, el artículo 14 resulta inconstitucional, al autorizar que un órgano del Poder Ejecutivo sea quien emita directamente disposiciones de alcance general, directrices y reglamentos, circulares, manuales, y resoluciones relativos a la materia de empleo público, que vacían de contenido las competencias reconocidas a las Universidades Públicas por el Constituyente. Más aún cuando ya existe un marco normativo atinente a cada una de las universidades que regula esos aspectos. En razón de lo expuesto, la norma consultada excede cualquier marco de cooperación que pueda establecer una política general de empleo público, pues no resulta propio que una dependencia del Poder Ejecutivo -Mideplán-, le dicte a las Universidades Públicas, quienes gozan de autonomía plena, y de manera obligatoria, las pautas o criterios para la selección y reclutamiento de su personal. Ello constituye una clara injerencia externa y, la intromisión del Poder Ejecutivo en aspectos que son competencia exclusiva de las Universidades Públicas. Por consiguiente, este Tribunal considera que el artículo 14 consultado contiene un vicio de inconstitucionalidad, por lesionar la autonomía universitaria resguardada en el artículo 84 constitucional.

Sobre el artículo 17.- Puestos de Alta Dirección en las Universidades Públicas (redacta magistrada Picado Brenes) La norma consultada establece lo siguiente:

“ARTÍCULO 17- Personal de la alta dirección pública El Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá las disposiciones de alcance general, las directrices, y los reglamentos, en materia del personal de la alta dirección pública, que sean acordes con la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, para dotar a la Administración Pública de perfiles con integridad y probada capacidad de gestión, innovación y liderazgo, para procurar el mejoramiento de la prestación de bienes y servicios públicos. (…)” Los consultantes señalan la lesión a la autonomía universitaria, por cuanto en esta norma se dispone que, tratándose de puestos de alta dirección será Mideplán quien emita las disposiciones de alcance general, directrices y reglamentos al respecto. En el mismo sentido en que esta Sala ha venido resolviendo estos aspectos, la injerencia de este Ministerio, que es un órgano del Poder Ejecutivo, emitiendo disposiciones de alcance general, directrices y reglamentos a las Universidades Públicas en materia de los puestos de alta dirección, resulta violatorio de la autonomía universitaria. La regulación de todo lo atinente a los puestos de alta dirección ya cuenta con la normativa especial en las Universidades Públicas. Recuérdese que las Universidades Públicas están facultadas para establecer su propia organización interna y estructurar su propio gobierno, todo dentro de los límites establecidos por la propia Constitución Política y las leyes especiales que reglamentan su organización y funcionamiento (ver sentencia n°2012-011473). Significa que las Universidades Públicas están fuera de la dirección del Poder Ejecutivo y de su jerarquía, que cuentan con todas las facultades y poderes administrativos necesarios para llevar adelante el fin especial que legítimamente se les ha encomendado y que pueden regular el servicio que prestan, y decidir libremente sobre su personal (ver sentencia n°2002-008867 y n°2008-13091). Nótese que, estos son puestos de gran importancia pues estarían referidos, al menos, respecto de quienes dirigen las distintas Vicerrectorías y Decanaturas, entre otros. Puestos que son de gran relevancia para el quehacer académico y el fiel cumplimiento del resto de las funciones asignadas a las universidades públicas, que deben estar particularmente protegidos de la injerencia de otros Poderes de la República, y que requieren la estabilidad del personal necesaria para un adecuado e imparcial desempeño del cargo, lo cual es incompatible con una subordinación a las disposiciones que emita al respecto el Mideplán, como lo dispone la norma en cuestión. Por ende, se considera existe un vicio de inconstitucionalidad en el artículo 17 objeto de consulta, en los términos expuestos.

Sobre el artículo 30.- Postulados para la compensación en las Universidades Públicas (redacta magistrado Castillo Víquez) En cuanto al artículo 30, es inconstitucional, en el tanto no excluye a los funcionarios que realizan labores sustanciales -propias de la actividad universitaria-, y porque no establece que -en atención a la autonomía universitaria-, la construcción de la familia de la columna salarial y sus características corresponde en forma exclusiva y excluyente a los máximos órganos de los entes universitarios. Siguiendo la línea argumentativa de la opinión consultiva, es claro que este es un elemento esencial que afecta a la autonomía universitaria en relación con el funcionariado que se desempeña en la docencia, en la investigación, en la extensión social y cultural, así como aquellos funcionarios, profesionales y técnicos, que realizan labores administrativas vinculadas con la materia universitaria. De ahí que los órganos competentes para construir la familia y sus características, desde la óptica constitucional, lo hacen con independencia de las directrices y disposiciones reglamentarias que en este ámbito emita el Mideplán o el Poder Ejecutivo. En esta dirección, en la sentencia No. 15-10248 la Sala se refirió a la fijación de salarios en las universidades. El Tribunal señaló que las universidades pueden establecer el régimen remunerativo de sus servidores. Concretamente, el Tribunal indicó: “…la autonomía universitaria que les asiste a los centros de educación superior públicos (dispuesta con rango constitucional), alcanza para que estos –por medio de sus más altos órganos jerárquicos- establezcan la modalidad en que resolverán el régimen remunerativo de sus servidores “…siempre atendiendo a principios constitucionales elementales que rigen todo el aparato público, como la razonabilidad y proporcionalidad, así como el adecuado resguardo de las finanzas públicas (…).” Este caso, atendiendo a los principios y postulados que se encuentran en el proyecto de ley, los que resultan trasversal a toda la Administración Pública.

Sobre el artículo 30.b- Salario del presidente de la República como tope de salarios en las Universidades Públicas (redacta magistrado Castillo Víquez) En lo que atañe al numeral 30, inciso b, del proyecto de ley consultado, por mayoría, el Tribunal concluye que no es inconstitucional establecer como tope el salario del presidente de la República para los funcionarios universitarios. En primer lugar, porque el salario del puesto de presidente de la República, según lo que establece el artículo 37 del mismo proyecto de ley, se debe fijar con base en estudios técnicos, responsabilidades y perfiles de puesto; amén de que se deben tener presente los parámetros que establece el numeral 36 del proyecto de ley para fijar la política salarial. Ergo, será a partir de esa fijación técnica que haga la Autoridad Presupuestaria que el salario del cargo de presidente de la República será el tope para los salarios de los funcionarios universitarios. En segundo término, la mayoría de la Sala Constitucional entiende que cualquier rebaja del salario del presidente de la República para fungir como tope también debe ser con base en estudios técnicos, responsabilidades y perfiles de puesto, en cuyo caso no aplicaría, para efectos de tope, la rebaja que voluntariamente haga la persona que ocupa el cargo de presidente de la República por razones personales, políticas o de otra índole. Asimismo, si un (a) presidente de la República decide renunciar a la totalidad o parte de su salario, dichas acciones individuales no afectarían el tope de salario, el que ha sido fijado técnicamente. Finalmente, hay que tener presente que en cumplimiento del principio de equilibrio financiero o presupuestario en este caso, resulta conforme con el Derecho de la Constitución que haya el citado tope. En esta dirección, en la opinión consultiva n.° 2018-18505, expresamos lo siguiente:

“Sobre el particular, frente a una condición crítica en las finanzas públicas (debidamente sustentada en estudios técnicos), que pone en riesgo la efectiva o adecuada ejecución de las prestaciones de relevancia constitucional, la decisión de las autoridades competentes de definir y aplicar medidas aptas para paliar o solucionar el problema no solo resulta razonable, sino que, aún más, es insoslayable.

Ahora bien, no atañe a la Sala definir en concreto qué tipo de remedios se deben aplicar ni cuál es el más adecuado, toda vez que ello forma parte de la política económica del Estado, que a su vez constituye materia de gobierno. En realidad, el control de constitucionalidad se encuentra constreñido a velar por que las soluciones se adopten salvaguardando los derechos fundamentales cobijados en la Constitución Política y los instrumentos del derecho internacional de los derechos humanos ratificados por Costa Rica, así como las cualidades esenciales del régimen político del país (en una república democrática, libre, independiente, multiétnica y pluricultural, cuyo Gobierno es popular, representativo, participativo, alternativo y responsable), todo lo cual implica un ejercicio de ponderación y optimización de los diversos principios, derechos y valores constitucionales en juego.

En este contexto, reviste de especial importancia una interpretación armoniosa del principio de equilibrio presupuestario y el Estado Social de Derecho. La Sala advierte que, para que un Estado Social de Derecho pueda persistir y cumplir sus fines constitucionales y legales, deviene necesario que se efectúe un sano manejo de las finanzas públicas; es decir, de manera inexorable debe existir un equilibrio entre los derechos prestacionales y la solvencia económica estatal, ya que los primeros dependen de las posibilidades materiales propiciadas por la segunda, mientras que el sentido de esta última es fortalecer el desarrollo de un sistema político solidario, uno en el que los estratos menos favorecidos de la sociedad encuentren resguardo de su dignidad humana y su derecho a progresar. Dicho de otra forma, el Estado Social de Derecho “ideal” es el Estado Social de Derecho “posible”, contra el que precisamente se actúa, cuando se quebranta el principio de equilibrio presupuestario, toda vez que, a mediano plazo, eso pone en serio riesgo o del todo impide obtener los recursos necesarios para sustentar un Estado Social de Derecho “real”, uno del que verdadera y efectivamente puedan gozar los más vulnerables. Vigilar entonces que no se llegue a caer en una Constitución fallida o de papel, donde los derechos prestacionales de rango constitucional no puedan ser efectivos, es tarea fundamental de esta Sala, estrictamente dentro de lo que el marco de sus competencias se lo permite.

Se debe advertir, eso sí, que todos los principios, valores y preceptos constitucionales deben ser observados en cualesquiera circunstancias, lo que permanentemente le corresponde vigilar a la jurisdicción constitucional. Ahora, con motivo del ejercicio de ponderación u optimización que el juez constitucional realiza para resolver alguna colisión entre tales principios, valores y preceptos, el contexto que rodea al conflicto no puede pasar desapercibido.

Corolario de lo expresado: la inobservancia del principio de equilibrio presupuestario ha sido una de las causas del deteriorado estado actual de las finanzas públicas, motivo que lleva a esta Sala a subrayar el carácter transversal de dicho principio y hacer énfasis en su implementación real en aras del principio del Estado Social de Derecho. Se insiste en la observación del Programa del Estado de la Nación: ‘Esto [refiriéndose al desbalance estructural en las finanzas públicas] ha puesto en jaque el futuro del Estado de bienestar social construido a lo largo de la segunda mitad del siglo XX, ya que su financiamiento y la eficiencia de su gasto no son suficientes’.

Justamente, la hermenéutica de los principios generales para resolver el sub examine, como el del equilibrio presupuestario y el del Estado Social de Derecho, no puede desligarse de los parámetros de relevancia constitucional que se colige de las medidas consultadas y las abundantes referencias técnicas a la coyuntura económica, que son elementos fundamentales para descartar una actuación arbitraria o irrazonable”.

Sobre los artículos 31, 32 y 34.- Valoración del trabajo, grados dentro de las familias de puestos y columna salarial global en las Universidades Públicas (redacta magistrado Castillo Víquez) En relación con los artículos 31, 32 y 34 los consultantes indican que se impide establecer diferencias salariales en razón de conocimientos, experiencia y producción de conocimiento, cuestiones que son esenciales para las universidades, mientras que el 32 le otorga la potestad a Mideplán para definir los grados requeridos dentro de cada familia laboral y, finalmente, el artículo 34, regula la elaboración de columna del salario global. La Sala concluye que son inconstitucionales, en el tanto no excluye a los funcionarios que realizan labores sustanciales -propias de la actividad universitaria-, es decir, aquellos que realizan funciones de docencia, investigación, extensión social y cultural, así como los que realizan funciones administrativas, profesionales y técnicas, necesarias para cumplir con criterios de eficacia y eficiencia los fines constitucionalmente asignados, y porque la definición de los factores de trabajo relevante, su peso relativo, el número de grado requeridos dentro de cada familia y sus características, y la elaboración de la columna salarial corresponde de forma exclusiva y excluyente a los máximos órganos de los entes universitarios. En esta materia en relación con el funcionariado que esté en la familia de puestos relativo a estos entes, establecido por el órgano jerárquico de cada universidad, todos estos aspectos al estar vinculados con el funcionariado necesario para alcanzar el fin constitucionalmente establecido la competencia resulta exclusiva y excluyente y, por consiguiente, Mideplán o el Poder Ejecutivo no les asiste ninguna potestad para definir ni elaborar ningún de esos extremos.

Sobre el artículo 33.- Clasificación de puestos de trabajo en las Universidades Públicas (redacta magistrado Castillo Víquez) En lo que respecta al artículo 33, la Sala Constitucional encuentra que es inconstitucional, en el tanto no excluye a los funcionarios que realizan labores sustanciales -propias de la actividad universitaria-, es decir, aquellos que realizan funciones de docencia, investigación, extensión social y cultural, así como los que realizan funciones administrativas, profesionales y técnicas, necesarias para cumplir con criterios de eficacia y eficiencia los fines constitucionalmente asignados, y somete el manual de puestos de dichos funcionarios al análisis y evaluación de Mideplán, lo que -en atención a la autonomía universitaria- corresponde en forma exclusiva y excluyente a los máximos órganos de los entes universitarios por las razones que explicaron supra.

Sobre el artículo 35 y 36.- Régimen salarial unificado y política de remuneración en las Universidades Públicas (redacta magistrado Castillo Víquez) Los artículos 35 y 36 son cuestionados por los consultantes. En relación con el primero, se establece un régimen unificado para todo el servicio público, incluyendo las universidades, lo cual a juicio de los y las consultantes, lesiona su autonomía. Empero, tal situación no se presenta, porque el salario global y un régimen unificado es constitucionalmente posible, toda vez que lo que estatuye la Carta Fundamental es el derecho al salario -artículo 56- es decir, una contraprestación económica por el servicio prestado, de ahí que no hay un derecho fundamental a un plus o pluses salariales, por lo que se está ante una materia de libre configuración del legislador y, por consiguiente, este, en el ejercicio de la potestad de legislar, puede establecer una determinada modalidad de salario, sea: un salario compuesto, global o mixto, etc. Por otra parte, la Sala Constitucional concluye que la fijación de un salario global por parte de legislador en el caso de las universidades no incide en las competencias exclusivas y excluyentes.

En lo que atañe al segundo, que regula la política de remuneración, y dispone la intervención del MIDEPLAN, la Dirección General de Servicio Civil y la Autoridad Presupuestaria, los consultantes cuestionan su constitucionalidad pues sujeta la política de remuneración al estado de fondos públicos disponibles. Según su criterio, de conformidad con el artículo 85 constitucional, las universidades tienen garantizadas sus rentas y financiamiento que nunca podrían ser disminuidas por el Gobierno central.

Esta afirmación no es jurídicamente correcta. En la sentencia No. 2019-08620, la Sala declaró SIN LUGAR una acción interpuesta en relación con el “Acuerdo para el Fondo Especial para la Educación Superior (FEES) 2018, firmado el 29 de agosto de 2017”, porque lo impugnado fue un acuerdo, no una disposición con efectos generales, de manera que no podía ser considerado como objeto de una acción en los términos del artículo 73 inciso a) de la Ley de la Jurisdicción Constitucional. En el informe que la Procuraduría General de la República rindió en ese asunto, se estableció que no existe una disposición que establezca un porcentaje en específico para la educación superior estatal.

Asimismo, en la opinión consultiva No. 2018-18505 (consulta legislativa sobre Ley No. 9635), la Sala manifestó:

“(...) Lo que sí demandan los principios mencionados es que la tónica sea aspirar siempre y de preferencia a aumentar la cobertura de los derechos humanos e igualmente de los prestacionales en aras del Estado Social de Derecho; empero, tal meta no es ajena al contexto socio económico de una coyuntura histórica determinada ni a la obligación de efectuar un ejercicio de ponderación y optimización de los diversos principios, derechos y valores constitucionales en juego (verbigracia, entre el principio del Estado Social de Derecho y el del Equilibrio Presupuestario), de manera que en el contexto de una insostenibilidad financiera del Estado particularmente seria, debidamente acreditada desde el punto de vista técnico, se puedan tomar medidas para paliar la situación, siempre que estas se adopten salvaguardando los derechos fundamentales cobijados en la Constitución Política y los instrumentos del derecho internacional de los derechos humanos ratificados por Costa Rica, así como las cualidades esenciales del régimen político del país…”. (La negritas no corresponden al original).

Finalmente, nótese que la definición de la política salarial es una competencia que el legislador le atribuye al Poder Ejecutivo, lo que resulta acorde con las potestades de Administración y Gobierno que la Constitución Política le asigna a ese poder en relación con su funcionario y otros entes que no gozan de competencias exclusivas y excluyentes o grados a autonomía que impiden la potestad de dirección. Ergo, son los entes universitarios los llamados a fijar su política de remuneración, así como el salario mínimo de inicio de la columna salarial única y el valor financiero que se asigne a cada punto de la columna del salario global, adoptando como parámetro los principios y postulados que dispone la norma cuestionada, con excepción de aquellos funcionarios que los jerarcas de estos entes decidan excluir de la columna porque realizan funciones administrativas básicas, auxiliares, que no están vinculadas a los fines constitucionalmente asignados.

Sobre el artículo 37.f).- Salario global aplicado a rectores de las Universidades Públicas (redacta magistrada Picado Brenes) Indican los consultantes que el proyecto consultado pretende otorgar mecanismos al gobierno de turno, para generar presión sobre los presupuestos universitarios, mediante la limitación de los salarios de conformidad con el artículo 37 del proyecto en cuestión. Al respecto, esta Sala observa que, el inciso f) del artículo 37 del proyecto establece que el salario de los rectores de las Universidades Públicas no solo no podrá ser mayor que el que ostente la Presidencia de la República, sino que, será establecido por la Autoridad Presupuestaria, con fundamento en estudios técnicos, responsabilidades y perfiles de puestos, así como en los topes salariales establecidos en la Ley de Salarios de la Administración Pública. Ello resulta evidentemente inconstitucional, por violar la autonomía universitaria. Conforme a esta autonomía, son las propias universidades públicas quienes deben establecer por sí mismas el régimen remunerativo de sus servidores (ver sentencia n°2015-010248), incluido el salario de los rectores. En este sentido, resulta inconstitucional establecer que el salario de los rectores sea establecido por la Autoridad Presupuestaria, que es un órgano de la Administración Pública Central, y no, por la propia universidad. Recuérdese que, las universidades públicas o universidades estatales gozan de un grado especial de autonomía, que se puede denominar autonomía universitaria. Conforme a la jurisprudencia constitucional se ha indicado que tal autonomía abarca autonomía administrativa, política, financiera y organizativa. Por lo tanto, las universidades públicas están fuera de la dirección del Poder Ejecutivo y cuentan con todas las facultades y poderes administrativos para llevar a cabo su misión.

• 4)Conclusión -Sobre los artículos 11 (planificación del empleo), 15 (postulados de reclutamiento y selección) y 16 (oferta de empleo), dado que no se realiza la fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, se declara inevacuable la consulta por falta de fundamentación.

-En los términos indicados y conforme a la jurisprudencia de esta Sala, resultan inconstitucionales del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, los artículos siguientes.

Analizados todos los aspectos consultados en cuanto al artículo 6, 7, 9 (segundo párrafo del inciso a), 13 (inciso e), 14, 17, 30 (salvo el inciso b), 31, 32, 33, 34, 37 (inciso f), del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación a la autonomía universitaria de las universidades públicas. Siendo constitucionales los artículos 30.b, 35 y 36 del proyecto en cuestión, por las razones ya indicadas." "...

XII.- Sobre la consulta de violación a la autonomía de la Caja Costarricense de Seguro Social.- 1) Aspectos consultados Los consultantes diputados consideran que los siguientes artículos del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, son violatorios de la autonomía política de la Caja Costarricense de Seguro Social (CCSS). En concreto, consultan sobre los artículos siguientes, indicados, sea en el encabezado del título general o en el resto del texto del escrito de interposición:

2.b (ámbito de cobertura), 6 (rectoría de Mideplan), 7 (competencias de Mideplan), 9.a (oficinas de Recursos Humanos), 13.b (familias de puestos), 14 (reclutamiento y selección), 17 (personal de Alta Dirección), 18 (plazo de prueba y plazo de nombramiento), Consideran tales artículos inconstitucionales, por cuanto, viola la autonomía de la CCSS y los artículos 73, 188, 11, 33 y 140.18 de la Constitución Política. Consideran inconstitucional someter a la CCSS a las directrices, lineamientos y reglamentos que emita Mideplán en temas relacionados con el empleo público, sean: planificación del trabajo, organización del trabajo, gestión del empleo, gestión de rendimiento, gestión de la compensación y gestión de las relaciones laborales.

Al respecto, antes de proceder al examen de la constitucionalidad de las normas impugnadas, resulta oportuno recordar los alcances y limitaciones constitucionales de la autonomía de la Caja Costarricense de Seguro Social, conforme lo ha establecido la jurisprudencia constitucional.

• 2)Antecedentes Jurisprudenciales sobre la Autonomía de Gobierno de la Caja Costarricense de Seguro Social En reiteradas ocasiones, tal como se indicó en la sentencia n°2011-14624 de las 15:50 horas del 26 de octubre de 2011, este Tribunal señaló que la Caja Costarricense de Seguro Social (CCSS) goza de autonomía administrativa y de gobierno, de conformidad con el artículo 73 de la Constitución Política, por lo que puede emitir las disposiciones relacionadas con su régimen interior. La propia Ley Constitutiva de la Caja Costarricense de Seguro Social, número 17 de 22 de octubre de 1943, publicada en La Gaceta número 329 de 27 de octubre de 1943, en el artículo 70 establece lo siguiente:

“Créase la Carrera Administrativa de la Caja Costarricense de Seguro Social, para regular la cual (sic), la Junta Directiva establecerá las condiciones referentes al ingreso de los empleados al servicio de la Institución, garantías de estabilidad, deberes y derechos de los mismos, forma de llenar las vacantes, promociones, causas de remoción, escala de sanciones, trámite para el juzgamiento de infracciones y demás disposiciones necesarias…”.

Por otro lado, el artículo 14 inciso f) dota a la Junta Directiva de la CCSS, la atribución de reglamentar el funcionamiento de la institución, de tal modo que le confiere la potestad para dictar normas, incluso para regular el régimen de los funcionarios que requiere la institución para el cumplimiento de las responsabilidades que le señala la Constitución Política y su Ley Constitutiva, y ello resulta constitucional, según se indicó en dicho precedente:

“…En ese contexto, la posibilidad de que la Institución establezca por si misma los diferentes tipos de relaciones laborales con sus funcionarios, ya sea por relación estatutaria o sujetos a figuras especiales, como el caso del Reglamento de Reclutamiento y Selección de Profesionales en Farmacia, Odontología y Trabajo Social, no es inconstitucional. La Caja Costarricense de Seguro Social puede establecer las reglas para la selección de funcionarios que ocupan puestos en dicha institución, pero respetando los fines específicos en la prestación del servicio público de la Caja Costarricense de Seguro Social (artículos 73, 191 y 192 de la Constitución Política). En virtud de ello, el artículo 21 de la Ley Constitutiva, establece lo siguiente: "Artículo 21.- El Personal de la Caja será integrado a base de idoneidad comprobada, y los ascensos de categoría se otorgarán tomando en cuenta los méritos del trabajador en primer término y luego, la antigüedad en el servicio." A partir de lo anterior, así como de la lectura del numeral 191 constitucional, es claro que la regla ineludible consiste precisamente en que los funcionarios públicos deben estar regidos por una relación laboral estatutaria, es decir, por normas impuestas por la Administración en su calidad de empleador, en atención a la eficiente y eficaz prestación de los servicios públicos que cada instancia administrativa esté llamada a ofrecer. Aún cuando el constituyente haya pensado en un sistema estatutario único, lo cierto es que la redacción finalmente dada al artículo 191, así como el proceso de profunda descentralización que experimentó el Estado costarricense a partir de mil novecientos cuarenta y nueve, hace que en nuestros días resulte válida la existencia de diversas relaciones estatutarias en la Administración, en atención a la independencia funcional y autonomía administrativa que el ordenamiento asegura a varias instituciones públicas.” Lo anterior es conteste con la misma autonomía concedida por el Constituyente a determinadas instituciones, para el caso concreto, la conferida a la Caja Costarricense de Seguro Social en el artículo 73, definida como autonomía de gobierno, que resulta necesaria a fin de que pueda cumplir con los cometidos especiales asignados y sin injerencias del Poder Ejecutivo.

En sentencia n°2011-15665 de las 12:40 horas del 11 de noviembre de 2011, reiterada en la 2017-4797, particularmente en relación con la C.C.S.S. se indicó lo siguiente:

“…En este caso, estamos frente a un ente descentralizado creado por Constitución, y cuyo grado de autonomía, definido también por la misma Carta Magna, es de grado dos, la cual debe entenderse que incluye las potestades de formular planes o fijar los fines y metas del ente, la de darse los mecanismos internos de planificación funcional y financiera a través de los presupuestos y, el ejercicio de la potestad reglamentaria autónoma. Lo cual se traduce en el caso concreto de la administración del régimen de pensiones a cargo de la Caja Costarricense de Seguro Social -al menos- en la potestad de definir por sí misma, con exclusión de toda potestad legislativa, tres aspectos fundamentales sobre las pensiones: el monto de las cuotas de cotización, el número de cuotas que deben pagar los trabajadores para acceso a la pensión y la edad para jubilarse. Justamente este grado de autonomía mayor que tiene la Caja Costarricense de Seguro Social respecto del resto de instituciones autónomas, es lo que explica cómo se le ha excluido de la aplicación de leyes tales como “Ley de la Administración Financiera de la República y Presupuestos Públicos”, ley No. 8131 de 18 de setiembre del 2001. Véase el artículo 1° de dicha ley:

“Artículo 1.- Ámbito de aplicación La presente Ley regula el régimen económico-financiero de los órganos y entes administradores o custodios de los fondos públicos. Será aplicable a:

• a)La Administración Central, constituida por el Poder Ejecutivo y sus dependencias.
• b)Los Poderes Legislativo y Judicial, el Tribunal Supremo de Elecciones, sus dependencias y órganos auxiliares, sin perjuicio del principio de separación de Poderes estatuido en la Constitución Política.
• c)La Administración Descentralizada y las empresas públicas del Estado.
• d)Las universidades estatales, las municipalidades y la Caja Costarricense de Seguro Social, únicamente en cuanto al cumplimiento de los principios establecidos en el título II de esta Ley, en materia de responsabilidades y a proporcionar la información requerida por el Ministerio de Hacienda para sus estudios. En todo lo demás, se les exceptúa de los alcances y la aplicación de esta Ley (…)” Lo cual evidencia que la Caja Costarricense de Seguro Social se le ubica siempre en una categoría especial dentro de las instituciones autónomas, porque a diferencia de estas, no sólo es de creación constitucional, sino que tiene un grado de autonomía mayor, asimilable al grado de autonomía de que gozan las municipalidades, cual es, autonomía de gobierno. Lo cual significa un grado de protección frente a la injerencia del Poder Ejecutivo, pero también limitaciones a la intervención del Poder Legislativo. Aunque ciertamente la CCSS no escapa a la ley, esta última no puede “modificar ni alterar” la competencia y autonomía dada constitucionalmente a la CCSS, definiendo aspectos que son de su resorte exclusivo. La Caja Costarricense de Seguro Social, por ser básicamente una institución autónoma de creación constitucional, la materia de su competencia, dada constitucionalmente, está fuera de la acción de la ley. Dicho de otro modo, el legislador, en el caso de la administración y gobierno de los seguros sociales tiene limitaciones, debiendo respetar lo que el Constituyente estableció. Así como estaría vedado al legislador emitir una ley donde disponga que la administración y gobierno de los seguros sociales ya no le corresponde a la Caja Costarricense de Seguro Social, asimismo, tampoco puede emitir una ley que incursione en aspectos propios o correspondientes a la definición de la CCSS, en la administración y gobierno de los seguros sociales. En este sentido, véase lo que dispuso esta Sala mediante la resolución número 2001-010545 de las 14:58 horas del 17 de octubre del 2001:

“… Queda claro que la ley no puede interferir en materia de gobierno de la Caja Costarricense de Seguro Social en virtud de la autonomía plena de que goza esta institución…” (Criterio reiterado en la resolución número 2001-011592 de las 09:01 horas del 09 de noviembre del 2011).

Como argumento adicional, debe resaltarse que la norma que define las funciones y fines de la Caja Costarricense de Seguro Social, se ubica en nuestra Carta Magna en el capítulo de derechos y garantías sociales, mientras lo referente a Instituciones Autónomas se ubica en otro Titulo XIV; la diferencia en la ubicación refleja, desde una interpretación sistemática y sistémica, que la propia norma fundamental al crear la institución de la seguridad social, pretende brindarle protección solidaria y prioritaria a la persona por su propia condición; evidentemente se trata de una institución que asume el espíritu solidario que inspira el artículo cincuenta y setenta y cuatro de la Constitución. Lo que se pretende es que cada persona tenga la garantía que el Estado solidario le asegura salud, pensión, beneficios por incapacidad y todo lo referente a la seguridad social. Esta disposición que se convierte no sólo es un fin o guía de acción del Estado, sino también en un límite por sí mismo, al asegurar que ni el Poder Ejecutivo o el Poder Legislativo podrían menoscabar dicha competencia constitucional.” Luego, en sentencia n°2007-18484, reiterada en la 2018-6549, este Tribunal se refirió a los alcances de los distintos tipos de autonomía, en el siguiente sentido:

“A) Alcances de la autonomía administrativa de las instituciones autónomas, y la sujeción de éstas a la ley en materia de gobierno (…). El grado de autonomía administrativa -mínima y de primer grado-, es propia de las instituciones autónomas; de gobierno -de segundo grado-, propia de las municipalidades y de la Caja Costarricense del Seguro Social en lo relativo a la administración de los seguros sociales; y de organización - plena o de tercer grado, propia de las universidades del Estado. El ente descentralizado creado por ley ordinaria, está subordinado a su contenido e involucra la potestad legislativa para modificarlo y hasta extinguirlo; pero como la descentralización implica que le corresponden al ente todos los poderes del jerarca administrativo, quiere decir que su personalidad abarca la totalidad de los poderes administrativos necesarios para lograr su cometido en forma independiente. Así entonces, la Constitución Política le garantiza, en su ordinal 188, a todo ente público menor, distinto del Estado, una autonomía administrativa mínima o de primer grado, esto es, la potestad de auto-administrarse, sin sujeción a ningún otro ente público y sin necesidad de una norma legal que así lo disponga, para disponer de sus recursos humanos, materiales y financieros de la forma que lo estime más conveniente para el cumplimiento eficaz y eficiente de los cometidos y fines que tiene asignados. De este modo, el poder central tiene varias limitaciones respecto de su injerencia sobre las instituciones autónomas, así no puede actuar como jerarca del ente descentralizado: no puede controlarlo limitando la actividad del ente por razones de oportunidad; y, no puede, tampoco, actuar como director de la gestión del ente autónomo mediante la imposición de lineamientos o de programas básicos. Sin embargo, tal como lo expresa el mismo artículo 188 Constitucional, las instituciones autónomas están sujetas a la ley en materia de gobierno. Conforme a lo anteriormente dicho, la autonomía administrativa no es incompatible con la sujeción de las instituciones autónomas a las leyes, así entonces los objetivos, fines y metas del ente vienen dados por el legislador” (El énfasis no es del original).

Tal como se indica en el texto jurisprudencial citado, la CCSS además de gozar de la autonomía administrativa, también ostenta la autonomía política o de gobierno. De ahí que el Poder Ejecutivo tiene varias limitaciones respecto de su injerencia sobre la CCSS. No puede actuar como jerarca de esta, no puede controlarla limitando su actividad por razones de oportunidad; y, tampoco puede, actuar como director de la gestión de ese ente mediante la imposición de lineamientos o de programas básicos. Igualmente, respecto de la autonomía de esta institución en particular, la Sala en sentencia n°1994-6256, emite un criterio reiterado en las sentencias 2011-15665 y 2017-4797, que dice:

“III.- LA CAJA COSTARRICENSE DE SEGURO SOCIAL.- La Asamblea Nacional Constituyente, como consta en las Actas Nos. 125 y 126, aprobó la inclusión de la Caja Costarricense de Seguro Social, siguiendo, básicamente, el texto original de la Constitución de 1871; esto es, se trasplantó la institución de la Constitución de 1871, según las modificaciones de 1943 a la Constitución de 1949. Sin embargo, a los efectos de la consulta, resultan sugestivas las participaciones del Constituyente Volio Jiménez sobre el tema. De la página 34 del Tomo III de la Actas de la Asamblea Nacional Constituyente, se transcribe lo siguiente: "Además, la Caja, tarde o temprano, tendría que asumir el riesgo de desocupación, que vendrá a resolver el grave problema planteado por la cesantía. Insistió en que no le parecía adecuado debilitar la Caja. Lo prudente es fortalecerla. De ahí que lo más aconsejable es dejar las cosas como están, dándole a la Caja plena autonomía para independizarla así del Poder Ejecutivo"; y en la página 36 idem se agrega: "En ese sentido, lo más adecuado es mantener la redacción del artículo 63, que es buena por lo menos para el tiempo de ensayo. Todo lo que signifique limitar los recursos del Seguro Social, indudablemente será un retroceso inexplicable". Al ser aprobado el artículo, se incluyó un segundo párrafo que literalmente decía: "La administración y el gobierno de los seguros sociales estarán a cargo de una institución autónoma", texto que luego fue reformado por Ley No. 2737 de 12 de mayo de 1961, quedando hoy día de la siguiente manera: "La administración y el gobierno de los seguros sociales estarán a cargo de una institución autónoma, denominada Caja Costarricense de Seguro Social". En conclusión, el constituyente atribuyó la administración y gobierno de los seguros sociales a la Caja Costarricense de Seguro Social, como institución autónoma creada por la misma Constitución Política, con las especiales características que ella misma le ha otorgado y compartiendo los principios generales derivados de su condición de ente descentralizado…

…Doctrinariamente existe coincidencia en afirmar que está prohibida toda forma de intervención preventiva y anterior a la emisión del acto por el ente autónomo, salvo las funciones de control previo, como requisito para la validez de esos actos (autorizaciones); el Poder Central no puede actuar como jerarca del ente descentralizado: no puede controlarlo limitando la actividad del ente por razones de oportunidad; y, no puede, tampoco, actuar como director de la gestión del ente autónomo mediante la imposición de lineamientos o de programas básicos. Todas estas notas características de los entes descentralizados, que tienen su origen en una ley reforzada (artículo 189 inciso 3) de la Constitución Política), son igualmente aplicables, en lo pertinente, a las instituciones autónomas creadas por la propia Constitución Política, salvo que prevalecen las condiciones que ésta, en forma especial y exclusiva, le ha dado al ente.” De ahí que, incluso para lo relativo a la contratación de su personal tiene esa potestad de autoadministrarse, pues de ello también depende el cumplimiento de los fines asignados constitucionalmente. Como muestra de las particularidades y necesidades del servicio, por ejemplo, en la sentencia 2019-11130 de las 10:30 horas del 19 de junio de 2019, este Tribunal señaló lo siguiente:

“Al respecto, este Tribunal constata que efectivamente ese artículo señala que “para la calificación de atestados y asignación de puntajes, la Comisión Técnica de Enfermería hará la calificación de los concursos de acuerdo con (…) Se dará un punto por cada año de servicio o fracción mayor de seis meses, hasta un máximo de diez puntos en las zonas fuera de la meseta central (…)”. Sin embargo, no se considera que esta disposición vulnere el principio de igualdad y, por ende, devenga en inconstitucional, sino que esta decisión tiene una justificación razonable, que consiste en incentivar a los profesionales en enfermería para que acepten puestos fuera de la meseta central, con el aliciente de que en futuros concursos para puestos ubicados en zonas más codiciadas, cuenten con una mejor puntuación. Así, lo que busca la normativa no es únicamente la posición de mejor idoneidad, sino que busca incentivar que los profesionales enfermeros acepten trabajar en lugares alejados y poco apetecidos y, de esta forma, fomentar la prestación de servicios de enfermería, necesarios para una adecuada prestación de los servicios médicos, en todos los sectores del país. Esto acorde a los principios de solidaridad social.

Es claro, entonces, que el Constituyente le concedió tal autonomía, permitiéndole la selección de su personal bajo los estamentos que requiera para cumplir sus fines, eso sí respetando los principios constitucionales establecidos en los ordinales 191 y 192 constitucionales. Criterio reiterado por esta Sala en las sentencias números 03065-98, 10545-01 y 12494-11, al decir:

“…es dable a los diferentes establecimientos de la Caja, en aplicación del principio constitucional de autonomía de administración y gobierno, dictar las medidas de reorganización necesarias de sus servicios para su mejoramiento, con el fin de lograr la mejor satisfacción de sus usuarios y del interés general, que por su naturaleza nunca podría dejar de prevalecer ante los intereses particulares.” La autonomía que el legislador originario le concede a la Caja Costarricense de Seguro Social la protege de la intromisión del Poder Ejecutivo y del Legislativo, tal como se evidencia en la Sentencia 03065-98 de las 18:18 horas del 6 de mayo de 1998 (reiterada en la 2001-10545), al decir:

“…Lo cual evidencia que la Caja Costarricense de Seguro Social se le ubica siempre en una categoría especial dentro de las instituciones autónomas, porque a diferencia de estas, no sólo es de creación constitucional, sino que tiene un grado de autonomía mayor, asimilable al grado de autonomía de que gozan las municipalidades, cual es, autonomía de gobierno. Lo cual significa un grado de protección frente a la injerencia del Poder Ejecutivo, pero también limitaciones a la intervención del Poder Legislativo. Aunque ciertamente la CCSS no escapa a la ley, esta última no puede “modificar ni alterar” la competencia y autonomía dada constitucionalmente a la CCSS, definiendo aspectos que son de su resorte exclusivo. La Caja Costarricense de Seguro Social, por ser básicamente una institución autónoma de creación constitucional, la materia de su competencia, dada constitucionalmente, está fuera de la acción de la ley. Dicho de otro modo, el legislador, en el caso de la administración y gobierno de los seguros sociales tiene limitaciones, debiendo respetar lo que el Constituyente estableció. Así como estaría vedado al legislador emitir una ley donde disponga que la administración y gobierno de los seguros sociales ya no le corresponde a la Caja Costarricense de Seguro Social, asimismo, tampoco puede emitir una ley que incursione en aspectos propios o correspondientes a la definición de la CCSS, en la administración y gobierno de los seguros sociales…Como argumento adicional, debe resaltarse que la norma que define las funciones y fines de la Caja Costarricense de Seguro Social, se ubica en nuestra Carta Magna en el capítulo de derechos y garantías sociales, mientras lo referente a Instituciones Autónomas se ubica en otro Título XIV; la diferencia en la ubicación refleja, desde una interpretación sistemática y sistémica, que la propia norma fundamental al crear la institución de la seguridad social, pretende brindarle protección solidaria y prioritaria a la persona por su propia condición; evidentemente se trata de una institución que asume el espíritu solidario que inspira el artículo cincuenta y setenta y cuatro de la Constitución. Lo que se pretende es que cada persona tenga la garantía que el Estado solidario le asegura salud, pensión, beneficios por incapacidad y todo lo referente a la seguridad social. Esta disposición que se convierte no sólo es un fin o guía de acción del Estado, sino también en un límite por sí mismo, al asegurar que ni el Poder Ejecutivo o el Poder Legislativo podrían menoscabar dicha competencia constitucional.” De lo expuesto se deriva que, la Caja Costarricense de Seguro Social (CCSS), por disposición constitucional (art.73) goza de autonomía administrativa y de gobierno. Lo cual significa que, como ente descentralizado funcional, puede establecer las reglas para la selección de su personal, siendo válido en este caso la existencia de un marco normativo especial para su relación estatutaria, que atienda y asegure su grado de autonomía. Ese grado de autonomía le permite además, auto-administrarse (disponer de sus recursos humanos, materiales y financieros); darse su propia organización interna; la fijación de fines, metas y tipos de medios para realizarlas; la emisión de reglamentos autónomos de servicio o actividad, acorde con las disposiciones normalmente llamadas de política general. Así entonces, como institución autónoma de creación constitucional y con un grado de autonomía mayor (administrativa y de gobierno) le permite estar protegida frente a injerencias del Poder Ejecutivo y de limitaciones a la hora de legislar el Poder Legislativo (quien no puede modificar vía legal su grado de autonomía). Así el Poder Ejecutivo no puede actuar como director o en una relación de jerarquía frente a esta institución, no puede imponerle lineamientos, ni dar órdenes, ni controlar la oportunidad de sus actividades.

• 3)Análisis concreto de lo consultado Sobre el artículo 2.b.- Ámbito de cobertura respecto de la CCSS (redacta magistrada Picado Brenes) Los consultantes acusan que el inciso b) del artículo 2 del proyecto de ley consultado, en el tanto incluye a la CCSS dentro de su ámbito de aplicación, lesiona los artículos 73 y 188 constitucionales, al someter a esta institución que cuenta con autonomía constitucional administrativa y de gobierno en materia de empleo público. Al respecto, en el mismo sentido en que se ha sostenido la constitucionalidad de esta norma, respecto de otras instituciones, el artículo 2 inciso b) no es por sí mismo inconstitucional, en cuanto incluye a la CCSS en un marco regulatorio general de empleo público, pero sí es inconstitucional por sus efectos puesto que algunas de las normas de este proyecto de ley vacían de contenido su autonomía de gobierno, tal como se verá en concreto en los apartados siguientes. Recuérdese que, conforme lo establece el artículo 3 de la Ley de la Jurisdicción Constitucional, “Se tendrá por infringida la Constitución Política cuando ello resulte de la confrontación del texto de la norma o acto cuestionado, de sus efectos, o de su interpretación o aplicación por las autoridades públicas, con las normas y principios constitucionales.” Es decir, una norma puede ser inconstitucional, no por lo que dice textualmente, sino por los efectos que produce o produciría. Retomando lo que se expuso supra, es plausible sujetar a todos los poderes e instituciones del Estado a un único estatuto de empleo público. Sin embargo, en la medida en que tal sujeción vaya más allá de principios generales e incursione en materia propia de la autonomía de gobierno de la CCSS, sí es inconstitucional tal sujeción por sus efectos, pues, no es posible someter a una institución constitucional con un grado de autonomía como el que tiene la CCSS, a directrices, disposiciones, circulares, manuales que emita Mideplán. El grado de protección especial de la CCSS, que nace de su grado de autonomía, hace que la sujeción de la CCSS a este proyecto de ley general de empleo público sea inconstitucional por sus efectos. “Aunque ciertamente la CCSS no escapa a la ley, esta última no puede “modificar ni alterar” la competencia y autonomía dada constitucionalmente a la CCSS, definiendo aspectos que son de su resorte exclusivo.” (sentencia n°2011-12494). En conclusión, aunque la CCSS pueda estar sometida por ley a una normativa general de empleo público, en el tanto tal normativa violente su autonomía de gobierno, como en efecto lo hacen los artículos 6, 7, 9, 13, 14, 17 y 18, del proyecto, siendo las normas que fueron consultadas, dicho inciso b) del artículo 2 del proyecto, sería inconstitucional por sus efectos.

Sobre el artículo 6.- Potestad de Dirección de Mideplán respecto de la CCSS (redacta magistrado Castillo Víquez) El artículo 73 de la Constitución Política le asigna a la CCSS la administración y el gobierno de los seguros sociales. Para tal propósito, como fácilmente puede deducirse, lo referente a esa materia -fijación de metas y fines-, así como la fijación de las cuotas obrero-patronales, tiene como consecuencia lógica, desde la óptica jurídica, que el Poder Ejecutivo o uno de sus órganos -Mideplán- no pueden ejercer la potestad de dirección -dictarle directrices- o la potestad reglamentaria. Esta postura es constitucionalmente válida en lo que atañe a la materia de empleo público, concretamente aquel funcionariado indispensable para para cumplir con los fines constitucionalmente asignados, así como el personal administrativo, profesional y técnico, que las máximas autoridades de la CCSS definan en la respectiva familia de puesto que les corresponderá construir de forma exclusiva y excluyente. Significa lo anterior, que algunos empleados públicos de esa entidad, los que realizan funciones administrativas básicas, auxiliares, que sí podrían quedar bajo la rectoría del Poder Ejecutivo o Mideplán. Adoptando como hoja de ruta estas premisas, después de pasar revista por la jurisprudencia de este Tribunal, se hará un análisis de las normas que se consultan.

En reiteradas ocasiones, tal como se indicó en la sentencia No. 2011-14624 de las 15:50 horas del 26 de octubre de 2011, este Tribunal ha señalado que la Caja CCSS goza de autonomía administrativa y de gobierno, de conformidad con el artículo 73 de la Constitución Política, por lo que puede emitir las disposiciones relacionadas con su régimen interior. La propia Ley Constitutiva de la Caja Costarricense de Seguro Social, número 17 de 22 de octubre de 1943, publicada en La Gaceta número 329 de 27 de octubre de 1943, en el artículo 70 establece lo siguiente:

“Créase la Carrera Administrativa de la Caja Costarricense de Seguro Social, para regular la cual (sic), la Junta Directiva establecerá las condiciones referentes al ingreso de los empleados al servicio de la Institución, garantías de estabilidad, deberes y derechos de los mismos, forma de llenar las vacantes, promociones, causas de remoción, escala de sanciones, trámite para el juzgamiento de infracciones y demás disposiciones necesarias…”.

Por otro lado, el artículo 14 inciso f) dota a la Junta Directiva de la CCSS, la atribución de reglamentar el funcionamiento de la institución, de tal modo que le confiere la potestad para dictar normas, incluso para regular el régimen de los funcionarios que requiere la institución para el cumplimiento de las responsabilidades que le señala la Constitución Política y su Ley Constitutiva, y ello no resulta inconstitucional, según se indicó en ese precedente:

“…En ese contexto, la posibilidad de que la Institución establezca por si misma los diferentes tipos de relaciones laborales con sus funcionarios, ya sea por relación estatutaria o sujetos a figuras especiales, como el caso del Reglamento de Reclutamiento y Selección de Profesionales en Farmacia, Odontología y Trabajo Social, no es inconstitucional. La Caja Costarricense de Seguro Social puede establecer las reglas para la selección de funcionarios que ocupan puestos en dicha institución, pero respetando los fines específicos en la prestación del servicio público de la Caja Costarricense de Seguro Social (artículos 73, 191 y 192 de la Constitución Política). En virtud de ello, el artículo 21 de la Ley Constitutiva, establece lo siguiente: "Artículo 21.- El Personal de la Caja será integrado a base de idoneidad comprobada, y los ascensos de categoría se otorgarán tomando en cuenta los méritos del trabajador en primer término y luego, la antigüedad en el servicio." A partir de lo anterior, así como de la lectura del numeral 191 constitucional, es claro que la regla ineludible consiste precisamente en que los funcionarios públicos deben estar regidos por una relación laboral estatutaria, es decir, por normas impuestas por la Administración en su calidad de empleador, en atención a la eficiente y eficaz prestación de los servicios públicos que cada instancia administrativa esté llamada a ofrecer. Aún cuando el constituyente haya pensado en un sistema estatutario único, lo cierto es que la redacción finalmente dada al artículo 191, así como el proceso de profunda descentralización que experimentó el Estado costarricense a partir de mil novecientos cuarenta y nueve, hace que en nuestros días resulte válida la existencia de diversas relaciones estatutarias en la Administración, en atención a la independencia funcional y autonomía administrativa que el ordenamiento asegura a varias instituciones públicas.” (voto. No. 12494 de las 12:48 horas del 11 de noviembre de 2011).

Corolario de lo expuesto, el Constituyente originario previó la emisión de un solo estatuto que regulara las relaciones de empleo público; sin embargo, el legislador optó por aprobar diferentes estatutos, los cuales, según precedentes de este Tribunal, resultan válidos siempre y cuando se respete el principio de idoneidad y de estabilidad en el empleo público. En el proyecto de ley consultado, el legislador se decanta por crear un único estatuto que regule las relaciones se servicio en toda la Administración Pública, lo que también es conforme con el Derecho de la Constitución. Sin embargo, en relación con determinados entes, tal como la CCSS, debido a su grado de autonomía, aun el mismo legislador no puede sujetarla a órdenes, directrices y regulaciones de un órgano del Poder Ejecutivo, pues ello va en contra del grado de autonomía y tutela conferida por la Constitución Política a esta institución.

El propio Constituyente estableció la existencia de excepciones a esa única regulación, precisamente porque no se puede equiparar lo que no es igual, ni lesionar el ámbito de autonomía que tienen determinadas instituciones, tal como la CCSS, toda vez que estas revisten de ciertas características especiales que las diferencia razonablemente del resto de la administración, precisamente para dar cumplimiento a los fines que le fueron encomendados constitucionalmente.

En relación con el artículo 6, resulta inconstitucional, pues no se excluye de la potestad de dirección a los funcionarios que participan de las actividades vinculadas a los fines constitucionalmente asignados a la CCSS, y quienes ejercen cargos de alta dirección política, así como todo aquel funcionariado administrativo, profesional y técnico, que establezcan los máximos órganos de la entidad aseguradora. Ergo, solo resulta constitucional la norma en lo que atañe al personal de administrativo básico, auxiliar, que estaría en la familia de puestos de conformidad con el numeral 13, inciso a) del proyecto de ley.

Sobre el artículo 7.- Competencias de Mideplán respecto de la CCSS (redacta magistrado Castillo Víquez) En relación con el artículo 7, se mantiene el mismo criterio vertido en relación con el numeral 6, además somete a la potestad de reglamentación de Mideplán en materias donde hay una potestad exclusiva y excluyente a favor de la CCSS para alcanzar el fin constitucional asignado por el constituyente originario.

Sobre el artículo 9.- Oficina de Recursos Humanos en la CCSS (redacta magistrada Picado Brenes) La norma consultada indica lo siguiente:

“ARTÍCULO 9- Funciones de las administraciones activas a) Las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos, de las instituciones incluidas en el artículo 2 de la presente ley, seguirán realizando sus funciones de conformidad con las disposiciones normativas atinentes en cada dependencia pública.

Asimismo, aplicarán y ejecutarán las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que el Ministerio de Planificación Nacional y Política Económica (Mideplán) remita a la respectiva institución, según la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

• b)Es responsabilidad de las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos elaborar y aplicar las pruebas de conocimientos, competencias y psicométricas, para efectos de los procesos de reclutamiento y selección de personal, efectuar los concursos internos y externos por oposición y méritos, los cuales deberán cumplir siempre al menos con los estándares que establezca la Dirección General del de Servicio Civil para cada puesto, según su ámbito de competencia, y los lineamientos que se emitan según el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

Además, incorporar dichos concursos en la oferta de empleo público de la Administración Pública y verificar que las personas servidoras públicas reciban la inducción debida sobre los deberes, las responsabilidades y las funciones del puesto, así como los deberes éticos de la función pública generales y particulares de la institución y puesto.

• c)Las oficinas de gestión institucional de recursos humanos, de ministerios e instituciones u órganos adscritos bajo el ámbito de aplicación del Estatuto de Servicio Civil, son dependencias técnicas de la Dirección General de Servicio Civil que, para todos los efectos, deberá coordinar la elaboración de las pruebas de reclutamiento y selección de personal con tales oficinas y desempeñar sus funciones de asesoramiento, capacitación y acompañamiento técnico.” Tal como se observa, el artículo 9 consultado establece ciertas funciones para todas las oficinas, departamentos, áreas, direcciones o las unidades de recursos humanos, de todas las instituciones incluidas en el proyecto, en cuenta, para la Dirección y Administración de Gestión de Personal de la CCSS. Así entonces, en lo que se refiere propiamente a la consulta realizada en cuanto a la CCSS, el segundo párrafo del inciso a) le impone a dicho departamento que aplique y ejecute las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que Mideplán le remita. Lo cual, implicaría que un órgano del Poder Ejecutivo, como lo es Mideplán, le imponga a esta Institución con autonomía política, la aplicación y ejecución de sus disposiciones, directrices y reglamentos, y en materias que son de resorte exclusivo de dicha institución como lo es la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación o salarios y la gestión de las relaciones laborales. Siendo claramente tal obligación para la dirección de recursos humanos de la CCSS una violación a su autonomía política, conforme los alcances que la jurisprudencia constitucional le ha dado. Recuérdese que, propiamente sobre la CCSS esta Sala ha indicado que: “frente a un ente descentralizado creado por Constitución, y cuyo grado de autonomía, definido también por la misma Carta Magna, es de grado dos, la cual debe entenderse que incluye las potestades de formular planes o fijar los fines y metas del ente, la de darse los mecanismos internos de planificación funcional y financiera a través de los presupuestos y, el ejercicio de la potestad reglamentaria autónoma.” Por ello, “la Caja Costarricense de Seguro Social se le ubica siempre en una categoría especial dentro de las instituciones autónomas, porque a diferencia de estas, no sólo es de creación constitucional, sino que tiene un grado de autonomía mayor, asimilable al grado de autonomía de que gozan las municipalidades, cual es, autonomía de gobierno. Lo cual significa un grado de protección frente a la injerencia del Poder Ejecutivo, pero también limitaciones a la intervención del Poder Legislativo.” (sentencia n°2011-15665 y n°2017-004797). Dentro de esas limitaciones que tiene, tanto el Poder Ejecutivo como el Poder Legislativo respecto de la CCSS se encuentra que, la “Caja Costarricense de Seguro Social puede establecer las reglas para la selección de funcionarios que ocupan puestos en dicha institución…” (sentencia n°2011-14624). Siendo que, “el poder central tiene varias limitaciones respecto de su injerencia sobre las instituciones autónomas, así no puede actuar como jerarca del ente descentralizado: no puede controlarlo limitando la actividad del ente por razones de oportunidad; y, no puede, tampoco, actuar como director de la gestión del ente autónomo mediante la imposición de lineamientos o de programas básicos.” (sentencia n°2007-18484 y n°2018-006549). Ello por cuanto, “aunque ciertamente la CCSS no escapa a la ley, esta última no puede “modificar ni alterar” la competencia y autonomía dada constitucionalmente a la CCSS, definiendo aspectos que son de su resorte exclusivo. La Caja Costarricense de Seguro Social, por ser básicamente una institución autónoma de creación constitucional, la materia de su competencia, dada constitucionalmente, está fuera de la acción de la ley. Dicho de otro modo, el legislador, en el caso de la administración y gobierno de los seguros sociales tiene limitaciones, debiendo respetar lo que el Constituyente estableció.” (sentencia n°2011-12494). Así el Poder Ejecutivo no puede actuar como director o en una relación de jerarquía frente a esta institución, y no puede imponerle lineamientos, ni dar órdenes, ni controlar la oportunidad de sus actividades. Por ello, resulta inconstitucional el artículo 9 en cuestión por pretender someter al departamento de recursos humanos de la CCSS a aplicar y ejecutar las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que Mideplán le remita.

Sobre el artículo 13.b.- Familia de Puestos respecto de la CCSS (redacta magistrado Castillo Víquez) Sobre el artículo 13, inciso b) es inconstitucional, por no incluir en el citado inciso a los servidores que realizan labores sustanciales y administrativo, profesionales y técnicos, necesarios para alcanzar los fines constitucionalmente asignados a la CCSS, en los términos que se explica en el considerando general y supra.

Sobre el artículo 14.- Reclutamiento y selección en la CCSS (redacta magistrada Picado Brenes) Los consultantes refieren que se lesiona la autonomía política de la CCSS, al pretender someterla a las disposiciones que emite un órgano del Poder Ejecutivo, en lo relativo al reclutamiento y selección de su personal. El ordinal 14 en cuestión, dispone lo siguiente:

“ARTÍCULO 14- Reclutamiento y selección El reclutamiento y la selección de las personas servidoras públicas de nuevo ingreso se efectuará con base en su idoneidad comprobada, para lo cual el Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá, con absoluto apego a la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las disposiciones de alcance general, las directrices y los reglamentos, según la respectiva familia de puestos.

En los procesos de reclutamiento y selección no podrá elegirse a un postulante que se encuentre en alguna de las siguientes situaciones:

• a)Estar ligado por parentesco de consanguinidad o de afinidad en línea directa o colateral, hasta tercer grado inclusive, con la jefatura inmediata ni con las personas superiores inmediatas de esta en la respectiva dependencia.
• b)Encontrarse enlistada en el registro de personas inelegibles de la plataforma integrada de empleo público.” Tal y como ya fue debidamente acreditado, conforme lo dispuesto en los ordinales 2 y 13 del mismo proyecto de ley, y según lo dispuesto en este artículo 14, la CCSS también se vería sujeta a las disposiciones de alcance general, las directrices y los reglamentos que emita Mideplán en relación con el reclutamiento y la selección del personal de nuevo ingreso, lo cual deviene en inconstitucional. El artículo 73 de la Constitución expresa con claridad que “la Caja Costarricense de Seguro Social se le ubica siempre en una categoría especial dentro de las instituciones autónomas, porque a diferencia de estas, no sólo es de creación constitucional, sino que tiene un grado de autonomía mayor, asimilable al grado de autonomía de que gozan las municipalidades, cual es, autonomía de gobierno. Lo cual significa un grado de protección frente a la injerencia del Poder Ejecutivo, pero también limitaciones a la intervención del Poder Legislativo.” (sentencia n°2011-15665 y n°2017-004797). Además, claramente esta Sala ha indicado que la “Caja Costarricense de Seguro Social puede establecer las reglas para la selección de funcionarios que ocupan puestos en dicha institución,…” (sentencia n°2011-14624). En ese sentido, resulta inválida cualquier intromisión externa de otro poder en los aspectos propios de la CCSS, que lesione su autonomía. Bajo ese entendido, no es posible admitir que un órgano del Poder Ejecutivo, en este caso Mideplán, le imponga a la CCSS, disposiciones relativas a los procesos de reclutamiento y selección de su personal, materia que, tal y como se ha señalado, es consustancial al grado de autonomía de la que goza esta institución constitucional. En consecuencia, tal ordinal contiene un vicio de inconstitucionalidad, en tanto resulte aplicable a la CCSS.

Sobre el artículo 17.- Puestos de Alta Dirección en la CCSS (redacta magistrada Picado Brenes) El artículo consultado establece lo siguiente:

“ARTÍCULO 17- Personal de la alta dirección pública El Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá las disposiciones de alcance general, las directrices, y los reglamentos, en materia del personal de la alta dirección pública, que sean acordes con la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, para dotar a la Administración Pública de perfiles con integridad y probada capacidad de gestión, innovación y liderazgo, para procurar el mejoramiento de la prestación de bienes y servicios públicos. (…)” Los consultantes señalan la lesión a la autonomía de gobierno de la CCSS, por cuanto en esta norma se dispone que, tratándose de puestos de alta dirección será Mideplán quien emita las disposiciones de alcance general, directrices y reglamentos al respecto.

Al respecto, en el mismo sentido en que esta Sala ha venido resolviendo estos aspectos, la injerencia de este Ministerio, que es un órgano del Poder Ejecutivo, emitiendo disposiciones de alcance general, directrices y reglamentos a la CCSS en materia de los puestos de alta dirección, resulta violatorio de su autonomía de gobierno. La regulación de todo lo atinente a los puestos de alta dirección ya cuenta con regulación especial en la normativa interna de la propia CCSS. Recuérdese que esta Sala ha indicado que, la CCSS “puede establecer las reglas para la selección de funcionarios que ocupan puestos en dicha institución, pero respetando los fines específicos en la prestación del servicio público de la Caja Costarricense de Seguro Social (artículos 73, 191 y 192 de la Constitución Política).” (sentencia n°201114624). El Poder Ejecutivo, “…tiene varias limitaciones respecto de su injerencia sobre las instituciones autónomas, así no puede actuar como jerarca del ente descentralizado: no puede controlarlo limitando la actividad del ente por razones de oportunidad; y, no puede, tampoco, actuar como director de la gestión del ente autónomo mediante la imposición de lineamientos o de programas básicos.” (sentencia n°2018-6549). Nótese que, estos son puestos de gran importancia pues estarían referidos, al menos, respecto de quienes dirigen las distintas Gerencias y Direcciones, entre otros. Puestos que son de gran relevancia para el fiel cumplimiento de los fines asociados a la seguridad social asignados a la CCSS, que deben estar particularmente protegidos de la injerencia de otros Poderes de la República, y que requieren la estabilidad del personal necesaria para un adecuado e imparcial desempeño del cargo, lo cual es incompatible con una subordinación a las disposiciones que emita al respecto el Mideplán, como lo dispone la norma en cuestión. Por ende, se considera existe un vicio de inconstitucionalidad en el artículo 17 objeto de consulta, en los términos expuestos.

Sobre el artículo 18.- Plazos del Personal de Alta Dirección en la CCSS (redacta magistrada Picado Brenes) En criterio de los consultantes, el ordinal 18 consultado resulta inconstitucional, por cuanto incide en materia que es propia de la competencia de la CCSS, al establecer que, tratándose de puestos de alta dirección técnica, el nombramiento será por 6 años con un período de prueba de 6 meses, prorrogables anualmente, sujetas a la evaluación de desempeño. El artículo 18 consultado dispone lo siguiente:

“ARTÍCULO 18- Nombramiento y período de prueba de la alta dirección pública Toda persona servidora pública, que sea nombrada en puestos de alta dirección pública, estará a prueba durante el período de seis meses y su nombramiento se efectuará por un máximo de seis años, con posibilidad de prórroga anual, la cual estará sujeta a los resultados de la evaluación del desempeño. (…)” Sobre este particular, la regulación de aspectos relativos al nombramiento y selección de personal, tal como también ocurre con los puestos de alta dirección técnica, el período de prueba, plazo o condiciones de prórroga de los nombramientos, son regulaciones propias y atinentes a la autonomía política de la CCSS. Se entiende que los puestos de alta dirección técnica, definidos por la propia institución, son puestos estratégicos de gran importancia para su debida organización, tales como podrían ser las distintas Direcciones en Planificación, Actuarial, Gestión de Personal; y las distintas Gerencias Administrativa, Financiera y Médica, entre otros. En atención a ello y a los fines propios de esta institución constitucional, es a ella a quien corresponde, el valorar las necesidades del servicio que presta y determinar las condiciones en que deben ser ocupados esos puestos, para dar cumplimiento a los fines constitucionales que le han sido asignados, en respeto del grado de autonomía reconocido, siempre y cuando atienda al principio de idoneidad. En su caso, por ejemplo, la conveniencia del período de nombramiento de esos puestos o las condiciones de prórroga podrían estar sujetas a una condición de mayor estabilidad en el puesto como la garantizada en el ordinal 192 constitucional. Todo de acuerdo a su normativa interna, y no, a una normativa genérica como la que se pretende en este proyecto de ley. La definición de tales condiciones es competencia exclusiva a esta institución constitucional especializada. De modo que, en los términos en que está dispuesto el artículo 18 consultado, contiene un vicio de inconstitucionalidad, por violentar la autonomía política de la CCSS, a quien le corresponde de manera exclusiva la definición de las condiciones en que se deben desempeñar sus puestos de alta dirección.

• 4)Conclusión En los términos indicados y conforme a la jurisprudencia de esta Sala, resultan inconstitucionales del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, los artículos siguientes.

Analizados todos los aspectos consultados en cuanto al artículo 2 (inciso b), 6, 7 (incisos d), 9 (segundo párrafo del inciso a), 13 (inciso b), 14, 17 y 18, del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación a la autonomía de gobierno de la CCSS, constitucionalmente protegida (art.73 constitucional) de esta institución. Artículos referidos a lo siguiente: 6 (rectoría del Sistema General de Empleo Público a cargo de Mideplan), 7 (amplias competencias de Mideplan para convertirlo en una especie de superior jerarca con potestades normativas sobre todo el aparato estatal en materia de empleo público), 9 (la sujeción y el sometimiento de las oficinas de recursos humanos a Mideplan y a la Dirección General de Servicio Civil), 13 (sobre un único régimen general de empleo público conformado por ocho familias), 14 (reclutamiento y selección con base en disposiciones normativas de Mideplan), 17 y 18 (personal de alta dirección pública sometidos a un único plazo de periodo de prueba y un único plazo de nombramiento). Tratándose de la Caja Costarricense de Seguro Social, debido a su grado de autonomía, aún el mismo legislador no puede sujetarla a órdenes y regulaciones de un órgano del Poder Ejecutivo, pues ello va en contra del grado de autonomía y garantía conferida por la Constitución Política a esta institución. Toda esta normativa del proyecto tiene incidencia en el ejercicio de las funciones de la CCSS. Esta Sala ha establecido los alcances de esta autonomía indicando que a la CCSS se le dio plena autonomía para independizarla del Poder Ejecutivo (ver voto n°2011-15665). Ciertamente, del examen de la normativa consultada se observa que, el “Sistema General de Empleo Público” que coloca al Ministerio de Planificación Nacional y Política Económica (Mideplán) como su órgano rector, invade la materia de autonomía de gobierno de la CCSS. Evidenciando que esa rectoría va más allá de la regulación de una actividad, para tratarse en realidad de una relación de dirección y subordinación, con la emisión de directrices y reglamentos concretos sobre la materia..." "...

XIII.- Sobre la consulta de violación a la autonomía de las Municipalidades.- 1) Aspectos consultados Los consultantes diputados consideran que los siguientes artículos del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, son violatorios de la autonomía municipal. En concreto, consultan sobre los artículos siguientes, indicados, sea en el encabezado del título general o en el resto del texto del escrito de interposición:

2.c (ámbito de cobertura), 6 (rectoría de Mideplan), 7 (competencias de Mideplan), 9.a (oficinas de Recursos Humanos), 13 (familias de puestos), 14 (reclutamiento y selección), 17 (personal de Alta Dirección), 18 (plazo de prueba y plazo de nombramiento), Los consultantes consideran inconstitucionales estas normas, por cuanto, se viola la autonomía de las Municipalidades. Indican que es inconstitucional sujetar a las Corporaciones Municipales a aplicar y ejecutar las disposiciones de alcance general, directrices y reglamentos que emita el Mideplán en temas relacionados con planificación del trabajo, organización del trabajo, gestión del empleo, gestión del rendimiento o evaluación de desempeño, gestión de la compensación y gestión de las relaciones laborales, la sujeción de las oficinas de recursos humanos al Sistema General de Empleo Público (arts. 6, 7 y 9), la creación de un único régimen de empleo público (art.13), la sujeción al Mideplán en materia de reclutamiento y selección de personal (art.14), incluido el de alta dirección técnica (art.17 y 18).

Antes de proceder al examen de la constitucionalidad de las normas impugnadas, resulta procedente recordar los alcances y limitaciones constitucionales de la autonomía de las municipalidades, conforme lo ha establecido la jurisprudencia constitucional.

• 2)Antecedentes Jurisprudenciales sobre la Autonomía de Gobierno de las Municipalidades Lo primero que se debe indicar es que, el régimen municipal es una modalidad de descentralización territorial, de conformidad con la propia redacción del párrafo primero del artículo 168 constitucional (sentencia n°2006-17113). Las Municipalidades son entes descentralizados, en razón del territorio, que han sido dotadas de un cierto grado de autonomía. Esta autonomía es de segundo grado, mayor que la de las instituciones autónomas, pues además de autonomía administrativa gozan de autonomía de gobierno. Así entonces, una de las mayores garantías que poseen las municipalidades frente al Gobierno Central, es el grado de autonomía que la Constitución les ha asignado. Definida por la jurisprudencia constitucional como autonomía de gobierno, o grado dos de autonomía. Aunque el texto constitucional es muy escueto en cuanto a los alcances y limitaciones de este grado de autonomía, la jurisprudencia constitucional ha dado ciertas definiciones al respecto. Ha dicho que la autonomía municipal contenida en el artículo 170 de la Constitución Política, esencialmente se origina en el carácter representativo por ser un gobierno local (única descentralización territorial del país), encargado de administrar los intereses locales. En cuanto a sus alcances se ha indicado que dicha autonomía incluye la autonomía presupuestaria, la creación de impuestos y darse sus propios planes reguladores. Además, pueden las municipalidades definir sus políticas de desarrollo (planificar y acordar programas de acción) y dictarse su propio presupuesto, en forma independiente y con exclusión de cualquier otra institución del Estado. Las municipalidades crean las obligaciones impositivas locales, en ejercicio de su autonomía, y las someten a la aprobación legislativa que condiciona su eficacia (sentencia n°2000-010136), conforme lo establece el artículo 121.14 constitucional. Los gobiernos locales pueden darse su propia ordenación territorial a través de los planes reguladores pero dicha normativa está subordinada y sometida a la legislación tutelar ambiental. Por ello, la Sala ha venido señalando que debe ser requisito fundamental que, obviamente no atenta contra el principio constitucional de la autonomía municipal, el que todo plan regulador del desarrollo urbano deba contar, de previo a ser aprobado e implementado, con un examen o evaluación de su impacto ambiental (Sentencia n°2012-001315). Por otro lado, en cuanto a los alcances de su competencia material, se ha indicado que, por lo amplio del concepto de “intereses y servicios locales”, debe entenderse que la descentralización territorial del régimen municipal no implica eliminación de las competencias asignadas a otros órganos y entes del Estado. En concreto se dijo que, el grado de autonomía municipal no puede entenderse que se trata de una autonomía plena o ilimitada, pues siempre se encuentra sujeta a ciertos límites:

“… esa autonomía de las Municipalidades otorgadas por el Constituyente en el artículo 170 de la Norma Fundamental, si bien constituye formalmente un límite a las injerencias del Poder Ejecutivo, no puede entenderse que se trata de una autonomía plena o ilimitada, pues siempre se encuentra sujeta a ciertos límites, ya que la descentralización territorial del régimen municipal, no implica eliminación de las competencias asignadas a otros órganos y entes del Estado. Es por ello, que existen intereses locales cuya custodia corresponde a las Municipalidades y junto a ellos, coexisten otros cuya protección constitucional y legal es atribuida a otros órganos públicos, entre ellos el Poder Ejecutivo…” (Sala Constitucional, sentencia n°2007-013577 y sentencia n°2010-020958).

Así por ejemplo, la autonomía municipal no le permite a los ayuntamientos sustraerse de lo que ha sido declarado como un interés de carácter nacional, de lo contrario se pervierte la autonomía territorial transformando a los municipios en micro estados, abstraídos de la dirección intersubjetiva o tutela que pueda ejercer el Estado, a través de los órganos constitucionales (sentencia n°2011-015736).

La autonomía municipal, que “… debe ser entendida como la capacidad que tienen las Municipalidades de decidir libremente y bajo su propia responsabilidad, todo lo referente a la organización de determinada localidad (el cantón, en nuestro caso)” (voto n° 5445-1999), implica que el gobierno local tiene potestad de autonormación y autoadministración, esto quiere decir que pueden dictar sus propios reglamentos para regular su organización interna y los servicios que presta, así como su capacidad de gestionar y promover intereses y servicios locales de manera independiente del Poder Ejecutivo. Asimismo, en la jurisprudencia precitada se ha indicado que no pueden subsistir funciones de ningún ente público que disputen su primacía con las municipalidades, cuando se trata de materia que integra lo local. Para definir lo local o distinguirlo de lo que no lo es, se puede hacer por medio de la ley, o bien, por interpretación jurisprudencial. Así, la plena autonomía municipal es referida, estrictamente a “lo local”, pero no puede crearse un antagonismo entre los intereses y servicios locales con los nacionales, puesto que ambos están llamados a coexistir. Ha dicho este Tribunal que “… en lo atinente a lo local no caben regulaciones de ningún otro ente público, salvo que la ley disponga lo contrario, lo que implica un fundado motivo para dictar la regulación; o lo que es lo mismo, el municipio no está coordinado con la política del Estado y solo por la vía de la ley se puede regular materia que pueda estar vinculada con lo local, pero a reserva que esa norma jurídica resulte razonable, según los fines que se persiguen” (voto n° 5445-1999).

Sobre la autonomía de las municipalidades en materia de empleo público, procede citar el voto n° 02934-1993 de las 15:27 horas del 22 de junio de 1993, en el cual se declaró inconstitucionales las regulaciones impugnadas en las que se establecía la intromisión de la Contraloría General de la República en el orden disciplinario interno de los gobiernos locales. En esa ocasión la Sala consideró que:

“III.- LA ALEGADA VIOLACION A LA AUTONOMIA MUNICIPAL.- Se argumenta que el artículo 18 de la Ley de Enriquecimiento Ilícito de los Servidores Públicos viola los principios establecidos en los artículos 170 y 184 inciso 5 de la Constitución Política, en razón que la norma atenta contra la autonomía municipal, que se debe entender no sólo en el ámbito administrativo, sino también de gobierno.

VI.- Los párrafos cuarto, en especial, y el quinto, son los que han sido cuestionados en la acción. Este último, si bien no es objeto de cuestionamiento en la acción, lo fue en la audiencia oral celebrada. Dispone la norma:

" Para cumplir con el espíritu de esta ley, cuando la Contraloría lo considere necesario, podrá permutar a los auditores de los diferentes entes públicos por el tiempo que ella fije, o los podrá sustituir por un plazo limitado para asignarlos a trabajos de investigación, dentro de la Contraloría o en el sitio que ella les fije".

Esta norma, a juicio de la Sala y de conformidad con lo que señala el artículo 89 de la Ley de la Jurisdicción Constitucional, por conexidad, resulta abiertamente inconstitucional por ser contraria a la Autonomía Municipal, contenida en el artículo 170 de la Constitución Política. La autonomía municipal, que proviene de la propia Constitución Política, esencialmente se origina en el carácter representativo de ser un gobierno local (única descentralización territorial del país), encargado de administrar los intereses locales y por ello las municipalidades pueden definir sus políticas de desarrollo (planificar y acordar programas de acción), en forma independiente y con exclusión de cualquier otra institución del Estado, facultad que conlleva, también, la de poder dictar su propio presupuesto. Esta autonomía política implica, desde luego, la de dictar los reglamentos internos de organización de la corporación, así como los de la prestación de los servicios públicos municipales. Por ello se ha dicho en la doctrina local, que "se trata de una verdadera descentralización de la función política en materia local". Dentro de esta concepción muy general de la autonomía municipal, la norma que se analiza resulta contraria a sus principios, puesto que entendida en su justa dimensión, lo que se señala es ni más ni menos, que el Auditor Municipal deja de ser un funcionario de la Comuna, para depender, jerárquicamente, de la Contraloría General de la República, que puede disponer de él libremente, con prescindencia del criterio de la propia Municipalidad. Esto implica, a todas luces, que el párrafo antes transcrito sea, a juicio de la Sala, inconstitucional y deba, por ello, anularse y eliminarse del ordenamiento jurídico. No lo sería en cambio, si todos los Auditores de los entes públicos, fueran funcionarios de la Contraloría General de la República y dependientes de ésta, que ejercieran sus funciones de control a priori por delegación, como se ha sugerido en algunas ocasiones, pero concepto, éste, que no es objeto de la acción.

VII.- Procede ahora analizar el párrafo que establece :

"La destitución del auditor de cada uno de los ministerios, entidades públicas y empresas públicas de derecho privado, requerirá la aprobación de la Contraloría General de la República".

La autonomía municipal no excluye el control de legalidad, del que la doctrina es unánime en admitir, en las manifestaciones de las autorizaciones y aprobaciones (control a priori y a posteriori, como requisitos de validez y eficacia de los actos, respectivamente), como compatibles con ella. La doctrina costarricense más calificada ha expresado sobre el punto : "No reputamos incompatibles con la autonomía municipal, sino más bien aconsejables, los controles de legalidad con potestades de suspensión, anulación y sustitución, por la Contraloría General de la República, de actos administrativos municipales totalmente reglados, pues ello vendría abonado por la lógica de ese tipo de control y por la conveniencia de frenar los desmanes administrativos antes de la vía judicial, como tal lenta e incumplida". Es decir, que el control que emana de la Contraloría General de la República, que es de origen también constitucional según los textos de sus artículos 183 y 184, no contraría la autonomía municipal, porque su función principal es el control de legalidad de la administración financiera del sector público estatal y municipal, de donde se infiere que en lo que toca a los gobiernos locales, su procedencia tiene sustento en un texto constitucional expreso (artículo 184 inciso 2). Este control se reduce a la verificación del cumplimiento de los presupuestos de legalidad aplicables, prescindiendo de toda alusión a las cuestiones de conveniencia y oportunidad. Así las cosas, estima la Sala que la sola aprobación de la destitución de un auditor municipal, como medida de verificación del cumplimiento de las reglas del debido proceso, no es una medida irrazonable, ni desproporcionada, capaz de violar la integridad administrativa de las Municipalidades. Como una nota del ejercicio de las competencias de control, no estima la Sala que la Contraloría General de la República esté suplantando las competencias municipales. Por el contrario, la ley lo que está señalando, es un procedimiento de verificación de la legalidad de lo actuado que no resulta a nuestro criterio, contrario al artículo 170 de la Constitución Política. Esta norma jurídica, como no requiere de posterior desarrollo para su aplicación a los casos concretos, resulta de obligatorio acatamiento, aún sin la existencia del reglamento, según la inconstitucionalidad que ahora se declara”.

En el mismo sentido, en el voto n° 1691-94 de las 10:48 horas del 8 de abril de 1994 se dispuso que el ejecutivo municipal -ahora alcalde- es el encargado del régimen disciplinario de los Gobiernos Locales, respecto de los funcionarios y empleados que de él dependen, de modo que es quien dicta la resolución de fondo en materia de despidos. Estos criterios fueron reiterados en el voto n° 5445-1999 de las 14:30 horas del 14 de julio de 1999, el cual ha sido mencionado en numerosas sentencias de esta Sala a la fecha. En este voto el Tribunal Constitucional se refirió a la relación de tutela administrativa entre las municipalidades y otras instituciones estatales, bajo formas pactadas de coordinación voluntaria (esto admite la función de control de legalidad y potestades de vigilancia del Estado, así como la emisión de directrices y lineamientos generales), además, a la función disciplinaria, la asignación de funciones a los empleados municipales y a la fijación del salario del Alcalde, con base en las siguientes consideraciones:

“I.- CONCEPTOS GENERALES SOBRE EL RÉGIMEN MUNICIPAL. Puede decirse, en síntesis, que las municipalidades o gobiernos locales son entidades territoriales de naturaleza corporativa y pública no estatal, dotadas de independencia en materia de gobierno y funcionamiento, lo que quiere decir, por ejemplo, que la autonomía municipal involucra aspectos tributarios, que para su validez requieren de la autorización legislativa, la contratación de empréstitos y la elaboración y disposición de sus propios ingresos y gastos, con potestades genéricas..

II.- AUTONOMÍA MUNICIPAL. GENERALIDADES. Gramaticalmente, es usual que se diga que el término "autonomía", puede ser definido como "la potestad que dentro del Estado pueden gozar municipios, provincias, regiones u otras entidades de él, para regir intereses peculiares de su vida interior, mediante normas y órganos de gobierno propios". Desde un punto de vista jurídico-doctrinario, esta autonomía debe ser entendida como la capacidad que tienen las Municipalidades de decidir libremente y bajo su propia responsabilidad, todo lo referente a la organización de determinada localidad (el cantón, en nuestro caso). Así, algún sector de la doctrina ha dicho que esa autonomía implica la libre elección de sus propias autoridades; la libre gestión en las materias de su competencia; la creación, recaudación e inversión de sus propios ingresos; y específicamente, se refiere a que abarca una autonomía política, normativa, tributaria y administrativa, definiéndolas, en términos muy generales, de la siguiente manera: autonomía política: como la que da origen al autogobierno, que conlleva la elección de sus autoridades a través de mecanismos de carácter democrático y representativo, tal y como lo señala nuestra Constitución Política en su artículo 169; autonomía normativa: en virtud de la cual las municipalidades tienen la potestad de dictar su propio ordenamiento en las materias de su competencia, potestad que en nuestro país se refiere únicamente a la potestad reglamentaria que regula internamente la organización de la corporación y los servicios que presta (reglamentos autónomos de organización y de servicio); autonomía tributaria: conocida también como potestad impositiva, y se refiere a que la iniciativa para la creación, modificación, extinción o exención de los tributos municipales corresponde a estos entes, potestad sujeta a la aprobación señalada en el artículo 121, inciso 13 de la Constitución Política cuando así corresponda; y autonomía administrativa: como la potestad que implica no sólo la autonormación, sino también la autoadministración y, por lo tanto, la libertad frente al Estado para la adopción de las decisiones fundamentales del ente. Nuestra doctrina, por su parte, ha dicho que la Constitución Política (artículo 170) y el Código Municipal (artículo 7 del Código Municipal anterior, y 4 del vigente) no se han limitado a atribuir a las municipalidades de capacidad para gestionar y promover intereses y servicios locales, sino que han dispuesto expresamente que esa gestión municipal es y debe ser autónoma, que se define como libertad frente a los demás entes del Estado para la adopción de sus decisiones fundamentales. Esta autonomía viene dada en directa relación con el carácter electoral y representativo de su Gobierno (Concejo y Alcalde) que se eligen cada cuatro años, y significa la capacidad de la municipalidad de fijarse sus políticas de acción y de inversión en forma independiente, y más específicamente, frente al Poder Ejecutivo y del partido gobernante. Es la capacidad de fijación de planes y programas del gobierno local, por lo que va unida a la potestad de la municipalidad para dictar su propio presupuesto, expresión de las políticas previamente definidas por el Concejo, capacidad, que a su vez, es política.

(…)

A. DE LAS RELACIONES DE LAS MUNICIPALIDADES CON LAS DEMÁS INSTITUCIONES ESTATALES Y LA SOCIEDAD.

X.- DE LA OBLIGACIÓN DE COORDINACIÓN CON LAS INSTITUCIONES ESTATALES. las municipalidades pueden compartir sus competencias con la Administración Pública en general, relación que debe desenvolverse en los términos como está definida en la ley (artículo 5 del Código Municipal anterior, artículo 7 del nuevo Código), que establece la obligación de "coordinación" entre la municipalidades y las instituciones públicas que concurran en el desempeño de sus competencias, para evitar duplicaciones de esfuerzos y contradicciones, sobre todo, porque sólo la coordinación voluntaria es compatible con la autonomía municipal por ser su expresión. En otros términos, la municipalidad está llamada a entrar en relaciones de cooperación con otros entes públicos, y viceversa, dado el carácter concurrente o coincidente -en muchos casos-, de intereses en torno a un asunto concreto. (…) Como no hay una relación de jerarquía de las instituciones descentralizadas, ni del Estado mismo en relación con las municipalidades, no es posible la imposición a éstas de determinadas conductas, con lo cual surge el imprescindible "concierto" interinstitucional, en sentido estricto, en cuanto los centros autónomos e independientes de acción se ponen de acuerdo sobre ese esquema preventivo y global, en el que cada uno cumple un papel con vista en una misión confiada a los otros. Así, las relaciones de las municipalidades con los otros entes públicos, sólo pueden llevarse a cabo en un plano de igualdad, que den como resultado formas pactadas de coordinación, con exclusión de cualquier forma imperativa en detrimento de su autonomía, que permita sujetar a los entes corporativos a un esquema de coordinación sin su voluntad o contra ella; pero que sí admite la necesaria subordinación de estos entes al Estado y en interés de éste (a través de la "tutela administrativa" del Estado, y específicamente, en la función de control la legalidad que a éste compete, con potestades de vigilancia general sobre todo el sector).

(…) Esta obligación de coordinación entre las instituciones del Estado y las municipalidades está implícita en la propia Constitución Política; (…)

“E. RÉGIMEN DISCIPLINARIO MUNICIPAL.

XXXVII.- DEL RÉGIMEN DISCIPLINARIO MUNICIPAL Y EL FUNCIONARIO A QUIEN LE CORRESPONDE SU DIRECCIÓN.

(…) Al implicar el régimen disciplinario una relación de subordinación del empleado público para con la institución para la que labora, queda en evidencia, que es a esa institución a la que le corresponde su dirección y aplicación directamente, sin interferencias de otras dependencias administrativas. El caso del régimen disciplinario de las municipalidades no es una excepción, en tanto corresponde al Ejecutivo Municipal -ahora Alcalde- la función disciplinaria de los funcionarios y empleados del los gobiernos locales que no dependan directamente del Concejo, en virtud de lo dispuesto en los artículos 141, 142, 148, 150 y 154 del Código Municipal anterior, artículos 17 inciso k) del Código Municipal vigente; de manera que el personal de las municipalidades es nombrado y administrado por este funcionario, salvo los que corresponden directamente al Concejo (auditor o contador y al Secretario del Concejo, -incisos f) del artículo 13 del Código Municipal, número 7794), según lo dicho en sentencia número 1691-94, de las diez horas cuarenta y ocho minutos del ocho de febrero de mil novecientos noventa y cuatro. Asimismo, en sentencia número 1355-96, de las doce horas dieciocho minutos del veintidós de marzo de mil novecientos noventa y seis, se dijo respecto del Ejecutivo Municipal XXXIX.- DE LA DEFINICIÓN DE FUNCIONES DE LOS EMPLEADOS MUNICIPALES. En los Considerandos anteriores se ha indicado que la competencia organizativa de las dependencias municipales es expresión de la autonomía administrativa de que gozan las corporaciones municipales. En este sentido, al ser el Alcalde Municipal -antes Ejecutivo Municipal- el administrador general de las dependencias locales, es a quien corresponde la asignación de funciones de sus empleados, conforme lo disponía el artículo 142 del Código Municipal anterior:

XL.- DE LA FIJACIÓN DE SALARIOS. El artículo 76 del Código Municipal es impugnado en cuanto establece una categorización de las municipalidades en razón del presupuesto y confiere al Instituto de Fomento y Asesoría Municipal, en coordinación con la Contraloría General de la República, la tarea para fijar los salarios de los entonces Ejecutivos Municipales y sus aumentos en relación con los presupuestos de las mismas, lo cual se estima violatorio de la autonomía municipal y el principio de razonabilidad. Efectivamente, conforme a todo lo dicho anteriormente en esta sentencia, esta disposición es absolutamente inconstitucional, en abierta violación de la autonomía administrativa de las municipalidades definida en el artículo 170 constitucional, en tanto la fijación del salario de su Alcalde (antes Ejecutivo) es materia propia de su gobierno y administración, debiendo corresponder a sus autoridades su determinación, conforme a las funciones que tiene encomendadas, lo cual, en todo caso, debe estar en relación proporcional con el presupuesto de la municipalidad, tal y como se define en el artículo 20 del Código Municipal, número 7794. En virtud de lo cual, la frase del párrafo tercero del artículo 76 que dice "La Contraloría General de la República y el Instituto de Fomento y Asesoría Municipal fijarán, anualmente, los salarios de los ejecutivos municipales, con base en el monto de los presupuestos municipales a que se refiere este artículo"; resulta inconstitucional.(…)”.

El criterio jurisprudencial emitido en la sentencia parcialmente citada ha sido reiterado y utilizado para resolver numerosos asuntos a la fecha, relacionados con autonomía municipal, potestad tributaria, policía municipal, materia ambiental, manejo de desechos, bienes municipales y otros (ver votos números 2001-04841 de las 15:02 del 6 de junio de 2001, 2002-05832 de las 08:58 horas del 14 de junio de 2002, 2005-02594 de las 14:58 horas del 9 de marzo de 2005, 17113-2006 de las 14:51 horas del 28 de noviembre de 2006, 2007-13577 de las 14:40 horas del 19 de septiembre de 2007, 2007-15206 de las 11:48 horas del 19 de octubre de 2007, 2011-004205 de las 17:49 horas del 29 de marzo de 2011, 04621-2016 de las 16:20 horas del 5 de abril de 2016, entre muchos otros. Sobre potestad tributaria y patentes véanse los votos números 9677-2001 de las 11:26 horas del 26 de septiembre de 2001, 2001-10153 de las 14:44 horas del 10 de octubre de 2001 y ° 2005-02910 de las 15:59 horas del 15 de marzo de 2005. Sobre tasas municipales y policía municipal votos números 2001-01613 de las 14:54 horas del 27 de febrero de 2001 y 2001-01614 de las 14:55 del 27 de febrero de 2001. Sobre las competencias municipales en materia ambiental votos números n° 2015-016362 de las 09:30 horas del 21 de octubre de 2015 y 2016-004621 de las 16:20 horas del 5 de abril de 2016. Sobre competencias municipales en manejo de desechos el voto n° 13577-2007 de las 14:40 horas del 19 de septiembre de 2007). Entre estos votos es oportuno destacar el voto n° 2007-13577 de las 14:40 horas del 19 de septiembre de 2007, en cuanto deja claro que a pesar de la autonomía que ostentan las municipalidades, no se pueden abstraer de la necesaria coordinación y sintonía que deben mantener con otras instituciones del Estado, a fin de lograr cumplir con el plan nacional de desarrollo del país. Concretamente se dijo en esa oportunidad:

“Ahora bien, esa autonomía de las Municipalidades otorgadas por el Constituyente en el artículo 170 de la Norma Fundamental, si bien constituye formalmente un límite a las injerencias del Poder Ejecutivo, no puede entenderse que se trata de una autonomía plena o ilimitada, pues siempre se encuentra sujeta a ciertos límites, ya que la descentralización territorial del régimen municipal, no implica eliminación de las competencias asignadas a otros órganos y entes del Estado. Es por ello, que existen intereses locales cuya custodia corresponde a las Municipalidades y junto a ellos, coexisten otros cuya protección constitucional y legal es atribuida a otros órganos públicos, entre ellos el Poder Ejecutivo. Por tal razón, ha reconocido esta Sala que cuando el problema desborda la circunscripción territorial a la que están supeditados los gobiernos locales, las competencias pueden ser ejercidas por instituciones nacionales del Estado, pues el accionar de las primeras quedan integradas dentro de los lineamientos generales que se han trazado dentro del plan nacional de desarrollo, sin que ello signifique una violación a su autonomía”.

En cuanto a las potestades del legislador para desarrollar el marco jurídico funcional del alcalde, la Sala ha señalado que esto obedece a los principios de oportunidad y conveniencia, cuyos límites están en la razonabilidad del acto legislativo, en este sentido, en el voto n° 2008-007685 de las 14:48 horas del 7 de mayo de 2008, se dispuso que:

“II.- La jurisprudencia de esta Sala sobre la autonomía municipal. El reclamo del Alcalde Municipal de Aguirre debe dilucidarse dentro del marco jurisprudencial que esta Sala Constitucional ha desarrollado sobre el tema de la autonomía municipal, la cual ha sido entendida como la capacidad que tienen las municipalidades de decidir libremente, y bajo su propia responsabilidad, todo lo relacionado con la organización de determinada localidad.

(…) Como se evidencia de la anterior cita jurisprudencial, la autonomía normativa implica la capacidad municipal para dictar su propio ordenamiento normativo (entendido este respecto de los reglamentos autónomos de organización y de servicio), pero supeditado a lo que la Ley establezca.

III.-(…), el constituyente delegó en el legislador ordinario desarrollar el marco jurídico funcional del Alcalde Municipal, con ello la Ley puede restringir o mejorar la figura de los Vice-Alcaldes como colaboradores del Alcalde en sus funciones. De conformidad con lo establecido por la norma constitucional, el desarrollo legislativo que se haga obedece a los principios de oportunidad y conveniencia del legislador, cuyos únicos límites están en la razonabilidad del acto legislativo. (el destacado no corresponde al original).

Finalmente, resulta importante resaltar como antecedente jurisprudencial la sentencia n° 11406-2017 de las 10:17 horas del 19 de julio de 2017, en la cual se impugnó varias normas de la Ley de Aguas porque establecían que el inspector de aguas era un funcionario nombrado por el MINAE, pero que al municipio le correspondía asumir el costo de su salario. Al respecto se resolvió que:

“De esta manera, en este orden argumentativo, podemos afirmar que la figura del inspector cantonal de aguas encuentra sustento en esta visión que se viene sosteniendo en esta sentencia respecto a que el agua no es un asunto de interés local que califique dentro de la autonomía municipal, pues no es meramente local -sino más bien de interés nacional-, ni susceptible de ser sometido a criterios de territorialidad. Por ende, este inspector actúa en la lógica de coordinación entre las instituciones públicas en materia ambiental, ya que es un funcionario subordinado al MINAE, órgano que ostenta la rectoría en materia del recurso hídrico, pero mantiene una relación cercana con los municipios, pues es pagado por ellos con un canon específico que prevé la normativa. En este sentido, no es posible afirmar que esta figura lesione la autonomía municipal, ya que, como se mencionó, en temas de carácter nacional, como el agua, ésta autonomía no es una autonomía plena o ilimitada, pues siempre se encuentra sujeta a ciertos límites, como por ejemplo cuando entran en juego principios y derechos constitucionales como el derecho al agua. Asimismo, tampoco puede alegarse que infrinja la competencia presupuestaria de la Municipalidad, pues, como recién se indicó, en la normativa está previsto un canon específico para su financiamiento. De este modo, es que este Tribunal considera que no lleva razón ni el alcalde accionante, ni la Procuraduría General de la República sobre una posible inconstitucionalidad sobreviniente, ya que la figura del inspector cantonal de aguas no lesiona la autonomía municipal consagrada en la Constitución Política, por lo que se trata de una figura conforme al Derecho de la Constitución. En virtud de lo expuesto, lo que corresponde es declarar sin lugar la acción.”.

En conclusión, los gobiernos locales son "una verdadera descentralización de la función política en materia local". El grado de autonomía de las municipalidades, cual es autonomía administrativa y de gobierno, les permite auto-administrarse (disponer de sus recursos humanos, materiales y financieros), realizar sus competencias legales por sí mismas, darse su propia organización interna. Pero además, en cuanto a la autonomía de gobierno, implica que pueden fijarse sus fines, metas y medios, también, pueden emitir reglamentos autónomos de servicio. Asimismo, pueden definir sus políticas de desarrollo (planificar y acordar programas de acción), crear impuestos (que deberán ser autorizados vía legal) y darse su propia ordenación territorial a través de los planes reguladores. Pero igual tienen la limitación de que no pueden sustraerse de aquello que ha sido declarado de interés nacional.

• 3)Análisis concreto de lo consultado Sobre el artículo 2.c.- Ámbito de cobertura respecto de las Municipalidades (redacta magistrada Picado Brenes) Los consultantes acusan que el inciso c) del artículo 2 del proyecto de ley consultado, en el tanto incluye a las municipalidades dentro de su ámbito de aplicación, lesiona la autonomía de gobierno de estos gobiernos locales. Al respecto, en el mismo sentido en que se ha sostenido la constitucionalidad per se de esta norma, respecto de otras instituciones, el artículo 2 inciso c) no es por sí mismo inconstitucional, en cuanto incluye a las municipalidades en un marco regulatorio general de empleo público, pero sí es inconstitucional por sus efectos puesto que algunas de las normas de este proyecto de ley vacían de contenido su autonomía de gobierno, tal como se verá en concreto en los apartados siguientes. Retomando lo que se expuso supra, es plausible sujetar a todos los poderes e instituciones del Estado a un único estatuto de empleo público. Sin embargo, en la medida en que tal sujeción vaya más allá de principios generales e incursione en materia propia de la autonomía de gobierno de las municipalidades, sí es inconstitucional tal sujeción por sus efectos, pues, no es posible someter a los gobiernos locales a directrices, disposiciones, circulares, manuales que emita Mideplán, ni tampoco establecer por ley obligaciones que son de ámbito de su grado de autonomía. Recuérdese que las Municipalidades son entes descentralizados, en razón del territorio, que han sido dotadas de un cierto grado de autonomía. Así entonces, una de las mayores garantías que poseen las municipalidades frente al Gobierno Central, es el grado de autonomía que la Constitución les ha asignado, cual es, autonomía política o de gobierno, o grado dos de autonomía. En cuanto a sus alcances se ha indicado que dicha autonomía incluye la autonomía presupuestaria, la creación de impuestos y darse sus propios planes reguladores. Además, pueden las municipalidades definir sus políticas de desarrollo (planificar y acordar programas de acción), en forma independiente y con exclusión de cualquier otra institución del Estado, facultad que conlleva, también la de poder dictar su propio presupuesto. Si bien es cierto, el grado de autonomía municipal no puede entenderse que se trata de una autonomía plena o ilimitada, pues siempre se encuentra sujeta a ciertos límites, es lo cierto que, tienen un grado de protección especial, que nace de su autonomía política, y que hace que la sujeción de las municipalidades a este proyecto de ley general de empleo público sea inconstitucional por sus efectos. En conclusión, el inciso c) del artículo 2 del proyecto es inconstitucional por sus efectos.

Sobre el artículo 6.- Potestad de Dirección de Mideplán respecto de las Municipalidades (redacta magistrado Castillo Víquez) Los artículos 169 y 170 de la Constitución Política les asignan a las municipalidades velar por los intereses y servicios locales, para lo cual las dota de autonomía política. Para tales fines, como fácilmente puede deducirse, lo referente a esa materia -fijación de metas y fines-, tiene como consecuencia lógica, desde la óptica jurídica, que el Poder Ejecutivo o uno de sus órganos –Mideplán- no pueden ejercer la potestad de dirección -dictarle directrices- o la potestad reglamentaria. Esta postura es constitucionalmente válida en lo que atañe a la materia de empleo público, concretamente aquel funcionariado indispensable para cumplir con los fines constitucionalmente asignados, así como el personal administrativo, profesional y técnico, que las máximas autoridades de las Corporaciones Municipales definan, de forma exclusiva y excluyente. Significa lo anterior, que algunos empleados públicos de esas corporaciones, los que realizan funciones administrativas básicas, auxiliares, que sí podrían quedar bajo la rectoría del Poder Ejecutivo o Mideplán. Adoptando como hoja de ruta estas premisas, después de pasar revista por la jurisprudencia de este Tribunal, se hará un análisis de las normas que se consultan.

De conformidad con los artículos 191 y 192 de la Constitución Política, que se incluya a las municipalidades dentro del proyecto de Ley Marco de Empleo Público no es inconstitucional. Por el contrario, el constituyente permite que haya varios o un solo estatuto que regule las relaciones entre el Estado y los servidores públicos. Esto, siempre y cuando se reconozca en esa normativa el ámbito de autonomía que tienen los gobiernos locales, conforme lo establece el artículo 170 constitucional y lo ha desarrollado esta Sala Constitucional en la jurisprudencia precitada.

La autonomía municipal, que “(…) debe ser entendida como la capacidad que tienen las Municipalidades de decidir libremente y bajo su propia responsabilidad, todo lo referente a la organización de determinada localidad (el cantón, en nuestro caso)” (voto No. 5445-1999), implica que el gobierno local tiene potestad de autonormación y autoadministración, esto quiere decir que pueden dictar sus propios reglamentos para regular su organización interna y los servicios que presta, así como su capacidad de gestionar y promover intereses y servicios locales de manera independiente del Poder Ejecutivo. No obstante, esta autonomía normativa está supeditada a lo que la Ley establezca.

Asimismo, en la jurisprudencia precitada se ha indicado que no pueden subsistir funciones de ningún ente público que disputen su primacía con las municipalidades, cuando se trata de materia que integra lo local. Para definir lo local o distinguirlo de lo que no lo es, se puede hacer por medio de la ley, o bien, por interpretación jurisprudencial. Así, la plena autonomía municipal es referida, estrictamente a “lo local”, pero no puede crearse un antagonismo entre los intereses y servicios locales con los nacionales, puesto que ambos están llamados a coexistir. Ha dicho este Tribunal que “… en lo atinente a lo local no caben regulaciones de ningún otro ente público, salvo que la ley disponga lo contrario, lo que implica un fundado motivo para dictar la regulación; o lo que es lo mismo, el municipio no está coordinado con la política del Estado y solo por la vía de la ley se puede regular materia que pueda estar vinculada con lo local, pero a reserva que esa norma jurídica resulte razonable, según los fines que se persiguen” (voto No. 5445-1999).

En relación con el artículo 6, resulta inconstitucional, pues no se excluye de la potestad de dirección a los funcionarios que participan de las funciones administrativas vinculadas a los fines constitucionalmente asignados, y quienes ejercen cargos de alta dirección política, así como todo aquel funcionariado administrativo, profesional y técnico, que establezcan los máximos órganos de las corporaciones municipales. Ergo, solo resulta constitucional la norma en lo que atañe al personal de administrativo básico, auxiliar, que estaría en la familia de puestos de conformidad con el numeral 13, inciso a) del proyecto de ley.

Sobre el artículo 7.- Competencias de Mideplán respecto de las Municipalidades (redacta magistrado Castillo Víquez) En relación con el artículo 7, se mantiene el mismo criterio vertido en relación con el numeral 6, además somete a la potestad de reglamentación de Mideplán en materias donde hay una potestad exclusiva y excluyente a favor de las municipalidades para alcanzar el fin constitucional asignado por el constituyente originario.

Sobre el artículo 9.- Oficina de Recursos Humanos en las Municipalidades (redacta magistrada Brenes Picado) La norma consultada establece lo siguiente:

“ARTÍCULO 9- Funciones de las administraciones activas a) Las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos, de las instituciones incluidas en el artículo 2 de la presente ley, seguirán realizando sus funciones de conformidad con las disposiciones normativas atinentes en cada dependencia pública.

Asimismo, aplicarán y ejecutarán las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que el Ministerio de Planificación Nacional y Política Económica (Mideplán) remita a la respectiva institución, según la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

• b)Es responsabilidad de las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos elaborar y aplicar las pruebas de conocimientos, competencias y psicométricas, para efectos de los procesos de reclutamiento y selección de personal, efectuar los concursos internos y externos por oposición y méritos, los cuales deberán cumplir siempre al menos con los estándares que establezca la Dirección General del de Servicio Civil para cada puesto, según su ámbito de competencia, y los lineamientos que se emitan según el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

Además, incorporar dichos concursos en la oferta de empleo público de la Administración Pública y verificar que las personas servidoras públicas reciban la inducción debida sobre los deberes, las responsabilidades y las funciones del puesto, así como los deberes éticos de la función pública generales y particulares de la institución y puesto.

• c)Las oficinas de gestión institucional de recursos humanos, de ministerios e instituciones u órganos adscritos bajo el ámbito de aplicación del Estatuto de Servicio Civil, son dependencias técnicas de la Dirección General de Servicio Civil que, para todos los efectos, deberá coordinar la elaboración de las pruebas de reclutamiento y selección de personal con tales oficinas y desempeñar sus funciones de asesoramiento, capacitación y acompañamiento técnico.” Tal como se observa, el artículo 9 consultado establece ciertas funciones para todas las oficinas, departamentos, áreas, direcciones o las unidades de recursos humanos, de todas las instituciones incluidas en el proyecto, en cuenta, recursos humanos de todas las municipalidades. Así entonces, en lo que se refiere propiamente a la consulta realizada en cuanto a los gobiernos locales, el segundo párrafo del inciso a) le impone a todos los departamentos de recursos humanos que apliquen y ejecuten las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que Mideplán le remita. Lo cual, implicaría que un órgano del Poder Ejecutivo, como lo es Mideplán, le imponga a estos entes locales con autonomía política, la aplicación y ejecución de sus disposiciones, directrices y reglamentos, y en materias que son de resorte exclusivo de las municipalidades, tal como lo es la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación o salarios y la gestión de las relaciones laborales. Siendo claramente tal obligación a la dirección de recursos humanos de las municipalidades una violación a su autonomía política, conforme los alcances que la jurisprudencia constitucional le ha dado. Recuérdese que, la autonomía municipal, contenida en el artículo 170 de la Constitución Política, esencialmente se origina en el carácter representativo por ser un gobierno local (única descentralización territorial del país), encargado de administrar los intereses locales. El gobierno local tiene potestad de autonormación y autoadministración, esto quiere decir que pueden dictar sus propios reglamentos para regular su organización interna y los servicios que presta, así como su capacidad de gestionar y promover intereses y servicios locales de manera independiente del Poder Ejecutivo. Es claro, entonces que el Poder Ejecutivo no puede actuar como director o en una relación de jerarquía frente a las municipalidades, y no puede imponerle lineamientos, ni dar órdenes, ni controlar la oportunidad de sus actividades. Por ello, resulta inconstitucional el artículo 9 en cuestión por pretender someter a los departamentos de recursos humanos de los gobiernos locales a aplicar y ejecutar las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que Mideplán le remita.

Sobre el artículo 13.- Familia de Puestos respecto de las Municipalidades (redacta magistrado Castillo Víquez) Sobre el artículo 13 es inconstitucional, por no crear una familia de puestos de los empleados municipales y, por consiguiente, los incluye a todos en el Servicio Civil. No es posible pasar por alto que el Código Municipal, a partir del numeral 124 al 161 inclusive, contiene el Título V, que regula la relación de los servidores municipales y las administraciones públicas locales de forma pormenorizada, por un lado, y, el numeral 50 del proyecto de ley que establece que las derogatorias expresas ni siquiera hacen referencia a las normas que se encuentran en el citado Código, ni tampoco se hacen las modificaciones en el artículo 49 del proyecto consultado.

Sobre el artículo 14.- Reclutamiento y selección en las Municipalidades (redacta magistrada Picado Brenes) Los consultantes refieren que se lesiona la autonomía política de las Municipalidades, al pretender someterla a las disposiciones que emite un órgano del Poder Ejecutivo, en lo relativo al reclutamiento y selección de su personal. El ordinal 14 en cuestión, dispone lo siguiente:

“ARTÍCULO 14- Reclutamiento y selección El reclutamiento y la selección de las personas servidoras públicas de nuevo ingreso se efectuará con base en su idoneidad comprobada, para lo cual el Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá, con absoluto apego a la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las disposiciones de alcance general, las directrices y los reglamentos, según la respectiva familia de puestos.

En los procesos de reclutamiento y selección no podrá elegirse a un postulante que se encuentre en alguna de las siguientes situaciones:

• a)Estar ligado por parentesco de consanguinidad o de afinidad en línea directa o colateral, hasta tercer grado inclusive, con la jefatura inmediata ni con las personas superiores inmediatas de esta en la respectiva dependencia.
• b)Encontrarse enlistada en el registro de personas inelegibles de la plataforma integrada de empleo público.” Tal y como ya fue debidamente acreditado, conforme lo dispuesto en los ordinales 2 y 13 del proyecto de ley, y según lo establecido en este artículo 14, todas las Municipalidades se verían sujetas a las disposiciones de alcance general, las directrices y los reglamentos que emita Mideplán en relación con el reclutamiento y la selección del personal de nuevo ingreso, lo cual deviene en inconstitucional. Esta Sala ha dicho que la autonomía municipal “implica la libre elección de sus propias autoridades; la libre gestión en las materias de su competencia; la creación, recaudación e inversión de sus propios ingresos; y específicamente, se refiere a que abarca una autonomía política, normativa, tributaria y administrativa.” (voto n° 5445-1999). Por ello, “las relaciones de las municipalidades con los otros entes públicos, sólo pueden llevarse a cabo en un plano de igualdad, que den como resultado formas pactadas de coordinación, con exclusión de cualquier forma imperativa en detrimento de su autonomía, que permita sujetar a los entes corporativos a un esquema de coordinación sin su voluntad o contra ella; pero que sí admite la necesaria subordinación de estos entes al Estado y en interés de éste (a través de la "tutela administrativa" del Estado, y específicamente, en la función de control la legalidad que a éste compete, con potestades de vigilancia general sobre todo el sector).” Es decir, se admite la coordinación y la tutela administrativa del Estado en cuanto al control de legalidad, pero no, en cuanto, un órgano del Poder Ejecutivo como lo es Mideplán pueda emitir disposiciones de alcance general, directrices y reglamentos, a las Municipalidades para sus procesos de reclutamiento y selección. En ese sentido, resulta inválida cualquier intromisión externa de otro poder en los aspectos propios de los gobiernos locales, que lesione su autonomía. Bajo ese entendido, no es posible admitir que un órgano del Poder Ejecutivo, en este caso Mideplán, le imponga a las Municipalidades, disposiciones relativas a los procesos de reclutamiento y selección de su personal, materia que, tal y como se ha señalado, es consustancial al grado de autonomía de la que gozan estos gobiernos locales. En consecuencia, tal ordinal contiene un vicio de inconstitucionalidad, en tanto resulte aplicable a las Municipalidades.

Sobre el artículo 17.- Puestos de Alta Dirección en las Municipalidades (redacta magistrada Picado Brenes) La norma consultada establece lo siguiente:

“ARTÍCULO 17- Personal de la alta dirección pública El Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá las disposiciones de alcance general, las directrices, y los reglamentos, en materia del personal de la alta dirección pública, que sean acordes con la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, para dotar a la Administración Pública de perfiles con integridad y probada capacidad de gestión, innovación y liderazgo, para procurar el mejoramiento de la prestación de bienes y servicios públicos. (…)” Los consultantes señalan la lesión a la autonomía de gobierno de las Municipalidades, por cuanto en esta norma se dispone que, tratándose de puestos de alta dirección será Mideplán quien emita las disposiciones de alcance general, directrices y reglamentos al respecto. Sobre esta consulta, en el mismo sentido en que esta Sala ha venido resolviendo estos aspectos, la injerencia de este Ministerio, que es un órgano del Poder Ejecutivo, emitiendo disposiciones de alcance general, directrices y reglamentos a las municipalidades en materia de los puestos de alta dirección, resulta violatorio de su autonomía de gobierno. Recuérdese que esta Sala ha indicado que, “las municipalidades son gobiernos representativos con competencia sobre un determinado territorio (cantón), con personalidad jurídica propia y potestades públicas frente a sus munícipes (habitantes del cantón); operan de manera descentralizada frente al Gobierno de la República, y gozan de autonomía constitucionalmente garantizada y reforzada que se manifiesta en materia política, al determinar sus propias metas y los medios normativos y administrativos en cumplimiento de todo tipo de servicio público para la satisfacción del bien común en su comunidad.” (sentencia n°5445-1999). Nótese que, este tipo de puestos son de gran relevancia para el fiel cumplimiento de la administración de los intereses y servicios locales, que deben estar particularmente protegidos de la injerencia del Ejecutivo, y que requieren la estabilidad del personal necesaria para un adecuado desempeño del cargo, lo cual es incompatible con una subordinación a las disposiciones que emita al respecto el Mideplán, como lo dispone la norma en cuestión. Por ende, se considera existe un vicio de inconstitucionalidad en el artículo 17 objeto de consulta, en los términos expuestos.

Sobre el artículo 18.- Plazos del Personal de Alta Dirección en las Municipalidades (redacta magistrada Picado Brenes) En criterio de los consultantes, el ordinal 18 resulta inconstitucional, por cuanto incide en materia que es propia de la competencia de las municipalidades, al establecer que, tratándose de puestos de alta dirección técnica, el nombramiento será por 6 años con un período de prueba de 6 meses, prorrogables anualmente, sujetas a la evaluación de desempeño. El artículo 18 consultado dispone lo siguiente:

“ARTÍCULO 18- Nombramiento y período de prueba de la alta dirección pública Toda persona servidora pública, que sea nombrada en puestos de alta dirección pública, estará a prueba durante el período de seis meses y su nombramiento se efectuará por un máximo de seis años, con posibilidad de prórroga anual, la cual estará sujeta a los resultados de la evaluación del desempeño. (…)” Sobre este particular, la regulación de aspectos relativos al nombramiento y selección de personal, tal como también ocurre con los puestos de alta dirección técnica, el período de prueba, plazo o condiciones de prórroga de los nombramientos, son regulaciones propias y atinentes a la autonomía política de los gobiernos locales. Se entiende que los puestos de alta dirección técnica, definidos por ellas mismas, son puestos estratégicos de gran importancia para su debida organización y atención de los intereses y servicios locales. Por ello y conforme a los fines propios de las municipalidades, es a ellas a quienes corresponde valorar las necesidades de los servicios que prestan y determinar las condiciones en que deben ser ocupados esos puestos, para dar cumplimiento a los fines constitucionales que le han sido asignados, en respeto del grado de autonomía reconocido, siempre y cuando atienda al principio de idoneidad. En su caso, por ejemplo, la conveniencia del período de nombramiento de esos puestos o las condiciones de prórroga podrían estar sujetas a una condición de mayor estabilidad en el puesto como la garantizada en el ordinal 192 constitucional. Todo de acuerdo a su normativa interna, y no, a una normativa genérica como la que se pretende en este proyecto de ley. La definición de tales condiciones es competencia exclusiva los gobiernos locales. De modo que, en los términos en que está dispuesto el artículo 18 consultado, contiene un vicio de inconstitucionalidad, por violentar la autonomía política de las municipalidades, a quienes les corresponde de manera exclusiva la definición de las condiciones en que se deben desempeñar sus puestos de alta dirección.

• 4)Conclusión Analizados todos los aspectos consultados en cuanto a los artículos 2 (inciso c), 6, 7, 9 (segundo párrafo del inciso a), 13, 14, 17 y 18 del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación a la autonomía de gobierno de las municipalidades, consagrada constitucionalmente.

Tales normas someten a las Municipalidades a una relación de dirección y sujeción a un órgano del Poder Ejecutivo (Mideplán) en materia de empleo público, en violación de la autonomía de gobierno o política, resguardada constitucionalmente para las Municipalidades. Esos artículos se refieren a los siguientes temas:6 (rectoría del Sistema General de Empleo Público a cargo de Mideplán), 7 (amplias competencias de Mideplán para convertirlo en una especie de superior jerarca con potestades normativas sobre todo el aparato estatal en materia de empleo público), 9 (la sujeción y el sometimiento de las oficinas de recursos humanos a Mideplán y a la Dirección General de Servicio Civil), 13 (sobre un único régimen general de empleo público conformado por ocho familias), 14 (reclutamiento y selección con base en disposiciones normativas de Mideplán), 17 y 18 (personal de alta dirección pública sometidos a un único plazo de periodo de prueba y un único plazo de nombramiento). Todo ello resulta claramente violatorio de la autonomía de las municipalidades, pues tales normas suponen una especie de relación de rectoría y jerarquía con Mideplán. Además, cuando incluso esta autonomía supone un resguardo frente al legislador, quien no puede incursionar en materias propias de la autonomía municipal..." LBH10/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: TRABAJO Subtemas:

NO APLICA.

017098-21. TRABAJO. CONSULTA LEGISLATIVA FACULTATIVA DE CONSTITUCIONALIDAD, REFERENTE AL PROYECTO DE LEY DENOMINADO "LEY MARCO DE EMPLEO PÚBLICO". EXPEDIENTE LEGISLATIVO N° 21.336. " XIV.- Sobre la consulta de violación a la autonomía de las Instituciones Autónomas.- 1) Aspectos consultados Los consultantes consideran inconstitucionales tanto el artículo 2 inciso b) del proyecto de Ley Marco de Empleo Público que se tramita en el expediente legislativo nº 21.336, al incluir a las instituciones autónomas dentro del ámbito de cobertura de esa ley, así como los numerales 6, 7, 9, 13, 14, 17, 18, 21, 22, 24, 30 y 49 por invadir su autonomía administrativa consagrada en el artículo 188 constitucional, pues las sujetan a las disposiciones, directrices, reglamentos, circulares, manuales, etc. que emita el Ministerio de Planificación Nacional y Política Económica, en temas relacionados con planificación del trabajo, las gestiones de empleo, rendimiento, desempeño, compensación y relaciones laborales.

Al revisarse la consulta, se ha logrado constatar que el dicho externado por los consultantes en relación con esos numerales, carece de una adecuada fundamentación y no expresa, de manera clara, los motivos o razonamientos por los cuales se plantea esa inquietud ante la Sala; inclusive no se observa que se haya formulado una consulta de constitucionalidad en sentido estricto, sino que, simplemente, se hace una mera enunciación en cuanto al choque que ellos estiman que pudiere darse entre las potestades que se le están otorgando al MIDEPLAN frente a la autonomía de las instituciones autónomas. Igualmente no se observa ninguna justificación de las razones por las cuales estiman que tales numerales atentarían contra el artículo 188 de la Constitución Política. Sobre el particular debe tenerse presente que el artículo 99 de la Ley de la Jurisdicción Constitucional, es muy claro al establecer que la consulta deberá expresar los aspectos cuestionados del proyecto y los motivos por los cuales se tienen dudas u objeciones de constitucionalidad, además todo ello debe hacerse de manera razonada y debidamente fundamentada; requisito que no se cumple en el caso concreto y, por ende, la consulta no puede ser evacuada en los términos en que lo pretenden los consultantes.

• 2)Conclusión En consecuencia, por unanimidad se declara inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, en cuanto al artículo 2 inciso b) -específicamente en lo referido a “las instituciones autónomas y sus órganos adscritos, incluyendo instituciones semiautónomas y sus órganos adscritos” y los artículos 6, 7, 9, 13, 14, 17, 18, 21, 22, 24, 30 y 49 por falta de una adecuada fundamentación desde el punto de vista constitucional.

XV.- Sobre la consulta de violación al principio de seguridad jurídica por la figura de la Objeción de Conciencia.- (redacta la Magistrada Picado Brenes) 1) Aspectos consultados En la Consulta Legislativa Facultativa tramitada en el expediente N° 21-011713-0007-CO, interpuesta por varios diputados, se externan consideraciones en cuanto a que el artículo 23 inciso g) del proyecto de “LEY MARCO DE EMPLEO PÚBLICO”, que se tramita en el expediente legislativo N° 21.336, es violatorio de los principios de legalidad y de seguridad jurídica, de proporcionalidad y razonabilidad. Este numeral establece la posibilidad de la objeción de conciencia en los procesos de formación y capacitación, tal como se indica textualmente:

“ARTÍCULO 23- Postulados rectores que orientan los procesos de formación y capacitación (…)

• g)Los servidores públicos podrán informar a la Administración, por medio de una declaración jurada, sobre su derecho a la objeción de conciencia, cuando se vulneren sus convicciones religiosas, éticas y morales, para efectos de los programas de formación y capacitación que se determine sean obligatorios para todas las personas servidoras. (…)” Argumentan los consultantes que esa norma resulta inconstitucional por cuanto, la posibilidad que tendrán las personas funcionarias públicas de alegar la objeción de conciencia con el fin de no recibir formación y capacitaciones que el Estado ha considerado obligatorias, resulta lesiva de los principios de legalidad y de seguridad jurídica, de proporcionalidad y razonabilidad, ello por cuanto, en su criterio, la norma no regula las condiciones, parámetros y restricciones que deben rodear esa situación y con las cuales se pueda impedir la violación de derechos humanos fundamentales comprendidos en el Derecho Convencional así como otros plenamente reconocidos por el ordenamiento jurídico costarricense. Señalan que mediante una simple declaración jurada, las personas funcionarias públicas podrán informar sobre un derecho de objeción de conciencia cuando los contenidos de los programas de formación y capacitación vulneren, según su criterio, sus convicciones religiosas, éticas o morales. Estiman que se trata de una norma totalmente amplia que permitirá, apelando a criterios totalmente subjetivos, que cualquier persona se niegue a capacitarse sobre temas medulares de la Administración Pública. En ese sentido, consideran que no es posible apelar a la objeción de conciencia para promover la desigualdad, el maltrato y la discriminación desde un puesto de poder, por ejemplo.

En la Consulta Legislativa Facultativa, tramitada en el expediente N° 21-012118-0007-CO, interpuesta por otros diputados, ellos consultan sobre la constitucionalidad del artículo 23 inciso g), por cuanto consideran que permite la violación de los principios constitucionales de legalidad, seguridad jurídica, razonabilidad y proporcionalidad, así como del Pacto Internacional de Derechos Civiles y Políticos (art. 18.3) y de la Convención Americana de Derechos Humanos (artículo 12.3). Manifiestan que, en 1948, la Declaración Universal de Derechos Humanos en su artículo 18, reconoció que toda persona tiene libertad de pensamiento, de conciencia y de religión por lo que ahí existe un reconocimiento a la capacidad individual o colectiva de expresarse libremente sobre sus creencias o religión. Añaden que el Pacto Internacional de Derechos Civiles y Políticos, adoptado en 1966, en su numeral 18, ampara y reconoce la libertad de pensamiento, conciencia y de religión de las personas, respetando las condiciones y limitaciones legales que permiten su pleno ejercicio; norma que, a su vez, establece que el ejercicio de este derecho no puede sobreponerse a las limitaciones prescritas por la ley que sean necesarias para proteger la seguridad, el orden, la salud o la moral públicos, o los derechos y libertades fundamentales de las demás personas. Por su parte indican que, en el año de 1987, la resolución número 46 de la Comisión de Derechos Humanos de la Organización de la Naciones Unidas, reconoció la objeción de conciencia con respecto al servicio militar y, en ese caso en particular, en resguardo de los derechos humanos, la objeción de conciencia respaldó la negativa de realizar el servicio militar en virtud de la libertad de pensamiento, conciencia y religión ya incluidas en el marco internacional proveniente del reconocimiento del derecho a negarse a prestar servicio militar para imponer el Apartheid; posición que se reafirmó en 1989 cuando la Comisión de Derechos Humanos, por medio de la resolución 1989/59, reconoció el derecho de tener objeciones de conciencia en relación con el servicio militar como un derecho humano, en apego a lo establecido por la Declaración Universal de Derechos Humanos así como el Pacto Internacional de Derechos Civiles y Políticos. Argumentan los consultantes que, a nivel internacional, los derechos humanos han reconocido y analizado el roce de la objeción de conciencia con el derecho a la salud ante la posibilidad de que, el ejercicio de aquel derecho, impida que se brinde una correcta atención sanitaria y de salud a los usuarios del servicio. Señalan que el artículo 18.3 del Pacto Internacional de Derechos Civiles y Políticos, así como el artículo 12.3 de la Convención Americana de Derechos Humanos, establecen que la libertad de manifestar la propia religión y creencias está sujeta únicamente a las limitaciones prescritas por la ley y que sean necesarias para proteger la seguridad, el orden, la salud o la moral públicos o los derechos o libertades de los demás. Así, manifiestan que debe entenderse que, para un funcionario que brinda sus servicios en el área de la salud, el ejercicio de la objeción de conciencia procede únicamente cuando esa negativa no implique una lesión a los derechos humanos de los pacientes (sean estos hombres, mujeres o niños). Añaden que específicamente, sobre el respeto de la libertad de conciencia en los profesionales en salud, la Corte Interamericana de Derechos Humanos ha resuelto que deben respetarse los derechos de sus pacientes como usuarios de un servicio público y es por este motivo que debe existir una clara manera de ejercer ese derecho para evitar vulneraciones. Recuerdan que, en Costa Rica, la Sala Constitucional, mediante la resolución No. 2020-001619, se ha pronunciado sobre la objeción de conciencia y ha sido consecuente con el respeto de los derechos humanos en el ejercicio del derecho de objeción de conciencia, en el tanto, no exista roce con otros derechos. Argumentan que la objeción de conciencia se entiende como un derecho (reconocido) que permite que los individuos rechacen una conducta que les está siendo exigida por ley con sustento en razones que les sean contrarias o que afecten sus creencias. Aducen los consultantes que, a la luz del proyecto de Ley en consulta, lo propuesto por el artículo 23, inciso g), en cuanto incluye de manera abierta y desregulada la posibilidad de que los funcionarios públicos puedan negarse a recibir formación técnica y capacitaciones que sean obligatorias y necesarias para el ejercicio del cargo que desempeñan con la mera comunicación mediante declaración jurada, podría considerarse un ejercicio abusivo y contrario a los derechos humanos de los demás ciudadanos. Señalan los consultantes que, analizando el articulado del proyecto en consulta, en su criterio, entran en discrepancia un cúmulo de derechos, tanto de los funcionarios como de los ciudadanos que reciben servicios de parte de estos funcionarios públicos. Indican que en la resolución No. 2020-002965 de la Sala Constitucional, este órgano reconoció la igualdad y universalidad en el trato que debe darle la administración a los usuarios, de modo que los funcionarios públicos, para poder ejercer sus funciones de manera proba, eficiente y efectiva, ameritan necesariamente tener los conocimientos técnicos y administrativos que les permitan desempeñar sus funciones. Además, argumentan que existe una obligación del Estado de capacitar a los funcionarios para que la operación estatal sea acorde a los parámetros de prestación de los servicios públicos que deben garantizarse a los ciudadanos. Señalan que la necesaria capacitación de funcionarios no puede ser entendida como un adoctrinamiento o imposición de condiciones para los servidores públicos, sino que se trata de un necesario traslado o intercambio de información que debe hacerse llegar a los funcionarios para que realicen sus funciones de conformidad con las condiciones para las que han sido contratados. Cuestionan los consultantes cómo puede determinar un funcionario público, de previo a recibir una capacitación, que ésta atenta contra sus creencias o convicciones personales. Afirman que la solución que la Sala Constitucional ha dado a este tema está referida a que las jerarquías institucionales deberán adoptar planes para evitar que ocurra una desatención del servicio público porque, si bien es cierto, el funcionario tiene ese derecho, no puede limitarse o perjudicarse al ciudadano en relación con un trámite respecto del cual el funcionario objetante, se excusa de atender. Además, manifiestan que la Sala Constitucional ha dicho que los funcionarios cuando asumen un cargo sobre el cual deben realizar determinados actos, están obligados a cumplirlos sin derecho a objeción de conciencia, en el tanto han aceptado ejercer el cargo público conforme al derecho vigente al momento de su nombramiento. Consideran que el abordaje que se le ha dado a este tema durante la tramitación del proyecto, acompañado del rechazo de mociones que pretendían aclarar y delimitar el ejercicio de la objeción de conciencia para que no existieran afectaciones a otros derechos fundamentales, terminó siendo una vulneración a derechos fundamentales en sí misma. Estiman que el considerar la objeción de conciencia como un mero trámite, sin mayores condiciones y restricciones, sin ninguna seriedad técnica, solo para polemizar y polarizar a la sociedad costarricense, resulta contrario a los derechos humanos reconocidos por la Corte Interamericana de Derechos Humanos, considerando que ello se contrapone a la obligación que tiene el Estado y que debe garantizar la Asamblea Legislativa sobre el resguardo de la legalidad y la seguridad jurídica que deben acompañar las leyes que se emiten. Estiman que la inclusión de la objeción de conciencia en el artículo 23, inciso g), del proyecto de ley denominado "Ley Marco de Empleo Público", expediente legislativo n°21.336, podría constituir una violación a los principios constitucionales y a los derechos humanos en los términos señalados.

• 2)Antecedentes Jurisprudenciales Este Tribunal Constitucional se ha pronunciado en relación con la objeción de conciencia, en ese sentido, ha reconocido su aplicabilidad en distintos ámbitos. Entre los primeros pronunciamientos, reconoce la libertad de conciencia como un derecho público subjetivo individual, oponible por el administrado ante el Estado, en ese sentido, en la sentencia n°1993-3173 de las 14:57 horas del 06 de julio de 1993 se indicó:

“VII.- La libertad religiosa encierra, en su concepto genérico, un haz complejo de facultades. En este sentido, en primer lugar se refiere al plano individual, es decir, la libertad de conciencia, que debe ser considerado como un derecho público subjetivo individual, esgrimido frente al Estado, para exigirle abstención y protección de ataques de otras personas o entidades. Consiste en la posibilidad, jurídicamente garantizada, de acomodar el sujeto, su conducta religiosa y su forma de vida a lo que prescriba su propia convicción, sin ser obligado a hacer cosa contraria a ella. En segundo lugar, se refiere al plano social, la libertad de culto, que se traduce en el derecho a practicar externamente la creencia hecha propia. Además la integran la libertad de proselitismo o propaganda, la libertad de congregación o fundación, la libertad de enseñanza, el derecho de reunión y asociación y los derechos de las comunidades religiosas, etc.

VIII.- La libertad de culto, en cuanto manifestación externa de la libertad religiosa, comprende el derecho a mantener lugares de culto y a practicarlo, tanto dentro de recintos como en el exterior, siempre dentro de las limitaciones establecidas por el ordenamiento, sea por norma constitucional o norma legal. En este sentido, es el mismo texto constitucional que permite el libre ejercicio en la República de otros cultos -de la religión católica-, siempre y cuando "no se opongan a la moral universal, ni a las buenas costumbres" (artículo 75).

IX.- El artículo 75 de la Constitución dispone que el Estado debe contribuir al "mantenimiento" de la religión Católica, esta norma constitucional no puede interpretarse en sentido restrictivo; por el contrario, se entiende que el Estado tiene una obligación, en sentido general, de cooperar con las diferentes confesiones religiosas que profesan los habitantes del país y en forma específica con la Iglesia Católica. Esta obligación constitucional consiste en posibilitar la formación religiosa en los centros docentes públicos, en la creación necesaria para su desarrollo y no concretamente en la asistencia de financiamiento económico. Con esto, la norma suprema considera de interés general la satisfacción de las necesidades religiosas, pese a la existencia de personas que no participen de ellas. Además, debe interpretarse, no como un indicador de parcialidad de la Constitución en beneficio de una confesión religiosa determinada, sino como un indicador de una realidad sociológica, cual es la mención expresa a la confesión indiscutiblemente más arraigada y extendida en nuestro país, lo que en ningún momento implica una discriminación por parte de los poderes públicos para las demás confesiones o para los ciudadanos aconfesionales.” En la misma línea jurisprudencial, mediante la sentencia n°1996-5492 de las 16:54 horas del 16 de octubre de 1996, en relación con el ejercicio de la objeción de conciencia en el ámbito educativo, se indicó:

“(…) queda claro, que la interpretación que realizan las funcionarias recurridas del último párrafo del artículo 210 del Código de Educación, y que le fuera comunicada al recurrente mediante nota de fecha 13 de marzo de 1996, en el sentido de que debía impartir lecciones de Educación Religiosa, aduciendo también en apoyo de la misma el artículo 3 de la Ley Fundamental de Educación, y Decreto Ejecutivo número 10850-E del veintidós de octubre de mil novecientos setenta y nueve, violenta en perjuicio del amparado la libertad religiosa, contenida en los artículos 75, 28, 29 y 33 de la Constitución Política y considerada por la jurisprudencia de este Tribunal, en el plano individual, como un derecho público subjetivo individual, que puede ser esgrimido frente al Estado, cuando se considere amenazado, como en el caso que nos ocupa, dada la condición del gestionante de no practicante de la religión católica, y exigirle al propio Estado la protección necesaria para que se le respete en el plano individual, lo íntimo de sus creencias. Respeto y protección que no se ha dado en la especie, pues la nota que ha recibido el recurrente de parte de las funcionarias recurridas, según se desprende de su lectura, no se le respetan sus convicciones de tipo religioso, pues se le obliga a realizar una actividad contraria a dichas convicciones individuales. En consecuencia, la indicada norma contenida en el artículo 210 del Código de Educación, debe entenderse en el sentido de que, debe haber disposición del maestro de acuerdo con sus convicciones religiosas, para suplir esa enseñanza. No sólo se trata de un respeto de la libertad de conciencia y de culto del maestro, sino de la protección del educando que estaría expuesto a recibir una deficiente o incluso inconveniente educación religiosa. Por lo anterior, lo procedente es declarar con lugar el recurso.” De igual manera, la Sala Constitucional, en el ámbito de la libertad de conciencia en el campo de la educación, reconoce la tutela internacional de la libertad de conciencia. En la sentencia N°1999-03914 de las 16:27 horas del 20 de mayo de 1999, en lo que interesa indicó:

“IX.- El artículo 75 de la Constitución dispone que el Estado debe contribuir al "mantenimiento" de la religión Católica, esta norma constitucional no puede interpretarse en sentido restrictivo; por el contrario, se entiende que el Estado tiene una obligación, en sentido general, de cooperar con las diferentes confesiones religiosas que profesan los habitantes del país y en forma específica con la Iglesia Católica. Esta obligación constitucional consiste en posibilitar la formación religiosa en los centros docentes públicos, en la creación necesaria para su desarrollo y no concretamente en la asistencia de financiamiento económico. Con esto, la norma suprema considera de interés general la satisfacción de las necesidades religiosas, pese a la existencia de personas que no participen de ellas. Además, debe interpretarse, no como un indicador de parcialidad de la Constitución en beneficio de una confesión religiosa determinada, sino como un indicador de una realidad sociológica, cual es la mención expresa a la confesión indiscutiblemente más arraigada y extendida en nuestro país, lo que en ningún momento implica una discriminación por parte de los poderes públicos para las demás confesiones o para los ciudadanos aconfesionales." Por otra parte, el artículo 14 de la Convención sobre los Derechos del Niño establece:

"1. Los Estados Partes respetarán el derecho del niño a la libertad de pensamiento, conciencia y de religión. 2. Los Estados Partes respetarán los derechos y deberes de los padres, y en su caso, de los representantes legales, de guiar al niño en el ejercicio de su derecho de modo conforme con la evolución de sus facultades. 3. La libertad de manifestar la propia religión o las propias creencias, estará sujeta únicamente a las limitaciones prescritas por la ley que sean necesarias para proteger la seguridad, el orden, la moral o la salud pública o los derechos y libertades fundamentales de los demás".

De lo expuesto se concluye que a la niña amparada le asiste el derecho a no ser obligada a practicar actos de culto o a recibir asistencia religiosa contraria a sus convicciones personales. Dado que una de las creencias religiosas de la amparada se refiere al mandato de Dios de no hacer uso de imágenes o ídolos de connotación religiosa, la obligación de portar un escudete con la imagen de la Virgen de Las Mercedes constituye una imposición contraria a sus convicciones y al culto religioso que practica. En virtud de que en el Centro Educativo Las Mercedes la omisión de portar el escudete de la institución es sancionada en los términos indicados en el artículo 76 del Reglamento de Evaluación de los Aprendizajes, la amparada ha sido obligada a portar la imagen de la Virgen de Las Mercedes en su uniforme escolar, situación que resulta violatoria de la libertad religiosa y de culto, garantizada en los artículos 75 de la Constitución Política, 14 de la Convención de Naciones Unidas sobre los Derechos del Niño, 24 del Pacto Internacional de Derechos Civiles y Políticos, artículo 13.3 del Pacto Internacional de Derechos Económicos, Sociales y Culturales y 36 de la Ley Fundamental de Educación.” La tutela de la Sala Constitucional respecto a la objeción de conciencia, como garantía del derecho a la libertad de culto, se reiteró en la sentencia N° 2001-10491 de las 15:57 horas del 16 de octubre de 2001, en la que se señaló:

“IV.- Ahora bien, la negatoria de la solicitud planteada por el amparado, tuvo como fundamento tres cosas básicas: que la nota mediante la cual se le pidió la referida exoneración no aparecía firmada por el representante legal del menor; que ésta había sido presentada después del inicio del curso lectivo, cuando lo correcto es hacerlo al principio; Y que esa es una materia obligatoria para todos los alumnos. Ninguna de los tres argumentos tiene base jurídica alguna que lo sustente. El numeral 210 del Código de Educación es claro al señalar que "La asistencia a clases de religión se considera obligatoria para todos los niños cuyos padres no soliciten por escrito al Director de la escuela o colegio que se le exima de recibir esa enseñanza", de lo cual se infiere que el requisito de presentar la referida carta al inicio del curso es simple y llanamente una maniobra abusiva de parte del accionado Director en perjuicio del educando, pues impone límites a la libertad de culto que la ley no da. También se constata de la citada norma, que la obligatoriedad a que ella se refiere, está condicionada, únicamente, a que los padres del estudiante no soliciten por escrito la exoneración de la misma, situación que en el sublitem si se ha dado, según se desprende de los folios 10 y 32 del expediente, en donde aparecen la nota que en ese sentido dirigiera el padre del amparado al Director del Liceo. Por último, tampoco resulta cierto que la carta aludida carezca de la firma del responsable del menor amparado, ya que claramente puede leerse en ella que una de las dos firmas que allí aparecen está hecha bajo el subtítulo "PADRE O ENCARGADO" lo cual no se debe desmerecer por el solo hecho de que la rúbrica sea ilegible. Así las cosas, actuar como lo ha hecho el Director accionado, es quebrantar los principios de razonabilidad y proporcionalidad que informan al ordenamiento jurídico, ya que imponen límites que ni la Constitución Política ni la ley exigen a la libertad de culto, de allí que, dicha ruptura tenga como consecuencia dejar sin contenido la citada libertad de culto establecida en el artículo 75 constitucional y desarrollada en el 210 aludido. Por ello, lo procedente es declarar con lugar el recurso.” En otro precedente, la Sala Constitucional tuteló a una persona estudiante de la Universidad de Costa Rica a quien no se le respetó una objeción de conciencia para no recibir lecciones o realizar pruebas los sábados debido a la religión que profesa. Este precedente luego fue aplicado también al ámbito laboral. En ese sentido en la resolución n°2002-03018 de las 11:12 horas del 22 de marzo de 2002, se indicó:

“III.- Ahora bien, partiendo de los lineamientos expuestos en el considerando anterior, el derecho a la libertad religiosa ha sido vulnerado en el caso objeto de nuestro examen respecto del ámbito de las relaciones de cooperación que con las distintas confesiones ha de mantener el Estado a tenor del artículo 45 (sic) de la Constitución Política. En efecto, la negativa de la Universidad de Costa Rica a realizar un examen de reposición a la recurrente pese que su religión limita la realización de actividades educativas los días sábados, afecta el derecho a practicar los actos de culto propios de una creencia de la recurrente y como se dijo en el considerando anterior ese es uno de los elementos de la libertad religiosa. Estima esta Sala que la negativa de las autoridades universitarias a realizar un examen de reposición resulta irrazonable, dado que la realización de un examen extraordinario o de reposición, para la recurrente no sólo no afecta el debido funcionamiento de centro universitario recurrido, sino además se trata de una práctica usual y reconocida por toda la población estudiantil y docente. Así las cosas, se evidencia en el caso concreto que la Universidad de Costa Rica ha irrespetado ese deber de cooperación y de no injerencia externa por parte de los poderes públicos en las actividades de la creencia religiosa de la recurrente. En esa medida el ejercicio de su libertad religiosa de actuar conforme a determinado credo se ha visto restringida, condicionada y obstaculizada. La amparada se ha visto imposibilitada a desarrollar actividades que constituyen actos manifestaciones o expresiones de sus creencias religiosas. En virtud de ello, se ordena al Rector de la Universidad de Costa Rica acoger la gestión de la recurrente a fin de que no se le obligue a realizar exámenes los sábados, dado que ello va contra su fe religiosa y ello en definitiva limita y restringe su libertad de culto tutelado en el artículo 75 de la Constitución Política. Así las cosas, lo procedente es acoger el recurso, como en efecto se hace.” En la sentencia n°2002-08557 de las 15:37 horas del 03 de septiembre de 2002, se reconoce la posibilidad de los estudiantes para que, en el ejercicio del derecho contenido en el numeral 75 constitucional, nieguen, por objeción de conciencia, recibir formación de enseñanza religiosa, en ese sentido se indicó:

“La libertad de creencias, reconocido por el artículo 75 constitucional, es un género que comprende no sólo la libertad religiosa o de ejercer libremente su culto, sino que comprende el derecho de desarrollar y cultivar las convicciones individuales sin ser perturbados por el Estado. La libertad religiosa se inserta en la más comprensiva libertad de creencias nacida en la historia de la humanidad a partir de la Paz de Westfalia, como un reconocimiento a la tolerancia por parte de la Iglesia. El principal efecto de este reconocimiento es que nadie puede ser perjudicado ni favorecido por causa de sus creencias. También hay un trasfondo de respeto de igualdad ante la ley en este principio. El Derecho de profesar libremente el culto es la libertad de practicar una creencia religiosa. Ello significa libertad de exteriorización religiosa –no de creencia en la intimidad, pues ella escapa al alcance del derecho-, siempre que no afecte el orden, la moral o la seguridad pública (artículo 28 constitucional). También implica la facultad de asociación religiosa en comunidades de ese tipo. De modo que otra consecuencia inmediata de la libertad religiosa es el derecho que tienen los fieles y adeptos de asociarse en comunidades religiosas o de bien público. La libertad de creencias es incompatible con cualquier intento, por parte de los profesores (en general por parte del Estado) de incidir en la formación religiosa de los niños (en general de la población); salvo que el propio interesado (o en representación de los niños sus padres) accediese o solicitare dicho tipo de instrucción. De modo que resulta incompatible con el Derecho de la Constitución la expulsión de las escuelas de aquellos alumnos que se negaren, por objeción de conciencia, a cumplir la obligación de recibir formación o enseñanza religiosa de un tipo determinado.

IV.- El artículo 77 de la Constitución Política reconoce que el derecho a la educación pública, la cual será organizada como un proceso integral, correlacionado en sus diversos ciclos, desde la preescolar hasta la universitaria. Además, el artículo 75 Constitucional establece la libertad de creencias, principio según el cual se redactó el artículo 210 del Código de Educación que en lo conducente indica: "Cada grado o sección de las escuelas de primera enseñanza de la República, sin excepción, recibirá semanalmente dos horas lectivas de enseñanza religiosa. La asistencia a las clases de religión se considerará obligatoria para todos los niños cuyos padres no soliciten por escrito al Director de la escuela que se les exima de recibir esa enseñanza". De manera que se regula así la objeción de conciencia para los alumnos que por sus creencias se negaren a recibir la formación religiosa que imparte el Estado. En el caso que nos ocupa, ha sido debidamente acreditado que mediante nota fechada 25 de setiembre del 2001 el Director del Colegio Nocturno de Siquírres, (…), aceptó la solicitud de los padres de los amparados en el sentido de excluirlos de su obligación de recibir las clases de "Etica Cristiana" (folio 2). No obstante, (…), Directora del Colegio Nocturno de Siquirres, ha impedido que los amparados continúen cursando el tercer año de estudios secundarios en virtud de que en el período lectivo 2001 no aprobaron la asignatura "Etica Cristiana" (folios 2, 3, 4, 22, 23, 24). Estima la Sala que esta exclusión del sistema educativo de la que han sido objeto los amparados (…) constituye una flagrante violación del derecho a la educación y de la libertad religiosa, motivo por el cual el amparo resulta procedente en todos sus extremos. En consecuencia, se ordena a la Directora del Colegio Nocturno de Siquirres, reincorporar en forma inmediata a los amparados (…), como alumnos regulares del tercer año de estudios secundarios, tomando las medidas necesarias para que puedan adecuarse al estado en que se encuentran actualmente las asignaturas que cursan.” En la sentencia n°2003-03018 de las 14:48 horas del 22 de abril de 2003, este Tribunal tuteló a un estudiante que no cantaba el himno nacional ni realizaba el saludo a la bandera, considerando que dichos actos de adoración son contrarios a sus creencias religiosas, al respecto se indicó:

“V.- Es cierto que el derecho a la adecuación de la conducta a las convicciones propias no puede ser ilimitado, ya que esa conducta no debe dañar la moral, ni el orden públicos, ni a terceros. Sin embargo, en este caso no se está ante ninguno de esos supuestos. No cantar el Himno Nacional no atenta contra la moral ni el orden públicos ni daña a ningún tercero. El texto del artículo 32 del Reglamento Interno Estudiantil debe adecuarse a la Constitución Política, que está muy por encima de él. El deber de cantar el Himno Nacional está supeditado a derechos humanos superiores como la libertad de pensamiento y la libertad religiosa.

VI.- El Director alega también que los padres nunca solicitaron al colegio que eximieran al niño de cantar el Himno Nacional. El argumento no es de recibo, puesto que consta en los informes de calificaciones, a folios 68 a 70, que el estudiante no recibía el curso de religión. Está claro que el colegio conocía el credo religioso del amparado. Si el director esperaba una solicitud formal, estaba equivocado. El ejercicio de un derecho fundamental no puede estar supeditado a una formalidad. El más interesado en este asunto, precisamente el titular del derecho, el menor, ya había manifestado al colegio su decisión.” En la sentencia n°2005-05573 de las 16:07 horas del 10 de mayo de 2005, la Sala tuteló el derecho de una persona estudiante de la Universidad de Costa Rica para no realizar exámenes los sábados, debido a que es el día que según su credo debe dedicarse únicamente para uso devocional, en ese sentido dispuso:

“II.- Objeto del recurso. La recurrente estima violentado en su perjuicio la libertad religiosa, toda vez que está inscrita en el Programa de Educación Abierta del Ministerio de Educación Pública, en el cual se pretende obligarla a realizar los exámenes los días sábados, día que según su credo debe dedicarse únicamente para uso devocional, lo cual resulta contrario a su libertad religiosa y de culto.

III.- Sobre el fondo. En un asunto similar al de estudio este Tribunal dispuso:

“I.- La queja vertida por la recurrente versa sobre el derecho a la libertad religiosa reconocido en el artículo 75 de la Constitución Política. Aduce en síntesis la recurrente que al obligarla la Universidad de Costa Rica a realizar exámenes los sábados, día en que según su credo debe dedicarse únicamente para uso devocional, resulta contrario a su libertad religiosa y de culto.

II.- Delimitando el contenido del derecho fundamental a la libertad religiosa podemos decir que sería propiamente una libertad a decidir por sí mismo la propia ideología, religión o creencia. La libertad que analizamos incluye por consiguiente: a) el derecho a profesar una religión o a no profesar ninguna, b) el derecho a practicar los actos de culto propios de una creencia, c) el derecho a comportarse en la vida social de acuerdo con las propias convicciones. Asimismo, tenemos que el artículo 75 de la Constitución Política garantiza la libertad religiosa y de culto de los individuos y las comunidades sin más limitación, en sus manifestaciones, que la necesaria para el mantenimiento del orden público protegido por la ley. Ahora bien, el contenido del derecho a la libertad religiosa no se agota en la protección frente a injerencias externas de una esfera de libertad individual o colectiva que permite a los ciudadanos actuar con arreglo al credo que profesen, pues cabe apreciar una dimensión externa de la libertad religiosa que se traduce en la posibilidad de ejercicio, inmune a toda coacción de los poderes públicos, de aquellas actividades que constituyen manifestaciones o expresiones del fenómeno religioso. Sobre este tema esta Sala en sentencia número 3173-93 de las catorce horas cincuenta y siete minutos del siete de junio de mil novecientos noventa y tres dispuso:

"...VII.- La libertad religiosa encierra, en su concepto genérico, un haz complejo de facultades. En este sentido, en primer lugar se refiere al plano individual, es decir, la libertad de conciencia, que debe ser considerado como un derecho público subjetivo individual, esgrimido frente al Estado, para exigirle abstención y protección de ataques de otras personas o entidades. Consiste en la posibilidad, jurídicamente garantizada, de acomodar el sujeto, su conducta religiosa y su forma de vida a lo que prescriba su propia convicción, sin ser obligado a hacer cosa contraria a ella. En segundo lugar, se refiere al plano social, la libertad de culto, que se traduce en el derecho a practicar externamente la creencia hecha propia...” En la sentencia n°2012-10456 de las 05:27 horas del 01 de agosto de 2012, la Sala Constitucional, resolvió un proceso de amparo contra el Ministerio de Educación Pública por el tema del Programa de Educación para la Afectividad y Sexualidad, dejando claro que el Ministerio de Educación debe respetar las convicciones religiosas y filosóficas de los padres en la educación de sus hijos; es decir la Sala reconoció el derecho a la objeción de conciencia en la educación de personas menores de edad relacionada con la materia de sexualidad. En lo que interesa la Sala dijo:

“VI.- SOBRE EL DERECHO A LA EDUCACIÓN Y LAS OBLIGACIONES DEL ESTADO EN MATERIA DE EDUCACIÓN SEXUAL. El Derecho Internacional de los Derechos Humanos reconoce el derecho a la educación, en general, para todas las personas sean ellas menores de edad o no, tal como lo ha señalado este Tribunal en reiterada jurisprudencia -entre otras, sentencia número 1791-2004, de las nueve horas dos minutos del veinte de febrero del dos mil cuatro-. En relación con el objeto del presente amparo, el derecho a la educación impone una serie de obligaciones al Estado en materia de educación sexual y salud. Al respecto, la Convención sobre la Eliminación de todas las formas de Discriminación contra la Mujer, señala:

“Artículo 10: Los Estados Partes adoptarán todas las medidas apropiadas para eliminar la discriminación contra la mujer, a fin de asegurarle la igualdad de derechos con el hombre en la esfera de la educación y en particular para asegurar, en condiciones de igualdad entre hombres y mujeres:

(…)

• h)Acceso al material informativo específico que contribuya a asegurar la salud y el bienestar de la familia”.

Por su parte, la Convención Iberoamericana de los Derechos de los Jóvenes, integra como parte del derecho a la educación, el derecho a la educación sexual de los jóvenes, al disponer lo siguiente:

“Artículo 23: 1. Los Estados Parte reconocen que el derecho a la educación también comprende el derecho a la educación sexual como fuente de desarrollo personal, afectividad y expresión comunicativa, así como la información relativa la reproducción y sus consecuencias. 2. La educación sexual se impartirá en todos los niveles educativos y fomentará una conducta responsable en el ejercicio de la sexualidad, orientada a su plena aceptación e identidad, así como, a la prevención de las enfermedades de transmisión sexual, el VIH (Sida), los embarazos no deseados y el abuso o violencia sexual. 3. Los Estados Parte reconocen la importante función y responsabilidad que corresponde a la familia en la educación sexual de los jóvenes. 4. Los Estados Parte adoptarán e implementarán políticas de educación sexual, estableciendo planes y programas que aseguren la información y el pleno y responsable ejercicio de este derecho”.

Finalmente, la Convención sobre los Derechos del Niño indica:

“Artículo 19: 1. Los Estados Partes adoptarán todas las medidas legislativas, administrativas, sociales y educativas apropiadas para proteger al niño contra toda forma de perjuicio o abuso físico o mental, descuido o trato negligente, malos tratos o explotación, incluido el abuso sexual, mientras el niño se encuentre bajo la custodia de los padres, de un representante legal o de cualquier otra persona que lo tenga a su cargo.”.

Las mencionadas obligaciones internacionales en materia de educación sexual y salud han sido acogidas por nuestro ordenamiento jurídico, en especial en el Código de la Niñez y la Adolescencia, el cual dispone lo siguiente:

“Artículo 44.- Competencias del Ministerio de Salud.

El Ministerio de Salud velará porque se verifique el derecho al disfrute del más alto nivel de salud, el acceso a los servicios de prevención y tratamiento de las enfermedades, así como la rehabilitación de la salud de las personas menores de edad. Para esta finalidad, el Ministerio de Salud tendrá las siguientes competencias:

(…)

• c)Garantizar la creación y el desarrollo de los programas de atención y educación integral dirigidos a las personas menores de edad, incluyendo programas sobre salud sexual y reproductiva; (…)
• g)Garantizar programas de tratamiento integral para las adolescentes, acerca del control prenatal, perinatal, postnatal y psicológico”.

“Artículo 55.- Obligaciones de autoridades educativas.

Será obligación de los directores, representantes legales o encargados de los centros de enseñanza de educación general básica preescolar, maternal u otra organización, pública o privada, de atención a las personas menores de edad:

(…)

• c)Poner en ejecución los programas de educación sobre salud preventiva, sexual y reproductiva que formule el ministerio del ramo”.

“Artículo 58.- Políticas nacionales.

En el diseño de las políticas educativas nacionales, el Estado deberá:

(…)

• f)Propiciar la inclusión, en los programas educativos, de temas relacionados con la educación sexual, la reproducción, el embarazo en adolescentes, las drogas, la violencia de género, las enfermedades de transmisión sexual, el sida y otras dolencias graves”.

Como se desprende de las normas transcritas, tanto a nivel internacional como a partir del desarrollo normativo interno que de ellas se hace, existe una obligación para el Estado costarricense de implementar políticas de educación sexual para las personas menores de edad. Este Tribunal acredita que el programa de estudio de “Educación para la afectividad y la sexualidad integral” elaborado por el Ministerio de Educación responde precisamente a dicha obligación convencional y legal. Ahora bien, esta obligación no implica a su vez, la posibilidad del Estado, - al menos no en un estado constitucional de derecho-, de afectar los derechos de libertad y conciencia y de religión de una parte de la población, también establecidos en instrumentos internacionales de derechos humanos, por lo que es necesario, tomar acciones que permitan armonizar la existencia armónica de ambos derechos según se detalla a continuación.

VII.- SOBRE EL RECLAMO POR AFECTACIÓN DEL DERECHO CONSTITUCIONAL DE LOS PADRES EN RELACIÓN CON LA EDUCACIÓN DE SUS HIJOS: En este caso la competencia de este Tribunal, no apunta a determinar cuál debe ser el contenido específico de las guías sexuales que se impartirán en el sistema educativo nacional; este es asunto que corresponde al Consejo Superior de Educación de conformidad con el numeral 81 de la Constitución Política. Más bien la competencia de la Sala se enmarca en la protección de los derechos fundamentales de los justiciables, particularmente el referido a la normativa jurídica del más alto rango jurídico que reconoce a los padres de familia la posibilidad de que sus hijos sean educados en forma acorde con sus creencias morales o religiosas. Al respecto, es importante citar lo que los instrumentos internacionales sobre Derechos Humanos señalan, comenzando por la Declaración Universal de Derechos Humanos, que en su artículo 26, inciso 3, puntualiza que los padres tienen derecho preferente a escoger el tipo de educación que habrá de darse a los hijos. Por su parte, el Pacto Internacional de Derechos Económicos, Sociales y Culturales, expresa, en su numeral 13, inciso 3), lo siguiente:

“Artículo13 (…)

3. Los Estados Partes en el presente Pacto se comprometen a respetar la libertad de los padres y, en su caso, de los tutores legales, de escoger para sus hijos o pupilos escuelas distintas de las creadas por las autoridades públicas, siempre que aquéllas satisfagan las normas mínimas que el Estado prescriba o apruebe en materia de enseñanza, y de hacer que sus hijos o pupilos reciban la educación religiosa o moral que esté de acuerdo con sus propias convicciones”.

Asimismo, el Pacto Internacional de Derechos Civiles y Políticos, en su artículo 18, inciso 4, establece lo siguiente:

“Artículo 18.- (…)

4. Los Estados Partes en el presente Pacto se comprometen a respetar la libertad de los padres y, en su caso, de los tutores legales, para garantizar que los hijos reciban la educación religiosa y moral que esté de acuerdo con sus propias convicciones”.

Este concepto se repite en el artículo 12 inciso 4) de la Convención Americana Sobre Derechos Humanos que señala:

“Artículo 12.- Libertad de Conciencia y de Religión (…)

4. Los padres, y en su caso los tutores, tienen derecho a que sus hijos o pupilos reciban la educación religiosa y moral que esté de acuerdo con sus propias convicciones.” Finalmente y dentro de dicha normativa internacional aplicable al caso, debe mencionarse la Convención sobre los Derechos del Niño establece 12 que:

“1) Los Estados Partes respetarán el derecho del niño a la libertad de pensamiento, de conciencia y de religión. 2) Los Estados Partes respetarán los derechos y deberes de los padres y, en su caso, de los representantes legales, de guiar el niño en el ejercicio de su derecho de modo conforme a la evolución de sus facultades. 3) La libertad de manifestar la propia religión estará sujeta únicamente a las limitaciones prescritas por la ley y que sean necesarias para proteger la seguridad, el orden, la moral o la salud pública o los derechos o libertades de los demás”.

Igualmente, se desprende de las normas anteriores la existencia de una obligación estatal referida concretamente a la actividad estatal de educación, de manera que la educación que se imparte oficialmente no podría simplemente imponer su poder, por sobre el contenido esencial de los derechos recogidos en los instrumentos recién citados.

VIII.- Este tema, a su vez, tiene un desarrollo jurisprudencial, en la jurisprudencia del Tribunal Europeo de Derechos Humanos. Este Tribunal ha resuelto casos de objeción de conciencia en el ámbito educativo a causa de la invocación del artículo 2 del primer Protocolo adicional a la Convención Europea de Derechos Humanos, en el que se le impone al Estado el deber de respetar las convicciones religiosas y filosóficas de los padres en la educación de sus hijos. Destaca el primer enfoque sobre el tema, que se dio en la sentencia Kjeldsen, Busk Madsen y Pedersen vs. Dinamarca, donde se analizó precisamente un conflicto entre unos padres de familia que se oponían a que sus hijos recibieran una asignatura obligatoria sobre educación sexual integrada, la Corte consideró que la finalidad perseguida por el gobierno danés, con la nueva ley, era legítima, pues con ello se pretendía combatir el número de embarazos no deseados fuera del matrimonio, el número de abortos y las enfermedades venéreas. Puntualizó también que el numeral 2 del citado Protocolo no impedida que los Estados difundieran, por medio de la enseñanza o la educación, conocimientos o informaciones que tengan, directamente o no, carácter religioso o filosófico. No le permitió a los padres oponerse a este tipo de temas, pues la enseñanza institucionalizada corría el riesgo de hacerse impracticable, aunque sí le impuso al Estado el deber de vigilancia para que esos conocimientos insertados en un programa se difundiera de manera objetiva, crítica y pluralista, con lo que prohibió perseguir una finalidad de adoctrinar, lo que sí podría afectar las convicciones religiosas y filosóficas de los padres. En este caso, resulta de particular relevancia el voto salvado del Juez Verdross, que se convirtió –con el paso del tiempo- en posición de mayoría del Tribunal en casos subsiguientes. Según el citado Juez, una enseñanza en materia sexual, detallada y demasiado precoz impartida por el Estado al amparo del monopolio del Estado en el dominio de la educación, priva a los padres de su derecho primordial de asegurar la educación a sus hijos de acuerdo con sus propias convicciones religiosas. También puntualizó que todo lo que concierne a la conciencia de los hijos –su orientación moral- es un tema que incumbe a los padres según la doctrina cristiana, por lo que el Estado no puede interponerse entre los padres y los hijos contra la voluntad de los primeros. Se pregunta, si con base en el artículo 2 del Protocolo pueden los padres oponerse a una educación sexual obligatoria en una escuela pública e, incluso, cuando la mencionada educación no constituye una tentativa de adoctrinamiento. Para responder esa interrogante, hace una distinción entre los hechos de la sexualidad humana, que forman parte de la biología, y las conductas sexuales, incluida la contracepción y métodos anticonceptivos. Para el citado Juez, estas últimas sí se encuentran sumidas dentro del ámbito moral y de conciencia, por lo que es a los padres a quienes corresponde su formación, no al Estado; ese derecho de los padres no puede vulnerarse, desconocerse o menospreciarse por el Estado. Por ello, aun y cuando la información sobre conductas sexuales tenga un carácter objetivo, lesionan el derecho de los padres en cuanto invaden la conciencia de los hijos menores, pues pueden recibir una educación contraria a las convicciones religiosas de sus progenitores. La doctrina sentada en ese voto salvado fue seguida por el citado Tribunal en la sentencias Folgero y Zengin v. Turquía. En esta última sentencia, el Tribunal concluye que el Estado está en la obligación de respetar las convicciones religiosas y filosóficas de los padres, en el conjunto del programa de la enseñanza pública. Este deber del Estado vale para el contenido de la enseñanza y la manera de dispensarla y en ese contexto los padres pueden exigir al Estado el respeto de sus convicciones religiosas y filosóficas.

IX.- También la Corte Suprema de Justicia de los Estados Unidos de América se ha pronunciado sobre el nexo entre la educación y la libertad de conciencia. Al respecto, en la sentencia Winsconsin v. Yoder (1972), la Corte consideró, a propósito de la educación impartida a los niños de la religión Amish, que " (…) la esencia de todo lo que se ha dicho y escrito sobre este tema es que los intereses de orden superior y aquellos otros que no pueden ser ejercidos de otra manera pueden contrabalancear el legítimo reclamo a la libre profesión de una religión. Podemos dar por aceptado, en consecuencia, que no importa cuán fuerte sea la obligación del Estado en la educación general obligatoria, éste no es de modo alguno absoluto no permite la exclusión o subordinación del resto de los intereses. El cumplimiento de la ley estatal que requiere la asistencia obligatoria a la escuela... pondría en peligro gravemente, si es que no destruiría, el libre ejercicio de su fe a los demandados." Así, se consideró prevalente la libertad religiosa frente al interés estatal de una educación obligatoria para los menores hijos de los Amish.

X.- CONSIDERACIONES SOBRE EL CASO CONCRETO: En este caso, existen elementos de convicción suficientes para concluir que el programa de estudio de “Educación para la afectividad y la sexualidad integral” no se refiere únicamente a hechos de la sexualidad humana, sino que también abarca conductas sexuales. Basta para ello señalar que en el documento en que se plasma, se establece lo siguiente:

“En Costa Rica, hasta ahora, la educación para la sexualidad se ha planteado mayoritariamente como un proceso informativo y centrado en su dimensión biológica. Este programa de estudio, en el marco de la política general vigente aprobada por el Consejo Superior de Educación del 2001, denominada Política Educación Integral de La expresión de la Sexualidad Humana (Acuerdo del artículo tres del acta 2001-12-06 modificado en su apartado No.6 con el acuerdo 02-08-04) integra esa dimensión, como elemento indispensable de una formación de sexualidad, pero agrega una dimensión formativa y afectiva, en la que se enfatiza”. (Las negritas no corresponden al original). Más adelante se puntualiza que con el contenido y las estrategias de este programa lo que se busca es “(…) generar cambios de actitud que potencien el respeto y la promoción de la persona humana”, sea la forma de actuar de los estudiantes, su comportamiento frente a la sexualidad, lo que lógicamente implica inculcarles valores, conocimiento, concepciones, destrezas y habilidades frente al fenómeno de la sexualidad. Prueba de lo que venimos afirmando, es que cuando se precisa que se entiende por educación para la afectividad y la sexualidad integral, “(…) parte de que la misión de la sexualidad es el vínculo, desde dimensiones afectiva, corporal, ética y espiritual, con el apoyo y la promoción de la madurez emocional”. Se entiende por lo espiritual lo relativo a los valores, los criterios éticos y el sentido de la vida.” Ahora bien, si nuestra sociedad tiene formalmente reconocidas como finalidades el pluralismo, la democracia y el respeto de libertad de pensamiento y de creencias, es de esperar que dentro de ella surjan prosperen o decaigan numerosas visiones y perspectivas sobre una amplia variedad de cuestiones ideológicas y morales entre las cuales se incluyen las conductas sexuales de los individuos, las cuales a menudo se hallan estrechamente relacionadas con creencias religiosas o filosóficas de las personas; similarmente, también es inevitable que quienes profesan tales creencias, pretendan ejercitar el precitado derecho fundamental a transmitirlas a sus hijos.- Dentro de esta pluralidad, cabe entonces hacerse cuestión sobre la validez de imponer una visión de las conductas sexuales por parte del Estado en el sentido de preguntarse cuál entre todas ha de ser esa visión favorecida: ¿La de del Consejo Superior de Educación o la del señor Ministro de Educación Pública? ¿la de la señora Defensora de los Habitantes o la de los profesores que imparten la materia? ¿Debe imponerse la ligada a una práctica religiosa particular o más bien deben difundirse los criterios de los agnósticos, de los ateos, o de los amorales? Evidentemente, resulta imposible que el contenido de este tipo de programa pueda satisfacer a todos, es decir, esté acorde con las creencias religiosas y filosóficas de todos los padres de familias y sus hijos, de ahí que se reconozca la potestad del Estado de dar el contenido que considere el más conveniente, pero ante el hecho de que este tipo de enseñanza forma parte del acervo moral de los educandos e incide en su escala de valores, en sus creencias y en su conciencia, los padres que consideren que el contenido de guías sexuales afecta negativamente las creencias religiosas y filosóficas que quieren para sus hijos, no tienen la obligación de soportar una invasión de parte del Estado, en un ámbito que el Derecho de la Constitución y el Derecho Internacional de los Derechos Humanos reserva a la esfera de la relación padres e hijos. En esta dirección, resulta pertinente traer a colación lo que la Corte Constitucional colombiana puntualizó en la sentencia T 662/99, en el sentido de que:

“(…) no puede afirmarse que el pensamiento de uno de los estudiantes o su comportamiento moral o religioso legitimen conductas de la institución orientadas hacia el desconocimiento de los derechos constitucionales fundamentales, particularmente en el espacio reservado a su libertad de conciencia. Mientras se trate apenas de la profesión de sus ideas o de prácticas acordes con el libre ejercicio de aquélla, y en tanto con su conducta no cause daño a la comunidad estudiantil, la conciencia individual debe estar exenta de imposiciones externas”.

La sociedad democrática es una sociedad tolerante y, por consiguiente, se impone tanto el respeto de las creencias de todas las personas que forman parte de la sociedad, como el derecho que dichas creencias se traduzcan en la realidad, independientemente de lo que piensen los demás sobre estas, así como a rechazar cualquier invasión en ámbito de la conciencia. Por ello, entiende este Tribunal que la manera apropiada de conciliar los derechos en juego en este caso, apunta a la necesidad de establecer un mecanismo en favor de aquellos padres que consideren que la puesta en ejecución del programa de estudio de “Educación para la afectividad y la sexualidad integral” afecta sustancialmente su derecho fundamental a incidir efectivamente en los aspectos que afecten la educación moral o religiosa de sus hijos, según la formulación recogida en las normas de derecho positivo ya reseñadas.- XI.- Ahora bien, este Tribunal considera importante dejar establecidas algunas ideas generales sobre ese mecanismo de exclusión del programa de estudio de “Educación para la afectividad y la sexualidad integral” que aquí se reconoce como parte de un ejercicio válido de un derecho fundamental.- Como se indicó, la Sala comprende la relevancia de la educación sexual y asume como suyas las inquietudes respecto de los problemas de salud pública y de desarrollo que se han atribuido a la falta de educación sexual.- Esto, sumado a las obligaciones impuestas al Estado por el Derecho internacional, hacen que el relevo de la obligación educativa estatal y de su responsabilidad en este aspecto. Para que los padres puedan excluir a sus hijos de la atención del programa de estudio de “Educación para la afectividad y la sexualidad integral” debe el Ministerio de Educación Pública establecer la forma en que los representantes del menor puedan hacer la respectiva objeción a través de un mecanismo ágil y sencillo, con el fin de garantizarles el respeto de sus derechos fundamentales relativos a la educación de sus hijos. A manera de ejemplo podría bastar una simple comunicación por escrito del padre de familia al Director del Centro Educativo indicándole que sus hijos no recibirán ese contenido educativo.” En el ámbito laboral, la Sala mediante la sentencia N° 2015-008155, de las 10:05 horas del 05 de junio de 2015, resolvió un proceso de amparo en el cual se tuteló el despido de un funcionario que no laboraba los días sábado por pertenecer a la Iglesia Adventista del Séptimo Día, en ese sentido dispuso:

“El recurrente reclama que, a pesar de ser conocido por autoridades de tránsito que pertenece a la Iglesia Adventista del Séptimo Día y, por ende el sábado es día de reposo, el Delegado de Tránsito de Cartago le cambió el horario incluyendo los sábados, además, que el once de mayo siguiente fue advertido verbalmente que ya se había dado traslado del informe para su despido por no laborar los sábados.

II.- Hechos probados. De importancia para la decisión de este asunto, se estiman como debidamente demostrados los siguientes hechos, sea porque así han sido acreditados o bien porque el recurrido haya omitido referirse a ellos según lo prevenido en el auto inicial:

a. El 10 de mayo de 2013, el recurrente presentó ante el Despacho del Ministerio de Obras Públicas y Transportes una carta en la cual hace constar que es miembro activo de la organización religiosa Adventista del Séptimo Día (véase Informe de ley).

b. El 07 de abril de 2015, el Delegado de Tránsito de Cartago le informó, de manera verbal, al recurrente que debido a necesidades de personal se le modificó el horario (véase informe de ley).

c. El 14 de abril de 2015, el recurrente presentó ante el Departamento de Relaciones Laborales del Ministerio de Obras Públicas y Transportes una gestión en la que indica que está en desacuerdo en trabajar los sábados debido a su condición religiosa. (véase informe de ley).

d. El 15 de abril de 2015, mediante oficio DRL-088-2015 el Departamento de Relaciones Laborales del MOPT, le informó al recurrente que ese departamento carece competencia para resolver lo solicitado. (véase informe de ley).

e. El 21 de abril en el oficio DTC-2015-0240, se le comunicó al recurrente el cambio de horario.

f. El 24 de abril de 2015, el Consejo de Personal del MOPT le solicitó al Director Jurídico que emitiera un criterio legal sobre la solicitud del recurrente (véase informe de ley).

g. El 14 de mayo de 2015, mediante oficio 20152143, la Dirección Jurídica del Ministerio de Obras Públicas y Transportes señaló: “Es nuestro criterio jurídico que la Administración debe respetar el derecho constitucional de aquellos funcionarios que profesen un credo religioso cuya celebración se lleva a cabo los días sábados (…)” (véase informe de ley ).

h. El 19 de mayo de 2015, se giró el oficio DGTP-0704-2015 en donde se le comunicó a Mariano Alfaro Mora (Jefe de la Policía de Tránsito de Cartago), que modificara el horario del recurrente (véase informe de ley).

i. El 20 de mayo de 2015, el Jefe del recurrente, mediante oficio DTC 2015-0310, indicó: “Le comunico que procederé inmediatamente con el cambio de rol de trabajo del funcionario, lo anterior de conformidad con el criterio emitido por… la Asesoría Jurídica… así también del Acuerdo del Consejo de Personal (…)” (véase informe de ley).

j. La Dirección General de Tránsito del Ministerio de Obras Públicas y Transportes, no ha promovido gestión alguna para el despido del recurrente (véase informe de ley).

III.- Hechos no probados. Ninguno de relevancia para la resolución del presente asunto.

IV- Sobre el fondo. Del informe rendido por la autoridad recurrida -que se tiene dado bajo fe de juramento con las consecuencias, incluso penales, previstas en el artículo 44 de la Ley que rige esta Jurisdicción- y la prueba aportada para la resolución del asunto, si bien las autoridades recurridas manifiestan haber resuelto la gestión que presentó el recurrente el 8 de abril del 2015 en relación con el cambio de horario emitido por la Jefatura de Tránsito de Cartago, también es lo cierto que sobre la solicitud presentada por la recurrente (14 de abril de 2015), la autoridad recurrida le comunicó lo resuelto el 20 de de mayo del presente año, lo que se produjo con posterioridad a la notificación de la resolución que dio curso al presente amparo (18/05/2015). Ahora bien, en cuanto al despido que alega el recurrente, del informe emitido se tiene que no ha promovido gestión alguna. En este contexto, lo que corresponde es declarar con lugar el recurso, únicamente para efectos indemnizatorios.” En la sentencia N°2015-011897 de las 11:41 horas del 31 de julio de 2015, la Sala Constitucional, tuteló a un oficial de la Fuerza Pública que profesa el judaísmo, religión para la cual el Shabat "sábado" es un día de reposo, en ese sentido se indicó:

“IV.- Caso concreto.- Ahora bien, en el caso particular, se tiene debidamente acreditado que el recurrente, [NOMBRE001], es miembro activo de la Asociación Toras Jai VeAhavas Jesed, cuya actividad es de carácter religioso, según constancia emitida por el Rabino Rinjos Dov Fishman, el 17 de febrero del 2015. Asimismo, es oficial del Ministerio de Seguridad Pública, y se encuentra destacado en la Delegación Policial de Alajuelita. El tutelado alega violación a su libertad religiosa -consagrada en el artículo 75, de la Constitución Política-, debido a que el 9 de diciembre de 2014, presentó ante sus superiores un libelo en el que -por sus creencias religiosas- solicitó que se le otorgara un rol de labor de 5 x 2, debido a que profesa el judaísmo y el Shabat "sábado" es un día de suma importancia como parte fundamental de sus creencias y prácticas de culto, ya que es día de reposo. Por ello, se abstienen de realizar actividades que no tengan relación con las del culto y adoración, propias de ese día. No obstante, asegura que dicha gestión –así como otras posteriores-, han sido denegadas por sus superiores por diversas razones de índole administrativa. Por su parte, el Jefe de la Delegación Policial de Alajuelita y el Director Jurídico del Ministerio de Seguridad Pública, indican, en su informe, que ese Ministerio no se opone a las creencias religiosas del señor [NOMBRE001], ni a la libertad de culto a la que tiene derecho; sin embargo, alegan que se encuentra de por medio toda la operatividad de una Delegación Policial, la cual está previamente establecida, e implica toda una organización del personal con que se cuenta, por lo que el cambio de rol de un funcionario hace que la misma se vea alterada, ya que no se dispone de la cantidad de personal con la que se contaba al momento de elaborar los planes de trabajo diario de dicha delegación. Asimismo, indican que mediante oficio N°0249-2015-D10 del 14 de abril del 2015, se brindó respuesta a la nota del 11 de abril, en la cual se explicó al recurrente que no procede asignarle el rol 5 x 2, debido a que las funciones que permiten dicho rol ya están siendo realizadas en la Delegación Policial, y el amparado ocupa el puesto de Agente de Comunicaciones, en Análisis Ocupacional, clase 2. Al respecto, resulta pertinente aclarar que los miembros de los cuerpos policiales del Estado, al igual que cualquier persona, gozan de derechos fundamentales, y si bien se ha reconocido que pueden ser objeto de ciertas limitaciones de naturaleza laboral en razón de la función que desempeñan, lo cierto es que esto sería posible únicamente en aquellos casos en los que se encuentre de por medio el interés de la colectividad debidamente comprobado, pues de lo contrario se incurriría en una actuación ilegítima. Tomando en cuenta lo anterior, y tras analizar los elementos aportados a los autos, se estima que la decisión de la autoridad accionada resulta contraria a derecho, pues si se toma en cuenta que una gran mayoría de la población del país pertenece al catolicismo, y una minoría es protestante, y dentro de esa minoría un porcentaje aún más pequeño guarda el sábado por razones religiosas, es razonable sostener que en el caso de los miembros de la Fuerza Pública, son pocos los que profesan esas creencias religiosas, de ahí que el hecho de que se permita a estos oficiales cumplir con ese precepto, no implica de ninguna manera una afectación grave del servicio público que les ha sido encomendado. En ese sentido, previo a adoptar la decisión que se cuestiona en este recurso de amparo, los recurridos se encontraban en la obligación de buscar la solución menos gravosa para el tutelado, con el fin de que se no se afectara lo dispuesto por el numeral 75, de la Constitución Política, no obstante, los accionados no procedieron de esa manera, pues la medida adoptada implicó una lesión a la libertad religiosa del amparado, y, además, no fue proporcional al fin por el que fue adoptada, ya que como se indicó anteriormente, el hecho de que se hubiera permitido al amparado guardar su día de descanso, no conllevaba a una vulneración seria del interés público. Es decir, dentro de dos soluciones posibles, se opta por la más gravosa para el derecho fundamental y, por consiguiente, se vulnera, además de que la medida acordada por la autoridad recurrente, no es proporcional ni justa en sí misma, por lo que no hay otra alternativa que declarar con lugar el recurso de amparo. En consecuencia, el amparo resulta procedente por acreditarse la lesión al artículo 75 constitucional, y se ordena a los funcionarios recurridos de forma inmediata respetar al señor [NOMBRE001], el sábado como día de culto y adoración, el cual se le tendrá siempre como su día de descanso.” En la sentencia N°2017-000228 de las 09:15 horas del 13 de enero de 2017, la Sala Constitucional, tuteló de igual manera a un estudiante de la Universidad de Costa Rica para que no le fueran realizadas pruebas o evaluaciones lo sábados y señaló que:

“…en el caso que nos ocupa, resulta pertinente tener presente que la libertad religiosa, consagrada en el artículo 75, de la Constitución Política, encierra, en su concepto genérico, un haz complejo de facultades. En este sentido, en primer lugar, se refiere al plano individual, es decir, la libertad de conciencia, que debe ser considerado como un derecho público subjetivo individual, esgrimido frente al Estado, para exigirle abstención y protección de ataques de otras personas o entidades. Consiste en la posibilidad, jurídicamente garantizada, de acomodar el sujeto, su conducta religiosa y su forma de vida a lo que prescriba su propia convicción, sin ser obligado a hacer cosa contraria a ella. En segundo lugar, se refiere al plano social, la libertad de culto, que se traduce en el derecho a practicar externamente la creencia hecha propia. Ahora bien, al igual que cualquier derecho fundamental, el ejercicio de la libertad religiosa o de culto, no es ilimitado, pues la propia Constitución Política dispone, en el numeral 75, que éste no podrá oponerse a la moral universal, ni a las buenas costumbres. Asimismo, tratados internacionales como el Pacto Internacional de Derechos Civiles y Políticos, dispone, en su artículo 18, que “ la libertad de manifestar la propia religión o las propias creencias estará sujeta únicamente a las limitaciones por la ley que sean necesarias para proteger la seguridad, el orden, la salud o la moral públicos, o los derechos o libertades fundamentales de los demás”. De lo anterior, se desprende que cualquier manifestación de la libertad religiosa podrá ser posible, siempre y cuando no resulte contraria a la moral y las buenas costumbres de la sociedad, o lesione en forma grave el interés público, pues de darse alguno de estas situaciones, sí sería posible la limitación del derecho de cita.” En relación con la objeción de conciencia en el ámbito laboral, la Sala Constitucional, se pronunció recientemente, sobre el caso planteado por un juez del Juzgado Notarial del Poder Judicial, luego de que las autoridades accionadas denegaran el ejercicio de la objeción de conciencia ante gestiones planteadas por personas del mismo sexo. En ese sentido, en la sentencia N°2020-001619 de las 12:30 horas del 24 de enero de 2020, se indicó:

“IV.- Sobre el derecho a la objeción de conciencia. Tanto en la doctrina como en la jurisprudencia más autorizada de los Tribunales garantes de los derechos fundamentales, se ha conceptualizado la objeción de conciencia como un derecho fundamental de toda persona a negarse a cumplir un deber, el que se encuentra en el ordenamiento jurídico, a causa de que la norma respectiva resulta incompatible con sus creencias o convicciones, las que tienen como basamento, en regla de principio, convicciones religiosas, morales o ideológicas. Se sostiene que este derecho es una derivación lógica y necesaria de la libertad de conciencia, y constituye una de sus manifestaciones externas. El reconocimiento y la tutela efectiva de este derecho fundamental, es un elemento distintivo indiscutible de una sociedad pluralista, al extremo, de que su no reconocimiento o su reducción a la mínima expresión -afectación severa a su contenido esencial que lo hace irreconocible o impracticable-, no solo denota su vulneración, sino que constituye un signo preocupante de que la sociedad que se encuentra en tal situación, pretende imponer una visión única, un pensamiento exclusivo y excluyente, sobre temas y cuestiones en las que debe privar la diversidad de opiniones en consonancia con el numeral 28 de la Carta Fundamental y los artículos 12 y 13 de la Convención Americana sobre Derechos Humanos, as í como su numeral 6, donde de manera expresa se establece el servicio militar y, en los países donde se admite exención por razones de conciencia, el servicio nacional que la ley establezca en lugar de aquél. Al igual que la citada Convención, el Convenio Europeo para la Protección de los Derechos Humanos y las Libertades Fundamentales, hace referencia expresa a la objeción de conciencia en los mismos términos en el artículo 4.3.b. Por su parte, la Carta Europea de los Derechos Fundamentales de la Unión Europea, cuando se refiere a la libertad de pensamiento, de conciencia y de religión en su numeral 10, inciso 2, reconoce de forma expresa el derecho a la objeción de conciencia de acuerdo con las leyes nacionales que regulen su ejercicio. A diferencia de la Corte Interamericana de Derechos Humanos, el Tribunal Europeo de Derechos Humanos (en adelante el TEDH) sí se ha pronunciado sobre el derecho fundamental a la objeción de conciencia. En lo que respecta al servicio militar obligatorio, en el caso Tblimmenos vs. Grecia, en el año 2000, el TEDH concluyó que el citado Estado había violentado la prohibición de discriminación (artículo 14 del Convenio) en relación con el derecho a la libertad de pensamiento, de conciencia y exclusión (artículo 9 del Convenio), al considerar que la exclusión del solicitante de la profesión de contador público era desproporcionada en relación con la garantía del adecuado castigo de las personas que se niegan a servir al país -se trataba de un testigo de Jehová que había sido condenado a cuatro años de prisión por haberse negado a alistarse en el ejército-, especialmente porque ya había cumplido la pena. Seis a ños pasaron para que el TEDH, en el caso Ulke vs. Turquía 2006, estableciera límites a los Estados parte del Convenio, al prohibir el infligir tratos inhumanos y degradantes (artículo 3o del Convenio) contra la persona objetante. El actor era un ciudadano turco que se negó a prestar el servicio militar por sus creencias pacifistas, quien había sido condenado nueve veces a prisión. De gran importancia en esta reseña jurisprudencial, es el caso Bayatyan vs. Armenia de 2011, en el que la Gran Cámara del TEDH sostiene que si bien el artículo 9 del Convenio no se refiere de manera expresa al derecho a la objeción de conciencia, este es un derecho autónomo que se desprende de la libertad de conciencia por lo que debía garantizarse -como cualquier otra libertad del Convenio- de las injerencias arbitrarias del Estado. Así las cosas, una limitación al citado derecho debe aprobar el test de razonabilidad y proporcionalidad, toda vez que toda acción del Estado de atender estrictamente a los límites definidos en ese test, es decir, que se trate de una medida proporcional que responda a un fin legítimo y necesario en una sociedad democrática. Además, resulta importante reseñar, que el TEDH advirtió que esa regla no se aplica de manera general, sino que siempre debe evaluarse a la luz de las particulares circunstancias de cada caso. Este criterio fue reiterado en los casos Ercep vs. Turquía (2011), Sarda vs. Turquía (2012), Tarban vs. Turquía (2012) Feti Demitras vs. Turquía (2012) y Buldu vs. Turquí a (2014). También el Tribunal, en una ocasión, se ha pronunciado sobre la objeción de conciencia en el caso de los productos farmacéuticos y otro, en el supuesto del derecho de propiedad. En el caso Pichón y Sajous vs. Francia (2001), el Tribunal sostuvo que al ser legal la venta de productos anticonceptivos y que en el caso se produjo por una prescripción médica, las demandantes no podían dar prioridad a sus creencias religiosas e imponerlas a los demás para justificar su negativa a vender este tipo de producto. En el caso Hermann vs. Alemania (2012), en el que el accionante se vio obligado a soportar la caza en su predio por la ley alemana e hizo la objeción de conciencia con fundamento en sus creencias pacifistas, el Tribunal le dio la razón, pues se daba una interferencia en su propiedad a tener que soportar hombres armados y perros de caza en su terreno. El TEDH reitera su postura en los casos Chassagnou y Schneider, en el sentido de que imponer la cacería a los terratenientes que se oponen a esta sobre la base de creencias éticas, conllevan una carga desproporcionada, incompatible con el artículo 1o del Protocolo 1 o. En lo que respecta, a la objeción de conciencia en relación con el uso de símbolos religiosos, el TEDH se ha pronunciado en varios casos sobre su impacto en distintos ámbitos, concretamente en el espacio público, en el entorno educativo y en el ámbito laboral. Al respecto, hay cuatro casos significativos Dablab v. Suiza (2001), Leyla Sabin vs. Turquía (2004), Drogu vs. Francia (2008) y Kervanci vs. Francia (2008). Del análisis de ellos se extrae que el TEDH ha mantenido una línea de respaldo al margen de apreciación de los Estados, autorizando la limitación al uso de símbolos religiosos, en particular, el uso del velo islámico. Un caso muy interesante fue el de Eweida y otras vs. Reino Unido (2013), en el que el TEDH amparó a la primera peticionaria por quebranto a la libertad de conciencia y religión, mas no a las tres restantes. Especial interés presenta el caso de Ladele, quien era notaria encargada de registrar matrimonios, nacimientos y defunciones, quien, con motivo del cambio normativo, se vio obligada a registrar uniones de personas del mismo sexo. El TEDH reiteró su postura que la libertad religiosa abarca la libertad de manifestar las creencias de manera privada, pero también conlleva su práctica en comunidad con otros y en público. Dichas manifestaciones pueden tomar forma de adoración, enseñanza, práctica y observación. Como la manifestación de las creencias religiosas de la persona puede tener un impacto en otros, sus restricciones deben estar prescritas por Ley, ser necesaria en una sociedad democrática y perseguir un fin legítimo. A su vez, para contar como manifestación en el sentido del artículo 9 del Convenio, el acto en cuestión debe estar íntimamente ligado con la religión o creencia. En este caso, resulta importante resultar las opiniones disidentes de los jueces Vucinié y De Gaetano en relación con la peticionaria Ladele, pues se visualiza la objeción de conciencia como un derecho que facilita la interacción armoniosa con otros derechos fundamentales que pueden entrar en tensión con aquélla. Para ambos, el TEDH se equivocó al negar la violación de los derechos a la libertad de conciencia y religión, así como el derecho a la no discriminación de la notaria, quien, a causa de sus convicciones cristianas, se negaba a registrar matrimonios entre personas del mismo sexo. Enfatizan sobre la importancia que tiene para una persona el juicio moral o de la conciencia, protegido por el derecho a la objeción de conciencia y diferente del contenido propio de la libertad religiosa. Concluyen que la mayoría del TEDH erró, pues las creencias de la tercera peticionaria no tuvieron un impacto en el contenido de su trabajo, sino solo en el alcance de este. Tampoco se probó que ella hubiera intentado imponer sus creencias a los demás, de manera abierta o subrepticiamente, por lo que el hecho de que ella perdiera su trabajo resultaba totalmente desproporcionado.

(…)

VI.- La objeción de conciencia y el ejercicio de la función jurisdiccional. Un tema no poco polémico es de si el Juez, en el ejercicio de la función jurisdiccional, es decir, ejerciendo la titularidad de un poder el Estado, puede o no ejercer el derecho a la objeción de conciencia. Es claro que hay determinados supuestos en los que no es procedente, por su propia naturaleza y su carácter generalizado el derecho a la objeción de conciencia. Ha sostenido la doctrina que no es posible la objeción de conciencia de un Juez penal que alegase que su conciencia no le permite establecer castigos. Lo mismo puede afirmarse en el caso de un Juez de familia que objete el divorcio. En todos estos supuestos -además hay que tener presente que él cuando optó por el cargo asumió voluntariamente todas sus funciones-, consecuentemente, estaríamos quebrantando una regla elemental de buena fe si luego pretendiese ejercer el derecho a la objeción de conciencia. Empero, hay otros casos, donde sí resulta procedente la objeción de conciencia en la función jurisdiccional. En efecto, la Corte Constitucional italiana tuvo la oportunidad de conocer un caso en el que un Juez objetó suplir el consentimiento de una menor para abortar, en el año 1987. En este caso, el citado tribunal rechazó la cuestión argumentado que no estaba suficientemente fundamentada, lo que causó perplejidad y críticas y un intenso debate, pues se dio un cierto acuerdo doctrinal, en el sentido que la cuestión de constitucionalidad pudo haberse resuelto por la vía de la interpretación extensiva del artículo 51 del Código de Procedimientos Civiles italiano, que permite la abstención en la causa de aquel Juez que alegue “graves razones de conveniencia”, haciendo posible así el traspaso del caso a otro Juez que no oponga la objeción de conciencia. Como puede observarse de lo anterior, hay quienes sostienen que a través de la causal de recusación se puede ejercer el derecho a la objeción de conciencia de los juzgadores; empero, al estar en presencia de un derecho fundamental autónomo y siendo un derecho-deber en este caso, debe ejercerse de forma personalísima, ya que corresponde al objetante, con fundamento en sus creencias o convicción, determinar si estas le impiden resolver la controversia jurídica que está en su despacho. Distinta es la posición de la Corte Constitucional colombiana, la que en la sentencia de Tutela n. ° 388/09 del 28 de mayo del 2009, sostuvo una posición absoluta, maximalista, en el sentido de que las autoridades judiciales no pueden escudarse en el derecho a la objeción de conciencia para negarse a tramitar o a decidir un asunto que se ponga bajo su conocimiento. Esta postura, vacía del contenido esencial del derecho a la objeción de conciencia, toda vez que para este Tribunal los jueces y juezas no gozan de este derecho fundamental. Veremos que sí es posible garantizar el servicio público de Administración de Justicia en condiciones de igualdad y no discriminación, admitiendo el derecho a la objeción de conciencia en la función jurisdiccional, tal y como acertadamente lo ha sostenido un importante sector de la doctrina.

VII.- Sobre el caso concreto. Ahora bien, en todas estas cuestiones hay que tener presente una premisa fundamental, y una constante histórica, en el sentido de que no hay derechos fundamentales absolutos, excepto el derecho a no ser sometido a tratos crueles, inhumanos o degradantes, por consiguiente, el derecho a la objeción de conciencia tiene límites y limitaciones y, en aquellos casos, en los que entra en colisión con otro derecho fundamental se debe recurrir al principio de la concordancia práctica y, por consiguiente, es menester hacer un juicio de ponderación entre los derechos que están en conflicto, tal y como se desarrollará más adelante. En el sub judice el recurrente expresa que el acto impugnado quebranta su derecho a la objeción de conciencia, toda vez que el Consejo Superior del Poder Judicial no toma en consideración sus convicciones religiosas y lo obliga a actuar en contra de ellas, al verse compelido a efectuar el acto del matrimonio entre personas del mismo sexo; la situación es radicalmente diferente cuando se trata de actuaciones de mero trámite, verbigracia: inscripción de un matrimonio, tal y como aconteció en el caso Eweida y otros vs. Reino Unido supra reseñado, donde no es posible ejercer el derecho a la objeción de conciencia. Como puede observarse, en el sub judice no se trata de una función propiamente jurisdiccional -una que resuelve una controversia jurídica con carácter de cosa juzgada-, sino de una de naturaleza judicial, sea funciones no jurisdiccionales establecidas mediante Ley. Ante esta situación, lo primero que hay que traer a colación es que este derecho fundamental es inherente a la persona juzgadora. Lo segundo, es que cuando la persona objetante plantea el impedimento se deben seguir varios criterios en extremo de suma importancia. El primero, que acredite la existencia del motivo de conciencia y su relación directa con el deber legal que objeta. Lo segundo, que se trate de una situación sobrevenida, pues no es posible el ejercicio de este derecho fundamental cuando la persona juzgadora voluntariamente aceptó el cargo y, dentro de sus funciones, se encontraban el deber jurídico que ahora pretende objetar. Y, finalmente, cuando se acepta el ejercicio del derecho fundamental a la objeción de conciencia, el Poder Judicial está en el deber jurídico de sustituirlo, dentro de un plazo perentorio, de forma tal que el sistema estructurado d é a la persona usuaria de los servicios de Administración Justicia el servicio en condiciones de eficacia, eficiencia e igualdad, sea, se le resuelva la situación conforme al derecho fundamental a una tutela judicial efectiva o justicia pronta y cumplida y sin discriminación alguna. Ahora bien, podría argumentarse que el derecho fundamental a la objeción de conciencia no se puede ejercer cuando conlleva una discriminación; no obstante, dicha posición parte de una visión absoluta y, por consiguiente, se vacía el contenido esencial de un derecho fundamental. En ese sentido, debe quedar claro que nadie, en su sano juicio, estaría en contra de la afirmación de que la judicatura se debe ejercer de forma independiente e imparcial y sin discriminación alguna. Desde esta visión, es inadmisible que un Juez o Jueza dé un trato preferente a unas personas y a otras un trato discriminatorio por razones políticas, de raza, de religión, de preferencia sexual, etc. En el ejercicio de la judicatura, así como en el ejercicio de la función administrativa, la imparcialidad es el norte y, por consiguiente, el Poder Judicial está en el deber de dar un trato igual a las personas heterosexuales y homosexuales en cuanto atención, trámite, tiempo de respuesta, resolución y ejecución de los asuntos, etc. Por ello, resulta inadmisible que un juzgador o un funcionario administrativo se niegue a tramitar un asunto de una persona porque tiene una visión del mundo o un estilo de vida que él no comparte; en estos casos, no tiene cabida el ejercicio del derecho fundamental a la objeción de conciencia, verbigracia: negarse a realizar un acto de inscripción, tramitar un juicio, ejecutar lo resuelto, etc. Radicalmente es la situación cuando se trata de ejercer un acto que está abiertamente en contra de sus más profundas convicciones religiosas, morales o ideológicas -como es la celebración del acto de matrimonio-, en este supuesto, para garantizar el ejercicio de los dos derechos fundamentales en conflicto, se debe echar mano al principio de la concordancia práctica. Como acertadamente lo ha sostenido la doctrina alemana, cuando hay una colisión de derechos fundamentales se debe aplicar el principio de la concordancia práctica, de forma tal que no se puede sacrificar un derecho en beneficio del otro en tal magnitud, que se vacíe su contenido esencial. En este tipo de situaciones, el operador jurídico, en primer lugar, está llamado a realizar una interpretación y aplicación de los derechos fundamentales de forma tal que permita el mayor grado de ejercicio por parte de ambas personas. Ante una incompatibilidad manifiesta, el juicio de ponderación impone que, ante el sacrificio de uno frente al otro, el que ve menguado su ejercicio, sea lo estrictamente necesario para hacer posible el ejercicio del otro. Y, finalmente, siempre hay que tener presente que el juicio de ponderación lo es del caso concreto, lo que significa, ni más ni menos, que en otra situación el juicio de ponderación bien puede inclinarse a favor del derecho fundamental sacrificado en el anterior caso. Teniendo como marco de referencia lo anterior, la Sala observa las distintas variables en el presente asunto. Por una parte, se puede pensar que se debe sacrificar en su contenido esencial el derecho fundamental a la objeción de conciencia porque esta no tiene cabida alguna ante un caso de discriminación. Dicho de otra forma, los jueces están obligados a sacrificar, deben hacer a un lado sus más profundas convicciones, en este caso religiosas, y proceder a realizar el matrimonio. Bajo esa línea de pensamiento, de no realizar el Juez el matrimonio, se estaría ante un acto discriminatorio. Sobre el particular, lo primero que hay que tener presente es que no se vulnera el principio de igualdad y la no discriminación cuando hay una justificación objetiva y razonable. Al respecto, la Sala Constitucional ha expresado, de forma reiterada, lo siguiente:

"El principio de igualdad, contenido en el Artículo 33 de la Constitución Política, no implica que en todos los casos, se deba dar un tratamiento igual prescindiendo de los posibles elementos diferenciado)-es de relevancia jurídica que pueda existir; o lo que es lo mismo, no toda desigualdad constituye necesariamente una discriminación. La igualdad, como lo ha dicho la Sala, sólo es violada cuando la desigualdad está desprovista de una justificación objetiva y razonable. Pero además, la causa de justificación del acto considerado desigual, debe ser evaluada en relación con la finalidad y sus efectos, de tal forma que deba existir, necesariamente, una relación razonable de proporcionalidad entre los medios empleados y la finalidad propiamente dicha. Es decir, que la igualdad debe entenderse en función de las circunstancias que concurren en cada supuesto concreto en el que se invoca, de tal forma que la aplicación universal de la ley, no prohíbe que se contemplen soluciones distintas ante situaciones distintas, como tratamiento diverso. Todo lo expresado quiere decir, que la igualdad ante la ley no puede implicar una igualdad material o igualdad económica real y efectiva " (véanse los votos n. ° 1770-94 y 1045-94).

La mayoría del Tribunal considera que el hecho de que un Juez que plantee una objeción de conciencia en un tema que, desde el punto de vista religioso, resulta de la mayor envergadura, no significa que esté discriminando a una persona determinada, se trata de una justificación objetiva y razonable. Lo que sucede es que tiene una visión diferente sobre una institución social y religiosa a la que pueden tener los contrayentes y, por consiguiente, el obligarlo a celebrar el acto de matrimonio lacera sus convicciones religiosas más profundas, y deja sin contenido esencial el derecho fundamental del juzgador. En segundo término, es un hecho público y notorio que un país donde hay varios jueces notariales, bien puede la Administración de Justicia aceptar la objeción de conciencia, la que, como se expresó supra, debe de cumplir todos los requisitos para que se pueda ejercer este derecho fundamental, y encargar a los jueces no objetantes la realización de los matrimonios entre las personas del mismo sexo e, incluso, en un Estado garante de todos los derechos fundamentales de las personas, establecer un sistema que permita tener siempre a disposición jueces que sí está n dispuestos a brindar el servicio a las personas del mismos sexo en condiciones de igualdad que a otros usuarios del servicio. Vista así las cosas, no hay tal acto de discriminación, toda vez que siempre habrá jueces y juezas que realizarán el acto de matrimonio, con lo cual se satisface los derechos de las personas contrayentes. Por otra parte, tampoco puede desconocerse que Costa Rica es un Estado que tiene un sistema de notoria abierta, en la que las distintas personas pueden acudir a un (a) notario (a) de libre elección para contraer matrimonio, siempre y cuando no haya planteado la objeción de conciencia de conformidad con el numeral 3 de los Lineamientos para el Ejercicio y Control del Servicio Notarial (véase La Gaceta n.° 23 del 5 de febrero del 2020). Finalmente, no menos importante, es que el derecho a la objeción de conciencia se aplicaría para aquellos jueces que fueron nombrados antes de la entrada en vigor del matrimonio entre personas del mismo sexo -dentro de sus funciones no se encontraba el realizar el acto de matrimonio entre personas del mismo sexo-, pues a quienes se nombre con posterioridad, es claro que han aceptado voluntariamente realizar el acto de matrimonio tanto para personas heterosexuales como homosexuales. En consonancia con la posición que sigue la mayoría del Tribunal, es importante traer a colación las palabras del juez Neil Gorsuch, en el sentido que el lugar de los funcionarios seculares no es juzgar las creencias religiosas -de las personas- sino solo proteger su libre ejercicio, pronunciada en el famoso Caso Masterpiecf. Cakeshop. L td., v. Colorado Civil Rights Commission ET AL. -SIETE VOTOS A FAVOR Y DOS EN CONTRA DE PROTEGER LA LIBERTAD DE CONCIENCIA-, en el que una pareja del mismo sexo solicitó a un pastelero de Colorado en el verano del 2012, que les confeccionara un queque de bodas; el dueño de apellido Phillips se negó a hacer el pedido especial, lo que implicaba crear y venderles un pastel de bodas para parejas del mismo sexo. Consta que ofreció otros productos de su tienda. Al momento de la solicitud, no existía una ley que reconociera el matrimonio del mismo sexo, por lo que el casamiento se haría en un Estado en que si fuera legal y ofrecerían la celebración en Denver. Jack Phillips se autodenominaba como profesional en pastelería y devoto cristiano, cuyo principal objetivo en la vida era ser obediente a las enseñanzas de Jesucristo, por lo que buscaba honrar a Dios mediante su trabajo en su tienda en Masterpiece Cakeshop. Precisamente, una de sus creencias religiosas radicaba en la intención de Dios para que el matrimonio fuera la unión de un hombre y una mujer, de modo que, al crear un queque de bodas para una pareja del mismo sexo, sería equivalente a participar en esa celebración que resultaba contraria a sus creencias más preciadas. La madre de uno de los muchachos llamaría a Phillips el día siguiente por más explicaciones y éste le contestó en similares términos, agregando que la creación de un queque implicaría celebrar algo que sería contrario a las enseñanzas de la Biblia y, además, implicaría a su parecer una aprobación personal para la ceremonia y la relación de pareja que constituirían.

VIII.- Partiendo de lo externado líneas atrás, la mayoría del Tribunal considera que una sociedad pluralista, resulta necesario que el Derecho de la Constitución -valores, principios y normas- se autoriza a las personas a tener distintas visiones sobre los fenómenos políticos, económicos, sociales y culturales, pues de lo contrario se caería en una sociedad autoritaria o totalitaria en la que hay una homogenización o estandarización del pensamiento. En ese sentido, los Tribunales de Derechos Humanos no están llamados a imponer un pensamiento único, sino que a través de un juicio de ponderación y en aplicación de los principios de razonabilidad y de proporcionalidad, deben permitir el máximo ejercicio de los derechos fundamentales que están en colisión, de forma tal que coexistan de manera respetuosa. Hay que tener presente que, en aquellos casos de conflicto de derechos fundamentales, el Tribunal Constitucional no es un promotor de una determinada ideología o visión del mundo, pues cuando actúa de esa forma claudica a su misión y, por consiguiente, aunque resulte paradójico, termina atropellando los derechos fundamentales de la persona que debe tutelar. Así, en virtud de lo expuesto anteriormente, lo procedente es acoger el recurso, con las consecuencias que se dirán en la parte dispositiva.

IX.- Conclusión. El principio de igualdad y no discriminación es un elemento esencial del servicio público de Administración de Justicia, por lo que sus usuarios deben recibir un trato igualitario en la atención, el trámite, resolución y ejecución de los distintos asuntos que se conocen en todas las instancias judiciales. Por su parte, la mayoría del Tribunal considera que es posible ejercer el derecho a la objeción de conciencia en la función jurisdiccional -aunque en el presente caso se trata del ejercicio de una función judicial-. En estos supuestos, se concilia dos derechos fundamentales, sin embargo, no se vacía del contenido esencial al primero -igualdad y no discriminación-, toda vez que ante un caso de objeción de conciencia de un juzgador relativo a realizar el acto de matrimonio, el Consejo Superior del Poder Judicial debe adoptar todas las medidas necesarias para que el servicio público de Administración de Justicia se brinde a las parejas del mismo sexo en las mismas condiciones y tiempos de respuesta que le da a las personas heterosexuales. Finalmente, es claro que todas aquellas personas que se nombren con posterioridad a la entrada en vigor del matrimonio de personas del mismo sexo no pueden ejercer el derecho a la objeción de conciencia, pues voluntariamente han aceptado esa función al ofertar y aceptar el cargo.” Sobre la objeción de conciencia. En una acepción genérica, la objeción de conciencia refiere a un instituto de antigua data, que desde tiempos remotos aparece en la sociedad y se trata de la posibilidad de apartarse de un deber o mandato jurídico cuando estos riñen o se contraponen a las convicciones del objetor sin que se le pueda exigir responsabilidad. En otras palabras, se podría considerar una especie de resistencia hacia el precepto normativo, en cuanto este se fundamente en el conflicto aparente entre las obligaciones morales, religiosas o de justicia de la persona y el cumplimiento de disposiciones legales. La objeción de conciencia es entendida como una concreción ad extra del derecho a la libertad de conciencia, que se manifiesta como límite de los poderes públicos para que estos no interfieran con las convicciones personales. Tal como se mencionó en el apartado anterior, desde los primeros pronunciamientos de este Tribunal Constitucional, se entendió que “…la libertad de conciencia, que debe ser considerada como un derecho público subjetivo individual, esgrimido frente al Estado, para exigirle abstención y protección de ataques de otras personas o entidades. Consiste en la posibilidad, jurídicamente garantizada, de acomodar el sujeto, su conducta religiosa y su forma de vida a lo que prescriba su propia convicción, sin ser obligado a hacer cosa contraria a ella. En segundo lugar, se refiere al plano social, la libertad de culto, que se traduce en el derecho a practicar externamente la creencia hecha propia. Además la integran la libertad de proselitismo o propaganda, la libertad de congregación o fundación, la libertad de enseñanza, el derecho de reunión y asociación y los derechos de las comunidades religiosas, etc.” (ver sentencia N°3173-93 de las 14: 57 horas del 6 de julio de 1993, doctrina reiterada en las sentencias N°5492-96 de las 16:54 horas del 16 de octubre de 1996, N°2001-10491 de las 15:57 horas del 16 de octubre de 2001, N°2002-03018 de las 11:12 horas del 22 de marzo de 2002, N°2002-08557 de las 15:37 horas del 03 de septiembre de 2002, N°2003-03018 de las 14:48 horas del 22 de abril de 2003, N°2004-008763 de las 12:15 horas del 13 de agosto del 2004, 2012-10456 de las 05:27 horas del 01 de agosto de 2012 y N°2014-004575 de las 14:30 horas del 2 de abril de 2014, entre otras). De lo anterior puede concluirse que la libertad de conciencia es un derecho fundamental, que debe garantizar el Estado respetuoso de la libertad religiosa y de sociedad democrática, amplia y pluralista con amplio respeto de la diversidad de opiniones, creencias y convicciones morales. Asimismo, la libertad de pensamiento y de conciencia se erigen como elementos fundamentales que conforman la identidad de los creyentes y su concepción de la vida, así como para las personas ateas, agnósticas, escépticas e indiferentes. La objeción de conciencia debe ser diferenciada de figuras afines como la desobediencia civil, dado que la intención del objetor no es obstaculizar el cumplimiento social del precepto legislativo, sino obtener el respeto de su propia conciencia. La diferencia radica, principalmente, en la finalidad de la acción. El objetivo principal de la desobediencia civil es la modificación de un precepto normativo o política pública, por ejemplo, el movimiento por los derechos civiles de las personas afrodescendientes emprendido por Martin Luther King para terminar con la segregación y discriminación racial en los Estados Unidos de Norteamérica. También debe diferenciarse entre la objeción de conciencia y la evasión de conciencia, tal como lo señala John Rawls (Teoría de la Justicia, 1975), la distinción se refiere a la publicidad del acto y no a su finalidad. En ese sentido, la objeción de conciencia se manifiesta de manera pública, pues el objetor debe comunicar su negativa a los superiores a efectos de obtener la exención. De manera contraria, la evasión de conciencia se identifica por su carácter esencialmente secreto, por ejemplo, la personas que se separa de los dogmas normativos para emprender reservadamente una acción entendida como deber moral, como aquel que emprende la justicia de propia mano en defensa de sus convicciones. Inicialmente, la objeción de conciencia fue concebida como un instituto que permitía a los objetores desligarse de participar en el servicio militar sin ser responsabilizados por deserción. De esta manera, la objeción de conciencia al servicio militar se fundamentó en el derecho a la libertad de pensamiento, de conciencia y de religión, establecido en la Declaración Universal de Derechos Humanos y en el Pacto Internacional de Derechos Civiles y Políticos. El derecho a la objeción de conciencia al servicio militar no es un derecho en si´ mismo, ya que en los instrumentos internacionales de las Naciones Unidas no se menciona directamente, sino que se le califica como un derecho derivado o como una manifestación de estos, pues tal como se indicó, se deriva de una interpretación del derecho a la libertad de pensamiento, de conciencia y de religión. Es claro que una evolución progresiva y expansiva de la objeción de conciencia ha permitido ampliar los alcances en dos vertientes; la primera, respecto a los alegatos subjetivos, permitiendo al objetor de conciencia no solo anteponer sus creencias religiosas, sino también, otro tipo de convicciones, normalmente éticas, morales y filosóficas y; la segunda, en cuanto al ámbito de aplicación, ya que dicho instrumento ya no solo es oponible al servicio militar obligatorio sino que se trasladó al ámbito de la educación, al ámbito sanitario y al ámbito laboral. Desde luego, la justificación iusfilosófica de la objeción de conciencia puede ser abordada desde diversas perspectivas. Desde una visión iusnaturalista, como la del realismo jurídico clásico, así como desde una visión constructivista o contractualista como la de John Rawls y Ronald Dworkin influenciadas por la moral kantiana, en tanto exaltan el principio de autonomía individual como aquel que justifica el ejercicio de la objeción de conciencia.

Sobre el reconocimiento de la objeción de conciencia en el ámbito laboral y educativo según la jurisprudencia de la Sala Constitucional. Tal como se indicó en el primer apartado de este considerando, el reconocimiento de la objeción de conciencia, por parte de este Tribunal Constitucional tiene sus orígenes en el año de 1993 (ver sentencia N°3173-93 de las 14:57 horas del 06 de julio de 1993), referido al ámbito de educación y desde esa fecha hasta la actualidad se ha reconocido el derecho de las personas estudiantes a la objeción de conciencia en el ámbito educativo, como instrumento derivado de la libertad de conciencia y la libertad de culto, señalando que “…Consiste en la posibilidad, jurídicamente garantizada, de acomodar el sujeto, su conducta religiosa y su forma de vida a lo que prescriba su propia convicción, sin ser obligado a hacer cosa contraria a ella. En segundo lugar, se refiere al plano social, la libertad de culto, que se traduce en el derecho a practicar externamente la creencia hecha propia. Además la integran la libertad de proselitismo o propaganda, la libertad de congregación o fundación, la libertad de enseñanza, el derecho de reunión y asociación y los derechos de las comunidades religiosas, etc.”. Esta interpretación es común de otras latitudes, como por ejemplo, en el caso de España desde la sentencia 15/1982 de 23 de abril de 1982, el Tribunal Constitucional Español reconoció la objeción de conciencia por interpretación del artículo 30.2 de la Constitución, el cual señala explícitamente la objeción de conciencia para el servicio militar en conjunto con la interpretación del artículo 16.1, atribuyéndole un contenido amplio que consiste no solo en creer o dejar de creer lo que se tenga por conveniente, sino también a la posibilidad de comportarse en la vida personal y social de acuerdo a las propias convicciones, cualesquiera que estas sean, señalando expresamente:

“…tanto la doctrina como el derecho comparado afirman la conexión entre la objeción de conciencia y la libertad de conciencia. Para la doctrina, la objeción de conciencia constituye una especificación de la libertad de conciencia, la cual supone no sólo el derecho a formar libremente la propia conciencia, sino también a obrar de modo conforme a los imperativos de la misma. En la Ley Fundamental de Bonn el derecho a la objeción de conciencia se reconoce en el mismo artículo que la libertad de conciencia y asimismo en la resolución 337, de 1967, de la Asamblea Consultiva del Consejo de Europa se afirma de manera expresa que el reconocimiento de la objeción de conciencia deriva lógicamente de los derechos fundamentales del individuo garantizados en el art. 9 de la Convención Europea de Derechos Humanos, que obliga a los Estados miembros a respetar las libertades individuales de conciencia y religión.

Y, puesto que la libertad de conciencia es una concreción de la libertad ideológica, que nuestra Constitución reconoce en el art. 16, puede afirmarse que la objeción de conciencia es un derecho reconocido explícita e implícitamente en el ordenamiento constitucional español, sin que contra la argumentación expuesta tenga valor alguno el hecho de que el art. 30.2 emplee la expresión «la Ley regulará», la cual no significa otra cosa que la necesidad de la interpositio legislatoris no para reconocer, sino, como las propias palabras indican, para «regular» el derecho en términos que permitan su plena aplicabilidad y eficacia.” Asimismo, la Sala Constitucional ha trasladado la aplicabilidad de la objeción de conciencia al ámbito laboral, para resolver situaciones en las cuales los empleados o funcionarios desean apartarse del cumplimiento de obligaciones. Específicamente, en la concepción de la objeción de conciencia en el ámbito laboral, la Sala Constitucional indicó que “… se ha conceptualizado la objeción de conciencia como un derecho fundamental de toda persona a negarse a cumplir un deber, el que se encuentra en el ordenamiento jurídico, a causa de que la norma respectiva resulta incompatible con sus creencias o convicciones, las que tienen como basamento, en regla de principio, convicciones religiosas, morales o ideológicas. Se sostiene que este derecho es una derivación lógica y necesaria de la libertad de conciencia, y constituye una de sus manifestaciones externas.” (ver sentencia N°2020-001619 de las 12:30 horas del 24 de enero de 2020). En el precedente de cita, el Tribunal valoró la posibilidad de que un juzgador en su función judicial pueda invocar una objeción de conciencia y advirtió que la “…la mayoría del Tribunal considera que una sociedad pluralista, resulta necesario que el Derecho de la Constitución -valores, principios y normas- se autoriza a las personas a tener distintas visiones sobre los fenómenos políticos, económicos, sociales y culturales, pues de lo contrario se caería en una sociedad autoritaria o totalitaria en la que hay una homogenización o estandarización del pensamiento. En ese sentido, los Tribunales de Derechos Humanos no están llamados a imponer un pensamiento único, sino que a través de un juicio de ponderación y en aplicación de los principios de razonabilidad y de proporcionalidad, deben permitir el máximo ejercicio de los derechos fundamentales que están en colisión, de forma tal que coexistan de manera respetuosa. Hay que tener presente que, en aquellos casos de conflicto de derechos fundamentales, el Tribunal Constitucional no es un promotor de una determinada ideología o visión del mundo, pues cuando actúa de esa forma claudica a su misión y, por consiguiente, aunque resulte paradójico, termina atropellando los derechos fundamentales de la persona que debe tutelar.” En el citado fallo, la Sala Constitucional finalmente destacó que la Administración de Justicia se rige bajo el principio de igualdad y no discriminación, como elemento esencial del servicio público, que funciona como garantía para que los administrados reciban un trato igualitario en la atención, el trámite, resolución y ejecución de los distintos asuntos que se conocen en todas las instancias judiciales. De igual manera, concretó que es posible ejercer el derecho a la objeción de conciencia en la función jurisdiccional, aunque el caso que estaba resolviendo se refería al ejercicio de una función judicial. Finalmente, resaltó que, en estos supuestos, se concilian dos derechos fundamentales, sin desatender el derecho de igualdad y no discriminación, pues ante un caso de objeción de conciencia el Consejo Superior del Poder Judicial deberá adoptar todas las medidas necesarias para que el servicio público de Administración de Justicia se brinde en las mismas condiciones y tiempos de respuesta.

Normativa Internacional de la objeción de conciencia en el ámbito universal. El artículo 18 de la Declaración Universal de los Derechos Humanos de 1948, dispone que:

“Toda persona tiene derecho a la libertad de pensamiento, de conciencia y de religión; este derecho incluye la libertad de cambiar de religión o de creencia, así como la libertad de manifestar su religión o su creencia, individual y colectivamente, tanto en público como en privado, por la enseñanza, la practica, el culto y la observancia.” Casi de manera similar, el artículo 18 del Pacto Internacional de Derechos Civiles y Políticos de 1976, preceptúa que:

“1. Toda persona tiene derecho a la libertad de pensamiento, de conciencia y de religión; este derecho incluye la libertad de tener o de adoptar la religión o las creencias de su elección, así como la libertad de manifestar su religión o sus creencias, individual o colectivamente, tanto en público como en privado, mediante el culto, la celebración de los ritos, las prácticas y la enseñanza.

2. Nadie será objeto de medidas coercitivas que puedan menoscabar su libertad de tener o de adoptar la religión o las creencias de su elección.” Asimismo, el artículo 8 del Pacto Internacional de Derechos Civiles y Políticos de 1976, también señala:

“Artículo 8.

3. a) Nadie será constreñido a ejecutar un trabajo forzoso u obligatorio (…)

• c)No se considerarán como "trabajo forzoso u obligatorio", a los efectos de este párrafo:
• ii)El servicio de carácter militar y, en los países donde se admite la exención por razones de conciencia, el servicio nacional que debe prestar conforme a la ley quienes se opongan al servicio militar por razones de conciencia;” En el precepto normativo parcialmente transcrito no se reconoce un derecho general de objeción de conciencia y se hace una indicación de los Estados que legislaron sobre el particular, haciendo referencia al servicio sustituto. De igual manera el servicio militar obligatorio no debería ser considerado como trabajo forzoso. En la Convención Internacional sobre la Eliminación de todas las Formas de Discriminación Racial de 1969, se indica en el artículo 5 lo siguiente:

“Artículo 5.

En conformidad con las obligaciones fundamentales estipuladas en el artículo 2 de la presente Convención, los Estados partes se comprometen a prohibir y eliminar la discriminación racial en todas sus formas y a garantizar el derecho de toda persona a la igualdad ante la ley, sin distinción de raza, color y origen nacional o étnico, particularmente en el goce de los derechos siguientes:

(…)

• d)Otros derechos civiles, en particular:

(...)

(...)

• vii)El derecho a la libertad de pensamiento, de conciencia y de religión.” Normativa Internacional de la objeción de conciencia en el ámbito regional. El derecho a la libertad de pensamiento, de conciencia y de religión también se reconoce en los instrumentos regionales de derechos humanos. El Convenio para la Protección de los Derechos Humanos y de las Libertades Fundamentales de 1950, en el artículo 9 señala:

“1. Toda persona tiene derecho a la libertad de pensamiento, de conciencia y de religión; este derecho implica la libertad de cambiar de religión o de convicciones, así´ como la libertad de manifestar su religión o sus convicciones individual o colectivamente, en público o en privado, por medio del culto, la enseñanza, las prácticas y la observancia de los ritos.

2. La libertad de manifestar su religión o sus convicciones no puede ser objeto de más restricciones que las que, previstas por la ley, constituyan medidas necesarias, en una sociedad democrática, para la seguridad pública, la protección del orden, de la salud o de la moral públicas, o la protección de los derechos o las libertades de los demás.” La Carta de los Derechos Fundamentales de la Unión Europea (2000/C 364/01), reconoce de manera explícita la objeción de conciencia, de esta manera, en el artículo 10 indica:

“1. Toda persona tiene derecho a la libertad de pensamiento, de conciencia y de religión. Este derecho implica la libertad de cambiar de religión o de convicciones, así´ como la libertad de manifestar su religión o sus convicciones individual o colectivamente, en público o en privado, por medio del culto, la enseñanza, las prácticas y la observancia de los ritos.

2. Se reconoce el derecho a la objeción de conciencia de acuerdo con las leyes nacionales que regulen su ejercicio.” Por su parte, en el ámbito regional americano, la Convención Americana sobre Derechos Humanos de 1969, indica:

“Artículo 6. Prohibición de la esclavitud y servidumbre 2. Nadie debe ser constreñido a ejecutar un trabajo forzoso u obligatorio. (...)

3. No constituyen trabajo forzoso u obligatorio, para los efectos de este artículo:

(...) b. el servicio militar y, en los países donde se admite exención por razones de conciencia, el servicio nacional que la ley establezca en lugar de aquél; Artículo 12. Libertad de conciencia y de religión.

“1. Toda persona tiene derecho a la libertad de conciencia y de religión. Este derecho implica la libertad de conservar su religión o sus creencias, o de cambiar de religión o de creencias, así como la libertad de profesar y divulgar su religión o sus creencias, individual o colectivamente, tanto en público como en privado.

2. Nadie puede ser objeto de medidas restrictivas que puedan menoscabar la libertad de conservar su religión o sus creencias o de cambiar de religión o de creencias.

3. La libertad de manifestar la propia religión y las propias creencias estará sujeta únicamente a las limitaciones prescritas por la ley y que sean necesarias para proteger la seguridad, el orden, la salud o la moral públicos o los derechos o libertades de los demás.” “Artículo 27. Suspensión de garantías 1. En caso de guerra, de peligro público o de otra emergencia que amenace la independencia o seguridad del Estado parte, éste podrá adoptar disposiciones que, en la medida y por el tiempo estrictamente limitados a las exigencias de la situación, suspendan las obligaciones contraídas en virtud de esta Convención, siempre que tales disposiciones no sean incompatibles con las demás obligaciones que les impone el derecho internacional y no entrañen discriminación alguna fundada en motivos de raza, color, sexo, idioma, religión u origen social.

2. La disposición precedente no autoriza la suspensión de los derechos determinados en los siguientes artículos: (...) 6 (Prohibición de la Esclavitud y Servidumbre); (...) 12 (Libertad de Conciencia y de Religión) (...), ni de las garantías judiciales indispensables para la protección de tales derechos.” Asimismo, la Carta Africana de Derechos Humanos y de los Pueblos de 1981, en el artículo 8 dispone:

“La libertad de conciencia y la profesión y libre práctica de la religión estarán garantizadas. Nadie que respete la ley y el orden puede ser sometido a medidas que restrinjan el ejercicio de esas libertades.” En la Convención Americana se reconoce expresamente el derecho de todas las personas a la libertad de conciencia y de religión, el cual implica la titularidad para conservar, cambiar, profesar y divulgar su religión o creencias. En el ámbito regional americano, estos derechos han sido objeto de pocos pronunciamientos por parte de la Corte Interamericana de Derechos Humanos (CIDH). De esta manera, el alto tribunal se ha pronunciado en relación con la libertad de conciencia y religión en el contexto de vulneraciones de los derechos humanos de las que fueron víctimas personas que ejercían actividades religiosas (Juan Gerardi vs. Guatemala 1982, Dianna Ortiz vs. Guatemala 1997, y Loren Laroye Riebe Star, Jorge Alberto Baro´n Guttlein y Rodolfo Izal Elorz vs. México 1998). Asimismo, la CIDH se ha pronunciado sobre la libertad de conciencia en relación con la censura de la exhibición de una obra cinematográfica (Olmedo Bustos y otros vs. Chile 2001). En este pronunciamiento la CIDH reconoció que el derecho a la libertad de conciencia y de religión, es sobre la tutela para que las personas conserven, cambien, profesen y divulguen su religión o sus creencias. Este derecho es uno de los cimientos de la sociedad democrática y en su dimensión religiosa, constituye un elemento trascendental en la protección de las convicciones de los creyentes y en su forma de vida. En el ámbito americano, el derecho a la libertad de conciencia y religión no puede ser suspendido. Sin embargo, la libertad de manifestar la propia religión y creencias sí puede ser limitada. Para que estas limitaciones sean legítimas, se exige que estas estén prescritas por la ley, así como, que sean necesarias para proteger la seguridad, el orden, la salud o la moral pública o los derechos y libertades de los demás. De igual manera, de los pronunciamiento de la CIDH se extrae que el derecho a la libertad de conciencia y religión puede ser violado a través de, por ejemplo, la denegación de ingreso al país de origen; la detención arbitraria y expulsión de un país de manera apresurada; la violación del derecho al debido proceso; la vigilancia; amenazas; secuestro y tortura perpetrados por agentes del Estado para castigar o truncar las actividades religiosas de las personas (Juan Gerardi vs. Guatemala 1982, Dianna Ortiz vs. Guatemala 1997, y Loren Laroye Riebe Star, Jorge Alberto Baro´n Guttlein y Rodolfo Izal Elorz vs. México 1998). La Convención Americana de Derechos Humanos, no reconoce el derecho a la objeción de conciencia como tal, (aunque sí menciona la objeción de conciencia al servicio militar obligatorio), sino que éste se desprende en forma autónoma del derecho a la libertad de conciencia (artículo 12 de la Convención Americana). La objeción de conciencia se deriva del derecho a la libertad de conciencia interpretado con lo señalado en la norma que afirma que el servicio nacional o alternativo establecido por leyes internas que admitan la objeción de conciencia no constituyen trabajo forzoso u obligatorio (artículo 6.3.b Convención Americana). Es decir, la libertad de conciencia solo ampara la objeción de conciencia en el ámbito militar en los casos en que la legislación interna lo admita (Cristián Daniel Sahli Vera y otros vs. Chile 2005, Alfredo Di´az Bustos vs. Bolivia 2005 y Xavier Alejandro Leo´n Vega vs. Ecuador 2006).

• 3)Análisis concreto de lo consultado Los consultantes consideran que el artículo 23 inciso g) del proyecto de “LEY MARCO DE EMPLEO PÚBLICO”, que se tramita en el expediente legislativo N°21.336, el cual establece la posibilidad de la objeción de conciencia en los procesos de formación y capacitación, es violatorio de los principios de legalidad y de seguridad jurídicas, de proporcionalidad y razonabilidad. Consideran que dicho precepto riñe con el Derecho de la Constitución, por cuanto, permite que las personas funcionarias públicas puedan alegar la objeción de conciencia con el fin de no recibir formación y capacitaciones que el Estado ha considerado obligatorias, violenta los principios de legalidad y de seguridad jurídicas, de proporcionalidad y razonabilidad al no regular las condiciones, parámetros y restricciones que impidan la violación de derechos humanos fundamentales comprendidos en el Derecho Convencional y plenamente reconocidos por nuestro ordenamiento jurídico. Señalan que, mediante una simple declaración jurada, las personas funcionarias públicas podrán informar sobre un derecho de objeción de conciencia cuando los contenidos de los programas de formación y capacitación vulneren, según su criterio, sus convicciones religiosas, éticas o morales, se trata de una norma totalmente amplia, que permitirá, apelando a criterios totalmente subjetivos, que cualquier persona se niegue a capacitarse sobre temas medulares de la Administración Pública. En ese sentido, consideran que no es posible apelar a la objeción de conciencia para promover la desigualdad, el maltrato y la discriminación desde un puesto de poder. Tal como se ha señalado, este Tribunal Constitucional, se ha pronunciado sobre la objeción de conciencia en diversos ámbitos, que abarcan la educación y el ámbito laboral. Entre los primeros señalamientos, se destaca de una fórmula derivada de los artículos 28 y 75 de la Constitución Política, entendido como una manifestación ad extra de la libertad de conciencia y la libertad de religión, que como toda exteriorización o manifestación debe estar expuesta dentro de las limitaciones establecidas por el ordenamiento, sea por norma constitucional o norma legal (ver sentencia N°3173-93 de las 14:57 horas del 06 de julio de 1993). Esta posición ha permitido dilucidar conflictos de raigambre constitucional en relación con objeciones de conciencia presentadas en el ámbito educacional y laboral. En ese sentido, este Tribunal ha sido de la tesis que las objeciones de conciencia se presentan por el conflicto que se produce entre el precepto legal y una convicción personal. Asimismo, se ha admitido que esta objeción se formule frente a disposiciones de cualquier naturaleza, sean normativas, políticas públicas o contractuales, en el tanto afecten las convicciones de una persona. En el proyecto de consulta es claro que el precepto normativo propuesto permitiría a un funcionario alegar una objeción de conciencia a efectos de que se aplique una exención frente a una capacitación o curso de formación obligatorios por considerarla contraria a sus convicciones religiosas, éticas y morales. En ese sentido los consultantes (consultas acumuladas: expediente N°21-011713-0007-CO y expediente N°21-012118-0007-CO) refieren que: 1. El fin de no recibir formación y capacitaciones que el Estado ha considerado obligatorias, violenta los principios de legalidad y de seguridad jurídicas, de proporcionalidad y razonabilidad al no regular las condiciones, parámetros y restricciones que impidan la violación de derechos humanos fundamentales comprendidos en el Derecho Convencional y plenamente reconocidos por nuestro ordenamiento jurídico. 2. Que, mediante una simple declaración jurada, las personas funcionarias públicas podrán informar sobre un derecho de objeción de conciencia cuando los contenidos de los programas de formación y capacitación vulneren, según su criterio, sus convicciones religiosas, éticas o morales, se trata de una norma totalmente amplia, que permitirá, apelando a criterios totalmente subjetivos, que cualquier persona se niegue a capacitarse sobre temas medulares de la Administración Pública. 3. Que la formulación permite de manera abierta y desregulada, la posibilidad de que los funcionarios públicos puedan negarse a recibir formación técnica y capacitaciones que sean obligatorias y necesarias para el ejercicio del cargo que desempeñan con la mera comunicación mediante declaración jurada, podría considerarse un ejercicio abusivo y contrario a los derechos humanos de los demás ciudadanos. Analizando el articulado del proyecto en consulta, entran en discrepancia un cúmulo de derechos, tanto de los funcionarios como de los ciudadanos que reciben servicios de estos servidores públicos. 4. Que los funcionarios públicos para poder ejercer sus funciones de manera proba, eficiente y efectiva ameritan necesariamente tener los conocimientos técnicos y administrativos que les permitan desempeñar sus funciones. 5. Además, existe una obligación del Estado de capacitar a los funcionarios para que la operación estatal sea acorde a los parámetros de prestación de los servicios públicos que deben garantizarse a los ciudadanos. 6. Cuestionan cómo puede determinar un funcionario público, de previo a recibir una capacitación, que la misma atenta contra sus creencias o convicciones personales. 7. Alegan que incluir la objeción de conciencia dentro de este proyecto de ley podría tornarlo inconstitucional en la medida que el Estado permitiría a funcionarios desatender el cumplimiento de potestades públicas, que son obligatorias y que alguien debe hacerlas. 8. Además, también este órgano constitucional ha dicho que los funcionarios cuando asumen un cargo sobre el cual deben realizar determinados actos, están obligados a cumplirlos sin derecho a objeción de conciencia, en el tanto han aceptado ejercer el cargo público conforme al derecho vigente al momento de su nombramiento. 9. La negativa de recibir una capacitación y formarse en temas acordes con su cargo, podría vulnerar, por ejemplo, el derecho del ciudadano a recibir adecuada atención de salud, un correcto servicio de los órganos que imparten justicia o un mensaje sesgado o equivocado por parte de instituciones educativas. 10. El considerar la objeción de conciencia como un mero trámite sin mayores condiciones y restricciones, sin ninguna seriedad técnica, solo para polemizar y polarizar a la sociedad costarricense resulta contrario a los derechos humanos reconocidos por la Corte Interamericana de Derechos Humanos, y se contrapone a la obligación que tiene el Estado y que debe garantizar.

Sobre el primer alegato formulado. Los consultantes indicaron que, si los funcionarios no reciben capacitaciones que el Estado ha considerado obligatorias, se violentan los principios de legalidad y de seguridad jurídicas, de proporcionalidad y razonabilidad al no regular las condiciones, parámetros y restricciones que impidan la violación de derechos humanos fundamentales comprendidos en el Derecho Convencional y plenamente reconocidos por nuestro ordenamiento jurídico. Al respecto debe indicarse que el alcance de la norma está delimitado, en este proyecto de ley, para que el servidor público no reciba capacitaciones que estime contrarias a sus convicciones religiosas, éticas y morales. De ahí que, no sería válido el razonamiento de los consultantes en el sentido señalado, en primer lugar, porque la condición y alcances se encuentran claramente delimitados a un supuesto específico, en este caso a las capacitaciones obligatorias, y; en segundo lugar, porque de este no se desprende que con el ejercicio de la objeción de conciencia se vulneren los derechos fundamentales o humanos de las personas. En ese sentido, debe recordarse que la objeción de conciencia ha sido el mecanismo válido de una persona para ejercitar otros derechos, como la libertad de conciencia y la liberta de religión (art. 75 constitucional) que, entendidos en armonía con el ordenamiento jurídico, su ejercicio estaría limitado por los derechos de terceros (artículo 28 constitucional). En ese sentido en la sentencia N°2020-001619 de las 12:30 horas del 24 de enero de 2020, se indicó “… se ha conceptualizado la objeción de conciencia como un derecho fundamental de toda persona a negarse a cumplir un deber, el que se encuentra en el ordenamiento jurídico, a causa de que la norma respectiva resulta incompatible con sus creencias o convicciones, las que tienen como basamento, en regla de principio, convicciones religiosas, morales o ideológicas. Se sostiene que este derecho es una derivación lógica y necesaria de la libertad de conciencia, y constituye una de sus manifestaciones externas.”.

Sobre el segundo alegato formulado. Los consultantes indican que, mediante una simple declaración jurada, las personas funcionarias públicas podrán informar sobre un derecho de objeción de conciencia cuando los contenidos de los programas de formación y capacitación vulneren, según su criterio, sus convicciones religiosas, éticas o morales, se trata de una norma totalmente amplia, que permitirá, apelando a criterios totalmente subjetivos, que cualquier persona se niegue a capacitarse sobre temas medulares de la Administración Pública. En relación con el mecanismo empleado a efectos de comunicar la objeción de conciencia, contrario a lo señalado por los consultantes, esta Sala considera que éste es apto, en el tanto el proyecto legislativo requiere una actuación suficiente por parte del servidor público, pues le impone informar mediante una declaración jurada la objeción de conciencia. No es un mecanismo laxo, por el contrario, supone una actuación a través de una declaración, la cual debe ser “jurada”, por lo que tiene consecuencias administrativas e incluso penales cuando se consignan datos falsos bajo juramento. La declaración jurídica es un instrumento ampliamente utilizado en la administración pública para temas de variada índole, por ejemplo encontramos la declaración de bienes que los funcionarios públicos anualmente realizan ante la Contraloría General de la República, también se utiliza en las Universidades Públicas y otras entidades cuando los docentes y/o funcionarios deben rendir información bajo ese formato. La Sala no considera que se trate de un instrumento débil o inapropiado para el ejercicio del derecho tutelado en el artículo 23 inciso g) del proyecto bajo estudio, pues ese juramento en realidad es una promesa de decir verdad, y por ello la persona que la emite asume la responsabilidad en caso de que sus manifestaciones no se ajusten a la verdad. El uso de la declaración jurada en la administración pública ha permitido agilizar trámites así como procedimientos en beneficio de la persona usuaria pero también de la Administración Pública. Es por esta razón que no es válido señalar que se trata de un documento con criterios totalmente subjetivos. En cuanto a su aplicación práctica, interesa señalar que, de conformidad con los precedentes jurisprudenciales de este Tribunal, en atención a lo dicho en la sentencia N°2012-010456 de las 05:27 horas del 01 de agosto de 2012, la objeción de conciencia puede ejercitarse a través de “…un mecanismo ágil y sencillo”, y por lo tanto, la Sala es del criterio que la declaración jurada, se ajustaría perfectamente porque se trata de un mecanismo ágil y sencillo. De otra parte, en cuanto al ámbito subjetivo, esta Sala ya ha indicado que la objeción procede no solo ante las convicciones religiosas, ampliando el ámbito a las convicciones morales o ideológicas (ver sentencia N°2020-001619 de las 12:30 horas del 24 de enero de 2020), considerándose que es perfectamente posible que una persona emita una declaración jurada para hacer referencia a esas convicciones morales o ideológicas para oponerse en los términos del inciso g) del artículo 23, sin que en ese documento tenga la obligación de demostrar o hacer una explicación profusa de tales convicciones -toda vez que ello podría rozar con su ámbito interno y personal- pero, a la vez, ello no obsta para que a través de una declaración jurada informe a la Administración su oposición en razón de sus convicciones morales o ideológicas. De igual manera, debe recordarse que “…la mayoría del Tribunal considera que una sociedad pluralista, resulta necesario que el Derecho de la Constitución -valores, principios y normas- se autoriza a las personas a tener distintas visiones sobre los fenómenos políticos, económicos, sociales y culturales, pues de lo contrario se caería en una sociedad autoritaria o totalitaria en la que hay una homogenización o estandarización del pensamiento. En ese sentido, los Tribunales de Derechos Humanos no están llamados a imponer un pensamiento único, sino que a través de un juicio de ponderación y en aplicación de los principios de razonabilidad y de proporcionalidad, deben permitir el máximo ejercicio de los derechos fundamentales que están en colisión, de forma tal que coexistan de manera respetuosa. Hay que tener presente que, en aquellos casos de conflicto de derechos fundamentales, el Tribunal Constitucional no es un promotor de una determinada ideología o visión del mundo, pues cuando actúa de esa forma claudica a su misión y, por consiguiente, aunque resulte paradójico, termina atropellando los derechos fundamentales de la persona que debe tutelar” (ver sentencia N°2020-001619 de las 12:30 horas del 24 de enero de 2020). A la luz de esta cita jurisprudencial, es válido entonces que una persona que piensa diferente, pueda manifestar su oposición a través de una declaración jurada mediante la cual no está obligada a exponer de manera abierta y explícita sus convicciones porque quiere resguardar su intimidad, pero este instrumento sí le permitiría defender su posición y exigir respeto por ella. Ahora bien, si el receptor de ese documento considera que pudiere contener manifestaciones falsas o inexactas, debe recordarse que el sistema también prevé esa posibilidad y para ello existe todo un procedimiento legalmente establecido a través del cual se podrá verificar la veracidad de las manifestaciones y será ahí, en la vía correspondiente, en donde se deberá probar que la persona no dijo la verdad, y en donde se podrían aplicar las sanciones que correspondan, inclusive penales, pero esa posibilidad de hacer manifestaciones falsas, tampoco puede convertirse en un obstáculo para el uso de este instrumento, toda vez que, como se dijo, se parte de que se presume verdad.

Igualmente debe decirse que es un mecanismo simple porque no implica una tramitación engorrosa, a la vez que efectivo y hasta discreto, que le permite a la persona ejercer su derecho a la objeción de conciencia y exigir respeto de éste, pero que, también le facilita resguardar su confidencialidad y su intimidad, sobre todo pensando en casos de personas que no quieren revelar su identidad de género, sus creencias religiosas o su agnosticismo, sus convicciones personales, entre otros.

Se estima entonces que la amplitud subjetiva es la garantía de inclusión y de reconocimiento de las diversas cosmovisiones, creencias y convicciones que se presentan en una sociedad democrática. Por lo tanto, se considera que el mecanismo ideado por el artículo consultado a través de la utilización de la declaración jurada, se ajusta a esa amplitud subjetiva sin lesionar otros derechos de la persona, por lo que no es contrario al Derecho de la Constitución.

Sobre el tercer alegato formulado. Los consultantes indicaron que la formulación planteada en el proyecto de Ley bajo estudio permite, de manera abierta y desregulada, la posibilidad de que los funcionarios públicos puedan negarse a recibir formación técnica y capacitaciones que sean obligatorias y necesarias para el ejercicio del cargo que desempeñan, ello con la mera comunicación mediante declaración jurada, lo que en criterio de los consultantes podría considerarse un ejercicio abusivo y contrario a los derechos humanos de los demás ciudadanos. Analizando el articulado del proyecto en consulta, puede afirmarse que entran en juego varios derechos, tanto de los funcionarios como de los ciudadanos que reciben servicios de estos servidores públicos. Al respecto, debe indicarse que los servidores públicos son contratados sobre la base del principio constitucional de idoneidad comprobada, es decir, que en tesis de principio la formación profesional y técnica de los funcionarios está previamente verificada en cuanto a los requisitos exigibles para desempeñarse en diversos cargos. Recuérdese que el régimen de los servidores públicos se sustenta en dos pilares fundamentales, la idoneidad comprobada en el ingreso y la estabilidad en el puesto. Por lo anterior, la consideración de que un profesional que no asista a un curso impacte directamente en su formación sería una situación que debería ser analizada frente a un caso concreto. Ahora bien, también es pertinente mencionar que todo servidor público tiene un llamado constitucional a brindar un servicio de calidad en el ejercicio de su cargo y, en caso de que esta persona incumpla con dicho mandamiento, podría incurrir en una falta disciplinaria, consecuentemente, cargaría con la responsabilidad correspondiente, para lo cual deberán ser valorados todos los supuestos fácticos concretos en cada caso. De ahí que, si un servidor incurriera en una conducta abusiva o arbitraria, frente a cualquier situación, incluida la objeción de conciencia, podría ser acreedor directo de las responsabilidades que se indican en la ley en todos aquellos supuestos en los cuales no se esté ante algún eximente o justificación válida de responsabilidad; sin embargo, todo ello se trata de previsiones o meras especulaciones que no pueden ser determinadas a ciencia cierta en este momento, y que serán establecidas hasta que se valore la situación en concreto, por lo que, tan solo partiendo del numeral bajo estudio, no podría afirmarse que con la redacción actual se vulnere el Derecho de la Constitución.

Sobre el cuarto alegato formulado. Los consultantes indicaron que los funcionarios públicos para poder ejercer sus funciones de manera proba, eficiente y efectiva ameritan necesariamente tener los conocimientos técnicos y administrativos que les permitan desempeñar sus funciones. Tal como se indicó, los procesos de selección y nombramiento se fundamentan en la escogencia de las personas capacitadas para ejercer cargos públicos, para lo cual se solicitan una serie de requisitos académicos, técnicos y actitudinales, entre otros, en aras de garantizar la eficiencia en la prestación de los servicios públicos. En el supuesto que algún servidor público dejara de cumplir con los requisitos, que en un inicio le fueron solicitados por el empleador -en este caso el Estado-, existe la posibilidad para iniciar los procedimientos necesarios a fin de garantizar la máxima eficiencia y la continuidad de los servicios, como, por ejemplo: traslado de personal, reorganización de los servicios, despido del funcionario, etc., todo lo anterior de conformidad con lo que se establece en las leyes a través de las vías concretas, ya sean administrativas o jurisdiccionales.

Sobre el quinto alegato formulado. Los consultantes refieren que existe una obligación del Estado de capacitar a los funcionarios para que la operación estatal sea acorde a los parámetros de prestación de los servicios públicos que deben garantizarse a los ciudadanos. En cuanto a la capacitación de los funcionarios públicos, debe señalarse que en el artículo 1 de la Ley 6362, Ley de Capacitación personal Administración Pública señala:

“Artículo 1º.- Se declara de interés público la formación profesional y la capacitación del personal de la Administración Pública en ciencias y técnicas administrativas, como el medio más adecuado para promover el mejoramiento integral de ésta.” Asimismo, el artículo 5 del mismo cuerpo normativo dispone:

“Artículo 5º.- La formación profesional y la capacitación constituyen un derecho y un deber de los funcionarios de la Administración Pública. Como derecho implica que a todo servidor que reúna las condiciones requeridas para participar en los programas de profesionalización y capacitación, se le brinde la posibilidad de participar en ellos. Como deber, la obligación de someterse a aquellos programas de adiestramiento en servicio y mejoramiento técnico que demande el buen desempeño del cargo.” Ciertamente existe un reconocido interés público en la formación de los servidores públicos con la intención de promover el mejoramiento integral de la Administración Pública. En relación con el proyecto de ley consultado, debe indicarse que la cláusula de objeción no resulta antagónica con lo preceptuado en la Ley de Capacitación personal Administración Pública, en el tanto se basa en el ejercicio de las libertades de conciencia y religión de las personas que invoquen una objeción ante la capacitación o formación obligatoria por considerarse contraria a las convicciones religiosas, éticas o morales.

Sobre el sexto alegato formulado. Los consultantes cuestionan: ¿cómo puede determinar un funcionario público, de previo a recibir una capacitación, que la misma atenta contra sus creencias o convicciones personales?. En relación con este planteamiento, es claro que la normativa propuesta, no establece una condición temporal en la cual se pueda plantear la objeción de conciencia, lo cual permite plantear la objeción antes o durante el desarrollo de la capación o curso. Es claro que dicha objeción solo podría ser planteada ante los procesos de formación o capacitación que sean obligatorios, en cuyo caso, al informarse al servidor de la obligación y el nombre del programa o curso así como de sus contenidos, este válidamente podría plantear la objeción, en el tanto se infiera del título o del contenido que entraría en conflicto con sus convicciones personales. No resulta necesario que el servidor deba iniciar un curso para que luego pueda ejercitar la objeción de conciencia, esto sería tan inoportuno como obligar a una persona no creyente a que reciba clases de religión para que luego pueda indicar si estas son contrarias o no a sus convicciones.

Sobre el sétimo alegato formulado. Los consultantes alegan que incluir la objeción de conciencia dentro de este proyecto de ley podría tornarlo inconstitucional en la medida que el Estado permitiría a funcionarios desatender el cumplimiento de potestades públicas, que son obligatorias y que alguien debe hacerlas. Una de las obligaciones constitucionales de las administraciones públicas es la prestación célere y eficiente de los servicios públicos. En ese sentido, al reconocerse la objeción de conciencia, la administración se encuentra en la obligación de disponer lo necesario a efectos de que los administrados no vean menoscabados sus derechos fundamentales ante funcionarios objetantes. De esta manera se indicó en la sentencia 2020-001619 de las 12:30 horas del 24 de enero de 2020, señalando que “…en estos supuestos, se concilia dos derechos fundamentales, sin embargo, no se vacía del contenido esencial al primero -igualdad y no discriminación-, toda vez que ante un caso de objeción de conciencia de un juzgador relativo a realizar el acto de matrimonio, el Consejo Superior del Poder Judicial debe adoptar todas las medidas necesarias para que el servicio público de Administración de Justicia se brinde a las parejas del mismo sexo en las mismas condiciones y tiempos de respuesta que le da a las personas heterosexuales.”. La norma del proyecto de ley consultado no se refiere propiamente a la prestación de servicios públicos, dado que su alcance está circunscrito a cursos o capacitaciones obligatorios. En ese supuesto, no podría entenderse como la desatención de los mandatos constitucionales y las obligaciones de la Administración, ya que solo supondría la exención de la persona objetante, debiéndose adoptar todas las medidas necesarias para que el servicio público se brinde en las mismas condiciones y tiempos de respuesta de servicios por parte los servidores no objetantes.

Sobre el octavo alegato formulado. Los consultantes señalan que la Sala Constitucional ha dicho que los funcionarios cuando asumen un cargo sobre el cual deben realizar determinados actos, están obligados a cumplirlos sin derecho a objeción de conciencia, en el tanto han aceptado ejercer el cargo público conforme al derecho vigente al momento de su nombramiento. Sobre la objeción de conciencia en el ámbito laboral, la Sala se ha pronunciado en varias ocasiones y ha tutelado las libertades de conciencia y religión de los servidores públicos en ese sentido, en la sentencia N°2015-011897 de las 11:41 horas del 31 de julio de 2015, la Sala Constitucional, tuteló a un oficial de la Fuerza Pública que profesa el judaísmo, indicando que “…los recurridos se encontraban en la obligación de buscar la solución menos gravosa para el tutelado, con el fin de que se no se afectara lo dispuesto por el numeral 75, de la Constitución Política, no obstante, los accionados no procedieron de esa manera, pues la medida adoptada implicó una lesión a la libertad religiosa del amparado, y, además, no fue proporcional al fin por el que fue adoptada, ya que como se indicó anteriormente, el hecho de que se hubiera permitido al amparado guardar su día de descanso, no conllevaba a una vulneración seria del interés público. Es decir, dentro de dos soluciones posibles, se opta por la más gravosa para el derecho fundamental y, por consiguiente, se vulnera, además de que la medida acordada por la autoridad recurrente (SIC), no es proporcional ni justa en sí misma, por lo que no hay otra alternativa que declarar con lugar el recurso de amparo.” La Corte Interamericana de Derechos Humanos reconoció el derecho a la libertad de conciencia y de religión, para que las personas conserven, cambien, profesen y divulguen su religión o sus creencias. Este derecho es uno de los cimientos de la sociedad democrática y en su dimensión religiosa, constituye un elemento trascendental en la protección de las convicciones de los creyentes y en su forma de vida (Juan Gerardi vs. Guatemala 1982, Dianna Ortiz vs. Guatemala 1997, y Loren Laroye Riebe Star, Jorge Alberto Baro´n Guttlein y Rodolfo Izal Elorz vs. México 1998). Es claro que la libertad de conciencia y de religión encuentra resguardo en el numeral 12 de la Convención Americana, indicando:

Artículo 12. Libertad de conciencia y de religión.

“1. Toda persona tiene derecho a la libertad de conciencia y de religión. Este derecho implica la libertad de conservar su religión o sus creencias, o de cambiar de religión o de creencias, así como la libertad de profesar y divulgar su religión o sus creencias, individual o colectivamente, tanto en público como en privado.

(…)” En razón de lo expuesto, si bien el servidor público al asumir un cargo sobre el cual debe realizar determinados actos, claramente, está obligado a cumplirlo, lo cierto es que el cumplimiento de sus funciones no hace nugatorios sus derechos fundamentales ni humanos, por lo que no sería admisible pensar que con la aceptación del cargo este renuncia ipso facto a estos derechos. Es claro que se trata de derechos que, por su naturaleza, son irrenunciables dado que tutelan la dignidad humana.

Sobre el noveno alegato formulado. La negativa de recibir una capacitación y formarse en temas acordes con su cargo, podría vulnerar, por ejemplo, el derecho del ciudadano a recibir adecuada atención de salud, un correcto servicio de los órganos que imparten justicia o un mensaje sesgado o equivocado por parte de instituciones educativas. Como ya se indicó, la objeción de conciencia debe ser diferenciada de figuras afines como la desobediencia civil, dado que la intención del objetor no es obstaculizar el cumplimiento social del precepto legislativo -como lo podría ser dejar de brindar la prestación de los servicios de salud o de administración de justicia-, sino obtener el respeto de su propia conciencia. La diferencia radica, principalmente, en la finalidad de la acción. El objetivo principal de la desobediencia civil es la modificación de un precepto normativo o política pública. De igual manera, debe diferenciarse entre la objeción de conciencia y la evasión de conciencia, la distinción se refiere a la publicidad del acto y no a su finalidad. En ese sentido, la objeción de conciencia se manifiesta de manera pública, pues el objetor debe comunicar su negativa a los superiores a efectos de obtener la exención. De manera contraria, la evasión de conciencia se identifica por su carácter esencialmente secreto, por ejemplo, la personas que se separa de los dogmas normativos para emprender reservadamente una acción entendida como deber moral, ejemplo, el médico que practica un procedimiento abortivo de forma clandestina con la intención de ayudar a la madre. Tal como se mencionó en la sección anterior, ante la exención de un servidor público, la Administración está en la obligación constitucional y legal de disponer lo necesario a efectos de que los administrados no vean menoscabados sus derechos fundamentales ante funcionarios objetantes, asegurando la celeridad y la calidad de los servicios prestados. Asimismo, no podría suponerse que ante la falta de una capacitación determinada el servidor público emita un criterio sesgado o deje de brindar un servicio, pues esto podría darse aún con la capacitación, de igual manera, tampoco podría suponerse lo contrario. En consecuencia, tampoco en este extremo no se observa la existencia una vulneración al Derecho de la Constitución.

Sobre el décimo alegato formulado. El considerar la objeción de conciencia como un mero trámite sin mayores condiciones y restricciones, sin ninguna seriedad técnica, solo para polemizar y polarizar a la sociedad costarricense resulta contrario a los derechos humanos reconocidos por la Corte Interamericana de Derechos Humanos, y se contrapone a la obligación que tiene el Estado y que debe garantizar. Tal como ya se mencionó, esta Sala considera que el procedimiento relativo a la cláusula de objeción es apto, en el tanto el proyecto legislativo requiere de una actuación suficiente de parte del servidor público y que consiste en informar mediante una declaración jurada la objeción de conciencia. Lo cual es consecuente con lo indicado por este Tribunal, así en la sentencia N°2012-010456 de las 05:27 horas del 01 de agosto de 2012. Al contrario de lo que señalan los consultantes, el ejercicio de la objeción de conciencia no busca polemizar ni polarizar a la sociedad, sino por el contrario pretende el respeto de las creencias del funcionario público y, por ende, en cuanto a este punto, tampoco se observa una lesión al Derecho de la Constitución.

• 4)Conclusión En mérito de lo expuesto, puede concluirse que la objeción de conciencia es entendida como una concreción ad extra de las libertades de conciencia y religión, que se manifiesta como límite frente a los poderes públicos para que estos no interfieran con las convicciones personales. Concretamente, se refiere a la posibilidad de apartarse de un deber o mandato jurídico cuando estos riñen o se contraponen a las convicciones del objetor sin que se pueda exigir a este responsabilidad. Por su parte, la libertad de pensamiento y de conciencia se erigen como elementos fundamentales que conforman la identidad de los creyentes y su concepción de la vida, así como para las personas ateas, agnósticas, escépticas e indiferentes. En el proyecto de consulta es claro que el precepto normativo propuesto permitiría a un funcionario alegar una objeción de conciencia a efectos de que se aplique una exención frente a una capacitación o curso de formación obligatorios por considerarla contraria a sus convicciones religiosas, éticas y morales. En ese sentido, debe recordarse que la objeción de conciencia ha sido el mecanismo válido para que una persona pueda ejercitar otros derechos, como la libertad de conciencia y la liberta de religión (art. 75 constitucional) que, entendidos en armonía con el ordenamiento jurídico, su ejercicio estaría limitado por los derechos de terceros. Respecto al mecanismo propuesto en la norma de consulta, a efectos de comunicar la objeción de conciencia, esta Sala considera que este es apto, en el tanto el proyecto legislativo requiere una actuación suficiente de parte del servidor público, pues le impone informar mediante una declaración jurada la objeción de conciencia. Así entonces, en cuanto al artículo 23 inciso g) del proyecto de “LEY MARCO DE EMPLEO PÚBLICO”, que se tramita en el expediente legislativo N°21.336, se evacúa la consulta, en el sentido de que no presenta vicios de inconstitucionalidad, porque garantiza adecuadamente el derecho a la objeción de conciencia..." LBH10/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: TRABAJO Subtemas:

NO APLICA.

017098-21. TRABAJO. CONSULTA LEGISLATIVA FACULTATIVA DE CONSTITUCIONALIDAD, REFERENTE AL PROYECTO DE LEY DENOMINADO "LEY MARCO DE EMPLEO PÚBLICO". EXPEDIENTE LEGISLATIVO N° 21.336. " XVI.- Sobre la consulta de violación al derecho de negociación colectiva y al derecho de sindicación.- 1) Aspectos consultados Los consultantes consideran que los artículos 43 y el transitorio XV del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, es violatorio del derecho fundamental a la negociación y el derecho de sindicación. Tales normas indican expresamente lo siguiente:

“ARTÍCULO 43- Negociaciones colectivas Mediante la negociación colectiva no se podrán generar nuevas obligaciones o derechos, o variar condiciones laborales referentes a:

• a)Salarios o remuneraciones y variar o modificar lo referente a la escala salarial o componentes de la columna salarial global.
• b)La creación de incentivos, compensaciones o pluses salariales.
• c)Asuntos donde se deba realizar una erogación adicional de recursos que afecten el presupuesto nacional o el de una institución pública, mediante gastos que no se ajusten a los principios de razonabilidad y proporcionalidad desarrollados por la Sala Constitucional de la Corte Suprema de Justicia.
• d)Normas de carácter prohibitivo contenidas en la presente ley.
• e)La creación de nuevas plazas.

Las condiciones que se pacten en los instrumentos de negociación colectiva deberán respetar los principios constitucionales de razonabilidad, proporcionalidad, legalidad, igualdad y legalidad presupuestaria. De cada sesión de negociación se levantará un acta, que se publicará como máximo al finalizar el proceso, junto con un acta de cierre en la que se recogerá el texto completo de las cláusulas que fueron negociadas y en la que se indicará cuáles cláusulas del proyecto fueron desechadas o no pudieron negociarse por falta de acuerdo acerca de ellas.

Tratándose de normas que por su naturaleza o su afectación del principio de legalidad presupuestaria requieran aprobación legislativa o reglamentaria, su eficacia quedará condicionada a la inclusión en la ley de presupuesto o en los reglamentos respectivos, lo mismo que a la aprobación por parte de la Contraloría General de la República, cuando afecte los presupuestos de las instituciones, cuyos presupuestos ordinarios y extraordinarios o las modificaciones presupuestarias requieran aprobación de esta última entidad. “ “TRANSITORIO XV- A partir de la entrada en vigencia de la presente ley, los jerarcas de las entidades públicas están en la obligación de denunciar las convenciones colectivas a su vencimiento.

En el caso en que se decida renegociar la convención, esta deberá adaptarse en todos sus extremos a lo establecido en esta ley y demás regulaciones que dicte el Poder Ejecutivo.” Los consultantes consideran inconstitucionales tales normas, por cuanto, se prohíbe la negociación colectiva en materia salarial, y otros temas, que abarcaría prácticamente todo lo negociable, vaciando de contenido la posibilidad de cualquier acuerdo que busque mejorar las condiciones labores de las personas trabajadoras en contraposición con lo dispuesto en el artículo 62 constitucional, del Convenio sobre el derecho de sindicación y de negociación colectiva, 1949, N° 98 de la Organización Internacional del Trabajo (OIT), artículos 4 y 6; Convención Americana de Derechos Humanos, Pacto de San José de Costa Rica, artículo 2; Pacto Internacional de los Derechos Económicos, Sociales y Culturales, artículos 2 y 8; el Protocolo Adicional a la Convención Americana sobre Derechos Humanos en Materia de Derechos Económicos, Sociales y Culturales de San Salvador, artículo 5; el numeral 7 de la Constitución Política. Además del art. 690 del Código de Trabajo. Todo en violación además del principio de progresividad. Sostienen que el artículo 43 del proyecto consiste en una restricción excesiva y desproporcionada al derecho de negociación colectiva al prohibir que se pueda negociar cualquier materia, no solo salarial, sino también aquella que implique una erogación adicional en los presupuestos, o la creación de plazas, o que abarque materia prohibitiva de esta ley, como podrían entenderse las vacaciones (la OIT se ha referido a las vacaciones como parte de la materia a negociar colectivamente, ver Recomendación n°7). Las disposiciones contenidas en el artículo 43 y transitorio XV del proyecto, violentan su disfrute al imponer limitaciones irrazonables y abusivas contrarias al principio de convencionalidad garantizados por las Convención Americana de Derechos Humanos y el Pacto Internacional de los Derechos Económicos, Sociales y Culturales y su Protocolo. Si bien, la jurisprudencia constitucional ha reconocido que el derecho a la negociación colectiva está sujeta a los controles de constitucionalidad y legalidad, a los principios de razonabilidad y proporcionalidad y buen uso de los fondos públicos, dichos controles no pueden llevar a vaciar de contenido este derecho humano fundamental por violación al principio de libertad sindical, tal y como plantea el proyecto de ley. Respecto a la obligación a los jerarcas institucionales de denunciar las convenciones colectivas a su vencimiento, ya la Sala Constitucional se pronunció sobre la inconstitucional de dicha disposición, al resolver la consulta facultativa referente al proyecto Ley de Fortalecimiento de las Finanzas Públicas, que se tramitó bajo expediente 20580, que contenía una norma idéntica; sin embargo, se insiste en incluirla de nuevo en el proyecto de ley 21336, al indicar: “I) En relación con la obligatoriedad de la denuncia de la convención colectiva a su vencimiento (transitorio L del Título V "Disposiciones Transitorias"), en aplicación de la Constitución Política (artículos 62 y 74), los Convenios Internacionales de la Organización Internacional del Trabajo y la jurisprudencia de este Tribunal, se interpreta que cada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente.” (Resolución Nº 2018-19511). Así consideran que, se viola lo dispuesto en el artículo 62 de la Constitución Política y en el Convenio sobre el derecho de sindicación y de negociación colectiva, 1949, N° 98 de la Organización Internacional del Trabajo (OIT), artículos 4 y 6; Convención Americana de Derechos Humanos, Pacto de San José de Costa Rica, artículo 2; Pacto Internacional de los Derechos Económicos, Sociales y Culturales, artículos 2 y 8; el Protocolo a la Adicional Convención Americana sobre Derechos Humanos en Materia de Derechos Económicos, Sociales y Culturales de San Salvador, artículo 5; el numeral 7 constitucional que les otorga rango superior a la ley y los principios constitucionales de legalidad y de convencionalidad, puesto que la negociación colectiva es un derecho humano fundamental.

Para el examen de estos argumentos, lo primero que debe recordarse es lo que esta Sala ha establecido en reiterada jurisprudencia sobre los alcances y limitaciones del derecho fundamental de negociación colectiva, a efectos de examinar, si en efecto, las normas consultadas del proyecto, violan su contenido esencial.

• 2)Antecedentes Jurisprudenciales sobre el Derecho fundamental a la Negociación Colectiva La trilogía de derechos fundamentales, que se deriva del Derecho Laboral Colectivo, son: el derecho a la sindicación, el derecho a la negociación colectiva y el derecho a la resolución efectiva de los conflictos colectivos (ver sentencia n°2006-03002 de las 10:40 horas del 9 de marzo de 2006). Estos derechos persiguen hacer realidad y dar solución a la necesidad de los trabajadores de agruparse para compensar la inferioridad real en que se encuentran cuando actúan aislados, frente al patrono y ante la genérica regulación de sus derechos en el Código de Trabajo. Propiamente, sobre las convenciones colectivas, el artículo 62 de la Constitución Política contempla su reconocimiento constitucional, su carácter de fuerza de ley y la necesidad de que tales convenciones se ajusten a lo que disponga la ley. En efecto, esta norma constitucional señala que:

“Artículo 62. Tendrán fuerza de ley las convenciones colectivas de trabajo que, con arreglo a la ley, se concierten entre patronos o sindicatos de patronos y sindicatos de trabajadores legalmente organizados”.

La ubicación de la norma en el Capítulo de los Derechos y Garantías Sociales de la Constitución Política y su contenido, indican que lo que se busca garantizar es el derecho a la “negociación colectiva laboral". Sobre este particular, en la sentencia n°2020-12800 de las 11:01 horas del 8 de julio de 2020, este Tribunal destacó los tres aspectos que se derivan de esta norma, a saber: a) el reconocimiento de la negociación colectiva como un derecho constitucional; b) que las negociaciones así concertadas tienen carácter de fuerza de ley; y c) que tales convenciones deben ser acordadas conforme lo disponga la ley. Todo lo cual es, por demás, ratificado por la Corte Interamericana de Derechos Humanos, mediante Opinión Consultiva OC-27/21 del 05 de mayo del 2021, cuando indica lo siguiente:

“94. En consideración a lo antes mencionado, y a manera de corolario, la Corte considera pertinente señalar que el derecho a la negociación colectiva, como parte esencial de la libertad sindical, está compuesto de diversos elementos, que incluyen, como mínimo: a) el principio de no discriminación del trabajador o trabajadora en ejercicio de la actividad sindical, pues la garantía de igualdad es un elemento previo para una negociación entre empleadores y empleadoras, y trabajadores y trabajadoras; b) la no injerencia directa o indirecta de los empleadores en los sindicatos de trabajadores y trabajadoras en las etapas de constitución, funcionamiento y administración, pues puede producir desbalances en la negociación que atentan en contra del objetivo de los trabajadores y las trabajadoras de mejorar sus condiciones de vida y de trabajo mediante negociaciones colectivas y por otros medios lícitos; y c) el estímulo progresivo a procesos de negociación voluntaria entre empleadores y empleadoras, y trabajadores y trabajadoras, que permitan mejorar, a través de contratos colectivos, las condiciones del empleo.” Propiamente sobre el derecho a la negociación colectiva en el sector público, primero se puede citar la sentencia n°1696-92 de las 15:30 horas del 23 de agosto de 1992, donde la Sala declaró la inconstitucionalidad de los mecanismos del arreglo directo, la conciliación y el arbitraje para los funcionarios que realicen gestión pública, pero reconoció que es válido que los obreros, trabajadores o empleados que no participan de la gestión pública de la Administración puedan celebrar convenciones colectivas de trabajo, de tal forma que entes con un régimen de empleo de naturaleza laboral (no pública), como por ejemplo, las empresas del Estado, sí pueden negociar colectivamente. Criterio que es reiterado en varias sentencias posteriores (ver n°2000-07730 y n°2000-04453). Luego, en la sentencia n°2020-008396 de las 9:20 horas del 6 de mayo de 2020, este Tribunal resolvió lo siguiente sobre las convenciones colectivas en el sector público, ratificando que se permiten únicamente en el caso de los trabajadores que no desempeñan gestión pública:

“V.- Sobre la negociación colectiva en el sector público.- Conforme se desprende de la jurisprudencia de esta Sala, como tesis de principio, la relación laboral que se establece entre el Estado (en cuenta las Municipalidades) y sus trabajadores se rige por el Derecho Público -y no el Código de Trabajo-, relación que se ha denominado, de empleo público o estatutaria. Ahora bien, se dice que en tesis de principio los trabajadores del Estado están sometidos a un régimen de empleo público porque, se ha hecho una excepción, a saber, los trabajadores que no participan de la gestión pública, por ser trabajadores de empresas estatales. Así se ha establecido que los trabajadores que no participan de la gestión pública, al estar sometidos al derecho común, pueden acudir a los procedimientos de resolución de los conflictos colectivos de carácter económico y social previsto en el Código de Trabajo (resolución N° 94-3053) y al arbitraje bajo ciertas limitaciones (resolución N° 92-1696); y pueden celebrar convenciones colectivas (resolución N° 00-4453), aunque también bajo ciertas limitaciones. Así, la posibilidad de negociar colectivamente para los trabajadores que no participan de la gestión pública de la Administración (los empleados de empresas o servicios económicos del Estado, encargados de gestiones sometidas al Derecho común), ha sido reconocida reiteradamente por esta Sala a partir de la sentencia número 03053-94, criterio que reitera o ratifica después en las sentencias 2000-07730 y 2000-04453. El resto de empleados del Estado, que por lo tanto sí participan de la gestión pública (siendo estos en general, no sólo los jerarcas institucionales y órganos de control legal y financiero como dice el representante del Sindicato, sino todos aquellos trabajadores que ejerzan competencias públicas), ni pueden solucionar sus conflictos colectivos de trabajo por la vía del arbitraje (resolución N° 92-1696), ni tampoco pueden celebrar convenciones colectivas (resolución N° 00-4453), siendo inconstitucional la celebración de convenciones colectivas que se celebren en el sector público cuando se trate de personal regido por una relación estatutaria. Lo cual implica que no se pueda tolerar la negociación colectiva en el sector público, de conformidad con los artículos 191 y 192 constitucionales. En conclusión, las convenciones colectivas no están del todo prohibidas en el sector público, sino que están permitidas únicamente en el caso de los trabajadores que no desempeñan gestión pública, es decir, aquellos cobijados en los artículos 3, 111 y 112 de la Ley General de la Administración Pública. Siendo, la determinación en cada caso concreto de cuáles trabajadores están cobijados en dichas normas, una cuestión ajena a esta jurisdicción constitucional y que corresponde a los operadores del derecho”. (sentencia N°2013-14499) IV.- Sobre la normativa impugnada. (…) debe reiterarse que no existe una prohibición absoluta de celebrar convenciones colectivas en el sector público o que estas resultan per se inconstitucionales, pues, como ya se indicó, existe un grupo de empleados del sector público que pueden válidamente celebrar convenciones colectivas de acuerdo con la Constitución, en concreto, es “constitucionalmente posible la aplicación de la institución de las convenciones colectivas…. en las llamadas empresas o servicios económicos del Estado y en aquellos núcleos de personal de instituciones y entes públicos en los que la naturaleza de los servicios que se prestan no participan de la gestión pública” (voto N°2000-004453. El resaltado no corresponde al original). De esta forma, respecto de las convenciones colectivas impugnadas en la presente acción, estas resultan constitucionalmente válidas en cuanto a los referidos núcleos de personal que laboran o prestan sus servicios para las entidades o instituciones en cuestión. Ahora bien, como ya se indicó en el precedente parcialmente transcrito, corresponde:

“(…) a cada Administración Pública definir cuáles son esos funcionarios cubiertos por la convención colectiva o con posibilidad de negociar o pactar este tipo de convenciones colectivas, todo conforme a los criterios de la Administración Pública, o la de los Tribunales de Justicia, según la decisión que corresponda.”(voto N°2015-7221)”.

En lo que respecta al contenido de la negociación colectiva laboral, la Sala se ha referido a las llamadas clausulas normativas (regulan la interacción que surge con motivo de la prestación del servicio del trabajador y el pago de los salarios o remuneraciones por el patrono), las cláusulas de configuración (especifican el ámbito personal, temporal y espacial de la convención y entre las que se incluyen el poder disciplinario del empleador y al ejercicio de su derecho a la organización y la dirección) y las cláusulas obligacionales (crean derechos y obligaciones entre las partes y que tienen que ver, primordialmente, con la paz social y con el deber de ejecución de la convención, como la creación de las juntas de relaciones laborales, instalación de centros de formación), en los siguientes términos:

“Dentro de la especialidad de la materia, las partes solo pueden convenir, válidamente, sobre lo que jurídicamente puedan cumplir, en razón de la naturaleza contractual del convenio colectivo y como tesis de principio se admite que su ámbito sean las condiciones de trabajo o laborales, sin que pueda extenderse ese fin a normar cuestiones extra laborales. En otras palabras, la convención colectiva tiene como objeto regular, por un lado, las condiciones a que deben sujetarse las relaciones individuales de trabajo, o lo que es lo mismo, las llamadas cláusulas normativas, que regulan la interacción que surge con motivo de la prestación del servicio del trabajador y el pago de los salarios o remuneraciones por el patrono, como lo afirma la mayoría de la doctrina del Derecho laboral y esto conduce a la conclusión de que puede ser materia de una convención colectiva, todo lo que podría serlo en un contrato de trabajo individual; también, dentro de este contenido, pueden ser objeto de negociación colectiva las llamadas cláusulas de configuración, que son las que especifican el ámbito personal, temporal y espacial de la convención y entre las que se incluyen las que limitan o fijan procedimientos para el ejercicio de los derechos del empleador, en especial en lo que se refiere al poder disciplinario y al ejercicio de su derecho a la organización y la dirección. En segundo orden, las cláusulas obligacionales, que son las que crean derechos y obligaciones entre las partes y que tienen que ver, primordialmente, con la paz social y con el deber de ejecución de la convención, como la creación de las juntas de relaciones laborales, la institución de prestaciones patronales con destino a obras sociales dentro de la comunidad laboral, instalación de centros de formación, entre otros. A manera de síntesis, diremos que las convenciones colectivas, por disposición constitucional, tienen como fin inmediato la revisión, inter partes y con el carácter de ley, del contenido mínimo de los beneficios legales que ordenan las relaciones laborales, todo ello con el objeto de mejorar o de superar ese mínimo esencial.” (ver sentencia n°2007-18485 de las 18:02 horas del 19 de diciembre de 2007).

Sobre este mismo tema, en la sentencia n°2020-12800 de las 11:01 horas del 8 de julio de 2020, la Sala estimó que se puede reconocer un mayor derecho al que reconoce la ley:

“De igual manera, tampoco es dable aducir, que mediante una negociación colectiva se pueda reconocer mayores derechos a las partes, lo cual ciertamente es así, pero debe señalarse que se trata de mayores concesiones sobre derechos válida y legítimamente reconocidos, lo cual, no es el caso de limitar la libre negociación de alguna de las partes involucradas. Dicho de otro modo, una convención colectiva puede reconocer un mayor derecho al que reconoce la ley, pero no puede limitarlo. Y, en todo caso, aquel mayor reconocimiento, de conformidad con lo dicho en el anterior considerando, igualmente deberá sujetarse al Derecho de la Constitución, para lograr así la armonía jurídica de la cual depender un ordenamiento.” (el destacado no es del original).

Por su parte, en la sentencia n°2008-003935 de las 14:48 horas del 12 de marzo de 2008, la Sala señaló que los entes de la Administración Pública pueden otorgar determinados incentivos o beneficios a sus trabajadores, los cuales serán válidos constitucionalmente únicamente cuando estén amparados en razones objetivas que se traduzcan además en una mejor prestación del servicio público. Al respecto, indicó:

“En otras palabras, esta Sala no ha cuestionado que cualquier ente de la Administración Pública pueda reconocer determinados incentivos o beneficios a sus trabajadores, ya que ello puede constituir una medida idónea para remunerar una exigencia especial del puesto de trabajo, que implique determinadas calificaciones profesionales o habilidades a quienes lo desempeñen, o bien para compensar un riesgo particular que caracteriza el desempeño de tales funciones, sea un riesgo material (por ejemplo, labores físicamente peligrosas) o uno de carácter legal (por ejemplo, trabajo susceptible de generar responsabilidad civil).” Ahora, si bien se reconoce el derecho a la negociación colectiva en el sector público, a través del cual pueden otorgarse o reconocerse derechos o beneficios con mayor amplitud a lo legalmente predefinido, también existen límites a dichas negociaciones, en cuanto deben congeniarse con el ejercicio de las competencias legales de los entes públicos, y respetar las limitaciones necesarias para armonizar el gasto público con la disponibilidad presupuestaria y el sano manejo de los fondos públicos. Sobre el particular, la Sala se ha referido a los límites de la negociación colectiva, como los principios constitucionales de razonabilidad, proporcionalidad, economía y eficiencia, y la ley:

“Se ha indicado, además, que sin demérito alguno de que la negociación colectiva sea un derecho reconocido constitucionalmente y por instrumentos internacionales de la Organización Internacional del Trabajo, lo cierto es que su contenido se encuentra también subordinado a las normas y principios constitucionales, en el tanto las decisiones que ahí se tomen, en cantidad de casos implican consecuencias para las finanzas públicas. Dentro de este contexto, su adopción y validez no queda únicamente sujeta a la mera verificación del procedimiento de adopción, sino también a un análisis de fondo, en la media que su contenido debe ajustarse a las normas y principios constitucionales por tratarse de fondo públicos. De este modo, las obligaciones pactadas por las instituciones públicas para con sus empleados, como ocurre en este tipo de negociación, pueden ser objeto del análisis de razonabilidad, economía y eficiencia, con el objeto de evitar que a través de una convención colectiva desproporcionadamente sean limitados o lesionados los derechos de los propios trabajadores, o para impedir que se haga un uso abusivo de fondos públicos” (ver sentencia N°2021-009580 de las 9:15 horas del 12 de mayo de 2021).

De particular interés resulta mencionar la sentencia n°2018-19511, no solo porque hace acopio de jurisprudencia constitucional relevante sobre la materia, sino porque se ratifica que el derecho a la negociación colectiva parte de una negociación libre y voluntaria; y, además, de un contenido mínimo o esencial, que es la posibilidad de negociar sobre mejores condiciones socioeconómicas para los trabajadores. Señaló la Sala que:

“(…) el derecho a la negociación colectiva parte de la posibilidad de una negociación libre y voluntaria; y, además, de un contenido mínimo o esencial, que es la posibilidad de negociar sobre mejores condiciones socioeconómicas para los trabajadores.

2.4.- Sobre los límites y el control del contenido de las convenciones colectivas: Claro está, que dicha capacidad de negociación, no puede ser irrestricta, como esta Sala lo ha dicho en varias oportunidades, pero esa restricción no puede implicar un vaciamiento, por vía de ley, del contenido mínimo de ese derecho. Las restricciones legales que se impongan al derecho a la negociación colectiva, deben ser conformes a la Constitución Política y a los Instrumentos Internacionales relativos a la materia.

En este sentido, es que ha de entenderse lo resuelto por esta Sala en Sentencia N° 2000-004453 de las 14:56 horas del 24 de mayo de 2000, en la que se señaló:

“Sexta: No obstante lo ya expresado, es importante aclarar que aún en el sector público en el que resulta constitucionalmente posible la aplicación de la institución de las convenciones colectivas, valga decir, en las llamadas empresas o servicios económicos del Estado y en aquellos núcleos de personal de instituciones y entes públicos en los que la naturaleza de los servicios que se prestan no participan de la gestión pública, en los términos del inciso 2 del artículo 112 de la Ley General de la Administración Pública, la Sala repite y confirma su jurisprudencia en el sentido de que la autorización para negociar no puede ser irrestricta, o sea, equiparable a la situación en que se encontraría cualquier patrono particular, puesto que por esa vía, no pueden dispensarse o excepcionarse leyes, reglamentos o directrices gubernamentales vigentes, ni modificar o derogar leyes que otorgan o regulan competencias de los entes públicos, atribuidas en razón de la jerarquía normativa o de las especiales condiciones de la Administración Pública con relación a sus trabajadores, conclusión que se infiere del artículo 112 inciso 3) de la Ley General de la Administración Pública y del considerando XI de la sentencia N°1696-92 de esta Sala”. (Ver en igual sentido las sentencias números 2000-006480, 2000-006481, 2000-006482, 2000-006483, 2000-006435, 2000-007730, 2005-006858, 2006-007261 y 2006-17436).

(...)

Así, con respecto a las convenciones del sector público, la Sala ha señalado que deben respetarse las leyes, reglamentos o directrices gubernamentales vigentes, así como las competencias legales de los entes públicos, atribuidas con fundamento en la jerarquía normativa o en las especiales condiciones de la Administración Pública en relación con sus trabajadores. Además, se deben respetar las limitaciones requeridas para armonizar el gasto público con la disponibilidad presupuestaria en aras del derecho ciudadano al sano manejo de los fondos públicos, derivado del numeral 11, Constitucional (ver Sentencia N° 2017-013443 de las 9:15 horas del 25 de agosto de 2017).

Debe entenderse, además, que la facultad de negociación está sujeta a los controles de legalidad y constitucionalidad, en atención a los principios de razonabilidad, proporcionalidad y buen uso y manejo de los fondos públicos.

(...)

De allí que, como parte esencial de la libertad sindical -y de su contraparte la acción sindical- está el derecho de los trabajadores a la negociación colectiva, como instrumento para el mejoramiento de sus condiciones socio-económicas, a través de incentivos, compensaciones o pluses salariales. Lo que se enmarca dentro de los cuatro derechos que comprende la libertad sindical: a) libertad para constituir organizaciones sindicales; b) libertad de ingreso a una organización sindical; c) libertad para dejar de pertenecer a una organización sindical; y d) libertad del afiliado para participar democráticamente dentro del sindicato; a lo cual debe añadirse el derecho de toda organización sindical a desenvolverse libremente con respecto al Estado y en relación con la sociedad, considerada como un todo, siempre dentro del marco legal respectivo.

Lo anterior, implica, eso sí, según lo dicho, que todos esos componentes salariales acordados a través de esa válida negociación colectiva, tienen que ajustarse al principio de proporcionalidad y razonabilidad constitucional, así como al resto del ordenamiento jurídico. Pero resulta contrario al Derecho de la Constitución, en específico a la libertad sindical y al derecho a la negociación colectiva, que el legislador impida que esos extremos puedan ser pactados dentro de una negociación colectiva y solo queden reservados a la ley formal”. (el destacado no es del original).

Luego, en lo que atañe al tema de la denuncia obligatoria de las convenciones colectivas, en la misma sentencia n°2018-019511 de las 21:45 horas del 23 de noviembre de 2018, la Sala señaló lo que se indica a continuación:

“(…)

Pero, se debe insistir, el hecho de que existan esos controles no puede llevar a vaciar el contenido mínimo del derecho a la negociación colectiva, ni a obligar a su denuncia. Y, por ello, resulta contrario a la esencia misma de la negociación colectiva que, incluso en aquellos sectores en donde esta resulte constitucional y legalmente posible, solo a través de una ley formal, emanada del Poder Legislativo, puedan crearse incentivos o compensaciones, o pluses salariales, pues ello, conforme lo dicho, vaciaría de contenido de ese derecho y, por ende, se violaría el principio de libertad sindical, el cual ha sido desarrollado por esta Sala a través de su jurisprudencia. …

(…)

Por último, y en relación con el tema de la denuncia obligatoria de las convenciones colectivas que prevé el Transitorio L, del proyecto de ley consultado, (…)

Con lo cual es claro que, según lo ha definido la OIT, una disposición jurídica que obligara a una parte a concluir un convenio colectivo con otra sería contraria al principio de la negociación libre y voluntaria.

En síntesis, una disposición que obligue a denunciar las convenciones colectivas y, por otro lado, que impida, por medio de estas, lograr mejorar las condiciones, sin modulación de ningún tipo, resultaría contraria al Derecho de la Constitución; de manera, que el legislador no podría, de antemano, restringir la posibilidad de celebrar convenciones colectivas entre patronos y trabajadores, en el sector público en el que resulta constitucionalmente posible la aplicación de esta institución, sin violar la libertad sindical.” Así también, en la sentencia n°2020-12800 de las 11:01 horas del 8 de julio de 2020, se indicó en lo que interesa:

“Bajo este entendimiento, una norma en ese sentido sería ya no sólo contraria al principio de libre negociación, sino claramente también sería antagónica con los principios de razonabilidad y proporcionalidad.

Es en este sentido, que en la misma sentencia 2018-19511, señaló la Sala que:

“[C]ada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente.” -énfasis añadido- De tal manera, si la norma que ahora se cuestiona señala, como en efecto lo hace, que ambas partes de la Convención Colectiva de Trabajo de la Universidad Nacional se comprometen a no denunciar de forma unilateral dicha Convención, se está imponiendo a ambas partes, no solamente a la Universidad, sino al sindicato también, un deber que contraría la previsión constitucional sobre la negociación colectiva, al impedirle a ambas el libre ejercicio de la negociación a que tienen derecho dentro de un marco de razonabilidad y proporcionalidad, y a la parte accionante, obligándole a no poder validar en conjunto con el sindicato, situaciones relacionadas con el buen uso de los fondos públicos.

En este sentido, debe declararse con lugar la acción, por cuanto la frase aludida del último párrafo del artículo 185 de la Convención Colectiva de Trabajo de la Universidad Nacional, resulta contraria al Derecho de la Constitución, en los términos señalados.

-Conclusión. - En definitiva, siendo que la primera parte del último párrafo del artículo 185 de la Convención Colectiva de Trabajo de la Universidad Nacional resulta contraria al Derecho de la Constitución, lo que corresponde es declarar con lugar esta acción de inconstitucionalidad, anulando por inconstitucional la frase “Las partes se comprometen a no denunciar de forma unilateral esta Convención”.

Derivado del reconocimiento constitucional al derecho a la negociación colectiva en el sector público, así como de los límites constitucionales señalados anteriormente, se verifica la competencia de esta jurisdicción para ejercer control sobre el contenido y alcances de las convenciones colectivas del trabajo. Así, en la sentencia N°2020-024200 de las 12:11 horas del 16 de diciembre de 2020, el Tribunal destacó que no existen zonas de inmunidad o actuaciones públicas que escapen al sometimiento constitucional, incluso tratándose de empresas públicas, en los siguientes términos:

III.- LAS CONVENCIONES COLECTIVAS DE TRABAJO FRENTE AL PARÁMETRO DE CONSTITUCIONALIDAD. Este Tribunal Constitucional ha sentado una sólida jurisprudencia en el sentido de que hay necesidad de someter las convenciones colectivas de trabajo al control de constitucionalidad que ejerce esta Sala. Desde la sentencia n.°2006-17441, se consideró que sea cual sea el rango normativo que se reconozca a este tipo de instrumentos, es claro que se encuentran subordinados a las normas y principios constitucionales. Es por lo anterior que, pese al reconocimiento constitucional del derecho a la negociación colectiva y a su desarrollo en diversos instrumentos internacionales, no existen, en el ordenamiento costarricense, zonas de “inmunidad constitucional”, es decir, actuaciones públicas que escapen al sometimiento al principio de regularidad constitucional. A partir de lo cual la Sala ha sido consistente en que si bien tienen un origen constitucional, las convenciones colectivas particulares sí pueden ser sometidas a la valoración de su conformidad constitucional, incluso, tratándose de empresas públicas. Asimismo, se ha hecho énfasis en que las obligaciones contraídas por las instituciones públicas y sus empleados pueden ser objeto de un análisis de razonabilidad, economía y eficiencia, sea para evitar que a través de una convención colectiva sean limitados o lesionados derechos de los propios trabajadores, sea para evitar que se haga un uso abusivo de fondos públicos (ver, entre otras, las sentencias 2019-008679, 2019-009222, 2019-016791 y 2019-017398).” Del amplio compendio jurisprudencial aludido, se puede concluir que el derecho a la negociación colectiva es un derecho constitucional reconocido en el artículo 62 de nuestra carta fundamental que tiene como fin inmediato la revisión, inter partes y con el carácter de ley, del contenido mínimo de los beneficios legales que ordenan las relaciones laborales, todo ello con el objeto de mejorar o de superar ese mínimo esencial. Esta Sala ha reconocido que solo se pueda admitir la negociación colectiva en el sector público para aquellos trabajadores que no realizan gestión pública, los empleados de empresas o servicios económicos del Estado y los encargados de gestiones sometidas al Derecho común. En cuanto al contenido de la negociación colectiva en el sector público, se ha señalado que las partes solo pueden convenir válidamente sobre lo que jurídicamente puedan cumplir, en razón de la naturaleza contractual del convenio colectivo y se admite que su ámbito sean las condiciones de trabajo o laborales, sin que pueda extenderse ese fin a normar cuestiones extra laborales. De esta forma, puede ser objeto de una convención colectiva, todo lo que podría ser referente a un contrato individual de trabajo (sea las que regulan la interacción que surge con motivo de la prestación del servicio del trabajador y el pago de los salarios o remuneraciones por el patrono), así como las normas que limitan o fijan procedimientos para el ejercicio de los derechos del empleador, en especial en lo que se refiere al poder disciplinario y al ejercicio de su derecho a la organización y la dirección, y las normas que crean derechos y obligaciones entre las partes y que tienen que ver primordialmente, con la paz social y con el deber de ejecución de la convención, como la creación de las juntas de relaciones laborales. No se trata de reconocer otros derechos distintos a los válida y legítimamente reconocidos, sino de procurar mayores concesiones sobre aquellos derechos válida y legalmente reconocidos, de ahí que una convención colectiva puede reconocer un mayor derecho al que reconoce la ley, pero no puede limitarlo. En este sentido, se ha admitido la posibilidad de reconocer incentivos salariales o sobresueldos, como instrumentos para incentivar la mayor calidad, permanencia, eficiencia en el servicio, lealtad e idoneidad, de ahí que resulte contrario al Derecho de la Constitución, en específico a la libertad sindical y al derecho a la negociación colectiva, que el legislador impida que esos extremos puedan ser pactados dentro de una negociación colectiva y solo queden reservados a la ley formal. Así las cosas, la Administración Pública puede otorgar determinados incentivos o beneficios a sus trabajadores, cuando éstos estén amparados en razones objetivas que busquen una mejor prestación del servicio público. Existe “una doctrina constitucional de las convenciones colectivas del sector público (indispensable a falta de ley formal que las regule), que puede resumirse en que todos los derechos beneficios y avances en los mínimos legales (que procedan de una legislación social de mediados del siglos pasado) contemplados en una negociación colectiva de trabajo, deben fundarse en razones objetivas que busquen una mejor prestación del servicio público, a la vez que signifiquen un progreso social conjunto y solidario para los servidores públicos y la Administración, respetuoso eso sí de un manejo adecuado y razonable de los fondos públicos”. Y que las “convenciones colectivas no solo tienen fuerza de ley, sino un contenido mínimo intangible para el legislador, entre los cuales está el mejoramiento de las condiciones laborales mínimas y, por ende, también salariales. Lo anterior basado en los principios cristianos de justicia social y de solidaridad, que, tal y como se indicó, están contenidos en el artículo 74, de la Constitución Política…” (sentencia N°2012-08891 de las 16:02 horas del 27 de junio de 2012). Al estar involucrados entes públicos que administran fondos públicos, su contenido se encuentra también subordinado a las normas y principios constitucionales. De esta forma, la validez de la negociación colectiva en el sector público no queda únicamente sujeta a la mera verificación del procedimiento de adopción, sino también a un análisis de fondo de los controles de legalidad y constitucionalidad, en atención a los principios de razonabilidad, proporcionalidad y buen uso y manejo de los fondos públicos, lo anterior, con el objeto de evitar que a través de una convención colectiva, desproporcionadamente sean limitados o lesionados los derechos de los propios trabajadores, o para impedir que se haga un uso abusivo de fondos públicos. En la Administración Pública, la autorización para negociar colectivamente no puede ser irrestricta, o sea, equiparable a la situación en que se encontraría cualquier patrono particular, puesto que se deben respetar las leyes, reglamentos o directrices gubernamentales vigentes, así como las competencias legales de los entes públicos, atribuidas con fundamento en la jerarquía normativa o en las especiales condiciones de la Administración Pública en relación con sus trabajadores. De esta forma, las obligaciones contraídas por las instituciones públicas y sus empleados pueden ser objeto de un análisis de razonabilidad, economía y eficiencia, sea para evitar que a través de una convención colectiva sean limitados o lesionados derechos de los propios trabajadores, sea para evitar que se haga un uso abusivo de fondos públicos. El derecho a la negociación colectiva está sometido al control jurisdiccional de la Sala, pues como se indicó, se encuentra subordinado a las normas y principios constitucionales.

• 3)Análisis concreto de lo consultado (redacta el magistrado Castillo Víquez) Solicitan los consultantes que se declare la inconstitucionalidad del artículo 43 y del transitorio XV de proyecto de Ley Marco de Empleo Público, expediente 21336, por contravenir lo dispuesto en el artículo 62 de la Constitución Política y en el Convenio sobre el derecho de sindicación y de negociación colectiva, 1949, N O 98 de la Organización Internacional de Trabajo (OIT), artículos 4 y 6; Convención Americana de Derechos Humanos, Pacto de San José de Costa Rica, artículo 2; Pacto Internacional de los Derechos Económicos, Sociales y Culturales, artículos 2 y 8; el Protocolo a la Adicional Convención Americana sobre Derechos Humanos en Materia de Derechos Económicos, Sociales y Culturales de San Salvador, artículo 5; el numeral 7 constitucional que les otorga rango superior a la ley y los principios constitucionales de legalidad y de convencionalidad, puesto que la negociación colectiva es un derecho humano fundamental y opera como instrumento a través del cual las personas trabajadoras del sector público en sentido amplio, de las empresas públicas y de las empresas e instituciones públicas en competencia, pueden convenir condiciones laborales dignas, por lo que el Estado tienen a su cargo una doble responsabilidad, por un lado, el de la vigilancia permanente para garantizar su ejercicio sin que medie discriminación alguna, y, por otro, la no intervención estatal que perjudique su efectivo ejercicio.

En cuanto a este punto, también existe profusa jurisprudencia de la Sala Constitucional en materia de negociación colectiva. Ahora bien, en lo referente específicamente a la negociación colectiva en el sector público, cabe señalar que, recientemente, en el voto nro. 2018-019511, este Tribunal hizo un recuento de su jurisprudencia sobre el tema y destacó los siguientes puntos:

Esta Sala ha reconocido, como tesis de principio, que la relación entre el Estado y los servidores públicos es una relación de empleo público o estatutaria; en otras palabras, el servidor del régimen de empleo público se encuentra en relación con la Administración, en un estado de sujeción; aquella puede imponer unilateralmente las condiciones de la organización y prestación del servicio para garantizar el bien público. Esta conclusión implica que no se pueda tolerar la negociación colectiva en el sector público, de conformidad con los artículos 191 y 192 constitucionales. No obstante, sí se ha admitido la posibilidad de negociación colectiva respecto de los obreros, trabajadores o empleados que no participan de la gestión pública de la Administración, de tal forma que entes con un régimen de empleo de naturaleza laboral (no pública), como, por ejemplo, las empresas del Estado sí pueden negociar colectivamente de conformidad con las disposiciones que informan el Derecho Colectivo del Trabajo.

En cuanto a su contenido, se ha señalado que las partes solo pueden convenir, válidamente, sobre lo que jurídicamente puedan cumplir, en razón de la naturaleza contractual del convenio colectivo y como tesis de principio se admite que su ámbito sean las condiciones de trabajo o laborales, sin que pueda extenderse ese fin a normar cuestiones extra laborales. En otras palabras, la convención colectiva tiene como objeto regular, por un lado, las condiciones a que deben sujetarse las relaciones individuales de trabajo, o lo que es lo mismo, las llamadas cláusulas normativas, que regulan la interacción que surge con motivo de la prestación del servicio del trabajador y el pago de los salarios o remuneraciones por el patrono, y esto conduce a la conclusión de que puede ser materia de una convención colectiva, todo lo que podría serlo en un contrato de trabajo individual; también, dentro de este contenido, pueden ser objeto de negociación colectiva las llamadas cláusulas de configuración, que son las que especifican el ámbito personal, temporal y espacial de la convención y entre las que se incluyen las que limitan o fijan procedimientos para el ejercicio de los derechos del empleador, en especial en lo que se refiere al poder disciplinario y al ejercicio de su derecho a la organización y la dirección. En segundo orden, las cláusulas obligacionales, que son las que crean derechos y obligaciones entre las partes y que tienen que ver, primordialmente, con la paz social y con el deber de ejecución de la convención, como la creación de las juntas de relaciones laborales, la institución de prestaciones patronales con destino a obras sociales dentro de la comunidad laboral, instalación de centros de formación, entre otros. En definitiva, las convenciones colectivas, por disposición constitucional, tienen como fin inmediato la revisión, Inter partes y con el carácter de ley, del contenido mínimo de los beneficios legales que ordenan las relaciones laborales, todo ello con el objeto de mejorar o de superar ese mínimo esencial. Asimismo, se ha admitido la posibilidad de reconocer incentivos salariales o sobresueldos, como instrumentos para incentivar la mayor calidad, permanencia, eficiencia en el servicio, lealtad e idoneidad. Sea, la Administración Pública puede otorgar determinados incentivos o beneficios a sus trabajadores, cuando éstos estén amparados en razones objetivas que busquen una mejor prestación del servicio público. Por lo demás, el contenido de las convenciones colectivas ha de someterse a las normas de mayor rango jerárquico y ha de respetar el cuadro de derechos fundamentales acogidos en nuestra Constitución Política. De esta forma, las Convenciones Colectivas de Trabajo, se encuentran sometidas al Derecho de la Constitución; así, las cláusulas convencionales, deben guardar conformidad con las normas y los principios constitucionales de igualdad, prohibición de discriminación, legalidad, razonabilidad y proporcionalidad, sobre todo, cuando de fondos públicos se trate, sujetos al principio de legalidad presupuestaria.

Ahora bien, como lo señalan los propios consultantes, el tema específico que se plantea en esta consulta ya fue analizado en el citado voto nro. 2018-019511, en que se conoció de la consulta legislativa respecto del proyecto de "Ley de Fortalecimiento de las Finanzas Publicas" (expediente legislativo nro. 20.580). Como se indicó en tal voto, en tal ocasión se alegaba:

“h) Sobre la alegada inconstitucionalidad del artículo 55, del Capítulo VII, “Disposiciones generales”, del Título III, “Modificación a la ley de salarios de la administración pública”, y del Transitorio L, del expediente 20580, por violación a los numerales 62, de la Constitución Política, y del Convenio N° 98, sobre el Derecho de Sindicación y de Negociación colectiva, de la Organización Internacional de Trabajo (OIT).

1.- Alegatos de los consultantes: Los consultantes cuestionan la constitucionalidad del ordinal 55, del Capítulo VII, “Disposiciones generales”, del Título III, “Modificación a la ley de salarios de la administración pública”, del Proyecto Legislativo 20.580, que estatuye:

“Artículo 55- Reserva de Ley en la creación de incentivos y compensaciones salariales La creación de incentivos o compensaciones, o pluses salariales sólo podrá realizarse a través de ley”.

Estiman que, de esta forma, pese a que el derecho a la negociación colectiva está contemplado en el numeral 62, de la Constitución Política, se pretende suprimir ese derecho en materia salarial, en contraposición a lo dispuesto en los incisos h), j) y m), del ordinal 690, del Código de Trabajo.

Agregan, que el carácter de ley profesional otorgado por el ordenamiento jurídico a las convenciones colectivas, consiste en que lo acordado en ellas deberá adaptarse a todos los contratos individuales o colectivos existentes, así como los que luego se celebren en las empresas, industrias o regiones que afecten, o sea, que las condiciones laborales ahí pactadas no podrán ser desmejoradas a futuro.

Asimismo, citan el numeral 4, del Convenio sobre el Derecho de Sindicación y de Negociación Colectiva, de 1949, N° 98, de la Organización Internacional de Trabajo (OIT), donde se le impone a los Estados Parte lo siguiente:

“Artículo 4 Deberán adoptarse medidas adecuadas a las condiciones nacionales, cuando ello sea necesario, para estimular y fomentar entre los empleadores y las organizaciones de empleadores, por una parte, y las organizaciones de trabajadores, por otra, el pleno desarrollo y uso de procedimientos de negociación voluntaria, con objeto de reglamentar, por medio de contratos colectivos, las condiciones de empleo”.

Así, el derecho a la negociación colectiva es ratificado en la Declaración de la OIT relativa a los principios y derechos fundamentales en el trabajo, de 1998, que declara que todos los Miembros, aun cuando no hayan ratificado los convenios aludidos, tienen un compromiso, que se deriva de su mera pertenencia a la Organización, de respetar, promover y hacer realidad, de buena fe y de conformidad con la Constitución, los principios atinentes a los derechos fundamentales objetos de esos convenios, es decir: a) la libertad de asociación y la libertad sindical y b) el reconocimiento efectivo del derecho de negociación colectiva.

También cuestionan los consultantes, la constitucionalidad del Transitorio L, del Proyecto N° 20580, que regula:

“TRANSITORIO L - A partir de la entrada en vigencia de la presente ley los jerarcas de las entidades públicas están en la obligación de denunciar las convenciones colectivas a su vencimiento En el caso en que se decida renegociar la convención, esta deberá adaptarse en todos sus extremos a lo establecido en esta Ley y demás regulaciones que dicte el Poder Ejecutivo”.

Consideran que tal obligación limita el derecho a la renegociación o a la prórroga automática en las condiciones estipuladas en el inciso e), del ordinal 58, del Código de Trabajo.

En cuyo caso, luego de hacer un análisis sobre el derecho a la negociación colectiva, sobre las convenciones colectivas en el sector público y sobre el principio de libertad sindical, a la luz de su propia jurisprudencia y de la normativa que integra al Derecho de la Constitución, se concluyó:

“(…) que el derecho a la negociación colectiva parte de la posibilidad de una negociación libre y voluntaria; y, además, de un contenido mínimo o esencial, que es la posibilidad de negociar sobre mejores condiciones socioeconómicas para los trabajadores.

2.4.- Sobre los límites y el control del contenido de las convenciones colectivas: Claro está, que dicha capacidad de negociación, no puede ser irrestricta, como esta Sala lo ha dicho en varias oportunidades, pero esa restricción no puede implicar un vaciamiento, por vía de ley, del contenido mínimo de ese derecho. Las restricciones legales que se impongan al derecho a la negociación colectiva, deben ser conformes a la Constitución Política y a los Instrumentos Internacionales relativos a la materia.

En este sentido, es que ha de entenderse lo resuelto por esta Sala en Sentencia N° 2000-004453 de las 14:56 horas del 24 de mayo de 2000, en la que se señaló:

“Sexta: No obstante lo ya expresado, es importante aclarar que aún en el sector público en el que resulta constitucionalmente posible la aplicación de la institución de las convenciones colectivas, valga decir, en las llamadas empresas o servicios económicos del Estado y en aquellos núcleos de personal de instituciones y entes públicos en los que la naturaleza de los servicios que se prestan no participan de la gestión pública, en los términos del inciso 2 del artículo 112 de la Ley General de la Administración Pública, la Sala repite y confirma su jurisprudencia en el sentido de que la autorización para negociar no puede ser irrestricta, o sea, equiparable a la situación en que se encontraría cualquier patrono particular, puesto que por esa vía, no pueden dispensarse o excepcionarse leyes, reglamentos o directrices gubernamentales vigentes, ni modificar o derogar leyes que otorgan o regulan competencias de los entes públicos, atribuidas en razón de la jerarquía normativa o de las especiales condiciones de la Administración Pública con relación a sus trabajadores, conclusión que se infiere del artículo 112 inciso 3) de la Ley General de la Administración Pública y del considerando XI de la sentencia No. 1696-92 de esta Sala”. (Ver en igual sentido las sentencias números 2000-006480, 2000-006481, 2000-006482, 2000-006483, 2000-006435, 2000-007730, 2005-006858, 2006-007261 y 2006-17436).

(…)

Así, con respecto a las convenciones del sector público, la Sala ha señalado que deben respetarse las leyes, reglamentos o directrices gubernamentales vigentes, así como las competencias legales de los entes públicos, atribuidas con fundamento en la jerarquía normativa o en las especiales condiciones de la Administración Pública en relación con sus trabajadores. Además, se deben respetar las limitaciones requeridas para armonizar el gasto público con la disponibilidad presupuestaria en aras del derecho ciudadano al sano manejo de los fondos públicos, derivado del numeral 11, Constitucional (ver Sentencia N° 2017-013443 de las 9:15 horas del 25 de agosto de 2017).

Debe entenderse, además, que la facultad de negociación está sujeta a los controles de legalidad y constitucionalidad, en atención a los principios de razonabilidad, proporcionalidad y buen uso y manejo de los fondos públicos. Entre otras, en Sentencia N° 2006-17441 de las 19:39 horas del 29 de noviembre de 2006 (antes citada), este Tribunal se pronunció al respecto, en los siguientes términos:

(…)

Pero, se debe insistir, el hecho de que existan esos controles no puede llevar a vaciar el contenido mínimo del derecho a la negociación colectiva, ni a obligar a su denuncia. Y, por ello, resulta contrario a la esencia misma de la negociación colectiva que, incluso en aquellos sectores en donde esta resulte constitucional y legalmente posible, solo a través de una ley formal, emanada del Poder Legislativo, puedan crearse incentivos o compensaciones, o pluses salariales, pues ello, conforme lo dicho, vaciaría de contenido de ese derecho y, por ende, se violaría el principio de libertad sindical, el cual ha sido desarrollado por esta Sala a través de su jurisprudencia. …

(…)

De allí que, como parte esencial de la libertad sindical -y de su contraparte la acción sindical- está el derecho de los trabajadores a la negociación colectiva, como instrumento para el mejoramiento de sus condiciones socio-económicas, a través de incentivos, compensaciones o pluses salariales. Lo que se enmarca dentro de los cuatro derechos que comprende la libertad sindical: a) libertad para constituir organizaciones sindicales; b) libertad de ingreso a una organización sindical; c) libertad para dejar de pertenecer a una organización sindical; y d) libertad del afiliado para participar democráticamente dentro del sindicato; a lo cual debe añadirse el derecho de toda organización sindical a desenvolverse libremente con respecto al Estado y en relación con la sociedad, considerada como un todo, siempre dentro del marco legal respectivo.

Lo anterior, implica, eso sí, según lo dicho, que todos esos componentes salariales acordados a través de esa válida negociación colectiva, tienen que ajustarse al principio de proporcionalidad y razonabilidad constitucional, así como al resto del ordenamiento jurídico. Pero resulta contrario al Derecho de la Constitución, en específico a la libertad sindical y al derecho a la negociación colectiva, que el legislador impida que esos extremos puedan ser pactados dentro de una negociación colectiva y solo queden reservados a la ley formal.

Por último, y en relación con el tema de la denuncia obligatoria de las convenciones colectivas que prevé el Transitorio L, del proyecto de ley consultado, la Organización Internacional del Trabajo (OIT), en el Informe N° 344, de marzo de 2007, Caso N° 2460, párrafo 990, expresó:

“990. En cuanto al fallo del tribunal en el caso Atkins, según el cual, la prohibición jurídica de la negociación colectiva es aceptable a tenor de la Constitución de los Estados Unidos porque ésta no contiene disposición alguna — incluido el derecho de libre asociación, consagrado en la Primera Enmienda — que obligue a una parte a concluir un contrato con otra, el Comité al tiempo que recuerda la importancia que concede a la obligación de negociar de buena fe para el mantenimiento de un desarrollo armonioso de las relaciones profesionales, quiere puntualizar que la negociación voluntaria de convenios colectivos y, por tanto la autonomía de los interlocutores sociales en la negociación, constituye un aspecto fundamental de los principios de la libertad sindical. La negociación colectiva, para ser eficaz, debe tener carácter voluntario y no implica el recurso a medidas de coacción que alterarían el carácter voluntario de dicha negociación. Ninguna disposición del artículo 4 del Convenio núm. 98 obliga a un gobierno a imponer coercitivamente un sistema de negociaciones colectivas a una organización determinada, intervención gubernamental que claramente alteraría el carácter de tales negociaciones [véase Recopilación, op. cit., párrafos 925-927 y 934]. Por lo tanto, si bien una disposición jurídica que obligara a una parte a concluir un contrato con otra sería contraria al principio de la negociación libre y voluntaria, disposiciones tales como los párrafos 95-98 de los NCGS, que prohíben a las autoridades públicas y los empleados públicos, incluidos aquellos que no participan en la administración del estado, concluir un acuerdo, incluso si quieren hacerlo, es igualmente contrario a dicho principio”.

Con lo cual es claro que, según lo ha definido la OIT, una disposición jurídica que obligara a una parte a concluir un convenio colectivo con otra sería contraria al principio de la negociación libre y voluntaria.

En síntesis, una disposición que obligue a denunciar las convenciones colectivas y, por otro lado, que impida, por medio de estas, lograr mejorar las condiciones, sin modulación de ningún tipo, resultaría contraria al Derecho de la Constitución; de manera, que el legislador no podría, de antemano, restringir la posibilidad de celebrar convenciones colectivas entre patronos y trabajadores, en el sector público en el que resulta constitucionalmente posible la aplicación de esta institución, sin violar la libertad sindical.

En consecuencia, debe entenderse, que el artículo 55, de la Ley N° 2166 (Ley de Salarios de la Administración Pública), tal como lo adiciona el proyecto consultado, no es inconstitucional, siempre y cuando se entienda que no se aplica a los empleados del Sector Público que válidamente puedan celebrar convenciones colectivas de acuerdo con la Constitución y la ley; sin perjuicio de los controles de legalidad y de constitucionalidad sobre el resultado de la negociación, en atención a los principios de razonabilidad, proporcionalidad y el buen uso y manejo de los fondos públicos. De igual forma, en relación con el Transitorio L, del proyecto consultado, debe interpretarse que cada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente.” 4) Conclusión A la luz de la jurisprudencia de la Sala y, muy en específico, del citado voto nro. 2018-019511, se puede concluir que las normas consultadas:

a.- El artículo 43 no contiene vicios de constitucionalidad, en el tanto las nuevas obligaciones o derechos obtenidos al alcance de la negociación colectiva se ajusten a los principios de razonabilidad, proporcionalidad y legalidad presupuestaria, al amparo de la jurisprudencia constitucional, y siempre y cuando se trate de convenciones colectivas donde participen los empleados del Sector Público que válidamente puedan celebrar convenciones colectivas de acuerdo con la Constitución y la ley.

b.- El Transitorio XV referido a la denuncia de las convenciones colectivas, no resulta inconstitucional siempre y cuando se interprete en el mismo sentido que se indicó en el voto número 2018-019511 de las 21:45 horas del 23 de noviembre del 2018, es decir, en aplicación de la Constitución Política (artículos 62 y 74), los Convenios Internacionales de la Organización Internacional del Trabajo y la jurisprudencia de este Tribunal, deberá interpretarse que cada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente." LBH10/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: TRABAJO Subtemas:

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017098-21. TRABAJO. CONSULTA LEGISLATIVA FACULTATIVA DE CONSTITUCIONALIDAD, REFERENTE AL PROYECTO DE LEY DENOMINADO "LEY MARCO DE EMPLEO PÚBLICO". EXPEDIENTE LEGISLATIVO N° 21.336. "... XVII.- Sobre la consulta planteada en cuanto a la sanción de inhabilitación genérica.- (redacta la magistrada Picado Brenes) 1) Análisis concreto de los aspectos consultados Los consultantes consideran que el artículo 4.a del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo N° 21.336, al establecer una sanción de inhabilitación de forma general, resulta violatoria de los principios constitucionales. Tal norma indica, expresamente, lo siguiente:

“ARTÍCULO 4- Principios rectores Son principios rectores del empleo público:

• a)Principio de Estado como patrono único: parte de la premisa de que el Estado es un único centro de imputación de derechos laborales, independientemente de en dónde labora la persona servidora pública. Esto implica que, cuando una persona servidora pública se traslada de un puesto a otro dentro del sector público, la relación de empleo debe computarse como una sola a efectos de reconocer los derechos laborales que correspondan y responder por los deberes funcionales, indistintamente de las variaciones de puesto que puedan presentarse. Adicionalmente, conlleva a que las sanciones que generen el despido sin responsabilidad patronal del funcionario en una institución, de conformidad con el ordenamiento jurídico vigente, impedirán a cualquier otra entidad u órgano que forme parte del Estado contratarlo por un plazo que va de seis meses a dos años.” Los consultantes la consideran inconstitucional, por cuanto, en su criterio, se trata de una sanción genérica y automática de inhabilitación, que se aplicaría a cualquier tipo de despido, indistintamente de si se trata de faltas graves o leves, sin que el órgano sancionador pueda valorar la gravedad de la conducta y sin que exista una ponderación de los derechos que se verán afectados. Consideran que, si bien es cierto la Sala Constitucional ha avalado las sanciones de inhabilitación para el ejercicio de cargos públicos como parte de los criterios para garantizar la idoneidad de las personas trabajadoras del sector público, la sanción creada en la norma consultada es genérica, es decir, se aplicaría a cualquier tipo de despido, indistintamente si se trata de faltas graves o leves, estimando que, por ello, deviene en una sanción automática, por el simple hecho de ser despedida la persona sin responsabilidad patronal. En criterio de quienes suscriben la consulta, las faltas que dan origen a terminar la relación de trabajo sin responsabilidad patronal, no constituyen todas, irreparablemente, la existencia de una falta de idoneidad para ocupar cargos en todas las Administraciones Públicas y consideran que la aplicación automática de una medida tan severa, debe tomar en cuenta el tipo de falta cometida, ponderando la proporcionalidad y razonabilidad del acto administrativo sancionatorio; sin embargo, estiman que la norma en cuestión no permite realizar esa ponderación o valoración.

En este punto interesa recordar, en primer lugar, que la Sala Constitucional se ha pronunciado, en reiteradas ocasiones, en cuanto a la sanción de inhabilitación, manifestando que existe la posibilidad de inhabilitar temporalmente a una persona para ocupar un cargo público en vía administrativa, por lo que no resulta ser una sanción extraña al ámbito administrativo. Así, por ejemplo, en la sentencia n°2013-04491 de las 16:00 del 03 de abril de 2013, dispuso lo siguiente:

“Con lo cual, el pronunciamiento no resulta particularmente concluyente en cuanto a los motivos por los que resultaría inconstitucional la imposición en sede administrativa de la inhabilitación para puestos públicos. Y es que en torno a este particular tipo de sanción no se levantan los límites rígidos y sobradamente fundamentados que se oponen, por ejemplo, al establecimiento de la pena de prisión por alguna autoridad pública que no sea la jurisdiccional. En este último sentido, los artículos 35, 37 y 39 de la Constitución Política; 7° y 8° de la Convención Americana sobre Derechos Humanos; 10 y 11 de la Declaración Universal de Derechos Humanos; y 9° del Pacto Internacional de Derechos Civiles y Políticos son inequívocos sobre la necesidad, entre otros requerimientos, de que sea por medio de un acto de juez que se adopte una decisión de tanta gravedad como la restricción de la libertad personal. La inhabilitación, en cambio, no es una sanción que resulte extraña al campo administrativo. En nuestro ordenamiento, por ejemplo, normas como la 100 inciso a) de la Ley de Contratación Administrativa, 3 del Código de Minería, 9 inciso f) del Reglamento al Estatuto de Servicio Civil y 13 del Código Notarial autorizan a los respectivos órganos competentes a imponer una pena administrativa de ese carácter, habiendo rechazado la Sala sistemáticamente las impugnaciones que se hicieran de algunas de ellas (sentencia #2000-5525 de las 14:58 horas del 5 de junio de 2000, respecto de la Ley de Contratación Administrativa; resoluciones #2002-6057 de las14:42 horas del 19 de junio de 2002, #2002-10940 de las 15:08 horas del 20 de noviembre de 2002, #2003-3423 de las 15:58 horas del 29 de abril de 2003 y #2006-3135 10:42 horas del 10 de marzo de 2006, sobre el Reglamento al Estatuto de Servicio Civil)”. (El subrayado no corresponde al original) En cuanto a su fundamento constitucional, en la sentencia n°2006-08493 de las 14:43 horas del 14 de junio de 2006, se indicó:

“Se justifica la inhabilitación en:

“el poder que tiene el Estado de sancionar las faltas en que incurran sus empleados en la función pública, como también la necesidad de resguardarse y protegerse de los comportamientos irregulares de sus funcionarios, que afecten las normas de subordinación, y los intereses públicos, por medio del poder sancionatorio, como todo empleador, contra el no cumplimiento exacto de los deberes de la función pública. Una vez aplicado el régimen disciplinario, como acto ejecutivo y ejecutable, entra a operar la norma en cuestión. Tómese en cuenta que la jurisprudencia reconoce la existencia de requisitos razonables que impone la ley, no como una limitación a los artículos 56 y 57 constitucionales, sino, para garantizar que la prestación del servicio público, esté conforme a lo dispuesto por los numerales 191 y 192 de la Constitución Política. De modo que, previo al nombramiento de todo empleado público es lícito que el Estado implemente condicionantes o requisitos adicionales, para la selección de sus empleados, y más aún, en caso de surgir la posibilidad de una nueva recontratación. Así, las condiciones de la norma impugnada son limitaciones lícitas –desde el punto de vista constitucional- impuestas en una Ley de la República que dispone la inidoneidad temporal de exfuncionarios a un nuevo puesto público, en caso de haber sido despedido sin responsabilidad patronal, como sucede en el asunto bajo examen. Véase que la jurisprudencia de la Sala, incluso admite que las investigaciones disciplinarias no se archiven con motivo de la cesación anticipada del investigado en su puesto, para efecto de que conste en archivos si solicita nuevamente ser nombrado por la administración.” Y se asevera, en fin, en esa sentencia:

“De lo anterior, se concluye que la existencia de una norma, que fije las consecuencias en el tiempo de un despido, no resulta inconstitucional, pues precisamente existe para que funcionarios que hayan hecho uso indebido de su puesto o del patrimonio del Estado, no puedan ser nombrados nuevamente por un plazo específico, todo para garantizar la moralidad y la legalidad de la Administración.” (En el mismo sentido v. los pronunciamientos #2002-6057 de las 14:42 horas del 19 de junio de 2002 y #2003-05262 de las 14:40 horas del 18 de junio del 2003. Sobre la posibilidad de continuar el procedimiento administrativo, pese a renuncia de servidor, v. los fallos #1999-2958 y #622-93 de las 15:48 horas del 8 de febrero de 1993).

A mayor abundamiento, en la sentencia n°2012-00267 de las 15:34 horas del 11 de enero de 2012, la Sala estimó en lo que interesa:

“En el caso de la norma cuestionada, se trata de una disposición reglamentaria que determina las consecuencias de un despido sin responsabilidad patronal dentro de la Administración Pública, siendo que los funcionarios públicos que hayan hecho uso indebido de su puesto o del patrimonio del Estado, no puedan ser nombrados nuevamente en un cargo en el Servicio Civil por un plazo específico. Tratándose de empleados públicos, éstos deben cumplir con un determinado bagaje de deberes éticos y morales, y resulta prudente sujetar sus nombramientos al principio constitucional de idoneidad, como ocurre en el caso. Además, estima la Sala que resulta ilusorio y ausente de toda lógica jurídica, que un funcionario despedido por el quebrantamiento a estos principios pretenda regresar a la función pública en forma inmediata, obviando los mecanismos de protección que establece el ordenamiento jurídico, frente a posibles abusos, de los bienes del Estado, y que inciden directamente en la ética y moralidad que todo funcionario debe acreditar (sentencia 2002-5424 11:10 31 de mayo 2002). La norma bajo estudio, establece una inidoneidad temporal a los funcionarios públicos que fueron despedidos de su puesto sin responsabilidad patronal y su único fin es proteger a la Administración Pública en relación a la aptitud moral de las personas que en algún momento infringieron la normativa del Estatuto de Servicio Civil, por lo que quedan condicionados a determinado plazo los futuros nombramientos en el Poder Ejecutivo bajo ese régimen. Toma en cuenta la Sala que por sentencia número 2001-12005, se indicó que:

"Tiene efectivamente un claro sentido señalar que la idoneidad de los servidores públicos no solamente debe entenderse en un sentido específico, "académica" o "física" por ejemplo, sino que debe más bien asumirse como una conjunción de elementos o factores de diversa índole que, valorados en su conjunto producen que una persona resulte ser la más idónea para el cargo. Más aún, realmente no concibe la Sala la forma en que pudiera dejarse de considerar la necesaria "aptitud psicológica" no solo en términos generales de "estabilidad" o "normalidad", sino en lo que se refiere a las condiciones o "aptitudes específicas" que ciertos puestos requieran de modo necesario para ser ejercidos con eficiencia. Se trata entonces a juicio de la Sala de un medio adecuado y proporcionado de obtener el fin constitucional fijado en los artículos 191 y 192 Constitucionales, en tanto viene a complementar como se explicó los demás aspectos de la idoneidad; y esta misma razón la que hace que mantenga una primacía –en este caso concreto- frente a los otros derechos constitucionales que el recurrente considera involucrados en esta controversia, a saber, derecho a la igualdad de trato y derecho al trabajo, ello en el tanto que la aptitud psicológica, debe estimarse parte integrante de la idoneidad exigida por la propia Constitución Política, según se explicó. Para concluir sobre este punto cabe señalar que, como en efecto lo señala el Director General del Servicio Civil, el Estatuto sí incorpora dentro de sus reglas la necesidad de la demostración –de forma amplia- de la idoneidad para el cargo y con ella la exigencia de comprobación de la idoneidad psicológica. " En consecuencia, resulta dentro de los parámetros constitucionales que la norma establezca un plazo de inhabilitación para el reingreso al Servicio Civil de aquel servidor público que fue despedido sin responsabilidad estatal. Tómese en cuenta que no se trata de una sanción adicional al despido, como parece entenderlo el accionante, sino la regulación de las consecuencias jurídicas de un hecho, con lo que el Estado se protege de conductas irregulares que minan la subordinación que todo servidor debe al Estado como patrono, y al ordenamiento, de manera que al constatarse una falta por la que se debió aplicar el poder sancionatorio, como medio para exigir el cumplimiento exacto de los deberes de la función pública o el rompimiento de la relación de servicio según las causales existentes, ello deberá formar parte de los requisitos de reingreso al servicio civil”.

Desde esta perspectiva entonces, el cuestionamiento que se plantea en cuanto a la posibilidad de aplicar en el ámbito del empleo público, una sanción de inhabilitación, no resultaría inconstitucional. En criterio de la Sala, se trata de limitaciones lícitas –desde el punto de vista constitucional- impuestas en una ley de la República, que dispone la inidoneidad temporal de exfuncionarios a un nuevo puesto público, en caso de haber sido objeto de despidos sin responsabilidad patronal, como sucede en el asunto bajo examen. La Sala también ha manifestado que, la existencia de una norma que fije las consecuencias en el tiempo de un despido, no resulta inconstitucional, pues precisamente existe para que funcionarios que hayan hecho uso indebido de su puesto o del patrimonio del Estado, no puedan ser nombrados nuevamente por un plazo específico, todo para garantizar la moralidad y la legalidad de la Administración (ver sentencia nº 2006-08493 de las 14:43 horas del 14 de junio de 2006 y en igual sentido, los pronunciamientos 2002-6057 de las 14:42 horas del 19 de junio de 2002 y 2003-05262 de las 14:40 horas del 18 de junio del 2003). Para este Tribunal, resulta acorde con los principios constitucionales, imponer una inhabilitación a un funcionario despedido con justa causa, pues no se puede pretender que dicho funcionario pueda regresar a la función pública en forma inmediata, obviando los mecanismos de protección que establece el ordenamiento jurídico (sentencia 2002-5424 de las 11:10 horas del 31 de mayo 2002). Bajo esta perspectiva, al analizarse el artículo 4.a del proyecto bajo estudio, se observa que, en vista de que el objetivo del legislador es constituir al Estado en un único patrono, las sanciones que generen el despido sin responsabilidad patronal del funcionario en una institución, implican automáticamente un impedimento para que labore en cualquier otra entidad u órgano que forme parte del Estado, por el plazo establecido en esa norma. En este punto, no se puede perder la perspectiva en cuanto a la obligación que tiene el Estado de resguardar la idoneidad que debe asistir a quien aspire a un cargo en la función pública, como parte integral de la exigencia del numeral 192 de la Constitución Política. Ahora bien, lo relativo a los cuestionamientos que plantean los consultantes en cuanto a la relación existente entre el tipo de falta cometida y la sanción, o bien sobre la proporcionalidad y razonabilidad del acto administrativo sancionatorio, son temas que deberán valorarse en cada caso concreto y como parte del debido proceso, y que no por ello, vuelven inconstitucional per se la norma. Por otro lado, resulta de interés recordar que, en el ordenamiento jurídico costarricense se pueden encontrar algunas normas referentes a la inhabilitación con algún contenido similar al del artículo 4 a. bajo estudio. Entre ellas se pueden citar, las siguientes:

• 1)Reglamento del Estatuto del Servicio Civil:

“Artículo 9° - Son requisitos para ingresar al Servicio Civil, aparte de lo establecido por el artículo 20 del Estatuto, los siguientes:

• d)No haber sido destituido por infracción de las disposiciones del Estatuto, del presente Reglamento, o de los reglamentos autónomos de las instituciones cubiertas por el Régimen Estatutario, durante un período no menor a tres ni mayor a diez años, anteriores a la fecha de ingreso, de acuerdo con la gravedad de la falta y conforme a los lineamientos que sobre esta materia se establecerán por parte de la Dirección General de Servicio Civil.” 2) Ley Orgánica de la Contraloría General de la República.

“Artículo 72.- Prohibición de ingreso o de reingreso del infractor. No podrá ser nombrado en un cargo de la Hacienda Pública quien haya cometido un delito o falta grave contra las normas que integran el sistema de fiscalización, contemplado en esta Ley o contra la propiedad o la buena fe de los negocios. La presente prohibición tendrá vigencia por un plazo que no será menor de dos años ni mayor de ocho años, a juicio de la Contraloría General de la República, la cual resolverá con vista de la prueba del caso. Asimismo regirá la prohibición, por igual plazo, en contra de ex servidores públicos que intenten reingresar a la Hacienda Pública, cuando hayan cometido un delito o falta grave como los mencionados en los numerales anteriores, aunque su relación de servicio anterior con la Hacienda Pública haya terminado sin responsabilidad de su parte. Además, se aplicará la prohibición aquí establecida contra el servidor público que haya sido despedido, por haber cometido un delito o falta grave como los ya citados”.

Entonces, la inhabilitación temporal en vía administrativa de una persona servidora pública, para que acceda a cargos públicos, es una figura reconocida por este Tribunal, la cual permite que funcionarios que hayan faltado a sus deberes éticos y morales haciendo uso indebido de su puesto o de bienes del Estado, puedan no ser nombrados nuevamente por un plazo definido, con el fin de garantizar los principios de eficiencia de la Administración e idoneidad comprobada. Este principio de idoneidad no debe ser entendido únicamente como la comprobación de aptitudes académicas, físicas o de experiencia, sino que se extiende, además, a una serie de elementos éticos y morales e, incluso, psicológicos, que son parte de esa idoneidad que requiere el ejercicio de cargos públicos, de ahí que resulta un medio adecuado a los fines constitucionales plasmados en los artículos 191 y 192 de nuestra carta fundamental. De conformidad con lo anterior, la inhabilitación dispone la inidoneidad temporal de exfuncionarios, a un puesto público, en caso de haber sido despedidos sin responsabilidad patronal, con lo que se busca -como se dijo supra- garantizar que la prestación de los servicios públicos sea conforme a los principios de idoneidad comprobada y eficiencia en la función pública (artículos 191 y 192 de la Constitución Política). Igualmente, interesa destacar, que la Sala ha señalado que esta inhabilitación no es absoluta, sino que está compuesta de una serie de límites que encausan su aplicación, entre los cuales este Tribunal ha destacado los siguientes: 1) que posea un plazo definido autorizado por ley, o que se imponga por un plazo razonable; 2) que sea temporal; 3) que se encuentre debidamente fundamentada; 4) que se imponga únicamente como consecuencia de la destitución por faltas graves comprobadas. Todo lo cual son extremos que deberán valorarse en cada caso concreto y como parte del debido proceso. Además, todo ello deberá ser aplicado tomando en cuenta la normativa especial que cada institución pueda tener al respecto, realizando el operador jurídico una labor interpretativa. En este sentido, debe recordarse que, en materia de consultas facultativas, este Tribunal únicamente se pronuncia sobre los temas consultados, de tal forma que no puede interpretarse que exista una especie de aval al proyecto de ley consultado, en aquello en lo que no exista pronunciamiento. Si sobre este tema se considera que existen otros elementos, aparte de los consultados, que puedan violentar la supremacía de la Constitución Política, quedaría abierta la vía correspondiente para su debida discusión (ver en ese sentido las sentencias 2001-11643, 2001-12459, 2012-9253, 2019-9220 y 2020-010160, entre otras).

• 2)Conclusión De conformidad con las consideraciones anteriores, se puede concluir que la existencia de una norma que fije la inhabilitación, como una de las consecuencias en el tiempo de un despido, no resulta inconstitucional. Así, en los términos indicados y conforme a la jurisprudencia constitucional, en cuanto a lo consultado, no resulta inconstitucional el artículo 4.a del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo N° 21.336. Siendo un tema que corresponderá al operador jurídico todo lo referido a aplicar el debido proceso al despido, valorar la relación existente entre el tipo de falta cometida y la sanción, o bien sobre la proporcionalidad y razonabilidad del acto administrativo sancionatorio, y determinar la norma concreta a aplicar cuando exista normativa especial en la institución en cuestión..." LBH10/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: TRABAJO Subtemas:

NO APLICA.

017098-21. TRABAJO. CONSULTA LEGISLATIVA FACULTATIVA DE CONSTITUCIONALIDAD, REFERENTE AL PROYECTO DE LEY DENOMINADO "LEY MARCO DE EMPLEO PÚBLICO". EXPEDIENTE LEGISLATIVO N° 21.336. "... XVIII.- Sobre la consultada violación al derecho de igualdad salarial y el salario global 1) Aspectos consultados Los diputados consultantes cuestionan sobre este tema del Salario Global, los siguientes tres aspectos:

-Violación al principio de separación de poderes y de autonomías, por el hecho de que sea un Ministerio del Poder Ejecutivo quien establezca la columna salarial global (art. 34) y con ello, los salarios de todo el aparato estatal, incluyendo al Poder Judicial, las universidades, las municipalidades, y a los entes descentralizados.

-Violación al principio de igualdad salarial, por el hecho de que personas que ocupen iguales puestos en iguales condiciones estarían recibiendo un salario diferente (transitorio XI); además, porque se da un trato igual a quienes no están en condiciones de igualdad, como lo sería funcionarios de las ciencias de la salud, los que despliegan funciones policiales del Ministerio de Seguridad con los del Organismo de Investigación Judicial, administradores de justicia, servicio exterior, puestos de confianza, etc. (art. 30.a y 34). Asimismo, se consulta que los salarios de los diputados no están incluidos dentro del tope de salario (art.37).

-Violación al principio de dignidad humana en el trabajo, por el hecho de que la definición de salario (art. 5.r) excluye el reconocimiento de cualquier otro emolumento en efectivo o en especie que, de manera directa o indirecta, reconozca el empleador a las personas trabajadoras, como dispone el Convenio N° 100 de la OIT. Además, porque se tomará en cuenta la “disponibilidad” como un factor relevante para la evaluación del trabajo (art.31.f), en detrimento particular de las mujeres, quienes usualmente tienen trabajo fuera de oficina y, por ello tienen poca “disponibilidad”. Además, por el hecho de que, el salario se congelará a ciertos funcionarios y no se les reconocerá ningún aumento a la base ni incentivo (transitorio XII).

Una vez revisado el escrito de interposición de la consulta, se logra constatar, que el cuestionamiento externado por los consultantes en relación con esos numerales, carece de una adecuada fundamentación y no expresa, de manera clara, los motivos o razonamientos por los cuales se plantean esas dudas ante esta Sala. Sobre el particular, debe tenerse presente que, el artículo 99 de la Ley de la Jurisdicción Constitucional, es muy claro al establecer que la consulta deberá expresar los aspectos cuestionados del proyecto y los motivos por los cuáles se tienen dudas u objeciones de constitucionalidad, así como también que todo ello debe hacerse de manera razonada y debidamente fundamentada; requisito que no se cumple en este caso concreto y, por ende, la consulta no puede ser evacuada en los términos en que lo pretenden los consultantes. Las únicas dos normas que son consultadas de forma fundamentada, se refieren al Transitorio XI y Transitorio XII. Por ello, procede esta Sala a pronunciarse únicamente sobre estos dos (agregar “extremos”). En el entendido de que, sobre el resto de normas, no se está examinando su conformidad o no con la Constitución Política.

Al respecto, antes de proceder al examen de la constitucionalidad de las normas impugnadas, resulta procedente recordar los alcances y limitaciones constitucionales de la jurisprudencia constitucional, en materia de salarios.

• 2)Antecedentes Jurisprudenciales sobre el derecho fundamental a la igualdad de salario En general, sobre el derecho al salario, la jurisprudencia constitucional ha indicado, que: “El salario como remuneración debida al servidor en virtud de una relación estatutaria, por los servicios que haya prestado, no es sólo una obligación del empleados, sino un derecho constitucionalmente protegido.” (ver voto n°2015-009504). Derecho fundamental que, por demás, resulta irrenunciable (art. 74 constitucional). Luego, sobre el derecho fundamental a la igualdad salarial o derecho a la equidad salarial, es entendido como aquel derecho que permite diferenciar salarios de acuerdo a las condiciones del cargo (vertiente negativa), pero sin poder llegar a realizarse una discriminación (art. 68 constitucional: “No podrá hacerse discriminación respecto al salario, … respecto de algún grupo de trabajadores”). A contrario sensu, es aquel derecho que permite mantener mismos salarios, si las condiciones del cargo son iguales (vertiente positiva). Este último, según el art. 57 constitucional que indica: “El salario será siempre igual para trabajo igual en idénticas condiciones de eficiencia.” Lo cual es ratificado por la Declaración Universal de los Derechos Humanos (art. 23.”2: Toda persona tiene derecho, sin discriminación alguna, a igual salario por trabajo igual.”), el Pacto Internacional de Derecho Económicos, Sociales y Culturales (art. 7.a.i: “Un salario equitativo e igual por trabajo de igual valor, sin distinción de ninguna especie…”). El Protocolo de San Salvador (Art. 7.a: “…y un salario equitativo e igual por trabajo igual, sin ninguna distinción…”), solo para citar algunos.

La Sala ha manifestado que, pese a que debe procurarse una política salarial equilibrada y justa, no pueden dejarse de lado las diferencias en cuanto a las funciones de cada puesto. En la sentencia n° 97-1320 manifestó:

“I. Es evidente que de los artículos constitucionales que se estima infringidos (33, 57, 68 y 74) se puede derivar un claro propósito de que, en materia salarial, exista un tratamiento equilibrado y justo para las distintas actividades laborales, tengan o no un carácter profesional. Esta Sala lo ha reiterado así en sus diversos pronunciamientos. Pero, como ha sido explicado también, ese trato equilibrado supone –como en cualquier otro caso en que esté de por medio una disputa de igualdad– que se reconozcan las diferencias que existen entre las diversas actividades, de modo que no se equiparen las que son distintas ni se diferencien las que son iguales, de forma tal que resulten indebidos privilegios por el hecho de sobrevaluar a unas, o injusticias porque se subvalúen otras.” Con relación a la igualdad salarial en particular, en sentencia nº 94-6471, se dijo: "Tampoco se observa menoscabo al derecho de salario igual para idénticas condiciones pues resulta evidente que al existir diversidad de funciones en el Manual descriptivo de puestos, ello lógicamente acarrea diferencias salariales." Además, en la sentencia n° 15-10348, la Sala señaló:

“[La PGR]… el órgano asesor aclara que si bien la intención del Constituyente fue establecer un régimen salarial único y uniforme para toda la Administración Pública, lo cierto es que tratándose de otros Poderes del Estado distintos al Ejecutivo, entidades autónomas, descentralizadas y empresas públicas, sus órganos jerárquicos superiores tienen plena potestad para dictar sus propias políticas en materia de clasificación y valoración de puestos, así como para fijar, a su vez, las respectivas remuneraciones en ejercicio de su facultad legal. La PGR concluye afirmando que la UNED rige su vida y organización interna de acuerdo con los postulados de su ley orgánica y estatutos internos, que son manifestación de la voluntad universitaria colectiva, pues goza de un grado superlativo de autonomía administrativa y de gobierno, distinto de la del resto de los entes descentralizados, de conformidad con los artículos 84 y 85 de la Constitución Política, por lo que puede emitir libremente –dentro de los límites de la Constitución- las disposiciones relacionadas con su régimen interior en materia de empleo (incluido lo remunerativo), tanto de puestos académicos como administrativos. Este Tribunal Constitucional comparte la postura adoptada por el órgano asesor para dirimir el fondo de este caso”.

Por eso se expresó, respecto de la igualdad general, en la sentencia nº 4090-94 lo siguiente:

"Es de suma importancia indicar para los efectos de la cuestión planteada, que el principio de igualdad que establece el artículo 33 Constitucional no tiene un carácter absoluto pues no concede propiamente un derecho a ser equiparado a cualquier individuo sin distinción de circunstancias, sino más bien a exigir que la ley no haga diferencias entre dos o más personas que se encuentren en una misma situación jurídica o en condiciones idénticas, y no puede pretenderse un trato igual cuando las condiciones o circunstancias son desiguales..." La línea jurisprudencial de la Sala, ha sido clara, en el sentido de que reconocer, que no cabe la equiparación indiscriminada de remuneraciones entre los miembros de los poderes públicos, pues el imponer un tratamiento igual a situaciones o funcionarios que se encuentran objetivamente en circunstancias de desigualdad, quebrantaría, en general, el principio de igualdad y específicamente en materia de salarios y condiciones de trabajo, el 57 de la Constitución. Sin embargo si la equiparación salarial no es indiscriminada, sino que atiende a criterios técnicos objetivos y sustentados, no habría desigualdad:

“En cuanto a la discriminación invocada, esta Sala en su reiterada jurisprudencia ha señalado que el artículo 33 de la Constitución Política, no implica, que, en todos los casos, se deba de dar un tratamiento, igual prescindiendo de los posibles elementos diferenciadores de relevancia jurídica que puedan existir; o lo que es lo mismo, no toda desigualdad constituye necesariamente una discriminación. El principio de igualdad, como lo ha dicho esta Sala, sólo se infringe cuando la desigualdad se encuentra desprovista de una justificación objetiva y razonable”. (voto n° 2000-00953).

Sobre los aumentos salariales y la dignidad humana en el trabajo, mediante sentencia n° 2003-005374, para la mayoría de la Sala en ese momento, no existe un derecho fundamental a los aumentos por costo de vida, en aquellos casos en que el salario esté por encima del salario mínimo:

“Se afirma además, que existe un derecho fundamental al aumento por costo de vida. Esta última argumentación no resulta de recibo para la mayoría de la Sala, toda vez que conforme a la Carta Política, lo único que exis-te como derecho público subjetivo, es el derecho al salario, norma que ocasiona el deber jurídico del patrono de remunerar dignamente el trabajo de sus colaboradores. Es decir, la norma genera, automáticamente, una prestación positiva a cargo del patrono, consistente en su deber de remu-nerar dignamente al asalariado. Así, conforme lo dispone el artículo 57 constitucional, todo trabajador tiene derecho a "...un salario mínimo, de fijación periódica, por jornada normal, que le procure bienestar y exis-tencia digna." De tal garantía fundamental, no puede derivarse, como se pretende, un derecho fundamental a los aumentos por costo de vida. La norma garantiza un mínimo de retribución, derecho que se traduce en la garantía de ver remunerado el trabajo, mediante un salario mínimo, sujeto a una fijación periódica, lo cual no equivale, en modo alguno, a un dere-cho a un aumento de salario anual, en aquellos casos en que éste está por encima del salario mínimo. Por otra parte, no considera la mayoría de es-te Tribunal que exista evidencia en autos de que la norma vede la posibi-lidad de los accionantes de ser remunerados dignamente, por lo que tal alegación debe ser igualmente rechazada. No sólo se extraña dicha prueba, sino que además, no podría entenderse que se trata de una circunstancia evidente que no precise ser probada.” Lo antes expuesto fue ratificado por el voto n° 2004-013421, en cuanto dice que, no existe derecho fundamental alguno que se refiera al aumento al salario. Sin embargo, advierte este Tribunal, que el congelamiento de salarios no solo es una situación diferente, sino que, además, debe ser temporal y no permanente, según se desprende del voto n° 2003-009952, pues tal congelamiento que supone un sacrificio del trabajador, al no ver aumentado su salario pese al aumento en el costo de vida, se puede hacer únicamente por un plazo definido o determinado y únicamente por circunstancias de orden extraordinario o de interés nacional. El congelamiento indefinido en el tiempo afectaría ilegítimamente situaciones jurídicas consolidadas a futuro y constituiría un abuso estatal ad infinitum, ya que no solo perjudicaría el salario del funcionario, sino otros derechos como la jubilación.

• 3)Análisis concreto de lo consultado (redacta el magistrado Castillo Víquez) En la primera consulta de constitucionalidad facultativa los (as) diputados (as) aducen que con el congelamiento de los salarios establecido en el Transitorio XI, inciso b), se lesionan los artículos 11 y 33 constitucionales, porque desconocen otra normativa ya existente que reconoce derechos a este sector de profesionales en la salud -refiriéndose al funcionario de la CCSS-, y porque dispondrá de un salario diferente a las personas que ingresen a laborar con un mayor salario en las mismas condiciones de los que ya trabajan para la institución. Para fundamentar la violación en cuestión, hacen alusión específicamente a lo dispuesto en las siguientes disposiciones: 6, 7 d), 9, 13 b), 14, 17 y 18 del proyecto de ley. Asimismo, argumentan que somete a la CCSS a disposiciones de Mideplán en materia de gestión de empleo público, así, por ejemplo: les impone el deber de alimentar y actualizar una plataforma de empleo cada 6 meses. Expresan que el Transitorio XI, inciso b), pretende modificar el sistema salarial a un salario global, sin derogar o modificar otra normativa que reconoce ajustes diferenciados en el salario, tales como la Ley de Incentivos a los Profesionales en Ciencias Médicas y su reglamento, ni el Estatuto de Servicios de Enfermería.

En la segunda consulta de constitucionalidad facultativa, se afirma por parte de los consultantes que el Transitorio XI, tal y como está planteado, concibe y promueve que se establezcan dos escalas salariales y montos de remuneración distintos para un mismo puesto de trabajo, para funcionarios públicos que desarrollan funciones y responsabilidades en igualdad de condiciones y que serán remunerados de forma diferenciada, sin que esto tenga base en elementos objetivos y racionales, lo cual puede prolongarse por 12 o 15 años. Para los (as) diputados (as) se lesionan los principios de igualdad salarial, equidad y no discriminación y los artículos 33 y 57 de la Carta Fundamental, así como los artículos 167 y 405 del Código de Trabajo. Además, sostienen que no hay estudios o razonamientos técnicos u objetivos que justifiquen la prevalencia de la diferencia salarial propuesta en ese transitorio. Finalmente, el Transitorio XI transgrede y lesiona el principio de equidad salarial establecido en el ordinal 4 c) del mismo proyecto.

Como puede deducirse de este resumen de los agravios de ambas consultas, la inconformidad de los (as) diputados (as) se centra en el citado transitorio, mas no así en otras normas de proyecto de ley. La invocación a normas del proyecto de ley, así como de otra normativa legal vigente -Código de Trabajo y leyes de incentivos en el área de salud- son argumentos de apoyo que se esgrimen para sostener que el transitorio XI y, en menor medida el XII, son inconstitucionales. Ergo, la mayoría se limitará al análisis de las normas transitorias cuestionadas, y no de otras normas infraconstitucionales vigentes -que no pueden ser objeto de control previo de constitucionalidad, sino de un control de constitucionalidad a posteriori-, ni del proyecto de ley que invocan.

Como es bien sabido, el derecho transitorio es una técnica jurídica que busca dar respuesta a los problemas de aplicación de las normas en el tiempo, que se producen a raíz de la derogatoria y la vigencia de otra, en la que se hace necesario adaptar las situaciones prevalecientes a la nueva realidad que crea la ley recién promulgada. En efecto, como bien lo ha sostenido la doctrina, las disposiciones transitorias forman parte del Derecho Intertemporal en cuanto tienen a solucionar conflictos de leyes. Ante los problemas de transitoriedad que la nueva ley causa, el legislador establece un régimen jurídico aplicable a las situaciones jurídicas pendientes. En ese sentido, la función de las llamadas disposiciones transitorias es la de regular, en forma temporal, determinadas situaciones, con el fin de ajustar o acomodar la normativa nueva o la de dar un tratamiento distinto y temporal, de carácter excepcional, a ciertas situaciones. Interesa resaltar, que en la base de la norma transitoria se encuentra esa necesidad de responder a problemas planteados por la entrada en vigencia de la nueva ley; esa es su esencia. Se ha dicho que el contenido de las disposiciones transitorias busca solucionar varias situaciones. En primer lugar, si las nuevas regulaciones se aplican o no a las situaciones jurídicas previas a la ley, sea declarando la aplicación de la nueva ley, la pervivencia de la ley antigua o estableciendo un régimen transitorio distinto al fijado en ambas leyes -la antigua y la nueva-. Otra opción que tiene el legislador, dentro de una gama de alternativas, es regular en forma provisional situaciones jurídicas nuevas cuando con ello se pretenda facilitar la aplicación definitiva de la nueva ley.

Sobre si se da o no una vulneración al principio de igualdad a causa de una norma transitoria, es importante traer a colación lo que expresó el Tribunal Constitucional español en el auto 367/2003, de 13 de noviembre -ECl:ES:TC:2003:367A-.

“Por otra parte no se advierte que el precepto cuestionado incurra en la discriminación lesiva del art. 14 CE a que alude el Auto de planteamiento por remisión a los argumentos, ciertamente confusos, del demandante en el proceso a quo. De entrada debe observarse que la aplicación de las reglas de cálculo de la base reguladora de la pensión nada tienen que ver con que la jubilación se produzca anticipadamente o por cumplimiento de la edad ordinaria de 65 años (la edad se tiene en cuenta a efectos del porcentaje), por lo que no existe término de comparación válido en el que sustentar el juicio de igualdad sobre la supuesta discriminación que se invoca para cuestionar el precepto. En efecto, las reglas contenidas en la disposición transitoria quinta, 1, LGSS, se aplican, para cualquier tipo de jubilación que se produzca a partir de la entrada en vigor de la norma, en función de la fecha en que la jubilación se haya producido. Como el demandante se jubila en el año 2002 le resulta aplicable lo dispuesto en el último párrafo de la disposición transitoria quinta, 1, LGSS, que se remite al art. 162.1 LGSS (precepto por otra parte no cuestionado por el órgano judicial proponente), esto es, dividiendo por 210 las bases de cotización del interesado durante los 180 meses inmediatamente anteriores al hecho causante. Ciertamente, si el demandante en el proceso a quo hubiera nacido varios años antes, se habría podido jubilar con anterioridad al año 2002 y le habrían sido aplicadas otras reglas de cálculo, las vigentes en el año en que se hubiese producido la jubilación. Mas que la aplicación de la legislación precedente pudiera resultarle en su caso más beneficiosa al demandante en el proceso a quo no determina que la nueva regulación pueda considerarse por tal motivo contraria al art. 14 CE, pues el principio de igualdad no puede constituirse en un dique frente a las reformas legales sucesivas que el legislador considere necesario introducir, pues dicho principio no exige que todas las situaciones, con independencia del tiempo en que se originaron o produjeron sus efectos, deban recibir un tratamiento igual por parte de la ley, puesto que con ello se incidirá en el círculo de competencias atribuido constitucionalmente al legislador y, en definitiva, en la natural y necesaria evolución del Ordenamiento jurídico (SSTC 119/1987, FJ 3; 88/19991, FJ 2; 38/1995, FJ 4).

Como ya señalara tempranamente este Tribunal en su STC 27/1981, de 20 de julio, FJ 10, con ocasión de una reforma legal referida al mutualismo administrativo, cuyos argumentos pueden ser perfectamente trasladados al asunto que nos ocupa, "el Ordenamiento jurídico, por su propia naturaleza, se resiste a ser congelado en un momento histórico determinado: ordena relaciones de convivencia humana y debe responder a la realidad social de cada momento, como instrumento de progreso y de perfeccionamiento. Normalmente, lo hace así, al establecer relaciones pro futuro. Pero difícilmente una norma puede evitar que la regla de futuro incida sobre relaciones jurídicas preexistentes, que constituyen el basamento de las relaciones venideras; y es por ello que, a menudo tales normas deben contener unas cautelas de transitoriedad que reglamentan el ritmo de la sustitución de uno por otro régimen jurídico.... El cambio de régimen jurídico que se denuncia no supone la supresión de ninguna prestación ya consolidada”. (Las negritas no corresponden al original).

En adición a lo antes expuesto, hay que tener presente que el artículo 33 de la Constitución Política, que reconoce el principio de igualdad, implica, tal y como lo ha reconocido la Sala Constitucional en múltiples resoluciones, que todas las personas que se encuentran en una misma situación, deben ser tratadas en forma igual. Por otra parte, “El principio de igualdad, contenido en el Artículo 33 de la Constitución Política, no implica que en todos los casos, se deba dar un tratamiento igual prescindiendo de los posibles elementos diferenciadores de relevancia jurídica que pueda existir; o lo que es lo mismo, no toda desigualdad constituye necesariamente una discriminación. La igualdad, como lo ha dicho la Sala, sólo es violada cuando la desigualdad está desprovista de una justificación objetiva y razonable. Pero además, la causa de justificación del acto considerado desigual, debe ser evaluada en relación con la finalidad y sus efectos, de tal forma que deba existir, necesariamente, una relación razonable de proporcionalidad entre los medios empleados y la finalidad propiamente dicha. Es decir, que la igualdad debe entenderse en función de las circunstancias que concurren en cada supuesto concreto en el que se invoca, de tal forma que la aplicación universal de la ley, no prohíbe que se contemplen soluciones distintas ante situaciones distintas, como tratamiento diverso. Todo lo expresado quiere decir, que la igualdad ante la ley no puede implicar una igualdad material o igualdad económica real y efectiva” (véanse los votos n.° 1770-94 y 1045-94).

El punto está en determinar si esta diferenciación de trato está fundada en fines legítimos constitucionalmente, en si es objetiva, es decir, si está sustentada en un supuesto de hecho diferente, si está basada en diferencias relevantes (tertium comparationis), si existe proporcionalidad entre el fin constitucional y el trato diferenciado que se ha hecho y el motivo y el contenido del acto y, si ese trato es idóneo para alcanzar el fin que se persigue.

En el primer supuesto, la diferencia de trato supone que esté basada en objetivos constitucionalmente legítimos, lo que conlleva tres consecuencias en la finalidad perseguida. En primer lugar, las leyes no pueden perseguir fines que contradigan el Derecho de la Constitución o las normas que se encuentran en los instrumentos internacionales de Derechos Humanos. En segundo término, cuando se persiguen fines no tutelados constitucionalmente, pero que no contradicen sus valores y principios, la diferenciación de trato debe ser estrictamente vigilada en relación con los supuestos de hecho que la justifican y la finalidad que persigue. Por último, cuando se persigue un fin constitucionalmente tutelado, la diferenciación de trato será válida siempre y cuando respete los criterios de razonabilidad, proporcionalidad y sea necesaria.

La Sala Constitucional, en el voto N.º 4883-97, expresó sobre este principio, lo siguiente:

“El principio de igualdad, contenido en el Artículo 33 de la Constitución Política, no implica que en todos los casos, se deba dar un tratamiento igual prescindiendo de los posibles elementos diferenciadores de relevancia jurídica que puedan existir; o lo que es lo mismo, no toda desigualdad constituye necesariamente una discriminación. La igualdad, como lo ha dicho esta Sala, sólo es violada cuando la desigualdad está desprovista de una justificación objetiva y razonable. Pero además, la causa de justificación del acto considerado desigual, debe ser evaluada en relación con la finalidad y sus efectos, de tal forma que debe existir, necesariamente, una relación razonable de proporcionalidad entre los medios empleados y la finalidad propiamente dicha. Es decir, que la igualdad debe entenderse en función de las circunstancias que concurren en cada supuesto concreto en el que se invoca, de tal forma que la aplicación universal de la ley, no prohibe que se contemplen soluciones distintas ante situaciones distintas, con tratamiento diverso. Todo lo expresado quiere decir, que la igualdad ante la ley no puede implicar una igualdad material o igualdad económica real y efectiva.’ (Sentencia número 6832-95 de 16:15 horas del 13 de diciembre de 1995).” (Las negritas no corresponden al original).

Finalmente, hay que enfatizar que el cumplimiento del principio de equilibrio financiero o presupuestario en este caso, es una justificación objetiva y razonable para concluir que la normativa transitoria es conforme con el Derecho de la Constitución, máxime si se toma en cuenta la situación fiscal tan deteriorada que tiene el Gobierno central, que pone en peligro la viabilidad del Estado Social de Derecho y de la economía costarricense en su conjunto. En esta dirección, en la opinión consultiva n.° 2018-18505, expresamos lo siguiente:

“Sobre el particular, frente a una condición crítica en las finanzas públicas (debidamente sustentada en estudios técnicos), que pone en riesgo la efectiva o adecuada ejecución de las prestaciones de relevancia constitucional, la decisión de las autoridades competentes de definir y aplicar medidas aptas para paliar o solucionar el problema no solo resulta razonable, sino que, aún más, es insoslayable.

Ahora bien, no atañe a la Sala definir en concreto qué tipo de remedios se deben aplicar ni cuál es el más adecuado, toda vez que ello forma parte de la política económica del Estado, que a su vez constituye materia de gobierno. En realidad, el control de constitucionalidad se encuentra constreñido a velar por que las soluciones se adopten salvaguardando los derechos fundamentales cobijados en la Constitución Política y los instrumentos del derecho internacional de los derechos humanos ratificados por Costa Rica, así como las cualidades esenciales del régimen político del país (en una república democrática, libre, independiente, multiétnica y pluricultural, cuyo Gobierno es popular, representativo, participativo, alternativo y responsable), todo lo cual implica un ejercicio de ponderación y optimización de los diversos principios, derechos y valores constitucionales en juego.

En este contexto, reviste de especial importancia una interpretación armoniosa del principio de equilibrio presupuestario y el Estado Social de Derecho. La Sala advierte que, para que un Estado Social de Derecho pueda persistir y cumplir sus fines constitucionales y legales, deviene necesario que se efectúe un sano manejo de las finanzas públicas; es decir, de manera inexorable debe existir un equilibrio entre los derechos prestacionales y la solvencia económica estatal, ya que los primeros dependen de las posibilidades materiales propiciadas por la segunda, mientras que el sentido de esta última es fortalecer el desarrollo de un sistema político solidario, uno en el que los estratos menos favorecidos de la sociedad encuentren resguardo de su dignidad humana y su derecho a progresar. Dicho de otra forma, el Estado Social de Derecho “ideal” es el Estado Social de Derecho “posible”, contra el que precisamente se actúa, cuando se quebranta el principio de equilibrio presupuestario, toda vez que, a mediano plazo, eso pone en serio riesgo o del todo impide obtener los recursos necesarios para sustentar un Estado Social de Derecho “real”, uno del que verdadera y efectivamente puedan gozar los más vulnerables. Vigilar entonces que no se llegue a caer en una Constitución fallida o de papel, donde los derechos prestacionales de rango constitucional no puedan ser efectivos, es tarea fundamental de esta Sala, estrictamente dentro de lo que el marco de sus competencias se lo permite.

Se debe advertir, eso sí, que todos los principios, valores y preceptos constitucionales deben ser observados en cualesquiera circunstancias, lo que permanentemente le corresponde vigilar a la jurisdicción constitucional. Ahora, con motivo del ejercicio de ponderación u optimización que el juez constitucional realiza para resolver alguna colisión entre tales principios, valores y preceptos, el contexto que rodea al conflicto no puede pasar desapercibido.

Corolario de lo expresado: la inobservancia del principio de equilibrio presupuestario ha sido una de las causas del deteriorado estado actual de las finanzas públicas, motivo que lleva a esta Sala a subrayar el carácter transversal de dicho principio y hacer énfasis en su implementación real en aras del principio del Estado Social de Derecho. Se insiste en la observación del Programa del Estado de la Nación: ‘Esto [refiriéndose al desbalance estructural en las finanzas públicas] ha puesto en jaque el futuro del Estado de bienestar social construido a lo largo de la segunda mitad del siglo XX, ya que su financiamiento y la eficiencia de su gasto no son suficientes’”.

En lo que atañe al quebranto del principio de legalidad, los consultantes no hacen una argumentación adecuada desde la óptica del Derecho de la Constitución. De ahí que, este Tribunal no emita mayor consideración al respecto.

• 4)Conclusión Por las razones anteriores, se concluye, por mayoría, que los Transitorios XI y XII no vulneran el principio de igualdad -igual salario a trabajo igual en idénticas condiciones de eficiencia-, ni el de legalidad y, por consiguiente, no resultan inconstitucionales." "...

XIX.- Sobre la violación al debido proceso (proceso único de despido).- (redacta la magistrada Picado Brenes) 1) Aspectos consultados Señalan los consultantes que, tanto el procedimiento de despido regulado en el artículo 21 del proyecto de ley bajo estudio, como la fase recursiva contra despido que está prevista en el artículo 22 siguiente, lesionan una serie de normas y principios constitucionales relativos al debido proceso, e indican que el contenido de estos numerales se relaciona con el artículo 49 inciso b) -del mismo proyecto de Ley- que refiere a una serie de reformas que se proponen en relación con el Estatuto de Servicio Civil. Argumentan que, en la reforma que se pretende hacer al artículo 43 del Estatuto de Servicio Civil, se busca incorporar este procedimiento de despido; sin embargo, aducen que se encuentran serias diferencias, incongruencias y contradicciones entre ambos textos. Estas contradicciones y antinomias que se generan en un mismo texto, consideran los consultantes que son violatorias de los principios de seguridad jurídica y legalidad y añaden que no existe claridad en cuanto a plazos, recepción de pruebas, derecho de defensa, entre otros, mencionando que esto fue puesto de manifiesto por el Tribunal de Servicio Civil. Consideran que el procedimiento de despido es clave en el desarrollo de las relaciones de empleo público en las instituciones públicas, por ello estiman que la claridad en el proceso es fundamental para su aplicación pues, sin un procedimiento detallado que respete las garantías constitucionales, se estaría ante una eventual nulidad e inaplicabilidad, además de que se coloca en un estado de indefensión a los funcionarios y propicia una situación sumamente perjudicial a la administración, que no podrá proceder con el despido de un funcionario, así existan las causales, por no haber un proceso que respete la legalidad y el debido proceso. Insisten los consultantes en que el debido proceso es una garantía constitucional que se debe de respetar en cualquier procedimiento tanto administrativo como judicial, permitiendo cumplir con el derecho de defensa y las garantías procesales correspondientes, y recuerdan que dentro de los componentes esenciales del debido proceso se encuentran el derecho de audiencia, el principio probatorio y de legalidad, la doble instancia, entre otros, los cuales, estiman los consultantes, se están vulnerando en el texto del proyecto de ley. Alegan que tanto la Corte Suprema de Justicia como la Contraloría General de la República pusieron en evidencia las faltas, así como las falencias que contiene el proyecto en cuanto al procedimiento de despido de los funcionarios.

En concreto, los diputados alegan que algunas de las inconsistencias y contradicciones que se encuentran en lo relativo al procedimiento de despido, son las siguientes:

Sanción automática de inhabilitación: indican que, en el literal a) del artículo 4 se estipula el principio de Estado como Patrono único y se señala que en virtud de dicho principio las sanciones que generen el despido sin responsabilidad patronal del funcionario en una institución, de conformidad con el ordenamiento jurídico vigente, impedirán a cualquier otra entidad u órgano que forme parte del Estado contratarlo por un plazo que va de seis meses a dos años; no obstante, argumentan que no se señala la forma en que se determinará el plazo del impedimento establecido, ni el órgano competente para establecer dicho plazo. Al respecto, debe señalarse que este aspecto ya fue examinado en esta sentencia en un considerando anterior (considerando XVII), por ello se remite a lo allí indicado.

Causal de despido inmediato (dos calificaciones inferiores a 70%): indican que, en el primer párrafo del artículo 21, se establece como causal de despido inmediato el hecho de obtener dos calificaciones inferiores a 70% en la evaluación de desempeño, una vez queden en firme dichas calificaciones. Manifiestan que, además, en los párrafos segundo y tercero se establece la obligación de las instituciones de aplicar un plan remedial después de la primera calificación. Indican los consultantes que, en los tres primeros párrafos de este artículo 21, no se establecen normas procesales, sino más bien causales de despido, por lo que en realidad -en su criterio- deben de incluirse en el artículo anterior, referente al cese de empleo público. Advierten que el párrafo tercero de este artículo 21 repite la misma disposición establecida en el párrafo segundo, generando confusión, ambigüedad y posibles interpretaciones, lo que conlleva que no haya claridad en cuanto a la norma. Además, señalan que si bien ambos párrafos se refieren a la elaboración de planes remediales producto de la evaluación de desempeño, en el segundo párrafo se establece que este plan deberá ser pactado con la persona servidora pública mientras que, en el tercero, no establece esa condición. Asimismo consideran que existe una contradicción entre si debe generarse el plan remedial con la asesoría de recursos humanos o no. Al respecto, en criterio de este Tribunal, debe indicarse que, en efecto, parece que existe una confusión, en tanto que el párrafo segundo y tercero parecen replicarse, con algunas diferencias. Ahora bien, a pesar de que ello puede tratarse de una posible mala técnica legislativa, lo cierto del caso es que, para este Tribunal, ello no supone su inconstitucionalidad y, por ende, se rechaza el argumento planteado por los consultantes en cuanto a este extremo.

Plazo de 15 días o de 10 días: Indican que, en los incisos b) y c) de este artículo 21, se otorga un plazo de 15 días para que el servidor accionado se oponga al traslado de cargos; no obstante, aducen que, de manera contraria, en el inciso g) de este mismo artículo, se indica que dicho plazo es de 10 días, lo cual consideran que es una evidente contradicción en los plazos señalados para el traslado de cargos que conlleva una violación al principio de seguridad jurídica. Al respecto, para la Sala aunque se observa una posible contradicción así como una posible mala técnica legislativa, ello no supone que el texto consultado sea inconstitucional, debiendo rechazarse los argumentos planteados en este punto en concreto.

Recursos: Argumentan que el inciso i) del mismo artículo 21, establece los recursos de revocatoria y de apelación en subsidio contra la resolución que ordene la amonestación oral, la advertencia escrita o la suspensión sin goce de salario, y advierten sobre la existencia, en el expediente legislativo, de una nota suscrita por el Actuario del Tribunal de Servicio Civil, en la que se indica: "Además de la evidente contradicción entre lo que se plantea en los inciso i del artículo 22 del proyecto de ley y en la reforma que se propone al inciso i) del artículo 43 del Estatuto de Servicio Civil, en los cuales se establece el recurso de apelación para las resoluciones que ordenen la amonestación oral, la advertencia escrita y la suspensión sin goce de salario, y lo que se plantea en la reforma al artículo 75 del Estatuto de Servicio Civil en el cual se dispone en el segundo párrafo que la resolución que ordene la amonestación oral, la advertencia escrita o la suspensión sin goce de salario hasta por un mes, únicamente tendrá recurso de revocatoria." Al respecto, para este Tribunal no está claro lo consultado, ni tampoco se observa que se fundamente o se desarrolle debidamente la consulta en este punto como para comprender el alcance del cuestionamiento que se quiso plantear. En ese sentido, debe tomarse en cuenta que el proyecto no contiene una reforma al artículo 75 del Estatuto de Servicio Civil; tampoco incluye una reforma al artículo 43 de ese cuerpo normativo, sino que, por el contrario, lo que se observa a partir de la lectura completa del proyecto bajo estudio, es su derogación. Por ello, no procede entrar a examinar este aspecto consultado.

Ausencia de órgano que conocerá de apelación: Manifiesta la parte consultante que el segundo párrafo del inciso i) del artículo 21 bajo estudio, delimita la potestad del Tribunal de Servicio Civil a conocer de las apelaciones interpuestas por las personas servidoras públicas que laboran en una institución cubierta por el Estatuto de Servicio Civil (Ley n°1581); no obstante, se argumenta que no se señala en este inciso, cuál será el órgano que conocerá de las apelaciones interpuestas por las personas servidoras públicas que laboran en las instituciones que no están cubiertas por dicha ley, estimando que, una vez más, se violenta el principio de seguridad jurídica. Al respecto, este Tribunal debe manifestar que el tema planteado, sobre la falta de claridad de la norma, no es de constitucionalidad. Corresponderá al operador jurídico determinar, en cada caso, cuál norma es la aplicable a la situación concreta que se esté analizando en ese momento. En consecuencia, este alegato debe ser desestimado.

Incisos contradictorios: Aducen los diputados consultantes que el artículo 21 del proyecto de Ley bajo estudio, otorga la competencia para resolver los despidos en primera instancia, a los jerarcas institucionales y señala que el proceso de instrucción y de resolución de los despidos se realiza a lo interno de cada institución. Por su parte, añaden que el artículo 22 le otorga al Tribunal de Servicio Civil el conocimiento en segunda instancia, de las apelaciones contra las resoluciones de despido; sin embargo, aducen que se “establece un inciso que contradice todo lo anterior y dice que la primera instancia de los despidos la conoce el Tribunal, y que la instrucción la realiza la Dirección General de Servicio Civil, así mismo, se exceptúa la instrucción por parte de la Dirección General de Servicio Civil, cuando los procedimientos de despido sea contra funcionarios del Ministerio de Educación Pública (docentes o administrativos), cuando dichos funcionarios hayan incurrido en las causales del artículo 66, inciso a), del Código de la Niñez y la Adolescencia, Ley No 7739, indicándose que en estos casos la instrucción se realizará a lo interno del Ministerio de Educación Pública, según lo dispuesto en el Título II, capítulo IV, artículos 59 y siguientes del Estatuto de Servicio Civil. Esta disposición no tiene sentido si en todas las disposiciones anteriores se le otorga a los Ministros y Jerarcas institucionales, la potestad de instruir y resolver los despidos en primera instancia y al Tribunal la competencia para resolver en segunda instancia”. Al respecto, se evidencia que no está claro lo consultado, ni se fundamenta o desarrolla debidamente el agravio. Igualmente, del escrito de la consulta, no se identifica cuál es el “inciso que contradice todo lo anterior”. Una lectura general del proyecto no permite ubicar una norma como la descrita por los consultantes; y, en consecuencia, al no existir una adecuada fundamentación de la consulta en cuanto a este extremo, la Sala no se puede pronunciar al respecto.

Tribunales Administrativos del Régimen de Pensiones y Jubilaciones del Magisterio Nacional y del Servicio Civil: Consideran los consultantes que debe tomarse en consideración el estudio de las competencias y órganos encargados de resolver lo relacionado con el procedimiento de despido, en relación con lo señalado en la Ley de Creación de los Tribunales Administrativos del Régimen de Pensiones y Jubilaciones del Magisterio Nacional y del Servicio Civil (Ley n°8777 del 07 de octubre de 2009), mediante la cual se crea el Tribunal Administrativo del Servicio Civil, al que se le otorga funciones para conocer los recursos en materia de despidos de los trabajadores sujetos al régimen de empleo del Estatuto de Servicio Civil, así como los demás asuntos que por ley o reglamento deban ser conocidos por este Tribunal. Argumentan los consultantes que, a pesar de lo anterior, en el proyecto de ley bajo estudio, no se hizo una integración con aquella Ley, tampoco se otorgaron o modificaron las competencias a dicho tribunal, y esta omisión podría generar un conflicto de competencias, o bien, que ese Tribunal no tenga funciones asignadas, promoviendo una duplicidad de labores o, en el peor de los casos, un órgano con personal y recursos sin funciones. Al respecto, se observa que el proyecto en consulta, además de lo dispuesto en sus artículos 21 y 22, prevé una serie de modificaciones y reformas al Estatuto de Servicio Civil y a la citada Ley de Creación de los Tribunales Administrativos del Régimen de Pensiones y Jubilaciones del Magisterio Nacional y del Servicio Civil, al punto de variar sustancialmente el procedimiento de despido existente hasta la fecha, para los funcionarios cubiertos por dicho estatuto. Ahora bien, a pesar de lo anterior, en relación con la consulta planteada en cuanto a este extremo, la Sala observa que, no consta alguna argumentación de los consultantes, debidamente fundamentada, que relacione tales cambios con problemas de constitucionalidad; en consecuencia, ante la falta de fundamentación de este aspecto, se omite pronunciamiento al respecto.

Plazos y recursos diferentes: Se argumenta que hay plazos y recursos que se tramitan de forma diferente entre lo señalado en el proyecto de ley y la Ley n°8777 (de Creación de los Tribunales Administrativos del Régimen de Pensiones y Jubilaciones del Magisterio Nacional y del Servicio Civil). Al respecto, se observa que este punto consultado no se desarrolla ni se fundamenta debidamente, por lo que esta Sala no puede entrar a conocer el cuestionamiento.

Confusión en ámbitos de competencia: Se indica que el proyecto crea una absoluta confusión respecto del procedimiento de despido y los ámbitos de competencia en cada una de las instancias; además se señala que es evidente que el Tribunal de Servicio Civil no puede ser, por un lado, el competente para conocer de los despidos en primera instancia y, por otro lado, al que le corresponda analizar estos despidos en segunda instancia. Sobre el particular, lo consultado no se desarrolla ni se fundamenta debidamente, por ello la Sala no puede entrar a conocer de este aspecto.

Confusión entre conceptos: Se indica que el debido proceso es una garantía constitucional que se debe respetar en cualquier procedimiento, sea administrativo o judicial y en criterio de los consultantes, el procedimiento contenido en el proyecto de ley (artículos 21 y 22), lesiona lo desarrollado por la Sala Constitucional en relación con el debido proceso: en primer lugar, por violación al principio de legalidad en cuanto a los vacíos normativos y las antinomias que se generan con las contradicciones existentes y, por otro lado, por no contemplar los derechos fundamentales. Señalan en la Consulta que esto fue puesto en evidencia por la Corte Suprema de Justicia por medio del oficio N° SP-62-2021 del 3 de junio de 2021, en el cual se alertó al legislador sobre las graves deficiencias que tienen los artículos 21 y 22 del proyecto: confusión entre conceptos de caducidad y prescripción, menoscabo de la oralidad en el proceso, excepciones previas y otros. Al respecto, debe señalarse que este tema consultado no se desarrolla ni se fundamenta debidamente en el memorial de la consulta, pues los consultantes se limitan a transcribir un extracto de lo indicado en el oficio N° SP-62-2021, pero no efectúan un adecuado desarrollo argumentativo de su criterio para justificar lo que pretenden consultar. Así, tampoco puede esta Sala conocer de este punto.

Debilidades: Indican los consultantes que, la Sala Constitucional, en el voto número 1739-92, establece que existe un derecho general a la legalidad y a la justicia que se deriva del numeral 41 de la Constitución Política y manifiestan que ambos derechos constituyen condiciones sine qua non sin las cuales el debido proceso no puede llegar a desarrollarse, tanto así que cuando estos dos derechos se infringen, implican por sí una violación al debido proceso. Argumentan que, en el caso bajo estudio, el procedimiento desarrollado en el proyecto de ley (artículos 21 y 22), violenta lo señalado por la Sala Constitucional en cuanto al debido proceso, en primer lugar, por la violación al principio de legalidad en cuanto a los vacíos normativos y las antinomias que se generan con las contradicciones señaladas anteriormente y, en segundo lugar, por no contemplar derechos fundamentales en este procedimiento. Señalan los consultantes que tanto la Corte Suprema de Justicia, como la Contraloría General de la República, pusieron en evidencia debilidades, en cuanto: 1) indeterminación y/o confusión entre los conceptos de caducidad y prescripción; 2) regulación orientada a la jerarquía institucional; 3) menoscabo de la oralidad en el procedimiento; 4) medios de notificación; 5) excepciones previas; 6) segunda comparecencia; 7) elenco de sanciones; y 8) ampliación de plazos recursivos. En relación con este extremo consultado, además de que es similar al punto anterior, considera este Tribunal que tampoco se ha hecho un desarrollo adecuado ni se ha fundamentado debidamente el criterio que se pretende consultar. Obsérvese que los consultantes se limitan a hacer una mera referencia a supuestas debilidades detectadas por la Contraloría General de la República, pero no las desarrollan ni argumentan. Bajo esta situación, no podría la Sala pronunciarse y por ello se rechaza la consulta en cuanto a este extremo.

Omisiones: Se indica que el proyecto de ley es omiso en realizar las derogatorias expresas de toda la normativa vigente que contradice y recuerdan que dichas derogatorias, al tratarse de un asunto tan complejo como lo es el servicio público, son reserva de ley y no pueden quedar sujetas a la libre interpretación futura y arbitraria del operador jurídico. Al respecto, en criterio de la Sala, podría ser que lo calificado por los consultantes como “omisiones”, en realidad se deba a un problema de mala técnica legislativa, lo cual no necesariamente implica, a su vez, un problema de constitucionalidad, de modo tal que corresponderá al operador jurídico determinar las eventuales derogaciones tácitas que pudieren existir al momento de aplicar la ley, si entrara en vigencia de esta forma; en consecuencia, este extremo no implica una vulneración al Derecho de la Constitución.

• 2)Conclusión Los aspectos consultados sobre los artículos 21 y 22 del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n°21.336, no contienen violaciones al principio del debido proceso constitucional, sino que la mayoría de lo consultado al respecto, se refiere a problemas de técnica legislativa que corresponderá al legislador o al operador jurídico enmendar. Además, otros de los aspectos consultados no fueron debidamente fundamentados, por lo que esta Sala omite realizar pronunciamiento de fondo sobre ello.

XX.- Sobre la violación al principio de sostenibilidad fiscal por los permisos.- (redacta la magistrada Picado Brenes) 1) Análisis concreto de los aspectos consultados Los consultantes alegan que los artículos 39, 40, 41 y 42 del Proyecto de Ley, resultan contrarios a los artículos 11, 176, 179 y 190 de la Constitución Política, al principio de razonabilidad, a las reglas unívocas de la ciencia y la técnica, a los principios elementales de justicia, lógica y conveniencia, así como también implican una violación al principio de sostenibilidad fiscal. Estos artículos versan, respectivamente, sobre un permiso no remunerado para reducir, hasta en un tercio, la jornada laboral, para incluir el permiso de paternidad, así como también para la ampliación de la licencia de maternidad hasta por dos meses adicionales.

Conforme se desprende del proyecto de Ley bajo estudio, en síntesis, los artículos cuestionados se refieren a lo siguiente:

-Artículo 39: permiso remunerado para reducir hasta en un tercio la jornada laboral, cuando se requiera cuidar a un familiar con enfermedad o discapacidad.

-Artículo 40: permiso no remunerado para reducir hasta en un tercio la jornada laboral, cuando se requiera cuidar a un familiar con enfermedad o discapacidad.

-Artículo 41: permiso de paternidad con goce de salario por un mes.

-Artículo 42: ampliación de licencia remunerada por maternidad hasta por dos meses adicionales, cuando se presente un nacimiento prematuro, niños o niñas con discapacidad severa o enfermedad crónica, y en casos de partos múltiples.

En concreto, los diputados consultantes, plantean los siguientes alegatos:

Falta de estudio de costos: Indican que, al momento de incorporar al proyecto de ley estas licencias y permisos, no se tomó en consideración ningún estudio de costos ni fuente de recursos para cubrirlos. Al respecto, no puede perderse de vista que el legislador cuenta con un amplio margen de discrecionalidad legislativa en la formación de leyes; criterio que ha sido sostenido en reiteradas ocasiones por la Sala Constitucional, señalándose que, en principio, no resulta estrictamente necesario que todas las decisiones legislativas deban contar con estudios técnicos o financieros. Así, por ejemplo, en la sentencia n° 2018-000230 de las 10:40 horas del 10 de enero de 2018, este Tribunal señaló que: “[l]a Sala rechaza que, irremediablemente, todas las decisiones del legislador deban contemplar un estudio técnico, toda vez que dicha situación anularía la discrecionalidad del órgano legislativo, sometiéndolo al criterio de terceros que carecen de representación democrática. Los estudios técnicos son necesarios, cuando existe norma expresa al respecto (verbigracia en cuestiones ambientales) o cuando la materia los exige, so pena de transformar la discrecionalidad en arbitrariedad”. Así, no todas las decisiones del legislador deben contemplar un estudio técnico toda vez que dicha situación anularía la discrecionalidad del órgano legislativo, sometiéndolo al criterio de terceros que carecen de representación democrática, manifestándose que los estudios técnicos son necesarios cuando existe norma expresa al respecto (verbigracia en cuestiones ambientales) o cuando la materia los exige, so pena de transformar la discrecionalidad en arbitrariedad (criterio reiterado, entre otras, en la sentencia n° 2019-020596 de las 19:15 horas del 25 de octubre de 2019). En esta materia, la Sala ha hecho referencia al principio de discrecionalidad o libre configuración del legislador, mencionado en la sentencia n°2003-05090 de las 14:44 horas del 11 de junio de 2003, según el cual, la Asamblea Legislativa, en el ejercicio de su función materialmente legislativa de dictar normas de carácter general y abstracto, esto es, leyes en sentido formal y material (artículo 121, inciso 1°, de la Constitución Política), goza de una amplia libertad de conformación para desarrollar el programa constitucional fijado por el Poder Constituyente; margen de maniobra en cuanto a la materia normada que se ha denominado, también, discrecionalidad legislativa, entendida como la posibilidad que tiene ese órgano -limitado solo por el Derecho de la Constitución-, ante una necesidad determinada del cuerpo social, de escoger la solución normativa o regla de Derecho que estime más justa, adecuada e idónea para satisfacerla, todo dentro del abanico o pluralidad de opciones políticas que ofrece libremente el cuerpo electoral a través del sistema de representación legislativa (criterio reiterado, entre otras, en la sentencia n° 2016-010244 de las 09:05 horas del 20 de julio de 2016 y recientemente en la sentencia 2020-015542 de las 11:40 horas del 19 de agosto de 2020). Bajo esta perspectiva, no llevan razón los consultantes al estimar que las licencias y permisos contenidos en estos artículos 39 a 41, sean inconstitucionales por el solo hecho de que, según su dicho, no estén justificados en estudios de costos o en las correspondientes fuentes de recursos que permitan cubrirlos. Por otro lado, los consultantes no brindaron elementos de juicio suficientes que permitan afirmar que las normas consultadas ocasionan per se, un aumento de costos que pondría en riesgo las finanzas del Estado, o que se carezca de fuentes de recursos para su implementación. En razón de estas circunstancias, se rechaza el argumento que se plantea en cuanto a este extremo.

No considerar el criterio de la CCSS: Indican que, no se tomó en consideración el criterio que pudiera tener la CCSS, la cual, en casos de la licencia remunerada de maternidad, al tenor de lo señalado en el artículo 95 del Código de Trabajo debe, junto con el patrono, cubrir en partes iguales lo correspondiente al pago de la licencia. Alegan los consultantes que esto constituye una violación al artículo 189 de la Constitución Política, pues podría conllevar una violación a la autonomía administrativa y financiera de la CCSS. Al respecto, en criterio de la Sala, si bien es cierto el proyecto de ley, al modificar el término de la licencia de maternidad o al crear el permiso de paternidad, eventualmente podría afectar a nivel funcional y financiero a esta institución autónoma, también es lo cierto que, el criterio de la CCSS fue solicitado. Sobre el particular, debe tenerse en cuenta que el artículo 190 de la Constitución Política establece que “Para la discusión y aprobación de proyectos relativos a una institución autónoma, la Asamblea Legislativa oirá previamente la opinión de aquélla”; por su parte, la Sala Constitucional al interpretar ese numeral ha señalado que la consulta ahí establecida, deberá hacerse cuando el proyecto de ley en cuestión, afecte las competencias esenciales de instituciones autónomas, lo que no significa que todo proyecto de ley o cualquier modificación relacionada con una institución autónoma mediante un proyecto de ley, deba ser consultado a ésta, sino, solamente, aquellos aspectos referidos a su constitución o estructura orgánica, o bien, los relativos al ámbito esencial de las competencias de las instituciones involucradas (ver sentencias nº 2020-008848 de las 9:20 horas de 13 de mayo de 2020, nº 2001-011129 de las 13:08 horas de 23 de octubre de 2001, 2014-007914 de las 9:15 horas de 6 de junio de 2014, 2012-02675 de las 11:52 horas de 24 de febrero de 2012 y 2008-004569 de las 14:30 de 26 de marzo de 2008, entre otras). Ahora bien, de la revisión del expediente legislativo N° 21.336, el Tribunal tiene por acreditado que el proyecto en cuestión sí fue debidamente consultado a las autoridades de la Caja Costarricense de Seguro Social en varias oportunidades, y se tiene que, por oficio N° SJD-885-2019 de 5 de julio de 2019, la Junta Directiva de la Caja Costarricense de Seguro Social remitió a la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa, el criterio solicitado a dicha institución con relación al proyecto de ley N° 21.336 (ver folio 592, Tomo 2 del expediente legislativo). Posteriormente, a folio 7602 del Tomo 28, se verifica otro criterio emitido por esa institución con relación al proyecto de ley. En consecuencia, es claro que el proyecto en su totalidad fue consultado a la Caja Costarricense de Seguro Social. La última versión del proyecto de ley en cuestión, donde se incluyen las normas aquí cuestionadas, fue consultado a la CCSS en el mes de abril del 2021, sin embargo, no consta contestación alguna de parte de esta institución. Recuérdese por demás que, corresponde al legislador valorar si lo expresado en la consulta amerita realizar un cambio en el texto del proyecto de ley. A efectos del marco constitucional lo que se verifica es la realización de la consulta obligatoria a la CCSS, siendo lo que suceda luego de ella una cuestión que trasciende el Derecho de la Constitución. Así, si lo expresado por la CCSS en la respuesta a las distintas consultas que se le hicieron fue lo suficientemente motivado sobre este punto, como para suscitar que los diputados decidan realizar un cambio en el texto o no, ello no reviste carácter constitucional. Por ello, no existe motivo para considerar que en este aspecto se haya dado una violación de orden constitucional.

Omisión de considerar la afectación a los servicios que presta la CCSS: Consideran que, tampoco se tomó en cuenta la posible afectación al funcionamiento de cada institución, así como el desempeño en la prestación de servicios que realizan, las cuales deben garantizar la continuidad y calidad del servicio público. Al respecto, aun cuando los consultantes plantean este reclamo, no observa la Sala que hayan expuesto algún tipo de argumentos que evidencien inconstitucionalidad o violación a un derecho o principio constitucional. En el fondo, considera la Sala que la oposición de los consultantes radica en que no se tomaron en cuenta criterios técnicos científicos que eventualmente pudieren haber determinado afectación en el funcionamiento y desempeño de la institución; no obstante, se recuerda lo señalado supra en el sentido de que la redacción de estas normas se ampara en el principio de discrecionalidad o libre configuración del legislador y, por ende, no se observa ninguna lesión al Derecho de la Constitución, debiendo rechazarse los cuestionamientos planteados en cuanto a este extremo. No obstante lo anterior, se hace la advertencia en cuanto a que en una de las respuestas brindadas por la CCSS sobre las consultas que se le realizaron y en relación con este tema en concreto, esta institución manifestó que al proponerse en el proyecto de ley, reducirse la jornada laboral hasta en un tercio y durante máximo un año, “su aplicación podría implicar un desmejoramiento de los servicios que brinda la institución, considerando que los servicios de salud son esenciales y para revertir esta situación se debería pagar tiempos extraordinarios para cubrir el tercio de la jornada que deja el servidor público que se acoja a este artículo, lo cual generaría un aumento en el gasto” (ver folios 610 y 611 del Tomo II del Expediente Legislativo No. 21.336). Igualmente, en lo que se refiere a las licencias tuteladas en los numerales 41 y 42 del proyecto de Ley bajo estudio, se observa que la CCSS manifestó que “no se define el financiamiento que tendría la institución para hacerle frente al pago de la ampliación de la licencia por maternidad, y en cuanto al permiso con goce de salario por paternidad, ha de tenerse que la CCSS cuenta con una licencia de seis días naturales, por lo que una ampliación de este beneficio a los funcionarios, implicaría gastos adicionales para la institución, al realizar sustituciones del personal con el fin de garantizar la continuidad de los servicios” (ver folio 611 del Tomo II del Expediente Legislativo No. 21.336). Siendo responsabilidad del legislador atender o no estos cuestionamientos, no revistiendo un tema de constitucionalidad que esta Sala examine si esos criterios fueron o no considerados en las distintas instancias parlamentarias.

Ausencia de razones objetivas o de criterios técnicos para ampliar causales de licencia de maternidad: En cuanto al artículo 42 que contempla la ampliación de la licencia de maternidad, argumentan los consultantes que se trata de un numeral que contiene una serie de supuestos en que es aplicable esa ampliación (nacimiento prematuro, niños o niñas con discapacidad severa y/o enfermedades crónicas y partos múltiples); no obstante, estiman que el proyecto no contempla las razones objetivas ni los criterios técnicos o científicos que justifiquen incluir esas causales y otras no. Al respecto, nuevamente se observa que la disconformidad radica en el ejercicio de la libre configuración o discrecionalidad del legislador y, en el fondo, la oposición de los consultantes radica de nuevo en que no se tomaron en cuenta criterios técnico-científicos para definir los supuestos bajo los cuales se podría ampliar la referida licencia. Al respecto, se debe reiterar lo indicado en la sentencia n°2018-00230 mediante la cual, la Sala Constitucional rechaza que, irremediablemente, todas las decisiones del legislador deban contemplar un estudio técnico toda vez que ello, como se ha dicho, anularía la discrecionalidad del órgano legislativo, sometiéndolo al criterio de terceros que carecen de representación democrática. En este sentido, no se acredita que, en este caso, los estudios técnicos fueran necesarios, de modo que se descarta la alegada inconstitucionalidad.

Falta de estudios técnicos en cuanto al permiso de paternidad: En cuanto al permiso de paternidad del artículo 41 del proyecto que otorga un permiso con goce de salario por un mes calendario, posterior al día del nacimiento o al momento de adopción de la persona menor de edad, los consultantes reclaman que en el expediente no se señalan -nuevamente- los estudios o criterios técnicos que indiquen el costo que tendría para el Estado el otorgamiento de este permiso ni la fuente de financiamiento. Al respecto, indiscutiblemente, en este extremo la Sala observa que los argumentos de los consultantes se reiteran en relación con lo analizado supra en el punto a); en consecuencia, se remite a lo ahí indicado y se reitera que se trata de un cuestionamiento que no tiene la virtud de vulnerar el Derecho de la Constitución, por lo que se rechaza el planteamiento formulado.

Antinomia entre los artículos 39 y 40: Alegan los consultantes una supuesta antinomia entre los artículos 39 y 40 (sobre permiso remunerado y no remunerado para reducir hasta en un tercio la jornada, por máximo un año, para cuidar a un familiar con enfermedad o discapacidad). Consideran que la norma no deja claro, para su aplicación, si el permiso corresponde ser remunerado o no, al mismo tiempo que si debe ser un accidente grave o no, estimando que esto genera inseguridad jurídica y que esas contradicciones se pueden encontrar en otras normas; por ejemplo, la reforma al artículo 7 bis del Estatuto de Servicio Civil, introducida por los incisos b) y e) del artículo 49, según los cuales no se comprende si la Dirección General de Servicio Civil es un órgano del MIDEPLAN o se mantiene en el Ministerio de la Presidencia. En cuanto a este cuestionamiento, se concluye que los argumentos en que se sustenta, no se refieren a un aspecto de constitucionalidad, sino a un tema de técnica legislativa y de calidad de la labor del legislador, lo cual debe ser enmendado en el seno de la propia Asamblea Legislativa y, por ende, el reclamo se rechaza.

• 2)Conclusión La Sala no encuentra vicios de inconstitucionalidad en los aspectos cuestionados sobre los artículos 39, 40, 41 y 42 del proyecto de ley consultado, al tratarse de un tema de discrecionalidad legislativa, al haberse cumplido con la consulta obligatoria a la CCSS y al no contarse con elementos que deban determinar que el legislador debía contar de previo, en este caso, con un estudio técnico. Además, el tema de la alegada contradicción entre los artículos 39 y 40 del proyecto, por tratarse de una posible antinomia legal, no reviste interés constitucional..." "...

XXI.- Sobre la consulta por exclusión de las empresas públicas en competencia y otras exclusiones.- (redacta magistrada Picado Brenes) 1) Aspectos consultados Consideran los consultantes que los artículos 2 y 3 del proyecto de ley, lesionan los artículos 33 y 191 de la Constitución Política, por cuanto el proyecto de ley no debería excluir a ninguna institución de su ámbito de aplicación. Indican que el Constituyente previó, de esta forma, que las relaciones entre el Estado y los funcionarios debía regirse por una única regulación y un único estatuto, de todos los funcionarios públicos, sin generar exclusiones ni ninguna diferenciación, por lo tanto, el crear estas exclusiones, vendría a producir que existan funcionarios públicos de diferente clase, al aplicarles, dependiendo de la institución en que laboren, una legislación u otra, por lo que se vulnera el espíritu del Constituyente en cuanto pretendió la eficiencia de la administración. Debe indicarse que el artículo 2 del proyecto de Ley bajo estudio, ya fue debidamente analizado en considerandos anteriores (ver considerandos IX, X, XII y XIII) y, por ello, en este punto en concreto, la Sala solo se pronunciará respecto del artículo 3 en que expresamente se regula lo relativo a las exclusiones; no obstante, para efectos de comprender la relación existente entre ambos numerales en los términos en que lo plantean los consultantes, es indispensable citar ambos:

“ARTÍCULO 2- Ámbito de cobertura Esta ley es aplicable a las personas servidoras públicas de las siguientes entidades y órganos bajo el principio de Estado como patrono único:

• a)Los Poderes de la República (Ejecutivo, Legislativo y Judicial), sus órganos auxiliares y adscritos, y el Tribunal Supremo de Elecciones (TSE), sin perjuicio del principio de separación de Poderes establecido en la Constitución Política.
• b)El sector público descentralizado institucional conformado por: las instituciones autónomas y sus órganos adscritos, incluyendo universidades estatales, la Caja Costarricense de Seguro Social (CCSS), instituciones semiautónomas y sus órganos adscritos, y las empresas públicas estatales.
• c)El sector público descentralizado territorial conformado por las municipalidades, las ligas de municipalidades, los concejos municipales de distrito y sus empresas.” “ARTÍCULO 3- Exclusiones Se excluyen del ámbito de aplicación de esta ley:
• a)Los entes públicos no estatales.
• b)Las empresas e instituciones públicas en competencia, salvo en lo relativo a las disposiciones sobre negociación colectiva.
• c)El Benemérito Cuerpo de Bomberos.” 2) Antecedentes Jurisprudenciales En un considerando anterior esta Sala hace un análisis jurisprudencial de lo que este Tribunal ha señalado en relación con la existencia o no de un solo régimen de empleo público. Para los efectos de este acápite, procede reiterar la línea jurisprudencial que ha sostenido sobre la posible existencia de regímenes diferenciados y sobre la excepción establecida en el ordinal 192 constitucional en el siguiente sentido:

“…El legislador, sin embargo, optó por regular el servicio no de modo general, sino por sectores, promulgando así el Estatuto del Servicio Civil (que se aplica a los servidores del Poder Ejecutivo) y posteriormente otros estatutos para regular la prestación de servicios en los restantes poderes del Estado y en algunas instituciones descentralizadas(…) Es obvio que en la mente del constituyente estaba la idea de que no todos los servidores públicos podían estar cubiertos por el régimen especial, pues la forma de escogencia, las especiales capacidades, las funciones de cada cargo, las relaciones confianza y dependencia no son iguales en todos los casos, de ahí que los principios derivados del artículo 192 son aplicables a ciertos funcionarios –la mayoría- no a todos. La Constitución misma señaló varios casos de funcionarios de libre escogencia y remoción como son los ministros de gobierno, los miembros de la fuerza pública, los directores de instituciones autónomas, representantes diplomáticos, y en general, "los empleados y funcionarios que ocupen cargos de confianza" (art. 140 inciso 1), dejando a la ley (Ley de Servicio Civil dice el artículo 140) la determinación de otros funcionarios, que en casos muy calificados, pudieran ser excluidos del régimen general. Esta posibilidad de excluir ciertos funcionarios la reitera el artículo 192. Se repite que la intención del constituyente fue la de que existiera una sola ley, un Estatuto, que regulara todo el servicio público. No obstante, lo importante es que se dejó al legislador ordinario, por medio de la ley, la regulación en detalle de la cobertura del régimen especial, lo cual podía hacer, como lo hizo, en leyes separadas, sin detrimento del mandato constitucional. Por vía de ley el legislador ha excluido varios casos del régimen común.”. (sentencia n°1990-1119). El énfasis no es del original.

Debido a que una de las entidades excluidas del proyecto de ley consultado es el Instituto Nacional de Seguros, resulta oportuno mencionar lo que esta Sala dijo en la sentencia n°2013-16637 sobre el empleo en dicha institución:

“Sobre esta norma en particular, la Sala ha señalado en reiterados pronunciamientos, que el Instituto Nacional de Seguros, como empresa pública del Estado que es, tiene la potestad de darse su propia organización interna, en virtud de ello, no está sujeto a lo dispuesto en el artículo 192 constitucional y por ello sus trabajadores no están adscritos al Régimen Estatutario del Servicio Civil ni al principio de la estabilidad en el empleo público. En sentencia No. 2008-11920 de las 15:11 horas del 30 de julio de 2008, reiterada recientemente en la No. 2012-4942 de las 15:39 horas del 18 de abril de 2012, este Tribunal resolvió los mismos alegatos planteados por la accionante desestimando las razones de inconstitucionalidad dadas, con las siguientes consideraciones:

“III.- Alega el accionante que de conformidad con el artículo 62 de la Constitución Política, las convenciones colectivas tienen rango y fuerza de ley, por lo que de conformidad con el principio de supremacía constitucional, su valor es inferior al de cualquier norma o principio constitucional. El artículo 7 constitucional otorga valor superior a la ley a los tratados internacionales de la O.I.T. Por su parte, el artículo 192 contiene varios principios constitucionales que deben regir la relación laboral, entre los cuales están la idoneidad y la estabilidad en el empleo; en relación con estos dos elementos, como corolario se dispone la remoción por las causales de despido justificado dispuesta por la legislación laboral y la reducción forzosa de servicios (reestructuración) sea por falta de fondos o en procura de lograr una mejor organización de dichos servicios. De ahí se desprende que por mandato constitucional la única forma para que un funcionario público sea removido de su cargo o nombramiento, es a través de causales de “despido justificado”, de conformidad con la legislación laboral del país. El accionante incurre en un error en su análisis, pues afirma que el régimen establecido a partir del artículo 191 de la Constitución Política, concretamente las condiciones indicadas en el artículo 192 constitucional para los servidores públicos -remoción por causales previstas en la legislación o por reducción forzosa de servicios-, deben ser aplicadas al Instituto Nacional de Seguros. El artículo 192 constitucional está contenido en el Título XV “El Servicio Civil”, Capítulo Único, el cual regula la relación entre el Estado y los servidores públicos con el propósito de garantizar la eficiencia de la administración. Sin embargo, y como bien lo dice el accionante, el I.N.S es una institución autónoma que goza de autonomía administrativa, lo que le otorga potestad para realizar sus competencias y atribuciones, constitucional o legalmente conferidas, las cuales presuponen la potestad de auto-administrar o disponer de sus recursos (humanos, materiales, financieros). Su condición de institución autónoma está reconocida expresamente en el artículo 189 de la Constitución Política; puede darse su propia organización interna y determinar el contenido de ésta. En razón de lo expuesto, ni el artículo 192, ni ninguno de los contenidos en el Título XV, son de aplicación al Instituto Nacional de Seguros, pues este no forma parte de los órganos que conforman la Administración Pública. Precisamente esa condición de institución autónoma ubica al I.N.S. y a sus empleados, en una situación jurídica totalmente distinta de la que tiene el Poder Ejecutivo, sus órganos y servidores públicos, quienes no están protegidos por el Estatuto del Servicio Civil y por tanto no gozan de las ventajas de esa legislación laboral, entre ellas el régimen de estabilidad de empleo. En la sentencia 2004-5960, la Sala determinó que el I.N.S. es una empresa pública-ente de derecho público, definiendo ésta como aquella que asume la forma de un ente público para desplegar un giro total o parcialmente empresarial (industria, comercio de bienes y servicios, etc.) Los servidores del I.N.S. están sometidos a un régimen privado de empleo, lo cual significa que la institución tiene la posibilidad de dirigir sus relaciones laborales según convenga a su organización, al interés público y al logro de sus objetivos. Este Tribunal ha señalado que el I.N.S. es una empresa cuya actividad es similar a la que realiza cualquier particular en cuanto vende un determinado producto. Al no realizar “gestión pública”, puede celebrar convenciones colectivas de trabajo (sentencia 4453-2000). […]

IV.- Conclusión. La potestad de auto-organización del I.N.S. deriva del artículo 189 de la Constitución Política. Se trata de una empresa pública-ente de derecho público, cuyos servidores no están cubiertos por el régimen del Servicio Civil, sino por el derecho laboral privado; por tal razón, puede suscribir convenciones colectivas. Partiendo de tales supuestos, el contenido del artículo 160 es válido desde el punto de vista constitucional, por lo que procede el rechazo por el fondo de la acción.” Igualmente oportuno resulta citar lo señalado por esta Sala en cuanto a las discusiones sobre el personal del Instituto Costarricense de Electricidad, y con mayor claridad luego de aprobada la reforma a las Telecomunicaciones, realizada en el año 2008:

“Por su parte, la autoridad recurrida alega que la Ley Nº 8660 de Fortalecimiento y Modernización de las Entidades Públicas del Sector Telecomunicaciones otorgó al ICE plena autonomía para administrar sus recursos humanos y disponer de ellos. En mérito de ello, el accionado refiere que los empleados del ICE -salvo ciertas excepciones, entre las cuales no está la tutelada- no son funcionarios públicos, por lo que les resulta aplicable el derecho laboral común. Consiguientemente, el ICE no estaba compelido a instruir un procedimiento disciplinario previo al despido de la amparada.

A efectos de resolver el sub examine y determinar si efectivamente se vulneraron los derechos fundamentales de la accionante al debido proceso y al trabajo, resulta ineludible remitirse al marco normativo que regula las relaciones laborales de los funcionarios del ICE.

Primeramente, la Ley Nº 8660 de Fortalecimiento y Modernización de las Entidades Públicas del Sector Telecomunicaciones (publicada en la Gaceta Nº 156 del 13 de agosto de 2008) estipula:

“ARTÍCULO 32.- Estatuto de personal. El ICE tendrá plena autonomía para administrar sus recursos humanos y disponer de ellos, de conformidad con la legislación laboral, el Estatuto de personal y cualquier otro instrumento negociado por el ICE con sus trabajadores. En materia de responsabilidad, sus servidores responderán conforme al Derecho público.

Se ratifican la vigencia del Estatuto de personal y la facultad del Consejo Directivo del ICE para dictar las normas y políticas que regulen las condiciones laborales, la creación de plazas, los esquemas de remuneración, las obligaciones y los derechos de los funcionarios y trabajadores del ICE. (…)

ARTÍCULO 33.- Derechos laborales y situaciones jurídicas consolidadas Ratifícanse la vigencia, la plena validez y la eficacia de los derechos laborales, las situaciones jurídicas consolidadas y los beneficios socioeconómicos que tienen y han venido recibiendo los trabajadores del ICE, conforme a su Estatuto de personal; los de Radiográfica Costarricense Sociedad Anónima (Racsa), de acuerdo con su Reglamento de trabajo, y los de la Compañía Nacional de Fuerza y Luz (CNFL), según la convención colectiva, los que se mantendrán vigentes con la promulgación de esta Ley.” (énfasis agregado) En cuanto a antecedentes históricos de dichos numerales, cabe mencionar la moción Nº 277-69 contenida en el acta legislativa Nº69. Dicha moción -rechazada finalmente- procuraba eliminar el actual artículo 33 toda vez que se consideraba sobreabundante ratificar la vigencia del Estatuto de Personal del ICE. En este sentido, la Diputada Zamora Chaves explicó “no hay nada en esta ley, por lo menos yo no lo he encontrado, que derogue el Estatuto de Personal; entonces, si no lo deroga, para qué ratificar nada; o sea, sigue vigente (…)” Por su parte, el Presidente de la Comisión replicó manifestando que “solo adicionaría que en realidad con las diferentes presiones y necesidades que se reciben de los diferentes grupos, en este tema en particular, fue una preocupación manifestada por los Sindicatos del ICE, que se hicieran expresiones de ratificación, esos enunciados de ratificación de la Ley existente, y como está existente y no se ha derogado, pues tampoco hace daño en razón a darles tranquilidad, manifestar que ahí están y que quedan ratificadas en esta Ley”.

Al tenor de lo anterior, si bien el ICE tiene plena autonomía para administrar su recurso humano, no menos cierto es que eso solo lo puede hacer conforme a la legislación laboral, el Estatuto de Personal y cualquier otro instrumento negociado por el ICE con sus trabajadores. Ergo, el Estatuto de Personal, vigente por disposición expresa de ley, se constituye como marco jurídico de referencia obligatoria a efectos de regular la administración del recurso humano, incluyendo los procedimientos de despido.” (Sentencia n°2015-7499).

En relación con el Cuerpo Benemérito de Bomberos y su personal, este Tribunal se ha pronunciado en el siguiente sentido:

“II. SOBRE EL CASO CONCRETO.- En la especie, el petente acusa que la parte recurrida dispuso despedirlo, sin indicarle las razones que motivaron el acto y en consecuencia, solicita la intervención de este Tribunal a fin de restituirlo en su puesto, toda vez que – a su juicio- dicho despido fue injustificado, en abierta lesión a sus derechos de defensa y debido proceso. Sobre el particular, es abundante la jurisprudencia de este Tribunal que establece dada la naturaleza de la parte recurrida, es posible poner término al contrato laboral sin que medie justa causa. Al respecto, mediante sentencia 2016005950 de las 9:05 horas del 4 de mayo de 2016, esta Sala resolvió:

“El artículo 1° de la Ley 8228 de 19 de marzo del 2002, “Ley del Benemérito Cuerpo de Bomberos de Costa Rica”, establece que el Cuerpo de Bomberos es un órgano desconcentrado del Instituto Nacional de Seguros. Al respecto, debe señalarse que, según lo ha establecido la jurisprudencia de este Tribunal (ver sentencias N° 2008-11920 y N° 2010-9158 referidas al INS, así como sentencias N° 00-7730, 01-244 y 01-12953 respecto de otras empresas públicas), el marco jurídico general es — en principio — el Derecho Privado, el cual es también el régimen jurídico particular de sus relaciones de empleo, donde rige la libertad de despido, si bien es aplicable el Derecho Público a los miembros del Consejo Directivo, conforme lo establece la propia normativa (artículo 26 del reglamento de la Ley del Cuerpo de Bomberos). En un asunto similar de un trabajador del INS, esta Sala resolvió:“… es posible concluir que, el Instituto Nacional de Seguros tiene la facultad, con base en el numeral 160 de cita, de poner término al contrato laboral con responsabilidad patronal, sin que medie justa causa, en el momento que lo estime necesario, sin incurrir con ello en lesión laboral alguna o bien generar un conflicto con la normativa vigente. Este Tribunal en casos similares al presente, ha considerado que se trata de relaciones laborales regidas por el derecho privado y estudiado el artículo de cita, se determina que lo ahí estipulado resulta procedente y no se halla roce alguno con los derechos fundamentales de los trabajadores de esa institución” (sentencia N° 2010-9158; véase en el mismo sentido la N° 2014-1686).”-énfasis añadido- Precedente que resulta aplicable en el caso concreto, toda vez que la Sala no encuentra motivos para variar su criterio, por lo que, cualquier controversia en cuanto al cese del amparado, deberá resolverse en la vía ordinaria correspondiente. Ergo, el recurso deviene en inadmisible.” (Sentencia n°2016-12794) 3) Análisis concreto de lo consultado Sobre el particular, en primer lugar debe decirse que, aún cuando los diputados consultantes son del criterio de que este proyecto de Ley no debería plantear las exclusiones que se hacen en ese numeral 3, esta Sala recuerda que, conforme al propio texto del artículo 192 constitucional, la doctrina nacional y lo dispuesto en los artículos 3, 111 y 112 de la Ley General de la Administración Pública, existe un grupo de trabajadores del Estado que, por la naturaleza de sus funciones o bien por el tipo de centro de trabajo en el que se desempeñan, se regulan por el régimen laboral privado, y por tanto, resultan incompatibles para ser regulados por una ley de empleo público. En segundo lugar, al observarse el ordenamiento jurídico costarricense de manera integral, lo cierto del caso es que éste permite que hayan excepciones como las que se plantean en el artículo 3 bajo estudio, con lo cual se tiene que jurídicamente sí es posible exceptuar de un régimen de empleo público a determinadas instituciones, siendo precisamente el fundamento de ello lo establecido por el Constituyente en el artículo 192 constitucional, al disponer al inicio “con las excepciones que esta Constitución y el estatuto de servicio civil determinen”; frase que, según indicó este Tribunal, “obliga a matizar las conclusiones anteriores respecto al ámbito de aplicación del régimen o estatuto de servicio civil”. Sobre el particular, la Sala ha sostenido la posible existencia de regímenes diferenciados a partir de la excepción establecida en el ordinal 192 constitucional. Tal como se indica en los votos n°2010-010713 (que se ratifica en SCV 2014-001686, 2014-002686, 2016-017418, 2016-018847, 2016-005950):

“… dado que el Instituto Nacional de Seguros actúa en ejercicio de su capacidad de derecho privado, los principios generales de la estabilidad en el empleo no le son aplicables a sus funcionarios – salvo a quienes ocupan puestos gerenciales o de fiscalización superior – razón por la cual pueden ser removidos de sus puestos sin justa causa, con responsabilidad patronal, es decir, sin alegarse en su contra la comisión de alguna falta y con el pago de la indemnización que proceda. (Subrayado no corresponde al original).

Así las cosas, y conforme lo ha reiterado este Tribunal, el propio Constituyente previó que no todos los servidores del Estado podían estar cubiertos por el régimen especial, pues la forma de escogencia, las especiales capacidades, las funciones de cada cargo, las relaciones de confianza y dependencia no son iguales en todos los casos, de ahí que los principios derivados del artículo 192 son aplicables a la mayoría de los trabajadores del Estado, pero no a todos. Desde esta perspectiva, contrario a lo afirmado por los consultantes, sí es posible establecer excepciones al ámbito de aplicación del régimen o estatuto de servicio civil; exclusión que no puede ser arbitraria y que tiene que estar debidamente justificada. Ahora bien, se observa que los consultantes cuestionan esta disposición -artículo 3 del proyecto bajo estudio- señalando, únicamente, que el mero criterio de competitividad no es suficiente para darles un trato diferenciado, pues se trata igualmente de funcionarios públicos que manejan fondos públicos y, como ellos mismos reconocen, se trata de empresas e instituciones públicas que están bajo el régimen de competencia; es decir, no están en igualdad de condiciones que las demás instituciones del Estado conforme se desprende de los artículos 3, 111 y 112 de la Ley General de la Administración Pública, cuando se refieren a los trabajadores de este tipo de empresas estatales, se rigen por el Derecho privado. Para comprender los alcances de las exclusiones del artículo 3 de cita, debe hacerse la diferenciación conceptual entre lo que dispone su inciso a) que son los entes públicos no estatales, y lo que abarca el inciso b) que se refiere a las empresas e instituciones públicas en competencia, siendo éstas respecto de las cuales los diputados consultantes plantean su cuestionamiento pues, como se señaló supra, estiman que el mero criterio de competitividad no es suficiente para darles un trato diferenciado ya que igual son funcionarios públicos que manejan fondos públicos. Los que en primer lugar están excluidos según el citado artículo 3 del proyecto bajo estudio, son los entes públicos no estatales. Estos entes tienen una naturaleza jurídica diferente del resto de instituciones del Estado. Según la doctrina se han concebido como organismos de base corporativa, constituidos a partir de un convenio o de una ley, que agrupa intereses privados, pero que son relevantes para el Estado, los cuales se financian con el aporte de sus agremiados y con contribuciones parafiscales, otros aportes directos, y en menor medida, del Estado. Por ello, su régimen jurídico es predominantemente privado, aunque están sujetos al bloque de legalidad administrativo en lo que respecta al ejercicio de las potestades de imperio que ejerce por delegación legal. En consecuencia, los entes públicos no estatales, técnicamente no pertenecen al Estado, sino que excepcionalmente ejercen función administrativa, por la cual emiten actos administrativos y son considerados parte de la Administración Pública. Fuera de esas potestades de imperio, se relacionan con otros sujetos sobre la base del principio de la autonomía de la voluntad que se rige por el derecho privado; de ahí que, sus relaciones de trabajo se han considerado de derecho privado, y por ello también resultan razonablemente exceptuados del régimen de empleo público pretendido por la Asamblea Legislativa. Tal sería el ejemplo de los colegios profesionales, definidos como entes públicos no estatales, y cuyos trabajadores se rigen por el derecho privado.

En segundo lugar, se ubica a las empresas e instituciones públicas en competencia y dentro de estas se pueden citar como ejemplos el Instituto Nacional de Seguros y el Instituto Costarricense de Electricidad, en materia de telecomunicaciones. En cuanto al primero, el INS, debe decirse que tanto en su actuación, como la relación laboral que mantiene con sus empleados, prevalece la aplicación del derecho privado, conforme la jurisprudencia supra citada. Lo anterior se justifica en tanto, para la Sala Constitucional, el Instituto Nacional de Seguros, como empresa pública tiene la potestad de darse su propia organización interna ya que no está sujeto a lo dispuesto en el artículo 192 constitucional y por ello sus trabajadores no están adscritos al Régimen Estatutario del Servicio Civil ni al principio de la estabilidad en el empleo público. Ha dicho este Tribunal sobre el particular, lo siguiente:

“(…) el I.N.S es una institución autónoma que goza de autonomía administrativa, lo que le otorga potestad para realizar sus competencias y atribuciones, constitucional o legalmente conferidas, las cuales presuponen la potestad de auto-administrar o disponer de sus recursos (humanos, materiales, financieros). Su condición de institución autónoma está reconocida expresamente en el artículo 189 de la Constitución Política; puede darse su propia organización interna y determinar el contenido de ésta. En razón de lo expuesto, ni el artículo 192, ni ninguno de los contenidos en el Título XV, son de aplicación al Instituto Nacional de Seguros, pues este no forma parte de los órganos que conforman la Administración Pública. Precisamente esa condición de institución autónoma ubica al I.N.S. y a sus empleados, en una situación jurídica totalmente distinta de la que tiene el Poder Ejecutivo, sus órganos y servidores públicos, quienes no están protegidos por el Estatuto del Servicio Civil y por tanto no gozan de las ventajas de esa legislación laboral, entre ellas el régimen de estabilidad de empleo. En la sentencia 2004-5960, la Sala determinó que el I.N.S. es una empresa pública-ente de derecho público, definiendo ésta como aquella que asume la forma de un ente público para desplegar un giro total o parcialmente empresarial (industria, comercio de bienes y servicios, etc.) Los servidores del I.N.S. están sometidos a un régimen privado de empleo, lo cual significa que la institución tiene la posibilidad de dirigir sus relaciones laborales según convenga a su organización, al interés público y al logro de sus objetivos. Este Tribunal ha señalado que el I.N.S. es una empresa cuya actividad es similar a la que realiza cualquier particular en cuanto vende un determinado producto. Al no realizar “gestión pública”, puede celebrar convenciones colectivas de trabajo (sentencia 4453-2000) (ver sentencias n°2013-16637 de las 9:20 horas de 13 de diciembre de 2013, n° 2008-11920 de las 15:11 horas del 30 de julio de 2008, reiterada en la n° 2012-4942 de las 15:39 horas del 18 de abril de 2012).

En sentido similar se pronunció la Sala respecto al Instituto Costarricense de Electricidad, en la sentencia anteriormente citada (n° 2015-7499).

Finalmente, en atención al contenido del artículo 3, se ubica al Benemérito Cuerpo de Bomberos, el cual, según la ley que lo creó n°8228, es un órgano de desconcentración máxima adscrito al Instituto Nacional de Seguros (INS), con domicilio en San José y competencia en todo el territorio nacional, para cumplir las funciones y las competencias que, en forma exclusiva, las leyes y los reglamentos le otorgan. Se le confirió personería jurídica instrumental incluso para la contratación y todo lo relativo a su personal:

“Artículo 2.- Personería jurídica El Cuerpo de Bomberos contará con personería jurídica instrumental que utilizará en los actos y contratos que adopte para cumplir los acuerdos de su consejo directivo y desempeñar las funciones que la ley indica, en materia de administración presupuestaria, de contratación administrativa, de recursos humanos, capacitación, coordinación interinstitucional, manejo de emergencias y otras competencias técnicas específicas...” “Artículo 7.- Organización El Cuerpo de Bomberos funcionará bajo la dirección superior de un Consejo Directivo del Benemérito Cuerpo de Bomberos de Costa Rica, referido en adelante como Consejo Directivo, el cual estará integrado por cinco miembros de reconocida solvencia moral, quienes elegirán de su seno, anualmente, un presidente. Tres miembros serán designados por la Junta Directiva del Instituto Nacional de Seguros y los dos restantes serán elegidos por los funcionarios del Cuerpo de Bomberos, de conformidad con el Reglamento de esta Ley. Durarán en sus cargos cinco años y podrán ser reelegidos.

La administración y representación del Cuerpo de Bomberos, recaerá en la persona del director general del Cuerpo de Bomberos, quien asumirá las funciones gerenciales de ese órgano.

El Cuerpo de Bomberos contará con las dependencias operativas, técnicas y administrativas necesarias para el fiel cumplimiento de sus cometidos públicos y dispondrá de los funcionarios necesarios para cumplir los objetivos propios de su gestión; mediante esta Ley, queda autorizado para crear puestos y habilitar las plazas vacantes.” Interesa destacar que a este artículo 7, se le adicionó el 7 bis, el cual se incorporó por la Ley 8653, Ley Reguladora del Mercado de Seguros, según dispone:

“Artículo 7 bis.- Organización, funciones, funcionamiento y dietas del Consejo Directivo A los miembros del Consejo Directivo les serán aplicables, en lo que razonablemente corresponda, y con excepción de las normas propias de la actividad aseguradora, los requisitos, las incompatibilidades y causas de cese dispuestos para los miembros de la Junta Directiva del Instituto Nacional de Seguros; además, podrán ser removidos libremente de sus puestos por la Junta Directiva del Instituto Nacional de Seguros, por mayoría de cinco de sus miembros…

La organización y el funcionamiento del Consejo Directivo se regirá, en lo aplicable, por el capítulo referente a los órganos colegiados de la Ley general de la Administración Pública , así como por lo estipulado en el Reglamento de la presente Ley.

Son funciones del Consejo Directivo del Cuerpo de Bomberos de Costa Rica:

• a)Definir y autorizar la organización del Cuerpo de Bomberos de Costa Rica, lo que incluye la creación de puestos, así como la definición y asignación de competencias de las dependencias funcionales, operativas, técnicas y administrativas, necesarias para el cumplimiento eficiente y eficaz de sus cometidos públicos.
• b)Emitir los reglamentos de organización y servicio necesarios para el adecuado desempeño de las funciones del Cuerpo de Bomberos.
• c)Nombrar, mediante concurso interno de atestados, de conformidad con la legislación aplicable al director general del Cuerpo de Bomberos. En caso de inopia dentro de la misma organización, se dispondrá la celebración de un concurso público.
• d)Remover al director general del Cuerpo de Bomberos, cumpliendo con el debido proceso.
• e)Nombrar y remover al auditor interno, de conformidad con el proceso señalado en la Ley general de control interno, N.º 8292, de 31 de julio de 2002, así como con la Ley orgánica de la Contraloría General de la República , N.º 7428, de 7 de setiembre de 1994.
• f)Emitir la normalización técnica y el ordenamiento, que serán de acatamiento obligatorio para las personas, físicas o jurídicas, así como para las entidades, públicas o privadas, en materia de seguridad, de protección contra incendio y de seguridad humana.
• g)Conocer y resolver en apelación los recursos interpuestos contra las resoluciones dictadas por el director general del Cuerpo de Bomberos. Las resoluciones del Consejo Directivo agotarán la vía administrativa.
• h)Aprobar el plan estratégico y el plan anual operativo.
• i)Acordar los presupuestos, sus modificaciones y su liquidación y remitir la documentación correspondiente a la Contraloría General de la República, para la aprobación final.
• j)Velar por el cumplimiento de las disposiciones de las autoridades de control o de carácter técnico que tengan competencia sobre el Cuerpo de Bomberos.
• k)Definir las tarifas que el Cuerpo de Bomberos cobrará por la prestación de los servicios especiales y sus variaciones, lo cual se establecerá en el Reglamento de esta Ley.
• l)Las demás funciones que disponga la ley.

Los miembros del Consejo Directivo devengarán dietas por sesión, cuyo monto será igual al cincuenta por ciento (50%) de las dietas percibidas por los miembros de la Junta Directiva del INS, excepto si son funcionarios de la misma Institución y las sesiones se lleven a cabo en horas laborales, caso en el cual no tendrán derecho a remuneración alguna.” En consonancia con lo anterior, es necesario señalar que el régimen de los bomberos cuenta con particularidades propias del tipo de función que realizan, y por eso el tema se ha regulado en el artículo 9 de la Ley del Benemérito Cuerpo de Bomberos nº 8228, según el cual:

“Artículo 9º—Régimen de los bomberos. Para el ejercicio del cargo, los bomberos serán funcionarios con la autoridad, las facultades y las atribuciones que les brindan la presente Ley, su Reglamento y la demás reglamentación emitida al efecto por el INS. El régimen disciplinario de los bomberos deberá corresponder con la naturaleza de sus funciones y la importancia de su cometido público.

El régimen laboral, la jornada de trabajo y el régimen de jubilación de los trabajadores integrantes del Cuerpo de Bomberos, deberán atender las condiciones especiales de la prestación de sus servicios y los derechos laborales incluidos en la legislación y la convención colectiva vigentes.

El Régimen de los Bomberos Voluntarios, Adscritos, Honorarios, el Régimen de los Brigadistas y otros de similar naturaleza, serán reglamentados por el INS.” Para comprender mejor las razones por las cuales el legislador ha decidido excluir al Benemérito Cuerpo de Bomberos de este proyecto de Ley bajo estudio, es necesario remontarse a la exposición de motivos del expediente legislativo n°13.574 que dio origen a la Ley 8228 del Benemérito Cuerpo de Bomberos, y de cuya lectura se desprende la consideración de que los incendios, los derrames de productos químicos tóxicos, las emergencias naturales, tecnológicas o antrópicas, producen pérdidas de vidas y daños patrimoniales cuantiosos, que repercuten en la economía, el desarrollo y la seguridad social del país, siendo por ello necesario dotar a los trabajadores de ese cuerpo, de condiciones laborales ajustadas al tipo de funciones que les corresponde realizar, y precisamente, por razones de conveniencia y oportunidad, la Ley actual le confiere al Cuerpo de Bomberos la potestad de determinar las dependencias operativas, técnicas y administrativas necesarias para el fiel cumplimiento de sus cometidos públicos, así como de los funcionarios necesarios para cumplir los objetivos propios de su gestión; quedando autorizado expresamente para crear puestos y habilitar las plazas vacantes. Este Tribunal considera que, dada la naturaleza del servicio que presta el Benemérito Cuerpo de Bomberos, irremediablemente vinculada a la atención de emergencias, se justifica que cuente con mayor agilidad en su tramitología, pero también con una regulación especial ajustada a sus condiciones de trabajo y a los aspectos técnicos así como de seguridad que requiere; motivos que fundamentan la consideración que tuvo el legislador para que esa institución haya sido exceptuada del régimen general de empleo público que se analiza en este proyecto de Ley. De plena aplicabilidad al caso concreto interesa recordar la consideración que hizo este Tribunal en relación con las condiciones especiales de jubilación de los miembros del Cuerpo de Bomberos que ingresaron con anterioridad al 15 de julio de 1992, al señalarse que:

“(…) Para este Tribunal Constitucional, ciertamente las condiciones de jubilación de los miembros del cuerpo de bomberos resulta desigual del resto de trabajadora (sic) del sector público, y aún del sector privado, sin embargo, tal desigualdad de trato no resulta arbitraria o discriminatoria, sino que está sustentada en una base objetiva, razonable y proporcionada, tal como se explica a continuación. En primer lugar, debe recordarse en qué consiste la labor del cuerpo de bomberos de Costa Rica, para comprender luego que, tal diferencia de trato, es un mecanismo ideado por el legislador y por la misma Administración, para favorecer la condición social de este tipo de trabajadores, encaminado a proteger intereses superiores basados en la solidaridad humana y en principios de justicia social como los contemplados en el propio artículo 74 de la Constitución Política. (…) La labor que realizan sus trabajadores es de gran importancia para la sociedad, pues en aras de atender situaciones de emergencia, ponen en riesgo su vida constantemente y están sometidos a condiciones laborales muy diferentes que la del resto”.

Finalmente, interesa señalar que, será el operador jurídico al que le corresponderá determinar las consecuencias derivadas de la interpretación conjunta que se realice de este artículo 3 con los numerales 3, 111 y 112 de la Ley General de la Administración Pública, toda vez que, la indicación de regulación por el régimen del derecho privado únicamente a las empresas públicas en competencia y no a todas, sería un tema de legalidad.

• 4)Conclusión En los términos indicados y conforme a la jurisprudencia constitucional, no se considera que el artículo 3 proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n°21.336 sea inconstitucional, por el hecho de realizar las exclusiones que allí se indican a las empresas públicas en competencia, a los entes públicos no estatales y al Benemérito Cuerpo de Bomberos.

XXII.- Conclusiones En cuanto a los vicios de procedimiento:

• 1)No se encuentra vicio de procedimiento sustancial en cuanto al argumento de la inadmisibilidad de la moción 138-231 y 138-250, ello por cuanto no se fundamentó en el escrito de esta consulta cuál fue la moción que la modificó y “le cayó encima”; y en cuanto a la inadmisibilidad de la moción 138-18, por cuanto se fundamentó en un hecho incierto (la probabilidad de que otra moción le cayera encima).
• 2)No se encuentra vicio de procedimiento sustancial en cuanto al argumento de la indebida acumulación de la moción 138-154 por cuando, aunque indebidamente acumulada al inicio luego el Presidente de la Asamblea la desacumula y permite su discusión separada.
• 3)No se encuentra vicio de procedimiento sustancial en cuanto al argumento de la falta de discusión de la moción 138-210 de la diputada Paola Vega, por cuanto la moción que se dice no se puso a discusión aparece con sello de retirada y con la firma de la diputada proponente.

En cuanto a los vicios de fondo:

• 1)Poder Judicial y Tribunal Supremo de Elecciones: Sobre los artículos 12 (base de datos), 13.h (familia en puestos de confianza), 15 (postulados de reclutamiento y selección), 19 (movilidad o traslados), y 31 (metodología de trabajo), consultados en cuanto al Poder Judicial y el Tribunal Supremo de Elecciones, dado que no se realiza la fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, se declara inevacuable la consulta por falta de fundamentación.
• 2)Poder Judicial: Analizados todos los aspectos consultados en cuanto al artículo 2 (inciso a), 6 (inciso b), 7 (incisos d, g y p), 9 (segundo párrafo del inciso a), 13 (inciso f), 14, 17, 18, 21 y 22, 49 (inciso b, g y h), del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, en lo que se refiere al Poder Judicial, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación al principio de separación de funciones, al principio de independencia judicial, al régimen particular de empleo del Poder Judicial y a las competencias constitucionales administrativas de la Corte Suprema de Justicia.
• 3)Tribunal Supremo de Elecciones: Analizados todos los aspectos consultados en cuanto al artículo 2 (inciso a), 6 (inciso b), 7 (incisos d, g y p), 9 (segundo párrafo del inciso a), 13 (inciso a y f), 14, 17, 18, 21 y 22, del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, en lo que se refiere al Tribunal Supremo de Elecciones, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación al principio de separación de funciones y de los artículos 9 y 99 Constitucionales.
• 4)Universidades Públicas: Sobre los artículos 11 (planificación del empleo), 15 (postulados de reclutamiento y selección) y 16 (oferta de empleo), consultados en cuanto a las Universidades Públicas, dado que no se realiza la fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, se declara inevacuable la consulta por falta de fundamentación.
• 5)Universidades Públicas: Analizados todos los aspectos consultados en cuanto al artículo 6, 7, 9 (segundo párrafo del inciso a), 13 (inciso e), 14, 17, 30 (salvo el inciso b), 31, 32, 33, 34, 37 (inciso f), del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, en cuanto a las Universidades Públicas, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación a la autonomía universitaria. Siendo constitucionales los artículos 30.b, 35 y 36 del proyecto en cuestión, por las razones ya indicadas.
• 6)Caja Costarricense de Seguro Social: Analizados todos los aspectos consultados en cuanto al artículo 2 (inciso b), 6, 7 (incisos d), 9 (segundo párrafo del inciso a), 13 (inciso b), 14, 17 y 18, del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, en cuanto a la Caja Costarricense de Seguro Social, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación a la autonomía de gobierno de la CCSS, constitucionalmente protegida (art.73 constitucional) de esta institución.
• 7)Municipalidades: Analizados todos los aspectos consultados en cuanto al artículo 2 (inciso c), 6, 7, 9 (segundo párrafo del inciso a), 13, 14, 17 y 18 del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, en cuanto a las Municipalidades, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación a la autonomía de gobierno de las municipalidades, consagrada constitucionalmente.
• 8)Instituciones autónomas: Se declara inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, en cuanto al artículo 2 inciso b) -específicamente en lo referido a “las instituciones autónomas y sus órganos adscritos, incluyendo instituciones semiautónomas y sus órganos adscritos” y los artículos 6, 7, 9, 13, 14, 17, 18, 21, 22, 24, 30 y 49 por falta de una adecuada fundamentación desde el punto de vista constitucional.
• 9)Objeción de conciencia: En cuanto al artículo 23 inciso g) del proyecto de “LEY MARCO DE EMPLEO PÚBLICO”, que se tramita en el expediente legislativo N° 21.336, referido a la objeción de conciencia, no se presentan vicios de inconstitucionalidad de fondo, porque garantiza adecuadamente el derecho a la objeción de conciencia.
• 10)Negociación colectiva: El artículo 43 no contiene vicios de constitucionalidad, en el tanto las nuevas obligaciones o derechos obtenidos al alcance de la negociación colectiva se ajusten a los principios de razonabilidad, proporcionalidad y legalidad presupuestaria, al amparo de la jurisprudencia constitucional, y siempre y cuando se trate de convenciones colectivas donde participen los empleados del Sector Público que válidamente puedan celebrar convenciones colectivas de acuerdo con la Constitución y la ley.
• 11)Denuncia de convención colectiva: El Transitorio XV referido a la denuncia de las convenciones colectivas, no resulta inconstitucional siempre y cuando se interprete en el mismo sentido que se indicó en el voto número 2018-019511 de las 21:45 horas del 23 de noviembre del 2018, es decir, en aplicación de la Constitución Política (artículos 62 y 74), los Convenios Internacionales de la Organización Internacional del Trabajo y la jurisprudencia de este Tribunal, deberá interpretarse que cada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente.
• 12)Inhabilitación: No resulta inconstitucional el artículo 4.a del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo N° 21.336. Siendo un tema que corresponderá al operador jurídico todo lo referido a aplicar el debido proceso al despido, valorar la relación existente entre el tipo de falta cometida y la sanción, o bien sobre la proporcionalidad y razonabilidad del acto administrativo sancionatorio, y determinar la norma concreta a aplicar cuando exista normativa especial en la institución en cuestión.
• 13)Salario y el principio de igualdad: Los Transitorios XI y XII no vulneran el principio de igualdad -igual salario a trabajo igual en idénticas condiciones de eficiencia-, ni el de legalidad y, por consiguiente, no resultan inconstitucionales.
• 14)Debido proceso: Los aspectos consultados sobre los artículos 21 y 22 del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n°21.336, no contienen violaciones al principio del debido proceso constitucional, sino que la mayoría de lo consultado al respecto, se refiere a problemas de técnica legislativa que corresponderá al legislador o al operador jurídico enmendar.
• 15)Permisos: La Sala no encuentra vicios de inconstitucionalidad en los aspectos cuestionados sobre los artículos 39, 40, 41 y 42 del proyecto de ley consultado, al tratarse de un tema de discrecionalidad legislativa, al haberse cumplido con la consulta obligatoria a la CCSS y al no contarse con elementos que deban determinar que el legislador debía contar de previo, en este caso, con un estudio técnico. Además, el tema de la alegada contradicción entre los artículos 39 y 40 del proyecto, por tratarse de una posible antinomia legal, no reviste interés constitucional.
• 16)Exclusiones: En los términos indicados y conforme a la jurisprudencia constitucional, no se considera que el artículo 3 proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n°21.336 sea inconstitucional, por el hecho de realizar las exclusiones que allí se indican a las empresas públicas en competencia, a los entes públicos no estatales y al Benemérito Cuerpo de Bomberos..." LBH10/22 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 8. JURISPRUDENCIA CIDH Tema: SENTENCIAS SALA CONSTITUCIONAL - CORTE IDH Subtemas:

Caso contencioso.

“…En el ámbito regional americano, estos derechos han sido objeto de pocos pronunciamientos por parte de la Corte Interamericana de Derechos Humanos (CIDH). De esta manera, el alto tribunal se ha pronunciado en relación con la libertad de conciencia y religión en el contexto de vulneraciones de los derechos humanos de las que fueron víctimas personas que ejercían actividades religiosas (Juan Gerardi vs. Guatemala 1982, Dianna Ortiz vs. Guatemala 1997, y Loren Laroye Riebe Star, Jorge Alberto Baro´n Guttlein y Rodolfo Izal Elorz vs. México 1998). Asimismo, la CIDH se ha pronunciado sobre la libertad de conciencia en relación con la censura de la exhibición de una obra cinematográfica (Olmedo Bustos y otros vs. Chile 2001). En este pronunciamiento la CIDH reconoció que el derecho a la libertad de conciencia y de religión, es sobre la tutela para que las personas conserven, cambien, profesen y divulguen su religión o sus creencias…” 17098-21 CO11/22 ... Ver más Pág. | 1 Tabla de Contenido A) CUESTIONES DE TRAMITE:

I.- De previo.- (redacta el magistrado Castillo Víquez) II.- Sobre la admisibilidad de las consultas facultativas de constitucionalidad planteadas.- 1) Sobre la admisibilidad de las consultas facultativas presentadas por los diputados (art.96.b de la Ley de la Jurisdicción Constitucional).- Razones diferentes del magistrado Rueda Leal en cuanto a la admisibilidad de la consulta del expediente n.° 21-011713-0007-CO.

Nota separada de la magistrada Garro Vargas en relación a la admisibilidad de la consulta tramitada en el expediente n°21-011713-0007-CO Razones diferentes de la magistrada Hernández López sobre la admisibilidad de la segunda consulta expediente n°21-11915-007-CO Razones diferentes de la magistrada Garro Vargas en relación a la admisibilidad de la consulta tramitada en el expediente n°21-011915-0007-CO Nota separada de la magistrada Picado Brenes en relación a la admisibilidad de la consulta formulada mediante expediente n°21-011915-0007-CO (punto 2 del Por Tanto) Voto salvado del magistrado Castillo Víquez sobre el expediente n°21-012118-0007-CO Voto salvado del magistrado Rueda Leal con respecto a la consulta formulada en el expediente n.° 21-012118-0007-CO.

Nota del Magistrado Salazar Alvarado respecto de la admisibilidad de la Consulta Legislativa.

• 2)Sobre la admisibilidad de la consulta facultativa presentada por el Presidente de la Corte Suprema de Justicia (art.96.c de la Ley de la Jurisdicción Constitucional).- (redacta el Magistrado Castillo Víquez) Voto salvado de las magistradas Garro Vargas y Picado Brenes quienes admiten la consulta (con redacción de la última) Nota del magistrado Rueda Leal con respecto a la consulta planteada en el expediente n.° 21-012714-0007-CO por la Corte Suprema de Justicia.

Nota de la magistrada Garro Vargas en relación con la admisibilidad de la consulta legislativa planteada por la Corte Suprema de Justicia III.- Sobre la denegatoria de los escritos presentados el 22, 25, 28, 29 de junio y 05, 13, 15 y 20 de julio del 2021.- IV.- Sobre el plazo para resolver esta consulta.- B) SOBRE LO CONSULTADO V.- Sobre el objeto de la consulta.- VI.- Sobre los vicios de PROCEDIMIENTO consultados.- 1) Cronología del procedimiento legislativo del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336.- 2) Sobre la jurisprudencia de esta Sala en cuanto a vicios sustanciales del procedimiento y el rechazo de mociones.- 3) Sobre lo consultado.- 4) Conclusiones VII.- Sobre los vicios de FONDO consultados y en general sobre el proyecto consultado.- VIII.- Considerando general.- (redacta el magistrado Castillo Víquez) Consideraciones particulares de la magistrada Garro Vargas sobre este considerando general Consideraciones particulares de la magistrada Picado Brenes sobre este considerando general IX.- Sobre la consulta de violación a la independencia judicial.- 1) Aspectos consultados 2) Antecedentes Jurisprudenciales sobre el Principio Constitucional de separación de poderes y el principio constitucional de independencia judicial 3) Sobre el examen del Articulado consultado Sobre el artículo 2.a (ámbito de cobertura), respecto del Poder Judicial (Redacta el magistrado Castillo Víquez) Sobre el artículo 6 (rectoría de Mideplán), respecto del Poder Judicial (Redacta el magistrado Castillo Víquez) Sobre el artículo 7 (competencias de Mideplán), respecto del Poder Judicial (Redacta el magistrado Castillo Víquez) Sobre el artículo 9.a.- Oficinas de Recursos Humanos respecto del Poder Judicial (Redacta la magistrada Picado Brenes) Sobre el artículo 13 (familias de puestos), respecto del Poder Judicial (Redacta el magistrado Castillo Víquez) Sobre el artículo 14.- Reclutamiento y selección respecto del Poder Judicial (Redacta la magistrada Picado Brenes) Sobre el artículo 17.- Personal de Alta Dirección respecto del Poder Judicial (redacta la magistrada Picado Brenes) Sobre el artículo 18.- Plazo de prueba y plazo de nombramiento de Alta Dirección respecto del Poder Judicial (redacta la magistrada Picado Brenes) Sobre el artículo 21 (régimen único de despido) y el artículo 22 (proceso de despido) respecto del Poder Judicial (redacta magistrada Picado Brenes) Sobre el artículo 49 incisos a, b, g y h (reforma a normativa) respecto del Poder Judicial (redacta magistrada Picado Brenes) 4) Conclusión X.- Sobre la consulta de violación a la independencia del Tribunal Supremo de Elecciones.- 1) Aspectos consultados 2) Antecedentes Jurisprudenciales sobre el Principio Constitucional de Separación de Poderes en cuanto al Tribunal Supremo de Elecciones 3) Sobre el examen del Articulado consultado Sobre el artículo 2.a (ámbito de cobertura) respecto del Tribunal Supremo de Elecciones (Redacta el magistrado Castillo Víquez) Sobre el artículo 6 (rectoría de Mideplán), respecto del Tribunal Supremo de Elecciones (Redacta el magistrado Castillo Víquez) Sobre el artículo 7 (competencias de Mideplán), respecto del Tribunal Supremo de Elecciones (Redacta el magistrado Castillo Víquez) Sobre el artículo 9.a.- Oficinas de Recursos Humanos respecto del Tribunal Supremo de Elecciones (Redacta la magistrada Picado Brenes) El artículo consultado establece lo siguiente:

Sobre el inciso a) del artículo 13, Familia de puestos respecto del Tribunal Supremo de Elecciones (Redacta la magistrada Picado Brenes) Sobre el inciso f) del artículo 13 (familias de puestos), respecto del Tribunal Supremo de Elecciones (Redacta el magistrado Castillo Víquez) Sobre el artículo 14.- Reclutamiento y selección respecto del Tribunal Supremo de Elecciones (Redacta la magistrada Picado Brenes) Sobre el artículo 17.- Personal de Alta Dirección respecto del Tribunal Supremo de Elecciones (redacta la magistrada Picado Brenes) Sobre el artículo 18.- Plazo de prueba y plazo de nombramiento del personal de Ata Dirección respecto del Tribunal Supremo de Elecciones (redacta la magistrada Picado Brenes) Sobre el artículo 21 (régimen único de despido) y el artículo 22 (proceso de despido) respecto del Tribunal Supremo de Elecciones (redacta la magistrada Picado Brenes) 4) Conclusión 5) Votos salvados, razones y notas sobre la consulta en cuanto al Poder Judicial y al Tribunal Supremo de Elecciones a) Nota del magistrado Rueda Leal en cuanto a la inclusión del Poder Judicial y el Tribunal Supremo de Elecciones en el numeral 2 inciso a) del proyecto consultado.

• b)Nota de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 2 inciso a) c) Nota separada de la magistrada Picado Brenes, sobre el artículo 2 inciso a) del proyecto en cuanto a la inclusión del Poder Judicial y el Tribunal Supremo de Elecciones (punto 6 del Por Tanto) d) Nota del magistrado Rueda Leal en cuanto a la aplicación del numeral 6 inciso b) del proyecto consultado al Poder Judicial y el Tribunal Supremo de Elecciones.
• e)Razones diferentes de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 6 inciso b) en cuanto somete al Poder Judicial y al Tribunal Supremo de Elecciones a la rectoría del sistema general de empleo público a cargo del Mideplán.
• f)Razones diferentes de la magistrada Picado Brenes, sobre el artículo 6 del proyecto en cuanto a la rectoría de Mideplán (punto 7 del Por Tanto) g) Razones adicionales de la magistrada de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 7 por afectar la independencia del Poder Judicial y del Tribunal Supremo de Elecciones h) Razones adicionales de la magistrada Picado Brenes, sobre el artículo 7 del proyecto en cuanto a las amplias competencias de Mideplán respecto del Poder Judicial y el Tribunal Supremo de Elecciones (punto 8 del Por Tanto) i) Nota separada de la magistrada Garro Vargas en relación con el artículo 12 respecto al Poder Judicial y el Tribunal Supremo de Elecciones j) Nota separada de la magistrada Picado Brenes, sobre el artículo 12 del proyecto en cuanto a la Base de Datos (punto 10 del Por Tanto) k) Razones diferentes de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 13 respecto al Poder Judicial y el Tribunal Supremo de Elecciones l) Razones diferentes de la magistrada Picado Brenes, sobre el artículo 13 del proyecto en cuanto a los grupos de familias de puestos del Poder Judicial y el Tribunal Supremo de Elecciones (punto 11 del por tanto) m) Nota separada de las magistradas Garro Vargas y Picado Brenes, con redacción de la última, sobre el artículo 19 del proyecto en cuanto a los Traslados o la Movilidad de puestos (punto 18 del Por Tanto) n) Nota separada de la magistrada Picado Brenes, sobre el artículo 31 del proyecto en cuanto a la Metodología de Valoración del Trabajo (punto 20 del Por Tanto) ñ) Voto salvado de los magistrados Castillo Víquez, Hernández López y Salazar Alvarado, con redacción del primero, sobre los artículos 49, inciso b o) Voto salvado del magistrado Castillo Víquez y la magistrada Hernández López, con redacción del primero, sobre los artículos 49, incisos g y h XI.- Sobre la consulta de violación a la Autonomía Universitaria.- 1) Aspectos consultados 2) Antecedentes Jurisprudenciales sobre la Autonomía Universitaria 3) Análisis concreto de lo consultado Sobre el artículo 6.- Potestad de Dirección de Mideplán respecto de las Universidades Públicas (redacta magistrado Castillo Víquez) Sobre el artículo 7.- Competencias de Mideplán respecto de las Universidades Públicas (redacta magistrado Castillo Víquez) Sobre el artículo 9.a.- Oficina de Recursos Humanos en las Universidades Públicas (redacta magistrada Picado Brenes) Sobre el artículo 13.e.- Familia de Puestos respecto de las Universidades Públicas (redacta magistrado Castillo Víquez) Sobre el artículo 14.- Reclutamiento y selección en las Universidades Públicas (redacta magistrada Picado Brenes) Sobre el artículo 17.- Puestos de Alta Dirección en las Universidades Públicas (redacta magistrada Picado Brenes) Sobre el artículo 30.- Postulados para la compensación en las Universidades Públicas (redacta magistrado Castillo Víquez) Sobre el artículo 30.b- Salario del presidente de la República como tope de salarios en las Universidades Públicas (redacta magistrado Castillo Víquez) Sobre los artículos 31, 32 y 34.- Valoración del trabajo, grados dentro de las familias de puestos y columna salarial global en las Universidades Públicas (redacta magistrado Castillo Víquez) Sobre el artículo 33.- Clasificación de puestos de trabajo en las Universidades Públicas (redacta magistrado Castillo Víquez) Sobre el artículo 35 y 36.- Régimen salarial unificado y política de remuneración en las Universidades Públicas (redacta magistrado Castillo Víquez) Sobre el artículo 37.f).- Salario global aplicado a rectores de las Universidades Públicas (redacta magistrada Picado Brenes) 4) Conclusión 5) Votos salvados, razones y notas sobre la consulta en cuanto a las Universidades Públicas a) Razones diferentes de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 6 en cuanto somete a las Universidades Públicas a la rectoría del sistema general de empleo público a cargo del Mideplán b) Razones diferentes de la magistrada Picado Brenes, sobre el artículo 6 del proyecto respecto de las Universidades Públicas en cuanto a la potestad de dirección de Mideplán (punto 23 del Por Tanto) c) Razones adicionales de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 7 por afectar la autonomía de las Universidades Públicas d) Razones adicionales de la magistrada Picado Brenes, sobre el artículo 7 del proyecto en cuanto a las amplias competencias de Mideplán respecto de las Universidades Públicas (punto 24 del Por Tanto) e) Razones adicionales de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 13 respecto de las Universidades Públicas f) Razones adicionales de la magistrada Picado Brenes, sobre el artículo 13 del proyecto en cuanto a los grupos de familias de puestos de las Universidades Públicas (punto 27 del Por Tanto) g) Nota de la magistrada Garro Vargas respecto de la inconstitucionalidad del artículo 17 aplicado al personal de alta dirección de las Universidades Públicas h) Nota de la magistrada Picado Brenes, sobre el artículo 17 del proyecto en cuanto al personal de alta dirección de las Universidades Públicas (punto 30 del Por Tanto) i) Razones diferentes de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 30 por lesionar la autonomía de las Universidades Públicas j) Razones diferentes de la magistrada Picado Brenes, sobre el artículo 30 del proyecto en cuanto a los postulados sobre la compensación respecto de las Universidades Públicas (punto 31 del Por Tanto) k) Voto salvado de las magistradas Hernández López, Garro Vargas y Picado Brenes, con redacción de la última, sobre el artículo 30 inciso b) en cuanto al tope de salario en las Universidades Públicas (punto 32 del por tanto) l) Razones diferentes de las magistradas Garro Vargas y Picado Brenes, con redacción de la segunda, sobre los artículos 31, 32 y 34 del proyecto, en cuanto a las reglas de compensación en las Universidades Públicas (punto 33 del Por Tanto) m) Razones diferentes de las magistradas Garro Vargas y Picado Brenes, con redacción de la última, sobre el artículo 33 del proyecto, en cuanto a la clasificación de puestos en las Universidades Públicas (punto 34 del Por Tanto) n) Razones diferentes de la magistrada Garro Vargas en relación con la constitucionalidad de los artículos 35 y 36 respecto de las Universidades Públicas ñ) Razones adicionales de la magistrada Picado Brenes sobre los artículos 35 y 36 del proyecto en cuanto al régimen salarial unificado y las Universidades Públicas (punto 35 del Por Tanto) XII.- Sobre la consulta de violación a la autonomía de la Caja Costarricense de Seguro Social.- 1) Aspectos consultados 2) Antecedentes Jurisprudenciales sobre la Autonomía de Gobierno de la Caja Costarricense de Seguro Social 3) Análisis concreto de lo consultado Sobre el artículo 2.b.- Ámbito de cobertura respecto de la CCSS (redacta magistrada Picado Brenes) Sobre el artículo 6.- Potestad de Dirección de Mideplán respecto de la CCSS (redacta magistrado Castillo Víquez) Sobre el artículo 7.- Competencias de Mideplán respecto de la CCSS (redacta magistrado Castillo Víquez) Sobre el artículo 9.- Oficina de Recursos Humanos en la CCSS (redacta magistrada Picado Brenes) Sobre el artículo 13.b.- Familia de Puestos respecto de la CCSS (redacta magistrado Castillo Víquez) Sobre el artículo 14.- Reclutamiento y selección en la CCSS (redacta magistrada Picado Brenes) Sobre el artículo 17.- Puestos de Alta Dirección en la CCSS (redacta magistrada Picado Brenes) Sobre el artículo 18.- Plazos del Personal de Alta Dirección en la CCSS (redacta magistrada Picado Brenes) 4) Conclusión 5) Razones y notas sobre la consulta en cuanto a la CCSS a) Nota separada del magistrado Castillo Víquez en relación con la CCSS b) Nota del magistrado Rueda Leal en cuanto a la inclusión de la Caja Costarricense de Seguro Social en el numeral 2 inciso b) del proyecto consultado c) Nota separada de la magistrada Garro Vargas en relación con el artículo 2 inciso b) y la inclusión de la Caja Costarricense de Seguro Social d) Nota separada de la magistrada Picado Brenes, sobre el artículo 2 inciso b) sobre la inclusión de la CCSS en un marco regulatorio general de empleo público (punto 37 del por tanto) e) Razones diferentes de la magistrada Garro Vargas en cuanto somete a la Caja Costarricense de Seguro Social a la rectoría del sistema general de empleo público a cargo de Mideplán prevista en el artículo 6 f) Razones diferentes de la magistrada Picado Brenes, sobre el artículo 6 del proyecto en cuanto a la rectoría de Mideplán (punto 38 del por tanto) g) Razones adicionales de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 7 por afectar la autonomía de la Caja Costarricense de Seguro Social h) Razones adicionales de la magistrada Picado Brenes, sobre el artículo 7 del proyecto en cuanto a las amplias competencias de Mideplán respecto de la CCSS (punto 39 del Por Tanto) i) Razones adicionales de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 13 respecto a la Caja Costarricense de Seguro Social j) Razones adicionales de la magistrada Picado Brenes, sobre el artículo 13 del proyecto en cuanto a los grupos de familias de puestos y la CCSS (punto 41 del Por Tanto) k) Razones adicionales de la magistrada Picado Brenes, sobre el artículo 18 del proyecto en cuanto a los plazos del personal de alta dirección en la CCSS (punto 44 del Por Tanto) XIII.- Sobre la consulta de violación a la autonomía de las Municipalidades.- 1) Aspectos consultados 2) Antecedentes Jurisprudenciales sobre la Autonomía de Gobierno de las Municipalidades 3) Análisis concreto de lo consultado Sobre el artículo 2.c.- Ámbito de cobertura respecto de las Municipalidades (redacta magistrada Picado Brenes) Sobre el artículo 6.- Potestad de Dirección de Mideplán respecto de las Municipalidades (redacta magistrado Castillo Víquez) Sobre el artículo 7.- Competencias de Mideplán respecto de las Municipalidades (redacta magistrado Castillo Víquez) Sobre el artículo 9.- Oficina de Recursos Humanos en las Municipalidades (redacta magistrada Brenes Picado) Sobre el artículo 13.- Familia de Puestos respecto de las Municipalidades (redacta magistrado Castillo Víquez) Sobre el artículo 14.- Reclutamiento y selección en las Municipalidades (redacta magistrada Picado Brenes) Sobre el artículo 17.- Puestos de Alta Dirección en las Municipalidades (redacta magistrada Picado Brenes) Sobre el artículo 18.- Plazos del Personal de Alta Dirección en las Municipalidades (redacta magistrada Picado Brenes) 4) Conclusión 5) Razones y notas sobre la consulta en cuanto a las Municipalidades a) Nota del magistrado Rueda Leal en cuanto a la inclusión de las municipalidades en el numeral 2 inciso c) del proyecto consultado.
• b)Nota separada de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 2 inciso c) c) Nota separada de la magistrada Picado Brenes, sobre el artículo 2 inciso c) del proyecto respecto de las Municipalidades en cuanto a la potestad de dirección de Mideplán (punto 45 del Por Tanto) d) Razones adicionales de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 7 por afectar la autonomía de las Municipalidades e) Razones adicionales de la magistrada Picado Brenes, sobre el artículo 7 del proyecto en cuanto a las amplias competencias de Mideplán respecto de las Municipalidades (punto 47 del Por Tanto) f) Razones adicionales de la magistrada Garro Vargas respecto de la inconstitucionalidad del artículo 9 inciso a) párrafo segundo y su aplicación a las Municipalidades g) Razones adicionales de la magistrada Picado Brenes, sobre el artículo 9 del proyecto en cuanto a las funciones de las administraciones activas respecto de las Municipalidades (punto 48 del Por Tanto) h) Razones adicionales de la magistrada Garro Vargas respecto del artículo 13 y su aplicación a los empleados municipales i) Razones adicionales de la magistrada Picado Brenes, sobre el artículo 13 del proyecto en cuanto a los grupos de familias de puestos de las Municipalidades (punto 49 del Por Tanto) j) Razones adicionales de la magistrada Picado Brenes, sobre el artículo 18 del proyecto en cuanto a los plazos del personal de alta dirección en las Municipalidades (punto 52 del Por Tanto) XIV.- Sobre la consulta de violación a la autonomía de las Instituciones Autónomas.- 1) Aspectos consultados 2) Conclusión XV.- Sobre la consulta de violación al principio de seguridad jurídica por la figura de la Objeción de Conciencia.- (redacta la Magistrada Picado Brenes) 1) Aspectos consultados 2) Antecedentes Jurisprudenciales 3) Análisis concreto de lo consultado 4) Conclusión 5) Razones diferentes e interpretación Razones diferentes del magistrado Rueda Leal en cuanto al inciso g) del artículo 23 del proyecto.

Voto salvado de la Magistrada Hernández López en cuanto al artículo 23 inciso g) del proyecto consultado.

XVI.- Sobre la consulta de violación al derecho de negociación colectiva y al derecho de sindicación.- 1) Aspectos consultados 2) Antecedentes Jurisprudenciales sobre el Derecho fundamental a la Negociación Colectiva 3) Análisis concreto de lo consultado (redacta el magistrado Castillo Víquez) 4) Conclusión 5) Razones diferentes a) Razones diferentes del magistrado Rueda Leal sobre el ordinal 43 y el Transitorio XV del proyecto.

• b)Razones diferentes de la magistrada Garro Vargas en relación con la constitucionalidad del artículo 43 c) Razones diferentes de la magistrada Picado Brenes, sobre el artículo 43 del proyecto en cuanto a las convenciones colectivas (punto 55 del Por Tanto) d) Razones diferentes de la magistrada Garro Vargas en relación con la constitucionalidad del Transitorio XV e) Razones diferentes de la magistrada Picado Brenes, sobre el Transitorio XV del proyecto en cuanto a la denuncia de las convenciones colectivas (punto 56 del Por Tanto) XVII.- Sobre la consulta planteada en cuanto a la sanción de inhabilitación genérica.- (redacta la magistrada Picado Brenes) 1) Análisis concreto de los aspectos consultados 2) Conclusión 3) Nota Nota de la magistrada Picado Brenes, sobre el artículo 4 inciso a) del proyecto referido a la sanción de inhabilitación general (punto 57 del Por Tanto) XVIII.- Sobre la consultada violación al derecho de igualdad salarial y el salario global 1) Aspectos consultados 2) Antecedentes Jurisprudenciales sobre el derecho fundamental a la igualdad de salario 3) Análisis concreto de lo consultado (redacta el magistrado Castillo Víquez) 4) Conclusión 5) Voto salvado y nota a) Voto Salvado sobre el inciso a) del Transitorio XI del proyecto sobre las reglas del salario (punto 58 del por tanto) de las Magistradas Hernández López, Garro Vargas y Picado Brenes, con redacción de la última b) Nota separada de la magistrada Garro Vargas sobre el inciso a) del Transitorio XI y XII del proyecto sobre las reglas del salario (punto 58 del por tanto) c) Nota separada de la magistrada Picado Brenes sobre el Transitorio XI y XII del proyecto sobre las reglas del salario (punto 58 del por tanto) d) Razones diferentes del magistrado Rueda Leal, en cuanto a los transitorios XI y XII consultados.

XIX.- Sobre la violación al debido proceso (proceso único de despido).- (redacta la magistrada Picado Brenes) 1) Aspectos consultados 2) Conclusión XX.- Sobre la violación al principio de sostenibilidad fiscal por los permisos.- (redacta la magistrada Picado Brenes) 1) Análisis concreto de los aspectos consultados 2) Conclusión 3) Voto salvado y Razones particulares Voto Salvado de la magistrada Garro Vargas sobre la inevacuabilidad de la consulta en relación con los artículos 39, 40, 41 y 42 del proyecto de ley (expediente 21-11915-007-CO) Razones particulares de la magistrada Picado Brenes sobre los artículos 39, 40, 41 y 42 del proyecto sobre nuevos supuestos de permisos (punto 60 del Por Tanto) XXI.- Sobre la consulta por exclusión de las empresas públicas en competencia y otras exclusiones.- (redacta magistrada Picado Brenes) 1) Aspectos consultados 2) Antecedentes Jurisprudenciales 3) Análisis concreto de lo consultado 4) Conclusión XXII.- Conclusiones XXIII.- Notas generales Notas del magistrado Castillo Víquez sobre los puntos 1, 4, 6 y 45 del Por Tanto.- Nota de la magistrada Hernández López Nota del magistrado Rueda Leal.

Nota final de la magistrada Garro Vargas.- Nota del magistrado Araya García Nota general de la magistrada Picado Brenes.- XXIV.- DOCUMENTACIÓN APORTADA AL EXPEDIENTE.

Res. Nº2021-017098 SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, a las veintitrés horas quince minutos del treinta y uno de julio del dos mil veintiuno.

Consulta legislativa facultativa de constitucionalidad interpuesta por los diputados JOSÉ MARÍA VILLALTA FLOREZ-ESTRADA, PAOLA VEGA RODRÍGUEZ, PATRICIA VILLEGAS ÁLVAREZ, WALTER MUÑOZ CÉSPEDES, WELMER RAMOS GONZÁLEZ, FRANGGI NICOLÁS SOLANO, ARACELLY SALAS EDUARTE, IVONNE ACUÑA CABRERA, FLORIA MARÍA SEGREDA SAGOT, SHIRLEY DIAZ MEJÍA, LUIS RAMÓN CARRANZA CASCANTE, KARINE NIÑO GUTIÉRREZ, DANIEL ULATE VALENCIANO, referente al proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336.

Resultando:

1.- La consulta se recibió en la Secretaría de la Sala a las 17 horas 31 minutos del 17 de junio de 2021. Los consultantes solicitan a la Sala que se pronuncie acerca de la constitucionalidad de varias normas del proyecto de ley denominado "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, debido a que fueron incluidos el Poder Judicial, el Tribunal Supremo de Elecciones, las Universidades Públicas, la Caja Costarricense de Seguro Social, las municipalidades y las instituciones autónomas y semiautónomas; dentro de su ámbito de aplicación, lo que consideran contrario a los artículos 9, 11, 33, 73, 83, 84, 85, 87, 99, 140 inciso 18, 154, 156, 168, 170 y 188 de la Constitución Política, principios constitucionales y diversos convenios internacionales. Asimismo, consultan la posible inconstitucionalidad del inciso g) del artículo 23 del proyecto en cuestión (objeción de conciencia), por violación de los principios constitucionales de legalidad y seguridad jurídica, de razonabilidad y proporcionalidad y convenios internacionales. También, cuestionan la constitucionalidad del artículo 43 y el transitorio XV, por violación del artículo 62 de la Constitución Política y el Convenio n° 98 sobre el Derecho de Sindicación y Negociación Colectiva, de la Organización Internacional de Trabajo (OIT), entre otros convenios y principios constitucionales. Señalan la posible violación a los principios de proporcionalidad y razonabilidad por la sanción de inhabilitación contenida en el inciso a) del artículo 4 del proyecto de ley consultado. Igualmente, la inconstitucionalidad del transitorio XI por violación de los artículos constitucionales 33, 57, 68 y 56 y convenios internacionales; por violentar los principios constitucionales de igualdad salarial y el principio de no discriminación salarial. Asimismo, indican aspectos de constitucionalidad del procedimiento parlamentario, reclaman la violación del derecho de enmienda, así como los principios de participación democrática y razonabilidad, debido a la forma en que se acumularon las mociones en la resolución de admisibilidad de la presidencia, así como respecto a la moción de reiteración n° 138-210 de la diputada Vega Rodríguez, pues no se puso en conocimiento del Pleno, omitiendo su posterior votación 2.- Mediante escrito presentado a las 19 horas del 17 de junio del 2021 el diputado Mario Castillo Méndez solicita se tenga por retirada su firma de la consulta presentada.

3.- Mediante escrito presentado a las 9:22 horas del 18 de junio del 2021 la diputada Zoila Rosa Volio Pacheco solicita se tenga por retirada su firma de la consulta presentada.

4.- Mediante resolución de las 13:15 horas del 18 de junio del 2021 la Presidencia de la Sala Constitucional indica que tiene por recibida la consulta legislativa presentada. Asimismo, solicita al Directorio de la Asamblea Legislativa la remisión del expediente legislativo número 21.336 o bien copia certificada del mismo. Además, advierte que el plazo que establece el artículo 101 de la Ley de la Jurisdicción Constitucional empieza a contar una vez que se tenga por recibidos los documentos solicitados.

5.- Mediante escrito presentado a las 16:47 horas del 21 de junio del 2021 el diputado Dragos Dolanescu Valenciano manifiesta que suscribe la consulta presentada.

6.- Mediante escrito presentado a las 09 horas del 22 de junio del 2021 Carlos Alberto Gómez Ramos en su calidad de Secretario General del Sindicato de la Salud y la Seguridad Social (SISSS) realiza varias consideraciones en contra del proyecto de ley consultado, indicando que contiene graves contravenciones a la Carta Magna que vulneran la autonomía de la Caja Costarricense de Seguro Social, las Universidades Públicas y el Régimen Municipal.

7.- Mediante resolución de las 11:54 horas del 25 de junio del 2021 el Presidente de la Sala Constitucional tiene por recibida copia certificada del expediente legislativo y traslada la consulta a la oficina del Magistrado Cruz Castro, a quien por turno corresponde el fondo del asunto.

8.- Mediante escrito presentado a las 11:59 horas del 25 de junio del 2021 varios diputados de la Asamblea Legislativa presentan lo que denominan “coadyuvancia pasiva” y realizan manifestaciones sobre la constitucionalidad del texto del inciso g) del artículo 23 del expediente legislativo n°21.336.

9.- El 28 de junio de 2021, el Magistrado Fernando Cruz Castro planteó gestión de inhibitoria para conocer la presente consulta.

10.- Por escrito recibido a las 11:41 horas del 28 de junio de 2021, los firmantes, quienes indican ser representantes de organizaciones sindicales y comunales y de la sociedad civil, plantean “Solicitud ante la Sala Constitucional de Parte del Pueblo de Costa Rica por Acción Popular; de Conformidad con el Artículo 9 de la Constitución Política”. Solicitan la uniforme interpretación de los principios constitucionales, así como la aplicación de los derechos y libertades fundamentales consagrados en la Constitución Política y en los instrumentos Internacionales de Derechos Humanos vigentes en Costa Rica, declarando inconstitucional el que califican como nefasto proyecto de ley de empleo público. Consideran que los Magistrados Castillo Víquez y Hernández López deben separarse del conocimiento de este proceso, por lo que solicitan su recusación.

11.- Por resolución de las 10:57 horas del 29 de junio de 2021, la Presidencia a.i de la Sala Constitucional otorgó a los Magistrados Castillo Víquez y Hernández López, término de 48 horas para referirse a la recusación planteada en su contra.

12.- Mediante escrito presentado a las 17:39 horas del 29 de junio de 2021, los diputados Wálter Muñoz Céspedes y Patricia Villegas Álvarez, manifiestan que su único apoyo a una consulta de constitucionalidad en los términos de lo establecido en el artículo 96 inciso b) de la Ley de la Jurisdicción Constitucional, sobre el proyecto de ley N° 21.336, es a la consulta tramitada bajo el expediente N° 21-011713-000-CO.

13.- Mediante escrito presentado a las 19:37 horas del 29 de junio de 2021, se recibe escrito firmado por varios diputados de la Asamblea Legislativa, rotulado: “Escrito para Mejor Resolver”, con el fin de colaborar y ayudar en la comprensión de los aspectos formulados mediante las consultas facultativas de constitucionalidad N° 21-011713-0007-CO y 21-011915-0007-CO en el marco del expediente legislativo N° 21.336. Someten a consideración de este Tribunal los argumentos jurídicos que, en su criterio fundamentan la conformidad del proyecto con el Derecho de la Constitución.

14.- Mediante escrito presentado a las 9:30 horas del 30 de junio de 2021, la diputada Sylvia Patricia Villegas Álvarez aclara que el escrito de consulta facultativa dirigido a este Tribunal, lo suscribió excepto en cuanto a los alegatos que se refieren a la objeción de conciencia.

15.- Por escrito presentado a las 9:30 horas del 30 de junio de 2021, el diputado Wálter Muñoz Céspedes aclara que el escrito de consulta facultativa dirigido a este Tribunal, lo suscribió excepto en cuanto a los alegatos que se refieren a la objeción de conciencia.

16.- Por escrito presentado a las 9:32 horas del 30 de junio de 2021, el diputado Dragos Dolanescu Valenciano manifiesta que su único apoyo a una consulta de constitucionalidad en los términos de lo establecido en el artículo 96 inciso b) de la Ley de la Jurisdicción Constitucional, sobre el proyecto de ley N° 21.336, es a la consulta tramitada bajo el expediente N° 21-011713-000-CO.

17.- Mediante escrito presentado a las 10:21 horas del 30 de junio de 2021, el Magistrado Fernando Castillo Víquez, contesta la audiencia otorgada mediante resolución de las 10:57 horas del 29 de junio de 2021. Solicita que se rechace de plano la gestión en la que se le recusa y subsidiariamente, en el caso que se admita, se declare sin lugar la recusación.

18.- Mediante oficio presentado a las 11:17 horas del 30 de junio de 2021, la Magistrada Nancy Hernández López contesta la resolución de las 10:57 horas del 29 de junio de 2021. Considera que no le asiste motivo alguno de inhibitoria o recusación en este proceso.

19.- Por escrito entregado a las 15:41 horas del 30 de junio de 2021, la diputada Shirley Díez Mejías ratifica la adhesión a la consulta facultativa interpuesta por sus compañeros y solicita que se declare que el proyecto de ley N° 21.336 es disconforme con el ordenamiento jurídico constitucional. Aclara que el otro escrito que suscribió, referente a apoyar la objeción de conciencia debe ser considerado como subsidiario y únicamente para el caso que el proyecto de ley sea hallado conforme a la Constitución Política, se mantenga incólume el tema aprobado de objeción de conciencia.

20.- Mediante escrito presentado a las 19:27 horas del 30 de junio de 2021, la diputada Paola Vega Rodríguez solicita que se le permita consultar el expediente electrónico N° 21-011713-0007-CO, en línea, para lo cual aporta su número de cédula de identidad.

21.- Por resolución de las 13:40 horas del 01 de julio de 2021, la presidencia a.i de la Sala Constitucional rechazó las gestiones de recusación planteadas en contra de los Magistrados Castillo Víquez y Hernández López.

22.- Por resolución de las 10:56 horas del 02 de julio de 2021, la presidencia de la Sala Constitucional resuelve, sobre la inhibitoria presentada, tener por separado del conocimiento de este asunto al magistrado Fernando Cruz Castro. Además, se declara habilitado para conocer del presente asunto al magistrado suplente que lo sustituya, de conformidad con el artículo 49 de la Ley Orgánica del Poder Judicial.

23.- Por voto N° 2021-015105 de las 9:15 horas del 2 de julio de 2021, se dispuso acumular la consulta legislativa N° 21-011915-0007-CO, interpuesta a las 08:11 horas del 22 de junio del 2021, por los diputados: Aracelly Salas Eduarte, Carmen Chan Mora, David Gourzong Cerdas, Erick Rodríguez Steller, María Inés Solís Quirós, Marulin Azofeifa Trejos, Oscar Cascante Cascante, Otto Roberto Vargas Víquez, Pablo Heriberto Abarca Mora, Pedro Muñoz Fonseca y Melvin Núñez Piña, a este proceso. Manifiestan que el proyecto fue aprobado en primer debate en la sesión ordinaria N° 017 del 17 de junio de 2021. Indican que el proyecto sometido a consulta contempla un ordenamiento del esquema de remuneraciones en el sector público, que tiene como elemento fundamental la implementación del denominado “salario global”. Este salario será determinado por el órgano rector, de acuerdo a una metodología de remuneración del trabajo para el servicio público, consistente en un esquema de factor de puntos en el que las puntuaciones se asignarán a los puestos de acuerdo con los análisis de los factores de riesgo relevantes. Este esquema de salario global contempla que todas las personas servidoras públicas, serán remuneradas de acuerdo con esa ley, incluidos los servidores actuales. El Transitorio XI del proyecto desarrolla las normas que regulan la aplicación de la nueva normativa a los funcionarios actuales y, al hacerlo, estiman que lesiona los artículos 11, 33, 56 y 57 de la Constitución Política. En primer lugar, el Transitorio dispone que los servidores públicos que devengan un salario menor que el que le correspondería a su categoría bajo la modalidad de salario global, continuará devengándolo hasta que el mismo iguale al que le correspondería. Esto supone que los servidores de nuevo ingreso serán remunerados bajo el esquema de salario global desde el inicio de la relación, pero los que ya laboran para la función pública, no, pese a que las funciones, responsabilidades, condiciones y otras características del puesto son iguales o similares. Así, para un puesto con idénticas condiciones, no se pagará un mismo salario. Así concebido, el Transitorio XI genera dos escalas salariales diferentes, para un mismo puesto de trabajo. El proyecto de ley en cuestión diseña un esquema salarial que no es accesible para los funcionarios públicos actuales. Esa duplicidad de regímenes para dos tipos de funcionarios, genera una clara discriminación e injusticia. La metodología basada en factores de puntos, debe tomar en consideración muchos aspectos, entre ellos, niveles requeridos de conocimiento y experiencia, margen de discrecionalidad para la toma de decisiones, complejidad del trabajo, etc. Se aspira a que el salario sea acorde con las funciones y el nivel de responsabilidad que deberá ejercer el funcionario público para ese puesto en específico. Estiman que todos los funcionarios públicos deberían ser trasladados al nuevo régimen laboral. No hacerlo, supone una violación al principio de seguridad jurídica y contradicción interna entre el Transitorio XI y el artículo 1° de la ley. Ese criterio fue recogido por el Departamento de Servicios Técnicos en el oficio AL-DEST-CJU-027-2021 del 6 de abril de 2021. En dicho oficio, se advierte que el proyecto mantiene, no solo diferencias salariales por puestos idénticos, sino varias clases de salarios. Esto lesiona el principio de igualdad salarial, desarrollado por la Sala Constitucional y la Sala Segunda de la Corte Suprema de Justicia, para apartarse del cual se requieren justificaciones objetivas y razonadas que, en este caso, no existen. La única justificación, por parte de los proponentes del Transitorio XI, alude a razones fiscales y de finanzas públicas. Los diputados consultantes cuestionan los artículos 2 y 3 del proyecto, que regulan el tema de la cobertura y las exclusiones, indicando claramente a cuáles instituciones se le aplicará la ley, cuales quedan por fuera, con lo cual contrarían el objetivo del proyecto que busca una ley marco de empleo público de carácter general. Si bien existen instituciones con una dinámica diferente y características particulares, todas son, al final, instituciones públicas donde el Estado funge como patrono único. Se excluyen a las empresas e instituciones públicas en competencia, cuando ellas también perciben y manejan fondos públicos en mayor o menor grado. No constan en el expediente, justificaciones idóneas, razonables y proporcionales para generar exclusiones del proyecto de ley. El artículo 191 constitucional demuestra que el constituyente previó que las relaciones entre el Estado y los funcionarios debía regirse por una única regulación y estatuto, sin exclusiones ni diferenciación. La posición de la Contraloría General de la República fue reafirmada por el oficio N° 77695 del 28 de mayo de 2021, que llamó la atención sobre la necesidad de que se establezcan parámetros y límites claros para su accionar en aspectos que impliquen la disposición de recursos públicos por cualquier mecanismo. Manifiestan que cuestionan los artículos 21 y 22 por la posible violación de los artículos 11, 41, 121 y 129 de la Constitución Política y los principios de defensa, razonabilidad, legalidad, debido proceso, reserva de ley y seguridad jurídica. Señalan que uno de los puntos esenciales del proyecto de ley es la reforma y modificación de los procesos de despido de los funcionarios públicos en la gestión pública. La uniformidad de un proceso de despido es necesario para la ruta del ordenamiento y la congruencia constitucional. No obstante, el procedimiento previsto en el artículo 22 del proyecto de ley, lesiona una serie de normas y principios constitucionales. El contenido de este artículo se reúne de igual forma en el artículo 49 inciso b), que refiere a una serie de reformas al estatuto del servicio civil. En la reforma al artículo 43 de la Ley N° 1581 se busca incorporar ese procedimiento de despido; sin embargo, se encuentran serias diferencias, incongruencias y contradicciones que resultan violatorias de los principios de seguridad jurídica y legalidad. Así, no existen claridad en cuanto a plazos, recepción de pruebas, derecho de defensa, entre otros. Esto fue puesto de manifiesto por el Tribunal de Servicio Civil. La redacción actual del proyecto crea una absoluta confusión en cuanto al procedimiento de despido y los ámbitos de competencia en cada una de las instancias: No puede el Tribunal de Servicio Civil tener competencia para conocer de los despidos en primera y segunda instancia, por ejemplo. El debido proceso es una garantía constitucional que se debe respetar en cualquier procedimiento, sea administrativo o judicial. El procedimiento desarrollado en el proyecto de ley, lesiona lo desarrollado por la Sala Constitucional en relación con el debido proceso, en primer lugar por violación al principio de legalidad en cuanto a los vacíos normativos y las antinomias que se generan con las contradicciones existentes y, por otro lado, por no contemplar los derechos fundamentales. Esto fue puesto en evidencia por la Corte Suprema de Justicia por medio del oficio N° SP-62-2021 del 3 de junio de 2021, mediante el cual alertan al legislador sobre las graves deficiencias que tienen los artículos 21 y 22 del proyecto: confusión entre conceptos de caducidad y prescripción, menoscabo de la oralidad en el proceso, excepciones previas y otros. Manifiestan también que los artículos 39, 40, 41 y 42 del proyecto, lesionan los artículos 11, 176, 179 y 190 de la Constitución Política, así como los principios de razonabilidad y las reglas unívocas de la ciencia y la técnica, los principios elementales de justicia, lógica y conveniencia, así como la violación al principio de sostenibilidad fiscal. Al proyecto de ley marco de empleo público, en su segundo día de mociones vía artículo 137, se le incorporaron los artículos 39, 40, 41 y 42. Estos artículos versan sobre un permiso no remunerado para reducir hasta un tercio la jornada laboral, el permiso de paternidad y la ampliación de la licencia de maternidad hasta por dos meses adicionales. La inclusión de este tipo de disposiciones se hizo sin tomar en consideración ningún estudio de costos ni fuente de recursos para cubrir los mismos. Tampoco se consideró la opinión de la Caja Costarricense de Seguro Social que, en relación con la licencia remunerada de maternidad, debe cubrir por partes iguales, junto con el patrono, el pago de la licencia. Esto lesiona el artículo 188 de la Constitución Política, pues implica una erogación de recursos importantes, tanto para el Estado como para el CCSS. Adicionalmente, al no contar con estudios técnicos ni fundamento que demuestre los efectos que podrían tener estas disposiciones, tampoco se consideró la posible afectación al funcionamiento de cada institución y la prestación de servicios. Lo mismo sucede con el permiso de paternidad. El artículo 176 de la Constitución Política, dispone que la gestión pública se conducirá de forma sostenible, transparente y responsable; sin embargo, la inclusión de estos artículos pone en evidencia una lesión al principio de responsabilidad financiera y lesiona la autonomía administrativa y financiera de la CCSS. Por otra parte, los artículos 39 y 40 se contradicen entre sí, contradicciones que se encuentran en otras disposiciones del proyecto, como sucede con el artículo 7 bis, y los incisos b) y e) del artículo 49. Agregan que los artículos 7, 12, 14, 16 y 17 lesionan los artículos 9, 156, 191 y 192 de la Constitución Política. Manifiestan que el proyecto de ley regula el tema de la rectoría del empleo público. Los constituyentes indicaron que el Estatuto del Servicio Civil regularía las relaciones entre el Estado y los servidores públicos. Si bien el proyecto busca uniformar el ordenamiento del empleo público, las competencias y atribuciones que se dan al rector de la materia, el Ministerio de Planificación, van más allá. El artículo 7 le otorga potestades excesivamente amplias, teniendo injerencia e intervención dentro de otros poderes de la república y las instituciones autónomas, como por ejemplo, definir procesos de reclutamiento, evaluación de desempeño, remuneración y dictado de disposiciones de alcance general, directrices y reglamentos de obligado acatamiento. Eso supone una violación al principio de división de poderes. Sobre este aspecto se manifestó la Corte Suprema de Justicia en el oficio N° SP-62-2021 del 3 de junio de 2021. En relación con los vicios de procedimiento, alegan que durante la tramitación del proyecto se han producido algunos, vulnerando principios como el derecho de enmienda de los y las diputadas, Así, una vez precluido el plazo para la presentación de mociones de reiteración según el artículo 138 del Reglamento de la Asamblea Legislativa, la presidencia emitió una resolución de admisibilidad y acumulación de las mociones de reiteración. Sin embargo, esta potestad se extralimitó y se produjo una indebida acumulación de mociones y diversas incongruencias en los criterios utilizados al efecto. No quedan claros los parámetros utilizados para declarar la inadmisibilidad de una moción y de otra no, pese a estar en idénticas condiciones. Se admiten mociones aprobadas en comisión, pero se rechazan otras. En la Comisión permanente ordinaria de Gobierno y Administración, por mayoría significativa de diputados, se aprobó la moción de fondo 329, la cual fue reiterada por la moción número 18 (declarada inadmisible) y en el proceso de mociones de reiteración se aprobó una moción que borró por completo el contenido pretendido y aprobado en comisión. Por tanto, de haberse admitido la moción de reiteración, como era la voluntad de los legisladores, el contenido pudo haberse resguardado en el texto. No obstante, por una interpretación extensiva y contradictoria, se declaró inadmisible y no pudo garantizarse el contenido de la misma. También, en el punto 28 de la resolución, se acumulan las mociones de reiteración 198 y 272, por estar referidas al mismo articulado, pretende modificar el párrafo final del párrafo segundo y existir una evidente conexidad con los fines pretendidos por los proponentes. Pese a ello, existe la moción 344, que busca exactamente el mismo contenido de las mociones de reiteración 198 y 72. Hay una nueva contradicción en la resolución de admisibilidad y una violación al principio de igualdad, legalidad y objetividad. La indebida acumulación supone una falta al contenido de la resolución y provoca la nulidad de la misma. La diputada Aracelly Salas Eduarte, suscribió también la consulta legislativa N°° 21-11713 0007-CO, referida al mismo proyecto de ley. Mediante escrito presentado a las 16:18 hrs. del 23 de junio, el diputado Melvin Núñez Piña, se adhirió a la presente consulta. Por escrito presentado a las 19:37 horas del 29 de junio de 2021, los diputados Laura Guido Pérez, Vita María Monge Granados, Enrique Sánchez Carballo, Nielsen Pérez Pérez, Catalina Montero Gómez, Carolina Hidalgo Herrera, Mario Castillo Méndez, Carlos Avendaño Calvo, Mileidi Alvarado Arias, Giovanni Gómez Obando, Eduardo Cruickshank Smith, Jonathan Prendas, Ignacio Alpízar Castro, Harllan Hoepelman Páez, Carlos Ricardo Benavides Jiménez, Wagner Jiménez Zúñiga, Paola Valladares Rosado, Luis Fdo. Chacón Monge, Yorleni León Marchena, Ana Lucía Delgado Orozco, Luis Antonio Aiza Campos, Silvia Hernández Sánchez, Erwen Masís Castro, María José Corrales Villalta presentan una coadyuvancia pasiva en relación con la consulta planteada.

24.- Por voto N° 2021-015137 de las 9:15 horas del 2 de julio de 2021, se dispuso acumular la consulta legislativa N° 21-012118-0007-CO, interpuesta a las 18:47 horas del 23 de junio del 2021, por los diputados: Erwen Masís Castro, Enrique Sánchez Carballo, Aida Montiel Héctor, María Monge Granados, Carolina Hidalgo Herrera, Paola Valladares Rosado, Gustavo Viales Villegas, Roberto Thompson Chacón, Jorge Fonseca Fonseca y Zoila Rosa Volio Pacheco, a este proceso. Señalan, los diputados consultantes, que el citado proyecto de ley fue aprobado, en primer debate, en la sesión ordinaria nro. 17 del Plenario Legislativo del 17 de junio de 2021. Indican que consultan sobre la inconstitucionalidad del artículo 23, inciso g), por violación de los principios constitucionales de legalidad, seguridad jurídica, razonabilidad y proporcionalidad, el Pacto Internacional de Derechos Civiles y Políticos (art. 18.3) y la Convención Americana de Derechos Humanos (artículo 12.3). Manifiestan que, en 1948, la Declaración Universal de Derechos Humanos reconoció que toda persona tiene libertad de pensamiento, de conciencia y de religión, en su artículo 18. Afirman que en tal numeral existe un reconocimiento a la capacidad individual o colectiva de expresarse libremente sobre sus creencias o religión. Añaden que el Pacto Internacional de Derechos Civiles y Políticos, adoptado en 1966, ampara y reconoce la libertad de pensamiento, conciencia y de religión de las personas, respetando las condiciones y limitaciones legales que permiten su pleno ejercicio, según lo señala su artículo 18. Indican que esa misma norma establece que el ejercicio de este derecho no puede sobreponerse a las limitaciones prescritas por la ley que sean necesarias para proteger la seguridad, el orden, la salud o la moral públicos o los derechos y libertades fundamentales de las demás personas. Por su parte, en el año de 1987, la resolución nro. 46 de la Comisión de Derechos Humanos de la Organización de la Naciones Unidas reconoció la objeción de conciencia con respecto al servicio militar. En ese caso en particular, en resguardo de los derechos humanos, la objeción de conciencia respaldó la negativa de realizar el servicio militar en virtud de la libertad de pensamiento, conciencia y religión ya reconocidas en el marco internacional proveniente del reconocimiento del derecho a negarse a prestar servicio militar para imponer el apartheid. Esta posición se reafirmó en 1989, cuando la Comisión de Derechos Humanos, por medio de la resolución 1989/59, reconoció el derecho de tener objeciones de conciencia en relación con el servicio militar como un derecho humano en apego a lo establecido por la Declaración Universal de Derechos Humanos así como el Pacto Internacional de Derechos Civiles y Políticos. A nivel internacional, los derechos humanos han reconocido y analizado el roce de la objeción de conciencia con el derecho a la salud, ante la posibilidad que el ejercicio de este derecho impida que se brinda una correcta atención sanitaria y de salud a los usuarios del servicio. El artículo 18.3 del Pacto Internacional de Derechos Civiles y Políticos, así como el artículo 12.3 de la Convención Americana de Derechos Humanos, establecen que la libertad de manifestar la propia religión y las propias creencias está sujeta únicamente a las limitaciones prescritas por la ley y que sean necesarias para proteger la seguridad, el orden, la salud o la moral públicos o los derechos o libertades de los demás. Así, debe entenderse que, para un funcionario que brinda sus servicios en el área de la salud, el ejercicio de la objeción de conciencia procede únicamente cuando esa negativa no implique una lesión a los derechos humanos de los pacientes (sean estos hombres, mujeres o niños). Específicamente, sobre el respeto de la libertad de conciencia en los profesionales en salud, la Corte Interamericana de Derechos Humanos ha resuelto que deben respetarse los derechos de sus pacientes como usuarios de un servicio público y es por este motivo que debe existir una clara manera de ejercer el derecho para evitar vulneraciones. En Costa Rica, la Sala Constitucional, mediante la resolución n° 01619-2020, ya se ha pronunciado sobre la objeción de conciencia. La Sala es consecuente con el respeto de los derechos humanos en el ejercicio del derecho de objeción de conciencia en el tanto no exista roce con otros derechos. Sobre el ejercicio de la objeción de conciencia en el ámbito jurisdiccional, en la supra citada resolución ha establecido: “IX.- Conclusión. El principio de igualdad y no discriminación es un elemento esencial del servicio público de Administración de Justicia, por lo que sus usuarios deben recibir un trato igualitario en la atención, el trámite, resolución y ejecución de los distintos asuntos que se conocen en todas las instancias judiciales. Por su parte, la mayoría del Tribunal considera que es posible ejercer el derecho a la objeción de conciencia en la función jurisdiccional -aunque en el presente caso se trata del ejercicio de una función judicial-. En estos supuestos, se concilia dos derechos fundamentales, sin embargo, no se vacía del contenido esencial al primero -igualdad y no discriminación-, toda vez que ante un caso de objeción de conciencia de un juzgador relativo a realizar el acto de matrimonio, el Consejo Superior del Poder Judicial debe adoptar todas las medidas necesarias para que el servicio público de Administración de Justicia se brinde a las parejas del mismo sexo en las mismas condiciones y tiempos de respuesta que le da a las personas heterosexuales. Finalmente, es claro que todas aquellas personas que se nombren con posterioridad a la entrada en vigor del matrimonio de personas del mismo sexo no pueden ejercer el derecho a la objeción de conciencia, pues voluntariamente han aceptado esa función al ofertar y aceptar el cargo...". Como se desprende del análisis planteado, la objeción de conciencia se entiende como un derecho (reconocido) que permite que los individuos rechacen una conducta que les está siendo exigida por ley, por razones que les sean contrarias o afecten sus creencias. A la luz del proyecto de ley en consulta, lo propuesto por el artículo 23, inciso g), del proyecto en cuestión, al incluir de manera abierta y desregulada, la posibilidad de que los funcionarios públicos puedan negarse a recibir formación técnica y capacitaciones que sean obligatorias y necesarias para el ejercicio del cargo que desempeñan con la mera comunicación mediante declaración jurada, podría considerarse un ejercicio abusivo y contrario a los derechos humanos de los demás ciudadanos. Analizando el articulado del proyecto en consulta, entran en discrepancia un cúmulo de derechos, tanto de los funcionarios como de los ciudadanos que reciben servicios de estos servidores públicos. Por medio de la resolución nro. 02965- 2020 de la Sala Constitución, se reconoce por parte de este órgano constitucional la igualdad universalidad en el trato que debe darle la administración a los usuarios. Los servicios públicos deben atender las demandas de los administrados, sin que se aleguen razones que puedan poner en riesgo el ejercicio de esos derechos frente a la administración en igualdad de condiciones sin que se impongan derechos individuales del funcionario. Los funcionarios públicos para poder ejercer sus funciones de manera proba, eficiente y efectiva ameritan necesariamente tener los conocimientos técnicos y administrativos que les permitan desempeñar sus funciones. Además, existe una obligación del Estado de capacitar a los funcionarios para que la operación estatal sea acorde a los parámetros de prestación de los servicios públicos que deben garantizarse a los ciudadanos. Es importante señalar que la necesaria capacitación de funcionarios no puede ser entendida como un adoctrinamiento o imposición de condiciones para los servidores públicos, sino que las capacitaciones se convierten en un necesario traslado o intercambio de información que debe hacerse llegar a los funcionarios para que realicen sus funciones de conformidad con las condiciones para las que han sido contratados. La capacitación de los funcionarios no solo es un derecho de ellos como funcionarios, sino que es una garantía de los ciudadanos que reciben el servicio, esto en el entendido de que si el funcionario no cuenta con los conocimientos suficientes para brindar el servicio público para el que ha sido contratado no podrá resolver o en su defecto orientar al ciudadano que recibe el servicio. Cuestionan cómo puede determinar un funcionario público, de previo a recibir una capacitación, que la misma atenta contra sus creencias o convicciones personales. Alegan que incluir la objeción de conciencia dentro de este proyecto de ley podría tornarlo inconstitucional en la medida que el Estado permitiría a funcionarios desatender el cumplimiento de potestades públicas, que son obligatorias y que alguien debe hacerlas. Afirman que la solución que ya la Sala Constitucional ha dado a este tema, como ya se mencionó, es que las jerarquías institucionales deben adoptar planes para evitar que ocurra una desatención del servicio público, porque si bien es cierto el funcionario tiene ese derecho, no puede limitarse o perjudicar al ciudadano sobre cuyo trámite un funcionario objetante se excusa de atender. Además, también este órgano constitucional ha dicho que los funcionarios cuando asumen un cargo sobre el cual deben realizar determinados actos, están obligados a cumplirlos sin derecho a objeción de conciencia, en el tanto han aceptado ejercer el cargo público conforme al derecho vigente al momento de su nombramiento. Así, debe entenderse que los funcionarios deben ejercer las funciones para las que fueron contratados cumpliendo a cabalidad con las funciones asignadas y respetando los derechos humanos inherentes a los individuos: derechos políticos, sexuales, de información, de salud y educación. El abordaje de este tema durante la tramitación del proyecto acompañado del rechazo de mociones que pretendían aclarar y delimitar el ejercicio de la objeción de conciencia para que no existieran vulneraciones a otros derechos fundamentales terminó siendo una vulneración a derechos fundamentales en sí misma. La negativa de recibir una capacitación y formarse en temas acordes con su cargo, podría vulnerar, por ejemplo, el derecho del ciudadano a recibir adecuada atención de salud, un correcto servicio de los órganos que imparten justicia o un mensaje sesgado o equivocado por parte de instituciones educativas. El considerar la objeción de conciencia como un mero trámite sin mayores condiciones y restricciones, sin ninguna seriedad técnica, solo para polemizar y polarizar a la sociedad costarricense resulta contrario a los derechos humanos reconocidos por la Corte Interamericana de Derechos Humanos, y se contrapone a la obligación que tiene el Estado y que debe garantizar esta Asamblea Legislativa sobre el resguardo de la legalidad y seguridad jurídica que deben acompañar las leyes que se emiten. En razón de los argumentos expuestos, estiman que la inclusión de la objeción de conciencia en el artículo 23, inciso g), del proyecto de ley denominado "Ley Marco de Empleo Público", expediente legislativo n° 21336, incluido en la redacción del proyecto de ley votado en primer debate, podría constituir una violación a los principios constitucionales y a los derechos humanos, razón por la cual se somete ante este Tribunal Constitucional para que en definitiva se indique si se infringe o no la Constitución Política. Mediante escrito recibido en esta Sala, a las 8:40 horas del 29 de junio de 2021, los diputados Jonathan Prendas Rodríguez, Ignacio Alpízar Castro, Marulin Azofeifa Trejos, Harllan Hoepelman Páez, Carmen Chan Mora, Nidia Céspedes Cisneros, Erick Rodríguez Steller, María Vita Monge Granados, Patricia Villegas Álvarez, Walter Muñoz Céspedes, Eduardo Cruickshank Smith y Xiomara Rodríguez Hernández indican que formulan coadyuvancia pasiva en la presente consulta.

25.- Por voto N° 2021-015240 de las 9:15 horas del 2 de julio de 2021, se dispuso acumular la consulta legislativa N° 21-012714-0007-CO, planteada a las 11:45 horas del 01 de julio del 2021, por Fernando Cruz Castro, en su condición de Presidente de la Corte Suprema de Justicia, a este proceso. Se consulta en lo que se refiere a las posibles afectaciones que podrían darse a las competencias constitucionales de esta Corte y del Poder Judicial, con motivo del contenido y efectos de su normativa, para lo cual se autorizó al Presidente de este órgano su interposición. De previo a entrar a realizar los cuestionamientos de constitucionalidad, indica que, resulta procedente hacer referencia a una serie de consideraciones de orden general conocidas en el seno de la Corte Suprema de Justicia, con motivo de la consulta constitucional planteada por la Asamblea Legislativa, con respecto a la afectación en la organización y funcionamiento del Poder Judicial, por parte del proyecto de ley en consulta. Advierte que algunos de los temas objeto de esta consulta de constitucionalidad sobre afectación a competencias constitucionales de la Corte Suprema de Justicia ya habían sido advertidos previamente a la aprobación en el primer debate del proyecto de ley; empero, la Asamblea Legislativa hizo caso omiso al respecto, como también respecto de sendas mociones tendientes a tutelar las competencias constitucionales del Poder Judicial, las cuales fueron rechazadas de manera sistemática. Refiere que el análisis planteado en su momento con motivo de la consulta respecto de la afectación y funcionamiento del Poder Judicial es un marco inicial de valoración realizado por la Corte Suprema de Justicia, mas no puede ser estimado como delimitante o exclusivo para efectos de la consulta respectiva, toda vez que se incorpora una serie de elementos valorados en la propuesta planteada y las intervenciones realizadas en la respectiva sesión en donde se aprobó la presentación de la presente consulta. En este sentido, en el análisis original con motivo de la determinación de afectación y funcionamiento del Poder Judicial, se estimó por parte del Magistrado ponente del informe respectivo y que fue acogido por la Corte Suprema de Justicia, que el proyecto plantea la incorporación del Poder Judicial dentro una normativa general de empleo público, sin tomar en cuenta su naturaleza jurídica, su conformación orgánica ni la particularidad de las funciones que desempeñan las personas servidoras en sus distintos ámbitos. En este sentido, a pesar de que se pretende incentivar la participación conjunta en algunas actividades, el Ministerio de Planificación Nacional y Política Económica (Mideplán) sigue siendo la entidad gubernamental, por ende, externa al Poder Judicial, la que abarca mayormente las competencias sobre lo que se ha denominado la "Gobernanza del Sistema General de Empleo Público", de ahí que se mantenga una clara violación al principio de independencia de Poderes o separación de poderes. En este orden de ideas se continúa desconociendo el régimen salarial particular del Poder Judicial, como sistema oficial de retribución para todos los puestos incluidos en el Manual Descriptivo de Clases del Poder Judicial, instrumento que fue elaborado por el órgano técnico correspondiente de la Corte Suprema de Justicia y aprobado por acuerdo de la Corte Plena con base en las disposiciones establecidas por la Lev Orgánica del Poder Judicial y del Estatuto de Servicio Judicial; así como en consideración a las necesidades y particularidades propias de la institución. Señala que, en este orden de ideas, el proyecto elimina las competencias de la Corte Suprema de Justicia en la materia y las traslada abiertamente al Mideplán, cuyo titular es plenamente dependiente del Presidente de la República. Resalta que, tanto el referido sistema de pago autóctono de la institución, como las regulaciones propias en materia de empleo de las personas servidoras judiciales dispuesta por la Corte Suprema de Justicia, encuentra respaldo en varias leyes, como lo son la Ley n°2422 del 11 de agosto de 1959 y sus reformas, la denominada "Ley de Salarios del Poder Judicial". En esta última ley, se establece la competencia del Departamento de Personal o Gestión Humana para elaborar y mantener al día el Manual de Clasificación de Puestos, competencia que evidentemente se vería afectada negativamente por la nueva normativa general que abarca al sector público como un todo, máxime cuando -desde el 30 de setiembre de 2019- ya esta Corte Plena había acordado trabajar en un modelo de salario global o salario único que responda a criterios técnicos, financieros y jurídicos propios de la institución. Insiste en que, además, de que los puestos por méritos a la carrera judicial, este Poder de la República comprende a las personas servidoras judiciales que conforman el Organismo de Investigación Judicial, el Ministerio Público, la Defensa Pública, entre muchas otras. Estos factores son importantes para prevenir esta fuga del talento humano y la desincentivación del ingreso de personal administrativo, técnico y profesional a la institución, que es algo que la ley promueve, pero aquí deja de lado. El proyecto elimina la injerencia del órgano constitucional de gobierno del Poder Judicial, Corte Suprema de Justicia en lo atinente a la regulación del empleo público en dicho Poder, ya que esta y la escala salarial de sus servidores pasa a ser administrada por una cartera ministerial del Poder Ejecutivo, como lo es Mideplán, con la respectiva intromisión interna en la estructura y funcionamiento exclusivos de este Poder de la República. Pide que se tome en cuenta que, la nueva escala salarial que se encuentra en gestación -ajustada técnicamente a la naturaleza del Poder Judicial- requiere de estudios aptos para definir el salario competitivo y los componentes salariales a incluir en el salario único. La modalidad de revaloración de estos puestos implica también estudios periódicos de mercado para determinar la forma en que estos puestos serán revalorados. Existe vasta jurisprudencia constitucional que advierte que el régimen salarial del Poder Judicial es único y exclusivo de Corte Plena. Advierte que la omisión de realizar una diferenciación a nivel legal y/ establecer límites entre hechos progresivos salariales, representa una aclara afectación a la independencia del Poder Judicial. Refiere que en el proyecto se mantiene el trato igualitario para personas inmersas en distintas circunstancias, con lo cual se desconoce el contenido básico de lo dispuesto en el artículo 33 de la Constitución Política. Al partirse o sugerir como premisa el salario del Presidente de la República, se deja de lado que este tiene funciones y formaciones muy diversas, lo cual genera un impacto en el salario de las demás personas funcionarias nombradas por idoneidad, como la deseabilidad del cargo con una responsabilidad no atribuida adecuadamente. Con la introducción de un capítulo referente a la evaluación del desempeño, se desconocen los esfuerzos del Poder Judicial en la creación de planes sobre este tema en concreto. Este proceso forma parte de un desarrollo evolutivo que la Dirección de Gestión Humana y Distribución inició desde el año 2012, en complemento con el planteamiento estratégico organizacional. Tal situación ha venido pasando de un enfoque tradicional de la administración de personas hacia un modelo integral de gestión del talento por competencias basado conceptualmente en un fundamento metodológico, que no se puede pretender homogenizar con el resto del Estado y bajo criterios técnicos que no comparte la fundamentación que ha venido promoviéndose. El modelo adoptado por la Dirección de Gestión Humana, se basa en el enfoque integral para la distribución del talento por competencias, el cual genera entradas v salidas en los subprocesos de pagos, selección, evaluación y capacitación; cuya base esencial se fundamenta en la descripción, clasificación y valoración de los puestos. Este ha sido un objetivo esencial para dotar al Poder Judicial de personal idóneo, así como para mantenerlo y desarrollar las competencias, habilidades y motivación suficiente para alcanzar los objetivos de esta institución. En consecuencia, el sometimiento de un cambio generaría el riesgo operativo para cumplir planes de largo plazo trazados por este Poder Judicial, en cuanto al tema estratégico de gestión del personal. Señala que, debe recordarse que, de conformidad con lo dispuesto en el artículo 156 de la Constitución Política, se le otorga un sustento constitucional a la estructura jurisdiccional del Poder Judicial, en tanto a actividad exclusivamente encomendada a este, además que se hace una previsión a otro régimen como lo es el del Servicio Civil, con el fin de que eventualmente la Ley de Carrera Administrativa y las relaciones estatutarias de otros órganos y personas funcionarias que coadyuvan en dicha función desde otros ámbitos. De una relación del mencionado 156 con el 177, también constitucional, se vislumbra una atenuación a la independencia presupuestaria que le dio el constituyente al Poder Judicial, derivado de la autonomía para ejercer exclusivamente esa función jurisdiccional, por lo que, en dichas disposiciones, debe entenderse incluido básicamente el sector de la judicatura. Lo anterior, significa que, al haber personas servidoras de este Poder de la República encargadas de ejercer una función jurisdiccional que deriva de una norma constitucional, se les debe dar un trato independiente, en razón de esa misma disposición. Indica que, otra norma a considerar para el planteamiento del tema relativo a la injerencia del Ministerio de Planificación Nacional y Política Económica y, por ende, del Poder Ejecutivo en este otro Poder de la República, es el numeral 153 de la Constitución Política, que expone que la administración de justicia mediante órganos jurisdiccionales debidamente establecidos en una función exclusiva del Poder Judicial. Ahora bien, dada la naturaleza que caracteriza al Poder Judicial como órgano constitucional complementariamente a esa exclusiva función de decidir asuntos jurisdiccionales que se someten a su conocimiento y a la dilución de funciones que permea los tres poderes de la República, artículo 9, se hace más palmaria la necesidad de evitar cualquier intromisión que por vía legal o por otro tipo, se pretenda hacer en su funcionamiento. Al ser la entidad encargada de dirimir los asuntos jurisdiccionales o judiciales, según las diferentes jurisdicciones o competencias, es indiscutible que se maneja información y datos sensibles de las personas usuarias que no deberían migrar por ser del domino de otros órganos externos, y que podría vulnerar el derecho a la intimidad de otras personas, aspecto que no se ve solventado con la simple mención a la ley 8968, Protección de la Persona Frente a los Datos Sensibles o Personales, artículo 12 del proyecto. Asimismo, al incluirse la judicatura dentro de las ocho familias a que alude el numeral 12 del proyecto, concretamente en el inciso f). se daría un roce con más normas constitucionales lo cual pone de manifiesto que, aún con mayoría calificada, el proyecto presenta, algunos vicios de inconstitucionalidad. Luego, al plantearse que el presupuesto debe ser utilizado para pagar salarios de acuerdo con criterios de Ministerio de Planificación Nacional y Política Económica, se da una incidencia nociva en la judicatura, en los impuestos al valor agregado en la judicatura. Asimismo, al incluirse en una misma familia a las personas que administran justicia junto con magistrados y magistradas del Tribunal Supremo de Elecciones, se desconocen aspectos que los diferencian como son, las naturalezas de las funciones, la cantidad operativa entre ambos tipos de personas funcionarias públicas. Las indicadas afectaciones como se indicará a continuación tienen no solo una incidencia directa en la organización v funcionamiento del Poder Judicial, sino que, en lo medular, el contenido y efectos del proyecto consultado tienen consecuencias directas en el ejercicio de competencias constitucionalmente asignadas a dicho Poder y concretamente a la Corte Suprema de Justicia. Indica que el objeto medular de la consulta es que, con la interpretación y aplicación del contenido y efectos de los siguientes artículos del proyecto en cuestión podría estarse afectando las competencias constitucionales exclusivas y excluyentes de la Corte Suprema de Justicia, respecto del gobierno del Poder Judicial, en materia de regulación, ordenamiento, dirección control de la relación de empleo de los servidores judiciales: i. Los ordinales 6 y 9, al trasladar esas competencias para ejercicio del Ministerio de Planificación Nacional y Política Económica, dependiente del Poder Ejecutivo. El proyecto, en su contenido obvia la existencia y competencias propias de la Corte Suprema de Justicia, como órgano de gobierno del Poder Judicial y, establece, por el contrario, una relación directa entre Mideplán y la Dirección de Gestión Humana del Poder Judicial. Se estima que la relación vertical y absoluta – pues denota que Mideplán emitirá directamente actos administrativos con efectos finales y firmes y reglamentos dirigidos a las oficinas de recursos humanos, incluida la Dirección de Gestión Humana del Poder Judicial-, podría presentar un roce con el derecho de la Constitución, en tanto implica una abierta injerencia del Poder Ejecutivo en las decisiones más elementales en materia de administración del personal de la judicatura, fiscales, etc; sin tomar en consideración de modo alguno el parecer de la Corte Suprema de Justicia. Conforme lo anterior, no existirá una relación de coordinación-cooperación entre Poderes, sino la imposición de las disposiciones de Mideplán a las instancias técnicas obviando la existencia de los órganos constitucionales competentes encargados del gobierno de los Poderes de República, y en el caso del Poder Judicial, de la Corte Suprema de Justicia, conforme lo establece la Constitución Política. Advierte que esas normas implican vaciar de contenido las competencias constitucionales de la Corte Suprema de Justicia en materia de gestión del empleo de los servidores judiciales y, consecuentemente de las normas de la Ley Orgánica del Poder Judicial que así disponen competencias para dicho órgano colegiado. Señala que, si bien el proyecto de ley indica al principio la frase "sin perjuicio del principio de separación de Poderes establecido en la Constitución Política", la misma se vacía de contenido si se advierte que el resto del articulado del proyecto de ley es absolutamente contradictorio con lo dispuesto. De un análisis de las normas, como se ha indicado, se evidencia que el mismo propone una relación de carácter vertical del Mideplán para con las unidades de recursos humanos y en el caso del Poder Judicial con la Dirección de Gestión Humana, obviando la Corte Suprema de Justicia como órgano de gobierno de dicho Poder a la hora de definir lo relativo a materia de empleo público. Si se lee con detenimiento los alcances del Proyecto de ley se advierte que se deja una serie de definiciones en materia de empleo público del Poder Judicial, a la concreción que realice el Mideplán mediante simple acto administrativo. La observación indicada respecto de que la frase que pretende tutelar la independencia de poderes, no fue considerada en el resto del articulado a la hora de concretar las competencias de Mideplán, fue debidamente advertida en su momento en la Comisión Legislativa respectiva, pero la moción correspondiente fue rechazada por mayoría de los diputados presentes. Advierte que la fórmula empleada por el proyecto de ley pretende copiar de alguna manera lo dispuesto en la Ley de la Administración Financiera y Presupuestos Públicos, mas, a diferencia de esta se vacía de contenido a la hora de concretar el cómo se van a hacer efectivas las relaciones intersubjetivas basadas en su contenido. En este sentido, advierte de la discusión legislativa respectiva que, en el caso del proyecto de ley consultado, se propuso una redacción similar al artículo 21 de la Ley de la Administración Financiera y Presupuestos Públicos, pero fue rechazada en su momento, lo que evidencia la falta de voluntad en establecer una mera relación de coordinación con el Poder Judicial a los efectos de la aplicación del proyecto de ley de análisis, y el objetivo de establecer una relación de dirección por parte de Mideplán, se desprende del hecho que solamente en la norma que se indicará se dio previsión de la indicada cooperación de la siguiente manera: "Los Poderes Legislativo y Judicial, el Tribunal Supremo de Elecciones, las instituciones de educación superior estatal las corporaciones municipales y las ligas de municipalidades a través de la Unión Nacional de Gobiernos Locales y las instituciones autónomas construirán conjuntamente con Mideplán, Autoridad Presupuestaria y Dirección General de Servicio Civil la respectiva columna salarial global, con base en el principio de coordinación interinstitucional". Pero, si se da una lectura integral del proyecto, se evidenciará que solamente en esa norma y solo para efectos de la columna salarial global existe la previsión de respetar el principio de separación de poderes, toda vez que en ningún otro artículo se hace la salvedad de la relación de coordinación que debe existir entre Poderes, base fundamental de la independencia judicial. No obstante, la norma anterior, debe advertirse que nuevamente la definición final de la columna salarial global quedará exclusivamente en manos de órganos del Poder Ejecutivo, en tanto que el proyecto señala: “Artículo 34- Columna salarial global. A partir de la metodología de valoración del trabajo, el Ministerio de Planificación Nacional y Política Económica (Mideplán), la Secretaría Técnica de la Autoridad Presupuestaria y la Dirección General del Servicio Civil elaborarán conjuntamente una columna salarial global. La columna iniciará secuencialmente del menor al mayor puntaje.". Así, a pesar de establecer una norma que, en principio, establece la relación de cooperación en tema de columna salarial global, se advierte que, en nada obliga a los órganos del Ministerio de la Presidencia, el Ministerio de Hacienda y Mideplán lo que indique el Poder Judicial. Y a ello se le suma, que la relación de Mideplán es con la Dirección de Gestión Humana del Poder Judicial y no con la Corte Suprema de Justicia, lo que constituiría un grave vicio de inconstitucionalidad, toda vez que Mideplán "coordinará" con la indicada Dirección la definición de columna salarial global del Poder Judicial (ver artículo 6 incisos a y b, y 9 inciso a del proyecto de ley) ignorando del todo al máximo órgano de gobierno de dicho Poder. En el caso concreto del Poder Judicial, lo pretendido con el artículo objetado del proyecto de ley, podría implicar una regresión y una afectación al principio de progresividad en el derecho que tienen todas las personas costarricenses a un Poder Judicial, no sujeto a riesgos de injerencia de otros Poderes, es decir, a la independencia judicial. Consecuentemente, sería contrario al derecho de la Constitución la regresividad en materia de independencia judicial por cualquier motivo y abrir la oportunidad de que los órganos de control de los poderes públicos puedan ser minados de alguna manera en la toma de decisiones. El objetivo del legislador fue establecer una relación estatutaria particular para las personas servidoras del Poder Judicial, con el fin de fortalecer la independencia del mismo, sin apartarse de una relación de empleo público. Con el proyecto de ley en cuestión, implicaría un vaciamiento de contenido de varias leyes y una derogatoria tácita de las competencias que la Ley Orgánica del Poder Judicial establece para los órganos de gobierno y dirección del Poder Judicial, lo cual es contrario a la triada normativa, consustancial a la independencia judicial (refiere la sentencia de esta Sala n° 2018- 19511). Complementario a lo anterior, debe tomarse en consideración que la creación del régimen único de empleo y la incorporación del Poder Judicial en el mismo, implicará la posibilidad de que Mideplán tenga injerencia en la relación de empleo de las personas servidoras judiciales pertenecientes a la judicatura, al Ministerio Público y el Organismo de Investigación Judicial. El proyecto de ley no hace ningún tipo de tratamiento particular para el Ministerio Público y el Organismo de Investigación Judicial, más bien lo incorpora en las "familias" cuyo contenido será competencia exclusiva mediante simple acto administrativo de Mideplán, derogando tácitamente las competencias establecidas en las Leyes Orgánica del Poder Judicial, Ley Orgánica del Ministerio Público y la Ley Orgánica del Organismo de Investigación Judicial. Ello supone una regresión en cuanto a la independencia que posee el Ministerio Público y el OIJ, y una abierta amenaza de que el Poder Ejecutivo asuma competencias propias de la persona a cargo de la Fiscalía General de la República y del Director o Directora del Organismo de Investigación Judicial. De esa manera, un órgano desconcentrado dependiente del Ministerio de la Presidencia, la Dirección General de la República, tendrá potestades de dirección para con la Dirección de Gestión Humana del Poder Judicial en temas relacionados con competencias, pruebas psicométricas, procesos de reclutamiento y selección del personal judicial y, en particular, de jueces y juezas, fiscales y fiscalas y agentes del Organismo de Investigación Judicial. Este proyecto de ley está trasladando competencias constitucionales en lo que corresponde al órgano de gobierno del Poder Judicial, sea la Corte Suprema de Justicia, a un simple órgano del Poder Ejecutivo, lo que se estima podría afectar la independencia judicial. ii. Señala que el ordinal 13 del proyecto en cuestión violenta la reserva de ley en materia de regulación propia del Poder Judicial prevista por la Asamblea Nacional Constituyente, al dejar al dictado de actos administrativos y reglamentos emitidos por el Ministerio de Planificación Nacional y Política Económica, dependiente del Poder Ejecutivo, la regulación de empleo del Poder Judicial fundamentalmente en lo que atañe al llenado de contenido de las indicadas "familias" a que se refiere el indicado proyecto. La regulación de las indicadas familias en el proyecto es muy pobre, por lo que se entiende que la misma se realizará por ejercicio de la potestad reglamentaria, vía reglamento e inclusive normativa de rango inferior, toda vez que la distinción implica un tratamiento singular, según el tipo de prestación de servicios de que se trate. Lo anterior, es contrario a la reserva de ley constitucional que se desprende del artículo 154 de la Constitución Política. Con lo anterior, se vacía de contenido la potestad auto normativa del Poder Judicial y se traslada la posibilidad de regulación en reglamentos autónomos hacia la adopción de reglamentos, y peor aún, de disposiciones de alcance general, directrices, circulares, manuales, y resoluciones por parte del indicado Ministerio. iii. Con la interpretación y aplicación del contenido y efectos de los artículos de este proyecto podría estarse afectando las competencias constitucionales exclusivas y excluyentes de la Corte Suprema de Justicia, respecto del gobierno del Poder Judicial, en materia de regulación, ordenamiento, dirección, control de la relación de empleo de los servidores judiciales al obviarse las mismas, al establecer una relación de dirección y de control directa entre el Ministerio de Planificación Nacional Política Económica dependiente del Poder Ejecutivo y la Dirección de Recursos Humanos del Poder Judicial. Consecuentemente el proyecto lejos de dar seguridad jurídica en materia de relación de empleo de las personas servidoras judiciales, deja al arbitrio del jerarca de turno del Mideplán, el llenar de contenido la regulación de cada una de las respectivas familias de puestos (refiere los artículos del proyecto 6, 7, 9, 11, 12, 13, 16, 17, 23, 24, 28, 30, 31, 32, 33, 34, 46, transitorio II, transitorio IV, transitorio IX, y transitorio X). iv. Por otra parte, cuestiona la constitucionalidad de que el proyecto de ley incorpora a los puestos de Dirección del Poder Judicial, incluidos los integrantes del Consejo Superior, la persona a cargo de la Fiscalía General de la República y aquella a cargo del Organismo de Investigación Judicial como puestos de "Alta Dirección Pública", bajo la injerencia abierta del Mideplán (artículos 5, 17, 18, y 24). El proyecto de ley supeditará la política de remuneraciones del Poder Judicial a una propuesta elaborada por tres órganos del Poder Ejecutivo -Dirección General de Servicio Civil, dependiente del Ministerio de la Presidencia, Autoridad Presupuestaria, dependiente del Ministerio de Hacienda y Mideplán, y a la aprobación definitiva del Consejo de Gobierno. Con lo anterior, existe una derogatoria tácita de las competencias de la Corte Suprema de Justicia en materia de definición de remuneración de las personas servidoras judiciales y una abierta injerencia del Poder Ejecutivo en las decisiones que al respecto se implementen en el Poder Judicial. Se nulifican las competencias constitucionales de la Corte Suprema de Justicia y se atribuye al Poder Ejecutivo decisiones que tienen abierto impacto en el funcionamiento del Poder Judicial. v. Indica que el proyecto de ley en cuestión (artículo 21) podría eliminar el régimen disciplinario propio del Poder Judicial y las competencias de la Corte Suprema de Justicia en la materia y en orden al ejercicio de la potestad reglamentaria respectiva. El establecimiento de un solo procedimiento administrativo para todo el sector público deroga tácitamente la normativa de la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público y la Ley Orgánica del Organismo de Investigación Judicial en materia de procedimiento sancionatorio con abierta afectación a la independencia judicial. vi. Estima que el proyecto de ley en cuestión vulnera los siguientes parámetros de constitucionalidad: artículos 152, 154 y 156 constitucionales, las sentencias de esta Sala 1993-6240 y 2018-19511, y los principios pro persona, de separación de Poderes, de coordinación armoniosa entre Poderes, de progresividad de derechos fundamentales y la independencia judicial. Algunas de las afectaciones que podría generar el proyecto de ley de consulta en cuanto a su contenido y efectos en las competencias constitucionales de la Corte Suprema de Justicia y el Poder Judicial, ya fueron previamente advertidos cuando este órgano se pronunció sobre la afectación en la organización y funcionamiento del mismo ante consulta de la Asamblea Legislativa, conforme el artículo 167 Constitucional, siendo así que este último Poder hizo caso omiso de dichas observaciones de vicios de constitucionalidad por temas de afectación a las competencias constitucionales indicadas. Señala que, de una lectura pausada del proyecto de ley, se advierte que en el tema medular de la presente consulta el mismo es impreciso y confuso en la delimitación de competencias tanto en lo técnico como en el direccionamiento político, así como en las disposiciones generales y particulares en materia de empleo público, por lo que ese solo hecho genera un riesgo de que se produzca una intromisión en diferentes ámbitos del Poder Judicial, que podrían trascender el tema inmediato de empleo público hacia el núcleo duro de la independencia judicial. El solo hecho de que mediante acto administrativo o reglamento, el Mideplán pueda imponer las regulaciones propias en materia de empleo de personas juzgadoras y fiscales, debe llamar al análisis de la incidencia de que dicho Ministerio asuma competencias del órgano constitucional Corte Suprema de Justicia con evidente riesgo de ser un instrumento hostil a la separación de Poderes y un medio en manos de un eventual Poder Ejecutivo que desee emplearla para afectar nuestro sistema democrático hacia alternativas autoritarias. Debe entenderse que la independencia judicial no solo se refiere propiamente a la independencia de criterio del juzgador, sino una serie de manifestaciones en los ámbitos administrativos, de financiamiento, de funcionamiento, ad intra y ad extra que implican necesariamente que todo órgano perteneciente a otro Poder de la República, tiene competencias acotadas a la razón de ser de su existencia y no debe emitir simples actos administrativos que desborden la misma y se inmiscuya en el ejercicio de competencias constitucionales por parte del Poder Judicial.

26.- Mediante escrito recibido a las 11:15 horas el 5 de julio de 2021, Enrique Egloff Gerli y Rigoberto Vega Arias, Presidente y Vicepresidente, respectivamente, de la Asociación Cámara de Industrias de Costa Rica, plantean coadyuvancia a la consulta de constitucionalidad que se tramita en el expediente N° 21-011713-000-CO. Solicitan que se rechace la consulta en cuanto a los alegados vicios de procedimiento y las supuestas inconstitucionalidades de los artículos 2 a), 3, 6 b), 10 a), 12, 14, 15, 16, 17, 18, 19, 43, 49 incisos g) y g) (sic), Transitorio XI y Transitorio XV, por estar tales normas ajustadas a derecho. En cuanto a la objeción de los otros artículos consultados están de acuerdo en que deben declararse inconstitucionales. Solicitan que se declare que la consulta de la Corte Plena fue presentada extemporáneamente.

27.- Por escrito recibido a las 11:21 horas del 7 de julio de 2021, la diputada Paola Valladares Rosado manifiesta que retira su firma de la Consulta Facultativa de Constitucional N° 21-12118-0007-CO.

28.- Mediante escrito incorporado al expediente electrónico a las 14:40 horas del 13 de julio de 2021, Jose Manuel Garita Herrera, en su condición de presidente de la Conferencia Episcopal Nacional de Costa Rica plantea gestión de coadyuvancia pasiva. Alega que su representada se opone a los argumentos realizados en contra del inciso g) del artículo 23 del proyecto de ley consultado. Al respecto, alega que la conciencia moral es un juicio de la razón por el cual los seres humanos reconocen la cualidad moral de un acto específico. En todo lo que dice y hace, el ser humano está obligado a seguir fielmente lo que sabe que es justo y recto. Expresa que la libertad de pensamiento, conciencia y religión son derechos fundamentales de todo ser humano, y esas libertades incluyen la libertad de cambiar de religión y/o creencias, en virtud de lo cual resulta absurdo pensar que un patrono al contratar a un empleado pretenda que este no pueda cambiar sus creencias sobre determinado tema. Cita los artículos 1 y 18 de la Declaración Universal de Derechos Humanos, 18 del Pacto Internacional de Derechos Civiles y Políticos, 12 y 13 de la Convención Americana de Derechos Humanos, y las sentencia N° 01619-20 y 2017-11531 de este Tribunal. Considera que existe una coerción impropia, al disponer que solo personas que aceptan el matrimonio entre personas del mismo sexo serán contratadas en el Poder Judicial como jueces, pues tal medida obliga a hacer un acto en contra de la propia conciencia bajo amenaza de despido. Afirma que los alegatos contra el artículo 23 deben ser rechazados, pues limitan y restringen la libertad de pensamiento, de conciencia y de expresión en una forma desproporcional, vaciando de contenido dichas libertades y lo más grave, violando el principio de reserva de ley.

29.- A las 10:39 horas del 15 de julio de 2021, Mario Rojas Vílchez, Secretario General de la Confederación de Trabajadores Rerum Novarum, presenta coadyuvancia a la consulta facultativa de constitucionalidad planteada sobre el expediente legislativo N° 21.336. Considera improcedente que el proyecto en cuestión pretenda limitar la negociación colectiva, en contraposición con la Constitución Política y los convenios internacionales de la OIT. Estima también que la sanción de inhabilitación contenida en el artículo 4 inciso a) es inconstitucional por violentar los principios de razonabilidad y proporcionalidad, al tratarse de una aplicación genérica ante cualquier despido sin importar sus motivos. Finalmente, concluye que la igualdad salarial que se propone es inconstitucional, pues adiciona elementos como puesto, jornada y condiciones, que no pueden ni deben considerarse.

30.- En escrito agregado a las 13:50 horas de 20 de julio de 2021 se apersona Fernando Cruz Castro en su condición de Presidente de la Corte Suprema de Justicia para ampliar las consideraciones sobre la admisibilidad de la consulta facultativa institucional de constitucionalidad respecto del proyecto de ley 21.336 denominado “Ley General de Empleo Público” planteada por su representada, con sustento en las siguientes razones: 1) Sobre la diferente naturaleza de la consulta de constitucionalidad expresada por la Asamblea Legislativa y la Corte Suprema de Justicia. Manifiesta que a partir de la Ley de la Jurisdicción Constitucional se advierte que la consulta de constitucionalidad realizada por la Asamblea Legislativa, posee una naturaleza diferente a la consulta que realiza la Corte Suprema de Justicia. Indica que la primera tiene un procedimiento definido de manera específica en la ley, en tanto que se determinó que podía -en determinados casos- ser preceptiva y, en otros, tener naturaleza facultativa; además reviste una serie de formalidades específicas para ese Poder orientadas a que se origine en supuestos determinados y concretos, mas no con las limitaciones propias de la consulta institucional. Añade que, conforme a lo anterior, debe advertirse que el legislador hizo la previsión de una relación colaborativa entre el Poder Legislativo-Poder Judicial vía Sala Constitucional, en cuanto a la pureza de la norma infra constitucional en la preparación del respectivo acto parlamentario para garantizar la supremacía de la Constitución Política, siendo muestra de ello la naturaleza de dictamen que reviste lo que resuelva el órgano de control de constitucionalidad. Argumenta que, por el contrario, en el caso de la consulta institucional, la previsión del legislador fue orientada a tutelar, no tanto la relación coordinación-cooperación entre Poderes, como el control ex ante la separación de Poderes, siendo por ello que el legislador adoptó la previsión de dicho mecanismo para que el Poder Judicial pudiera consultar si estimare que podría darse una afectación a su competencia constitucional; distinción que se refleja inclusive en la regulación de una u otra consulta y que se puede advertir en el cuadro adjunto. Manifiesta que lo anterior tiene su razón de ser en la naturaleza misma de la consulta legislativa toda vez que se realiza ante la voluntad de un grupo de integrantes del órgano constitucional encargado de la aprobación del proyecto, de someter la consulta para que la Sala Constitucional haga revisión, como parte del proceso de formación que el mismo órgano realiza del proyecto de ley en donde las dudas planteadas se traducen en una consulta. Argumenta que, en ese sentido, la afectación no posee una limitación concreta en cuanto a su objeto dado que la tutela constitucional ex ante se realiza respecto del ordenamiento jurídico mismo aplicable y visto como un todo, en abstracto de la existencia o no de intereses o derechos afectados y conforme a valoraciones no exclusivamente de afectación competencial, sino de roce con el derecho de la Constitución, tanto en aspectos procesales o trámite legislativo como de fondo. Aduce que, por el contrario, en el caso de la consulta institucional, se busca un objeto diferente, tiene legitimación institucional u orgánica tasada o numerus clausus sin posibilidad de interpretaciones para extenderse a otros órganos del Estado, siempre será de carácter facultativo y su legitimación para consultar radica en el carácter de órganos constitucionales o esenciales del Estado que tienen una serie de competencias y atribuciones expresamente concedidas por la Constitución de manera exclusiva y excluyente, además de contar con un estatuto de independencia funcional, siendo que lo consultado debe versar únicamente sobre las competencias constitucionales expresamente atribuidas a esos órganos de manera exclusiva y excluyente puesto que, si la consulta excede esa órbita, será inadmisible y la Sala Constitucional ni tendría que evacuarla, lo que permite que tales órganos constitucionales procuren velar por la supremacía constitucional en lo que concierne a sus competencias y atribuciones constitucionales exclusivas y excluyentes, previniéndose así el surgimiento de cualquier conflicto de competencias constitucionales. 2) Lo resuelto sobre admisibilidad ante el único precedente de una consulta institucional anterior en donde se valoró el tema: señala que en diferentes medios de comunicación se ha externado la opinión de que procede aplicar lo resuelto por la Sala Constitucional sobre la admisibilidad de consultas legislativas previamente realizadas; sin embargo, estima que ese argumento no lleva razón porque lo que procede es la aplicación del único precedente en donde se valoró la admisibilidad de una consulta institucional por parte de la Sala Constitucional, según sentencia número 2007-009469 de las 10 horas del 3 de julio de 2007, en la que se admitía una consulta institucional planteada por la Defensoría de los Habitantes para ser evacuada indicando que el pueblo como soberano debe someterse a la Constitución Política y frente a la existencia de un referéndum, la Sala no pierde su competencia para realizar el respectivo control de constitucionalidad según lo dispone el artículo 10 de la Constitución, sin que pueda interpretarse de manera restrictiva esta competencia tomando en consideración el principio de supremacía constitucional, por lo que la Sala estimó procedente dar curso a las consultas de constitucionalidad presentadas por cuanto, ante la existencia de un vacío legal, debe interpretarse en favor de la posibilidad de control para evitar que el pueblo acuda a las urnas sin tener claros los aspectos de constitucionalidad. Señala que debe considerarse que no resulta de aplicación lo resuelto respecto de la admisibilidad de la consulta legislativa a la consulta de la Sala Constitucional planteada por la Corte Suprema de Justicia toda vez que ambos parten de naturalezas y procedimientos diferentes. Aduce que en el caso de la Asamblea Legislativa hubo una notificación de la presentación y curso de la consulta realizada por los diputados que, en el caso de la Corte Suprema de Justicia no se hizo y, consecuentemente, no es dable interpretar que se pueda restringir la posibilidad de que este último órgano constitucional tenga limitada la posibilidad de interponer la consulta a la recepción de un expediente legislativo cuya notificación solo se realiza al Poder Legislativo por lo que solo puede tener efectos jurídicos para dicho Poder y no con el resto de poderes a los que no se les notificó y, por ende, desconocen formalmente de la respectiva solicitud del expediente legislativo. 3) Sobre la prevalencia del derecho de la Constitución al momento de determinar la admisibilidad de la consulta: aduce que no es óbice indicar que un referente fundamental para resolver sobre la consulta planteada por la Corte Suprema de Justicia, es la prevalencia del derecho de la Constitución. Aduce que, como se indicó en la consulta de constitucionalidad, dada la trascendencia de lo consultado, la Sala debe aplicar los principios pro homine, informalidad de las formas, pro actione, pro sentencia en tutela de los más altos valores del sistema democrático y republicano, y determinar por el fondo si el proyecto de ley lesiona o no las competencias constitucionales, exclusivas y excluyentes de la Corte Suprema de Justicia y el Poder Judicial. Argumenta que, en ese sentido, la supremacía del derecho de la Constitución implica el necesario conocimiento por el fondo de cualquier duda de constitucionalidad ex ante la aprobación en definitiva de un proyecto de ley, cuando el ordenamiento así lo permita, con el propósito buscado por el legislador de velar de manera previa por la pureza y calidad del ordenamiento infra constitucional, abriendo la posibilidad de que se colabore en la preparación del acto parlamentario para garantizar su conformidad con el derecho de la Constitución. Señala que, dada la naturaleza preventiva o precautoria de esta forma de control de constitucionalidad, es menester que el juzgador emplee un criterio pro actione en el sentido de que, si se plantea una novedosa aunque normada consulta institucional de constitucionalidad, no se sacrifique la posibilidad de que una normativa que podría ser imperfecta por su desapego al derecho de la Constitución, se incorpore al ordenamiento jurídico. Argumenta que, del contenido de la consulta planteada se evidencia que su propósito es velar por la pureza y calidad constitucional de la Ley de Empleo Público como parte del ordenamiento jurídico infra-constitucional, con un propósito preventivo de que dicho cuerpo normativo se inserte en el ordenamiento jurídico con abierta violación de las competencias constitucionales del Poder Judicial. Indica que al ser el control de constitucionalidad a priori un proceso constitucional no contencioso en el que no existe una controversia o contención de intereses, denegar la posibilidad de dar curso a la solicitud planteada y entrar a resolver por el fondo, lo único que lesiona es al sistema democrático republicano en tanto limita la revisión de la pureza constitucional de la norma al no haber terceros que puedan alegar derechos o intereses legítimos afectados por la revisión constitucional realizada por la Sala Constitucional. Señala que al entrar a conocer una consulta de constitucionalidad institucional por el fondo como la planteada, se contribuye a dar una mayor seguridad a las relaciones jurídicas que puedan derivarse del cuerpo normativo objeto de cuestionamiento y evitar ulteriores conflictos de intereses que podrían derivarse de normas inconstitucionales, responsabilidad para el Estado y carga de procesos constitucionales posteriores contenciosos que serían sometidos a conocimiento de la Sala Constitucional, sino que se entra a conocer el control ex ante previsto sabiamente por el legislador. Considera que la consulta planteada trasciende el mero interés competencial constitucional en tanto que este es medio para tutelar situaciones jurídicas subjetivas a futuro, evitar y reparar lesiones a los derechos fundamentales y, ante todo, tutelar la estructura y lógica constitucional prevista por la Asamblea Nacional Constituyente en el año 1949. Finaliza solicitando que se resuelva de conformidad.

31.- Mediante documento presentado en la Secretaría de la Sala a las 18:34 horas de 20 de julio de 2021 se apersonan la diputada Laura Guido Pérez, y los diputados Víctor Morales Mora, Luis Ramón Carranza, Nielsen Pérez y Mario Castillo Méndez, para manifestar que se refieren a las diferentes consultas facultativas de constitucionalidad interpuestas en relación con el proyecto de “Ley Marco de Empleo Público” que se tramita en expediente legislativo No. 21.336, con el ánimo de aclarar y argumentar a favor del proyecto de ley. 1) Inadmisibilidad de la Consulta Facultativa de Constitucionalidad interpuesta por la Corte Suprema de Justicia, expediente 21-012714-0007-CO y acumulada al expediente 21-011713-0007-CO: consideran que la consulta planteada por la Corte Suprema de Justicia al amparo del inciso 3 del artículo 96 de la Ley de la Jurisdicción Constitucional es inadmisible porque fue interpuesta de manera extemporánea según la propia jurisprudencia de la Sala Constitucional: a) el Plenario de la Asamblea Legislativa terminó de conocer todas las mociones de fondo, reiteración y revisión presentadas al proyecto de “Ley Marco de Empleo Público”, expediente 21.336 en la sesión ordinaria número 7 del 24 de mayo de 2021; b) el texto actualizado del proyecto de ley fue consultado a la Corte Suprema de Justicia mediante oficio AL-DSDI-OFI-2021 de 25 de mayo de 2021; c) la Corte Suprema de Justicia mediante oficio No. SP-62-2021 de 3 de junio de 2021 contestó la consulta formulada por la Asamblea Legislativa del proyecto “Ley Marco de Empleo Público” indicando que, para su estimable conocimiento y fines consiguientes, se transcribía el acuerdo tomado por la Corte Plena en sesión ordinaria No. 22-2021 de 2 de junio de 2021; d) el proyecto “Ley Marco de Empleo Público”, expediente 21.336 fue votado y aprobado en primer debate el 17 de junio de 2021 según consta en el acta de la sesión ordinaria del Plenario número 17; la Presidencia señaló como fecha para su Segundo Debate el 24 de junio de 2021; e) la votación en primer debate del proyecto fue ampliamente publicitada por la Asamblea Legislativa y los diferentes medios de comunicación escrita, radial y televisiva en todo el territorio nacional; f) el primer escrito presentado a la Sala Constitucional a efecto de consultar la constitucionalidad del proyecto “Ley Marco de Empleo Público” fue recibido el 17 de junio de 2021 a las 17:31 horas; g) en resolución interlocutoria de las 13:15 horas de 18 de junio de 2021, la Sala Constitucional dio por recibida la consulta facultativa indicada y solicitó a la Asamblea Legislativa la remisión del expediente legislativo número 21.336; h) por medio del oficio sin número y fechado 24 de junio de 2021, el Directorio de la Asamblea Legislativa remitió el expediente legislativo número 21.336 correspondiente al proyecto “Ley Marco de Empleo Público” que fue recibido por la Sala Constitucional el 25 de junio de 2021 a las 11:34 horas; i) en resolución interlocutoria de las 11:54 horas de 25 de junio de 2021, la Sala Constitucional tuvo por recibida la copia certificada del expediente legislativo solicitado y se trasladó la consulta a la oficina del Magistrado Fernando Cruz Castro a quien por turno corresponde el estudio del fondo; j) la consulta facultativa de constitucionalidad promovida por la Corte Suprema de Justicia, fue presentada ante la Sala Constitucional a las 11:45 horas del 1 de julio de 2021 de conformidad con lo indicado en el resultando primero de la resolución interlocutoria de la Sala Constitucional, de las 9:15 horas de 2 de julio de 2021. Advierten que el escrito de Consulta Facultativa de la Corte Suprema de Justicia se presentó después de haber sido remitido el expediente legislativo por la Asamblea Legislativa a pesar de que la Corte Plena y su Presidencia estaban debidamente enterados de la tramitación, de la etapa procesal y del texto actualizado del proyecto de “Ley Marco de Empleo Público” expediente 21.336. Añaden que el oficio SP-62-2021 de 3 de junio de 2021 remitido por la Corte Suprema de Justicia, evidencia un alto grado de conocimiento así como también que los magistrados y magistradas tenían claras sus oposiciones y las posibles inconstitucionalidades contenidas en el proyecto de ley en discusión; es decir, la Corte Plena contó con la oportunidad y un tiempo razonable y prudencial para poder presentar con diligencia una consulta facultativa de constitucionalidad y en ese sentido destaca que desde que la Corte Plena conoció en consulta el texto actualizado del proyecto hasta la recepción del expediente legislativo por la propia Sala Constitucional, transcurrieron más de 3 semanas. Indican que la jurisprudencia de la Sala Constitucional ha establecido en el caso del artículo 96 de la Ley de la Jurisdicción Constitucional, que los diferentes escritos de consulta de constitucionalidad a un proyecto de ley, deben ser interpuestos y solo pueden ser ampliados antes de ser recibido el expediente legislativo por la Sala Constitucional (ver sentencias 2016-015712, 2018-019511, 2019-009220 y 2020-009185). Afirman que, son sustento en esos precedentes, el término para la presentación de las diferentes consultas facultativas de constitucionalidad, constituye un criterio jurisprudencial consolidado de la Sala Constitucional, el cual consideran que es apropiado y coherente con la Ley de la Jurisdicción Constitucional por las siguientes razones: a) la posibilidad de interponer una consulta facultativa de constitucionalidad puede constituir una importante herramienta para el debate legislativo pero si no posee límites, puede ser utilizada para obstaculizar el debate legislativo y evitar la manifestación de la voluntad de las mayorías parlamentarias y, por tanto, transgredir el principio democrático, por lo que el plazo del mes, establecido en el artículo 101 de la Ley de la Jurisdicción Constitucional y el término para la presentación de las consultas facultativas de constitucionalidad, son importantes para evitar que este instrumento sea utilizado para “Filibusterismo Parlamentario”; abuso que puede ser cometido por los diputados y diputadas de la Asamblea Legislativa, como por los otros órganos legitimados para la interposición de una consulta facultativa como son la Defensoría de los Habitantes, la Corte Suprema de Justicia o la Contraloría General de la República. Aducen que la ausencia de este límite podría significar, para este caso o para el futuro, que la presentación fraccionada en el tiempo de esos escritos sirva para suspender indefinidamente la votación de un proyecto de ley en segundo debate o su sanción. b) El término definido por la Sala Constitucional es coherente con la naturaleza procesal de la consulta facultativa de constitucionalidad en el sentido de que es un proceso sumarísimo, no resulta vinculante por el fondo y no precluye la posibilidad para que, posteriormente, las normas cuestionadas puedan ser impugnadas por las vías de control de constitucionalidad, según lo establecido en los artículos 96 y 101 de la Ley de la Jurisdicción Constitucional, por lo cual, la declaración de inadmisibilidad de una consulta facultativa por extemporánea, no implica una negativa al derecho de justicia para los diputados o los otros órganos, tampoco es un impedimento para interponer una acción de inconstitucionalidad que es un proceso que sí permite un análisis reposado y a detalle. Indican que esto muestra que el proceso pone especial énfasis a la obligatoriedad del plazo de un mes respecto a cuantos puedan acudir e incluso a los argumentos expuestos en los diferentes escritos. c) La Ley de la Jurisdicción Constitucional en su artículo 101 no diferencia entre las consultas facultativas o preceptivas y tampoco lo hace entre quienes están legitimados para interponer una consulta de constitucionalidad por lo que el plazo del mes dispuesto por la norma es el mismo para todos los casos, por lo cual no sería coherente con la ley que las reglas y los términos para la presentación de las consultas de constitucionalidad, se tramiten de forma diferente por quien la interponga. Indican que en atención a lo dicho, son del criterio de que la consulta facultativa de constitucionalidad interpuesta por la Corte Suprema de Justicia, debe ser declarada como inadmisible por haber sido presentada el 1 de julio de 2021 cuando ya había sido entregado por la Asamblea Legislativa y recibido por la Sala Constitucional, el expediente legislativo del proyecto de “Ley Marco de Empleo Público”. Señalan que la Corte Suprema de Justicia contó con la oportunidad y el tiempo prudencial de más de 3 semanas para decidir y presentar su consulta de constitucionalidad en tiempo, según los parámetros establecidos por la Ley y la jurisprudencia de la Sala Constitucional, por lo que si aquélla no cumplió con los términos de ley, se debe a la falta de previsión de la Corte Plena y sus autoridades. Advierten que la Corte Suprema de Justicia no puede excusarse en que sus plazos o tiempos de respuesta son flexibles en virtud de su condición de órgano colegiado pues ese pretexto sería falaz, toda vez que cualquier órgano colegiado de derecho público puede ser convocado por su presidencia a sesiones extraordinarias en caso de tener que resolver asuntos con plazos fatales o por cualquier otro motivo de fuerza mayor. Añaden que aparte de que no pueden alegar ignorancia de la ley, no puede la Corte pretender de la Sala un trato procesal privilegiado debido a que la Ley de la Jurisdicción Constitucional no contiene la mínima previsión al respecto. Finalizan solicitando que se consideren los argumentos expuestos supra y se proceda a declarar inadmisible la consulta facultativa de constitucionalidad interpuesta por la Corte Suprema de Justicia.

32.- En los procedimientos se han acatado las disposiciones del artículo 100 de la Ley de la Jurisdicción Constitucional y esta resolución se dicta dentro del término que establece el artículo 101 ibidem.

Redacta la Magistrada Picado Brenes, salvo aquellos considerandos en donde se indique la redacción expresa del Magistrado Castillo Víquez; y,

Considerando:

• A)CUESTIONES DE TRAMITE:

I.- De previo.- (redacta el magistrado Castillo Víquez) Quienes suscribimos esta opinión consultiva dejamos constancia de que en este caso hay razones justificadas para no plantear ninguna inhibitoria, pese a que el proyecto de ley consultado nos afecta. En primer lugar, estamos ante una ley de carácter general que afecta a todos los empleados públicos, excepto aquellos que laboran en empresas públicas que están en régimen de competencia, de forma tal que nos afecta en nuestra condición de magistrados (as) -propietarios (as) y suplentes- como aquellos (as) que imparten lecciones en universidades públicas. En segundo término, al afectar la normativa que contiene el proyecto de ley, tanto a los (as) magistrados (as) propietarios (as) como a los (as) magistrados (as) suplentes, estos (as) últimos porque se les paga como salario la sustitución a partir de un día, es lógico suponer de antemano que a todos (as) nos asiste motivo de inhibitoria, por lo que, en aplicación del numeral 29 de la Ley Orgánica del Poder Judicial, el Tribunal debe ser integrado por los mismos magistrados (as) propietarios (as) y suplentes que desde un inicio era los que lo integraban. Dicho en otras palabras, no tiene sentido que todos (as) nos inhibamos, trámite que podría tardar de tres a cinco meses, para llegar al mismo punto de inicio; máxime que en este caso el artículo 101 de la Ley de la Jurisdicción Constitucional establece un plazo de un mes para evacuar la consulta de constitucionalidad facultativa a partir de recibidos los expedientes legislativos o su acumulación, salvo causas de interrupción. También es lógico suponer que la mayoría de los (as) magistrados (as) propietarios (as) y suplentes tienen parientes cercanos -hijos (as), hermanos (as), cuñados (as), etc.-, por lo que les asistiría también motivo de inhibitoria, lo que supondría nuevamente que el Tribunal quedará desintegrado prácticamente en su totalidad. Por otra parte, en la sesión N°22-2021 de la Corte Suprema de Justicia, celebrada el día 02 de junio de 2021, artículo Único, los magistrados suplentes José Paulino Hernández Gutiérrez, Mauricio Chacón Jiménez y Ronald Salazar Murillo participaron de la discusión del proyecto de ley que se consulta, al igual que en la sesión N°27-2021 de 30 de junio de 2021 del citado órgano, artículo I, la magistrada suplente y los magistrados suplentes Lucila Monge Pizarro, José Paulino Hernández Gutiérrez, Mauricio Chacón Jiménez, Alejandro Delgado Faith y Hubert Fernández Argüello participaron de la sesión en la que se acordó plantear una consulta de constitucionalidad facultativa a la Sala Constitucional, por lo que ya adelantaron criterio y, por consiguiente, no podrían ni deberían integrar el Tribunal que va a resolver las consulta de constitucionalidad acumuladas. Finalmente, y no por ello menos importante, hay que tener presente que en el caso de los (as) magistrados (as) suplentes que son abogados (as) litigantes, ese hecho no desvirtúa lo que se viene afirmando, por la elemental razón de que ellos (as) son funcionarios públicos y, cuando ejercen la magistratura, la normativa consultada también los (as) afecta, ya que reciben salario a partir de un día de sustitución. Por lo anterior, lo procedente es que todos los magistrados (as) propietarios (as) conozcan de este asunto; siendo la única inhibitoria presentada y aceptada, la del magistrado propietario Fernando Cruz Castro, en razón de que, por su condición de presidente de la Corte Suprema de Justicia ya ha emitido criterio sobre el proyecto consultado. Además, nótese que este mismo magistrado ha presentado, en representación de toda la Corte Suprema de Justicia, una consulta facultativa por su parte. Así que no puede fungir a la vez como parte y como juez, en este caso. En sustitución del magistrado Cruz Castro se nombró a la suplente, la magistrada suplente Ana María Picado Brenes.

II.- Sobre la admisibilidad de las consultas facultativas de constitucionalidad planteadas.- De conformidad con lo que dispone la Ley de la Jurisdicción Constitucional, este Tribunal Constitucional puede ejercer la opinión consultiva previa sobre los proyectos legislativos. Dentro de los diferentes tipos de consulta de constitucionalidad, nos encontramos con la consulta facultativa contemplada en el inciso b) del artículo 96 de la citada ley, planteada por diputados de la Asamblea Legislativa, con los requisitos que se dirán. Además, con la consulta facultativa contemplada en el inciso c) del artículo 96 de la citada ley, planteada por la Corte Suprema de Justicia, en aspectos relacionados con su competencia constitucional. En este caso, nos encontramos con tres consultas facultativas presentadas por diputados y con una consulta presentada por el Presidente de la Corte Suprema de Justicia. Las cuatro consultas fueron acumuladas a este expediente mediante resoluciones números 2021-15105, 2021-15137 y 2021-15240, del 02 de julio del 2021. Se procede al examen de admisibilidad de cada uno de estos supuestos por separado.

• 1)Sobre la admisibilidad de las consultas facultativas presentadas por los diputados (art.96.b de la Ley de la Jurisdicción Constitucional).- Mediante tres escritos diferentes se presentaron a la Sala Constitucional tres consultas facultativas legislativas presentadas por diputados de la Asamblea Legislativa. La admisibilidad de cada una de estas consultas se examina de forma individualizada.
• a)Consulta facultativa expediente n°21-011713-0007-CO:

El día 17 de junio del 2021, un escrito suscrito por 15 diputados (quedando como válidas 14 firmas), presentan la primera consulta facultativa de constitucionalidad, asignándosele el número de expediente 21-011713-0007-CO. Esta consulta, presentada con base en el art.96.b) de la Ley de la Jurisdicción Constitucional debe reunir dos requisitos para su admisibilidad: debe presentarse por un número no menor de diez diputados y debe hacerse después de que el proyecto consultado haya sido aprobado en primer debate (o antes, si la Asamblea Legislativa tuviere un plazo constitucional o reglamentario para votarlo). Dado que, el primer debate se dio en sesión ordinaria n°17 del 17 de junio del 2021, y esta consulta fue presentada en horas de la tarde de ese día; y dado que, fueron 14 los diputados que finalmente suscribieron la consulta, esta cumple a cabalidad con los requisitos mencionados. Cabe mencionar que, el escrito inicial es firmado por 15 diputados. Luego, antes de la fecha de recibido del expediente legislativo (el 25 de junio, fecha que esta Sala ha tenido como límite para este tipo de escritos, según voto n°2018-019511 y 2014-012887), en fechas 17 y 18 de junio dos diputados solicitaran tener por retirada su firma (diputado Mario Castillo Méndez y la diputada Zoila Rosa Volio Pacheco), retiro que se tiene como válido. Posteriormente, un nuevo diputado (diputado Dragos Dolanescu Valenciano) solicita el 21 de junio (igualmente antes de la fecha de recibido del expediente legislativo) que se agregue su firma a la consulta, agregado que se tiene como válido. Teniendo en ese momento un total de 14 firmas válidas. Debe tomarse en cuenta que, la firma de la diputada Aracelly Salas Eduarte aparece en esta consulta y en la segunda, dado que no puede tenerse por admitida en las dos -según jurisprudencia de esta Sala- se admite como válida únicamente en esta primera consulta. No se admiten los rechazos parciales de firmas, realizados el 30 de junio, presentados por tres diputados (Sylvia Patricia Villegas, Walter Muñoz y Shirley Díaz Mejías) por cuanto, independientemente de cuándo se realicen, resulta inadmisible para esta Sala los retiros parciales de firma. Cuando se suscribe una consulta se suscribe en su totalidad, por ello, no se admite una firma parcial ni un retiro parcial, ni antes ni después de recibido el expediente legislativo.

Por lo tanto, se tiene esta consulta como admitida con la firma de 14 diputados, número que cumple con el requisito mencionado, de ser presentada por un mínimo de 10 diputados.

• b)Consulta facultativa expediente n°21-011915-0007-CO:

La segunda consulta facultativa presentada por diputados fue recibida en esta Sala a las 08:11 horas del 22 de junio del 2021. En el escrito de interposición se consigna la firma de 10 diputados (quedando como válidas 10 firmas). Tramitada bajo expediente n°21-011915-0007-CO y acumulada a este expediente por resolución número 2021-015105 de las 9:15 horas del 2 de julio de 2021. Ahora bien, se observan lo siguientes hechos: la consulta es inicialmente presentada por 10 diputados. Siendo que, una de las diputadas (Aracelly Salas Eduarte) suscribió también la primera consulta n°21-011713-0007-CO, esta Sala tiene la primera firma como válida y por tanto, se tiene por no presentada en ésta segunda consulta, así quedaron nueve firmas como válidas. Sin embargo, luego, un diputado (Melvin Núñez Piña) se adhiere a esta consulta por escrito presentado el 23 de junio, con anterioridad al recibido del expediente legislativo. Así entonces, se tiene esta consulta por presentada con la firma de 10 diputados, número que cumple con el requisito mencionado, de ser presentada por un mínimo de 10 diputados.

• c)Consulta facultativa expediente n°21-012118-0007-CO:

La tercera consulta facultativa presentada por diputados fue recibida en esta Sala a las 18:47 horas del 23 de junio del 2021, con la firma de 10 diputados. Tramitada bajo expediente n°21-012118-0007-CO y acumulada a este expediente por resolución número 2021-015137 de las 9:15 horas del 2 de julio de 2021. Por lo tanto, se cumple con el número mínimo de 10 diputados. Número que no cambia por el hecho de que una diputada (Zoila Rosa Volio) haya suscrito la primera consulta, pues se tuvo por retirada su firma en esa primera consulta (mediante escrito del 18 de junio, antes de recibido el expediente legislativo) y por lo tanto, nada obstaba para tenerla por admitida en esta. Además, el retiro de la firma de otra diputada (Paola Valladares) por el hecho de ser presentada el 07 de julio, con posterioridad a la presentación del expediente legislativo, hace que no se pueda admitir su retiro, y que por lo tanto, esta consulta mantenga la firma de 10 diputados.

Así entonces, por unanimidad se consideran admisibles las primeras dos consultas y por mayoría se considera admisible la tercera consulta. Ello por cuanto, las tres consultas presentadas cumplen con los dos requisitos mencionados. Todas fueron presentadas por al menos 10 diputados, y todas fueron presentadas luego de aprobado el proyecto en primer debate. Además, en cuanto al requisito de orden fijado por esta Sala en estos casos, todas fueron presentadas antes de que se presentara a esta Sala el expediente legislativo, es decir, antes del 25 de junio del 2021. En conclusión, las tres consultas anteriores se tienen por admitidas.

Razones diferentes del magistrado Rueda Leal en cuanto a la admisibilidad de la consulta del expediente n.° 21-011713-0007-CO.

Advierto que en la sentencia n.° 2014-012887 de las 14:30 horas del 8 de agosto de 2014, junto con los Magistrados Cruz Castro y Salazar Alvarado, me pronuncié en este sentido:

“XV.- Nota de los Magistrados Cruz Castro, Rueda Leal y Salazar Alvarado, sobre el retiro de firmas (Redacta el Magistrado Rueda Leal).- Una situación ocurrida durante la tramitación de este expediente ha llamado la atención de los suscritos Magistrados. A raíz de ella, hemos considerado necesario poner esta nota, pues si bien no se trata de un punto cuestionado o de gran incidencia en este proceso de consulta legislativa, sí se ha manifestado de manera patente y requiere, a nuestro criterio, ser abordado. Es necesario observar lo ocurrido en este expediente para comprender a cabalidad la observación de los firmantes.

La primera consulta de constitucionalidad fue planteada el 22 de abril de 2014 por Carmen Granados Fernández, Xinia Espinoza Espinoza, Carmen Muñoz Quesada, Yolanda Acuña Castro, Claudio Monge Pereira, José María Villalta Flórez-Estrada, Juan Carlos Mendoza García, Justo Orozco Álvarez, Luis Fishman Zonzinski, Carlos Góngora Fuentes, Rodolfo Sotomayor Aguilar y José Joaquín Porras Contreras (12 diputados).

El 28 de abril de 2014, Rodolfo Sotomayor Aguilar retira su firma; lo mismo hacen, el 29 de abril de 2014 y mediante sendos memoriales, Carlos Góngora Fuentes y José Joaquín Porras Contreras. Ese mismo día, por escritos separados, María Eugenia Venegas Renauld y Damaris Quintana Porras adicionan sus firmas a la consulta.

En cuanto a la segunda consulta, ella fue planteada el 29 de abril de 2014 por Adonay Enríquez Guevara, Damaris Quintana Porras, Danilo Cubero Corrales, Ernesto Chavarría Ruiz, Fabio Molina Rojas, Luis Fishman Zonzinski, Manuel Hernández Rivera, María Ocampo Baltodano, Mireya Zamora Alvarado y Víctor Hugo Víquez Chaverri (10 diputados). Ese mismo día, Fabio Molina Rojas, María Ocampo Baltodano y Víctor Hugo Víquez Chaverri retiraron sus firmas y, unas horas después, adicionaron nuevamente sus firmas. Posteriormente, el 2 de junio de 2014, ya siendo exdiputados, María Ocampo Baltodano y Víctor Hugo Víquez Chaverri retiraron sus firmas de la consulta.

La Sala se ha referido a la buena fe procesal que debe imperar en los procedimientos de consulta facultativa:

“… En ese particular, esta jurisdicción, es del criterio, que, en la primera ocasión en la que los Diputados formulan una consulta legislativa facultativa, deben de indicar todos y cada uno de los vicios constitucionales -tanto de forma como de fondo-, que estimen presentes en el proyecto de ley. Esto, ya que, de lo contrario, la consulta legislativa facultativa sería empleada como un instrumento para prolongar, indebidamente, el procedimiento legislativo, trastrocando sus fines. La necesidad de consultar en una sola ocasión los posibles defectos de constitucionalidad, obedece también, a la lealtad y buena fe procesales que deben imperar en la utilización de cualquier mecanismo que ofrezca el ordenamiento jurídico para someter a la fiscalización jurisdiccional una determinada conducta. También hay razones de economía procedimental legislativa que imponen esta nueva postura, por cuanto, bien podrían los diputados plantear tantas consultas legislativas facultativas respecto de un proyecto que no ha sufrido modificaciones esenciales o sustanciales, como estimen necesarias, dando lugar a una cadena interminable de consultas. Debe tomarse en consideración, tal y como lo prescribe el ordinal 101, párrafo 2°, de la Ley de la Jurisdicción Constitucional que el dictamen vertido por la Sala Constitucional en la consulta, “En todo caso, no precluye la posibilidad de que posteriormente la norma o normas cuestionadas puedan ser impugnadas por las vías de control de constitucionalidad”. Por consiguiente, en adelante, esta Sala, únicamente, evacuará una nueva consulta legislativa cuando, al haber sido devuelto a la corriente legislativa el proyecto de ley -luego, claro está, de haber sido conocida la primera de tales consultas por este órgano jurisdiccional-, se le hayan introducido al mismo modificaciones o enmiendas de carácter sustancial.” (Sentencia número 2011-14965 de las 9:34 horas del 2 de noviembre de 2011) Admitir el libre desistimiento en la consultas de constitucionalidad da pie para que ocurran situaciones donde, contrario a la buena fe procesal, las firmas de los diputados son retiradas o adicionadas según la estrategia parlamentaria de cada legislador o partido político, y no, como debería ser, con el sincero interés de velar por la constitucionalidad del proyecto. Nuestra opinión es que tal tipo de vicios lleva a una perversión del mecanismo de la consulta facultativa de constitucionalidad, en la medida que la sujeta a los vaivenes y peripecias de la política. En otras palabras, el uso de la consulta parlamentaria facultativa para los efectos de la táctica legislativa contribuye a la judicialización de la política, cuando la independencia judicial y la división de poderes exigen que el Poder Judicial y, como parte de él, la Sala Constitucional se protejan en la medida de lo posible de dicho fenómeno.

Por lo demás, los suscritos enfatizamos que en materia de acciones de inconstitucionalidad, se ha establecido que “no existe norma que autorice el desistimiento de una acción de inconstitucionalidad” (sentencias números 2013-008946 de las 14:30 horas del 3 de julio de 2013, 2013-004620 las 14:30 horas treinta del 10 de abril de 2013 y 2013-005095 de las 14:30 horas del 17 de abril de 2013). En virtud de lo anterior y haciendo especial hincapié en la necesidad de proteger a la Sala Constitucional de las incidencias políticas, consideramos que las consultas legislativas que hayan sido presentadas cumpliendo el requisito del artículo 96 inciso b) de la Ley de la Jurisdicción Constitucional, deben ser tramitadas como corresponda, haciendo caso omiso a las gestiones de retiro de firmas que se presentaren posteriormente”. (Destacado no corresponde al original).

En el sub examine, determino que esta consulta fue presentada originalmente por 15 diputados, entre ellos, el diputado Mario Castillo Méndez y la diputada Zoila Rosa Volio Pacheco. Posteriormente, los días 17 y 18 de junio, ellos solicitaron el retiro de sus firmas en esta consulta. En aplicación de la jurisprudencia transcrita, considero improcedente el retiro de tales firmas, por lo que considero que deben ser agregadas al número total de firmas.

Nota separada de la magistrada Garro Vargas en relación a la admisibilidad de la consulta tramitada en el expediente n°21-011713-0007-CO He considerado necesario consignar esta nota separada para perfilar mi postura en relación con las manifestaciones de los legisladores que plantearon un “retiro parcial” de la consulta legislativa relativa al expediente n.°21-011713-0007-CO.

Como se acreditó que dicha manifestación de voluntad fue planteada luego de recibida la copia certificada íntegra del expediente legislativo ?momento a partir del cual la Sala rechaza la posibilidad de retirar firmas—, estimo que resulta innecesario que este Tribunal se pronuncie sobre si esta es procedente en sí misma. No obstante, coincido con la mayoría de la Sala en el sentido de que no caben los retiros parciales (es decir, sobre el contenido) a consultas legislativas dirigidas ante la Sala Constitucional.

Razones diferentes de la magistrada Hernández López sobre la admisibilidad de la segunda consulta expediente n°21-11915-007-CO Desde la sentencia 2014-012887, he sido consistente en señalar que la firma repetida de diputados en distintas consultas presentadas en tiempo (es decir antes de la recepción del expediente), son admisibles en cuanto tengan temas nuevos no planteados originalmente en la consulta anterior. Desde mi punto de vista, la participación de un mismo diputado o diputada en distintas consultas no está limitada por la ley y por ende, no podría la Sala obstaculizar el ejercicio de esa facultad otorgada a los integrantes del Poder Legislativo mediante una interpretación. Considero que la Sala no debe distinguir donde la ley no distingue y menos con una interpretación restrictiva que limite el ejercicio de esta potestad.

Razones diferentes de la magistrada Garro Vargas en relación a la admisibilidad de la consulta tramitada en el expediente n°21-011915-0007-CO En el caso concreto, y bajo una mejor ponderación, me separo de la línea mayoritaria de la Sala por estimar que sí cabe que un legislador o legisladora pueda firmar una nueva consulta facultativa de constitucionalidad, pese a que haya suscrito otra sobre el mismo proyecto de ley. Lo anterior bajo el entendido de que la firma de la consulta anterior se tenga por no puesta. En otras palabras, una manifestación de voluntad mediante la cual se suscribe una consulta legislativa posterior implica que la firma anterior se tenga por retirada. Todo lo cual podría ser realizado únicamente si es de previo a la recepción de la copia certificada íntegra del expediente legislativo, momento a partir del cual resulta improcedente el retiro o la suma de firmas.

Con esta interpretación se procura cumplir con los requisitos exigidos por la Sala, en el sentido que no es válido que un diputado o diputada suscriba simultáneamente más de una consulta legislativa y, además, se pretende tutelar su más reciente manifestación de voluntad.

Para sostener lo dicho considero que debe tomarse en cuenta lo siguiente: A los legisladores se les admite la posibilidad de retirar la firma o adherirse a una consulta ya formulada, siempre que sea de previo a la recepción de la copia certificada íntegra del expediente legislativo. Por otro lado, tal como está resolviendo la Sala, no cabe el retiro parcial de una consulta ya planteada. De manera que es lógico que se les reconozca la posibilidad de suscribir otra consulta posterior que podría ser más afín a sus convicciones y a sus intereses. En tal caso, se entiende que implícitamente retira su firma de la consulta formulada previamente.

Lo que no resulta admisible ?y en eso coincido con la mayoría de la Sala— es la simultaneidad. Es decir, que se suscriba una consulta posterior y se mantenga y contabilice la firma de la consulta realizada preliminarmente.

Con esta interpretación que propongo se acata la ratio del legislador, que impuso un requisito de un mínimo de diez firmas para admitir una consulta facultativa de constitucionalidad; pero, de forma paralela, se respeta la intención o soberanía del legislador al considerar como válida su más reciente manifestación formal de voluntad. En ese sentido, estimo pertinente traer a colación lo dicho por este Tribunal en anteriores oportunidades:

“El Tribunal, reconociendo el derecho de los diputados para acudir en consulta, ha ejercido su competencia profusamente, dándole respuesta a las consultas legislativas facultativas que se le hacen, pero el ejercicio del derecho debe hacerse en los términos fijados por la ley que rige la Jurisdicción, de manera ordenada y razonada; permitir el acceso en forma indiscriminada, puede conducir a desnaturalizar el proceso y convertirlo en un abuso de ese derecho, puesto que de lógica deberá entenderse, entonces, que puedan formularse tantas consultas como combinaciones de diez diputados sean posibles” (ver la opinión consultiva n.°2000-03220, criterio que fue reiterado posteriormente en las siguientes 2014-12887, 2016-9874 y 2018-019511).

En consecuencia, para los legisladores solo resulta legítimo suscribir una única consulta facultativa de constitucionalidad y no varias, y, de darse esta situación, únicamente se entiende eficaz su última firma, por ser la manifestación de voluntad más reciente. Se entendería que tácitamente se está retirando de la primera consulta legislativa. Estos movimientos, insisto, son válidos únicamente si se concretan de previo a la recepción, por parte de esta Sala Constitucional, de la copia certificada íntegra del expediente legislativo.

Nota separada de la magistrada Picado Brenes en relación a la admisibilidad de la consulta formulada mediante expediente n°21-011915-0007-CO (punto 2 del Por Tanto) Sobre la segunda consulta facultativa presentada por diputados, recibida en esta Sala a las 08:11 horas del 22 de junio del 2021, se observa que el diputado Melvin Núñez Piña se adhiere a esta consulta por escrito presentado el 23 de junio. Es decir, su adhesión se dio con anterioridad a la llegada a la Sala del expediente legislativo. En este sentido, considero que tal adhesión del diputado Melvin Núñez es admisible, precisamente por haberse presentado antes de la llegada del expediente legislativo. Si la adhesión se hubiese presentado después del 25 de junio -fecha en que ingresa a la Sala el expediente Legislativo- dicha adhesión no podría admitirse.

Voto salvado del magistrado Castillo Víquez sobre el expediente n°21-012118-0007-CO Conforme a mi línea de votación (véase, entre otras, la opinión consultiva n.° 2014-012887), declaro inevacuable la tercera consulta de constitucionalidad, toda vez que una diputada retiró su firma de la consulta el 7 de julio del año en curso y, por consiguiente, la consulta queda únicamente con nueve firmas. Ergo, soy de la tesis de que en cualquier momento un (a) diputado (a) puede retirar la firma y, en este caso, la consulta de constitucionalidad no cumple con el requisito de las diez firmas; se trata de una inadmisibilidad sobreviniente. Lo anterior no significa que no concurra a la discusión y votación sobre la objeción de conciencia, toda vez que este extremo se consulta en la primera consulta de constitucionalidad facultativa que sí fue admitida.

Voto salvado del magistrado Rueda Leal con respecto a la consulta formulada en el expediente n.° 21-012118-0007-CO.

Tal como señalé en mis razones diferentes que analizaron la admisibilidad del expediente n.° 21-011713-0007-CO, estimo improcedente el retiro de firmas de los diputados en materia de consultas legislativas. Por este motivo, reitero que rechazo el retiro de firma de la diputada Zoila Rosa Volio Pacheco de la consulta n.° 21-011713-0007-CO. Dado que su firma debe ser agregada a esa consulta, entonces no puede ser validada para el expediente n.° 21-012118-0007-CO, lo que significa que este último queda solo con nueve firmas (incluyendo la de la diputada Paola Valladares, cuyo retiro rechazo de manera análoga). Ahora bien, tal cantidad es insuficiente para cumplir el requisito de admisibilidad establecido por el numeral 96 inciso b) de la Ley de la Jurisdicción Constitucional, que exige la firma de 10 diputados. En ese tanto, declaro inevacuable esta consulta.

Nota del Magistrado Salazar Alvarado respecto de la admisibilidad de la Consulta Legislativa.

En Sentencia N° 2014-012887 de las 14:30 horas del 8 de agosto de 2014, suscribí, junto con los Magistrados Cruz Castro y Rueda Leal, la siguiente nota con respecto al retiro de firmas en el proceso de una consulta legislativa:

“XV.- Nota de los Magistrados Cruz Castro, Rueda Leal y Salazar Alvarado, sobre el retiro de firmas (Redacta el Magistrado Rueda Leal).- “Una situación ocurrida durante la tramitación de este expediente ha llamado la atención de los suscritos Magistrados. A raíz de ella, hemos considerado necesario poner esta nota, pues si bien no se trata de un punto cuestionado o de gran incidencia en este proceso de consulta legislativa, sí se ha manifestado de manera patente y requiere, a nuestro criterio, ser abordado. Es necesario observar lo ocurrido en este expediente para comprender a cabalidad la observación de los firmantes.

“La primera consulta de constitucionalidad fue planteada el 22 de abril de 2014 por Carmen Granados Fernández, Xinia Espinoza Espinoza, Carmen Muñoz Quesada, Yolanda Acuña Castro, Claudio Monge Pereira, José María Villalta Flórez-Estrada, Juan Carlos Mendoza García, Justo Orozco Álvarez, Luis Fishman Zonzinski, Carlos Góngora Fuentes, Rodolfo Sotomayor Aguilar y José Joaquín Porras Contreras (12 diputados).

“El 28 de abril de 2014, Rodolfo Sotomayor Aguilar retira su firma; lo mismo hacen, el 29 de abril de 2014 y mediante sendos memoriales, Carlos Góngora Fuentes y José Joaquín Porras Contreras. Ese mismo día, por escritos separados, María Eugenia Venegas Renauld y Damaris Quintana Porras adicionan sus firmas a la consulta.

“En cuanto a la segunda consulta, ella fue planteada el 29 de abril de 2014 por Adonay Enríquez Guevara, Damaris Quintana Porras, Danilo Cubero Corrales, Ernesto Chavarría Ruiz, Fabio Molina Rojas, Luis Fishman Zonzinski, Manuel Hernández Rivera, María Ocampo Baltodano, Mireya Zamora Alvarado y Víctor Hugo Víquez Chaverri (10 diputados). Ese mismo día, Fabio Molina Rojas, María Ocampo Baltodano y Víctor Hugo Víquez Chaverri retiraron sus firmas y, unas horas después, adicionaron nuevamente sus firmas. Posteriormente, el 2 de junio de 2014, ya siendo exdiputados, María Ocampo Baltodano y Víctor Hugo Víquez Chaverri retiraron sus firmas de la consulta.

“La Sala se ha referido a la buena fe procesal que debe imperar en los procedimientos de consulta facultativa:

“… En ese particular, esta jurisdicción, es del criterio, que, en la primera ocasión en la que los Diputados formulan una consulta legislativa facultativa, deben de indicar todos y cada uno de los vicios constitucionales -tanto de forma como de fondo-, que estimen presentes en el proyecto de ley. Esto, ya que, de lo contrario, la consulta legislativa facultativa sería empleada como un instrumento para prolongar, indebidamente, el procedimiento legislativo, trastrocando sus fines. La necesidad de consultar en una sola ocasión los posibles defectos de constitucionalidad, obedece también, a la lealtad y buena fe procesales que deben imperar en la utilización de cualquier mecanismo que ofrezca el ordenamiento jurídico para someter a la fiscalización jurisdiccional una determinada conducta. También hay razones de economía procedimental legislativa que imponen esta nueva postura, por cuanto, bien podrían los diputados plantear tantas consultas legislativas facultativas respecto de un proyecto que no ha sufrido modificaciones esenciales o sustanciales, como estimen necesarias, dando lugar a una cadena interminable de consultas. Debe tomarse en consideración, tal y como lo prescribe el ordinal 101, párrafo 2°, de la Ley de la Jurisdicción Constitucional que el dictamen vertido por la Sala Constitucional en la consulta, “En todo caso, no precluye la posibilidad de que posteriormente la norma o normas cuestionadas puedan ser impugnadas por las vías de control de constitucionalidad”. Por consiguiente, en adelante, esta Sala, únicamente, evacuará una nueva consulta legislativa cuando, al haber sido devuelto a la corriente legislativa el proyecto de ley -luego, claro está, de haber sido conocida la primera de tales consultas por este órgano jurisdiccional-, se le hayan introducido al mismo modificaciones o enmiendas de carácter sustancial.” (Sentencia número 2011-14965 de las 9:34 horas del 2 de noviembre de 2011).

“Admitir el libre desistimiento en la consultas de constitucionalidad da pie para que ocurran situaciones donde, contrario a la buena fe procesal, las firmas de los diputados son retiradas o adicionadas según la estrategia parlamentaria de cada legislador o partido político, y no, como debería ser, con el sincero interés de velar por la constitucionalidad del proyecto. Nuestra opinión es que tal tipo de vicios lleva a una perversión del mecanismo de la consulta facultativa de constitucionalidad, en la medida que la sujeta a los vaivenes y peripecias de la política. En otras palabras, el uso de la consulta parlamentaria facultativa para los efectos de la táctica legislativa contribuye a la judicialización de la política, cuando la independencia judicial y la división de poderes exigen que el Poder Judicial y, como parte de él, la Sala Constitucional se protejan en la medida de lo posible de dicho fenómeno.

“Por lo demás, los suscritos enfatizamos que en materia de acciones de inconstitucionalidad, se ha establecido que “no existe norma que autorice el desistimiento de una acción de inconstitucionalidad” (sentencias números 2013-008946 de las 14:30 horas del 3 de julio de 2013, 2013-004620 las 14:30 horas treinta del 10 de abril de 2013 y 2013-005095 de las 14:30 horas del 17 de abril de 2013). En virtud de lo anterior y haciendo especial hincapié en la necesidad de proteger a la Sala Constitucional de las incidencias políticas, consideramos que las consultas legislativas que hayan sido presentadas cumpliendo el requisito del artículo 96 inciso b) de la Ley de la Jurisdicción Constitucional, deben ser tramitadas como corresponda, haciendo caso omiso a las gestiones de retiro de firmas que se presentaren posteriormente”.

Luego, en Sentencia N° 2016-004651 de las 12:40 horas del 6 de abril de 2016, consigné otra nota en la que aclaré los alcances de mi posición respecto al tema, en los siguientes términos:

“Si bien, en la Sentencia N° 2014-12887, de las 14:30 horas, del 8 de agosto de 2014, suscribí nota conjunta con los Magistrados Cruz Castro y Rueda Leal, respecto del retiro de firmas en una consulta legislativa de constitucionalidad, en el caso bajo estudio, en el que el recurrente desiste de la presente acción de inconstitucionalidad, coincido con el voto de mayoría, que tiene por desistida la acción, por cuanto, la misma, aún no había sido admitida para estudio cuando el accionante presentó el desistimiento, en virtud de haberse dictado a su favor una sentencia absolutoria, de ahí la diferencia -esencial- con la nota suscrita en aquella consulta. Ergo, sobra decir que, en criterio del suscrito, es viable, desde el punto de vista procesal, desistir de una acción de inconstitucionalidad mientras la misma no haya sido admitida para estudio, como aconteció en ésta”.

De lo dicho en las notas citadas, se desprende que, tanto en vía de consulta legislativa facultativa de constitucionalidad, como en vía de acción de inconstitucionalidad, es válido, para el suscrito, el retiro de firmas o el desistimiento -según el caso- siempre y cuando ello acontezca antes de que la Sala reciba la copia certificada del expediente legislativo (en consulta legislativa facultativa) o no haya sido aún admitida para su estudio (en acción de inconstitucionalidad).

En este mismo orden de ideas, sí es posible, en una consulta legislativa de constitucionalidad, retirar válidamente una firma antes de que la Sala reciba la copia certificada del expediente legislativo -momento a partir del cual corre el plazo mensual para resolver-, así como también debe entenderse, que se debe tener válidamente como consultante al diputado o diputada que, antes de que este Tribunal reciba la referida copia del expediente legislativo, solicite que se le tenga como firmante de la consulta.

En la consulta legislativa N° 21-11713-0007-CO, consta que en total fue presentada inicialmente por quince diputados, de los cuales el diputado Mario Castillo Méndez retira su firma el 17 de junio, y la diputada Zoila Rosa Volio Pacheco se retracta el 18 de junio; a su vez, el diputado Dragos Dolanescu Valenciano, solicitó se le tuviera como firmante de la consulta el 21de junio pasado, todo lo anterior, retiro y presentación de firmas, sucede antes del ingreso del expediente legislativo N° 21.336. En este sentido, no existe impedimento para que tanto la diputada como el diputado puedan retirar sus firmas de la consulta facultativa que en su momento procesal formularon, como fue explicado líneas atrás. Tampoco encuentro impedimento para que se tenga como firmante de la consulta al diputado Dolanescu Valenciano. Dichas gestiones fueron incoadas antes del recibido del expediente legislativo el 25 de junio pasado. Posteriormente, como se explica más adelante, la diputada Aracelly Salas Eduarte, suscribe una segunda consulta legislativa (N° 21-11915-0007-CO, lo que solo afecta su participación en esta consulta legislativa). Ahora bien, dicho lo anterior, la consulta que nos ocupa queda rubricada válidamente por catorce diputados. Finalmente, coincido en que debe rechazarse la solicitud para separarse de algún punto de la consulta, parcialmente (objeción de conciencia), si esa solicitud se formula con posterioridad al ingreso del expediente, como sucedió con las manifestaciones de la diputada Sylvia Patricia Villegas Álvarez y del diputado Walter Muñoz Céspedes, en gestiones del 30 de junio pasado.

En cuanto a la consulta legislativa N° 21-11915-0007-CO, se tiene que fue presentada por diez diputados, si bien la diputada Aracelly Salas Eduarte también había suscrito la consulta legislativa N° 21-11713-0007-CO, es importante mantener la obligación del consultante de señalar todos y cada uno de los vicios constitucionales -tanto de forma como de fondo-, que estimen presentes en el proyecto de ley. Se busca evitar, que la consulta legislativa facultativa sea usada para prolongar el procedimiento legislativo, invirtiendo su finalidad. En este sentido, se deben reiterar las razones dadas en las notas que fueron antes transcritas. En consecuencia, para el suscrito, la firma de la diputada Salas Eduarte sería admisible con la primera, pero no para la segunda. En consecuencia, estimo que se admite con las diez firmas, junto con la presentada por el diputado Melvin Núñez Piña, cuando la presentó el 23 de junio; es decir, antes del 25 de junio que ingresó el expediente legislativo a la Sala.

Finalmente, respecto de la consulta legislativa N° 21-12118-0007-CO, coincido con la mayoría de la Sala de que no es posible admitir el retiro de la firma de la diputada Paola Valladares Rosado, dado que la solicitud fue formulada el 7 de julio pasado, cuando evidentemente había sido aportado a la Sala Constitucional el expediente legislativo, en fecha 25 de junio pasado. Es decir, la solicitud del retiro de su firma no procede con base en el reiterado criterio antes expuesto. En cuanto al problema de la reiteración de la firma de la diputada Zoila Rosa Volio Pacheco (entre la primera y esta última consulta legislativa), estimo que es admisible, pues basta precisar que la petición de tenerla por excluida de la primera consulta fue presentada el 18 de junio, y que la decisión de apoyar a la última consulta legislativa fue posterior a esa fecha, resulta válida porque ocurre antes del ingreso del expediente legislativo. Véase, que esta última consulta legislativa ingresa el día 23 de junio, con posterioridad a la solicitud de retiro (18 de junio), y antes de la fecha del ingreso del expediente legislativo el día 25.

Por todo lo expuesto, lo propio es tenerlos como consultantes, salvo el caso del diputado Castillo Méndez, conforme a los razonamientos expresados.

• 2)Sobre la admisibilidad de la consulta facultativa presentada por el Presidente de la Corte Suprema de Justicia (art.96.c de la Ley de la Jurisdicción Constitucional).- (redacta el Magistrado Castillo Víquez) Por mayoría se declara inevacuable la consulta de constitucionalidad facultativa especial presentada por la Corte Suprema de Justicia por las razones que a continuación se explican. En primer lugar, hay que tener presente que la Sala Constitucional tiene un plazo de un mes fijado por ley para evacuar la consulta admitida. En ese sentido, y con el fin de que el trámite de la opinión consultiva no se convierta en un obstáculo para que el Parlamento ejerza la potestad legislativa, este Tribunal tiene que establecer un momento de inicio del plazo para tener certeza cuál es el último día para evacuarla. Es por ello por lo que la Sala Constitucional ha establecido como momento de inicio del plazo el recibido del expediente legislativo o la acumulación; a partir de esos momentos no es posible admitir nuevas consultas, sean de los (as) diputados (as) o de otros órganos externos al Parlamento. En segundo término, es claro que la Corte Suprema de Justicia conoce esta postura del Tribunal -ha sido una jurisprudencia reiterada-, por ello, y máxime que el proyecto en su versión original y final fueron objeto de consulta constitucional a este poder del Estado de conformidad con el numeral 167 de la Carta Fundamental, es claro que la Corte Suprema de Justicia tenía el tiempo suficiente para hacer la consulta antes de recibido el expediente legislativo o de la acumulación de las consultas. Finalmente, si el inicio del plazo que ha definido la Sala se corriera a causa de nuevas consultas de constitucionalidad facultativas especiales por parte de los órganos externos, el plazo podría ampliarse hasta por cinco meses, todo lo cual conllevaría no solo una vulneración del numeral 101 de la Ley de la Jurisdicción Constitucional, sino que constituiría una interferencia indebida en el iter del proyecto de ley en el procedimiento parlamentario, con el agravante, que los tiempos y momentos políticos en la Asamblea Legislativa son cambiantes y volátiles, por lo que podría, en muchos casos, dar al traste con los acuerdos concertados en la Asamblea Legislativa. De ahí que por las razones antes apuntadas, la consulta presentada por la Corte Suprema de Justicia es inevacuable por extemporánea.

Voto salvado de las magistradas Garro Vargas y Picado Brenes quienes admiten la consulta (con redacción de la última) Esta consulta presentada por la Corte Suprema de Justicia se hace con base en el art.96.c) de la Ley de la Jurisdicción Constitucional. Conforme a tal norma, debe reunir los siguientes requisitos para su admisibilidad: debe tratarse de una consulta sobre un proyecto legislativo (objeto), debe presentarla el órgano legitimado para hacerla (sujeto), debe presentarse después de aprobado el proyecto en primer debate (momento), deberá formularse en memorial razonado con expresión de los aspectos cuestionados (forma) y lo consultado debe estar referido a aspectos relacionados con su competencia constitucional. En este caso, la consulta formulada por la Corte Suprema de Justicia cumple a cabalidad con todos los requisitos anteriores: la consulta se presenta sobre el proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336; la presenta el Presidente de la Corte Suprema de Justicia conforme artículo I del acuerdo de sesión de Corte Plena número 27-2021 del 30 de junio del 2021. Además, se presenta luego de aprobado el proyecto en primer debate (dado el 17 de junio del 2021) y en memorial razonado. Asimismo, lo consultado se refiere a aspectos del proyecto, relacionados con las competencias constitucionales de la Corte Suprema de Justicia. Resulta relevante ahondar en la importancia de este tipo de consultas para el Derecho de la Constitución. Mediante el control previo de constitucionalidad, el legislador ha permitido a varios órganos -relevantes para nuestro sistema democrático- el poder plantear la consulta y con ello evitar que proyectos viciados constitucionalmente por el fondo o la forma integren el ordenamiento positivo. Entonces, además de los diputados, el legislador habilitó a los siguientes órganos para que presentaran consultas en las que la Sala ejerciera el control previo: la Corte Suprema de Justicia, el Tribunal Supremo de Elecciones, la Contraloría General de la República y la Defensoría de los Habitantes. En el caso concreto de la Corte Suprema de Justicia se entiende que la consulta se puede hacer sobre proyectos de ley o mociones incorporadas a ellos, en cuya tramitación, contenido o efectos se estimare como indebidamente ignorados, interpretados o aplicados los principios o normas relativos a su respectiva competencia constitucional. Nótese que se trata de otorgarle a uno de los Poderes de la República, la posibilidad de evitar que un proyecto de ley se apruebe, en contra de lo que consideran son sus competencias constitucionales. Tal como lo dijo desde entonces Alexander Hamilton (uno de padres fundadores de los Estados Unidos), en su ensayo El Federalista N° 78, y como hoy en día la doctrina lo respalda, el Poder judicial es el más débil de los tres Poderes, porque "no tiene influencia sobre la espada o el bolso... Realmente se puede decir que no tiene FUERZA. NI VOLUNTAD, sino simplemente juicio". Así entonces, esta es una de las pocas facultades que el legislador le ha otorgado al Poder Judicial para hacer respetar sus competencias constitucionales, de previo a que la norma sea aprobada como ley de la República. Ahora bien, hay un aspecto que resulta relevante recalcar. Se venía presentando una situación en la práctica: varios grupos de diputados presentaban sobre un mismo proyecto de ley varias consultas legislativas, diferidas en el tiempo, corriendo casi ad infinitum el plazo de un mes que tiene la Sala Constitucional para resolver. De esta forma, ante el vacío legal que regulara el plazo máximo que tenían los diputados para presentar consultas y el momento a partir del cual empezaba a correr el plazo de un mes que se tiene para resolver la consulta, esta Sala determinó, por jurisprudencia constitucional, regular tal situación y estableció que, luego de la fecha en que se tiene por recibida la copia certificada del expediente legislativo, empieza a correr el plazo para evacuar la consulta, y por ello, a partir de allí, no era posible tener por admitidas nuevas consultas facultativas. Sin embargo, nótese que tal limitación resultó aplicable únicamente a las consultas presentadas por diputados (art.96.b) pues la casi totalidad de las consultas que se presentaron durante más de 30 años de historia de esta Sala Constitucional lo fueron por parte de diputados. Además, nótese que, el momento a partir del cual empezaba a correr el plazo de un mes que tiene esta Sala para resolver la consulta, se ha tenido a partir del recibo del expediente legislativo, pero también a partir de la acumulación (ver voto n°2017-009690) o del recibo de la solicitud de prueba para mejor resolver (ver voto n°2014-003969). Por ello, el momento en que la Sala tiene por recibido el expediente legislativo, no puede tenerse como único criterio para empezar a contar el plazo del mes, ni tampoco puede aplicarse como limitante o plazo de caducidad para la admisibilidad de otro tipo de consultas realizadas con base en otros incisos del art.96 de la Ley de la Jurisdicción Constitucional. En primer lugar, establecer la fecha en la que se tiene por recibido el expediente legislativo como una limitante para recibir consultas legislativas nuevas, se determinó así por jurisprudencia y debido a la situación práctica indicada con los diputados, por lo que no resulta aplicable a otros supuestos que no tienen relación con consultas legislativas planteadas por diputados. Nótese que una cosa es la fecha de inicio del plazo del mes para resolver y otra la caducidad de la facultad de presentar nuevas consultas. La fecha de inicio del plazo del mes puede ser, desde el momento en que se recibe el expediente legislativo, pero también, en otros casos, desde la fecha de resolución de la Sala sobre la acumulación o desde la fecha de recibido de una prueba para mejor resolver que se ha ordenado. Ciertamente por jurisprudencia esta Sala ha señalado el momento a partir del cual corre el plazo del mes que tiene para resolver la consulta, pero ello lo ha hecho, como se ha dicho, con ocasión ocasión de la situación particular que se venía presentando con las consultas presentadas por diputados. Así, por ejemplo, se procedió cuando se dijo lo siguiente en el voto n°2007-009469:

“… esta Sala debe señalar que no resulta admisible la gestión que corre agregada a folio 841 del expediente, mediante la cual las y los diputados consultantes pretenden ampliar los argumentos de la consulta a otros aspectos no consultados en su escrito inicial. Lo anterior, no sólo por la inexistencia de una norma legal que los faculte para realizar dicha ampliación, sino además, porque el plazo de un mes con el que cuenta este Tribunal para pronunciarse, se haría imposible de cumplir si se permitiera que en cualquier momento se presenten nuevos argumentos o aspectos a evacuar. Nótese que los consultantes no acuden por aspectos sobrevinientes acaecidos con posterioridad a la presentación del documento inicial, sino que pretenden que la Sala valore nuevos argumentos que no presentaron inicialmente, lo cual es improcedente por las razones indicadas.” En segundo lugar, no se puede hacer depender de un acto del Presidente de la Asamblea Legislativa (fecha en que envía copia del expediente legislativo a la Sala Constitucional) el plazo máximo en que otro Poder de la República, como lo es el Poder Judicial, pueda hacer uso de esta facultad legal de presentar por sí mismo una consulta facultativa de constitucionalidad. Nótese que muy fácilmente, si se admitiera tal argumento, un Poder de la República (Asamblea Legislativa) le estaría impidiendo a otro (Poder Judicial) plantear este control previo de constitucionalidad, y la facultad legal otorgada al Poder Judicial se haría nugatoria en la práctica. Ello en el eventual caso en que, planteada la consulta legislativa en una fecha determinada, en ese mismo acto la Asamblea Legislativa presente copia certificada del expediente legislativo. Por lo demás, no pasa inadvertido a esta minoría lo que podría ocurrir en la realidad en cuanto al tiempo que se necesita para redactar una consulta, pues, desde que el proyecto es votado en primer debate hasta que la Comisión de Redacción lo tiene listo para el público pueden pasar varios días, haciendo dificultoso el acceso inmediato al texto, tal cual quedó aprobado, y con ello, se retrasaría la consulta que cualquier otro órgano habilitado quisiera plantear, pues para hacerlo se debe tener a la vista el texto tal cual fue aprobado. Además, nótese que, la resolución que hace la Presidencia de la Sala Constitucional, cuando tiene por recibida una consulta, se notifica únicamente a la Asamblea Legislativa, no así a los otros órganos habilitados por la Ley de la Jurisdicción Constitucional para poder plantear consultas por ellos mismos. Entonces, no hay una comunicación formal hacia estos otros órganos sobre el recibido de la consulta presentada. En tercer lugar, al tratarse de una consulta, cuyo sujeto legitimado es un órgano de composición compleja, como lo es la Corte Suprema de Justicia, se comprende que, la decisión de acudir en consulta a la Sala Constitucional requiere de su trámite interno, que va desde la discusión en Corte Plena hasta la aprobación del acuerdo respectivo, la redacción, la firma y la presentación de la consulta. Todo este conjunto de actos requiere de tiempo, y no es posible apresurar a la Corte para que lo haga antes del envío del expediente legislativo. Nótese que, el único plazo máximo que el legislador ha dispuesto, es que la consulta se haga antes de la aprobación definitiva del proyecto en cuestión, tal como dispone el último párrafo del art.98 de la Ley de la Jurisdicción Constitucional (“En los demás supuestos, la consulta deberá plantearse antes de la aprobación definitiva.”). No podría ahora, esta Sala actuar contra tal disposición legal para negar la admisibilidad de la consulta realizada por la Corte. En cuarto lugar, en este caso se denota que, ciertamente, la consulta se hizo el 01 de julio del 2021, luego de aprobado el proyecto en primer debate (el 17 de junio del 2021) y antes de su aprobación definitiva. Además, al haberse acumulado mediante resolución 2021-015240 del 02 de julio del 2021, el mismo día en que se acumularon las otras consultas presentadas por los diputados, el plazo de “un mes” que tiene la Sala para resolver, se corre a la fecha de estas resoluciones de acumulación. Por lo tanto, el hecho de que se admita esta consulta de la Corte Suprema de Justicia, en nada mueve el inicio del plazo del mes para resolver, cual es, el 02 de julio del 2021. Es decir, la consulta de la Corte en este caso, no retrasa el plazo con el que cuenta esta Sala para resolver la consulta. No resultando válido que esta Sala sí admita correr el plazo de inicio del mes para que corra a partir del 02 de julio del 2021 y no desde la fecha de recibido del expediente, pero aun así mantenga esta última fecha para limitar la presentación de la consulta realizada por la Corte Suprema de Justicia. En quinto lugar, en el mismo sentido que se dio en el precedente resuelto mediante voto n°2016-018351 de las 11:15 horas del 14 de diciembre del 2016, se tuvo por admitida la consulta facultativa realizada por la Defensoría de los Habitantes (presentada en fecha 14 de noviembre del 2016), aún después de la fecha de recibido del expediente legislativo (aportado el 04 de noviembre del 2016). Situación que no debería ser distinta a la actual, en cuanto a admitir la consulta de la Corte Suprema de Justicia, aún luego de recibido el expediente legislativo. En sexto lugar, en esta materia y cuando hay un vacío legal, debe imperar una interpretación a favor de la posibilidad de control, no excesivamente formalista, ni restrictiva, ello en atención al principio de supremacía constitucional. Tal como lo ha dicho esta Sala en un caso anterior donde había una laguna legal sobre la admisibilidad de las consultas legislativas:

“Ante la laguna normativa sobre la admisibilidad de la consulta (…), este Tribunal Constitucional en aras de los principios de la supremacía constitucional contenido en los artículos 10 de la Constitución Política y 1° de la Ley de la Jurisdicción Constitucional, de la eficacia directa e inmediata de la Constitución, de acuerdo con el cual no es necesario el desarrollo legislativo de los principios, valores y preceptos constitucionales, de la vinculación más fuerte de los derechos fundamentales, de la plenitud hermética del ordenamiento jurídico y de la seguridad, opta por admitirlas para que sean evacuadas en los extremos que más adelante serán determinados. La jurisdicción constitucional debe ser reflejo de la textura abierta y flexible del Derecho de la Constitución y su interpretación debe ser espiritual y no formal. Sobre el particular, el artículo 14 de la Ley de la Jurisdicción Constitucional dispone que “(…) A falta de disposición expresa, se aplicarán los principios del Derecho Constitucional, así como los del Derecho Público y Procesal generales (…)”. Es claro que (…) No podría interpretarse de manera restrictiva esta competencia, tomando en consideración el principio de supremacía constitucional. Por lo anterior, este Tribunal estimó procedente dar curso a las consultas de constitucionalidad presentadas, por cuanto ante la existencia del vacío legal, debe interpretarse en favor de la posibilidad de control…” (ver voto n°2007-009469).

En conclusión, conforme con la jurisprudencia anterior de flexibilidad en la admisibilidad y conforme a los argumentos dados, procedemos a salvar el voto por considerar que esta consulta presentada por la Corte Suprema de Justicia debe también tenerse por admitida. En este sentido, como estimamos esta consulta admisible, corresponde que nos pronunciemos sobre lo consultado a tenor del artículo 99 que rige esta jurisdicción.

• a)Se evacua la consulta y se consideran inconstitucionales los artículos 13, 32, 33, 34 y 36 del proyecto, en cuanto al Poder Judicial.

Sobre el artículo 13 del proyecto de Ley Marco de Empleo Público: Considera la Corte Suprema de Justicia que el artículo 13 del proyecto le otorga a Mideplán la potestad de llenar de contenido las regulaciones propias de las familias creadas en el proyecto de Ley, mediante simple acto administrativo, ello a pesar de que la regulación del funcionamiento del Poder Judicial es reserva de ley y, por ende, como el numeral no determina cómo se llena de contenido a esas “familias” ni sus regulaciones propias, podría ser contrario al Derecho de la Constitución que ese llenado se realice mediante acto administrativo de Mideplán. Se manifiesta que la regulación de las indicadas familias en el artículo 13 del proyecto, es muy pobre, por lo que se entiende que se realizará por ejercicio de la potestad reglamentaria, vía reglamento, e inclusive a través de normativa de rango inferior, toda vez que la distinción entre familias implica un tratamiento singular según el tipo de prestación de servicios de que se trate, lo cual es contrario al artículo 154 de la Constitución Política. Se indica en la consulta que se traslada la posibilidad de definir las diferentes relaciones de empleo en el Poder Judicial a regulaciones propias de normas de rango inferior por parte del Mideplán, con lo cual se está vaciando de contenido la potestad auto normativa del Poder Judicial y trasladando la posibilidad de regulación en reglamentos autónomos, hacia la adopción de otro tipo de reglamentos y peor aún, de disposiciones de alcance general, directrices, circulares, manuales y resoluciones por parte del Mideplán. Se considera que, con lo anterior, se puede poner en riesgo la razón de ser de la norma constitucional indicada en función de la independencia judicial, toda vez que el Mideplán tendrá plenas competencias para determinar la regulación propia de cada familia mediante simple reglamento o, incluso lo que es más grave, mediante acto administrativo, sin respetarse que la regulación del Poder Judicial, en cuanto a su organización y funcionamiento, es de reserva de ley. Se advierte que la reserva de ley del artículo 154 constitucional, es amplia porque pretende salvaguardar la independencia judicial y, consecuentemente, lo relacionado con el funcionamiento del Poder Judicial, no puede dejarse a simple acto administrativo de Mideplán.

Sobre el particular, después del respectivo análisis de lo argumentado en la consulta del Poder Judicial en cuanto al artículo 13, se concluye que efectivamente dicha norma roza con la Constitución. Al revisar la integralidad del proyecto y lo que puede preverse que sucederá con la aplicación específica de ese numeral, es claro que si el contenido de la frase “familias de puestos” así como las regulaciones que la harían aplicable, se emitirán mediante el ejercicio de la potestad reglamentaria, vía reglamento, e inclusive a través de normativa de rango inferior como podría ser a través de disposiciones de alcance general, directrices, circulares, manuales y resoluciones, todo ello emitido por parte del Mideplán, quien será el ente rector de la materia de empleo público.

Sobre el particular, la Sala Constitucional ha sido muy clara en establecer que la independencia del Poder Judicial se traduce, en materia económica y por la inamovilidad de su personal, así como, en lo funcional, por la posibilidad real de tomar sus decisiones de acuerdo con criterios propios y no como resultado de presiones procedentes de determinados grupos, instituciones o personas (ver sentencia número 2000-5493). Recuérdese que la independencia del Poder Judicial se refiere a la existencia de un conjunto de garantías que pretenden evitar llegar a ser controlado por otros órganos gubernamentales, como los poderes Ejecutivo y Legislativo. El Estado de la Justicia afirma que: “A mayor influencia de esos otros actores sobre la selección del personal y de los casos por atender, sobre las decisiones administrativas, la jurisdicción y el cumplimiento de las leyes, menor es la independencia del Poder Judicial” (Informe Estado de la Justicia 1, 2015, página 92). En ese sentido, el sistema de administración de justicia es autónomo en tanto dependa de él mismo y no de otros poderes; a nivel externo esa independencia es la ausencia de presiones o influencias externas que hagan vulnerable a la institución, como resultado de amenazas a la disponibilidad de recursos que le permitan desarrollar su labor con autonomía, a la estabilidad laboral y las posibilidades de ascenso de sus funcionarios, a su integridad y patrimonio, y a sus capacidades de infraestructura para atender las demandas ciudadanas.

Igualmente es de interés recordar que en la opinión consultiva n°2018-019511, en que se conoció de la consulta legislativa respecto del proyecto de "Ley de Fortalecimiento de las Finanzas Publicas" (expediente legislativo nro. 20.580), esta Sala concluyó -luego de realizar una labor interpretativa respecto del contenido del proyecto- que, en concreto, lo previsto en los numerales 46, 47 y 49, atinentes a la “rectoría de la materia empleo público de Mideplán” y “la obligatoriedad de los lineamientos técnicos y metodológicos de la Dirección General del (sic) Servicio Civil”, no aplicaban para el Poder Judicial; interpretación que se hizo tomando en consideración el principio de independencia del Poder Judicial. Luego, además, partir de la opinión consultiva anterior, la Sala ha avalado la existencia, procedencia y necesidad de un régimen particular de empleo público para los servidores del Poder Judicial.

En consecuencia, lo establecido en el artículo 13 del proyecto de Ley Marco de Empleo Público, resulta inconstitucional porque las amplias potestades que se le otorgan a Mideplán, para que vía normativa infralegal, pueda elaborar el contenido de las familias de puestos que se aplicarían en el Poder Judicial, lo cual resulta lesivo del principio de independencia judicial.

Sobre el artículo 32 del proyecto de Ley Marco de Empleo Público: El artículo 32 del proyecto establece que cada familia laboral estará conformada por una serie de grados, cada uno de los cuales representa un grupo de puestos con perfil similar, siendo el Mideplán el que definirá el número de grados requeridos dentro de cada familia laboral así como sus características; grados que consistirán en un rango de puntos de remuneración. Sobre el particular, se afirma en la consulta presentada por la Corte Suprema de Justicia, que de este numeral también se desprenden amplísimas potestades que se le otorgan al Mideplán sobre la posibilidad de llenar el contenido de las familias así como sus características, dejándose esa determinación sujeta al criterio e interpretación de Mideplán, considerando que el deliberado vacío en la regulación de las familias va en beneficio del mero acto administrativo a través del cual Mideplán, lo regulará. Se estima en la consulta que lo anterior se dispone en perjuicio de la independencia que ostenta el Poder Judicial para regular todo lo relativo a la gestión de su recurso humano, pero también en detrimento de la seguridad jurídica en materia de relación de empleo de las personas servidoras judiciales.

Sobre el particular, se concluye que lleva razón la Corte Suprema de Justicia al considerar que esta norma también lesiona el Derecho de la Constitución por cuanto, una vez más, su contenido deja al arbitrio del jerarca de turno de Mideplán, emitir la regulación correspondiente a los grados de las familias laborales, así como también establecer los grupos de puestos del Poder Judicial con perfil similar, sus características, la metodología de evaluación de los puestos de trabajo así como la evaluación en sí misma que será la que determinará los puntos de remuneración de cada grado y la progresión salarial de los puntos que se pagará al servidor, lo cual se hará a partir de una evaluación satisfactoria del desempeño profesional, también realizada por Mideplán. En consecuencia, es más que evidente que competencias que otrora eran propias, exclusivas y excluyentes del Poder Judicial, ahora serán de un órgano del Poder Ejecutivo, con la consiguiente vulneración al principio de independencia judicial que ello implica, pero además, es cierto que se sujetará a los empleados a una constante incerteza en cuanto a esos aspectos que finalmente redundará en una vulneración del principio de seguridad jurídica en su perjuicio.

Del contenido del artículo 32 bajo estudio se desprende que ahí, una vez más, se estarían trasladando competencias constitucionales que le correspondían al órgano de gobierno del Poder Judicial que es la Corte Suprema de Justicia, para dárselas a un órgano del Poder Ejecutivo, lo que indudablemente lesionaría la independencia judicial, pero además va a ocasionar un desequilibrio en la relación de poderes en perjuicio del Poder Judicial porque el Mideplán tendrá amplias potestades en abierta injerencia en el funcionamiento del Poder Judicial, con la consiguiente vulneración del principio de separación de poderes según el cual, un Poder de la República no puede interferir ni imponerse a otro Poder, en el ejercicio de sus funciones y atribuciones que le son propias. En consecuencia, el artículo 32 del proyecto de Ley Marco de Empleo Público, es inconstitucional.

Sobre el artículo 33 del proyecto de Ley Marco de Empleo Público: La Corte Suprema de Justicia estima que el artículo 33 del proyecto bajo estudio es inconstitucional porque, una vez más, le otorga amplias competencias al Mideplán que, según este numeral, será el que realizará la clasificación de puestos de trabajo en familias laborales y grados, ya que todos los puestos del servicio público deberán tener un manual de puestos detallado que será preparado por ese órgano del Poder Ejecutivo. Según este artículo, las descripciones de los puestos de trabajo reflejarán los deberes realmente desempeñados y, una vez que cada trabajo haya sido descrito, analizado y evaluado, el Mideplán lo asignará a una familia laboral y a un grado dentro de esa familia. En la consulta se considera que esa posibilidad de definir las diferentes relaciones de empleo en el Poder Judicial a regulaciones propias de normas de rango inferior hechas por Mideplán, vulnerarían la reserva de ley en esta materia y, por ende, se estaría vaciando de contenido la potestad auto normativa del Poder Judicial, con el consiguiente daño a la independencia judicial, toda vez que el Mideplán tendrá plenas competencias para determinar la regulación propia de cada familia mediante simple reglamento o acto administrativo. Se advierte en la consulta la gravedad de esa situación, en particular con referencia a los fiscales, pues se incorporarían como parte de una familia común, sin distinguir y tomar en cuenta sus características propias y las particularidades del puesto, todo a criterio del Mideplán, pero en perjuicio de la independencia del Poder Judicial, porque abre la posibilidad de una abierta injerencia en su funcionamiento que perfectamente se podría hacer mediante un simple acto administrativo por parte de la persona a cargo de Mideplán. Se considera en la consulta que existe un riesgo porque una serie de cargos del Poder Judicial -como jueces, fiscales, defensores, miembros del Consejo Superior- que deberían de estar vedados a la injerencia de otros Poderes de la República por seguridad jurídica, independencia judicial y tutela de las libertades públicas, con este proyecto estarán ahora sometidos al control de Mideplán; se estima que esto representa un riesgo de llegar a ser un instrumento hostil a la separación de Poderes y un medio en manos de un eventual Poder Ejecutivo que desee emplearla para afectar el sistema democrático hacia alternativas autoritarias.

Al respecto, consideramos que, en cuanto a este punto, lleva razón el cuestionamiento planteado por la Corte Suprema de Justicia en la consulta bajo estudio, toda vez que es cierto que el artículo 33 del proyecto de Ley Marco de Empleo Público, también otorga amplias competencias a Mideplán en lo que se refiere a la potestad para clasificar puestos de trabajo en familias laborales y grados. De la lectura del artículo 33 del proyecto es fácil deducir que se vulnerará la separación de poderes, la reserva de ley establecida constitucionalmente a favor del Poder Judicial, así como la independencia judicial, toda vez que -de nuevo- le atribuye a Mideplán una potestad en cuanto a la gestión del talento humano que siempre ha sido propia del órgano de gobierno del Poder Judicial y que ahora se podrá ejercer, inclusive, a través de simples actos administrativos que van a producir efectos propios en la organización y funcionamiento del Poder Judicial. A partir de tan amplias potestades que se le otorgarán a Mideplán, solo quedarán para el Poder Judicial escasas competencias residuales, las cuales serían insignificantes a la luz de todo lo que se le trasladaría a aquel órgano del Poder Ejecutivo, según se observa en el proyecto de Ley consultado. El Mideplán quedaría con amplias competencias que podrá realizar de manera unilateral y vertical de su parte, en abierta violación a la independencia de poderes, pues le está eliminado competencias constitucionales a la Corte Suprema de Justicia a favor de un órgano del Poder Ejecutivo que, además, es de libre remoción y nombramiento por parte del Presidente de la República. En consecuencia, el artículo 33 resulta lesivo del Derecho de la Constitución y así se declara.

Sobre el artículo 34 del proyecto de Ley Marco de Empleo Público: En el artículo 34 del proyecto bajo estudio se establece la columna salarial global que será elaborada por el Mideplán, la Secretaría Técnica de la Autoridad Presupuestaria y la Dirección General del Servicio Civil. Sobre el particular, en la consulta de la Corte Suprema de Justicia se recuerda que el Poder Judicial tiene competencias constitucionales asignadas en cuanto a su función de gobierno, reconocidas por la propia Sala Constitucional en la sentencia nº 2017-009551 en donde se ha indicado que los artículos 153 y 154 constitucionales contienen atribuciones esenciales, sea habilitaciones explícitas e implícitas del Poder Judicial relacionadas con su función de gobierno y dentro de éstas se encuentra la potestad de la organización del personal del Poder Judicial; función de gobierno que hace a la Corte Suprema de Justicia, la primera intérprete de la normativa aplicable a su personal por tratarse de materia correspondiente a su organización y funcionamiento, y no es dable que mediante simple acto administrativo se le imponga cómo debe regular su relación de empleo público según se pretende con el proyecto de ley consultado, y con el artículo 33, en particular. Se argumenta además en la consulta que a pesar de que esta norma, en principio, establece una relación de cooperación para realizar la columna salarial global, lo que indique el Poder Judicial en nada obliga a los órganos del Ministerio de la Presidencia, del Ministerio de Hacienda y de Mideplán. Aunado a esto se establece que la relación de Mideplán será con la Dirección de Gestión Humana del Poder Judicial y no con la Corte Suprema de Justicia, por lo que hay un grave vicio de inconstitucionalidad, ya que Mideplán “coordinará” con esa Dirección la definición de columna salarial global del Poder Judicial, ignorando del todo al máximo órgano de gobierno del Poder Judicial que es la Corte Plena. Por eso estiman que con este artículo se da una regresión y una afectación al principio de progresividad en el derecho que tienen todas las personas a un Poder Judicial no expuesto a riesgos de injerencia de otros poderes, es decir, a la independencia judicial.

Estimamos que en cuanto a este artículo debe decirse que la Sala Constitucional fue muy clara en la opinión consultiva nº 2018-019511 al señalar que la “rectoría de la materia empleo público de Mideplán” y “la obligatoriedad de los lineamientos técnicos y metodológicos de la Dirección General del (sic) Servicio Civil”, que se contenían en el proyecto de "Ley de Fortalecimiento de las Finanzas Publicas" (expediente legislativo nº 20.580), no aplicaban para el Poder Judicial; interpretación que se hizo tomando en consideración el principio de independencia del Poder Judicial. No obstante, en el proyecto bajo estudio, se observa que el legislador hizo caso omiso de aquel criterio y, en su lugar, ahora somete a consideración de este Tribunal normativa que evidentemente lesiona los principios de separación de poderes y la independencia judicial, toda vez que, con normas como este artículo 34, pretende que el Mideplán junto con la Secretaría Técnica de la Autoridad Presupuestaria y la Dirección General de Servicio Civil, sean los que elaboren la columna salarial global a aplicar a los empleados del Poder Judicial, en absoluta contradicción con lo dispuesto en el artículo 152 constitucional que dispone que “el Poder Judicial se ejerce por la Corte Suprema de Justicia”, y en los artículos 9 y 154 que disponen, respectivamente, el principio de separación de poderes y el principio de independencia de ese Poder de la República. Recuérdese que la Sala ha hecho expresa referencia a la improcedencia de que una instancia externa asuma la rectoría o imponga criterios sobre el Poder Judicial en estas materias y, por el contrario, ha destacado que la independencia y autonomía funcional reconocida expresamente al Poder Judicial en el propio texto constitucional (artículos 9, 152 y siguientes y 177) materializada y garantizada en sus propias normas orgánicas, impone a los jerarcas del Poder Judicial la competencia y la responsabilidad para decidir -sin injerencias indebidas- en las distintas materias, entre ellas, las que actualmente son objeto de regulación en el proyecto de Ley Marco de Empleo Público consultado (ver sentencias n°2019-25268 y 550-91).

Asimismo debe decirse que este Tribunal fue muy claro en la opinión consultiva nº 2018-019511 al señalar que la independencia del Poder Judicial es uno de los cimientos cardinales del Estado de Derecho costarricense y que a partir de los artículos 9, 154 y 156 de la Constitución Política, se ha creado un profuso marco normativo específicamente diseñado para regular al Poder Judicial, como son la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público, la Ley Orgánica del Organismo de Investigación Judicial, la Ley de Salarios del Poder Judicial, el Estatuto de Servicio Judicial, entre otras, que tienen la intención de regular a este Poder y velar porque se garantice su independencia frente a los otros Poderes de la República. Igualmente se señaló en esa resolución que la toma de decisiones en materia laboral, sean generales o concretas:

“… se encuentran ya reguladas por el mencionado marco normativo del Poder Judicial, imposibilitando que una instancia externa asuma la “rectoría” o imponga criterios sobre ese Poder. Es más, dicho marco normativo está diseñado para garantizar la eficiencia de la función judicial y proteger a los servidores judiciales de injerencias externas”.

De esta manera, la Sala ha reconocido que el Poder Judicial es clave para la democracia costarricense, tanto así que “El hecho de que Costa Rica tenga hoy la democracia más antigua y estable de América Latina es inimaginable sin el funcionamiento de un robusto sistema de administración de justicia y sin los esfuerzos recientes para modernizarlo.” (ver voto n°2018-005758). Entonces, “si no se le da la importancia al Poder Judicial en el Estado social y democrático de Derecho para su correcto funcionamiento, su debilitamiento conduce a formas de gobiernos antidemocráticas, prueba de ello es que una de las funciones que primer controlan los gobiernos autoritarios o totalitarios es la judicial, de ahí la importancia de que todo sistema democrático tenga un Poder Judicial robusto.” (ver voto n°2017-09551). Este artículo 34 del proyecto tal como está consignado, sería lesionar al Poder Judicial y a su independencia -como la clave de la robustez de este Poder-, así como al principio de separación de poderes, pero más grave aún, ocasionar su debilitamiento en perjuicio de la democracia.

Por otra parte, debe decirse que, en cuanto a empleo público, es clara la sujeción que tiene el Poder Judicial a los principios fundamentales del régimen de empleo público del artículo 191 constitucional, incluso en concordancia con el artículo 11 de la Constitución Política, toda vez que también está sometido al respectivo procedimiento de evaluación de resultados y rendición de cuentas. Adicionalmente, la Sala ha entendido como válido y justificado que el Poder Judicial cuente con su propio marco normativo que regula de forma específica, particular y diferenciada, las relaciones de empleo entre dicho Poder y sus servidores y la evaluación de su desempeño y, como se dijo supra, se ha reconocido que dicho marco normativo -integrado, entre otros, por la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público, la Ley Orgánica del Organismo de Investigación Judicial, la Ley de Salarios del Poder Judicial y el Estatuto de Servicio Judicial-, está específicamente diseñado para garantizar la eficiencia de la función judicial y la independencia del Poder Judicial, al punto que se ha sentado, como criterio jurisprudencial, que se está en presencia de normativa especial que tiene preponderancia frente a las disposiciones generales y no puede ser derogada, al menos no tácitamente, por una norma posterior de carácter general. En consecuencia, el artículo 34 del proyecto de Ley Marco de Empleo Público, es lesivo del Derecho de la Constitución y así se declara.

Sobre el artículo 36 del proyecto de Ley Marco de Empleo Público: En la consulta se indica que el proyecto supedita la política de remuneración del Poder Judicial a una definición de la Dirección General de Servicio Civil, Mideplán y la Autoridad Presupuestaria del Ministerio de Hacienda, así como la aprobación respectiva por parte del Consejo de Gobierno. Estiman que en ese numeral se crea una competencia para esas tres instancias, supeditándola a la aprobación respectiva del Consejo de Gobierno, obviando las competencias constitucionales del órgano de gobierno del Poder Judicial que es la Corte Suprema de Justicia, con lo cual existe una derogatoria tácita de las competencias de la Corte Suprema de Justicia en materia de definición de remuneración de las personas servidoras judiciales y una abierta injerencia del Poder Ejecutivo en las decisiones que, al respecto, se implementen en el Poder Judicial, anulándose las competencias constitucionales de la Corte Suprema de Justicia y atribuyéndose al Poder Ejecutivo, decisiones que tienen abierto impacto en el funcionamiento del Poder Judicial. Se argumenta además que la relación vertical y absoluta de Consejo de Gobierno con base en la actuación de órganos propios del Poder Ejecutivo, violenta la relación de coordinación-cooperación que debe existir entre Poderes de la República y establece una relación de dirección que implica un vicio de inconstitucionalidad en tanto es una abierta injerencia del Poder Ejecutivo en las decisiones más elementales en materia de remuneraciones del personal de la judicatura, fiscales, etc., sin tomar en consideración, en modo alguno, el parecer de la Corte Suprema de Justicia o el Consejo Superior del Poder Judicial. Se recuerda en la consulta que en el sistema de frenos y contrapesos que regula la Constitución Política, conforme a un Estado democrático, solo una Ley con votación de 38 diputados puede anteponerse al criterio de Corte y no con una mera interpretación del Poder Ejecutivo que se pueda determinar cómo debe ser su funcionamiento. Se recuerda en la consulta que la Corte Suprema de Justicia tiene competencias exclusivas y excluyentes respecto del gobierno del Poder Judicial en materia de fijación salarial de su personal.

En relación con este artículo 36, debe recordarse que la Sala Constitucional en la sentencia número n°550-91 manifestó que en atención al principio de independencia judicial, en el caso específico del Poder Judicial, está plenamente justificado que tenga una regulación especial, separada y diferenciada en materia de remuneración salarial de sus empleados, sujeta a los principios constitucionales fundamentales que prevén los artículos 191 y 192 en cuanto a la idoneidad comprobada:

“(…) en el caso de los poderes, su propia independencia constitucional, garantizada en general por el artículo 9° de la Constitución y, en los del Poder Judicial y del Tribunal Supremo de Elecciones por las de los artículos 99 y siguientes, 152 y siguientes y 177 de la misma, así como sus propias normas orgánicas, imponen a sus jerarcas la atribución y la responsabilidad de fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos, dentro, naturalmente, de sus disponibilidades presupuestarias, independientemente, desde luego, de que sus montos puedan coincidir o no con los de los diputados.” Desde esta perspectiva entonces, le corresponderá al Poder Judicial establecer todo lo relativo a la remuneración salarial de sus empleados, de modo que cualquier interferencia que, sobre la materia, pretenda hacer otro Poder de la República en relación con el Poder Judicial, implicará una lesión a su independencia, pero también a la separación de poderes. La Sala Constitucional en sentencia n°03575-1996, ha sido muy clara al establecer que, en relación con empleo público:

“… es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones”.

Sin duda alguna, lleva razón la anterior cita pues quién más capacitado que cada Poder de la República, para determinar cuáles son las necesidades de personal que tiene o que espera tener, en qué áreas lo necesita, bajo qué condiciones se pueden hacer las contrataciones y qué requisitos solicitar, y cuál sería la correcta remuneración a pagar, entre otros aspectos que, en el caso del Poder Judicial, son propios de su naturaleza y de las funciones que le corresponde llevar a cabo. Desde esta perspectiva, no es válido entonces que sea un ente externo, proveniente del Poder Ejecutivo como es el Mideplán, el que determine la política de remuneración de los empleados del Poder Judicial cuando ni siquiera tiene conocimiento pleno y oportuno sobre las características de sus empleados, las necesidades institucionales y el tipo de remuneración que les corresponde en atención a la peligrosidad de sus funciones, la responsabilidad que tienen en su ejercicio, la urgencia de su actuación, entre otros aspectos que le corresponde al Poder Judicial reconocer y validar. Permitir que sea un órgano externo proveniente del Poder Ejecutivo, el que determine la política de remuneración de los empleados del Poder Judicial, sin tener aquél conocimiento sobre las necesidades institucionales, implica no sólo una vulneración del principio de independencia del Poder Judicial, sino también de la separación de poderes.

En este punto interesa resaltar lo que manifestó la Sala Constitucional en la sentencia nº 2017-009551 en relación con la importancia del Poder Judicial en el Estado de Derecho y del ejercicio de su función administrativa con independencia:

“El Poder Judicial no es hoy en día un poder “vacío” o “devaluado” (como se le consideraba en los inicios del Estado moderno); es precisamente uno de los objetivos claros de los dictadores bajarle el perfil a su independencia, minar la independencia económica o rellenando las cortes con jueces “orientados ideológicamente” (court-packing que afortunadamente no ocurrió en los EEUU a pesar de una amplia mayoría partidaria en el Congreso en sintonía con su presidente F. D. Roosevelt, pero con sombrías críticas entre sus propias filas); si no se le da la importancia al Poder Judicial en el Estado social y democrático de Derecho para su correcto funcionamiento, su debilitamiento conduce a forma de gobiernos antidemocráticas, prueba de ello es que uno de las funciones que primero controlan los gobiernos autoritarios o totalitarios es la judicial, de ahí la importancia de que todo sistema democrático tenga un Poder Judicial robusto.” (…) “tanto las funciones legislativas como las judiciales requieren de una estructura administrativa de apoyo para la consecución de su función esencial o primaria, como lo es la función administrativa que le ayuda a canalizar toda su actividad; la que, lógicamente, alcanza al recurso humano o del personal de los Poderes de la República, entretanto, detrás de la función fundamental está la administrativa del personal, agentes y servidores (as) públicos (as), etc.” No puede dejarse de lado tampoco que este Tribunal en la opinión consultiva n°2018-019511, indicó que las normas especiales que regulan al Poder Judicial velan porque se garantice su independencia respecto de los otros poderes, y la interpretación sistemática constitucional impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias:

“… Entre las normas de este marco se cuentan la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público, la Ley Orgánica del Organismo de Investigación Judicial, la Ley de Salarios del Poder Judicial, el Estatuto de Servicio Judicial (incluida su reforma por la Ley de Carrera Judicial), etc. De manera clara, las normas supra enunciadas tienen la intención de regular concretamente al Poder Judicial, velando por que se garantice su independencia frente a los otros Poderes de la República”.

(…) “Es más, dicho marco normativo está diseñado para garantizar la eficiencia de la función judicial y proteger a los servidores judiciales de injerencias externas, tal como indica el artículo 1 del Estatuto de Servicio Judicial: “Artículo 1º.- El presente Estatuto y sus reglamentos regularán las relaciones entre el Poder Judicial y sus servidores, con el fin de garantizar la eficiencia de la función judicial y de proteger a esos servidores.” Nótese que la norma determina que las relaciones de empleo entre el Poder Judicial y sus servidores se encuentran reguladas por el Estatuto y su reglamento. La interpretación sistemática a que obliga ese numeral impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias. Esto se verifica porque el dictado del reglamento a que refiere la norma es, a su vez, competencia exclusiva de la Corte, como indica el mismo Estatuto: “Artículo 5º.- Antes de dictar un reglamento interior de trabajo, ya sea de carácter general para todos los servidores judiciales o aplicables sólo a un grupo de ellos, la Corte pondrá en conocimiento de esos servidores el proyecto respectivo, por el medio más adecuado, a fin de que hagan por escrito las observaciones del caso, dentro de un término de quince días. La Corte tomará en cuenta esas observaciones para resolver lo que corresponda, y el reglamento que dicte será obligatorio sin más trámite, ocho días después de su publicación en el "Boletín Judicial". Una garantía más de la independencia del Poder Judicial en el tema de empleo es que el Jefe del Departamento de Personal se encuentra vinculado al Presidente de la Corte, excluyendo la injerencia de instancias externas: “Artículo 6º.- El Departamento de Personal del Poder Judicial funcionará bajo la dirección de un Jefe que dependerá directamente del Presidente de la Corte y será nombrado por la Corte Plena”.

Así las cosas, es más que evidente que el artículo 36 del proyecto de Ley Marco de Empleo Público bajo estudio, resulta inconstitucional porque lesiona los principios de separación de poderes y la independencia judicial pues, de su contenido se desprende que la remuneración salarial de los empleados del Poder Judicial provendría de directrices o lineamientos procedentes de otras instancias ajenas al Poder Judicial, específicamente del Poder Ejecutivo, con la consiguiente injerencia de un Poder de la República sobre el Poder Judicial.

En conclusión, consideramos que los artículos 13, 32, 33, 34 y 36 del proyecto de Ley Marco de Empleo Público son inconstitucionales en cuanto se refiere a su aplicación al Poder Judicial. Lo anterior se considera así por cuanto, tal y como se dijo supra, en todos esos artículos se establecen potestades para el Mideplán que interfieren con la independencia del Poder Judicial y con el principio de separación de poderes, debiendo tenerse presente una vez más, que ningún órgano del Poder Ejecutivo, y por lo tanto externo a la Corte Suprema de Justicia pueden emitir directrices u órdenes en materia de empleo público.

• b)Se evacua la consulta y se remite a la opinión vertida en el por tanto de este expediente, respecto de los artículos 6, 7, 9, 13.f, 17, 18 y 21 del proyecto.

En cuanto a este extremo, al igual que por unanimidad este Tribunal indicó, al analizarse cada uno de los artículos 6, 7, 9, 13.f, 17, 18 y 21 del proyecto de Ley Marco de Empleo Público respecto del Poder Judicial, esta minoría considera que son inconstitucionales por las mismas razones ahí señaladas, por lo que se remite a cada punto en concreto de la sentencia general y a las respectivas matizaciones en los votos separados que se fueron consignando en cada apartado. En términos generales, valga mencionar que al amparo de estos artículos del proyecto bajo estudio, se estima que son inconstitucionales porque afectan la independencia de Poder Judicial en cuanto lo somete a la potestad de dirección y reglamentaria de Mideplán, así como a la verificación de si cumplen o no con el cometido de la evaluación del desempeño y no se excluye de la potestad de dirección, debiendo enfatizarse que la potestad de dirección y reglamentación que se atribuye en este proyecto al Poder Ejecutivo es incompatible con el principio de separación de poderes o funciones, toda vez que no le corresponde ordenar su actividad, estableciendo metas y objetivos. En lo que atañe a la evaluación del desempeño, debe quedar reservada a cada poder del Estado, toda vez que esta materia es consustancial al ejercicio de sus competencias constitucionales. En consecuencia, tal obligación para el Departamento de Gestión Humana del Poder Judicial, implicará una violación al principio de separación de poderes y a la independencia judicial, conforme los alcances que la jurisprudencia constitucional le ha dado a tales principios básicos en la democracia costarricense. Recuérdese que, el principio de división de poderes, o como se le conoce más recientemente, principio de separación de funciones, está consagrado en el artículo 9 de la Constitución Política y se erige en “uno de los pilares fundamentales del Estado Democrático, en tanto establece un sistema de frenos y contrapesos que garantiza el respeto de los valores, principios y normas constitucionales en beneficio directo de los habitantes del país.” (sentencia n°2006-013708). Tal principio hace posible que cada Poder del Estado pueda ejercer su función con independencia de los otros (sentencia n°6829-1993), y no solo como un principio de aplicación interna para el buen funcionamiento del Estado de Derecho, sino además, porque el principio de independencia judicial, en su dimensión externa, asegura un conjunto de garantías que pretenden evitar que el Poder Judicial sea controlado por otros órganos gubernamentales. La ausencia de presiones o influencias externas le permiten desarrollar su labor con autonomía, para atender las demandas ciudadanas. Por otro lado, en su dimensión interna, la independencia judicial es más que una garantía para los jueces, pues constituye también “una garantía para los particulares (partes del proceso), en el sentido de que sus casos se decidirán con apego estricto a la Constitución y las leyes” (sentencia n°5795-1998). De esta forma, “estamos ante el derecho de los ciudadanos a contar con jueces independientes” (sentencia n°2001-006632). La independencia del Poder Judicial se traduce, en materia económica y por la inamovilidad de su personal, así como, en lo funcional, por la posibilidad real de tomar sus decisiones de acuerdo con criterios propios y no como resultado de presiones procedentes de determinados grupos, instituciones o personas (ver sentencia n°2000-005493). Entonces, está plenamente justificado que en el caso específico del Poder Judicial tenga una regulación especial, separada y diferenciada, aunque sujeta a los principios constitucionales fundamentales que prevén los artículos 191 y 192 (ver sentencia n°1991-550), pero no bajo las disposiciones generales, directrices y reglamentos de un órgano de otro Poder de la República, como se pretende con este proyecto de ley. Debe tenerse en cuenta que la normativa especial que regula al Poder Judicial “impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias.” (opinión consultiva n°2018-019511); así como que “las atribuciones constitucionales de ordenar, planificar o programar por ejemplo la función administrativa de manejo de personal” (sentencia n°2017-009551) son una parte esencial de la función administrativa del Poder Judicial que coadyuva al efectivo ejercicio de su función judicial, pues “tanto las funciones legislativas como las judiciales requieren de una estructura administrativa de apoyo para la consecución de su función esencial o primaria, como lo es la función administrativa que le ayuda a canalizar toda su actividad; la que, lógicamente, alcanza al recurso humano o del personal de los Poderes de la República, entretanto, detrás de la función fundamental está la administrativa del personal, agentes y servidores (as) públicos (as), etc.” (sentencia n°2017-009551). Finalmente nótese que, en la resolución n°2018-019511, en que se conoció de la consulta legislativa respecto del proyecto de "Ley de Fortalecimiento de las Finanzas Publicas" (expediente legislativo nro. 20.580), esta Sala concluyó -luego de realizar una labor interpretativa respecto del contenido del proyecto- que, en concreto, lo previsto en los numerales 46, 47 y 49, atinentes a la “rectoría de la materia empleo público de Mideplán” y “la obligatoriedad de los lineamientos técnicos y metodológicos de la Dirección General del (sic) Servicio Civil”, no aplicaban para el Poder Judicial; interpretación que se hizo, tomando en consideración el principio de independencia del Poder Judicial. Por otra parte, no es válido que algunos funcionarios del Poder Judicial queden incluidos en una categoría del Estatuto de Servicio Civil, toda vez que ello afecta la independencia del Poder Judicial partiendo del hecho de que el gobierno judicial lo ejerce la Corte Suprema de Justicia, de forma exclusiva y excluyente en lo que atañe a sus competencias constitucionales. Al amparo del artículo 154 constitucional, se somete al Poder Judicial únicamente a la Constitución y a la ley, pero no a disposiciones del Poder Ejecutivo y los puestos de gran relevancia dentro del Poder Judicial, deben estar particularmente protegidos de la injerencia de otros Poderes de la República. Igualmente debe tomarse en cuenta que, en el Poder Judicial, se requiere la estabilidad del personal y ello es necesario para un adecuado e imparcial desempeño del cargo, lo que es incompatible con una subordinación a las disposiciones que emita al respecto el Mideplán.

Aunado a lo anterior debe decirse que el ejercicio de la potestad disciplinaria de los servidores del Poder Judicial es parte esencial de la independencia judicial y ese Poder ya goza de normativa interna que dispone el ejercicio de la potestad disciplinaria, por lo que las normas del proyecto bajo estudio que se refieran a esa materia, no serían de aplicación en el Poder Judicial y tal como esta Sala lo indicó mediante el voto n°2009-004849. Así entonces, en consonancia con el principio de independencia judicial, la entidad con competencia disciplinaria será, exclusivamente el propio Poder Judicial.

• c)Se declara inevacuable la consulta, por falta de fundamentación, respecto de los artículos 1, 5.a, 11, 12, 14, 16, 23, 24, 26, 28, 30, 31, 35, 46, transitorio II, transitorio IV, IX y X.

En la consulta de la Corte Suprema de Justicia, se hace referencia a los artículos 1, 5.a, 11, 12, 14, 16, 23, 24, 26, 28, 30, 31, 35, 46, transitorio II, transitorio IV, IX y X, todos del proyecto de Ley Marco de Empleo Público, como parte de los artículos respecto de los cuales se consideró necesario plantear consulta formal a este Tribunal.

No obstante lo anterior, esta minoría considera que los alegatos planteados en relación con esos numerales carecen completamente de la fundamentación jurídica exigida por el artículo 99 de la Ley de la Jurisdicción Constitucional para admitir este tipo de acciones procesales, pues además de no darse una explicación clara de los argumentos por los cuales se considera que pudiese existir roces de constitucionalidad en esos artículos y normas transitorias, no se hace tampoco una referencia expresa de los principios constitucionales que se consideran infringidos con las normas bajo estudio, ni de los motivos que justifican las inquietudes que llevaron a la Corte Suprema de Justicia a consultar en relación con esos numerales. En ese sentido, debe recordarse que la jurisprudencia de la Sala ha sido enfática en señalar que la consulta debe ser formulada de manera razonada, con indicación clara de lo cuestionado y de los motivos por los cuales se tienen dudas u objeciones al proyecto de ley.

Bajo este orden de consideraciones, al constatarse en el presente caso que se ha omitido cumplir con esos requerimientos, consideramos que resulta inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en cuanto a los artículos 1, 5.a, 11, 12, 14, 16, 23, 24, 26, 28, 30, 31, 35, 46, transitorio II, transitorio IV, IX y X, todos del proyecto de Ley Marco de Empleo Público, por falta de fundamentación de lo consultado.

En conclusión sobre el fondo de lo consultado por la Corte Suprema de Justicia consideramos que: a) Los artículos 13, 32, 33, 34 y 36 del proyecto son inconstitucionales, en cuanto al Poder Judicial; b) Debe remitirse a la opinión vertida en el por tanto de este expediente, respecto de los artículos 6, 7, 9, 13.f, 17, 18 y 21 del proyecto; c) Resulta inevacuable la consulta, por falta de fundamentación, respecto de los artículos 1, 5.a, 11, 12, 14, 16, 23, 24, 26, 28, 30, 31, 35, 46, transitorio II, transitorio IV, IX y X.

Nota del magistrado Rueda Leal con respecto a la consulta planteada en el expediente n.° 21-012714-0007-CO por la Corte Suprema de Justicia.

En el caso de marras, concurro con el criterio de mayoría, toda vez que estimo que una interpretación de la normativa que regula la consulta legislativa obliga a limitar el plazo para interponer tal consulta. En torno a este tema, puntualizo que, en la sentencia n.° 2016-18351 de las 11:15 horas del 14 de diciembre de 2016, la Sala rechazó una gestión de coadyuvancia de la Defensora de los Habitantes y de oficio procedió a tramitarla como una nueva consulta facultativa, que fue entonces acumulada a la original. Tal intervención de la Defensora de los Habitantes ocurrió con posterioridad a la entrega del expediente legislativo del caso. Con respecto a ese precedente, aclaro que no integré el Tribunal en esa oportunidad y, por tanto, no suscribí tal criterio. Considero, en todo caso, que debe imperar el razonamiento desarrollado en esta resolución, pues posibilita que la decisión de la Sala recaiga en un plazo razonable, evitando una interferencia indirecta en el procedimiento legislativo. Por otro lado, rechazo la posibilidad de que la Sala convierta una coadyuvancia en una nueva consulta de manera oficiosa, pues no existe norma alguna que autorice tal proceder y, además, desconoce el formalismo de los procesos de control de constitucionalidad. Véase que la Ley de la Jurisdicción Constitucional sí permite la conversión de un recurso de habeas corpus en uno de amparo (artículo 28), dado que tales procesos buscan la protección de derechos fundamentales y, por ese motivo, se basan en el informalismo para su tramitación. En contraste, el proceso de consulta constitucionalidad tiene otra finalidad, el cual consiste -como su nombre lo indica- en que la Sala revise la constitucionalidad de un proyecto de ley y otros en los términos del numeral 96 de la Ley de cita. La decisión que recae en esos procesos puede incidir en la vigencia del ordenamiento jurídico, por lo que su tramitación está sujeta a estrictos formalismos, lo que lleva a negar tanto la citada coadyuvancia como su conversión de oficio.

Nota de la magistrada Garro Vargas en relación con la admisibilidad de la consulta legislativa planteada por la Corte Suprema de Justicia Además de lo referido en el voto salvado suscrito en conjunto con la magistrada Picado Brenes, estimé oportuno realizar una nota adicional para completar mis ideas en relación con la admisibilidad de la consulta de constitucionalidad formulada por la Corte Suprema de Justicia.

En primer lugar, como manifesté en la nota de la opinión consultiva n.°2020-013837, en nuestro diseño normativo el proceso de formación de las leyes está sometido al control de constitucionalidad, ejercido a través de la Sala Constitucional. Este sistema de control puede ser a priori o a posteriori. En ambos supuestos, y con sus específicas regulaciones, es obligación de este Tribunal examinar —si así se le somete a su consideración? la propuesta normativa y el procedimiento legislativo, con el fin de cotejarlo con las normas, principios y valores que conforman el Derecho de la Constitución. En el control de constitucionalidad a priori le corresponde a la Sala Constitucional fiscalizar y “conocer de las consultas sobre proyectos de reforma constitucional, de aprobación de convenios o tratados internacionales y de otros proyectos de ley, según se disponga en la ley”. Todo lo anterior, como una manifestación del principio de la supremacía constitucional que está consagrado en el art. 10 inciso b) de la Constitución Política y en los arts. 96 y siguientes de la Ley de la Jurisdicción Constitucional (LJC). Esta forma de control de constitucionalidad, igualmente de fuerte y válida que el control a posteriori, tiene una finalidad objetiva o abstracta, pero además preventiva y precautoria. Su propósito es evitar que proyectos de ley que contengan algún vicio de constitucionalidad formen parte del ordenamiento jurídico. En efecto, el propósito de las consultas de constitucionalidad no es otro que hacer valer la “supremacía de las normas y principios constitucionales y del Derecho Internacional o Comunitario vigente en la República, su uniforme interpretación y aplicación, así como los derechos y libertades fundamentales consagrados en la Constitución o en los instrumentos internacionales de derechos humanos vigentes en Costa Rica” (art. 1° de la LJC).

Una vez reconocida la importancia de este tipo de procesos, se hace necesario distinguir que las consultas de constitucionalidad a priori pueden ser legislativas preceptivas ­?sobre proyectos de reforma constitucional o de aprobación de convenios o tratados internacionales— o facultativas —cualquier otro proyecto de ley?. En este segundo caso, pueden participar del control de constitucionalidad otros órganos constitucionales o de configuración legal que tienen una legitimación institucional u orgánica para consultar “proyectos de ley o mociones concretas incorporados a ellos en cuya tramitación, contenido o efectos estimaren como indebidamente ignorados, interpretados o aplicados los principios o normas relativos a su respectiva competencia constitucional” (art. 96 inciso c) de la LJC). Es un recurso excepcionalísimo ?pues en la historia de la Sala Constitucional prácticamente no hay antecedentes de su utilización— que procura permitir que estos órganos constitucionales, que son vitales en la configuración del Estado de Derecho, tengan la legitimación para velar precisamente por las competencias y atribuciones esenciales reconocidas de manera exclusiva y excluyente. Debe hacerse énfasis justamente en que el reconocimiento de esta legitimación deriva de la defensa de su respectiva competencia constitucional, de modo que es un instrumento inspirado en el propio principio de separación de funciones derivado del art. 9 constitucional, que se debe interpretar conjuntamente con las disposiciones que reconocen las funciones de gobierno y de administración judicial a la Corte Suprema de Justicia (arts. 152, 153 y 156 constitucionales), con las que recogen las competencias del Tribunal Supremo de Elecciones en lo relativo a la organización, dirección y vigilancia de los actos relativos al sufragio (art. 99 ídem) y con la que se refieren a la supervisión y vigilancia de la Hacienda Pública en el caso de la Contraloría General de la República (CGR) (art. 183 ídem).

Ahora bien, en relación con los requisitos para su presentación, es preciso destacar que la LJC no distingue y en su art. 98 estipula que deberá ser planteada “después de aprobados (los proyectos de ley) en primer debate y antes de serlo en tercero” y su art. 101 ordena, igualmente para todas las consultas, que la Sala la evacuará dentro del mes siguiente a su recibo. Es decir, los requisitos son los mismos para todos los supuestos examinados, sin que dichos plazos o exigencias dependan unos de otros. Por lo que no resulta admisible que este Tribunal distinga donde la ley no lo hace, y esto se estaría produciendo si se afirma que se trata de un plazo común. De este modo, si se considera que existe una omisión normativa, porque no se contempla los casos en que se presenten simultáneamente varias consultas —las legislativas facultativas y las orgánicas?, dicha laguna no puede ser suplida en detrimento de las prerrogativas dadas a los órganos supra citados para la defensa de sus respectivas competencias constitucionales y, concomitantemente, en perjuicio de la prerrogativa confiada a este Tribunal de velar por la supremacía de las normas y principios constitucionales. Igualmente, estimo que la interpretación y los límites para la admisión de este tipo de consultas no pueden ser tan severos que condicionen a un poder de la república y a un órgano que tienen rango de tal, o a un órgano constitucional como lo es la CGR. Por lo tanto, ante la situación fáctica bajo examen, no comparto la técnica empleada en el sentido de que, para llenar el vacío, se recurriera a una interpretación respecto de límites y requisitos que fueron establecidos para las consultas legislativas facultativas y extrapolarla a las consultas orgánicas, que son tan excepcionales en la labor de esta Sala Constitucional.

En este caso la mayoría indica que “la Sala Constitucional ha establecido como momento de inicio del plazo el recibido del expediente legislativo o la acumulación; a partir de esos momentos no es posible admitir nuevas consultas, sean de los (as) diputados (as) o de otros órganos externos al Parlamento”. Tal afirmación es imprecisa, pues la Sala ha establecido dicho plazo o tope a la propia Asamblea Legislativa, órgano encargado de remitir la copia certificada del expediente legislativo, no así a otros órganos de la república que no tendrían por qué verse supeditados a un límite que fue pensado para el Parlamento. Como se sabe, debido a una conocida y larga práctica de presentar varias consultas legislativas sobre determinados proyectos de ley, esta Sala estableció ese límite con la finalidad de restringir la presentación continua de múltiples consultas que podrían entorpecer tanto el trámite parlamentario como la propia competencia consultiva encomendada a este Tribunal. Nuevamente, si bien se trata de una “jurisprudencia reiterada” ?tal y como lo apunta la mayoría de la Sala— ha sido una línea jurisprudencial aplicada a los legisladores y no a otros órganos facultados legalmente para formular las consultas legislativas de constitucionalidad en defensa de sus competencias constitucionales. Distinto sería el supuesto en que se haya formulado una consulta orgánica o varias consultas orgánicas. En tal caso sí sería factible afirmar que se puede realizar una integración normativa y precisar que, desde el momento en que se presenta una consulta orgánica, el plazo de un mes los rige a todos los demás órganos, siendo que, por lo demás, es algo absolutamente atípico, pues nunca se han interpuesto varias consultas orgánicas de constitucionalidad.

Tampoco comparto que se trate de una “interferencia indebida en el iter del proyecto de ley”, en la medida que estamos ante una facultad otorgada por el propio legislador a otros poderes de la república y a otras autoridades para afinar la constitucionalidad de un determinado proyecto de ley respecto de sus respectivas competencias constitucionales.

Por lo demás, el hecho de que el proyecto de ley le hubiera sido consultado anteriormente a la Corte Suprema de Justicia no implica que este no pueda sufrir modificaciones en el propio iter legislativo que justifiquen una adecuada espera para realizar una consulta formal sobre el texto definitivo, lo cual, además, no puede ser aprobado en forma unilateral por el Presidente de dicha Corte, sino que requería una formal decisión del órgano de gobierno del Poder Judicial, sea la Corte Suprema de Justicia (ver arts. 156 y 167 de la Constitución Política).

Finalmente, tal y como apuntó en nuestro voto salvado, el hecho de admitir a conocimiento esta consulta legislativa no comportaba ningún beneficio anómalo a favor de la Corte Suprema de Justicia, justamente porque el plazo que regía a la Sala fue el de la acumulación de las otras consultas legislativas. Obsérvese que esta consulta orgánica ingresó en fecha 1° de julio de 2021 y el voto mediante el cual se acumularon las consultas legislativas de los legisladores es de fecha 2 de julio de 2021 (ver resoluciones números 2021-015137 y 2021-015105). Por lo tanto, en nada hubiera perjudicado el trámite parlamentario del proyecto de ley consultado si se hubiera admitido esta consulta legislativa y, por lo tanto, se ajustaba la Sala al plazo de evacuación de un mes posterior a la acumulación de las consultas que sí consideró admisibles. Es decir, si la propia Sala tiene el plazo de un mes para la resolución de esta opinión consultiva de ningún modo implicaba entorpecer el procedimiento parlamentario, pues justamente la consulta de la Corte ingresó de previo a la acumulación y, por lo tanto, a la ampliación del plazo para la resolución de las dudas de constitucionalidad formuladas.

En consecuencia, reitero mi consideración en el sentido de que esta consulta orgánica de constitucionalidad es admisible.

III.- Sobre la denegatoria de los escritos presentados el 22, 25, 28, 29 de junio y 05, 13, 15 y 20 de julio del 2021.- A este expediente de consulta legislativa se han presentado varios escritos: El 22 de junio del 2021 el Secretario General del Sindicato de la Salud y la Seguridad Social realiza varias manifestaciones en contra del proyecto de ley consultado. El 25 de junio del 2021 varios diputados presentan lo que denominan “coadyuvancia pasiva” y se manifiestan sobre la constitucionalidad del proyecto consultado. El 28 de junio del 2021 varios representantes de organizaciones sindicales y comunales y de la sociedad civil solicitan declarar inconstitucional el proyecto de ley consultado. El 29 de junio del 2021 varios diputados realizan manifestaciones sobre la conformidad constitucional del proyecto consultado. El 05 de julio del 2021 representantes de la Asociación Cámara de Industrias de Costa Rica plantea lo que denomina “coadyuvancia” y solicitan se rechace la consulta presentada. Luego, el 13 y 15 de julio del 2021, el presidente de la Conferencia Episcopal Nacional de Costa Rica y el Secretario General de la Confederación de Trabajadores Rerum Novarum, respectivamente, presentan lo que denominan coadyuvancia pasiva y se refieren al tema de la objeción de conciencia. Finalmente el 20 de julio del 2021, varios diputados se apersonan a argumentar sobre la inadmisibilidad de la Consulta Facultativa de Constitucionalidad interpuesta por la Corte Suprema de Justicia. Sobre todas estas gestiones, con manifestaciones a favor y en contra del proyecto consultado, procede señalar que la intervención adhesiva activa o pasiva no está prevista para los mecanismos de consulta legislativa, en los que pueden existir simples opiniones jurídicas contrapuestas acerca de la regularidad constitucional de un proyecto de ley, lo que sí procede en los procesos de amparo o de acciones de inconstitucionalidad -artículos 34 y 83 de la Ley de la Jurisdicción Constitucional; tal como lo ha indicado esta Sala en casos anteriores por tratarse la consulta facultativa de constitucionalidad de un proyecto de ley, siendo un proceso donde no se admiten coadyuvancias, ni a favor ni en contra del proyecto consultado, lo que procede es la denegatoria del trámite de todos estos escritos (ver al respecto los votos n°2019-020596, n°2008-15760, n°2007-009469, n°2005-009618, n°2004-1603, entre otros).

IV.- Sobre el plazo para resolver esta consulta.- Cuando se trata de consultas facultativas de constitucionalidad, y en aplicación de lo dispuesto en el artículo 101 de la Ley de la Jurisdicción Constitucional, la Sala Constitucional evacua la consulta dentro del mes siguiente. Como fecha de partida para empezar a contar el inicio de este mes se ha indicado que es, en principio, a partir de la fecha de recibido del expediente legislativo. En este caso, la copia certificada del expediente legislativo consultado se tuvo por recibida mediante resolución de la Sala de las 11:54 horas del 25 de junio del 2021. Sin embargo, al acumularse posteriormente, tres consultas mediante resoluciones del 02 de julio del 2021, el plazo de un mes empezó a contar a partir de esta última fecha. Así entonces el plazo que tiene esta Sala para resolver vencería el día 02 de agosto del 2021.

• B)SOBRE LO CONSULTADO V.- Sobre el objeto de la consulta.- A partir de las tres consultas admisibles presentadas se tiene que se consulta sobre el proyecto denominado "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, tanto por temas de procedimiento como por temas de fondo. En síntesis, se consultan sobre los siguientes aspectos:

Sobre los vicios de PROCEDIMIENTO consultados:

• 1)Vicios sustanciales del procedimiento (violación al derecho de enmienda y participación democrática): Indican los consultantes que la Presidencia incurrió en vicios sustanciales del procedimiento por violación del derecho de enmienda y participación democrática por las razones siguientes:

Al emitir la Resolución de admisibilidad de Mociones de Reiteración sobre el proyecto de Ley Marco de Empleo Público, expediente 21.336; Al declarar improcedentes mociones que reiteraban mociones de fondo que habían sido aprobadas en Comisión, pero admitir otras; Por acumular mociones por considerarlas idénticas, similares o razonablemente equivalentes pero sin acumular otras que sí lo eran, sin un criterio objetivo válido para proceder de esa forma; y, Por no poner en conocimiento del Pleno una moción debidamente admitida.

Sobre los vicios de FONDO consultados:

• 2)Violación a la independencia judicial: consultan sobre la constitucionalidad de varios artículos, por considerar que violan los artículos 9, 154 y 156 de la Constitución Política, el art.10 de la Declaración Universal de Derechos Humanos, el art.14 del Pacto Internacional de Derechos Civiles y Políticos y el art.8 de la Convención Americana de Derechos Humanos. Ello por cuanto las disposiciones consultadas pretenden someter al Poder Judicial a las disposiciones que dicte el Ministerio de Planificación Nacional y Política Económica (Mideplán) y a la Dirección General del Servicio Civil, en materia de empleo público.
• 3)Violación por incluir al Tribunal Supremo de Elecciones: consultan sobre la constitucionalidad del artículo 2.a y otros, por considerar que viola los artículos 9 y 99 de la Constitución Política, al obligar al TSE a aplicar y ejecutar las disposiciones de alcance general, directrices y reglamentos que emita el Mideplán (art.6, 7.d, 9, 13.b, 14, 17 y 18) en violación de su independencia, permitiendo una injerencia del Poder Ejecutivo en materia que le está vedada por mandato constitucional y en retroceso del Estado de Derecho.
• 4)Violación de la Autonomía Universitaria: consultan sobre la constitucionalidad del artículo 6 y otros, por considerar que viola el principio de autonomía universitaria contenida en los artículos 84, 85 y 87 de la Constitución Política. Consideran que se viola la autonomía universitaria al someter al régimen de empleo de las personas docentes e investigadoras de las instituciones de educación superior, a planes de desarrollo, regímenes salariales, evaluaciones de desempeño, directrices, órdenes, instrucciones y circulares dictados por Mideplán y en algunos casos por la Dirección General del Servicio Civil y la Autoridad Presupuestaria.
• 5)Violación por incluir a la Caja Costarricense de Seguro Social: consultan sobre la constitucionalidad del artículo 2.b y otros, por considerar que viola la autonomía de la CCSS y los artículos 73, 188, 11, 33 y 140.18 de la Constitución Política. Consideran inconstitucional someter a la CCSS a las directrices, lineamientos y reglamentos que emita Mideplán en temas relacionados con el empleo público sean: planificación del trabajo, organización del trabajo, gestión del empleo, gestión de rendimiento, gestión de la compensación y gestión de las relaciones laborales, así como el conjunto de disposiciones del proyecto que se expone de seguido.
• 6)Violación de la Autonomía de las Municipalidades: consultan sobre la constitucionalidad del artículo 2.c y otros, por considerar que viola la autonomía de las Municipalidades. Ello por cuanto, es inconstitucional sujetar a las Corporaciones Municipales a aplicar y ejecutar las disposiciones de alcance general, directrices y reglamentos que emita el Mideplán en temas relacionados con planificación del trabajo, organización del trabajo, gestión del empleo, gestión del rendimiento o evaluación de desempeño, gestión de la compensación y gestión de las relaciones laborales, la sujeción de las oficinas de recursos humanos al Sistema General de Empleo Público, entre otros.
• 7)Violación de la autonomía de las Instituciones Autónomas: consultan sobre la constitucionalidad del artículo 2.b y otros, por considerar que viola la autonomía de las instituciones autónomas.
• 8)Violación del principio de seguridad jurídica, igualdad, proporcionalidad y razonabilidad (objeción de conciencia): Consultan sobre la constitucionalidad del artículo 23.g, en cuanto incluye la objeción de conciencia, por considerar que viola la posibilidad de que las personas funcionarias públicas puedan alegar la objeción de conciencia con el fin de no recibir formación y capacitaciones que el Estado ha considerado obligatorias. Consideran que es inconstitucional por violentar los principios de legalidad y de seguridad jurídicas, de proporcionalidad y razonabilidad al no regular las condiciones, parámetros y restricciones que impidan la violación de derechos humanos fundamentales comprendidos en el Derecho Convencional y plenamente reconocidos por nuestro ordenamiento jurídico. En ese sentido, consideran que no es posible apelar a la objeción de conciencia para promover la desigualdad, el maltrato y la discriminación desde un puesto de poder, por ejemplo.
• 9)Violación del derecho de sindicación y negociación colectiva: consultan sobre la constitucionalidad del artículo 43 y el transitorio XV del proyecto, por cuanto se prohíbe la negociación colectiva en materia salarial, y otros temas, que abarcaría prácticamente todo lo negociable, vaciando de contenido la posibilidad de cualquier acuerdo que busque mejorar las condiciones labores de las personas trabajadoras en contraposición con lo dispuesto en el artículo 62 constitucional, del Convenio sobre el derecho de sindicación y de negociación colectiva, 1949, N° 98 de la Organización Internacional del Trabajo (OIT), artículos 4 y 6; Convención Americana de Derechos Humanos, Pacto de San José de Costa Rica, artículo 2; Pacto Internacional de los Derechos Económicos, Sociales y Culturales, artículos 2 y 8; el Protocolo Adicional a la Convención Americana sobre Derechos Humanos en Materia de Derechos Económicos, Sociales y Culturales de San Salvador, artículo 5; el numeral 7 de la Constitución Política; además del art. 690 del Código de Trabajo. Todo en violación además del principio de progresividad.
• 10)Violación de los principios de razonabilidad y proporcionalidad (sanción de inhabilitación general): consultan sobre la constitucionalidad del artículo 4.a del proyecto por cuanto incluye una sanción de inhabilitación general, en contraposición de los principios de razonabilidad y proporcionalidad. Indican que se trata de una sanción genérica y automática, que se aplicaría a cualquier tipo de despido, indistintamente si se trata de faltas graves o leves, sin que el órgano sancionador entre a valorar la gravedad de la conducta y sin que exista una ponderación de los derechos que se verán afectados.
• 11)Violación del derecho al salario y el principio de igualdad (salario global): consultan sobre la constitucionalidad de los Transitorios XI y XII que incluyen unas reglas para la aplicación del “salario global”, por considerar que ello viola el derecho al salario (art.57), el principio de no discriminación en materia salarial (art.68), la obligación del Estado de no establecer condiciones contrarias a la dignidad humana (art.56) y la irrenunciabilidad de los derechos (art.74). Además, los art.23 y 28 de la Declaración Universal de Derechos Humanos, art.14 de la Declaración Americana sobre Derechos y Deberes del Hombre, art.6 del Pacto Internacional de Derechos Económicos, Sociales y Culturales, art.7 del Protocolo Adicional a la Convención Americana sobre Derechos Humanos en Materia de Derechos Económicos, Sociales y Culturales de San Salvador. Convenio 131 OIT sobre la fijación de salarios mínimos (ley 5851), Convenio 95 OIT sobre la protección del salario (ley 2561). Convenio 100 OIT Igualdad de salario en labor de hombres y mujeres (ley 2561). Art.1 del Convenio N°111 Relativo a la Discriminación en Materia de Empleo y Ocupación, OIT (Ley 2848). Ello por cuanto, el transitorio permite la coexistencia de tres salarios diferentes para personas que se desempeñan en idénticas funciones y condiciones; y se pretende dar un trato igual a quienes no se encuentran en condiciones de igualdad o jurídicamente idénticas.
• 12)Violación al debido proceso (proceso único de despido): Se consulta sobre los artículos 21 y 22 del proyecto, en el tanto se establece un procedimiento administrativo especial para el despido, pues consideran que no existe claridad en cuanto a plazos, recepción de prueba, derecho de defensa, entre otros. Todo en violación del principio constitucional del debido proceso y seguridad jurídica.
• 13)Violación al principio de sostenibilidad fiscal por la posibilidad de los permisos: Se consulta sobre los artículos 39, 40, 41 y 42 del proyecto en cuanto se establece la posibilidad de un permiso no remunerado para reducir la jornada laboral, el permiso de paternidad y la ampliación de la licencia de maternidad. Consideran que todo ello se hace sin ningún estudio de costos ni fuentes de recursos. Sin contar con el criterio de la CCSS al respecto, pese a que ello incide de manera directa en sus finanzas.
• 14)Violación por la exclusión de las empresas públicas en competencia: Se indica que, si bien las empresas públicas en competencia, telecomunicaciones y seguros principalmente, deben de buscar aumentar su competitividad, hacer una exclusión de los principios de transparencia, excelencia en el servicio, participación ciudadana, carece de motivos objetivos y fundamentados para su exclusión del empleo público. Además, se excluye al Benemérito Cuerpo de Bomberos, que dicen se rigen por el Derecho Privado, pero no se excluyó a otros como Recope y al Instituto Nacional de Aprendizaje.

Cada uno de los vicios anteriores se examinan por separado a continuación. Se procede a revisar únicamente los extremos cuestionados en forma concreta por los consultantes y no aspectos generales de constitucionalidad de la normativa consultada, según lo dispone el artículo 99 de la ley que rige esta jurisdicción. En este sentido debe quedar claro que, sobre aquellas normas del proyecto de ley en cuestión sobre las cuales esta Sala no se pronuncie (sea porque no fueron consultadas o por la fundamentación insuficiente de los consultantes), no se está indicando que sean o que no sean constitucionales, así que debe entenderse que no fueron analizadas por esta Sala y no hay criterio externado sobre su constitucionalidad. Por otro lado, se aclara además que, el texto que tiene a la vista esta Sala para realizar el examen de cada norma consultada, es la “Redacción Final” con fecha 23 de junio del 2021.

VI.- Sobre los vicios de PROCEDIMIENTO consultados.- Los consultantes consideran que la Presidencia incurrió en vicios sustanciales del procedimiento por violación de derecho de enmienda y participación democrática, por las razones siguiente: al emitir la resolución de admisibilidad de mociones de reiteración sobre el proyecto de ley en cuestión; al declarar improcedentes mociones que reiteraban mociones de fondo que habían sido aprobadas en Comisión, pero admitir otras; por acumular mociones al considerarlas idénticas, similares o razonablemente equivalentes, pero sin acumular otras que sí lo eran, sin un criterio objetivo válido para proceder de esa forma; y, por último, por no poner en conocimiento del Pleno una moción debidamente admitida. Para proceder al examen de estos vicios de procedimiento, se procederá primero a indicar la cronología que ha seguido el proyecto consultado (1), se verá la jurisprudencia de esta Sala sobre los vicios sustanciales de procedimiento y las mociones (2), para finalmente examinar lo consultado sobre los vicios de forma (3).

• 1)Cronología del procedimiento legislativo del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336.- A partir de los distintos tomos del expediente legislativo, se tiene que, en resumen, el proyecto de ley consultado siguió el siguiente procedimiento:
• 1)El 08 de abril de 2019, el ministro de la Presidencia presentó a la Secretaría de la Asamblea Legislativa el proyecto “LEY MARCO DE EMPLEO PÚBLICO” expediente N° 21.336 (ver folio 1, Tomo 1 del expediente legislativo).
• 2)El 29 de abril de 2019, el Departamento de Archivo, Investigación y Trámite remitió a la Imprenta Nacional, el expediente legislativo, para su publicación en el Diario Oficial (ver folio 110, Tomo 1 del expediente legislativo).
• 3)El 30 de mayo de 2019, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa recibió el proyecto de estudio.
• 4)Por oficio N° AL-DEST-CO-069-2019 del 6 de junio de 2019, el Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa remitió a la Comisión Permanente Ordinaria de Gobierno y Administración, la lista de consultas obligatorias relativas el expediente N° 21.336 (ver folio 118, Tomo 1 del expediente legislativo).
• 5)Por oficio N° TSE-1388-2019 de 2 de julio de 2019, el presidente del Tribunal Supremo de Elecciones rindió criterio sobre el proyecto de ley N° 21.336 solicitado por la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa (ver folio 450, Tomo 2 del expediente legislativo).
• 6)Por oficio N° SP-146-2019 de 3 de julio de 2019, la Corte Suprema de Justicia contestó la solicitud de criterio de la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa, en relación con el proyecto de ley N° 21.336 (ver folio 496, Tomo 2 del expediente legislativo).
• 7)Por oficio N° SJD-885-2019 de 5 de julio de 2019, la Junta Directiva de la Caja Costarricense de Seguro Social remitió a la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa, el criterio solicitado en relación con el proyecto de ley N° 21.336 (ver folio 592, Tomo 2 del expediente legislativo).
• 8)Por oficio N° DJ-1110 de 30 de agosto de 2019, la Contraloría General de la República remitió a la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa, el criterio solicitado en relación con el proyecto de ley N° 21.336 (ver folio 1541, Tomo 6 del expediente legislativo). (Ver folio 5802, Tomo 20, criterio sobre texto sustitutivo).
• 9)Por oficio N° OJ-132-2019 de 12 de noviembre de 2019, la Procuraduría General de la República remitió a la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa, el criterio solicitado en relación con el proyecto de ley N° 21.336 (ver folio 1975, Tomo 7 del expediente legislativo y folio 3133, Tomo 11). (ver folio 5672, Tomo 19, criterio sobre texto sustitutivo).
• 10)El 3 de marzo de 2020, el Departamento de Servicios Técnicos de la Asamblea Legislativa envió a la Comisión Permanente Ordinaria de Gobierno y Administración, el informe jurídico del expediente legislativo N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (ver folio 1993, Tomo 7 del expediente legislativo).
• 11)Por oficios Mideplán-DM-OF-0663-2020 y DM-620-2020, ambos de 18 de mayo de 2020, los Ministerios de la Presidencia y de Planificación Nacional y Política Económica, enviaron a la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa, el texto sustitutivo del proyecto de ley “LEY MARCO DE EMPLEO PÚBLICO” expediente legislativo N° 21.336 (ver folio 2069, Tomo 7 del expediente legislativo).
• 12)El 16 de junio de 2020, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa aprobó una moción de fondo de texto sustitutivo del expediente N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (ver folios 2142 y 2255, Tomo 8 del expediente legislativo).
• 13)En sesión ordinaria de la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa N° 03 del 16 de junio de 2020, se aprobó una moción para que se consulte el texto sustitutivo del proyecto de ley N° 21.336 a las instituciones y organizaciones públicas señaladas en el acta (ver folio 2256, Tomo 8 del expediente legislativo).
• 14)El 03 de noviembre de 2020, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa aprobó otra moción de fondo de texto sustitutivo del expediente N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (ver folios 4472 y 4589, Tomo 15 del expediente legislativo).
• 15)El 04 de noviembre de 2020, el Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa emitió el informe N° AL-CJU-066-2020, denominado Informe de Consulta “Publicidad de las Sesiones” (ver folio 4643, Tomo 16 del expediente legislativo).
• 16)Según acta N° 21 del 4 de noviembre de 2020, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa aprobó otro texto sustitutivo (ver folios 4648 y 4768 del Tomo 16).
• 17)En sesión ordinaria N° 22 del 10 de noviembre de 2020, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa aprobó una moción para que se publicara el texto del expediente N° 21.336 “Ley Marco de Empleo Público”. Asimismo, para que se realizaran las consultas obligatorias a las instituciones y organizaciones (ver folios 4859 al 4862, Tomo 16 del expediente legislativo).
• 18)El 10 de noviembre de 2020, el Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa emitió el Informe de Consulta N° AL-CJU-068-2020, denominado “Aplicación del Principio de Corrección Formal del Procedimiento para Corregir Vicios Esenciales y no Esenciales en el Trámite Legislativo” (ver folio 4870, Tomo 16 del expediente legislativo).
• 19)El 10 de noviembre de 2020, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa emitió los dictámenes de minoría afirmativo (folio 5263 y siguientes, Tomo 18 del expediente legislativo) y mayoría afirmativo (afirmativo) (folios 5432 y siguientes, Tomo 18 del expediente legislativo).
• 20)Por oficio N° AL-DEST-CO-346-2020 del 12 de noviembre de 2020, el Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa indicó a la Comisión Permanente Ordinaria de Gobierno y Administración, la lista de instituciones a las que deberían hacerse consultas obligatorias sobre el proyecto de ley N° 21.336 (ver folio 5187, Tomo 17 del expediente legislativo).
• 21)El 18 de noviembre de 2020, la Comisión Permanente de Gobierno y Administración entregó al Directorio Legislativo, el proyecto de ley N° 21.336 “Ley Marco de Empleo Público” (ver folio 5567, Tomo 18 del expediente legislativo).
• 22)En sesión ordinaria del Plenario N° 28 del 21 de enero de 2021, se inició la discusión por el fondo en el trámite del primer debate del expediente N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (ver folio 6851, Tomo 25 del expediente legislativo).
• 23)El 4 de febrero de 2021 la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa entregó a la Secretaría del Directorio, el primer informe de mociones vía 137 del expediente N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (ver folio 6910, Tomo 25 del expediente legislativo).
• 24)En la sesión plenaria N° 38 del 18 de febrero de 2021, se presentaron 474 mociones de fondo, las cuales se trasladaron a la Comisión Dictaminadora (ver folios 7574 y 7576, Tomo 28 del expediente legislativo).
• 25)El 10 de marzo de 2021, la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa entregó a la Secretaría del Directorio, el segundo informe de mociones vía 137 del expediente N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (ver folio 7661, Tomo 28 del expediente legislativo).
• 26)En sesión ordinaria N° 50 del Plenario Legislativo, del 16 de marzo de 2021, la Presidencia consultó a las señoras y señores diputados, si presentarían mociones de reiteración (art. 138 del Reglamento), lo cual fue confirmado por varias señoras y señores diputados (ver folio 8895, Tomo 35 del expediente legislativo).
• 27)En sesión ordinaria N° 51 del Plenario Legislativo, del 18 de marzo de 2021, la Presidencia emitió una resolución sobre la admisibilidad de las mociones de reiteración (ver folios 8997 al 9004, Tomo 35 del expediente legislativo).
• 28)En sesión extraordinaria del Plenario N° 83 del 22 de marzo de 2021, se conoció la moción de orden de apelación sobre la resolución de la Presidencia respecto a la admisibilidad de las mociones de reiteración, la cual fue desechada. Igualmente, se inició la discusión de las mociones de reiteración (ver folio 9341 al 9351, Tomo 36 del expediente legislativo).
• 29)En sesión extraordinaria del Plenario N° 84 del 23 de marzo de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folio 9554 y 9731, Tomo 38 del expediente legislativo).
• 30)En sesión extraordinaria del Plenario N° 85 del 24 de marzo de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 10046 y 10126, Tomo 40 del expediente legislativo).
• 31)En sesión ordinaria del Plenario N° 052 del 5 de abril de 2021, se anunció la presentación de mociones de revisión y se siguió con el conocimiento de las mociones de reiteración (ver folios 10329 y 10361, Tomo 41 del expediente legislativo).
• 32)En sesión extraordinaria del Plenario N° 86 del 06 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 10446, Tomo 41 y folio 10497, Tomo 42 del expediente legislativo).
• 33)En sesión extraordinaria del Plenario N° 87 del 06 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 10616, Tomo 42 y 10670, Tomo 43 del expediente legislativo).
• 34)El 6 de abril de 2021, el Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa emitió el “Informe sobre el Texto en Discusión en el Plenario del Expediente N° 21336 Ley Marco de Empleo Público: Conexidad, Aspectos de Constitucionalidad y de Procedimiento” (ver folio 10799, Tomo 43 del expediente legislativo).
• 35)En sesión extraordinaria del Plenario N° 88 del 07 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 10996, Tomo 44 y 11264, Tomo 45 del expediente legislativo).
• 36)En sesión extraordinaria del Plenario N° 89 del 07 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folio 11204, Tomo 45 y folio 11250, Tomo 46 del expediente legislativo).
• 37)En sesión extraordinaria del Plenario N° 90 del 08 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 11345 y 11375, Tomo 46 del expediente legislativo).
• 38)En sesión extraordinaria del Plenario N° 91 del 08 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 11476 y 11532, Tomo 47 del expediente legislativo).
• 39)En sesión extraordinaria del Plenario N° 92 del 12 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración (ver folios 11648, Tomo 47 y 11699, Tomo 48 del expediente legislativo).
• 40)En sesión extraordinaria del Plenario N° 93 del 12 de abril de 2021, se continuó con el conocimiento de las mociones de reiteración y de revisión (ver folios 12062 y 12212, Tomo 50 del expediente legislativo).
• 41)En sesión extraordinaria del Plenario N° 94 del 13 de abril de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 12359 y 12412, Tomo 51 del expediente legislativo).
• 42)En sesión extraordinaria del Plenario N° 95 del 13 de abril de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 12521, Tomo 51 y 12583, Tomo 52 del expediente legislativo).
• 43)En sesión extraordinaria del Plenario N° 96 del 14 de abril de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 12761 y 12813, Tomo 53 del expediente legislativo).
• 44)En sesión extraordinaria del Plenario N° 97 del 14 de abril de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 12920 y 12981, Tomo 54 del expediente legislativo).
• 45)En sesión ordinaria del Plenario N° 053 del 15 de abril de 2021, se conocieron mociones de revisión, orden y se continuó la discusión de fondo del proyecto de ley N° 21336 (ver folios 13071 y 13090, Tomo 54 del expediente legislativo).
• 46)En sesión extraordinaria del Plenario N° 99 del 20 de abril de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 13133 y 13207, Tomo 55 del expediente legislativo).
• 47)En sesión extraordinaria del Plenario N° 101 del 21 de abril de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 13346 y 13389, Tomo 56 del expediente legislativo).
• 48)En sesión ordinaria del Plenario N° 06 del 18 de mayo de 2021, se presentó y aprobó una moción de orden de posposición (ver folio 13498, Tomo 57 del expediente legislativo).
• 49)En sesión extraordinaria del Plenario N° 002 del 19 de mayo de 2021, se presentó y aprobó una moción de orden que autorizaba realizar una sesión extraordinaria el 20 de mayo de 2021 (ver folios 13506 y 13508, Tomo 57 del expediente legislativo).
• 50)En sesión extraordinaria del Plenario N° 003 del 20 de mayo de 2021, se continuó con el conocimiento de las mociones de revisión (ver folios 13514 y 13611, Tomo 57 del expediente legislativo).
• 51)En sesión ordinaria del Plenario N° 07 del 24 de mayo de 2021, se finalizó el conocimiento de todas las mociones de fondo y de revisión del expediente N° 21.336. Finalmente, se instruyó a la Secretaría del Directorio para realizar las consultas obligatorias y ordenar la publicación del proyecto (ver folios 13770, 13773 y 13852, Tomo 58 del expediente legislativo).
• 52)El 25 de mayo de 2021 el Departamento de Gestión Documental y Archivo Legislativo envió a la Imprenta Nacional, el texto actualizado del proyecto de ley N° 21.336 para su publicación (ver folio 13949, Tomo 58 del expediente legislativo).
• 53)Por oficio N° AL-DSDI-OFI-0053-2021 del 25 de mayo de 2021, se solicitó criterio sobre el texto actualizado del expediente legislativo N° 21.336 a las siguientes autoridades públicas: Corte Suprema de Justicia, Tribunal Supremo de Elecciones, Caja Costarricense de Seguro Social, Consejo Nacional de Rectores, universidades públicas, Consejo Superior de Educación y municipalidades (ver folio 13909, Tomo 58 del expediente legislativo).
• 54)El texto actualizado del proyecto de ley N° 21.336 fue publicado en el Diario Oficial La Gaceta N° 100, Alcance N° 105 del 26 de mayo de 2021 (ver folio 13951, Tomo 58 del expediente legislativo).
• 55)Por oficio del 28 de mayo de 2021, la Contraloría General de la República atendió la solicitud de criterio en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14354, Tomo 60 del expediente legislativo).
• 56)Por oficio N° SCI-544-2021 del 2 de junio de 2021, el Instituto Tecnológico de Cartago aportó el criterio solicitado en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14436, Tomo 61 del expediente legislativo).
• 57)Por oficio N° OF-CNR-14-2021 del 2 de junio de 2021, el Consejo Nacional Rectores aportó el criterio solicitado en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14538, Tomo 61 del expediente legislativo).
• 58)Por oficio N° SP-62-2021 del 03 de junio de 2021, la Corte Suprema de Justicia atendió la solicitud de criterio en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14504, Tomo 61 del expediente legislativo).
• 59)Por oficio N° UNA-SCU-ACUE-136-2021 del 03 de junio de 2021, la Universidad Nacional atendió la solicitud de criterio en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14566, Tomo 61 del expediente legislativo).
• 60)Por oficio TSE-1226-2021 del 03 de junio de 2021, el Tribunal Supremo de Elecciones atendió la solicitud de criterio en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14642, Tomo 62 del expediente legislativo).
• 61)Por oficio N° REF-CU-2021-181 del 04 de junio de 2021, la Universidad Estatal a Distancia atendió la solicitud de criterio en relación con el texto actualizado del proyecto N° 21.336 (ver folio 14631, Tomo 62 del expediente legislativo).
• 62)En sesión ordinaria del Plenario N° 14 del 10 de junio de 2021, se aprobó una moción de alteración del orden del día, para que el expediente legislativo N° 21.336, ocupara el primer lugar antes de los segundos debates, hasta su votación final (ver folios 14751 y 14754, Tomo 63 del expediente legislativo).
• 63)En sesión ordinaria del Plenario N° 15 del 14 de junio de 2021, se aprobó una moción de orden de posposición. Se continuó la discusión por el fondo, en primer debate del proyecto de ley N° 21.336 (ver folio 14794, Tomo 63 del expediente legislativo).
• 64)En sesión ordinaria del Plenario N° 16 del 15 de junio de 2021, se aprobó una moción de orden de posposición. Se continuó la discusión por el fondo, en primer debate, del proyecto de ley N° 21.336 (ver folios 14849 y 14851, Tomo 63 del expediente legislativo).
• 65)En sesión ordinaria del Plenario N° 17 del 17 de junio de 2021, se aprobó una moción de orden de posposición. Se continuó y finalizó la discusión en primer debate del proyecto de ley N° 21.336, quedando aprobado con 32 votos a favor y 15 en contra (ver folios 14922, 14926y 14947, Tomo 64 del expediente legislativo).
• 66)El 17 de junio de 2021, ingresó a la Secretaría de la Sala Constitucional la consulta facultativa de constitucionalidad N° 21-011713-0007-CO, referida al expediente legislativo N° 21.336 “Ley Marco del Empleo Público” (ver folio 14965, Tomo 64 del expediente legislativo).

Ahora bien, las objeciones puntuales de constitucionalidad que se plantean al respecto, son las siguientes:

-Violación del derecho de enmienda, al haber declarado inadmisibles las mociones de reiteración 18, 231 y 250, por tratarse de mociones de fondo que, aun cuando fueron aprobadas por la comisión dictaminadora, fueron modificadas posteriormente: Consideran los diputados, por ejemplo, que la moción 138-231 se declaró inadmisible a pesar de que la proponente indicó a la Presidencia en su apelación que, aunque fue aprobada la moción de fondo que se reiteró, posteriormente se aprobó otra moción que dejó sin efecto la anterior. En igual sentido se expresó el diputado proponente de la moción 138-18; sin embargo, la Presidencia sí admitió la moción 138-345, que reiteró la moción 122-137 también fue aprobada por la Comisión de Gobierno y Administración en la sesión extraordinaria n° 02 del 26 de enero de 2021. Esa diputada sí pudo defender la moción y esta resultó nuevamente aprobada en la sesión extraordinaria del Plenario n° 93.

-Consideran que la resolución mediante la cual se dispuso acumular parcialmente las mociones de reiteración, excede lo dispuesto en los artículos 27 y 138 del Reglamento Legislativo y violenta el derecho de participación democrática, enmienda y razonabilidad: Consideran los diputados que, no se acumularon mociones que sí coincidían, tales como: las mociones de reiteración 184 y 251 que reiteran la moción de fondo 102, las mociones de reiteración 194 y 270 que reiteran la moción de fondo 355, las mociones 138-195 y 138-271 que reiteran la moción de fondo 310 y las mociones 138-130, 138-273 que reiteran la moción de fondo 433 y la moción 344 que debió acumularse a las mociones de reiteración 198 y 272. Estiman la indebida acumulación en el inciso 4 de la moción 138-154, pues esta pretendía modificar el artículo 2 y adicionar el 3, mientras que las otras, solo proponían adicionar el artículo 3. Agregan que, al finalizar el conocimiento de las mociones de reiteración, el presidente puso en conocimiento la moción 138-154 dando la palabra al proponente para su defensa y sometiéndola a votación del Pleno, modificando la resolución de forma unilateral.

-Violación al derecho de enmienda y participación democrática de la diputada Paola Vega Rodríguez: Aducen que, pese a que la moción de reiteración 138-210 fue admitida, pues no consta en la resolución cuestionada que no lo fuera, y tampoco que se acumulara con otras mociones, la Presidencia no la puso en conocimiento del Pleno, por lo que se omitió su posterior votación. Refieren que, lo correspondiente era conocer la moción 138-210, luego de la 138-207 (ya que las mociones 13-208 y 138-209 fueron retiradas por sus proponentes) en la sesión extraordinaria n° 88, celebrada el 7 de abril de 2021.

• 2)Sobre la jurisprudencia de esta Sala en cuanto a vicios sustanciales del procedimiento y el rechazo de mociones.- El tema de vicios sustanciales en el procedimiento parlamentario ha sido analizado en varias oportunidades por esta Sala. La jurisprudencia constitucional ha indicado en general que, la potestad de reglamentación interna de la Asamblea Legislativa se puede ejercer libre y autónomamente, en tanto, claro está, no enfrente disposiciones, principios o valores constitucionales. La potestad del Parlamento para dictar las normas de su propio gobierno interno (interna corporis), no solo está prevista por la Constitución Política en su artículo 121 inciso 22, sino que es consustancial al sistema democrático y específica de la Asamblea Legislativa como poder constitucional, a tenor del Título IX de la Carta Fundamental. Esta potestad es intrínseca de la Asamblea Legislativa, la cual desarrolla, con absoluta independencia de los otros órganos del Estado, en virtud del principio establecido en el artículo 9 de la Carta Fundamental. Sin embargo, como toda potestad, su ejercicio está sujeto a limitaciones, cuales son: el acatamiento del Derecho de la Constitución, es decir, al conjunto de valores, principios y normas constitucionales. En reconocimiento de esa “interna corporis”, esta Sala ha reconocido que su función en materia de procedimiento legislativo es únicamente la de declarar, aquellos vicios sustanciales, que violen los principios y valores constitucionales aplicables a la materia, pues de lo contrario estaría afectando la capacidad autonormativa y funcional del parlamento (interna corporis), distorsionando su papel de guardián de la supremacía constitucional, por el de una especie de senado ad hoc. De esta forma, sólo frente a violaciones evidentes o groseras, de los principios constitucionales que rigen el derecho parlamentario, sería legítima la intervención de esta Jurisdicción Constitucional. Así, los defectos controlables por parte de la Sala, son aquellos que se refieren a la violación de algún requisito o trámite "sustancial" previsto en la Constitución o, en su caso, establecido en el Reglamento de la Asamblea Legislativa. La intervención de la Sala en materia de procedimiento legislativo, conforme a lo señalado, sólo debe darse en caso de la utilización de estas potestades con evidente abuso de poder, que resulte en la anulación de un derecho y no en su armonización con el resto de los principios constitucionales del derecho parlamentario. Luego, en concreto sobre el derecho de enmienda de los diputados, esta Sala ha dicho que, la participación de los diputados en las Comisiones Permanentes Ordinarias está regulado en los artículos 123 y 124 del Reglamento de la Asamblea Legislativa, que reconocen el derecho de cualquier diputado a presentar mociones escritas “que considere como reforma del caso a cada proyecto”, y las mociones de fondo podrán tramitarse desde el día de publicación del proyecto de ley y mientras no haya sido votado el mismo en la Comisión correspondiente. Las mociones de fondo son aquellas propuestas de los diputados destinadas a modificar el proyecto de ley en cuanto al fondo. Es decir, la contribución de cada diputado en el proceso de formación de la ley se ejerce mediante una propuesta escrita, que procura mejorar, aclarar, modificar, suprimir o adicionar las proposiciones normativas incluidas en incisos, artículos, secciones, capítulos o títulos de un proyecto de ley, lo que significa la posibilidad de influir y determinar los contenidos que finalmente son aprobados por la Asamblea Legislativa, y que constituye el ejercicio de un derecho de todos los integrantes de dicho Poder, el derecho de enmienda, que a su vez define uno de los aspectos esenciales de la actividad legislativa y de nuestro régimen democrático. Como todo derecho tiene sus límites, entre los cuales, está el respeto al principio de conexidad, el cual garantiza a su vez, el derecho a la iniciativa en la formación de la ley y la debida publicidad de la propuesta. Ahora bien, en concreto sobre el rechazo de mociones, esta Sala ha resuelto lo siguiente:

-La facultad de mocionar que el Reglamento de la Asamblea Legislativa concede a todos los diputados, tiene como finalidad asegurar la posibilidad de participación de todos los grupos que la conforman, permitiéndoles ejercer, ampliamente, su papel de formadores de la ley, sea que estén en la "situación" o en la "oposición" respecto de la opinión de la mayoría, debido a su carácter de representantes del pueblo (artículo 105 de la Constitución). Los únicos límites admisibles a esta facultad son los que expresamente consten en la Constitución Política, o bien en el Reglamento de la Asamblea Legislativa, siempre que en este último caso no restrinjan, en forma excesiva, el derecho de todo diputado a mocionar, afectando el núcleo esencial de dicha atribución (ver sentencia n°2000-003220).

-La Presidencia de la Comisión puede, en aras de racionalizar la discusión y el debate, incluso de oficio, agrupar mociones que tengan conexión íntima, identidad de contenido o cuando sean razonablemente equivalentes o reiteración de otras pendientes de resolverse o ya resueltas, así como rechazar las que no se ajusten a lo establecido. En caso de ser ayuna de motivación la resolución, el Diputado puede plantear la apelación del caso para que el vicio sea subsanado (ver sentencias números 2007-002901 y 2007-009699).

-La facultad de rechazo de mociones por parte del presidente debe ser entendida restrictivamente y únicamente respecto de cuestiones de forma, oportunidad o razones de evidente improcedencia (ver sentencia n°2005-007428).

-Se configura un vicio sustancial en el procedimiento legislativo que lesiona el derecho de enmienda y de participación, cuando mociones admitidas no son sometidas a votación (ver sentencia n°2008-004569).

En conclusión, de todo lo anterior se desprende que, la facultad de mocionar de todos los diputados de la Asamblea Legislativa admite como únicos límites los que expresamente consten en la Constitución Política, o bien en el Reglamento de la Asamblea Legislativa, siempre que no restrinjan en forma excesiva o afecte el núcleo esencial de dicha atribución (derecho de enmienda del diputado). Por ello, es posible que el presidente de la Asamblea Legislativa proceda a acumular mociones, mediante una resolución motivada.

• 3)Sobre lo consultado.- Tomando como base la jurisprudencia anterior, se procede al examen de lo consultado sobre los vicios de procedimiento. En concreto, se consultan los siguientes tres puntos sobre la resolución adoptada por la Presidencia, sobre la admisibilidad de mociones de reiteración, adoptada en la sesión ordinaria n°51 del 18 de marzo de 2021:

-Declarar inadmisibles mociones de reiteración, porque eran mociones de fondo ya aprobadas en Comisión.

-Acumular unas mociones de reiteración por considerarlas idénticas, pero no acumular otras que sí lo eran.

-No poner en conocimiento del Plenario una moción admitida.

Al respecto, se observa del expediente legislativo lo siguiente:

Ciertamente, en la sesión plenaria ordinaria n° 51 del 18 de marzo de 2021, el Presidente de la Asamblea Legislativa emitió una resolución sobre la admisibilidad de las mociones de reiteración, en la que desarrolla tres puntos (ver folios 8997 al 9017, Tomo 35 del expediente legislativo), refiriéndose este análisis únicamente a los dos primeros, de interés para este estudio”:

Se tuvieron por inadmisibles las mociones de reiteración identificadas con los números 18, 231 y 250, por corresponder a mociones de fondo que fueron aprobadas en la comisión dictaminadora. Se agrupó la discusión de varias mociones de reiteración, por considerar que eran “idénticas, similares o razonablemente equivalentes”. Serían discutidas en un solo acto, pero votadas de forma individual.

-Sobre las mociones de reiteración declaradas como inadmisibles, en razón de tenerse como aprobadas en Comisión: Revisado el expediente, se constata la apelación planteada contra el rechazo de la moción 138-231 de la diputada Vega Rodríguez y 138-18 del diputado Abarca Mora, así como la apelación general del diputado Welmer Ramos (diputado proponente de la moción 138-250). Lo anterior es relevante, porque la Sala ha determinado que los vicios de procedimiento deben ser advertidos en su momento, para poder luego consultarse sobre ellos en la consulta de constitucionalidad que se presente. Vista la apelación planteada de estas mociones, procede su examen. Ciertamente habría una arbitrariedad y consecuente vicio sustancial, si se demostrara que, las mociones 138-18, 138-231 y 138-250 fueron aprobadas en Comisión, pero que otra moción aprobada posteriormente en comisión “les cayó encima” y luego se rechazara la posibilidad de reiterarlas. Ahora bien, en el caso de las mociones 138-231 y 138-250, el escrito de interposición de la consulta no advierte con claridad cuál fue esa otra moción que les cayó encima o en qué momento procesal sucedió. En total fueron conocidas 777 mociones de fondo y fueron planteadas 352 de reiteración. Esto implicaría que sea la Sala quien deba revisar todas las mociones de fondo aprobadas, luego de que la moción de fondo referida en la moción de reiteración 138-231 y 138-250, fueran aprobadas, a fin de encontrar, conforme su contenido, la supuesta moción que luego las dejó sin efecto, revisión que, a todas luces, es improcedente por parte de esta Sala. Este Tribunal, en reiteradas ocasiones, ha señalado que en el libelo de interposición deben expresarse no solo los artículos del proyecto cuya constitucionalidad se cuestiona o consulta, sino manifestarse de manera clara y suficiente los motivos por los cuales se estima que una norma del proyecto puede ser inconstitucional, pues caso contrario la consulta sería inadmisible (ver, en este sentido, sentencias números 1995-5399-95, 1995-5544, 1999-7085, 2001-11643 y 2012-9253). En cuanto al caso de la moción 138-18, los consultantes fundamentan el vicio cuando citan lo que el diputado Abarca Mora señaló al apelar lo siguiente:

“…Esa moción se refiere a la moción 329 del segundo día de mociones y que de aprobarse la 80 o la 81 de segundo día de mociones, básicamente quedaría fuera del texto a pesar de que fue aprobada y por eso usted la está excluyendo, ya en repetidas ocasiones en el Plenario se han aceptado y admitido mociones aprobadas precisamente para preservar el espíritu del legislador y en este caso yo le llamo la atención en función de que si usted me rechaza esa moción y se aprueba la 80 o la 81 del segundo día, le podemos hacer un daño al proyecto y borraríamos algo que está hoy en el texto base…”.

Es decir, se pide la admisión de una moción de reiteración de una moción ya aprobada en Comisión, para asegurar que no vaya a ser modificada posteriormente. Sin embargo, aunque en este caso sí estuvo fundamentado el argumento, no puede esta Sala sustentar un vicio de procedimiento en un supuesto incierto, a saber, que se lleguen a aprobar mociones que probablemente le puedan caer encima. Lo que procedería en esos casos es que el diputado interesado, durante la moción de reiteración de la moción que le pueda caer encima, defienda el texto aprobado para que se rechace esa moción de reiteración. Y si ya el Plenario decide ir en contra, esa sería la decisión mayoritaria. Nótese que, no se ha demostrado que sea una costumbre parlamentaria el hecho de admitir mociones de reiteración basadas en el temor de que otra moción la sustituya. Además, según consta a folio 11458 del expediente legislativo, el mismo diputado Abarca votó a favor de la moción que dice afectaba la suya.

-Sobre la indebida acumulación de mociones de reiteración: Se examina únicamente el posible vicio de indebida acumulación de la moción 138-154 por tratarse de un aspecto directamente relacionado con el derecho de enmienda de los diputados. Los otros argumentos, en cuanto a que otras mociones debieron acumularse y no se hizo así, es una decisión de Presidencia que más bien favorece el derecho de enmienda y por ello no puede considerarse como un vicio sustancial, así que no procede en esta sede su examen. Dicho lo anterior, consta que la moción de reiteración 154 fue planteada por el diputado Villalta (ver folio 9308, Tomo 36 del expediente legislativo). Esta moción fue acumulada junto con las mociones 13, 138, 179, 180, 181, 246, 247, 248 y 349, por la presidencia de la Asamblea Legislativa, “por existir una evidente conexidad en los fines pretendidos por los proponentes” (ver folio 8983, Tomo 35). Consta la apelación de la acumulación de la moción 138-154, con fundamento en que, se propone modificar dos artículos (el art.2 y el art.3). Tal como lo hizo ver el promovente en la apelación, dicha moción propone reiterar la moción de fondo que busca modificar el artículo 2 y adicionar el artículo 3 del proyecto de ley, mientras que el resto de las mociones acumuladas solo proponen adicionar el artículo 3. En este sentido se constata que, el presidente de la Asamblea decidió ponerla en conocimiento, indicando que: “es una reposición que se debe hacer por un indebido acumulamiento de mociones. Entonces debemos proceder a conocer la moción 154, de don José María Villalta Flórez-Estrada//. En consecuencia, en discusión la moción 154 y hará uso de la palabra el diputado Villalta Flórez-Estrada.” Así entonces, en este caso, pese a la indebida acumulación inicial, luego fue puesta a discusión de forma separada y el diputado proponente pudo hacer uso de la palabra para defenderla. Por lo tanto, no se evidencia vicio alguno de procedimiento por este aspecto, porque la situación fue subsanada en el momento, como los mismos consultantes indican en su escrito de interposición.

-Sobre la no puesta en discusión de la moción de reiteración 138-210: Se alega la violación al derecho de enmienda y participación democrática de la diputada Paola Vega Rodríguez, toda vez que, pese a que la moción de reiteración 138-210 fue admitida, no consta en la resolución cuestionada que no lo fuera, y tampoco que se acumulara con otras mociones, la Presidencia no la puso en conocimiento del Pleno, por lo que se omitió su posterior votación. Una vez revisada la resolución de la presidencia de ese órgano se tiene que, en efecto, la moción 138-210 no fue rechazada ni acumulada, pero del examen que hace esta Sala del expediente legislativo se plantea la duda sobre si existía voluntad de la proponente en su puesta en discusión. La moción pretendía modificar el inciso c) del artículo 13 o su artículo equivalente en caso de que la numeración variara para que dijera:

“ARTÍCULO 13- Régimen General de Empleo Público c) Personas servidoras públicas que se desempeñan en funciones policiales, de conformidad con el artículo 6 de la Ley General de Policía, N° 7410, de 26 de mayo de 1994, el artículo 2 de la Ley Orgánica del Organismo de Investigación Judicial (OIJ), N° 5524, del 07 de mayo de 1974, y el capítulo IX del Código Municipal, N° 7794, del 30 de abril de 1998.” Se pudo acreditar que en el tomo 45 folios 11214 y 11215, consta esa moción con un sello que dice “retirada” y firmado por la diputada Vega, de fecha 7 de abril. Luego, revisada la sesión extraordinaria n° 88 del Pleno, celebrada el 7 de abril de 2021, el presidente solo mencionó que la diputada Vega había retirado las mociones 166, 195, 201, 224, 172, 192, 194, 195, 196, 199, 200, 205, 206, 208, 209, 211, 212, 213, 214, 224, 228, 229, 230, 169, 175, 176, 177, 184, 202 y 221. De este modo, se constata una contradicción, entre la moción con el sello de “retirada” con la firma de la misma diputada Vega, y luego, lo consignado en el acta donde se omite hacer referencia a tal moción como retirada. Más allá de que es materia ajena a esta Sala determinar en este caso, cuál acto tiene mayor validez, si el sello de retirado con la firma de la diputada o lo consignado en el acta, no se observa que la diputada Vega haya evidenciado o manifestado ante el Plenario la situación. Tal como se dijo supra, los vicios de procedimiento deben ser advertidos en su momento, para luego ser planteados vía consulta de constitucionalidad. En este caso, como se dijo no consta que la diputada Vega haya advertido el vicio, por el contrario, se observa su firma en el sello de “retirada” la moción. Así las cosas, no se puede considerar su falta de discusión como un vicio sustancial del procedimiento.

• 4)Conclusiones 1) No se encuentra vicio de procedimiento sustancial en cuanto al argumento de la inadmisibilidad de las mociones 138-231 y 138-250, ello por cuanto no se fundamentó en el escrito de esta consulta cuál fue la moción que las modificó y “les cayó encima”; y en cuanto a la inadmisibilidad de la moción 138-18, por cuanto se fundamentó en un hecho incierto (la probabilidad de que otra moción le cayera encima).
• 2)No se encuentra vicio de procedimiento sustancial en cuanto al argumento de la indebida acumulación de la moción 138-154 por cuanto, aunque fue indebidamente acumulada al inicio, luego el presidente de la Asamblea la desacumuló y permitió su discusión separada.
• 3)No se encuentra vicio de procedimiento sustancial en cuanto al argumento de la falta de discusión de la moción 138-210 de la diputada Paola Vega, por cuanto tal moción consta en el expediente legislativo con sello de retirada y con la firma de la diputada proponente.

VII.- Sobre los vicios de FONDO consultados y en general sobre el proyecto consultado.- Sobre el proyecto consultado, denominado "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, se admitieron las tres consultas facultativas legislativas presentadas por los diputados. Todas las cuales fueron acumuladas a este expediente principal. Agrupados todos los aspectos de fondo consultados, se tiene que, seis de ellos se refieren al ámbito de cobertura del proyecto (en cuanto a la inclusión del Poder Judicial, del Tribunal Supremo de Elecciones, de las Universidad Públicas, de la Caja Costarricense de Seguro Social, de las Municipalidades y de las Instituciones Autónomas) y a otros temas como la objeción de conciencia, el derecho de negociación colectiva, la sanción de inhabilitación, el salario global y el debido proceso. Cada uno de estos temas se analizará por separado en los considerandos siguientes. Sin embargo, a modo de contextualización procede realizar una explicación general del proyecto consultado. En cuanto a la justificación que se da en la exposición de motivos de este proyecto (ver texto base) se indica que el mismo “tiene el propósito de ser una piedra angular para encaminar el servicio público hacia un ordenamiento jurídico más homogéneo entre sí, dirigido a disminuir las distorsiones generadas por la fragmentación, en un contexto de eficacia y eficiencia.”. Lo anterior por cuanto se considera que: “El Estado debe regular la relación con las personas servidoras públicas, bajo normas y principios generales que rijan a toda la institucionalidad pública, salvaguardando la independencia de poderes y las particularidades de los subregímenes de empleo público, … pero siempre, procurando en todo momento, la satisfacción del interés público, garantizado la ciudadanía reciba bienes y servicios con calidad y oportunidad.” Además se indica que, ya la Ley N°9635, Ley de Fortalecimiento de las Finanzas Públicas otorgó la rectoría del empleo público al Ministerio de Planificación Nacional y Política Económica, en el artículo 46 del título III, buscando con ello revivir el espíritu del constituyente. Finalmente se indica en esta exposición de motivos que, “Este proyecto de Ley Marco de Empleo Público busca atender en conjunto las recomendaciones emitidas por diferentes instancias nacionales e internacionales, tales como la Contraloría General de la República y la Organización para la Cooperación y el Desarrollo.” Siendo que, de seguido se hace referencia a esas recomendaciones, indicando en el caso de la OCDE la recomendación de migrar gradualmente hacia un esquema de salario único para los nuevos funcionarios; y en el caso de “la Contraloría General de la República ha llamado la atención sobre la necesidad de revisar el esquema de remuneraciones, principalmente de aquellos incentivos salariales que generan disparidades entre los mismos tipos de puesto, como es el caso de las anualidades.” Además, “la necesidad de vincular los incentivos a mecanismos de evaluación del desempeño y de su continua revisión.” Luego, con base en esas razones el proyecto pretende crear una Ley Marco de Empleo Público, en un texto de 50 artículos y 15 disposiciones transitorias, para que rija un año después de su publicación. En 10 capítulos se regulan aspectos como:

CAPÍTULO I. DISPOSICIONES GENERALES CAPÍTULO II. GOBERNANZA DEL EMPLEO PÚBLICO CAPÍTULO III. PLANIFICACIÓN DEL EMPLEO PÚBLICO CAPÍTULO IV. ORGANIZACIÓN DEL TRABAJO CAPÍTULO V. GESTIÓN DEL EMPLEO CAPÍTULO VI. GESTIÓN DEL DESARROLLO CAPÍTULO VII. GESTIÓN DEL DESEMPEÑO CAPÍTULO VIII. GESTIÓN DE LA COMPENSACIÓN CAPÍTULO IX. GESTIÓN DE LAS RELACIONES LABORALES CAPÍTULO X. DISPOSICIONES VARIAS Dentro del articulado, se destacan los siguientes. El objetivo de la ley sería “Regular las relaciones estatutarias, de empleo público y de empleo mixto, entre la Administración Pública y las personas servidoras públicas (…) de conformidad con el imperativo constitucional de un único régimen de empleo público (…)” (art.1). Incluyendo, dentro de su ámbito de cobertura a todo el aparato estatal, centralizado y descentralizado (art.2). Procediendo a excluir, básicamente a los entes públicos no estatales, el Cuerpo de Bomberos y a las empresas públicas en competencia (art.3). Luego, en el capítulo II, se crea un Sistema General de Empleo Público, cuya rectoría estará a cargo del Ministerio de Planificación Nacional y Política Económica (Mideplán), estableciéndose en el art.7 todas sus competencias en un amplio listado que incluye, desde establecer políticas públicas, programas y planes nacionales de empleo público; emitir disposiciones de alcance general, directrices y reglamentos; emitir lineamientos y principios generales para la evaluación de desempeño y; establecer un sistema único y unificado de remuneración de la función pública; entre otras. Luego, en el capítulo IV se indica la existencia de un único régimen general de empleo público, compuesto por ocho familias de puestos (art.8). Estableciéndose reglas generales para todo el proceso de reclutamiento y selección de nuevo ingreso (art.15) y un único procedimiento de despido (art.21). Asimismo, unas reglas generales sobre la evaluación de desempeño (art.29) y sobre el salario (art.30), con el establecimiento de un régimen salarial unificado para todo el servicio público (art.35). Finalmente se establecen reglas generales para temas como vacaciones (art.38), y permisos; además de disposiciones varias, como por ejemplo, en cuanto a las negociaciones colectivas (art.43).

VIII.- Considerando general.- (redacta el magistrado Castillo Víquez) En el Estado Constitucional de Derecho toda norma infraconstitucional debe leerse, interpretarse y aplicarse de conformidad con el Derecho de la Constitución (valores, principios y normas). Partiendo desde esta perspectiva, el análisis del proyecto de ley consultado se realizará adoptando como marco de referencia lo anterior, de forma tal que se hará una lectura integral y teniendo muy en cuenta el principio de separación de poderes o funciones, así como los principios constitucionales que regulan la descentralización administrativa, especialmente los grados de autonomía que poseen los entes descentralizados por región y servicio para realizar los fines constitucionalmente asignados.

Buena parte de las cuestiones consultadas implica realizar un análisis sobre cuál es la relación entre la ley -el ejercicio de la potestad legislativa- con el principio de separación de poderes, la independencia de estos en el ejercicio de sus competencias exclusivas y excluyentes, la autonomía universitaria y la municipal. No hay que perder de vista que no hay un compartimento o un área de exclusión a la ley en lo que atañe a las competencias exclusivas y excluyentes de la Corte Suprema de Justicia, del Tribunal Supremo de Elecciones, de las Universidades del Estado y de las municipalidades. Prueba de lo que venimos afirmando es la existencia de la consulta constitucional regulada en los numerales 88, 98,167 y 190 de la Carta Fundamental. En otras palabras, si el constituyente originario hubiese querido excluir de la potestad de legislar a los poderes del Estado y a los entes descentralizados no hubiese establecido la consulta constitucional cuando la Asamblea Legislativa, en ejercicio de la potestad legislativa, pretende regular la organización y el funcionamiento de esos poderes y esos entes. En caso de las municipalidades, si bien no instituyó la consulta constitucional de manera expresa -para la mayoría de este Tribunal sí-, lo cierto del caso es que la materia local, en la que aplica la autonomía política de conformidad con los numerales 169 y 170 constitucionales, el Parlamento, en ejercicio de la potestad de legislar, puede regular la organización y las competencias municipales.

Otra cuestión que necesariamente se debe abordar, partiendo del hecho de que la Asamblea Legislativa, en ejercicio de la potestad de legislar, tiene una competencia constitucional para regular la organización y las funciones de los poderes y los entes descentralizados, no para suprimir las autonomías autoorganizativa o autonormativa -en el caso de las universidades estatales-, la política -en el caso de la municipalidades y la CCSS- y la administrativa -en el caso de las instituciones autónomas-, es si, en lo que atañe a una función típicamente administrativa -empleo público- en relación con ciertos puestos de trabajo vinculados directamente a las competencias exclusivas y excluyentes puede o no afectarlas, las que se derivan de esos grados de independencia, es decir, los puestos relativos a la competencia en las materias en las que hay exclusividad en su ejercicio, los cuales deben ser definidos de forma exclusiva y excluyentes por los órganos constitucionales y los entes con fines constitucionalmente asignados y para lo que les dota de grados de autonomía con basamento constitucional. Quiere esto decir que el legislador tiene un límite en el ejercicio de la potestad de legislar, pues no las puede suprimir, o afectar, en sus elementos esenciales, ni trasladar a otros entes u órganos.

Hay que tener presente que un Estado unitariamente concentrado como el costarricense, todos los entes públicos están sometidos al principio de unidad estatal, toda vez que autonomía no significa soberanía, sino simple y llanamente independencia en el ejercicio de las competencias exclusivas y excluyentes. Sobre el principio de unidad estatal se ha afirmado que independientemente del grado de autonomía que tenga un ente descentralizado, este está estrechamente vinculado al Estado por una serie de principios y normas que están en el Derecho de la Constitución, a manera ejemplo, los numerales 11, 48, 49, 182, 184 y 192 de la Carta Fundamental, que estatuyen los principios de legalidad, rendición de cuenta y transparencia, el respeto irrestricto a los derechos fundamentales y los derechos públicos subjetivos y su tutela judicial efectiva en las jurisdicciones constitucional y contencioso-administrativa, los principios y procedimientos de contratación administrativa, la aprobación y fiscalización de los presupuestos por parte de la Contraloría General de la República y control de este órgano de relevancia constitucional sobre el uso de los fondos públicos, el sometimiento a los principios nucleares del servicio civil, etc. En esta dirección, no es inconstitucional que el legislador someta a toda la Administración Pública a una ley marco de empleo público, siempre y cuando observe rigurosamente los principios de separación de poderes y no vacíe de contenido los grados de autonomía que el Derecho de la Constitución le otorgan a las universidades del Estado, a la CCSS y a las municipalidades.

No es posible pasar por alto que toda la actividad relativa a nombramientos, evaluaciones, régimen disciplinario, topes salariales, valoración del trabajo, gestión de la compensación, clasificación de puestos, columnas salariales, etc., es una actividad típicamente administrativa. Tampoco se puede obviar que los poderes del Estado con exclusión del ejecutivo -siguiendo un criterio subjetivo es quien realiza la actividad administrativa por naturaleza, artículo 1.° de la Ley General de la Administración Pública-, excepcionalmente realizan actividad administrativa –criterio objetivo, artículo 2, inciso b) del Código Procesal Contencioso-Administrativo-, tal y como ocurre con la materia de empleo público. La clave de bóveda está en determinar si hay actividades administrativas en este ámbito que resultan indispensables para garantizar las competencias exclusivas y excluyentes de los poderes del Estado. La respuesta es afirmativa, en el sentido de que, si bien se trata de una actividad administrativa su ejercicio corresponde a los órganos constitucionales y entes públicos que gozan de autonomía grado tres y dos. Lo que significa, que esos órganos y entes están llamados a acatar los principios y postulados establecidos en la Ley, pero con la particularidad que es a estos a quienes corresponde aplicarla y ceñirse estrictamente a lo que se establezca. Esta postura, hace que resulte inadmisible, desde la óptica constitucional, el ejercicio por parte del Poder Ejecutivo u otro de sus órganos de un poder de jerarquía, de dirección, de reglamentación interna sobre los poderes del Estado, las universidades del Estado, la CCSS y las municipalidades.

De acuerdo al diseño de distribución de competencias, que responde al principio de separación de poderes y a los grados de autonomía, establecido por el constituyente originario a favor de los órganos constitucionales -poderes del Estado- y entes públicos descentralizados por región -corporaciones municipales- y servicios -universidades estatales y la CCSS-, es claro que la potestad de dirección que corresponde al Poder Ejecutivo o a uno de sus órganos -Mideplán- resulta incompatible con ese principio constitucional y los grados de autonomía que gozan ciertos entes. Dicho de otra forma, la potestad de dictar directrices -mandatos especiales que ordenan la actividad de un órgano o un ente fijándole metas y objetivos, mas no un acto concreto- no es constitucional cuando afecta o incide en las competencias exclusivas y excluyentes de los otros poderes del Estado o en los fines constitucionalmente asignados a los entes de base corporativa o institucional que gozan de un grado de autonomía tres -autoorganizativa o normativa- o dos -política- o en aquellas actividades administrativas necesarias para el ejercicio de esas competencias. Partiendo de esta idea cardinal, es claro que en materia de empleo público, en lo que atañe al personal de los poderes del Estado y los entes descentralizados por región y servicio, quienes ejercen tales competencias -jurisdiccionales, parajurisdiccionales, electorales- o participan de la gestión pública relativa a los fines constitucionalmente asignados a los citados entes, así como el personal administrativo de apoyo, profesional o técnico, que defina, de forma exclusiva y excluyente, cada poder y ente, no pueden quedar, de ninguna manera, bajo el poder de dirección del Poder Ejecutivo o de Mideplán. Hay, pues, un núcleo duro, un indisponible para el Poder Ejecutivo, que no puede ser ordenado en su actividad, ni mucho menos mediante el ejercicio de la potestad reglamentaria, que corresponde exclusivamente a cada poder del Estado y cada ente público.

Ahora bien, lo anterior no significa que todo el funcionariado de los poderes del Estado y de los entes supra citados esté excluido de la potestad de dirección. En el caso de los servicios administrativos básicos, auxiliares, que no inciden sobre las competencias exclusivas y excluyentes ni funciones administrativas necesarias para el cumplimiento de estas, cada poder del Estado y ente debe definir de forma exclusiva y excluyente cuáles de estas pueden estar sometidas a la potestad de dirección. Por ello, con base en el principio de independencia de poderes o funciones y los grados de autonomía garantizado constitucionalmente a cada ente, corresponde de manera exclusiva y excluyente a sus máximos órganos – Corte Plena, Consejo Superior del Poder Judicial, Tribunal Supremo de Elecciones, Consejos Universitarios, Rectorías, Junta Directiva y Presidencia Ejecutiva de la Caja Costarricense de Seguro Social, Concejo y Alcaldes Municipales- establecer cuáles son esos servicios administrativos básicos, auxiliares, comunes y similares a toda la Administración Pública que sí estarían sometidas a las potestades de dirección y reglamentaria del Poder Ejecutivo.

Ergo, al no establecer el proyecto de ley esa salvaguarda -una norma clara y precisa- en este sentido, este Tribunal concluye, como se explicará más adelante, que hay una serie de vicios de inconstitucionalidad que quebrantan la independencia judicial, electoral y las autonomías de las universidades del Estado, la CCSS y las Municipalidades.

En otro orden de ideas, también deben tener claro los (as) diputados (as) que todo lo que atañe al funcionariado de los poderes del Estado y los entes con fines constitucionales asignados establezcan como parte de sus competencias -constitucionales o administrativas- lo relativo a la construcción de la familia, los grados de esta, la metodología de valoración de trabajo, los factores de trabajo relevantes a asignar, el salario mínimo y máximo de cada columna, los fundamentos técnicos para fijar los salarios, el manual descriptivo de cada puesto, la evaluación del desempeño, etc., les corresponde, de forma exclusiva y excluyente, definirlo a cada uno de estos, como se explicará al analizar la normativa que se tacha de inconstitucional en las consultadas admitidas.

No menos importante es el hecho de que, lo referente a evaluación del desempeño y el ejercicio de la potestad disciplinaria, queda reservado a cada poder del Estado y a los entes supra citados, toda vez que estas potestades son consustanciales al ejercicio de sus competencias constitucionales o a la realización de los fines constitucionalmente fijados. Quiere esto decir, que en lo tocante a estos temas todo el funcionariado de cada poder y ente quedan sometidos a las disposiciones internas que cada uno de estos dicten al respecto.

Una última cuestión, antes de referirnos a cada agravio que plantean los (as) consultantes, y es que en sentencias número 1992-1696 de las 15:30 horas del 23 de agosto de 1992, 2018-14905 de las 12:30 horas del 7 de setiembre de 2018 y 2018-231 de las 11:00 horas del 10 de enero de 2018, reiteradas en la 2019-14347, se reafirmó que es factible la existencia de diferentes regímenes laborales en la administración pública, siempre y cuando se rijan por los principios comunes de idoneidad y estabilidad en el empleo, tal como el régimen estatutario. Este Tribunal ha señalado que nuestros constituyentes originales consignaron en la Constitución Política de 1949, que debía existir un régimen laboral administrativo que regulara las relaciones entre los servidores públicos y el Estado, a fin de proteger a los primeros de destituciones arbitrarias (estabilidad en el empleo) y de profesionalizar la función pública (búsqueda de la eficiencia en el servicio y de la idoneidad del funcionario). El objeto de tal cometido era procurar que la Administración Pública contara con factores organizativos que le permitieran satisfacer el derecho de los ciudadanos al buen funcionamiento de los servicios públicos. En atención a ello, se dispuso constitucionalmente que el procedimiento para seleccionar y nombrar a un servidor en la Administración Pública debía cumplir con los principios fundamentales que prevén los artículos 191 y 192, con los cuales se procura personal idóneo para ocupar un puesto público, con el propósito de garantizar la eficiencia y efectividad en la función pública.

Se visualiza un régimen de servicio civil, no como un privilegio corporativo, sino como una garantía de la imparcialidad institucional, que regula la función pública, garantiza la selección del personal con base en criterios de mérito y capacidad, así como en un justo equilibrio entre derechos y responsabilidades de los empleados públicos. Se ha indicado también, que dicha legislación debe prever instrumentos que a las diferentes administraciones les faciliten la planificación, ordenación y utilización más eficiente de su personal. De ahí que la relación laboral de empleo público esté sujeta a ciertas especificidades y principios, como los de mérito y capacidad en el acceso, y también a determinadas normas de derecho público, como el régimen de incompatibilidades, que garanticen objetividad e imparcialidad en la prestación del servicio público.

Se estableció que los Constituyentes originarios, al discutir los títulos referentes a las Instituciones Autónomas y al Servicio Civil, estimaron elevarlos a nivel constitucional con el anhelo -por una parte- de desconcentrar el poder del ejecutivo en cuanto a las nuevas funciones que le fueron encomendadas al Estado, y sus influencias político-electorales sobre su funcionamiento. Por otra parte, consideraron los graves efectos que provocaban los cambios de gobierno sobre el personal de la Administración Pública ante la falta de un instrumento jurídico adecuado que los protegiera. En esos precedentes se destacó el siguiente análisis realizado a partir de las actas de la Constituyente:

"El Representante Facio expresó que todos están de acuerdo en que algún día han de estar cobijados los empleados de la Administración Pública por una adecuada Ley de Servicio Civil. También están de acuerdo en que una ley de esta naturaleza es muy compleja y no puede promulgarse de un momento a otro, o de un solo golpe. Es necesario irla adaptando poco a poco a la realidad y conveniencias nacionales. Agregó que en el Proyecto del 49 incorporaron un capítulo especial sobre el Servicio Civil, algunas de cuyas disposiciones las someterán a conocimiento de la Cámara en su oportunidad. En el Proyecto se deja establecida constitucionalmente la carrera administrativa, para que no vuelvan a ocurrir en nuestro país los sucesos pasados, cuando los empleados eran removidos de sus cargos por simples maniobras politiqueras. Sin embargo, los de la Comisión Redactora del Proyecto se dieron cuenta de la diferencia de establecer en Costa Rica la Ley de Servicio Civil. Por eso fue que solucionaron el problema mediante un transitorio, redactado en los términos siguientes:

"Las disposiciones del Título XIII entrarán en vigencia el mismo día que la Ley de Servicio Civil, la cual se aplicará gradualmente, de tal modo que en un plazo (sic) no mayor de diez años, cubra la totalidad de los servidores públicos." (Tomo III, Actas de la Asamblea Nacional Constituyente No. 132, pág. 120 y 121). - Dicha moción -de incluir dos incisos en el artículo 140 de la Constitución Política- fue sometida a votación, alcanzando un empate, por lo que debió ser conocida y votada en la sesión siguiente. En relación al segundo inciso propuesto, fue desechado. - III Conforme con lo anterior, luego de amplias discusiones se aprobó el artículo 140, inciso 1… Por todo lo anterior, se dispuso para el artículo 140, inciso 1) y 2) de la Constitución Política, la aprobación definitiva el artículo 140.-X de las Disposiciones Transitorias, al establecer que:

"La Ley de Servicio Civil no entrará en vigencia antes del ocho de noviembre de mil novecientos cincuenta ni después del primero de junio de mil novecientos cincuenta y tres, según lo acuerde la Asamblea Legislativa. Esa ley podrá, además, disponer que sus normas se apliquen gradualmente a los diversos departamentos de la Administración Pública; en todo caso, dicha ley deberá proteger a la totalidad de los servidores públicos incluidos en el inciso segundo del artículo 140, a más tardar el ocho de noviembre de mil novecientos cincuenta y nueve. Mientras no entre en vigencia la Ley de Servicio Civil, el Presidente de la República y el respectivo Ministro de Gobierno, podrán nombrar y remover libremente a todos los funcionarios de su dependencia, incluso a los Directores y Gerentes de las Instituciones Autónomas y a los integrantes de las Juntas y organismos oficiales, cuyos nombramientos hubieran sido hechos con anterioridad a la fecha de vigencia de esta Constitución, aún cuando tales designaciones lo fueren por período fijo." V Después de aprobado el Capítulo de las Instituciones Autónomas, los constituyentes entraron a conocer el Título y Capítulo Único del Servicio Civil, artículos que definieron el ámbito de aplicación y sus principios. En aquellas fechas, muchos de los servidores públicos, eran removidos de sus puestos para dar cabida a los partidarios del nuevo gobierno, lesionando el funcionamiento de la administración pública. Precisamente para atacar este mal, un grupo de constituyentes propugnó la creación de ese instrumento jurídico a fin de dotar a la Administración Pública de una mayor eficiencia administrativa y funcional. El primer artículo propuesto establecía que "Un estatuto de Servicio Civil regulará las relaciones entre el Estado y los servidores públicos, con el propósito de garantizar la eficiencia de los servicios, los cuales serán desempeñados con un criterio técnico y por el personal estrictamente necesario.". El Diputado Fournier, resumió el propósito del estatuto, al decir que era para regular las relaciones entre el Estado y sus servidores públicos. Ello tuvo -como es de esperar- reacciones de apoyo y de resistencia por parte de algunos diputados, incluyendo el Representante Esquivel quien consideró innecesario su inclusión por existir el artículo 140, inciso 1) y 2) de la Constitución Política, numeral que ya estaba aprobado por la Asamblea Nacional Constituyente. No obstante la resistencia citada, queda claro que el tema no había sido agotado con la sola aprobación de esos incisos, pues incluso el régimen estatutario fue ampliado en su concepto. Así con motivo de la discusión del artículo 192, el Diputado Fournier resaltó:

"Es imprescindible decir lo esencial de la Ley de Servicio Civil, esto es, que a ningún empleado se le podrá remover de su puesto, sino es por causales de despido que establece el Código de Trabajo, o en caso de reducción forzosa de servicios por falta absoluta de fondos o para conseguir una más eficaz y económica organización de los mismos. Se garantizan al empleado y al Estado." Se destacó en la discusión supra referida, que no bastaba la mera enunciación de la Ley de Servicio Civil en la Constitución Política, sino que era necesario citar los principios fundamentales del estatuto de la función pública, la forma de nombramiento a base de idoneidad comprobada, y su remoción, mediante una legislación predeterminada como lo era la legislación de trabajo, o para casos de reducción forzosa de servicios, ya sea por falta de fondos o para conseguir una mejor organización de los mismos. Sin embargo, esta Sala advirtió que lo planteado por el Poder Ejecutivo ante la Asamblea Legislativa el 14 de abril de 1953, según el expediente n.º 1581, fue un proyecto que circunscribió únicamente a sus funcionarios dentro de su ámbito competencial, a pesar de que la voluntad del Constituyente era aprobar un estatuto para el Estado, lo que produjo las consecuencias e interpretaciones aplicativas de una normativa ajena a lo pretendido por el Constituyente. Se advirtió, explícitamente lo siguiente:

“VI… Es claro que la intención del constituyente era la de crear un régimen laboral administrativo. De la lectura de las actas de la Asamblea Nacional Constituyente se distingue la figura del empleado público y del trabajador privado. Es indudable que la ausencia de un régimen jurídico que regule apropiadamente las relaciones entre el Estado y sus servidores, quebranta el artículo 191 de la Constitución Política, lo que conlleva también al quebrantamiento del artículo 11 de la Carta Magna…

VII.Por una parte, la Ley que se emitió (Estatuto del Servicio Civil) tiene alcances parciales, ya que la iniciativa tomada por el Poder Ejecutivo al respecto solamente tuvo como propósito regular las relaciones con sus servidores, esto es, dentro de su ámbito competencial. Desde este ángulo de enfoque, se ha dejado por fuera la regulación de las relaciones de servicio entre los entes públicos menores, pues era algo en lo que no tenía interés el Ejecutivo, o simplemente no era lo que consideraba más urgente. Por otra parte, el Estatuto del Servicio Civil reguló apenas algunos de los aspectos de la relación de los servidores con el Estado como los relativos a derechos, deberes de los servidores, su selección, clasificación, promoción, traslados, disciplina y régimen de despido -entre los más importantes-, que evidentemente atañen a una de las preocupaciones expresadas en la Asamblea Nacional Constituyente, esto es, la que tiene relación con la idoneidad y la eficiencia del servicio, pero no tocó otros aspectos no menos importantes, como es el que subyace en el planteamiento de esta acción, es decir, la regulación del propio régimen económico de esa relación y el sometimiento de los otros entes administrativos al régimen laboral público. Este vacío, sin embargo, no autoriza utilizar mecanismos previstos para una relación privada, a una relación de empleo público que se debe regir por principios propios y diferentes.” (Lo que está entre negritas no corresponde al original).

La Sala fue clara en esos precedentes que, del examen de las discusiones de los Constituyentes, existe un mandato y no una simple recomendación para aplicar a esa relación de empleo entre la administración pública y sus servidores, criterios propios o especiales, para lo cual, conforme al transitorio referido, debía la Asamblea Legislativa promulgar entre el 8 de noviembre de 1950 y el 1 de junio de 1953, la Ley de Servicio Civil que tendría como característica principal su aplicación paulatina en las oficinas de distinta naturaleza de la Administración Pública, lo cual no fue cumplido a cabalidad en su momento.

Tal como quedó expuesto en la línea jurisprudencial inicial, a partir del año 1949, el ordenamiento jurídico que regula la relación de empleo entre la administración pública y sus servidores en nuestro país se rige por el derecho público. Este régimen implica, necesariamente, que esa relación, por su propia naturaleza, se basa en principios generales propios, no solo distintos a los del sector laboral privado, sino incluso, muchas veces contrapuestos a estos.

Según se indicó, el “legislador…, optó por regular el servicio no de modo general, sino por sectores, promulgando así el Estatuto de Servicio Civil (que se aplica a los servidores del Poder Ejecutivo) y posteriormente otros estatutos para regular la prestación de servicios en los restantes poderes del Estado y en algunas instituciones descentralizadas.” (véanse las sentencias n.°1990-1119 de las 14:00 horas del 18 de setiembre de 1990 y n.°2004-7476 de las 14:04 horas del 30 de abril de 2004, entre otras). Y ello, según reconoció este Tribunal, es consecuente con una interpretación sistemática de la Constitución Política, que también reconoce la autonomía de las instituciones autónomas y el grado de independencia a cada uno de los Poderes del Estado.

En sentencia n.° 1999-5966 de las 10:30 horas del 30 de julio de 1999, este Tribunal señaló lo siguiente:

“SEXTO: EL RÉGIMEN DE EMPLEO DE LOS SERVIDORES DE LA COMISIÓN QUE SE CREA EN LA LEY. La consulta indica que "el hecho de que los funcionarios regulares estén sometidos a un régimen de empleo especial" viola el artículo 191 Constitucional y aunque la Sala ya ha establecido en su jurisprudencia que cuando la norma fundamental se refiere a "un estatuto de servicio civil" no dice un único estatuto, pues los distintos Poderes que ejercen el gobierno de la República (artículo 9° constitucional) pueden tener su propio régimen estatutario. En relación con este tema, puede consultarse la abundante jurisprudencia de esta Sala, en particular los fundamentos de las sentencias números 1148-90, de las diecisiete horas del veintiuno de setiembre de mil novecientos noventa y 1696-92, de las 15 horas y treinta minutos del día veintitrés de agosto de mil novecientos noventa y dos. Lo que sí constituye una violación de las previsiones constitucionales dichas, es que un órgano adscrito al Poder Ejecutivo, independientemente de los nombramientos que pudieran o debieran realizarse con motivo y para atender una emergencia, pueda contar con "un régimen especial de empleo" y en el que el papel de la Dirección General de Servicio Civil quede limitado a coordinarlo e inspeccionarlo.

En ese sentido, pues, llevan razón los consultantes y la norma, en los términos que fue concebida, debe eliminarse. Únicamente debería agregarse aquí, que con motivo de una emergencia, se podrían utilizar mecanismos excepcionales de contratación de personal, pero esto estaría autorizado por principio y ni siquiera en base a una norma que lo autorizara.” De este modo, han sido aceptados otros estatutos que regulan esta relación de empleo público; empero, imponiendo en cada una de esas regulaciones como límite esencial, el cumplimiento del principio de idoneidad y de estabilidad en la relación laboral en el sector público, independientemente del régimen diferenciado que se adopte, de conformidad con lo dispuesto en los artículos 191 y 192 constitucionales. Así lo reafirmó esta Sala, en las sentencias números 2001-5694 de las 16:23 horas del 26 de junio de 2001, 2011-014624 de las 15:50 horas de 26 de octubre de 2011, y 2006-17746 de las 14:36 horas del 11 de diciembre de 2006.

Así las cosas, los principios y normas constitucionales que regentan el Servicio Civil se extienden al régimen de empleo público de los entes administrativos, pues la intención del constituyente fue crear un régimen laboral administrativo, con sus propios principios, derivados de la naturaleza estatutaria de la relación entre los funcionarios públicos y el Estado, y aunque lo concibió de un modo general, en el artículo 192 constitucional también dejó prevista la necesidad de establecer excepciones a esa única regulación. Así lo evidenció este Tribunal en la sentencia n.° 1990-1119, al indicar lo siguiente:

“…El legislador, sin embargo, optó por regular el servicio no de modo general, sino por sectores, promulgando así el Estatuto del Servicio Civil (que se aplica a los servidores del Poder Ejecutivo) y posteriormente otros estatutos para regular la prestación de servicios en los restantes poderes del Estado y en algunas instituciones descentralizadas. No obstante, a pesar de que el legislador no recogió la idea del constituyente y reguló sólo parcialmente el servicio público, es lo cierto, que los principios básicos del régimen (escogencia por idoneidad, estabilidad en el empleo) cubren a todos los funcionarios al servicio del Estado, tanto de la administración central, como de los entes descentralizados. Mas, esto en principio, porque el artículo 192 constitucional introduce otros elementos importantes al disponer al inicio “con las excepciones que esta Constitución y el estatuto de servicio civil determinen”, frase que obliga a matizar las conclusiones anteriores respecto al ámbito de aplicación del régimen o estatuto de servicio civil. Es obvio que en la mente del constituyente estaba la idea de que no todos los servidores públicos podían estar cubiertos por el régimen especial, pues la forma de escogencia, las especiales capacidades, las funciones de cada cargo, las relaciones confianza y dependencia no son iguales en todos los casos, de ahí que los principios derivados del artículo 192 son aplicables a ciertos funcionarios –la mayoría- no a todos. La Constitución misma señaló varios casos de funcionarios de libre escogencia y remoción como son los ministros de gobierno, los miembros de la fuerza pública, los directores de instituciones autónomas, representantes diplomáticos, y en general, "los empleados y funcionarios que ocupen cargos de confianza" (art. 140 inciso 1), dejando a la ley (Ley de Servicio Civil dice el artículo 140) la determinación de otros funcionarios, que en casos muy calificados, pudieran ser excluidos del régimen general. Esta posibilidad de excluir ciertos funcionarios la reitera el artículo 192. Se repite que la intención del constituyente fue la de que existiera una sola ley, un Estatuto, que regulara todo el servicio público. No obstante, lo importante es que se dejó al legislador ordinario, por medio de la ley, la regulación en detalle de la cobertura del régimen especial, lo cual podía hacer, como lo hizo, en leyes separadas, sin detrimento del mandato constitucional. Por vía de ley el legislador ha excluido varios casos del régimen común. El Estatuto de Servicio Civil en sus artículos 3, 4 y 5, menciona un buen número de funcionarios que no se consideran dentro del régimen. También por ley especial se han excluido los presidentes ejecutivos de las instituciones autónomas, que son de nombramiento del ejecutivo, y en general, una serie de funcionarios, nombrados casi siempre a plazo fijo, y cuyo denominador común es encontrarse en una relación de servicio no típicamente laboral, bajo un régimen de subordinación jerárquica, sino más bien de dirección o colaboración, donde no median órdenes, sino más bien directrices, en unos casos; o bien, en una relación de confianza que obliga a otorgar una mayor libertad para el nombramiento y la eventual remoción del funcionario; ello independientemente de la naturaleza permanente de la función. Esta relación de confianza puede fundarse, según los requerimientos del cargo, en aspectos puramente subjetivos, de orden personal; pero también puede derivar de elementos objetivos nacidos de una comunidad ideológica (política en el buen sentido del término), necesaria para el buen manejo de la cosa pública conforme a planes y programas. Los casos de excepción, está claro, han de ser muy calificados, con las especiales características señaladas que justifiquen un trato desigual. Así ha de ser, pues por vía de excepción injustificada el legislador podría hacer nugatoria la disposición constitucional que tiende a la estabilidad laboral del empleado público y a la racionalidad del reclutamiento, como regla general. Pero si el cargo tiene alguna característica especial que lo justifique, la excepción será válida.”. (El énfasis no es del original) Como fácilmente se deduce de lo que llevamos dicho, la intención del constituyente originario fue someter a un régimen de Derecho administrativo -estatutario- todas las relaciones de empleo público, es decir, ningún órgano ni ente de la Administración Pública, central o descentralizada, quedó exento de este deber, de ahí que, si bien pueden existir estatutos especiales -propios de los órganos y entes descentralizados-, siempre y cuando respondan a los principios cardinales que se encuentran consagrados en la Carta Fundamental, también es lo cierto que es constitucionalmente válido que haya un estatuto único que regula las relaciones entre la Administración Pública, central y descentralizada, y sus servidores. Lo anterior significa, que la Asamblea Legislativa está habilitada por el Derecho de la Constitución a establecer un estatuto único que comprenda a todos (as) los (as) servidores (as) públicos, con las excepciones que la Constitución -incisos 1 y 2 del artículo 140- y el citado estatuto determine, por lo que, en este extremo, el proyecto de ley consultado no resulta contrario al citado Derecho y, lógicamente, siempre y cuando no se supriman, afecte en lo esencial, ni se trasladen las competencias exclusivas y excluyentes que le corresponden a los poderes del Estado y a los entes descentralizados a otros órganos y entes según el principio de separación de poderes o funciones o el grado de autonomía, respectivamente.

Corresponde ahora el análisis de los agravios -dudas o vicios de inconstitucionalidad- que invocan los (as) consultantes.

Consideraciones particulares de la magistrada Garro Vargas sobre este considerando general Coincido plenamente con lo que el considerando general suscrito por la mayoría afirma:

“No es inconstitucional que el legislador someta a toda la Administración Pública a una ley marco de empleo público, siempre y cuando observe rigurosamente los principios de separación de poderes y no vacíe de contenido los grados de autonomía que el Derecho de la Constitución le otorgan a las universidades del Estado, a la CCSS y a las municipalidades”.

Por eso, como se refleja en las notas que he consignado en esta resolución, estimo que el legislador bien puede establecer un marco normativo general en esta materia, que contenga un modelo de empleo para todos los servidores públicos, en el que se contemplen los lineamientos de compensación, valoración del rendimiento, demostración de la idoneidad y de la responsabilidad en el ejercicio de las funciones, etc. Es decir, ese marco bien podría plasmar y desarrollar los principios constitucionales de idoneidad, estabilidad laboral, eficiencia e inamovilidad, evaluación de resultados, rendición de cuentas, responsabilidad para el cumplimiento de los deberes (todo de conformidad con los arts. 9, 11, 191 y 192 de la Constitución Política).

Sin embargo, en los términos en los que está planteado el proyecto de ley consultado se advierten serios roces con la Constitución. Uno de ellos se refiere al alcance de las competencias de la rectoría ejercida por el Mideplan. A esa cartera ministerial del Poder Ejecutivo se le otorgan unas atribuciones sin tener en consideración la independencia de los poderes de la república ni las autonomías de gobierno reconocidas constitucionalmente.

En estas consideraciones particulares me propongo explicar, con el mayor respeto, por qué tampoco comparto algunas argumentaciones que contiene el considerando general, referidas a las condiciones para que se tenga por inconstitucionales las competencias de dicha rectoría.

Ese considerando, en primer término, hace una distinción entre funcionarios, atendiendo al tipo de labor que realizan:

“La clave de bóveda está en determinar si hay actividades administrativas en este ámbito que resultan indispensables para garantizar las competencias exclusivas y excluyentes de los poderes del Estado”.

Esto significa que la Sala Constitucional, sin fundamento normativo constitucional alguno, divide los funcionarios públicos entre aquellos que ejercen una labor que incide en las competencias exclusivas y excluyentes del poder o de la institución con autonomía reconocida constitucionalmente, y los que ejercen una labor que supuestamente no incide. Tal división la hace en función de señalar que estos últimos sí podrían estar sujetos a tal rectoría:

“[L]a potestad de dictar directrices (…) no es constitucional cuando afecta o incide en las competencias exclusivas y excluyentes de los otros poderes del Estado o en los fines constitucionalmente asignados a los entes de base corporativa o institucional que gozan de un grado de autonomía tres -autoorganizativa o normativa- o dos -política- o en aquellas actividades administrativas necesarias para el ejercicio de esas competencias.

Ergo, según ese considerando, sí sería constitucional el sometimiento a esas directrices cuando no afecta tales competencias. Por eso agrega:

Ahora bien, lo anterior no significa que todo el funcionariado de los poderes del Estado y de los entes supra citados esté excluido de la potestad de dirección. En el caso de los servicios administrativos básicos, auxiliares, que no inciden sobre las competencias exclusivas y excluyentes ni funciones administrativas necesarias para el cumplimiento de estas, cada poder del Estado y ente debe definir de forma exclusiva y excluyente cuáles de estas pueden estar sometidas a la potestad de dirección. Por ello, con base en el principio de independencia de poderes o funciones y los grados de autonomía garantizado constitucionalmente a cada ente, corresponde de manera exclusiva y excluyente a sus máximos órganos – Corte Plena, Consejo Superior del Poder Judicial, Tribunal Supremo de Elecciones, Consejos Universitarios, Rectorías, Junta Directiva y Presidencia Ejecutiva de la Caja Costarricense de Seguro Social, Concejo y Alcaldes Municipales- establecer cuáles son esos servicios administrativos básicos, auxiliares, comunes y similares a toda la Administración Pública que sí estarían sometidas a las potestades de dirección y reglamentaria del Poder Ejecutivo.

Recapitulando: Primero introduce la distinción entre servidores públicos que realizan funciones atinentes a la competencia designada al poder (o institución con autonomía reconocida constitucionalmente) y otros que no las realizan. Luego señala que a los máximos órganos respectivos les corresponde hacer esa distinción. Lo anterior está en función de esclarecer cuáles servicios dentro de cada poder o institución sí estarán sometidos a las potestades de dirección y reglamentación ejercidas por el Mideplan.

Al respecto, en primer lugar, llama la atención que en dicho considerando la mayoría de la Sala Constitucional introduzca un elemento que no está en el proyecto de ley sometido a consulta, y lo presenta como condición de constitucionalidad: que haya una distinción de funcionarios y que la distinción la realice cada poder o institución con autonomía otorgada constitucionamente. Sobre el particular, ha de recordarse que lo que le corresponde a este Tribunal es advertir los presuntos vicios de constitucionalidad consultados y no proponer o realizar consideraciones sobre aspectos que no están expresamente cuestionados en la consulta ni contemplados ni en el proyecto de ley En segundo lugar, con tales argumentaciones obviamente se estaría diciendo que lo inconstitucional sería que los funcionarios que ejercen labores que inciden directamente en las competencias del poder o de la institución en cuestión se encuentren bajo la mencionada rectoría. Y lo inconstitucional también sería que la distinción entre uno y otro tipo de funcionarios la realice el legislador o el Mideplán. Además, se avala que dentro de cada poder existan dos regímenes: los que están sometidos a la rectoría y los que no. Entonces, los funcionarios que no ejercen una labor que supuestamente está directamente vinculada con las competencias exclusivas podrían, según ese considerando general, sin agravio a la Constitución, estar sometidos a la mencionada rectoría. No obstante, estimo que las competencias otorgadas a esa rectoría ejercida por Mideplan sobre esos otros funcionarios tampoco es constitucional, porque incide en la independencia o la autonomía de las respectivas organizaciones en cuestión (poderes, Tribunal Supremo de Elecciones, la Caja Costarricense de Seguro Social, las universidades públicas o las municipalidades). Al respecto, debe tenerse presente que la independencia y la autonomía son cualidades orgánicas, reconocidas constitucionalmente a los poderes o instituciones –según sea el caso–. No son características de los sujetos que ahí laboran. A la vez, la labor de todos los funcionarios que forman parte de ese poder o institución, sin excepción ni distinción, está integrada en la consecución del fin propio y exclusivo de estos. Es verdad que dentro de cada uno de los poderes o de las instituciones que gozan de una autonomía reconocida constitucionalmente hay funcionarios que solo coadyuvan de manera más o menos directa en el ejercicio de las propias competencias de la organización; sin embargo, su labor la desempeñan como parte de un todo unitario, que tiene unos fines específicos. Por ejemplo, un economista puede trabajar como asesor legislativo, como asesor en un ministerio, etc.; lo mismo una secretaria: podría serlo de una municipalidad o de un poder de la república. Sin embargo, aunque la labor de cada uno sea materialmente muy similar a la de un colega suyo que trabaja en otra institución, lo cierto es que se ejerce no desvinculada sino integrada a los fines propios del poder o de la institución de que se trate.

Además, cabe agregar que en el ejercicio de esa labor ese servidor tiene acceso a información y le corresponde establecer relaciones propias de su cargo. Esto último, que parece una banalidad, no lo es, y el legislador lo ha tenido muy en cuenta, al establecer prohibiciones e impedimentos, tanto para funcionarios como para exfuncionarios. Y lo ha tenido en cuenta justamente porque sabe que, aunque la independencia o la autonomía –repito– son cualidades orgánicas y no de los funcionarios de los poderes o instituciones, debe regir un marco normativo que asegure que los sujetos que integran esas organizaciones no lesionen con sus actos la respectiva independencia o autonomía, según sea el caso. Si eso es así, tampoco parece jurídicamente razonable que se entienda como constitucionalmente válido que dentro de cada poder o institución con autonomía dada por la Constitución haya funcionarios estén sometidos a una cartera ministerial del Poder Ejecutivo, como si se tratara de sujetos que no están plenamente integrados a la organización a la que pertenecen. Se consumaría por esta vía, lo que el Constituyente quiso evitar y el legislador hasta la fecha ha procurado resguardar: la no injerencia de un poder en otro o en una institución con autonomía reconocida constitucionalmente.

Entonces, por ser una característica orgánica, la independencia cubre a todo el poder de la república. Lo mismo se podría decir de las instituciones dotadas de autonomía de gobierno. Ahora bien, precisamente como se trata de una cualidad orgánica, es verdad, lo afirma la mayoría:

[Q] ue “resulte inadmisible, desde la óptica constitucional, el ejercicio por parte del Poder Ejecutivo u otro de sus órganos de un poder de jerarquía, de dirección, de reglamentación interna sobre los poderes del Estado, las universidades del Estado, la CCSS y las municipalidades”.

Pero téngase presente que eso es inadmisible respecto de la organización como un todo y de quienes la integran, y esto último sin realizar la distinción entre los funcionarios.

Entonces, sí hay actividades indispensables porque inciden directamente en esas competencias y otras que no; pero eso no significa que estas últimas puedan estar reguladas, controladas, sometidas a un poder distinto de aquel poder –o de aquella institución con autonomía constitucionalmente reconocida– en el que laboran. El hecho de que algunas tareas no sean “indispensables” no separa a los funcionaros que las ejercen de su vinculación a la jerarquía dentro de ese poder o esa institución, según corresponda. Es decir, la sujeción de los servidores públicos al propio poder o institución autónoma hace posible, eficaz, la independencia o de la autonomía otorgada por la Constitución.

El considerando general también señala:

“Tampoco se puede obviar que los poderes del Estado con exclusión del ejecutivo -siguiendo un criterio subjetivo es quien realiza la actividad administrativa por naturaleza, artículo 1.° de la Ley General de la Administración Pública-, excepcionalmente realizan actividad administrativa –criterio objetivo, artículo 2, inciso b) del Código Procesal Contencioso-Administrativo-, tal y como ocurre con la materia de empleo público”.

Estimo que tal afirmación debe matizarse. De hecho, el Código Procesal Contencioso Administrativo señala:

Art. 1. (…) 3) Para los fines de la presente Ley, se entenderá por Administración Pública:

• a)La Administración central.
• b)Los Poderes Legislativo, Judicial y el Tribunal Supremo de Elecciones, cuando realicen funciones administrativas.
• c)La Administración descentralizada, institucional y territorial, y las demás entidades de Derecho público De manera que no es tan preciso afirmar que los poderes –con exclusión del Ejecutivo– sólo por excepción realizan función administrativa. Lo cierto es que todos realizan función administrativa, pero sólo uno (el Poder Ejecutivo, en el nivel central) tiene, como atribución principal, la función administrativa. Es decir, en la distribución orgánica (poderes, órganos, instituciones con autonomía reconocida por la Constitución, gobiernos locales, etc.) todos ejercen función administrativa. Es más, también realizan la normativa y la judicial (aunque ésta en sentido lado: administran justicia administrativa). No obstante, al Poder Ejecutivo se le atribuye por antonomasia la función administrativa o de gobierno, al Poder Legislativo la función normativa y al Poder Judicial la judicial, que, en su caso, es justicia jurisdiccional (aunque también, a lo interno, la administrativa). Pero, es claro que en todos se ejercen las tres funciones que son esenciales para el engranaje y la consecución de los fines del respectivo poder. Lo mismo cabría señalar respecto de los gobiernos locales, las universidades públicas y la Caja Costarricense de Seguro Social. Entonces, para lo que aquí interesa, ha de subrayarse que la función administrativa la ejercen todos los poderes y las instituciones mencionadas, aunque con diversa intensidad y alcance. Por eso, si todos ejercen función administrativa, no parece que se les deba sustraer aquella que se refiere al régimen de sus propios funcionarios, y lo que esto lleva consigo, que –como bien dice el considerando general– es “actividad típicamente administrativa”.

A la luz de lo anterior, tengo mis serias reservas sobre la propuesta de dicho considerando. Incluso si se dijera que, en principio, cada poder o institución sí podría tener la facultad de definir cuáles funcionarios ejercen una labor denominada “indispensable”, lo que se torna inconstitucional es que esa distinción se realice con el propósito de traspasar ese sector de servidores públicos a la sujeción de otro poder de la república, pues ello implicaría romper el modelo republicano diseñado por la Constitución Política. Aceptar dicha propuesta supondría entender que sólo el Poder Ejecutivo ejerce verdadera función administrativa y que eso daría pie a que los otros poderes, al menos en materia de empleo público, puedan –o quizá deban– abdicar de la administración (de su gobierno e, incluso, de su regulación).

Entonces, no corresponde que esta distinción vacíe de contenido la eficacia misma de la independencia de los poderes y de las autonomías reconocidas constitucionalmente. Por eso, si el legislador hiciera esa distinción irrespetaría esas características orgánicas, por lo que resultaría inconstitucional. Otorgarle esa facultad de distinción al propio Mideplan resulta, también desde el punto de vista constitucional, absolutamente inadmisible. Sin embargo, aunque no es inconstitucional en sí misma dar legalmente a los jerarcas de los propios poderes –o a las instituciones dotadas de autonomía de gobierno– la facultad de distinguir los servidores que sí realizan funciones que inciden en las propias competencias exclusivas y excluyentes, de aquellos que supuestamente no las realizan, lo cierto es que tal facultad tampoco sana de raíz las infracciones constitucionales del proyecto de ley sometido a consulta, sobre todo, si tal distinción tiene como objetivo autorizar la rectoría del Mideplan sobre estos últimos funcionarios.

Además, dejar esa definición en manos de los respectivos jerarcas –transitorios per se– es someterlos a una enorme presión por parte los propios servidores subalternos, porque no es difícil imaginar que muchos de ellos estimarán, con o sin razón, que su labor incide directamente en el fin último de la propia institución. Por eso no se puede descartar que el ejercicio de esa facultad pudiese tener el efecto de enconar disparidades e iniquidades, que es justamente lo que el proyecto de ley pretende eliminar. Esto no sólo porque, como he dicho, se estaría avalando que a lo interno de cada organización existieran dos regímenes, sino porque también cabría la posibilidad de que los jerarcas no realicen tal distinción o prácticamente la dejen sin efecto. Entonces, el hecho de que los jerarcas tengan la facultad de hacer esa distinción no necesariamente consigue el efecto deseado en el proyecto. Por lo que la propuesta parece lesionar los principios de razonabilidad y de seguridad jurídica.

El espíritu del establecimiento de un estatuto de servicio civil, según se puede recordar de las actas de la constituyente, y de la lectura de los arts. 191 y 192 de la Constitución Política, es que no hubiera injerencias políticas del Poder Ejecutivo respectivo en las relaciones entre el Estado y los servidores públicos. No obstante, el establecimiento de una rectoría del Sistema General de Empleo Público a cargo del Mideplan, con la expresa posibilidad de emitir disposiciones de alcance general, directrices, reglamentos en relación con la planificación, la organización del trabajo, la gestión de empleo, la gestión del rendimiento, la gestión de la compensación y de las relaciones labores por sobre otros poderes de la república e instituciones con autonomía reconocida constitucionalmente permite lo que pretendía evitar el Constituyente: esa injerencia política. Esto es así porque se trata de una rectoría en manos una cartera del Poder Ejecutivo, cuya cabeza es de libre remoción del Presidente de la República, y sus competencias tienen efectos transversales, pues no conocen las fronteras que señalan la independencia de poderes y las autonomías constitucionalmente establecidas.

Consideraciones particulares de la magistrada Picado Brenes sobre este considerando general Desde mi punto de vista, el tema del empleo público tiene una evidente trascendencia sobre la democracia costarricense, sobre la organización del aparato estatal y en general sobre el Estado de Derecho. Por ello, considero oportuno subrayar algunos aspectos que la Jurisprudencia de esta Sala ha establecido sobre el empleo público y el Estatuto de Servicio Civil. El empleo público en Costa Rica, como un régimen estatutario particular de Derecho Público, tiene sus bases constitucionales en los artículos 191 y 192 de la Constitución Política. Antes de 1949 el empleo público en Costa Rica estaba regulado básicamente por el derecho privado (Código Civil inicialmente y Código de Trabajo posteriormente). Por ello resulta tan trascendental la regulación constitucional de esta materia que se dio en 1949. Del debate en la Asamblea Nacional Constituyente de dichos artículos se concluye que el empleo público en Costa Rica está regulado por un marco jurídico especial, el Derecho Público, constituyendo un verdadero régimen estatutario. Nuestros Constituyentes al discutir los títulos referentes a las Instituciones Autónomas y al Servicio Civil, estimaron elevarlos a nivel constitucional con el anhelo -por una parte- de desconcentrar el poder del Ejecutivo en cuanto a las nuevas funciones que le fueron encomendadas al Estado, y sus influencias político-electorales sobre su funcionamiento. Por otra parte, consideraron los graves efectos que provocaban los cambios de gobierno sobre el personal de la administración pública ante la falta de un instrumento jurídico adecuado que los protegiera (ver voto n°1992-001696). Tal como lo ha dicho esta Sala en anteriores oportunidades (ver voto n°2018-00231), nuestros constituyentes originales consignaron en la Constitución Política de 1949, que debía existir un régimen laboral administrativo que regulara las relaciones entre los servidores públicos y el Estado, a fin de proteger a los primeros de destituciones arbitrarias (estabilidad en el empleo) y de profesionalizar la función pública (búsqueda de la eficiencia en el servicio y de la idoneidad del funcionario). El objeto de tal cometido fue procurar que la Administración Pública contara con factores organizativos que le permitieran satisfacer el derecho de los ciudadanos al buen funcionamiento de los servicios públicos. El régimen de servicio civil no se erige entonces como un privilegio corporativo, sino como una garantía de la imparcialidad institucional. Ahora bien, en cuanto a este tema, en relación con varios aspectos que se consultan, resulta relevante determinar si el Estatuto de Servicio Civil, que menciona el art.191 Constitucional, se refiere a UN único estatuto y si abarca a todos los servidores del Estado (Administración Pública Central y Administración Pública Descentralizada). A raíz de la jurisprudencia constitucional, considero que, resulta acorde al mandato del Constituyente, que pueda haber una ley general de empleo público en Costa Rica. Lo anterior, siempre y cuando se trate de una ley que contenga sólo principios generales, disposiciones generales, criterios orientadores y que respete el resto de principios resguardados en la Constitución, como son el principio de separación de funciones y el grado de autonomías de las distintas instituciones descentralizadas. Esos principios o lineamientos generales servirían para desarrollar la despolitización del empleo público, por medio del aseguramiento del cumplimiento de los principios de ingreso mediante idoneidad comprobada y la permanencia mediante el principio de la estabilidad, según lo establece el art.191 y 192 constitucionales. Lo cual supone entonces que, estaría fuera del marco constitucional, todo lo que exceda lo anterior, por ejemplo, si tal ley pretendiera la creación de una rectoría en materia de empleo público a cargo de un órgano que opere por sobre el resto de los Poderes de la República y por sobre la Administración descentralizada (territorial y funcional); y además, si se establecen normas que pretendan regular aspectos del fuero interno de la independencia de Poderes y de las autonomías. En estos casos, tanto el Poder Ejecutivo, como el Poder Legislativo tienen vedadas sus competencias.

Este tema de cuáles funcionarios públicos y cuáles no, están cubiertos por el Servicio Civil, ya fue abordado por esta Sala (ver sentencia número 1990-01119), donde de manera inicial se dijo lo siguiente:

“II.- En cuanto al punto primero: a cuáles funcionarios cubre el Régimen de Servicio Civil? Un estudio de las actas de la Asamblea Constituyente, revela que los diputados quisieron acoger, con rango constitucional, el régimen especial de servicio público que denominaron servicio civil, y que existía ya en otras constituciones latinoamericanas por aquella fecha. Sin embargo, el constituyente evitó ser excesivamente detallista o reglamentista en esta materia, y se resolvió más bien por incluir en la Constitución sólo los principios fundamentales que habrían de definir dicho régimen, a saber: especialidad para el servidor público, requisito de idoneidad comprobada para el nombramiento y garantía de estabilidad en el servicio, todo con fin de lograr mayor eficiencia en la administración dejando a la ley el desarrollo de la institución. (Acta No. 167, art. 3, T. III). El artículo 191 emplea el término "estatuto" de servicio civil en vez de "régimen" de servicio civil, lo cual tuvo su sentido, pues sobre el criterio minoritario que propugnaba por una regulación dispersa, prevaleció la tesis de que fuera un estatuto, un solo cuerpo legal el que regulara el servicio público, desarrollando las garantías mínimas establecidas por la Constitución. (Acta No. 167, art.3, T. III, pág.477). El legislador, sin embargo, optó por regular el servicio no de modo general, sino por sectores, promulgando así el Estatuto de Servicio Civil (que se aplica a los servidores del Poder Ejecutivo) y posteriormente otros estatutos para regular la prestación de servicios en los restantes poderes del Estado y en algunas instituciones descentralizadas. No obstante, a pesar de que el legislador no recogió la idea del constituyente y reguló sólo parcialmente el servicio público, es lo cierto que los principios básicos del régimen (escogencia por idoneidad, estabilidad en el empleo) cubren a todos los funcionarios al servicio del Estado, tanto de la administración central, como de los entes descentralizados. Mas, esto en principio, porque el artículo 192 constitucional introduce otros elementos importantes al disponer al inicio "con las excepciones que esta Constitución y el estatuto de servicio civil determinen", frase que obliga a matizar las conclusiones anteriores, respecto al ámbito de aplicación del régimen o estatuto de servicio civil. Es obvio que en la mente del constituyente estaba la idea de que no todos los servidores públicos podían estar cubiertos por el régimen especial, pues la forma de escogencia, las especiales capacidades, las funciones de cada cargo, las relaciones de confianza y dependencia no son iguales en todos los casos, de ahí que los principios derivados del artículo 192 son aplicables a ciertos funcionarios -la mayoría- no a todos. La Constitución misma señaló varios casos de funcionarios de libre escogencia y remoción como son los ministros de gobierno, los miembros de la fuerza pública, los directores de instituciones autónomas, representantes diplomáticos, y en general, "los empleados y funcionarios que ocupen cargos de confianza" (art. 140 inciso 1), dejando a la ley (Ley de Servicio Civil dice el artículo 140) la determinación de otros funcionarios, que en casos muy calificados, pudieran ser excluidos del régimen general. Esta posibilidad de excluir ciertos funcionarios la reitera el artículo 192. Se repite que la intención del constituyente fue la de que existiera una sola ley, un Estatuto, que regulara todo el servicio público. No obstante, lo importante es que se dejó al legislador ordinario, por medio de la ley, la regulación en detalle de la cobertura del régimen especial, lo cual podía hacer, como lo hizo, en leyes separadas, sin detrimento del mandato constitucional. Por vía de ley el legislador ha excluido varios casos del régimen común. (…).” Luego, la Sala aclara la posición anterior sobre la existencia de un solo cuerpo legal para realizar una interpretación sistemática de la Constitución, mediante sentencia número 2018-00231, cuando indica lo siguiente:

“III.- Sobre el régimen estatutario. Nuestros constituyentes originales consignaron en la Constitución Política de 1949, que debía existir un régimen laboral administrativo que regulara las relaciones entre los servidores públicos y el Estado, a fin de proteger a los primeros de destituciones arbitrarias (estabilidad en el empleo) y de profesionalizar la función pública (búsqueda de la eficiencia en el servicio y de la idoneidad del funcionario). El objeto de tal cometido fue procurar que la Administración Pública contara con factores organizativos que le permitieran satisfacer el derecho de los ciudadanos al buen funcionamiento de los servicios públicos. Para ello, el procedimiento para seleccionar y nombrar a un servidor en la Administración Pública, debe cumplir con los principios fundamentales que prevén los artículos 191 y 192 constitucionales, con lo que se procura personal idóneo para ocupar un puesto público, con el propósito de garantizar la eficiencia y efectividad en la función pública. El régimen de servicio civil no se erige entonces como un privilegio corporativo, sino como una garantía de la imparcialidad institucional.

(…)

VI… Es claro que la intención del constituyente era la de crear un régimen laboral administrativo. De la lectura de las actas de la Asamblea Nacional Constituyente se distingue la figura del empleado público y del trabajador privado. Es indudable que la ausencia de un régimen jurídico que regule apropiadamente las relaciones entre el Estado y sus servidores, quebranta el artículo 191 de la Constitución Política, lo que conlleva también al quebrantamiento del artículo 11 de la Carta Magna…

(…) XI En opinión de la Sala, entonces, los artículos 191 y 192 de la Constitución Política, fundamentan la existencia, de principio, de un régimen de empleo regido por el Derecho Público, dentro del sector público, como ha quedado claro del debate en la Asamblea Nacional Constituyente y recoge incipientemente la Ley General de la Administración Pública. Este régimen de empleo público implica, necesariamente, consecuencias derivadas de la naturaleza de esa relación, con principios generales propios, ya no solamente distintos a los del derecho laboral (privado), sino muchas veces contrapuestos a éstos…” (…) De acuerdo con lo señalado por la Sala en la sentencia No. 2003-10615, la redacción finalmente dada al artículo 191, junto con el proceso de profunda descentralización que experimentó el Estado costarricense a partir de 1949, conllevaron a que actualmente resulte válida la existencia de diversas relaciones estatutarias en la Administración, en atención a la independencia funcional y autonomía administrativa que el ordenamiento asegura a varias instituciones públicas. Sin embargo, “lo que no resulta legítimo –según se dijo- es que las relaciones entre cada Administración-patrono y sus funcionarios se rijan por reglas concertadas (contractuales) entre ambas partes, como válidamente ocurre en las relaciones de empleo privado.” (…)

Corolario de lo anterior, la relación de empleo público que aplica a los servidores públicos, es una relación especial de derecho público o estatutaria, que por tal naturaleza jurídica tiene limitaciones en cuanto a la aplicación del derecho laboral común. Asimismo, su regulación está sometida a los ordinales 11, 191 y 192 de la Constitución Política. (…)” A partir de lo anterior, considero que se puede llegar a las siguientes conclusiones:

-PRIMERA: Un solo régimen público de empleo público, pero no un UNICO Estatuto, que debe interpretarse a la luz de los Principios de independencia de poderes y de las autonomías: La regulación del empleo público por sectores, “es consecuente con una interpretación sistemática de la Constitución Política, que también reconoce la autonomía de las instituciones autónomas y el grado de independencia a cada uno de los Poderes del Estado.” (ver sentencia n°2018-00231). Así entonces, “cuando la norma fundamental se refiere a "un estatuto de servicio civil" no dice un único estatuto, pues los distintos Poderes que ejercen el gobierno de la República (artículo 9° constitucional) pueden tener su propio régimen estatutario…” (ver sentencia n°1999-005966). Por ello, no puede entenderse “uno” como un único instrumento jurídico, sino como un régimen único de principios y garantías: “al hablar la Constitución de un solo régimen aplicable a los servidores públicos, no restringió el concepto al "estatuto" al de un instrumento jurídico único, sino que pretende concretar el régimen uniforme de principios y garantías que regulen la protección de los derechos laborales del servidor público, especialmente atendiendo a su derecho a la estabilidad” (ver sentencia n°1993-06240). A lo que se refiere el Constituyente entonces, es a un solo régimen público que cubra a todos los funcionarios al servicio del Estado, es decir, a un régimen de Derecho público (donde se garantiza el ingreso por idoneidad y la permanencia con estabilidad), distinto del derecho privado o contractual. Pero no se refiere a un solo cuerpo normativo, pues resulta “válida la existencia de diversas relaciones estatutarias en la Administración, en atención a la independencia funcional y autonomía administrativa que el ordenamiento asegura a varias instituciones públicas.” (ver sentencia n°2018-00231).

-SEGUNDA: Principios del régimen de servicio civil (solo normas con principios generales) de aplicación obligatoria a todo el Estado: Los principios básicos del régimen de servicio civil (escogencia por idoneidad, estabilidad en el empleo) cubren a todos los funcionarios al servicio del Estado, tanto de la administración central, como de los entes descentralizados. Pues, el legislador optó por regular el servicio no de modo general, sino por sectores, promulgando así el Estatuto de Servicio Civil (que se aplica a los servidores del Poder Ejecutivo) y posteriormente otros estatutos para regular la prestación de servicios en los restantes poderes del Estado y en algunas instituciones descentralizadas. Así por ejemplo, la promulgación de la Ley de Personal de la Asamblea Legislativa n° 4556 del 29 de abril de 1970. Pese a esa diversidad de leyes, resulta evidente que los principios constitucionales del servicio civil se aplican a la totalidad de funcionarios públicos y a todos los sectores que existen. Estos principios, y no las normas concretas del Estatuto de Servicio Civil, son los obligatorios para todo el aparato estatal, pues el Constituyente quiso poner fin a la práctica de que muchos de los servidores públicos eran removidos de sus puestos para dar cabida a los partidarios del nuevo gobierno. Es decir, el Constituyente quiso despolitizar el nombramiento y la remoción de funcionarios públicos de sus puestos, con el establecimiento de estos dos grandes principios que se enumeran en el art.192 Constitucional (idoneidad y estabilidad).

-TERCERA: Reconocimiento de varios casos excluidos por el propio Constituyente: En la mente del constituyente estaba la idea de que no todos los servidores públicos podían estar cubiertos por el régimen especial, pues la forma de escogencia, las especiales capacidades, las funciones de cada cargo, las relaciones de confianza y dependencia no son iguales en todos los casos (ver voto n°2018-0231). Así se deja en manos de la misma Constitución y del legislador, varios casos excluidos del régimen común, tal como lo dice la frase con la que comienza el art.192 Constitucional: “Con las excepciones que esta Constitución y el estatuto de servicio civil determinen.” -CUARTA: Reconocimiento de régimen diferenciado de empleo, en varios casos: En diversa jurisprudencia esta Sala ha reconocido un régimen diferenciado que regula, por ejemplo, a los funcionarios judiciales (ver sentencia n°2001-005694 y n°2018-019511), a la Caja Costarricense de Seguro Social (ver sentencia n°2011-014624) y al Instituto Costarricense de Electricidad (ver sentencia n°2006-017746). Es claro, entonces, que el Constituyente hace referencia a un solo régimen de empleo público (de Derecho público y con base en los principios de idoneidad y estabilidad), pero no a un único Estatuto o marco jurídico para todo el aparato estatal.

-QUINTA: La única forma de entender “Un Estatuto” aplicable a todo el Estado es entenderlo como “Un régimen”: La única forma de interpretar correctamente el texto constitucional cuando dice “Un estatuto” lo es en el sentido de entender que existe un solo régimen estatutario, con principios y normas propias, distintas al derecho privado, para resguardar la idoneidad y la estabilidad, pero no para someter a todo el aparato estatal, por encima del principio de independencia de poderes y de las limitaciones de la tutela administrativa, a una serie de normas provenientes de un solo cuerpo normativo. Un solo régimen estatutario, que garantice los principios de idoneidad y estabilidad en todo el régimen de empleo de todo el aparato estatal, es algo muy distinto a centralizar en un solo cuerpo normativo, que le da todas las competencias y potestades en la materia de empleo público a un órgano del Poder Ejecutivo. Pues entenderlo así es totalmente contrario a la intención del Constituyente de despolitizar el empleo público. Es claro que en la mente del constituyente estaba la idea de que NO todos los servidores públicos podrían estar cubiertos por un solo cuerpo normativo, y menos, un cuerpo normativo manejado y centralizado por el Poder Ejecutivo.

-SEXTA: Régimen de autonomías establecido por el Constituyente para evitar la concentración de poder.- El Constituyente de 1949 estableció un sistema de división de poderes y un régimen de autonomías como base de nuestro Derecho de la Constitución. Todo ello quedó plasmado en diferentes artículos del texto constitucional vigente. El principio de separación de poderes (art.9 Constitucional), la autonomía de gobierno de las Municipalidades (art.170), la autonomía de gobierno de la Caja Costarricense del Seguro Social (art. 73), la autonomía plena de las universidades públicas (art. 84 y 85), la autonomía de las instituciones autónomas (art.188). Al respecto el diputado Rodrigo Facio Brenes fue claro al manifestar en el seno de la Asamblea Nacional Constituyente que: “(…) lo que busca el régimen de las autonomías es descentralizar las funciones económicas fundamentales del Estado en términos tales que el crecimiento administrativo propio del mundo moderno no implique una extensión correspondiente del poder político del Ejecutivo. La tesis según la cual el Presidente, o el Ejecutivo, deben tener todas las atribuciones en última instancia; la teoría según la cual el Presidente debe ejercer la jerarquía única de la Administración, esa es la teoría estatista o totalitarizante [sic]; la de las autonomías, la que busca multiplicar los jerarcas para evitar la concentración de poder y de recursos, es la tesis democrática. (…)” (Acta N°166, 13/X/1949, p.5). Todo lo cual se complementa además, con un régimen de descentralización del poder y de despolitización del empleo público, lo cual es incompatible con un solo cuerpo normativo centralizando competencias en el Poder Ejecutivo.

Por lo demás, considero necesario realizar estas dos reflexiones adicionales frente a la Independencia de Poderes y al régimen de autonomías:

-SETIMA: La exclusión de Poderes opera tanto para el Poder Ejecutivo como para el Poder Legislativo.- En el caso concreto del Poder Judicial, existe un ámbito vedado para el Poder Ejecutivo, pero también para el Poder Legislativo. No comparto los argumentos que se indican en el considerando general de esta sentencia, en el sentido de que, “no hay un compartimento o un área de exclusión a la ley en lo que atañe a las competencias exclusivas y excluyentes de la Corte Suprema de Justicia, del Tribunal Supremo de Elecciones, de las Universidades del Estado y de las municipalidades.” Todo lo contrario, en lo que atañe a las competencias exclusivas y excluyentes de la Corte Suprema de Justicia, del Tribunal Supremo de Elecciones, de las Universidades del Estado, de la CCSS y de las municipalidades, SI hay un área de exclusión, pero no solo del Ejecutivo, sino también del Legislador. El Poder Ejecutivo, a través de Mideplán, no podría operar nunca como un jerarca respecto de los Departamentos de Recursos Humanos de la Corte Suprema de Justicia, del Tribunal Supremo de Elecciones, de las Universidades del Estado, de la CCSS y de las municipalidades. Pero además, tampoco el Poder Legislativo, por medio del ejercicio de su potestad legislativa, podría nunca incursionar en aspectos de las competencias internas de esas mismas instituciones. Lo anterior, en virtud de los alcances de protección que tiene el principio constitucional de separación de poderes y de la descentralización administrativa. Así por ejemplo, no podría el legislador dictar normas para indicarle a la Corte Suprema de Justicia, cuáles parámetros seguir y cuáles no en el proceso de selección, reclutamiento, evaluación, salarios, despido, entre otros. Puede establecer lineamientos generales que atiendan al contenido de las normas constitucionales (idoneidad, estabilidad en el empleo, eficiencia, transparencia, control de cuentas), pero no puede incursionar en el cómo debe proceder el Poder Judicial a operacionalizar todos esos aspectos, que son del ámbito de su independencia administrativa. Considero que resulta inadmisible, desde la óptica constitucional, la emisión de normas legales (Poder Legislativo) en relación con las competencias internas del resto de Poderes del Estado. En síntesis, así como resulta inadmisible que el Poder Ejecutivo ejerza un poder de jerarquía, de dirección, de reglamentación interna sobre los poderes del Estado, las universidades del Estado, la CCSS y las municipalidades; asimismo resulta inadmisible que el Poder Legislativo emita leyes que contengan normas que le ordenen a los otros Poderes del Estado o a los entes descentralizados, la forma en cómo proceder con sus competencias.

-OCTAVA: Hay un ámbito de exclusión del Poder Legislativo y del Ejecutivo respecto de CUALESQUIERA de las competencias: Respecto de cualesquiera de las competencias de la Corte Suprema de Justicia, del Tribunal Supremo de Elecciones, de las Universidades del Estado, de la CCSS y de las municipalidades, opera un ámbito de exclusión para el Poder Legislativo y para el Poder Ejecutivo. No comparto la tesis de la mayoría de dividir las competencias de un Poder de la República entre competencias exclusivas y competencias no exclusivas, como si solo se pudiera hablar del principio de separación de poderes en las primeras y no en las segundas. Claramente, en cualesquiera de las competencias asignadas a un Poder de la República, ningún otro puede intervenir. Considero que esas divisiones ponen en peligro los fundamentos de un Estado de Derecho, de considerar que, en las denominadas “competencias no exclusivas ni excluyentes” entonces sí puede haber interferencia de un Poder sobre otro. Nada más peligroso y alejado de lo que debe considerarse como el principio de separación de poderes. En este sentido, proceder a diseccionar, desmembrar, dividir o diferenciar los servicios que presta cada Poder de la República entre: servicios exclusivos y excluyentes, y servicios administrativos auxiliares, para permitir la injerencia de Poderes en estos últimos, es una distorsión odiosa a los fundamentos más básicos de nuestro Estado de Derecho. Sería tanto como admitir que, no se admite que un Poder pueda ingresar “todo su brazo” sobre otro Poder, pero si se admite el ingreso de “una mano de ese brazo”, que en este caso sería justamente esos servicios administrativos auxiliares. Injerencia es injerencia, mucha o poca, pero finalmente es injerencia. Conforme al artículo 16 de la Declaración de derechos del hombre y del ciudadano:

“Una Sociedad en la que no esté establecida la garantía de los Derechos, ni determinada la separación de los Poderes, carece de Constitución. “ En este sentido, dejaríamos de tener una Constitución si se admitiese una atenuación al principio de separación de Poderes. Claramente nuestro artículo 9 Constitucional indica que el Gobierno de la República “lo ejercen el pueblo y tres Poderes distintos e independientes entre sí. El Legislativo, el Ejecutivo y el Judicial.” Así, los tres Poderes de la República son distintos e independientes. No puede haber independencia si un Poder tiene injerencia sobre otro, aún cuando esa injerencia sea solo respecto de los denominados “servicios administrativos auxiliares”. Este sería el caso entonces de que Mideplán pueda tener injerencia sobre los “servicios administrativos auxiliares” del Poder Judicial. Ya lo decía en la Constituyente (acta n°88) el Diputado ESQUIVEL cuando expresó que “el concepto clásico de la independencia de los Poderes constituye un equilibrio entre los distintos organismos del Estado. Además viene a ser una garantía para los ciudadanos.” No se trata entonces de la defensa de un fuero especial del Poder Judicial, por ejemplo, sino de la defensa de la verdadera independencia de Poderes como una garantía para los ciudadanos, para la Constitución y para el Estado de Derecho. Estoy de acuerdo en que, no es inconstitucional que el legislador someta a toda la Administración Pública a una ley marco de empleo público, pero únicamente en cuanto a principios y lineamientos generales y además, como lo dice el considerando general, “siempre y cuando observe rigurosamente los principios de separación de poderes y no vacíe de contenido los grados de autonomía que el Derecho de la Constitución le otorgan a las universidades del Estado, a la CCSS y a las municipalidades.” Pero este condicionamiento se vacía de contenido si se aceptara que, en materia de empleo público, Mideplán (órgano del Poder Ejecutivo) pudiera tener injerencia, competencias, decisión y jerarquía sobre los “servicios administrativos auxiliares” de la Corte Suprema de Justicia, del Tribunal Supremo de Elecciones, de las Universidades del Estado, de la CCSS y de las municipalidades. Aún cuando el considerando general indique que es cada poder del Estado y cada ente quien define cuáles son esos “servicios administrativos auxiliares”, ello no elimina el hecho de que se trataría de una especie de “injerencia consentida”, y por tanto, siempre “injerencia”. En este punto, no se entiende cómo podría ello ser operacionalizado en la práctica, pues puede perfectamente entonces, el Poder Judicial indicar que no tiene servicios administrativos auxiliares, sino que todos los servicios son de su competencia exclusiva y excluyente, y de esa manera, vetar la intervención del Mideplán sobre esos servicios. Por lo demás, debe hacerse notar que, el Poder Judicial por ejemplo, no podría desarrollar todas sus funciones si no contara con todo el personal que tiene, en todas las áreas y con total independencia, pues cada persona, desde el más humilde de los puestos hasta el más alto en la escala jerárquica, son parte de un engranaje que hace que la institución pueda realizar cada día sus funciones y prestar los servicios constitucionalmente asignados.

En síntesis, considero que el Constituyente, al hacer referencia a un Estatuto de Servicio Civil se estaba refiriendo a un régimen general de Derecho Público, con sus dos pilares fundamentales (idoneidad y estabilidad), pero no a un solo marco normativo. De querer el legislador la existencia de una sola ley para regular el empleo público estaría limitado a regular únicamente aspectos generales de los artículos 191 y 192, pero no, como se intentó hacer con el proyecto de ley en consulta, incursionando en aspectos que son de competencia de los distintos Poderes del Estado y de los entes descentralizados. Por lo demás, para la real vigencia del principio constitucional de separación de Poderes, le está completamente vedado a cada Poder de la República incursionar en las competencias de otro Poder, aún cuando se trate de competencias que se consideren “servicios auxiliares administrativos”.

IX.- Sobre la consulta de violación a la independencia judicial.- 1) Aspectos consultados Los consultantes diputados consideran que los siguientes artículos del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, son violatorios del principio de independencia judicial y por tanto de los artículos 9, 154 y 156 de la Constitución Política, el art.10 de la Declaración Universal de Derechos Humanos, el art.14 del Pacto Internacional de Derechos Civiles y Políticos y el art.8 de la Convención Americana de Derechos Humanos. En concreto, consultan sobre los artículos indicados, sea en el encabezado del título general o en el resto del texto del escrito de interposición:

2.a (ámbito de cobertura), 6.b (rectoría de Mideplan), 7 (competencias de Mideplan), 9.a (oficinas de Recursos Humanos), 12 (base de datos) 13 (familias de puestos), 14 (reclutamiento y selección), 15 (postulados de reclutamiento y selección) 17 (personal de Alta Dirección), 18 (plazo de prueba y plazo de nombramiento), 19 (movilidad o traslados) 21 (régimen único de despido), 22 (proceso de despido), 31 (metodología de trabajo) 49 incisos a, b, g y h (reforma a normativa).

En primer lugar, sobre los artículos 12 (base de datos), 13.h (familia de puestos de confianza), 15 (postulados de reclutamiento y selección), 19 (movilidad o traslados), y 31 (metodología de trabajo), dado que no se realiza la fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, se declara inevacuable la consulta por falta de fundamentación. Observa la Sala que a pesar de lo que señalaron en la consulta, lo cierto del caso es que no lo fundamentaron de manera adecuada y con esa omisión, no le permiten a este Tribunal tener certeza sobre cuál es el cuestionamiento que plantean y los motivos por los cuales pudieron estimar que tales normas, eventualmente, podrían tener problemas de constitucionalidad en general o bien, en concreto, en relación con el Poder Judicial y el Tribunal Supremo de Elecciones. Sobre el particular, debe recordarse lo que dispone el artículo 99 de la Ley de la Jurisdicción Constitucional, el cual dice:

"Artículo 99.- Salvo que se trate de la consulta forzosa prevista en el inciso a) del artículo 96, la consulta deberá formularse en memorial razonado, con expresión de los aspectos cuestionados del proyecto, así como de los motivos por los cuales se tuvieren dudas u objeciones sobre su constitucionalidad." Frente a ese panorama, al no contar la Sala con mayores elementos para realizar el análisis de este numeral, lo que procede es, por unanimidad, declarar inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en cuanto a los artículos 12 (base de datos), 13.h (familia de puestos de confianza), 15 (postulados de reclutamiento y selección), 19 (movilidad o traslados), y 31 (metodología de trabajo), por falta de fundamentación de lo consultado, respecto del Poder Judicial y del Tribunal Supremo de Elecciones. Así entonces, debe entenderse que esta Sala omite realizar pronunciamiento alguno sobre la constitucionalidad o no de estas normas.

Ahora bien, sobre el resto de normas, los consultantes las consideran inconstitucionales por cuanto pretenden someter al Poder Judicial a las disposiciones que dicte el Ministerio de Planificación Nacional y Política Económica (Mideplán) y a la Dirección General del Servicio Civil, en materia de empleo público. Indican que el proyecto permite que un órgano del Poder Ejecutivo se meta en la gestión del empleo del Poder Judicial, incluso dictando resoluciones o circulares (art.7). Permitiendo intromisiones que van más allá de lo puramente administrativo o salarial. Consideran que es evidente la violación a los principios de separación de poderes, autonomía e independencia del Poder Judicial. Indican que, el proyecto violenta el principio de separación de poderes, la autonomía e independencia del Poder Judicial, los principios de legalidad, seguridad, proporcionalidad y razonabilidad, por cuanto pretende regular las relaciones de empleo entre las personas servidoras y el Poder Judicial (art.2.a), sometiéndole a la aplicación del Estatuto de Servicio Civil según la reforma al art.1 de su cuerpo legal (art.49.B), al incluir al Departamento de Gestión Humana de ese Poder a la rectoría de Mideplán (art.6), quedando obligado a aplicar y ejecutar las disposiciones de alcance general, directrices y reglamentos en relación con la planificación del trabajo, las gestiones de empleo, de rendimiento, de compensación y de relacionales laborales que emita Mideplán (art.9), al establecer un único régimen de empleo público del cual formarán parte las personas que administran justicia (art.13), al disponer el reclutamiento y selección del personal del Poder Judicial de acuerdo a disposiciones de alcance general, directrices, reglamentos, circulares, manuales y resoluciones de Mideplán a cada familia de puestos (art.14), al igual que para el personal de alta dirección técnica para el cual dispone de 6 meses de periodo de prueba y 6 años de nombramiento (art.17 y 18), con posibilidad de prórroga anual sujeta a la evaluación de desempeño, y la sujeción de los órganos del Poder Judicial cuyas competencias están asignadas en el Estatuto de Servicio Judicial y la Ley de Salarios del Poder Judicial, de coordinar todo concerniente al empleo público con Mideplán en su condición de órgano rector. Además, del establecimiento de un único procedimiento de despido cuando ya se tiene uno regulado en la normativa especial (art.21 y 22) .

Así entonces se procede al examen de los artículos indicados. Realizándose de previo, un resumen jurisprudencial sobre el tema de independencia judicial, el cual servirá de contexto para el examen de cada artículo consultado.

• 2)Antecedentes Jurisprudenciales sobre el Principio Constitucional de separación de poderes y el principio constitucional de independencia judicial Para comprender lo trascendental que resulta el tema de la independencia judicial para un Estado de Derecho como el nuestro, se debe partir de otro principio básico en todo sistema democrático, el principio de separación de poderes. Desde la Declaración de derechos del hombre y el ciudadano de 1789, en el artículo 16, se indica lo siguiente:

“Artículo 16.- Una Sociedad en la que no esté establecida la garantía de los Derechos, ni determinada la separación de los Poderes, carece de Constitución. “ Lo cual quiere decir que, uno de los dos pilares fundamentales para la existencia verdadera de una Constitución, es el resguardo del principio de separación de poderes. Según reiterada jurisprudencia constitucional sobre este principio, el Gobierno de la República lo ejercen el pueblo y tres Poderes distintos e independientes entre sí: El Legislativo, el Ejecutivo y el Judicial. Consagrado en el artículo 9 de la Constitución Política y se erige en “uno de los pilares fundamentales del Estado Democrático, en tanto establece un sistema de frenos y contrapesos que garantiza el respeto de los valores, principios y normas constitucionales en beneficio directo de los habitantes del país.” (sentencia n°2006-013708). Desde la sentencia n°6829-1993 se indicó que, la teoría de la separación de Poderes se interpreta como la necesidad de que cada Órgano del Estado ejerza su función con independencia de los otros (artículo 9 de la Constitución Política). Si bien no pueden darse interferencias o invasiones a la función asignada, necesariamente deben producirse colaboraciones entre Poderes. En la actualidad, la doctrina y la práctica constitucionales afirman que lo conveniente es hablar de una separación de funciones, es decir, de la distribución de ellas entre los diferentes órganos estatales. Propiamente sobre la independencia del Poder Judicial y la independencia de los jueces existe también abundante jurisprudencia de esta Sala. En general, se ha afirmado que, en los regímenes políticos democráticos, el principio de independencia del juez, en particular, y del Poder Judicial, en general, tiene un valor fundamental porque sobre él descansan la legitimidad del juez y la imparcialidad de la decisión judicial. Se ha indicado que resulta toral para el adecuado funcionamiento del Estado democrático de Derecho –entendido bajo su postulado de primacía del derecho– que la función jurisdiccional pueda ejercerse sin presiones indebidas, en el seno de un Poder Judicial verdaderamente independiente. Principio que, en el caso costarricense, no solo tiene debido sustento constitucional, sino que en múltiples instrumentos internacionales se contempla. Esta Sala ha resaltado desde sus inicios la importancia de la independencia judicial al reafirmar que la administración de justicia es una competencia exclusiva del Poder Judicial (ver sentencia n°1991-0441 y 1994- 2358, 1996-6989, 1999-4555, 2006-7965). La Corte Interamericana de Derechos Humanos –órgano jurisdiccional del Sistema Interamericano de Protección- ha determinado:

“(…) uno de los objetivos principales que tiene la separación de los poderes públicos es la garantía de la independencia de los jueces” (Corte IDH. Caso del Tribunal Constitucional vs. Perú. Fondo, Reparaciones y Costas. Sentencia de 31 de enero de 2001 Serie C No. 71, párr. 73).

Asimismo ha indicado que “Dicho ejercicio autónomo debe ser garantizado por el Estado tanto en su faceta institucional, esto es, en relación con el Poder Judicial como sistema, así como también en conexión con su vertiente individual, es decir, con relación a la persona del juez específico. El objetivo de la protección radica en evitar que el sistema judicial en general y sus integrantes en particular se vean sometidos a posibles restricciones indebidas en el ejercicio de su función por parte de órganos ajenos al Poder Judicial o incluso por parte de aquellos magistrados que ejercen funciones de revisión o apelación. Adicionalmente, el Estado está en el deber de garantizar una apariencia de independencia de la magistratura que inspire legitimidad y confianza suficiente no sólo al justiciable, sino a los ciudadanos en una sociedad democrática”. (Corte IDH. Caso Apitz Barbera y otros “Corte Primera de lo Contencioso Administrativo” vs. Venezuela. Excepción Preliminar, Fondo, Reparaciones y Costas. Sentencia de 5 de agosto de 2008. Serie C No. 182, párr. 55.).

En la sentencia n°1999-1807 se indicó el fundamento constitucional y convencional del principio de independencia judicial, resaltándose la independencia externa (del Poder Judicial como órgano) y la interna (la del juez):

“VIII.- La independencia del Poder Judicial se encuentra garantizada constitucionalmente en los artículos 9 y 154. También la Convención Americana sobre Derechos Humanos, normativa de rango internacional de aplicación directa en nuestro país se refiere al tema. La Convención Americana sobre Derechos Humanos establece la independencia del juez como un derecho humano, al disponer en el artículo 8.1 que: «1.- Toda persona tiene derecho a ser oída, con las debidas garantías y dentro de un plazo razonable, por un juez o tribunal competente, independiente e imparcial, establecido con anterioridad por la ley, en la sustanciación de cualquier acusación penal formulada contra ella, o para la determinación de sus derechos y obligaciones de orden civil, laboral o de cualquier otro carácter. 2.- ...» La independencia del Órgano Judicial se plantea hacia lo externo. El Órgano Judicial es independiente frente a los otros Poderes del Estado, no así el juez cuya independencia debe ser analizada de una forma más compleja. Pero cuando se asegura que un Poder Judicial es independiente, lo mismo se debe predicar de sus jueces, pues éstos son los que deben hacer realidad la función a aquél encomendada. La independencia que verdaderamente debe interesar -sin restarle importancia a la del Órgano Judicial- es la del juez, relacionada con el caso concreto, pues ella es la que funciona como garantía ciudadana, en los términos de la Convención Americana sobre Derechos Humanos. La independencia efectiva del Poder Judicial coadyuva a que los jueces que lo conforman también puedan serlo, pero bien puede darse que el Órgano como un todo tenga normativamente garantizada su independencia, pero que sus miembros no sean independientes, por múltiples razones” (citado en los votos n° 2006-15252, 2008-9495, 2008-16529).

Sobre la relación entre independencia del juez y el principio de imparcialidad, en el voto n°1998-2378 se indicó: “La independencia e imparcialidad del juez constituyen conceptos relacionados entre sí y son indudablemente principios constitucionales en un régimen político como el nuestro. La independencia determina que el juez esté solo sometido a la Constitución y a la Ley y la imparcialidad significa que para la resolución del caso el juez no se dejará llevar por ningún otro interés fuera del de la aplicación correcta de la ley y la solución justa del caso”.

De la independencia judicial como una garantía para los jueces y un derecho fundamental (garantía para las partes del proceso), en la sentencia n°1998-5795 se dispuso: “De lo dispuesto en el artículo 154 de la Constitución Política, que dice: “El Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos” deriva el principio de la independencia del Poder Judicial, el cual comprende tanto al órgano o institución como un todo, como al Juez en el conocimiento de los asuntos que le son sometidos a su juicio. En relación con este funcionario, también debe reconocerse que existe una doble protección a su investidura, ya que la independencia del juez -como garantía de las partes involucradas en el asunto sub judice- es hacia lo externo y lo interno, en el sentido de que se le protege de las influencias e incidencias -tanto externas como internas-, que pueda tener en uno u otro sentido en la decisión de un caso concreto sometido a su conocimiento, para que fallen con estricto apego a lo dispuesto en la normativa vigente; en otros términos, se protege al juez para que ni las partes que intervienen en el proceso, terceros, jueces superiores en grado, miembros “influyentes” de los Poderes del Estado, aún el Judicial, puedan, influir en su decisión, por lo que mucho menos cabría, la obligación -impuesta por parte del superior en grado- de fallar en una determinada manera un caso concreto o coaccionar al juzgador en ese sentido. La garantía de independencia de los jueces más que una garantía para estos funcionarios -que efectivamente si lo es-, constituye una garantía para los particulares (partes del proceso), en el sentido de que sus casos se decidirán con apego estricto a la Constitución y las leyes”.

De lo cual se desprende que, en la definición de Independencia Judicial se incluyen los siguientes dos tipos:

• Independencia judicial externa: se refiere a la existencia de un conjunto de garantías que pretenden evitar que una Corte sea controlada por otros órganos gubernamentales, como los poderes Ejecutivo y Legislativo. Es la relación del Poder Judicial con otros actores del sistema político. En este sentido el sistema de administración de justicia es autónomo en tanto dependa de él mismo y no de otros poderes. Independencia externa es la ausencia de presiones o influencias externas que hagan vulnerable a la institución, como resultado de amenazas a la disponibilidad de recursos que le permitan desarrollar su labor con autonomía, a la estabilidad laboral y las posibilidades de ascenso de sus funcionarios, a su integridad y patrimonio, y a sus capacidades de infraestructura para atender las demandas ciudadanas.

• Independencia judicial interna: tiene que ver con la habilidad de los jueces de dictar sentencias sin miedo a represalias.

La “independencia de ejercicio” (el hecho de que un juez resuelva un conflicto libre de injerencias impropias) se convierte en “independencia estructural” (el conjunto de garantías formales y condiciones estructurales que protegen al juez y al Poder Judicial de cualquier tipo de intervención o control). En el voto n°2001-6632 se enfatizó en la importancia y rango constitucional del principio de independencia del Poder Judicial, además como derecho de los ciudadanos, al indicarse: “Nadie puede hoy restar el valor trascendental que desempeña en el real funcionamiento del Estado democrático de derecho, la independencia de los jueces. Está claramente aceptado que más que un principio, y todavía más allá de lo que pudiera señalarse como un privilegio otorgado al Juez, estamos ante el derecho de los ciudadanos a contar con jueces independientes”. Posteriormente, en la sentencia n°2015-15726 se recalca el principio de independencia judicial, además como un valor fundamental del régimen democrático: “III.- ACERCA DEL PRINCIPIO DE INDEPENDENCIA DEL JUEZ. Dentro de los regímenes políticos democráticos, el principio de independencia del juez, en particular, y del Poder Judicial, en general, tiene un valor fundamental porque sobre él descansan la legitimidad del juez y la imparcialidad de la decisión judicial”. También se puede mencionar la sentencia n° 2000-5493 donde se indicó que la independencia del Poder Judicial se traduce, en materia económica y por la inamovilidad de su personal, así como, en lo funcional, por la posibilidad real de tomar sus decisiones de acuerdo con criterios propios y no como resultado de presiones procedentes de determinados grupos, instituciones o personas:

“En cuanto al principio de independencia judicial, debemos señalar que constitucionalmente este principio deriva del artículo 153 de la Constitución Política que señala: "Corresponde al Poder Judicial además de las funciones que esta Constitución le señala, conocer de las causas civiles, penales, comerciales, de trabajo y contencioso-administrativas así como de las otras que establezca la ley, cualquiera que sea su naturaleza y la calidad de las personas que intervengan; resolver definitivamente sobre ellas y ejecutar las resoluciones que pronuncie, con la ayuda de la fuerza pública si fuere necesario." El artículo 154 constitucional, en este mismo sentido indica: "El Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos." El marco jurídico establecido constitucionalmente relacionado con la independencia judicial se ve complementado por los artículos 1 a 8 al de la Ley Orgánica del Poder Judicial que desarrollan los presupuestos constitucionales. Debemos hacer referencia además de los artículos 162 al 173 de la Ley Orgánica del Poder Judicial que hacen mención de la jurisdicción y competencia de los jueces, en especial interesa citar los siguientes: “Artículo 162. La facultad de administrar justicia se adquiere con el cargo al que está anexa y se pierde o suspende para todos los negocios cuando, por cualquier motivo, el juez deja de serlo o queda suspendido temporalmente en sus funciones." "Artículo 165. Todo juez tiene limitada su competencia al territorio y a la clase de asuntos que le estén señalados para ejercerla; las diligencias que los procesos de que conozca exijan se hagan en el territorio de otro juez, sólo podrán practicarlas por medio de éste, salvo autorización legal en contrario. El juez sólo podrá conocer de los asuntos no sometidos a su competencia, cuando le fuere legalmente prorrogada o delegada. Tomando en consideración el marco jurídico anterior esta Sala considera que el principio de independencia del juzgador podría definirse como aquella potestad dada por la Constitución y la ley por medio de la cual el juez, cumpliendo en su ámbito competencial y jurisdiccional ejerce el poder que le ha sido delegado por el Estado de resolver un conflicto planteado por los particulares o por la misma Administración. Este principio va ligado directamente a los principios de unidad y monopolio de la jurisdicción, así como de imparcialidad y competencia.

La independencia judicial se manifiesta en diversos planos, en el plano externo, se traduce por la autonomía del Poder Judicial en materia económica y por la inamovilidad de su personal, así como, en lo funcional, por la posibilidad real de tomar sus decisiones de acuerdo con criterios propios y no como resultado de presiones procedentes de determinados grupos, instituciones o personas. Ahora bien, en el plano interno, la independencia consiste en la autonomía de que deben gozar en sus decisiones las instancias judiciales inferiores con respecto a las de rango superior. Además, en un Estado Democrático y de Derecho como el nuestro, la otra cara de la independencia es la responsabilidad del personal judicial, así como el control sobre sus actividades. Sobre el contenido y naturaleza de la independencia judicial interna el aparato judicial supone, que los tribunales inferiores gozan de autonomía en sus decisiones jurisdiccionales con respecto a los de rango superior. Sin embargo, legalmente no constituye una violación a este principio la existencia de los recursos tradicionalmente previstos por la ley (apelación, revisión, casación y otros), a menos que sean utilizados en forma irregular”.

Todo lo anterior, se contempla en las siguientes fuentes, algunas de las cuales, no son normas vigentes en Costa Rica, pero son documentos que reflejan una clara doctrina sobre el tema:

• Constitución Política. Art. 9 (independientes), 154 (“El Poder Judicial sólo está sometido a la Constitución y a la ley…”) y 177 (autonomía financiera).

• El art.8.1 de la Convención Americana de Derechos Humanos (“por un juez o tribunal competente, independiente e imparcial”).

• “Principios básicos relativos a la independencia de la judicatura”, adoptados por el Séptimo Congreso de las Naciones Unidas sobre Prevención del Delito y Tratamiento del Delincuente, celebrado en Milán del 26 de agosto al 6 de septiembre de 1985, y confirmados por la Asamblea General en sus resoluciones 40/32 de 29 de noviembre de 1985 y 40/146 de 13 de diciembre de 1985, en el principio 11.

• “Carta Europea sobre el Estatuto de los Jueces”, adoptada en Estrasburgo, entre el 8 y el 10 de julio de 1998, párrafos 6.1 y 6.4.

• “Estatuto del Juez Iberoamericano”, aprobado en la VI Cumbre Iberoamericana de Presidentes de Cortes Supremas y Tribunales Supremos de Justicia, celebrada en Santa Cruz de Tenerife, Islas Canarias, España, los días 23, 24 y 25 de mayo de 2001, en el artículo 32 (“Art. 32. Remuneración. Los jueces deben recibir una remuneración suficiente, irreductible y acorde con la importancia de la función que desempeñan y con las exigencias y responsabilidades que conlleva”) • El Informe N° 1 del 23 de noviembre del 2001, rendido por el Consejo Consultivo de Jueces Europeos (CCJE), al examinar el tema de la independencia e inamovilidad de los jueces. Con respecto al tema de los salarios de los jueces.

• El Estatuto de Justicia y Derechos de las Personas Usuarias del Sistema Judicial, aprobado por la Corte Plena, en cuyos artículos 19, 20, 21, 22, 23 y 24, se hace referencia a la independencia del Poder Judicial y de los jueces. El artículo 49, del citado Estatuto, consagra también, al igual que los instrumentos internacionales examinados, el principio del salario irreductible del juez.

Por otra parte, además de lo dicho sobre la temática de empleo público, debe indicarse que los principios básicos derivados de los artículos 191 y 192 de la Constitución Política no son ajenos al Poder Judicial. Así, por ejemplo, la Sala ha remitido expresamente a los principios derivados de tales numerales al resolver sobre el sistema de nombramiento en el Poder Judicial (voto n°2001-05694). Lo que debe complementarse, necesariamente, con lo dispuesto por el artículo 156 de la Constitución Política, que, respecto del Poder Judicial, establece:

“ARTÍCULO 156.- La Corte Suprema de Justicia es el tribunal superior del Poder Judicial, y de ella dependen los tribunales, funcionarios y empleados en el ramo judicial, sin perjuicio de lo que dispone esta Constitución sobre servicio civil.” Ahora bien -y en lo que interesa a esta consulta-, debe indicarse que existen varios precedentes de la Sala en que, expresamente, se entiende como plenamente justificado que en el caso específico del Poder Judicial tenga una regulación especial, separada y diferenciada -aunque, sujeta a los principios constitucionales fundamentales que prevén los artículos 191 y 192-. Se puede citar, en primer lugar, el voto n°550-1991, que indica:

“(…) en el caso de los poderes, su propia independencia constitucional, garantizada en general por el artículo 9° de la Constitución y, en los del Poder Judicial y del Tribunal Supremo de Elecciones por las de los artículos 99 y siguientes, 152 y siguientes y 177 de la misma, así como sus propias normas orgánicas, imponen a sus jerarcas la atribución y la responsabilidad de fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos, dentro, naturalmente, de sus disponibilidades presupuestarias, independientemente, desde luego, de que sus montos puedan coincidir o no con los de los diputados.” Luego, en el voto n°01472-1994, la Sala indicó que, en efecto, los artículos 191 y 192 de la Constitución Política fundamentan la existencia de “un régimen de empleo regido por el Derecho Público, dentro del sector público”, con “principios generales propios”, por lo que “las relaciones laborales existentes entre el Estado y sus servidores deben concebirse como un todo, regulado por principios, disposiciones y políticas generales, sin distinción, salvo las excepciones expresamente contempladas por la ley, respecto de los centros funcionales de los que dependan aquellos servidores”. Ahora bien, en ese mismo voto, se agregó:

“(…) ha establecido esta Sala que no resulta posible la equiparación, indiscriminada, de remuneraciones entre los miembros de los poderes públicos, pues el imponer un tratamiento igual a situaciones o funcionarios que se encuentran objetivamente en circunstancias de desigualdad, quebrantaría, en general, el principio de igualdad y específicamente en materia de salarios y condiciones de trabajo, el 57 de la Constitución, habida cuenta de no ser los mismos requisitos, limitaciones, prohibiciones o condiciones de ejercicio del cargo de los funcionarios o empleados del ejecutivo con los de los miembros de los demás poderes u órganos constitucionales. En efecto, el principio de igualdad ante la ley no es de carácter absoluto, pues no concede un derecho a ser equiparado a cualquier individuo, sino más bien a exigir que la ley no haga diferencias entre dos o más personas que se encuentren en una misma situación jurídica o en condiciones idénticas, o sea que no puede pretenderse un trato igual cuando las condiciones o circunstancias son desiguales.” Por otra parte, sobre la excepción del Poder Judicial al régimen único de empleo y a política salarial como política de gobierno, en la sentencia n°1994-3309, la Sala expresó:

“VII.- Definida la política salarial como parte de la política de gobierno, es necesario reiterar que cuando el constituyente descentralizó el Poder Ejecutivo, procuró evitar las injerencias arbitrarias y antitécnicas en cuanto a la gestión de cada una de esas instituciones, definida por ley. Pero no optó el legislador constituyente por crear un régimen salarial o laboral segregado del Poder Ejecutivo central, pues no hay duda que el Título XV, Capítulo Unico de la Constitución Política tiene como antecedente inmediato, la práctica anterior de destituir masivamente a los funcionarios y empleados estatales con ocasión de cada cambio de gobierno. La antítesis de esta práctica entonces es un sistema de servicio público estable, profesional, permanente, regido por un cuerpo normativo integrado y coherente, estableciéndose un régimen único de empleo para los servidores públicos que incluye a la totalidad de las instituciones del Estado, con la excepción hecha del artículo 156 de la Carta Magna en cuanto al Poder Judicial”.

Mientras que, en el voto n°1996-03575, la Sala señaló que el órgano estatal competente en materia de empleo público es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particulares condiciones:

“(…) De la jurisprudencia citada se desprende además de la existencia del Régimen de Empleo Público, que el legislador ordinario al desarrollar en la práctica los artículos 191 y 192 de la Constitución Política, no lo hizo mediante la promulgación de una única ley sino que lo hizo mediante la aprobación de varias leyes relacionadas con el tema en cuestión, y ejemplo de ello es el Estatuto de Servicio Civil, el cual es una legislación parcial que le es aplicable únicamente a los servidores del Poder Ejecutivo. En este orden de ideas y de conformidad con el artículo 9 Constitucional, en relación al principio de separación de poderes, interpretado por esta Sala en sentencia N°6829-93 de las ocho y treinta y tres horas del veinticuatro de diciembre de mil novecientos noventa y tres, como una separación de funciones al disponer:

"II.- LA TEORIA DE LA SEPARACION DE PODERES. La teoría de la separación de Poderes tradicionalmente se interpreta como la necesidad de que cada Órgano del Estado ejerza su función con independencia de los otros (artículo 9o.de la Constitución Política). Si bien no pueden darse interferencias o invasiones a la función asignada, necesariamente deben producirse colaboraciones entre Poderes. En la actualidad, la doctrina y la práctica constitucionales afirman que no existe absoluta separación, aún más, nada impide que una misma función - no primaria- sea ejercida por dos Poderes o por todos, razón por la que no se puede hablar de una rígida distribución de competencias en razón de la función y la materia. El Estado es una unidad de acción y de poder, pero esa unidad no existiría si cada Poder fuere un organismo independiente, aislado, con amplia libertad de decisión, por lo que en realidad no se puede hablar de una división de Poderes en sentido estricto; el Poder del Estado es único, aunque las funciones estatales sean varias. Lo conveniente es hablar de una separación de funciones, es decir, de la distribución de ellas entre los diferentes órganos estatales. Esta separación de funciones parte del problema técnico de la división del trabajo: el Estado debe cumplir ciertas funciones y éstas deben ser realizadas por el órgano estatal más competente..." Además, y para mayor abundamiento esta Sala en sentencia número 990-92 de las dieciséis horas treinta minutos del catorce de abril de mil novecientos noventa y dos, dispuso: "Segundo: La positivación del " principio democrático" en el artículo 1° de la Constitución, constituye uno de los pilares, el núcleo vale decir, en que se asienta nuestro sistema republicano y en ese carácter de valor supremo del Estado Constitucional de Derecho, debe tener eficacia directa sobre el resto de fuentes del ordenamiento jurídico infraconstitucional y obviamente sobre el Reglamento, de donde se sigue que la potestad del parlamento para dictar las normas de su propio gobierno interno( interna corporis), no sólo está prevista por la Constitución Política en su artículo 121 inciso 22, sino que es consustancial al sistema democrático y específica de la Asamblea Legislativa como poder constitucional, a tenor del Título IX de la Carta Fundamental..." Así, aplicado el anterior principio a la materia en estudio, sea el Régimen del Empleo Público, es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones.” Lo anterior no óbice, para que se incluya dentro de una Ley de Empleo Público al Poder Judicial, tal como se ha explicado supra, en el considerando general de esta sentencia.

Luego, en el voto n°1999-919, este Tribunal conoció la consulta de constitucionalidad formulada respecto del entonces proyecto de Ley de Administración Financiera de la República y Presupuesto Públicos, que, incluso, contenía -y contiene- una norma análoga a la introducida en el proyecto ahora en consulta, la cual dice:

"Artículo 1.- Ámbito de aplicación La presente ley regula el régimen económico-financiero de los órganos y entes administradores o custodios de los fondos públicos. Será aplicable a:

(…)

• b)Los Poderes Legislativo y Judicial, el Tribunal Supremo de Elecciones, sus dependencias y órganos auxiliares, sin perjuicio del principio de separación de Poderes estatuido en la Constitución Política.

(…)

En tal oportunidad estimó esta Sala que, en efecto, no se infringía el principio de separación de poderes, dado que -según se derivaba del resto del articulado del proyecto- los lineamientos y directrices emitidos por el Poder Ejecutivo requerían, necesariamente, la aprobación de los jerarcas de los órganos mencionados en el citado inciso b, que son “poseedores de independencia funcional constitucional respecto del Poder Ejecutivo”. En concreto, se señaló:

“En lo referente a la separación de poderes, considera esta Sala que, de la lectura atenta de los numerales de cita, se desprende que el proyecto consultado pretende dar a la Autoridad Presupuestaria competencias para elaborar en fase preliminar -pues luego requieren de aprobación por parte del Poder Ejecutivo- los lineamientos y directrices que determinarán el funcionamiento de la Administración en materia presupuestaria. Sobre la eficacia de tales disposiciones ya se referirá la Sala en este mismo considerando. En lo que respecta estrictamente a los órganos abarcados por el inciso b) del artículo 1 del proyecto, todos estos caracterizados por ser poseedores de independencia funcional constitucional respecto del Poder Ejecutivo, el mismo texto de los artículos 21 inciso b) y 23 in fine dispone que la aprobación de tales directrices compete a los jerarcas de tales órganos, cabiendo a la Autoridad Presupuestaria tan solo la función de proponer tales lineamientos. Es decir, que el mismo texto prevé un dispositivo que respeta la independencia funcional dada a los órganos del inciso b) del artículo 1° en materia presupuestaria, ya que el hecho de que los jerarcas de los órganos mencionados no apruebe los lineamientos dichos no acarrea ninguna consecuencia jurídica. Debido a lo anterior, cabe concluir que los artículos citados no representan alguna forma de afrenta a la separación de poderes, consagrada en el artículo 9° constitucional.” Luego, al pronunciarse esta Sala, específicamente sobre el régimen disciplinario en el caso del Poder Judicial y sobre su normativa especial, en el voto n°1995-01265, se indicó:

“(…) debe el accionante tener en cuenta que el Poder Judicial, no obstante que es un Poder del Estado, y regirse por el Derecho Administrativo, tiene un régimen especial en razón de la función que desarrolla; y en materia de relación de empleo público, aunque los principios generales están dados en el Derecho Administrativo y en el Derecho Laboral -como parámetros-, las especificaciones se regulan de conformidad con la normativa que se refiere específicamente al Poder Judicial, así, se rige de conformidad con lo dispuesto en la Ley Orgánica del Poder Judicial, el Estatuto de Servicio Judicial, el Reglamento sobre concurso de antecedentes para nombrar funcionarios que administren justicia, la Ley Orgánica del Organismo de Investigación Judicial, el Reglamento sobre la Calificación para los Empleados del Poder Judicial, etc. Como se observa, se trata de una normativa especial, que no puede ser derogada tácitamente por una norma posterior de carácter general, como afirma el accionante.” (reiterado voto n°2017-003450).

Existen múltiples votos de la Sala en que se destaca la particular relevancia que supone la adecuada regulación y aplicación del régimen disciplinario en resguardo de la independencia del juez. La Sala ha destacado la íntima relación entre la independencia judicial y el sistema de nombramiento, remoción y régimen disciplinario de los jueces. Así, por ejemplo, en el voto n°2009-4849, se realizó un amplio desarrollo sobre este tema:

“(…) Resulta toral para el adecuado funcionamiento del Estado democrático de Derecho –entendido bajo su postulado de primacía del derecho– que la función jurisdiccional pueda ejercerse sin presiones indebidas, en el seno de un Poder Judicial verdaderamente independiente, según lo ha establecido en repetidas ocasiones la Sala:

“A) PRINCIPIO DE INDEPENDENCIA.- La Constitución Política en su artículo 9 establece que el Gobierno de la República es ejercido por tres Poderes distintos e independientes entre sí: Legislativo, Ejecutivo y Judicial. Por otra parte, el párrafo tercero de este artículo señala la existencia del Tribunal Supremo de Elecciones con el rango e independencia de los Poderes del Estado. Debe resaltarse la nota de independencia del Poder Judicial en relación a los otros Poderes del Estado. Esta independencia debe concurrir en los jueces, quienes tienen la misión de administrar justicia.

La independencia es la ausencia de subordinación a otro, el no reconocimiento de un mayor poder o autoridad. La independencia del juez es un concepto jurídico, relativo a la ausencia de subordinación jurídica. La garantía de la inamovilidad y el régimen de incompatibilidades tienen como fin asegurar la total independencia de los miembros del Poder Judicial. (…)

Es así como la independencia es una garantía de la propia función jurisdiccional. La independencia se reputa en relación al juez en cuanto tal, por ser él quien tiene la potestad jurisdiccional. Se trata de impedir vínculos y relaciones que puedan conducir a una reducción fáctica de la libertad del juez.” (sentencia #2883-96 de las 17:00 horas del 13 de junio de 1996) Desde luego el principio postulado en abstracto requiere ser concretizado en cabeza de todos y cada uno de los jueces. En otras palabras, el principio meramente orgánico que se defiende para el Poder Judicial es, al mismo tiempo, la independencia que se garantiza a cada juez en su caso particular, traducida, adicionalmente y por encima de todo, en el derecho fundamental de las partes de todo proceso a contar con un árbitro imparcial que diga el derecho del caso sometido a su conocimiento:

“VIII.- La independencia del Poder Judicial se encuentra garantizada constitucionalmente en los artículos 9 y 154. También la Convención Americana sobre Derechos Humanos, normativa de rango internacional de aplicación directa en nuestro país se refiere al tema. La Convención Americana sobre Derechos Humanos establece la independencia del juez como un derecho humano, al disponer en el artículo 8.1 que:

«1.- Toda persona tiene derecho a ser oída, con las debidas garantías y dentro de un plazo razonable, por un juez o tribunal competente, independiente e imparcial, establecido con anterioridad por la ley, en la sustanciación de cualquier acusación penal formulada contra ella, o para la determinación de sus derechos y obligaciones de orden civil, laboral o de cualquier otro carácter.

2.- ...» La independencia del Órgano Judicial se plantea hacia lo externo. El Órgano Judicial es independiente frente a los otros Poderes del Estado, no así el juez cuya independencia debe ser analizada de una forma más compleja. Pero cuando se asegura que un Poder Judicial es independiente, lo mismo se debe predicar de sus jueces, pues éstos son los que deben hacer realidad la función a aquél encomendada. La independencia que verdaderamente debe interesar -sin restarle importancia a la del Órgano Judicial- es la del juez, relacionada con el caso concreto, pues ella es la que funciona como garantía ciudadana, en los términos de la Convención Americana sobre Derechos Humanos. La independencia efectiva del Poder Judicial coadyuva a que los jueces que lo conforman también puedan serlo, pero bien puede darse que el Órgano como un todo tenga normativamente garantizada su independencia, pero que sus miembros no sean independientes, por múltiples razones.” ( sentencia #5790- 99 de las 16:21 horas del 11 de agosto de 1999) Sobre el tema puede también citarse el pronunciamiento #5795-98 de las 16:12 horas del 11 de agosto de 1998:

“De lo dispuesto en el artículo 154 de la Constitución Política, que dice:

"El Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos" deriva el principio de la independencia del Poder Judicial, el cual comprende tanto al órgano o institución como un todo, como al Juez en el conocimiento de los asuntos que le son sometidos a su juicio. En relación con este funcionario, también debe reconocerse que existe una doble protección a su investidura, ya que la independencia del juez -como garantía de las partes involucradas en el asunto sub judice- es hacia lo externo y lo interno, en el sentido de que se le protege de las influencias e incidencias -tanto externas como internas-, que pueda tener en uno u otro sentido en la decisión de un caso concreto sometido a su conocimiento, para que fallen con estricto apego a lo dispuesto en la normativa vigente; en otros términos, se protege al juez para que ni las partes que intervienen en el proceso, terceros, jueces superiores en grado, miembros "influyentes" de los Poderes del Estado, aún el Judicial, puedan, influir en su decisión, por lo que mucho menos cabría, la obligación -impuesta por parte del superior en grado- de fallar en una determinada manera un caso concreto o coaccionar al juzgador en ese sentido. La garantía de independencia de los jueces más que una garantía para estos funcionarios -que efectivamente si lo es-, constituye una garantía para los particulares (partes del proceso), en el sentido de que sus casos se decidirán con apego estricto a la Constitución y las leyes.” Y en la decisión #2001-6632 de las 16:21 horas del 10 de julio de 2001 se enfatizó en la importancia y rango constitucional del principio de independencia del Poder Judicial:

“Nadie puede hoy restar el valor trascendental que desempeña en el real funcionamiento del Estado democrático de derecho, la independencia de los jueces. Está claramente aceptado que más que un principio, y todavía más allá de lo que pudiera señalarse como un privilegio otorgado al Juez, estamos ante el derecho de los ciudadanos a contar con jueces independientes. Pero, simultáneamente a esta consideración de valor fundamental, puede afirmarse que estamos ante una tarea, si no inconclusa, que al menos demanda una actitud de permanente vigilia, pues es históricamente reciente el verdadero empeño por alcanzar una independencia en este campo. Es más, sincerándonos, podría decirse que todavía este derecho de las personas (ciudadano, justiciable, usuario o como se diga), no está aun bien receptado –incorporado y aplicado- en los ordenamientos jurídicos. Como señalan algunos autores, la fórmula según la cual el juez "sólo" ha de estar sujeto a la ley (similar a como la recoge nuestro artículo 154 Constitucional) se concibió totalmente dirigida a excluir la intervención o injerencia del soberano (monarca) en las decisiones jurisdiccionales. Claro que en el interés de poner al juez a buen recaudo del soberano, se lo adscribía abruptamente a la concepción de una aplicación mecánica o cuasi mecánica de la ley como expresión de la soberanía popular, cuestión ésta que, para fortuna, está hoy totalmente superada. Por ello, en una correcta inteligencia de las bondades institucionales de contar –ayer, hoy y siempre- con jueces independientes, debemos retener el concepto de "soberano" para aplicárselo a cualquiera que, por fuera o más allá de los medios procesalmente dispuestos para revisar las resoluciones de los jueces, quiera imponer indebidamente criterios o formas de actuación a éstos. En el moderno diseño del ordenamiento jurídico costarricense, soberano no es siquiera la ley, ya que el juez no está sujeto por la ley, cualquiera que ésta sea, sino por la ley que a la vez sea legítimamente constitucional, pero en definitiva, incluso habrá hipótesis en las que quedará sujeto, por encima de una disposición Constitucional, por una norma o un principio contenido en algún instrumento internacional de Derechos Humanos vigente en el país. Esto está consagrado en lo más alto de nuestro ordenamiento, y en tal sentido podemos remitirnos al artículo 48 de la Constitución Política. Como se refirió, el artículo 154 Constitucional recoge el principio de la independencia del juez, pero además, no obstante que no cuenta con la potencia jurídica que se quisiera, finalmente puede citarse el Código de Ética Judicial, aprobado definitivamente por nuestra Corte Suprema de Justicia el día veintiocho de febrero del año dos mil, cuyo artículo segundo, en lo conducente, dispone:

"Artículo 2°. PRINCIPIOS A PRIORI DE LAS NORMAS DE ESTE CÓDIGO.

Se entienden como principios apriorísticos, necesarios para un buen desenvolvimiento de la administración de justicia:

… 2. La independencia del Juez o de la Jueza, que solamente está sometido (a) a la Constitución y a la ley, es decir, al ordenamiento jurídico, sus valores y principios superiores…" De conformidad con lo anteriormente expuesto, debe afirmarse que el juez no tiene soberanos sobre sí en el desempeño jurisdiccional y por eso mismo, es que se le protege a través de prohibiciones o incompatibilidades para realizar otro tipo de actividades, dado que también, desde ese ángulo de análisis, la independencia se convierte en garantía de imparcialidad, una nota que debe acompañar el ejercicio de la jurisdicción en el día a día.” IV.- En armonía con la anterior línea jurisprudencial, los Principios Básicos Relativos a la Independencia de la Judicatura, adoptados por el Séptimo Congreso de las Naciones Unidas sobre Prevención del Delito y Tratamiento del Delincuente, celebrado en Milán del 26 de agosto al 6 de septiembre de 1985, y confirmados por la Asamblea General en sus resoluciones 40/32 de 29 de noviembre de 1985 y 40/146 de 13 de diciembre de 1985 disponen:

“Independencia de la judicatura “1. La independencia de la judicatura será garantizada por el Estado y proclamada por la Constitución o la legislación del país. Todas las instituciones gubernamentales y de otra índole respetarán y acatarán la independencia de la judicatura.

2. Los jueces resolverán los asuntos que conozcan con imparcialidad, basándose en los hechos y en consonancia con el derecho, sin restricción alguna y sin influencias, alicientes, presiones, amenazas o intromisiones indebidas, sean directas o indirectas, de cualesquiera sectores o por cualquier motivo. (…)” Texto que confirma que es respecto de los jueces considerados en su esfera individual que resulta especialmente pertinente la diferencia entre la independencia externa e interna, entendiendo la primera como la independencia de otros órganos o entes estatales, así como de grupos de presión en general, mientras que la segunda advierte sobre la coacción que pueda ejercerse dentro de la propia organización judicial, ya sea por autoridades jurisdiccionales de instancias ulteriores o por funcionarios administrativos que están en posición de poder frente a los jueces.

V.- Relación de la independencia judicial con el nombramiento, remoción y régimen disciplinario de los jueces. No es casual que en los diferentes instrumentos y declaraciones que se ocupan del tema de la independencia judicial se aborden aspectos de orden administrativo como son la designación de los jueces, su destitución y la aplicación de sanciones disciplinarias. En esa dimensión práctica e individualizada al final de cuentas se juega su fuero de protección de cara a presiones de toda clase. Un juez que pueda ser designado mediante mecanismos opacos, o cuya destitución o sanción pueda producirse sin justificación suficiente por parte de cualquier tipo de autoridad, es un juez en una situación francamente vulnerable. En los Principios Básicos Relativos a la Independencia de la Judicatura de Naciones Unidas, anteriormente citados, se estipula:

“Medidas disciplinarias, suspensión y separación del cargo.

“17. Toda acusación o queja formulada contra un juez por su actuación judicial y profesional se tramitará con prontitud e imparcialidad con arreglo al procedimiento pertinente. El juez tendrá derecho a ser oído imparcialmente. En esa etapa inicial, el examen de la cuestión será confidencial, a menos que el juez solicite lo contrario.

18. Los jueces sólo podrán ser suspendidos o separados de sus cargos por incapacidad o comportamiento que los inhabilite para seguir desempeñando sus funciones.

19. Todo procedimiento para la adopción de medidas disciplinarias, la suspensión o la separación del cargo se resolverá de acuerdo con las normas establecidas de comportamiento judicial.

20. Las decisiones que se adopten en los procedimientos disciplinarios, de suspensión o de separación del cargo estarán sujetas a una revisión independiente. Podrá no aplicarse este principio a las decisiones del tribunal supremo y a las del órgano legislativo en los procedimientos de recusación o similares.” De la misma forma, el Estatuto del Juez Iberoamericano, adoptado por la Unión Internacional de Magistrados, se ocupa del ejercicio de la potestad sancionatoria sobre los jueces:

“6.- RÉGIMEN DISCIPLINARIO.

La Ley deberá tipificar, de la forma más concretamente posible los hechos que constituyan infracción disciplinaria de los Jueces.

La entidad con competencia disciplinaria será, exclusivamente del propio Poder Judicial.

El procedimiento disciplinario, que podrá ser instado por cualquier persona, órgano de soberanía o del Estado, dará lugar al empleo de todos los medios de defensa y específicamente contradictorio.

Las sanciones disciplinarias más graves sólo podrán ser adoptadas por mayoría cualificada.” Igual tendencia sigue el Estatuto Universal del Juez, aprobado en la reunión del Consejo Central de la Unión Internacional de Magistrados en Taipei, Taiwán, el 17 de noviembre de 1999:

“Art.11: Administración y principios en materia de disciplina.

La gestión administrativa y disciplinaria de los miembros del poder judicial debe ejercerse en condiciones que permitan preservar su independencia, y se fundamenta sobre la puesta en práctica de criterios objetivos y adaptados.

Cuando esto no está suficientemente asegurado por otras vías resultantes de una probada tradición, la administración judicial y la acción disciplinaria deben ser competencia de un órgano independiente integrado por una parte sustancial y representativa de jueces.

Las sanciones disciplinarias frente a los jueces no pueden adoptarse mas que por motivos inicialmente previstos por la ley, y observando reglas de procedimiento predeterminadas.” Adicionalmente, con carácter meramente ilustrativo, se considera relevante traer a colación que la Comisión Europea de la democracia por el derecho, conocida como Comisión de Venecia (órgano consultivo del Consejo de Europa sobre cuestiones constitucionales), al rendir una opinión sobre la Ley sobre responsabilidad y procedimientos disciplinarios de los jueces ordinarios en Georgia, en marzo de 2007, enfatizó en el necesario equilibrio entre la responsabilidad disciplinaria de los jueces y las garantías de su independencia, sin comprometer esta última, limitándola inútilmente. En esa oportunidad, se recordó la disposición 5.1 de la Carta europea sobre el estatuto de los jueces que dice:

“La falta por parte de un juez o una jueza a uno de sus deberes expresamente establecidos en el estatuto no puede dar lugar a una sanción, salvo que sea impuesta mediante una decisión, basada en una proposición, recomendación o acuerdo de una jurisdicción o instancia compuesta por, al menos, una mitad de jueces; y en el marco de un procedimiento contradictorio donde el juez o jueza investigados puedan hacerse asistir por un defensor. La escala de sanciones susceptibles de aplicación debe estar precisada por el estatuto y su aplicación sometida al principio de proporcionalidad. (…)” Así, el régimen disciplinario podría tornarse en una herramienta amenazante para la independencia del juez e, indirectamente, para el Estado de Derecho. Un juez no puede ser separado de su cargo durante la duración de su mandato, ni sancionado, excepto por razones de peso (violación ética, ineptitud, por ejemplo), siguiendo las garantías del debido proceso. Procedimientos apropiados de designación, para ascensos y en materia disciplinaria -que no sólo estén plasmados en el papel, sino que se cumplan en la práctica– son primordiales para proteger lo que se ha denominado la seguridad de permanencia de los jueces. En el caso específico de la potestad sancionatoria, un procedimiento disciplinario bien estructurado, las protecciones de debido proceso y la proporcionalidad entre sanción e infracción, reducen la vulnerabilidad a los abusos que perjudican la independencia judicial.” Por su parte, en el voto n°2017-009551, la Sala analizó la constitucionalidad del inciso g) del artículo 2 de la Ley de Protección al Trabajador, en cuanto preveía: “Entidades supervisadas. Todas las entidades autorizadas, la CCSS en lo relativo al Régimen de Invalidez, Vejez y Muerte y todas las entidades administradoras de regímenes de pensiones creados por leyes o convenciones colectivas, antes de la vigencia de esta ley”. Se cuestionaba, en particular, que la SUPEN pudiese fiscalizar el Fondo de Pensiones y Jubilaciones del Poder Judicial. En tal precedente, se analizó el contenido del principio de separaciones de funciones, en relación con los principios de unidad coordinación y unidad del Estado. Finalmente, se concluyó que que la normativa era constitucional, pues para que fuera inconstitucional debía:

“interfiere, en efecto, con las atribuciones constitucionales de ordenar, planificar o programar por ejemplo la función administrativa de manejo de personal, de impartir justicia o relacionada con ésta, las que estarán fuera del alcance del legislador, pero este no es el caso. Por otra parte, el problema no parece estar transitando en la interferencia que produciría un exceso de regulación del legislador sobre las formas y medios que debe utilizar el Consejo Superior del Poder Judicial para alcanzar los fines fijados para el fondo, si así fuera, podría impugnarse judicialmente por ese motivo”.

En ese mismo voto se recalcó la importancia del Poder Judicial en el Estado de Derecho y del ejercicio de su función administrativa con independencia:

“El Poder Judicial no es hoy en día un poder “vacío” o “devaluado” (como se le consideraba en los inicios del Estado moderno); es precisamente uno de los objetivos claros de los dictadores bajarle el perfil a su independencia, minar la independencia económica o rellenando las cortes con jueces “orientados ideológicamente” (court-packing que afortunadamente no ocurrió en los EEUU a pesar de una amplia mayoría partidaria en el Congreso en sintonía con su presidente F. D. Roosevelt, pero con sombrías críticas entre sus propias filas); si no se le da la importancia al Poder Judicial en el Estado social y democrático de Derecho para su correcto funcionamiento, su debilitamiento conduce a forma de gobiernos antidemocráticas, prueba de ello es que uno de las funciones que primero controlan los gobiernos autoritarios o totalitarios es la judicial, de ahí la importancia de que todo sistema democrático tenga un Poder Judicial robusto.” (…) “tanto las funciones legislativas como las judiciales requieren de una estructura administrativa de apoyo para la consecución de su función esencial o primaria, como lo es la función administrativa que le ayuda a canalizar toda su actividad; la que, lógicamente, alcanza al recurso humano o del personal de los Poderes de la República, entretanto, detrás de la función fundamental está la administrativa del personal, agentes y servidores (as) públicos (as), etc.” Así, en el voto n°2018-019511, en que se conoció de la consulta legislativa respecto del proyecto de "Ley de Fortalecimiento de las Finanzas Publicas" (expediente legislativo nro. 20.580), esta Sala concluyó -luego de realizar una labor interpretativa respecto del contenido del proyecto- que, en concreto, lo previsto en los numerales 46, 47 y 49, atinentes a la “rectoría de la materia empleo público de Mideplán” y “la obligatoriedad de los lineamientos técnicos y metodológicos de la Dirección General del (sic) Servicio Civil”, no aplicaban para el Poder Judicial. Interpretación que se hizo, tomando en consideración el principio de independencia del Poder Judicial. En particular, se indicó:

“La lectura del marco constitucional inicia con el reconocimiento de la independencia del Poder Judicial, uno de los cimientos cardinales de nuestro Estado de Derecho:

“ARTÍCULO 9º-El Gobierno de la República es popular, representativo, participativo, alternativo y responsable. Lo ejercen el pueblo y tres Poderes distintos e independientes entre sí. El Legislativo, el Ejecutivo y el Judicial.

Ninguno de los Poderes puede delegar el ejercicio de funciones que le son propias. (…)” “ARTÍCULO 154.- El Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos.” “ARTÍCULO 156.- La Corte Suprema de Justicia es el tribunal superior del Poder Judicial, y de ella dependen los tribunales, funcionarios y empleados en el ramo judicial, sin perjuicio de lo que dispone esta Constitución sobre servicio civil.” Estas disposiciones constitucionales han dado pie al desarrollo de un profuso marco normativo, específicamente diseñado para regular al Poder Judicial. Entre las normas de este marco se cuentan la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público, la Ley Orgánica del Organismo de Investigación Judicial, la Ley de Salarios del Poder Judicial, el Estatuto de Servicio Judicial (incluida su reforma por la Ley de Carrera Judicial), etc.

De manera clara, las normas supra enunciadas tienen la intención de regular concretamente al Poder Judicial, velando por que se garantice su independencia frente a los otros Poderes de la República.

El hecho de que el Poder Judicial goce de una regulación particular pone en la palestra el segundo punto de análisis de la interpretación sistemática. En este sentido, debe estudiarse si existen normas particulares para el Poder Judicial y verificar su relación con el articulado cuestionado.

Independientemente de que el ordinal 47 del proyecto hable de “salvedades”, se observa que la evaluación del desempeño y la competencia en la toma de decisiones en materia laboral, sean generales o concretas, se encuentran ya reguladas por el mencionado marco normativo del Poder Judicial, imposibilitando que una instancia externa asuma la “rectoría” o imponga criterios sobre ese Poder. Es más, dicho marco normativo está diseñado para garantizar la eficiencia de la función judicial y proteger a los servidores judiciales de injerencias externas, tal como indica el artículo 1 del Estatuto de Servicio Judicial:

“Artículo 1º.- El presente Estatuto y sus reglamentos regularán las relaciones entre el Poder Judicial y sus servidores, con el fin de garantizar la eficiencia de la función judicial y de proteger a esos servidores.” Nótese que la norma determina que las relaciones de empleo entre el Poder Judicial y sus servidores se encuentran reguladas por el Estatuto y su reglamento. La interpretación sistemática a que obliga ese numeral impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias. Esto se verifica porque el dictado del reglamento a que refiere la norma es, a su vez, competencia exclusiva de la Corte, como indica el mismo Estatuto:

“Artículo 5º.- Antes de dictar un reglamento interior de trabajo, ya sea de carácter general para todos los servidores judiciales o aplicables sólo a un grupo de ellos, la Corte pondrá en conocimiento de esos servidores el proyecto respectivo, por el medio más adecuado, a fin de que hagan por escrito las observaciones del caso, dentro de un término de quince días.

La Corte tomará en cuenta esas observaciones para resolver lo que corresponda, y el reglamento que dicte será obligatorio sin más trámite, ocho días después de su publicación en el "Boletín Judicial".” Una garantía más de la independencia del Poder Judicial en el tema de empleo es que el Jefe del Departamento de Personal se encuentra vinculado al Presidente de la Corte, excluyendo la injerencia de instancias externas:

“Artículo 6º.- El Departamento de Personal del Poder Judicial funcionará bajo la dirección de un Jefe que dependerá directamente del Presidente de la Corte y será nombrado por la Corte Plena.” Luego, el detalle de la normativa del Estatuto de Servicio Judicial distingue las diferentes competencias en materia de evaluación del desempeño, lo que corrobora la existencia de normativa especial para ese Poder. Así, verbigracia, los numerales 8 y 10 del Estatuto de Servicio Judicial rezan:

“Artículo 8º.- Corresponde al Jefe del Departamento de Personal:

• c)Establecer los procedimientos e instrumentos técnicos necesarios para una mayor eficiencia del personal entre ellos la calificación periódica de servicios, el expediente y prontuario de cada servidor y los formularios que sean de utilidad técnica; (…)

Artículo 10.- La calificación periódica de servicios se hará anualmente por el Jefe de cada oficina judicial respecto de los subalternos que laboren en ella, usando formularios especiales que el Jefe del Departamento de Personal enviará a las diferentes oficinas en los meses que él determine. (…)” Es decir, las calificaciones periódicas del personal judicial, como sería la evaluación anual, son efectuadas mediante los procedimientos fijados por el Jefe del Departamento de Personal del Poder Judicial. Se trata de normas especiales, atinentes en forma exclusiva al Poder Judicial, que se impondrían a las normas generales del proyecto, dado el caso de que entraren en vigor.

La Sala resalta que el proyecto de ley no deroga ni modifica de manera alguna las disposiciones anteriormente transcritas, ni ninguna otra del Estatuto de Servicio Judicial. Este Estatuto rige la materia de empleo en el Poder Judicial y representa una garantía para los servidores judiciales, en consonancia con los postulados constitucionales que salvaguardan la independencia judicial; su modificación o derogatoria no podría ser tácita ni provenir de una mera inferencia, pues ello denotaría el desconocimiento de las reglas hermenéuticas.

Por otro lado, ante el cuestionamiento de que el artículo 49 del proyecto ordena al Poder Judicial el acatamiento obligatorio de los lineamientos de la Dirección General de Servicio Civil, lo cierto es que la relación entre dicha Dirección y el Poder Judicial conoce una norma específica, según se desprende del citado ordinal 8:

“(…) El Jefe del Departamento de Personal podrá hacer a la Dirección General de Servicio Civil las consultas que fueran necesarias y solicitar a esta Dirección el asesoramiento que corresponda, para la mejor realización de sus funciones. (…)” Es decir, el marco legal del Poder Judicial prevé la potestad del Jefe de su Departamento de Personal (hoy denominado Gestión Humana) de consultar a la Dirección General de Servicio Civil y solicitar su asesoramiento para la realización de sus funciones. Dichas funciones incluyen, tal como se vio, la obligación de determinar los procedimientos e instrumentos técnicos para la calificación periódica del personal (numeral 8 supra citado). Tal disposición de ley especial vuelve inaplicable al Poder Judicial las normas cuestionadas del proyecto n°20.580.

De nuevo, se recuerda que se trata de una norma especial que tiene preponderancia frente a la disposición general. Además, se destaca que las normas del Estatuto de Servicio Judicial permanecerían incólumes tras la reforma propuesta mediante el proyecto n°20.580, pues este no lo modifica ni deroga.

En conclusión, visto que el capítulo VI de la pretendida modificación a la Ley de Salarios de la Administración Pública contempla una excepción al Poder Judicial, aunado al hecho de que este último tiene normativa de rango legal especial relacionada con la evaluación del desempeño de sus funcionarios, no se observa que el proyecto de ley consultado incida realmente en la organización o el funcionamiento del Poder Judicial”.

En ese mismo voto se indicó que las normas especiales que regulan al Poder Judicial velan porque se garantice su independencia respecto de los otros poderes, y la interpretación sistemática constitucional impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias:

“La lectura del marco constitucional inicia con el reconocimiento de la independencia del Poder Judicial, uno de los cimientos cardinales de nuestro Estado de Derecho: “ARTÍCULO 9 º-El Gobierno de la República es popular, representativo, participativo, alternativo y responsable. Lo ejercen el pueblo y tres Poderes distintos e independientes entre sí. El Legislativo, el Ejecutivo y el Judicial. Ninguno de los Poderes puede delegar el ejercicio de funciones que le son propias. (…)” “ARTÍCULO 154.- El Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos.” “ARTÍCULO 156.- La Corte Suprema de Justicia es el tribunal superior del Poder Judicial, y de ella dependen los tribunales, funcionarios y empleados en el ramo judicial, sin perjuicio de lo que dispone esta Constitución sobre servicio civil.” Estas disposiciones constitucionales han dado pie al desarrollo de un profuso marco normativo, específicamente diseñado para regular al Poder Judicial. Entre las normas de este marco se cuentan la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público, la Ley Orgánica del Organismo de Investigación Judicial, la Ley de Salarios del Poder Judicial, el Estatuto de Servicio Judicial (incluida su reforma por la Ley de Carrera Judicial), etc. De manera clara, las normas supra enunciadas tienen la intención de regular concretamente al Poder Judicial, velando por que se garantice su independencia frente a los otros Poderes de la República”.

(…) “Es más, dicho marco normativo está diseñado para garantizar la eficiencia de la función judicial y proteger a los servidores judiciales de injerencias externas, tal como indica el artículo 1 del Estatuto de Servicio Judicial: “Artículo 1º.- El presente Estatuto y sus reglamentos regularán las relaciones entre el Poder Judicial y sus servidores, con el fin de garantizar la eficiencia de la función judicial y de proteger a esos servidores.” Nótese que la norma determina que las relaciones de empleo entre el Poder Judicial y sus servidores se encuentran reguladas por el Estatuto y su reglamento. La interpretación sistemática a que obliga ese numeral impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias. Esto se verifica porque el dictado del reglamento a que refiere la norma es, a su vez, competencia exclusiva de la Corte, como indica el mismo Estatuto: “Artículo 5º.- Antes de dictar un reglamento interior de trabajo, ya sea de carácter general para todos los servidores judiciales o aplicables sólo a un grupo de ellos, la Corte pondrá en conocimiento de esos servidores el proyecto respectivo, por el medio más adecuado, a fin de que hagan por escrito las observaciones del caso, dentro de un término de quince días. La Corte tomará en cuenta esas observaciones para resolver lo que corresponda, y el reglamento que dicte será obligatorio sin más trámite, ocho días después de su publicación en el "Boletín Judicial". Una garantía más de la independencia del Poder Judicial en el tema de empleo es que el Jefe del Departamento de Personal se encuentra vinculado al Presidente de la Corte, excluyendo la injerencia de instancias externas: “Artículo 6º.- El Departamento de Personal del Poder Judicial funcionará bajo la dirección de un Jefe que dependerá directamente del Presidente de la Corte y será nombrado por la Corte Plena”. (Lo subrayado no corresponde al original).

En cuanto al carácter especial que tiene el Estatuto de Servicio Judicial, su escala salarial y su relación con la independencia judicial en esta materia, se indicó lo siguiente:

“El Estatuto rige la materia de empleo en el Poder Judicial y representa una garantía para los servidores judiciales, en consonancia con los postulados constitucionales que salvaguardan la independencia judicial; su modificación o derogatoria no podría ser tácita ni provenir de una mera inferencia, pues ello denotaría el desconocimiento de las reglas hermenéuticas”.

(…) “La Sala no omite subrayar que las normas de la Ley Orgánica del Poder Judicial, Ley de Salarios del Poder Judicial y el Estatuto de Servicio Judicial no se ven afectadas por la reforma propuesta. Dichas normas posibilitan la autonomía del Poder Judicial en lo referido a cambiar su escala salarial o variar los salarios base”.

Concretamente se analizó la materia salarial, al señalar:

“En cuanto a la materia salarial.

Atinente a este punto, el acuerdo ya mencionado plantea:

“2.) De conformidad con el anterior informe, se determina que el proyecto sí afecta la organización y funcionamiento del Poder Judicial, y que hay oposición al mismo, siempre y cuando no se elimine lo referente a:

(…)

d.- Las restricciones establecidas en el proyecto de ley en materia salarial y sus respectivos componentes para los funcionarios y las funcionarias del Poder Judicial.” Tras analizar el articulado del proyecto n°20.580, tocante a las modificaciones a la Ley de Salarios de la Administración Pública, la Sala recuerda que la afectación al sueldo de los funcionarios judiciales puede incidir en la independencia judicial. Según se expresó someramente en el citado voto n°2018-5758 de las 15:40 horas del 12 de abril de 2018:

“(…) Lo que sí es parte de la independencia judicial es que los jueces tengan una suficiencia económica digna, estando activos e inactivos, (…)” Ahora bien, se debe resaltar que la normativa cuestionada no es particular para los funcionarios judiciales, sino que abarca de manera generalizada a la Administración Pública. La importancia de este punto radica en el hecho de que la Sala ha sustentado un criterio sólido en cuanto a la improcedencia de consultas institucionales obligatorias (como las dispuestas en los numerales 167 y 190 de la Constitución Política), cuando un proyecto es de carácter nacional o general:

(…)

En el caso de marras, las normas del proyecto relacionadas con materia salarial tienen aplicación general, sin que este Tribunal tenga elementos para considerar que estas llegarán a afectar en tal grado el sustento financiero de los funcionarios dedicados a la administración de justicia, como para que no se asegure al menos “una suficiencia económica digna”.

La Sala no omite subrayar que las normas de la Ley Orgánica del Poder Judicial, Ley de Salarios del Poder Judicial y el Estatuto de Servicio Judicial no se ven afectadas por la reforma propuesta. Dichas normas posibilitan la autonomía del Poder Judicial en lo referido a cambiar su escala salarial o variar los salarios base. En ese sentido, nótese lo manifestado por la Ministra de Hacienda a Corte Plena:

“En cuanto a la posibilidad de que el proyecto afecte la independencia del Poder Judicial al regular la aplicación de determinados pluses, quisiera señalar de manera respetuosa que el proyecto no afecta o elimina la potestad del Poder Judicial de modificar su escala salarial o modificar los salarios bases. De modo que, si el Poder Judicial considerara que es necesario aumentar el salario de algún funcionario, tiene toda la potestad y autonomía para hacerlo. Particularmente, si el Poder Judicial considera que, ante la regulación de la dedicación exclusiva o las anualidades, es necesario incrementar el salario de algún funcionario, puede hacerlo al amparo de su independencia en materia salarial.” Esta observación no solo es compartida por la Sala, sino que determina con claridad indiscutible que el proyecto consultado no afecta la organización o funcionamiento del Poder Judicial en materia salarial.

Con fundamento en lo supra explicado, la Sala determina que la normativa cuestionada del proyecto legislativo 20.580 no afecta, en el sentido expuesto, la organización o funcionamiento del Poder Judicial.” Finalmente, de forma más reciente, en el voto n°2019-25268, en que se cuestionaban sendos acuerdos de Corte Plena relacionado con el incremento salarial de los jueces, fiscales y defensores (lo mismo que Secretarios de Sala y abogados asistentes), la Sala resolvió:

“Igualmente, este Tribunal, en la sentencia número 550-91 de las 18:50 horas del 15 de marzo de 1991, mencionó que, “en el caso de los poderes, su propia independencia constitucional, garantizada en general por el artículo 9° de la Constitución y, en los del Poder Judicial y del Tribunal Supremo de Elecciones por las de los artículos 99 y siguientes, 152 y siguientes y 177 de la misma, así como sus propias normas orgánicas, imponen a sus jerarcas la atribución y la responsabilidad de fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos, dentro, naturalmente, de sus disponibilidades presupuestarias, independientemente, desde luego, de que sus montos puedan coincidir o no con los de los diputados”. De lo anterior, se deduce que los salarios en el Poder Judicial se deben fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos, dentro, naturalmente, de sus disponibilidades presupuestarias, siendo que existen cargos que ostentarán diferentes remuneraciones, lo cual, no violenta el principio de igualdad.

Asimismo, los acuerdos impugnados no lesionan los principios de razonabilidad ni de proporcionalidad, así como otros principios como son los de legalidad y confianza legítima, puesto que esos acuerdos fueron aprobados por Corte Plena, es decir, por el órgano habilitado normativamente para tal situación. Lo anterior, en atribución a sus competencias constitucionales y legales que le han sido atribuidas. Al respecto, es menester recordar que el artículo 9 de la Constitución Política indica que “el Gobierno de la República es popular, representativo, participativo, alternativo y responsable. Lo ejercen el pueblo y tres Poderes distintos e independientes entre sí. El Legislativo, el Ejecutivo y el Judicial”. Asimismo, el numeral 152 de la Constitución Política señala que “el Poder Judicial se ejerce por la Corte Suprema de Justicia y por los demás tribunales que establezca la ley”. En un sentido similar, el artículo 154 del mismo texto constitucional establece que “el Poder Judicial sólo está sometido a la Constitución y a la ley, y las resoluciones que dicte en los asuntos de su competencia no le imponen otras responsabilidades que las expresamente señaladas por los preceptos legislativos”. Siguiendo la línea impuesta en la Carta Magna, la Ley Orgánica del Poder Judicial, en su artículo 2, menciona que “el Poder Judicial sólo está sometido a la Constitución Política y la ley. Las resoluciones que dicte, en los asuntos de su competencia, no le imponen más responsabilidades que las expresamente señaladas por los preceptos legislativos. No obstante, la autoridad superior de la Corte prevalecerá sobre su desempeño, para garantizar que la administración de justicia sea pronta y cumplida”. Igualmente, el numeral 59 de esa misma ley, señala que “corresponde a la Corte Suprema de Justicia: (…) 3.- Aprobar el proyecto de presupuesto del Poder Judicial, el cual, una vez promulgado por la Asamblea Legislativa, podrá ejecutar por medio del Consejo”. En esta misma línea, el Estatuto de Servicio Civil, en el artículo 8, determina que “corresponde al Jefe del Departamento de Personal: a) Analizar, clasificar y valorar los puestos del Poder Judicial comprendidos en esta ley, y asignarles la respectiva categoría dentro de la Escala de Sueldos de la Ley de Salarios, todo sujeto a la posterior aprobación de la Corte Plena”. Asimismo, el numeral 62 de ese cuerpo normativa, establece que “el Departamento de Personal efectuará los estudios para determinar el monto posible de los beneficios que deban reconocerse a los servidores judiciales de acuerdo con la Ley de Salarios, a fin de que la Corte Plena haga las asignaciones necesarias en el presupuesto de cada año”.

En síntesis, los acuerdos impugnados no lesionan los principios de razonabilidad, ni proporcionalidad, ni legalidad, ni confianza legítima, ya que estos acuerdos fueron aprobados por Corte Plena, es decir, por el órgano habilitado normativamente para tal situación. Lo anterior, en atribución a sus competencias constitucionales y legales que le han sido atribuidas.” De esta forma, con sustento en los precedentes previamente transcritos, se puede derivar que esta Sala ha reconocido que el Poder Judicial es clave para la democracia costarricense, tanto así que, “El hecho de que Costa Rica tenga hoy la democracia más antigua y estable de América Latina es inimaginable sin el funcionamiento de un robusto sistema de administración de justicia y sin los esfuerzos recientes para modernizarlo.” (ver voto n°2018-005758). Así entonces, “si no se le da la importancia al Poder Judicial en el Estado social y democrático de Derecho para su correcto funcionamiento, su debilitamiento conduce a formas de gobiernos antidemocráticas, prueba de ello es que uno de las funciones que primer controlan los gobiernos autoritarios o totalitarios es la judicial, de ahí la importancia de que todo sistema democrático tenga un Poder Judicial robusto.” (ver voto n°2017-09551). Siendo justamente el principio de independencia judicial clave para esta robustez. En cuanto a empleo público, es clara la sujeción del Poder Judicial a los principios fundamentales del régimen de empleo público del art.191. Incluso, en concordancia con el artículo 11 de la Constitución Política, es claro que el Poder Judicial está sometido al respectivo procedimiento de evaluación de resultados y rendición de cuentas. No obstante, la Sala ha entendido como válido y justificado que el Poder Judicial cuente con su propio marco normativo, que regula de forma específica, particular y diferenciada las relaciones de empleo entre dicho Poder y sus servidores y la evaluación de su desempeño. Es más, se ha indicado que dicho marco normativo (integrado, entre otros, por la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público, la Ley Orgánica del Organismo de Investigación Judicial, la Ley de Salarios del Poder Judicial y el Estatuto de Servicio Judicial), está específicamente diseñado para garantizar la eficiencia de la función judicial y la independencia del Poder Judicial. Al punto que se ha sentado, como criterio jurisprudencial, que se está en presencia de normativa especial que tiene preponderancia frente a las disposiciones generales y no puede ser tácitamente derogada por una norma posterior de carácter general. Asimismo, la Sala ha hecho expresa referencia a la improcedencia de que una instancia externa asuma la rectoría o imponga criterios sobre el Poder Judicial en estas materias. Por el contrario, ha destacado que la independencia y autonomía funcional reconocida expresamente al Poder Judicial en el propio texto constitucional (artículos 9, 152 y siguientes y 177) y materializada y garantizada en sus propias normas orgánicas, impone a los jerarcas del Poder Judicial la competencia y la responsabilidad para decidir -sin injerencias indebidas- en las distintas materias que son objeto de regulación en el proyecto de ley consultado.

Finalmente, en cuanto a Derecho Comparado, es oportuno mencionar el artículo 64 de la Constitución Francesa de 1958 se dice que el Presidente de la República es el principal llamado a garantizar la independencia de la autoridad judicial, y que, es una Ley Orgánica, particular del Poder Judicial, la que regulará el estatuto jurídico de los magistrados. Así dice:

“ARTICLE 64.

Le Président de la République est garant de l'indépendance de l'autorité judiciaire.

Il est assisté par le Conseil supérieur de la magistrature.

Une loi organique porte statut des magistrats.

Les magistrats du siège sont inamovibles.” (Traducción libre: “Artículo 64. El Presidente de la República es garante de la independencia de la autoridad judicial. Para ello, el Presidente de la República es asistido por el Consejo Superior de la Magistratura. Una ley orgánica regulará el estatuto jurídico de los Magistrados. Los magistrados elegidos son inamovibles.”) Ahora bien, lo señalado en los distintos precedentes supra citados, en el sentido que esta Sala ha entendido como válido y justificado que el Poder Judicial cuente con su propio marco normativo, que regula de forma específica, particular y diferenciada las relaciones de empleo entre dicho Poder y sus servidores, no excluye reconocer que la Asamblea Legislativa está habilitada por el Derecho de la Constitución -conforme la intención del constituyente originario, según se desarrolló en el considerando VIII de este voto- a establecer un estatuto único que comprenda a todos (as) los (as) servidores (as) públicos, incluso a funcionarios (as) del Poder Judicial, siempre y cuando, tal normativa, por su contenido o sus efectos, no suprima, afecte en lo esencial, ni suponga trasladar las competencias exclusivas y excluyentes que le corresponden al Poder Judicial a otros órganos y entes, en infracción del principio de separación de poderes o funciones y, muy en particular, del principio de independencia judicial, tal y como se analizará continuación, respecto de las distintas normas consultadas.

• 3)Sobre el examen del Articulado consultado Sobre el artículo 2.a (ámbito de cobertura), respecto del Poder Judicial (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 2- Ámbito de cobertura Esta ley es aplicable a las personas servidoras públicas de las siguientes entidades y órganos bajo el principio de Estado como patrono único:

• a)Los Poderes de la República (Ejecutivo, Legislativo y Judicial), sus órganos auxiliares y adscritos, y el Tribunal Supremo de Elecciones (TSE), sin perjuicio del principio de separación de Poderes establecido en la Constitución Política.

(…)” Ante tal panorama, y retomando lo que se expuso supra, en el sentido de que es plausible sujetar a todos los poderes del Estado a un único estatuto de empleo público, con lo que la sujeción del Poder Judicial a esta ley no resulta inconstitucional, sí es inconstitucional por el hecho de no excluir a los (as) funcionarios (as) que ejercen las funciones jurisdiccionales -jueces- o para- jurisdiccionales -fiscales, defensores públicos y profesionales y personal especializado del Organismo de Investigación Judicial, etc.- y los funcionarios del nivel gerencial o de alta dirección política como los denomina el proyecto de ley, al igual que a los funcionarios del Tribunal Supremo de Elecciones que ejercen función electoral -letrados, directores del Departamentos, profesionales, etc., y quienes ejercen cargo de alta dirección política, así como el personal administrativo, profesional y técnico, que defina de forma exclusiva y excluyente cada jerarca del poder respectivo, pues, en estos casos, no es posible someterlo a directrices, disposiciones, circulares, manuales que emita Mideplán. Lo anterior significa, que el Poder Judicial sí estaría sometido a esas potestades que la ley le otorga al Mideplán cuando se trata del resto de los funcionarios -los que defina cada jerarca del Poder Judicial y el Tribunal Supremo de Elecciones de manera exclusiva y excluyente-, que forman parte del staff administrativo, auxiliar o personal de apoyo. Se podrá argumentar en contra de lo que estamos afirmando que el numeral 49 del proyecto de ley consultado, en el inciso g) que adiciona el artículo 85 a la Ley n.° 5155, Estatuto Judicial, de 10 de enero de 1973, en el sentido de que las competencias en el proyecto de ley, para los órganos del Poder Judicial, se realizarán en coordinación con Mideplán, en los que corresponde a los temas a que se refiere el citado proyecto; y el inciso h), que adiciona el artículo 17 a la Ley n.° 2422, Ley de Salarios del Poder Judicial, de 11 de agosto de 1959, en el sentido de que las competencias definidas en el proyecto de ley, para los órganos del Poder Judicial, también es realizada en coordinación con el citado ministerio, en la misma dirección, así como el hecho de que el inciso a) del artículo 2 establece que el ámbito de cobertura el proyecto de ley lo es sin perjuicio del principio de separación de Poderes establecido en la Constitución Política, el Poder Judicial lo hará a través de la coordinación institucional con MIDEPLAN, por lo que no es cierto que está sometido al primero a las directrices, disposiciones, circulares, manuales que emita el segundo en lo que atañe; empero tal objeción resulta injustificada a causa de la imprecisión de la normativa que se pretende aprobar, pues en una materia de tanta importancia la Ley debe de ser clara y precisa, aspecto que, en muchos casos, se echa de menos. De ahí que resulta pertinente concluir que sí hay vicios de inconstitucionalidad. Nótese que en el numeral 3 del proyecto de ley consultado, que regula la exclusión de los entes de esta normativa, no se hace ninguna salvaguarda en favor del Poder Judicial y el Tribunal Supremo de Elecciones.

Sobre el artículo 6 (rectoría de Mideplán), respecto del Poder Judicial (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 6- Creación del Sistema General de Empleo Público La rectoría del Sistema General de Empleo Público estará a cargo del Ministerio de Planificación Nacional y Política Económica (Mideplán). Dicho sistema estará compuesto por lo siguiente:

• a)El Ministerio de Planificación Nacional y Política Económica (Mideplán).
• b)Las oficinas, los departamentos, las áreas, direcciones, unidades o denominaciones homólogas de Gestión de Recursos Humanos de las entidades y los órganos bajo el ámbito de aplicación de la presente ley. (…)” En relación con el artículo 6, inciso b, del proyecto de ley consultado es inconstitucional, toda vez que somete a la potestad de dirección del Poder Ejecutivo al Poder Judicial y al Tribunal Supremo de Elecciones, lo que resulta contrario a los principios de independencia judicial y electoral. De ahí que las oficinas, los departamentos, las áreas, direcciones, unidades de Gestión de Recursos Humanos de estos poderes no pueden estar bajo la citada potestad, excepto en lo que atañe a quienes presten servicios administrativos básicos, auxiliares, que no inciden sobre las competencias exclusivas y excluyentes ni funciones administrativas necesarias para el cumplimiento de estas, definidos, exclusivamente, por los jerarcas del Poder Judicial y el Tribunal Supremo de Elecciones.

Sobre el artículo 7 (competencias de Mideplán), respecto del Poder Judicial (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 7- Competencias del Mideplán Son competencias del Ministerio de Planificación Nacional y Política Económica (Mideplan) las siguientes:

• a)Establecer, dirigir y coordinar la emisión de políticas públicas, programas y planes nacionales de empleo público, conforme a la Ley 5525, Ley de Planificación Nacional, de 2 de mayo de 1974.
• b)Establecer mecanismos de discusión, participación y concertación con las corporaciones municipales a través de la Unión de Gobiernos Locales y las instituciones de educación superior universitaria estatal, en materia de empleo público.
• c)Emitir disposiciones de alcance general, directrices y reglamentos, que tiendan a la estandarización, simplificación y coherencia del empleo público, según lo preceptuado en la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• d)Asesorar a las entidades y los órganos incluidos, bajo el ámbito de cobertura de la presente ley, para la correcta implementación de las políticas públicas, las disposiciones de alcance general, las directrices y los reglamentos que se emitan en el marco de la rectoría política en empleo público y la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• e)Administrar y mantener actualizada la plataforma integrada del empleo público.
• f)Publicar la oferta de empleo público, a través de la plataforma virtual que alimentarán las entidades y los órganos incluidos del ámbito de cobertura de la presente ley.
• g)Emitir los lineamientos y principios generales para la evaluación del desempeño.
• h)Administrar e implementar las acciones de investigación, innovación y formulación de propuestas de empleo público.
• i)Dirigir y coordinar la ejecución de las competencias inherentes en materia de empleo público con el Ministerio de Hacienda, el Ministerio de Trabajo y Seguridad Social, la Autoridad Presupuestaria y la Dirección General de Servicio Civil, entre otras dependencias técnicas en la materia de empleo público, lo concerniente a la materia de empleo público.
• j)Recolectar, analizar y divulgar información en materia de empleo público de las entidades y los órganos para la mejora y modernización de estos. A tal efecto, establecerá un sistema de indicadores, mediante el establecimiento de criterios de coordinación, para homogeneizar la recopilación y difusión de datos.
• k)Preparar una estrategia coherente e integral para el aprendizaje y el desarrollo en todo el servicio público, estableciendo cómo se desarrollará la capacidad a largo plazo para estándares de dirección y competencia profesional más altos y proporcionando orientación a las instituciones públicas sobre cómo planificar y aplicar las actividades dentro de la estrategia.
• l)Coordinar con la Procuraduría de la Ética Pública para emitir las disposiciones de alcance general, las directrices y los reglamentos, para la instrucción de las personas servidoras públicas sobre los deberes, las responsabilidades y las funciones del cargo, así como los deberes éticos que rigen la función pública, que resulten procedentes según la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• m)Establecer un sistema único y unificado de remuneración de la función pública de conformidad con esta ley y especifica del salario y los beneficios de todas las personas funcionarias públicas.
• n)Realizar diagnósticos en materia de recursos humanos de las entidades y los órganos incluidos para lograr un adecuado redimensionamiento de las planillas existentes y la elaboración de criterios generales que delimiten los sectores cuya actividad, por su valor estratégico institucional, así como la vinculación con la actividad sustantiva, se debería reservar para que sean realizadas exclusivamente por personas servidoras públicas. Además, analizar los que sirvan de orientación para delimitar la prestación de los que podrían ser externalizados y las condiciones de prestación de estos.
• o)Prospectar las tendencias globales del futuro del empleo público, con el propósito de informar la planificación de este.
• p)Analizar la eficiencia y eficacia de los mecanismos de evaluación, a efectos de determinar si estos cumplen o no su cometido.
• q)Evaluar el sistema general de empleo público en términos de eficiencia, eficacia, economía, simplicidad y calidad.” En relación con el artículo 7, incisos d), g) y p) resultan inconstitucionales, pues afecta la independencia de Poder Judicial y el Tribunal Supremo de Elecciones, en cuanto los somete a la potestad de dirección y reglamentaria de Mideplán, así como a la verificación de si cumplen o no con el cometido de la evaluación del desempeño y no se excluye de la potestad de dirección. Hay que enfatizar que el principio de separación de poderes o funciones es incompatible con la potestad de dirección y reglamentación que ejerce el Poder Ejecutivo, toda vez que no puede ordenar su actividad, estableciendo metas y objetivos. En lo que atañe a la evaluación del desempeño, queda reserva a cada poder del Estado, toda vez que esta materia es consustancial al ejercicio de sus competencias constitucionales. Quiere esto decir, que, en lo tocante a este extremo, todo el funcionariado de cada poder estaría sometido a las disposiciones internas que cada uno de estos dicten al respecto.

Sobre el artículo 9.a.- Oficinas de Recursos Humanos respecto del Poder Judicial (Redacta la magistrada Picado Brenes) Se consulta sobre el artículo siguiente:

“ARTÍCULO 9- Funciones de las administraciones activas a) Las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos, de las instituciones incluidas en el artículo 2 de la presente ley, seguirán realizando sus funciones de conformidad con las disposiciones normativas atinentes en cada dependencia pública.

Asimismo, aplicarán y ejecutarán las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que el Ministerio de Planificación Nacional y Política Económica (Mideplán) remita a la respectiva institución, según la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

• b)Es responsabilidad de las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos elaborar y aplicar las pruebas de conocimientos, competencias y psicométricas, para efectos de los procesos de reclutamiento y selección de personal, efectuar los concursos internos y externos por oposición y méritos, los cuales deberán cumplir siempre al menos con los estándares que establezca la Dirección General del de Servicio Civil para cada puesto, según su ámbito de competencia, y los lineamientos que se emitan según el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

Además, incorporar dichos concursos en la oferta de empleo público de la Administración Pública y verificar que las personas servidoras públicas reciban la inducción debida sobre los deberes, las responsabilidades y las funciones del puesto, así como los deberes éticos de la función pública generales y particulares de la institución y puesto.

• c)Las oficinas de gestión institucional de recursos humanos, de ministerios e instituciones u órganos adscritos bajo el ámbito de aplicación del Estatuto de Servicio Civil, son dependencias técnicas de la Dirección General de Servicio Civil que, para todos los efectos, deberá coordinar la elaboración de las pruebas de reclutamiento y selección de personal con tales oficinas y desempeñar sus funciones de asesoramiento, capacitación y acompañamiento técnico.” Tal como se observa, el artículo 9 consultado establece ciertas funciones para todas las oficinas, departamentos, áreas, direcciones o las unidades de recursos humanos, de todas las instituciones incluidas en el proyecto, en cuenta, para el Departamento de Gestión Humana del Poder Judicial. Así entonces, en lo que se refiere propiamente a la consulta realizada en cuanto al Poder Judicial, el segundo párrafo del inciso a) le impone al Departamento de Gestión Humana de dicho Poder de la República que aplique y ejecute las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que Mideplán le remita. Lo cual, implicaría que un órgano del Poder Ejecutivo, como lo es Mideplán, le imponga al Poder Judicial la aplicación y ejecución de sus disposiciones, directrices y reglamentos, y en materias que son de resorte exclusivo del Poder Judicial como lo es la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación o salarios y la gestión de las relaciones laborales. Siendo claramente tal obligación para el Departamento de Gestión Humana del Poder Judicial una violación al principio de separación de poderes y a la independencia judicial, conforme los alcances que la jurisprudencia constitucional le ha dado a tales principios básicos de nuestra democracia. Recuérdese que, el principio de división de poderes, o como se le conoce más recientemente, principio de separación de funciones, está consagrado en el artículo 9 de la Constitución Política y se erige en “uno de los pilares fundamentales del Estado Democrático, en tanto establece un sistema de frenos y contrapesos que garantiza el respeto de los valores, principios y normas constitucionales en beneficio directo de los habitantes del país.” (sentencia n°2006-013708). Haciendo posible que cada Poder del Estado pueda ejercer su función con independencia de los otros (sentencia n°6829-1993), y no solo como un principio de aplicación interna para el buen funcionamiento del Estado de Derecho, sino además, porque el principio de independencia judicial, en su dimensión externa, asegura un conjunto de garantías que pretenden evitar que una Corte sea controlada por otros órganos gubernamentales, es la ausencia de presiones o influencias externas que hagan vulnerable a la institución, como resultado de amenazas a la disponibilidad de recursos que le permitan desarrollar su labor con autonomía, a la estabilidad laboral y las posibilidades de ascenso de sus funcionarios, a su integridad y patrimonio, y a sus capacidades de infraestructura para atender las demandas ciudadanas. Por otro lado, en su dimensión interna, la independencia judicial es más que una garantía para los jueces, pues constituye también “una garantía para los particulares (partes del proceso), en el sentido de que sus casos se decidirán con apego estricto a la Constitución y las leyes” (sentencia n°5795-1998), “estamos ante el derecho de los ciudadanos a contar con jueces independientes” (sentencia n°2001-006632). La independencia del Poder Judicial se traduce, en materia económica y por la inamovilidad de su personal, así como, en lo funcional, por la posibilidad real de tomar sus decisiones de acuerdo con criterios propios y no como resultado de presiones procedentes de determinados grupos, instituciones o personas (ver sentencia n°2000-005493). Así está plenamente justificado que en el caso específico del Poder Judicial tenga una regulación especial, separada y diferenciada, aunque sujeta a los principios constitucionales fundamentales que prevén los artículos 191 y 192 (ver sentencia n°1991-550), pero no bajo las disposiciones generales, directrices y reglamentos de un órgano de otro Poder de la República, como lo pretendía esta norma del proyecto consultada. Pues, la normativa especial que regula al Poder Judicial “impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias.” (sentencia n°2018-019511). Ello por cuanto, “…el Régimen del Empleo Público, es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones.” (sentencia n°03575-1996). Siendo “las atribuciones constitucionales de ordenar, planificar o programar por ejemplo la función administrativa de manejo de personal” (sentencia n°2017-009551), una parte esencial de la función administrativa del Poder Judicial que coadyuva al efectivo ejercicio de su función judicial, pues “tanto las funciones legislativas como las judiciales requieren de una estructura administrativa de apoyo para la consecución de su función esencial o primaria, como lo es la función administrativa que le ayuda a canalizar toda su actividad; la que, lógicamente, alcanza al recurso humano o del personal de los Poderes de la República, entretanto, detrás de la función fundamental está la administrativa del personal, agentes y servidores (as) públicos (as), etc.” (sentencia n°2017-009551). Finalmente nótese que, en la sentencia n°2018-019511, en que se conoció de la consulta legislativa respecto del proyecto de "Ley de Fortalecimiento de las Finanzas Publicas" (expediente legislativo nro. 20.580), esta Sala concluyó -luego de realizar una labor interpretativa respecto del contenido del proyecto- que, en concreto, lo previsto en los numerales 46, 47 y 49, atinentes a la “rectoría de la materia empleo público de Mideplán” y “la obligatoriedad de los lineamientos técnicos y metodológicos de la Dirección General del (sic) Servicio Civil”, no aplicaban para el Poder Judicial. Interpretación que se hizo, tomando en consideración el principio de independencia del Poder Judicial. En este sentido, y conforme todo lo anterior, el párrafo segundo del inciso a) del artículo 9 es inconstitucional, respecto a su aplicación al Poder Judicial.

Sobre el artículo 13 (familias de puestos), respecto del Poder Judicial (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 13- Régimen general de empleo público Existirá un único régimen general de empleo público, el cual a su vez estará conformado por las siguientes ocho familias de puestos que serán de aplicación en los órganos y entes de la Administración Pública, según las funciones que ejecute su personal:

• a)Personas servidoras publicas bajo el ámbito de aplicación del título I y del título IV del Estatuto de Servicio Civil, así como a las que se desempeñan en las instituciones señaladas en el artículo 2 de la presente ley, que no estén incluidas en las restantes familias de puestos.
• b)Personas servidoras públicas que se desempeñan en funciones en ciencias de la salud.
• c)Personas servidoras públicas que se desempeñan en funciones policiales.
• d)Personas docentes contempladas en el Estatuto del Servicio Civil, del título II y el título IV.
• e)Personas docentes y académicas de la educación técnica y superior.
• f)Personas que administran justicia y los magistrados del Tribunal Supremo de Elecciones (TSE).
• g)Personas servidoras públicas que se desempeñan en funciones del servicio exterior.
• h)Personas servidoras públicas que se desempeñan en cargos de confianza.

La creación de familias de puestos de empleo público es reserva de ley y deberá estar justificada por criterios técnicos y jurídicos coherentes con una eficiente y eficaz gestión pública.

En todas las categorías descritas con anterioridad, la administración pública superior, por medio de las oficinas o los departamentos de salud ocupacional, deberá contar en cada entidad pública, según lo establece el artículo 300 del Código de Trabajo y su reglamento, con el diagnóstico de sus condiciones de trabajo, el programa de salud ocupacional y cuando existan condiciones de trabajo adversas a su salud deberán crearse los respectivos protocolos de seguridad para salvaguarda de su vida, que será validado a lo interno de esta y con el respectivo aval del Consejo de Salud Ocupacional, para lo cual se le brindará el recurso humano necesario. Dicha instancia dependerá administrativamente de manera directa del jerarca.

En cuanto al inciso f) del artículo 13 es inconstitucional porque no excluye a los funcionarios que realizan funciones para-jurisdiccionales -fiscales, defensores públicos y profesionales y personal especializado del Organismo de Investigación Judicial, etc.- y los funcionarios del nivel gerencial o de alta dirección política, al igual que a los funcionarios del Tribunal Supremo de Elecciones que ejercen función electoral -letrados, directores del Departamentos, profesionales, etc.-, y quienes ejercen cargos de alta dirección política. Además, no se excluye a todo el funcionario administrativo de apoyo, profesional y técnico, que los máximos órganos de los citados poderes del Estado definan, de forma exclusiva y excluyente, como indispensables o consustanciales para el ejercicio de sus competencias constitucionales. Máxime que, de conformidad con ese mismo artículo, inciso a), todos esos funcionarios quedarían incluidos en una categoría del Estatuto de Servicio Civil, lo que afecta la independencia tanto del Poder Judicial como del Tribunal Supremo de Elecciones partiendo del hecho de que el gobierno judicial y electoral lo ejerce la Corte Suprema de Justicia y el Tribunal Supremo de Elecciones de forma exclusiva y excluyente en lo que atañe a sus competencias constitucionales. Finalmente, hay que tener presente que la construcción de la familia, tal y como se explicó supra, corresponde, de forma exclusiva y excluyente, a cada poder del Estado.

Sobre el artículo 14.- Reclutamiento y selección respecto del Poder Judicial (Redacta la magistrada Picado Brenes) Los consultantes cuestionan la constitucionalidad del artículo 14 del proyecto de ley objeto de consulta, toda vez que, en su criterio, podría lesionar los principios de separación de poderes, autonomía e independencia del Poder Judicial, en el tanto se sujeta a las disposiciones que emite un órgano del Poder Ejecutivo, en lo referente a la gestión de empleo, lo cual comprende lo relativo al reclutamiento y selección de su personal. El ordinal 14 en cuestión, dispone lo siguiente:

“ARTÍCULO 14- Reclutamiento y selección El reclutamiento y la selección de las personas servidoras públicas de nuevo ingreso se efectuará con base en su idoneidad comprobada, para lo cual el Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá, con absoluto apego a la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las disposiciones de alcance general, las directrices y los reglamentos, según la respectiva familia de puestos.

En los procesos de reclutamiento y selección no podrá elegirse a un postulante que se encuentre en alguna de las siguientes situaciones:

• a)Estar ligado por parentesco de consanguinidad o de afinidad en línea directa o colateral, hasta tercer grado inclusive, con la jefatura inmediata ni con las personas superiores inmediatas de esta en la respectiva dependencia.
• b)Encontrarse enlistada en el registro de personas inelegibles de la plataforma integrada de empleo público.” Tal como ya fue supra indicado, el Poder Judicial, como poder de la República, no solo debe ser independiente respecto de los otros poderes, conforme lo dispone el ordinal 9 constitucional, sino también garantizar la independencia de los jueces, tal como lo estatuye el artículo 154 de la Constitución Política, como una garantía para los particulares de que sus casos se decidirán con estricto apego a la Constitución y las leyes. En atención a ello, es imprescindible que este Poder de la República disponga todo lo relativo al reclutamiento y selección de su personal, sin interferencia externa alguna. Así lo reiteró puntualmente este Tribunal en la sentencia n.° 2018-19511, al señalar, en lo que interesa lo siguiente:

“…Estas disposiciones constitucionales han dado pie al desarrollo de un profuso marco normativo, específicamente diseñado para regular al Poder Judicial. Entre las normas de este marco se cuentan la Ley Orgánica del Poder Judicial, la Ley Orgánica del Ministerio Público, la Ley Orgánica del Organismo de Investigación Judicial, la Ley de Salarios del Poder Judicial, el Estatuto de Servicio Judicial (incluida su reforma por la Ley de Carrera Judicial), etc.

De manera clara, las normas supra enunciadas tienen la intención de regular concretamente al Poder Judicial, velando por que se garantice su independencia frente a los otros Poderes de la República.

El hecho de que el Poder Judicial goce de una regulación particular pone en la palestra el segundo punto de análisis de la interpretación sistemática. En este sentido, debe estudiarse si existen normas particulares para el Poder Judicial y verificar su relación con el articulado cuestionado.

Independientemente de que el ordinal 47 del proyecto hable de “salvedades”, se observa que la evaluación del desempeño y la competencia en la toma de decisiones en materia laboral, sean generales o concretas, se encuentran ya reguladas por el mencionado marco normativo del Poder Judicial, imposibilitando que una instancia externa asuma la “rectoría” o imponga criterios sobre ese Poder. Es más, dicho marco normativo está diseñado para garantizar la eficiencia de la función judicial y proteger a los servidores judiciales de injerencias externas, tal como indica el artículo 1 del Estatuto de Servicio Judicial:” En concreto sobre el artículo 1° del Estatuto de Servicio Judicial la Sala indicó en dicho voto que: “Nótese que la norma determina que las relaciones de empleo entre el Poder Judicial y sus servidores se encuentran reguladas por el Estatuto y su reglamento. La interpretación sistemática a que obliga ese numeral impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias. Esto se verifica porque el dictado del reglamento a que refiere la norma es, a su vez, competencia exclusiva de la Corte,” Además agrega que: “Una garantía más de la independencia del Poder Judicial en el tema de empleo es que el Jefe del Departamento de Personal se encuentra vinculado al Presidente de la Corte, excluyendo la injerencia de instancias externas.” Ahora bien, en este caso, este Tribunal considera que el proyecto de ley aquí cuestionado incide en las competencias propias de este Poder de la República, pues más allá de establecer principios o lineamientos generales en materia de empleo público que respeten el principio de separación de funciones, el artículo 14 de estudio, es claro en señalar que será el Ministerio de Planificación Nacional y Política Económica (Mideplán), quien emitirá las disposiciones de alcance general, las directrices y los reglamentos, según la respectiva familia de puestos, que regularán el reclutamiento y la selección de las personas servidoras públicas de nuevo ingreso. Ello, pues conforme lo dispuesto en los ordinales 13 y 2 del mismo proyecto de ley, lo señalado en el ordinal 14 aplicaría al Poder Judicial. Así las cosas, independientemente de que el artículo 2 referido acote que el ámbito de cobertura lo es “sin perjuicio del principio de separación de Poderes establecido en la Constitución Política”, el artículo 14 se aplicaría al Poder Judicial, y en ese sentido, se considera que tal disposición es inconstitucional, al autorizar que un órgano del Poder Ejecutivo, sea quien emita directamente disposiciones de alcance general, directrices y reglamentos, circulares, manuales, y resoluciones relativos a la materia de empleo público, que vacían de contenido las competencias reconocidas a la Corte Suprema de Justicia por el Constituyente original y derivado. Más aún cuando ya existe un marco normativo atinente al Poder Judicial que regula esos aspectos, en los términos que conmina el artículo 192 constitucional. En razón de lo expuesto, la norma consultada excede cualquier marco de cooperación que pueda establecer una política general de empleo público, pues no resulta propio que una dependencia del Poder Ejecutivo -Mideplán-, le dicte a otro Poder, de manera obligatoria, en este caso al Poder Judicial, las pautas o criterios para la selección y reclutamiento de su personal. Ello constituye una clara injerencia externa y, la intromisión del Poder Ejecutivo en aspectos que son competencia exclusiva del Poder Judicial. Por consiguiente, este Tribunal considera que el artículo 14 consultado contiene un vicio de inconstitucionalidad, por lesionar el principio de independencia de funciones que garantizan al Poder Judicial, los ordinales 9 y 154 de la Constitución Política.

Sobre el artículo 17.- Personal de Alta Dirección respecto del Poder Judicial (redacta la magistrada Picado Brenes) Se consulta sobre el artículo siguiente:

“ARTÍCULO 17- Personal de la alta dirección pública El Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá las disposiciones de alcance general, las directrices, y los reglamentos, en materia del personal de la alta dirección pública, que sean acordes con la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, para dotar a la Administración Pública de perfiles con integridad y probada capacidad de gestión, innovación y liderazgo, para procurar el mejoramiento de la prestación de bienes y servicios públicos. (…)” Los consultantes señalan la lesión al principio de separación de funciones y a la independencia del Poder Judicial, por cuanto en esta norma se dispone que, tratándose de puestos de alta dirección será Mideplán quien emita las disposiciones de alcance general, directrices y reglamentos al respecto. En el mismo sentido en que esta Sala ha venido resolviendo estos aspectos, la injerencia de este Ministerio, que es un órgano del Poder Ejecutivo, emitiendo disposiciones de alcance general, directrices y reglamentos al Poder Judicial en materia de los puestos de alta dirección, resulta violatorio del principio de separación de poderes y de independencia judicial. Además, la regulación de todo lo atinente a los puestos de alta gerencia del Poder Judicial ya cuenta con la normativa especial de dicho poder de la República. Existen varios precedentes de la Sala en que, expresamente, se entiende como plenamente justificado que en el caso específico del Poder Judicial tenga una regulación especial, separada y diferenciada -aunque, sujeta a los principios constitucionales fundamentales que prevén los artículos 191 y 192-. Se puede citar, en primer lugar, el voto n°2019-25268 (reiterando lo dicho en el voto n°550-1991), que indica:

“(…) en el caso de los poderes, su propia independencia constitucional, garantizada en general por el artículo 9° de la Constitución y, en los del Poder Judicial y del Tribunal Supremo de Elecciones por las de los artículos 99 y siguientes, 152 y siguientes y 177 de la misma, así como sus propias normas orgánicas, imponen a sus jerarcas la atribución y la responsabilidad de fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos, dentro, naturalmente, de sus disponibilidades presupuestarias, independientemente, desde luego, de que sus montos puedan coincidir o no con los de los diputados.” Siendo que el mismo artículo 154 constitucional somete al Poder Judicial únicamente a la Constitución y a la ley, pero no, a disposiciones del Poder Ejecutivo. Nótese que, estos son puestos de gran importancia pues estarían referidos, al menos, respecto de quienes integran el Consejo Superior del Poder Judicial, y las jefaturas de la Defensa Pública, Ministerio Público y el Organismo de Investigación Judicial. Puestos que son de gran relevancia, que deben estar particularmente protegidos de la injerencia de otros Poderes de la República, y que requieren la estabilidad del personal necesaria para un adecuado e imparcial desempeño del cargo, lo cual es incompatible con una subordinación a las disposiciones que emita al respecto el Mideplán, como lo dispone la norma en cuestión. Siendo competente al respeto el mismo Poder Judicial, como esta Sala lo ha indicado antes: “… sea el Régimen del Empleo Público, es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones.” (sentencia n°03575-1996). Nótese que, en la sentencia n°2018-019511, en que se conoció de la consulta legislativa respecto del proyecto de "Ley de Fortalecimiento de las Finanzas Publicas" (expediente legislativo nro. 20.580), esta Sala concluyó -luego de realizar una labor interpretativa respecto del contenido del proyecto- que, en concreto, lo previsto en los numerales 46, 47 y 49, atinentes a la “rectoría de la materia empleo público de Mideplán” y “la obligatoriedad de los lineamientos técnicos y metodológicos de la Dirección General del (sic) Servicio Civil”, no aplicaban para el Poder Judicial. Interpretación que se hizo, tomando en consideración el principio de independencia del Poder Judicial. Por ende, se considera existe un vicio de inconstitucionalidad en el artículo 17 objeto de consulta, en los términos expuestos.

Sobre el artículo 18.- Plazo de prueba y plazo de nombramiento de Alta Dirección respecto del Poder Judicial (redacta la magistrada Picado Brenes) En relación con esta disposición, los consultantes apuntan nuevamente la lesión al principio de separación de funciones y a la independencia del Poder Judicial, por cuanto se dispone que, tratándose de puestos de alta dirección técnica, el nombramiento será por 6 años con un período de prueba de 6 meses, prorrogables anualmente, sujeto a la evaluación de desempeño, lo cual según indican, incide en materia que es propia de regulación del Poder Judicial. El artículo 18 consultado dispone lo siguiente:

“ARTÍCULO 18- Nombramiento y período de prueba de la alta dirección pública Toda persona servidora pública, que sea nombrada en puestos de alta dirección pública, estará a prueba durante el período de seis meses y su nombramiento se efectuará por un máximo de seis años, con posibilidad de prórroga anual, la cual estará sujeta a los resultados de la evaluación del desempeño. (…)” Al igual que en acápites anteriores, es preciso reiterar que, la regulación de aspectos relativos al nombramiento y selección de personal, tal como también ocurre con los puestos de alta dirección técnica, el período de prueba, plazo o condiciones de prórroga de los nombramientos, son regulaciones propias y atinentes a la autonomía organizacional y administrativa del Poder Judicial, pues se trata de puestos estratégicos de gran importancia para su administración, cuya definición debe corresponder a esta, conforme los fines constitucionales de esa institución. Adviértase que, respecto del Poder Judicial, esos puestos estarían referidos, al menos, respecto de quienes integran el Consejo Superior del Poder Judicial, y las jefaturas de la Defensa Pública, Ministerio Público y el Organismo de Investigación Judicial. Puestos que son de gran relevancia, que deben estar particularmente protegidos de la injerencia de otros Poderes de la República, y que requieren la estabilidad del personal necesaria para un adecuado e imparcial desempeño del cargo, lo cual es incompatible con un nombramiento, cuya prórroga deba ser revisada anualmente como lo dispone la norma en cuestión. Una disposición en ese sentido sería inoperante para este poder de la República, tratándose de puestos de tal relevancia, cuyo nombramiento amerita diferentes concursos y una cuidadosa verificación de atestados de previo a su selección, por lo que, lejos de beneficiar a la administración de justicia, crearía tal inestabilidad, que afectaría el buen gobierno del Poder Judicial. Así las cosas, exigir la periodicidad y prórroga que dispone este artículo 18 para el caso del Poder Judicial, no solo atenta contra el principio de independencia, por estar en contradicción con la normativa especial que el Poder Judicial tiene ya al respecto, sino que resulta irrazonable y desproporcionado, pues el medio escogido por el legislador, no sería el más idóneo para procurar el fin pretendido -valorar la idoneidad del personal-, toda vez que el Poder Judicial ya cuenta con un profuso marco normativo, específicamente diseñado para su regulación, el cual no solamente tiene la intención de regular concretamente al Poder Judicial, velando por que se garantice su independencia frente a los otros Poderes de la República, sino que también asegura el principio de idoneidad que debe prevalecer en la selección de sus funcionarios, por lo que, la norma consultada, lejos de favorecer tal principio constitucional, alteraría de forma irrazonable y desproporcionada la organización de puestos que son fundamentales para la administración de justicia del Poder Judicial, poniendo, incluso, en riesgo la imparcialidad en el ejercicio del cargo que debe prevalecer en esos puestos, ante la continua presión de una prórroga de su nombramiento anual. Asimismo, cabe advertir que, al igual que con el artículo 14 consultado y de lo señalado en el artículo 2 de este proyecto, el ordinal 18 no establece salvedad alguna respecto de la aplicación de esta norma al Poder Judicial, como sí lo hace en este caso para con las universidades públicas, al señalar que, en su caso, se respetarán los plazos y períodos determinados en sus estatutos orgánicos y reglamentos. De ahí que tampoco resulta excluido el Poder Judicial de su aplicación. Por ende, se considera existe un vicio de inconstitucionalidad en el artículo 18 objeto de consulta, en los términos expuestos.

Sobre el artículo 21 (régimen único de despido) y el artículo 22 (proceso de despido) respecto del Poder Judicial (redacta magistrada Picado Brenes) Los artículos consultados disponen lo siguiente:

“ARTÍCULO 21- Procedimiento de despido Será causal de despido inmediato, aplicable a toda persona servidora pública, obtener dos evaluaciones del desempeño consecutivas inferiores a una calificación del setenta por ciento (70%), que se encuentren en firme, una vez agotado el procedimiento de impugnación de la calificación y siempre que se haya acreditado la responsabilidad de la persona servidora pública por dicha evaluación deficiente. Dicha calificación deberá ser debidamente justificada por la jefatura inmediata que la asigne y por la autoridad jerárquica que la confirme, en caso de haber sido recurrida.

Las entidades y los órganos incluidos deberán aplicar planes remediales pactados con la persona servidora pública, y con el asesoramiento de recursos humanos que les permitan determinar las causas por las que las personas servidoras públicas obtienen una calificación inferior al setenta por ciento (70%) y aplicar acciones para mejorar su desempeño. Si pese a la aplicación del plan remedial, la persona servidora pública no logra mejorar su desempeño y obtiene de forma consecutiva otra calificación inferior al setenta por ciento (70%), se configurará la causal de despido inmediato.

Las entidades y los órganos incluidos deberán aplicar planes remediales que les permitan determinar las causas por las que las personas servidoras públicas obtienen una calificación inferior al setenta por ciento (70%) y aplicar acciones para mejorar su desempeño. Si pese a la aplicación del plan remedial, la persona servidora pública no logra mejorar su desempeño y obtiene de forma consecutiva otra calificación inferior al setenta por ciento (70%), se configurará la causal de despido inmediato.

Todo despido justificado se entenderá sin responsabilidad para la Administración Pública y hará perder a la persona servidora pública todos los derechos que esta ley y la normativa aplicable en cada familia de puestos le concede, excepto las proporciones de los extremos laborales que correspondan y los adquiridos conforme a los regímenes de pensiones vigentes, siempre que se realice con observancia de las siguientes reglas:

• a)En todas las dependencias bajo el ámbito de aplicación de esta ley se aplicará un único procedimiento administrativo especial de despido, que garantice la satisfacción del debido proceso y sus principios, el cual deberá ser concluido por acto final en el plazo de dos meses, a partir de su iniciación. La investigación preliminar, en los casos en que se requiera, no dará inicio al procedimiento indicado en el párrafo anterior; no obstante, esta deberá iniciar, bajo pena de prescripción, a más tardar en el plazo de un mes a partir de que el jerarca o la jerarca tenga conocimiento, sea de oficio o por denuncia, de la posible comisión de una falta de uno de sus servidores. El mismo plazo de un mes de prescripción se aplicará si, iniciada la mencionada investigación preliminar, esta permanece paralizada por culpa de la Administración.

Para efectos del plazo de dos meses señalado en el primer párrafo de este inciso, el procedimiento ordinario de despido dará inicio a partir de que el jerarca institucional adopte la decisión de iniciar dicho procedimiento con el nombramiento del órgano director del proceso.

• b)Recibida, por parte del jerarca institucional, queja o denuncia o informado de presunta falta que, en su criterio, amerite el inicio de un procedimiento de despido, este nombrará un órgano director del proceso, el cual formulará por escrito los cargos y dará traslado a la persona servidora pública por un término de quince días, para evacuar toda la prueba ofrecida en una audiencia oral y privada, que notificará personalmente por el correo electrónico institucional del funcionario, correo certificado o por medio de publicación por una única vez en el diario oficial La Gaceta, cuando se demuestre que no existe forma de localizar al presunto infractor. Dentro del plazo indicado, la persona servidora pública deberá presentar, por escrito, sus descargos y podrá ofrecer toda la prueba que considere oportuna para respaldar su defensa, sea documental, testimonial o de cualquier otra índole en abono de estos, así como las excepciones o incidentes que considere oportunos.
• c)Si vencido el plazo que determina el inciso anterior, el servidor no hubiera presentado oposición o si expresamente hubiera manifestado su conformidad con los cargos que se le atribuyen, el jerarca institucional dictará la resolución de despido sin más trámite, salvo que pruebe no haber sido notificado por el órgano director del proceso o haber estado impedido por justa causa para oponerse.
• d)Si el cargo o los cargos que se hacen al empleado o empleada o persona servidora pública implica su responsabilidad penal o cuando sea necesario para el buen éxito del procedimiento administrativo disciplinario de despido o para salvaguardia del decoro de la Administración Pública, el jerarca institucional podrá decretar, en resolución motivada, la suspensión provisional de la persona servidora pública en el ejercicio del cargo. Si se incoara proceso penal en contra de la persona servidora pública, dicha suspensión podrá decretarse en cualquier momento como consecuencia de auto de detención o de prisión preventiva, o sentencia en firme con pena privativa de libertad.
• e)Si el interesado se opusiera dentro del término legal, el órgano director del proceso resolverá las excepciones previas que se hayan presentado y convocará a una comparecencia oral y privada, ante la Administración, en la cual se admitirá y recibirá toda la prueba y alegatos de las partes que sean pertinentes. Asimismo, podrán realizarse antes de la comparecencia las inspecciones oculares y periciales. Se podrá convocar a una segunda comparecencia únicamente cuando haya sido imposible en la primera dejar listo el expediente para su decisión final, y las diligencias pendientes así lo requieran.
• f)Si la persona servidora pública incurriera en nueva causal de despido durante el período de instrucción, se acumularán los cargos en el expediente en trámite y se procederá conforme a lo establecido en este capítulo.
• g)Evacuadas las pruebas, resueltas las excepciones previas presentadas dentro del plazo de los diez días otorgados para oponerse al traslado de cargos y presentadas las conclusiones por las partes o vencido el plazo para ello, se tendrá el expediente debidamente instruido y se elevará el informe respectivo al jerarca institucional para que dicte resolución definitiva.
• h)El jerarca o la jerarca institucional resolverá el despido de la persona servidora pública o declarará la falta de mérito y ordenará el archivo del expediente en este último supuesto. No obstante, en caso de considerar que la falta existe pero que la gravedad de esta no amerita el despido, ordenará una amonestación oral, una advertencia escrita o una suspensión sin goce de salario hasta por un mes, según la gravedad de la falta.
• i)Contra la resolución que ordene la amonestación oral, la advertencia escrita o la suspensión sin goce de salario, hasta por un mes, podrán interponerse los recursos ordinarios de revocatoria con apelación en subsidio, cuando este último resulte procedente, en un plazo de cinco días, contado a partir del día siguiente en que sea notificada dicha resolución. Ambos recursos podrán interponerse en forma conjunta o separada ante el órgano que emite la resolución, quien resolverá el recurso de revocatoria.

En el caso de las personas servidoras públicas que laboran en una institución cubierta por la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953, el recurso de apelación será resuelto por el Tribunal de Servicio Civil. El jerarca o la jerarca remitirá en alzada, al Tribunal de Servicio Civil, el expediente del procedimiento administrativo correspondiente donde conste la resolución de sanción así como la resolución del recurso de revocatoria, con expresión de las razones legales y de los hechos en que se fundamentan ambas resoluciones.

• j)Los casos no previstos en el presente procedimiento, en cuanto no contraríen el texto y los principios procesales que contiene este procedimiento, se resolverán aplicando supletoriamente, según el siguiente orden: la Ley 6227, Ley General de la Administración Pública, las normas del derecho público, los principios generales del derecho público, el Código de Trabajo, el Código Procesal Civil, los principios y las leyes del derecho común, la equidad, las costumbres y los usos locales.

Las instituciones de educación superior universitaria estatal emitirán normativa interna que regule esta materia, de conformidad con los artículos 84, 85 y 87 y el principio de debido proceso contenidos en la Constitución Política; en caso de que no exista normativa institucional al respecto aplicará, supletoriamente, la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las normas de derecho público, los principios generales del derecho público, el Código de Trabajo y el Código Procesal Civil.

ARTÍCULO 22- Fase recursiva Contra la resolución de despido emitida por el jerarca o la jerarca se tendrá un plazo improrrogable de cinco días hábiles, contado a partir de la notificación de la resolución para interponer el recurso de revocatoria y/o el recurso de apelación en subsidio, cuando este último resulte procedente, los cuales se resolverán con arreglo a las siguientes disposiciones:

• a)Si vencido el plazo de cinco días indicados anteriormente no se recurriera la resolución, esta quedará en firme y dará por agotada la vía administrativa.
• b)Si solo se interpuso recurso de revocatoria, lo resuelto por el jerarca o la jerarca será definitivo, la resolución quedará en firme y dará por agotada la vía administrativa.
• c)Si se interponen ambos recursos ordinarios a la vez, se tramitará la apelación, una vez declarada sin lugar la revocatoria.
• d)En el caso de las personas servidoras públicas que laboran en una institución cubierta por la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953, el recurso de apelación se concederá en ambos efectos ante el Tribunal de Servicio Civil. El jerarca o la jerarca remitirá en alzada, al Tribunal de Servicio Civil, el expediente del procedimiento administrativo de despido, donde conste la resolución de despido de la persona servidora pública, así como la resolución del recurso de revocatoria, con expresión de las razones legales y de los hechos en que se fundamentan ambas resoluciones.

Si únicamente se interpuso el recurso de apelación, el jerarca o la jerarca remitirá en alzada, al Tribunal de Servicio Civil, el expediente del procedimiento administrativo de despido donde conste la resolución de despido de la persona servidora pública, con expresión de las razones legales y de los hechos en que se fundamenta dicha resolución.

La resolución que adopte el Tribunal del Servicio Civil en alzada será definitiva, la resolución quedará en firme y agotará la vía administrativa. Dicho fallo es vinculante para el jerarca o la jerarca institucional.

Autorizado el despido por resolución firme, el jerarca o la jerarca institucional tendrá un plazo de caducidad de un mes, contado a partir de la notificación de dicha resolución, para hacerlo efectivo. Para la ejecución del despido por parte del jerarca o la jerarca no se requiere acuerdo adicional, basta la comunicación del cese de su condición de funcionaria a la persona servidora, con base en la resolución firme dictada.

Si el Tribunal de Servicio Civil revocara la sentencia dictada por el jerarca o la jerarca institucional, dictará en el mismo acto nuevo fallo y resolverá si procede la restitución del empleado en su puesto, con pleno goce de sus derechos y el pago en su favor de los salarios caídos.

En caso de que el Tribunal de Servicio Civil considere que la falta existe pero que la gravedad de esta no amerita el despido, podrá ordenar una amonestación oral, una advertencia escrita o una suspensión sin goce de salario hasta por un mes.

Las instituciones de educación superior universitaria estatal emitirán normativa interna que regule esta materia, de conformidad con los artículos 84, 85 y 87 y el principio de debido proceso contenidos en la Constitución Política; en caso de que no exista normativa institucional al respecto, aplicará supletoriamente la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las normas de derecho público, los principios generales del derecho público, el Código de Trabajo y el Código Procesal Civil.” Los diputados consultan sobre los artículos 21 y 22 del proyecto, referido al régimen disciplinario y sancionatorio aplicable al Poder Judicial. Indican que el art.21 establece una nueva causal de despido inmediato cuando el servidor público obtenga dos evaluaciones de desempeño consecutivas inferiores a 70%. Indican que el Poder Judicial cuenta con leyes especiales que regulan el régimen sancionatorio de sus servidores. Agregan que, las nuevas causales establecidas obedecen más a asuntos administrativos que a aspectos jurisdiccionales, lo que provoca una injerencia odiosa y peligrosa para nuestro Estado Social de Derecho y la independencia judicial. Consideran que la nueva causal de despido inmediato consistente en obtener dos calificaciones de desempeño consecutivas inferiores a 70% contenida en el artículo 21, así como las dos nuevas causales graves creadas mediante la reforma al artículo 48 de la Ley de Salarios de la Administración Pública, que se reforma en el artículo 49:A) del proyecto de ley, violentan los principios constitucionales de legalidad, seguridad jurídica, razonabilidad, proporcionalidad, separación de poderes, autonomía e independencia del Poder Judicial y sus órganos auxiliares, permitiendo además la injerencia del Mideplan en asuntos que son de competencia exclusiva de ese Poder de la República tal y como disponen los artículos 9, 154 y 156 de la Constitución Política, y la numerosa legislación internacional citada. Luego, sobre el único procedimiento de despido en relación con el Poder Judicial, indican que, bajo el ámbito de aplicación de esta propuesta de ley existirá un único procedimiento especial de despido (artículo 21). Respecto al régimen recursivo, se le da la potestad al Tribunal de Servicio Civil de resolver todos los recursos de apelación que interpongan contra resoluciones que determinen cualquier tipo de sanción disciplinaria (artículo 21:i) y artículo 22). Consideran que también violenta la independencia y autonomía del Poder Judicial, siendo que éste cuenta con su propia normativa y que por la especialidad de la función que realizan contiene disposiciones particulares en cuanto a competencias, plazos, faltas, sanciones y recursos, según lo establecen los artículos del 174 al 215 de su Ley Orgánica.

Al respecto, esta Sala considera que:

-La creación de una nueva causal de despido, por no pasar la evaluación del desempeño en dos ocasiones consecutivas (según el primer párrafo del art.21 del proyecto), no es inconstitucional en tanto la aplique el Poder Judicial y el Tribunal Supremo de Elecciones de acuerdo con su normativa interna. El establecimiento de esta causal nueva para el despido justificado, no violenta el Derecho de la Constitución, máxime si se entiende que esta nueva causal se aplicaría según las disposiciones internas del Poder Judicial, donde Mideplán no tendría ninguna injerencia.

-Sí resultan inconstitucionales los artículos 21 y 22 del proyecto consultado, respecto de su aplicación al Poder Judicial -y al TSE según se verá-, por cuanto, el ejercicio de la potestad disciplinaria de los servidores del Poder Judicial es parte esencial de la independencia judicial. Así entonces, todo lo que en esas normas se establece en cuanto a procedimiento y fase recursiva no podrían aplicarse al Poder Judicial, el cual ya goza de normativa interna que dispone el ejercicio de la potestad disciplinaria. Tal como esta Sala lo indicó mediante el voto n°2009-004849, todo procedimiento para la adopción de medidas disciplinarias, la suspensión o la separación del cargo se deberá resolver de acuerdo con las normas establecidas de comportamiento judicial. Así entonces, en consonancia con el principio de independencia judicial, la entidad con competencia disciplinaria será, exclusivamente el propio Poder Judicial.

Sobre el artículo 49 incisos a, b, g y h (reforma a normativa) respecto del Poder Judicial (redacta magistrada Picado Brenes) El artículo consultado dispone lo siguiente:

“ARTÍCULO 49- Modificaciones Se modifican las siguientes disposiciones normativas, de la manera que se describe a continuación:

• A)Se reforman los artículos 12 y 48 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957. El texto es el siguiente:

Artículo 12- El incentivo por anualidad se reconocerá el mes inmediato siguiente al aniversario del ingreso o reingreso de la persona servidora pública que labore bajo el esquema de salario compuesto y de acuerdo con las siguientes normas:

• a)Si el servidor es trasladado a un puesto de igual o inferior categoría a la del puesto que esté ocupando, no habrá interrupción alguna en cuanto al cómputo del tiempo para el aumento de salario.
• b)Si el servidor es ascendido, comenzará a percibir el mínimo de anualidades de la nueva categoría; bajo ningún supuesto se revalorizarán los incentivos ya reconocidos.
• c)A las personas servidoras públicas, en propiedad o interinos, se les computará, para efectos de reconocimiento del incentivo por anualidad, el tiempo de servicio prestado en otras entidades del sector público.

Artículo 48- Criterios para la evaluación del desempeño Cada jefatura de la Administración Pública, al inicio del año, deberá asignar y distribuir a todos los funcionarios entre los procesos, proyectos, productos y servicios de la dependencia, estableciendo plazos de entrega y tiempo estimado para su elaboración. Será responsabilidad de cada superior jerárquico dar seguimiento a este plan de trabajo anual; su incumplimiento será considerado falta grave de conformidad con la normativa aplicable.

Para el seguimiento regular y frecuente de las actividades del plan de trabajo, cada administración deberá establecer un sistema informático al efecto, alimentado por cada funcionario con las actividades diarias vinculadas a dichos procesos, proyectos y productos, y el cumplimiento de plazos y tiempos. Será responsabilidad de cada funcionario, incluido todo el nivel directivo, la actualización y el mantenimiento al día de la información necesaria para la evaluación de su desempeño, de conformidad con los procesos, proyectos, productos y servicios asignados particularmente, sus plazos de entrega y tiempos estimados para su elaboración, en dicho sistema informático que la administración pondrá a su disposición. Su incumplimiento será considerado falta grave de conformidad con la normativa aplicable.

El incentivo por anualidad se concederá únicamente mediante la evaluación del desempeño para aquellas personas servidoras públicas que laboren bajo el esquema de salario compuesto, que hayan cumplido con una calificación mínima de "muy bueno" o su equivalente numérico, según la escala definida, de conformidad con las siguientes reglas:

• a)Un ochenta por ciento (80%) de la calificación anual se realizará sobre el cumplimiento de las metas anuales definidas para cada funcionario, de conformidad con lo dispuesto en el presente capítulo.
• b)Un veinte por ciento (20%) será responsabilidad de la jefatura o superior, que se evaluará según el buen rendimiento acorde con las competencias necesarias para el desempeño del puesto.
• B)Se adiciona el inciso l) al artículo 13 y se reforman los artículos 1 y 7 bis de la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953. Los textos son los siguientes:

Artículo 13- Son atribuciones y funciones del director general de Servicio Civil:

[…]

• l)Agotar la vía administrativa de los asuntos sometidos a la competencia de la Dirección General de Servicio Civil.

Artículo 1- Este estatuto y sus reglamentos regularán las relaciones entre el Estado y las personas servidoras públicas, con el propósito de garantizar la eficiencia de la Administración Pública.

Artículo 7 bis- Se dota a la Dirección General de Servicio Civil de personalidad jurídica instrumental únicamente para efectos de manejar su propio presupuesto y con el fin de que cumpla sus objetivos de conformidad con la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953, demás leyes conexas, y administre su patrimonio.

• C)Se reforma el artículo 704 de la Ley 2, Código de Trabajo, de 27 de agosto de 1943. El texto es el siguiente:

(…)

• D)Se reforman los artículos 7, 8, 9 y 10 de la Ley 8777, Creación de los Tribunales Administrativos del Régimen de Pensiones y Jubilaciones del Magisterio Nacional y del Servicio Civil, de 7 de octubre de 2009. Los textos son los siguientes:

(…)

• E)Se reforman los artículos 7 bis y 35 de la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953. Los textos son los siguientes:

(…)

• F)Se reforma el inciso 5) del artículo 112 de la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978. El texto es el siguiente:

(…)

• G)Se adiciona el artículo 85 a la Ley 5155, Estatuto de Servicio Judicial, de 10 de enero de 1973. El texto es el siguiente:

Artículo 85.- Las competencias definidas en la presente ley, para los órganos del Poder Judicial, serán realizadas en coordinación con el Ministerio de Planificación Nacional y Política Económica (Mideplán), en lo que corresponde a los temas a que se refiere la Ley General de Empleo Público.

• H)Se adiciona el artículo 17 a la Ley 2422, Ley de Salarios del Poder Judicial, de 11 de agosto de 1959. El texto es el siguiente:

Artículo 17.- Las competencias definidas en la presente ley, para los órganos del Poder Judicial, serán realizadas en coordinación con el Ministerio de Planificación Nacional y Política Económica (Mideplán), en lo que corresponde a los temas a que se refiere la Ley General de Empleo Público.

• I)Se reforma el artículo 11 de la Ley 6877, Ley de Creación del Servicio Nacional de Aguas, Riego y Avenamiento (Senara), de 18 de julio de 1983. El texto es el siguiente:

(…)

• J)Se reforma el inciso f) del artículo 11 de la Ley 7800, Creación del Instituto Costarricense del Deporte y la Recreación y del Régimen Jurídico de la Educación Física, el Deporte y la Recreación, de 30 de abril de 1998. El texto es el siguiente:

(…)

• K)Se reforma el inciso k) del artículo 42 de la Ley 9694, Ley del Sistema de Estadística Nacional, de 4 de junio de 2019. El texto es el siguiente:

(…)

• L)Se reforma el inciso ch) del artículo 11 de la Ley 4716, Ley de Organización y Funcionamiento del Instituto de Fomento y Asesoría Municipal (IFAM), de 9 de febrero de 1971. El texto es el siguiente:

(…)

• M)Se reforma el inciso I) del artículo 17 de la Ley 2726, Ley Constitutiva del Instituto Costarricense de Acueductos y Alcantarillados, de 14 de abril de 1961. El texto es el siguiente:

(…)

• N)Se reforma el inciso ñ) del artículo 53 Ley 7593, Ley de la Autoridad Reguladora de los Servicios Públicos (Aresep), de 9 de agosto de 1996. El texto es el siguiente:

(…)

• Ñ)Se reforma el inciso t) del artículo 28 de la Ley 7558, Ley Orgánica del Banco Central de Costa Rica, de 3 de noviembre de 1995. El texto es el siguiente: (…)

Los consultantes consideran que el art.49 del proyecto consultado resulta inconstitucional. Particularmente argumentan en contra del inciso a), el inciso b) y los incisos g) y h). Sobre el inciso a) se refieren a las nuevas causales para el despido con justa causa, referidos, según los consultantes a las calificaciones inferiores a 70% y a no alimentar la base de datos. Sobre la primera causal ya esta Sala se pronunció en el considerando anterior, y en cuanto a la segunda causal sobre la alimentación de la base de datos, nótese que no está claramente fundamentada, por ello esta Sala omite pronunciamiento.

Sobre el inciso b) se consulta por cuanto se estaría sometiendo al Poder Judicial al Estatuto de Servicio Civil. Al respecto, observa esta Sala que, el artículo en cuestión adiciona y reforma algunos artículos del Estatuto de Servicio Civil, particularmente el artículo 1, tal como se observa en el siguiente sentido:

Estatuto de Servicio Civil (versión actual) Estatuto de Servicio Civil (propuesta de reforma) Artículo 1º.- Este Estatuto y sus reglamentos regularán las relaciones entre el Poder Ejecutivo y sus servidores, con el propósito de garantizar la eficiencia de la Administración Pública, y proteger a dichos servidores.

Artículo 1- Este estatuto y sus reglamentos regularán las relaciones entre el Estado y las personas servidoras públicas, con el propósito de garantizar la eficiencia de la Administración Pública.

Así entonces, a partir del proyecto consultado, el Estatuto de Servicio Civil regularía las relaciones, no sólo al Poder Ejecutivo, sino en general de todo el Estado, incluido el Poder Judicial. Ello per se no sería inconstitucional, claro está, si se entiende que, la sujeción al Poder Judicial es a principios generales de empleo público y que, ello no implica que se esté derogando la normativa especial del Poder Judicial en estas materias, pues sobre esta materia de empleo público de los funcionarios prevalecería esta normativa especial por sobre el Estatuto de Servicio Civil. Además, la Dirección General de Servicio Civil no podría tener competencia respecto de los asuntos referidos al Poder Judicial. Bajo esta interpretación, el artículo 49 inciso b) no es inconstitucional, siempre que se interprete conforme a lo indicado.

Ahora bien, en el caso de los incisos g) y h) del artículo 49, estos resultan inconstitucionales por violar la independencia del Poder Judicial. Lo anterior por cuanto, por medio de tales incisos se pretendía realizar sendas adiciones al Estatuto de Servicio Judicial y a la Ley de Salarios del Poder Judicial, a efectos de incluir la injerencia de Mideplán en las competencias definidas en esta normativa especial, indicando que los órganos del Poder Judicial deberán realizar las competencias definidas en esas leyes, en coordinación con dicho ministerio. Ello resulta evidentemente violatorio del principio constitucional de independencia judicial, pues se trataría de un órgano del Poder Ejecutivo con el cual, las autoridades competentes del Poder Judicial, estaría obligadas a coordinar el ejercicio de sus competencias, en materia de empleo público de los funcionarios judiciales. Se tendría así a la Corte Plena, el presidente de la Corte Suprema de Justicia, el Consejo de Personal, el Consejo de la Judicatura y el Departamento de Personal en obligada coordinación con Mideplán antes de la adopción de acciones en temas relacionados con el empleo público contenidos en el proyecto de ley sean: planificación del trabajo, organización del trabajo, gestión del empleo, gestión del rendimiento, gestión de la compensación y gestión de las relaciones laborales. En temas que son de competencia exclusiva del Poder Judicial, como lo es el manejo interno de su personal, resulta excluyente cualquier tipo de coordinación obligatoria con otro órgano del Estado. Si bien se trata de coordinación y no de dirección, es lo cierto que, en esta materia, que es propia del fuero interno de independencia judicial, ni siquiera la coordinación resultaría admisible para el ejercicio de competencias exclusivas del Poder Judicial. “La independencia judicial se manifiesta en diversos planos, en el plano externo, se traduce por la autonomía del Poder Judicial en materia económica y por la inamovilidad de su personal, así como, en lo funcional, por la posibilidad real de tomar sus decisiones de acuerdo con criterios propios y no como resultado de presiones procedentes de determinados grupos, instituciones o personas.” (sentencia n°2000-005493). Además, debe recordarse lo que indica el art.154 Constitucional: “El Poder Judicial sólo está sometido a la Constitución y a la ley…”, no hay sumisión, ni siquiera en el plano de la coordinación, con otro órgano de otro poder de la República. Nótese que incluso están fuera del alcance del legislador, “las atribuciones constitucionales de ordenar, planificar o programar por ejemplo la función administrativa de manejo de personal.” (sentencia n°2017-009551), con mucha más razón, estarían fuera del alcance de otro poder de la República. Ello por cuanto, incluso se impide “una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias.” (sentencia n°2018-019511). Por consiguiente, este Tribunal considera que los incisos g y h del artículo 49 contienen un vicio de inconstitucionalidad, por lesionar el principio de independencia de funciones que garantizan al Poder Judicial, los ordinales 9 y 154 de la Constitución Política.

• 4)Conclusión -Sobre los artículos 12 (base de datos), 13.h (familia en puestos de confianza), 15 (postulados de reclutamiento y selección), 19 (movilidad o traslados), y 31 (metodología de trabajo), dado que no se realiza la fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, se declara inevacuable la consulta por falta de fundamentación.

-En los términos indicados y conforme a la jurisprudencia de esta Sala, resultan inconstitucionales del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, los artículos siguientes.

Analizados todos los aspectos consultados en cuanto al artículo 2 (inciso a), 6 (inciso b), 7 (incisos d, g y p), 9 (segundo párrafo del inciso a), 13 (inciso f), 14, 17, 18, 21 y 22, 49 (inciso b, g y h), del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación al principio de separación de funciones, al principio de independencia judicial, al régimen particular de empleo del Poder Judicial y a las competencias constitucionales administrativas de la Corte Suprema de Justicia. La independencia económica, personal, funcional, orgánica e institucional, tanto del Poder Judicial en sí mismo, como de los jueces y auxiliares de la justicia, es esencial en un Estado Constitucional de Derecho. Conforme a tal principio, cada poder es independiente del otro, cada órgano del Estado debe poder ejercer su función con independencia de los otros (art.9° Constitucional). Puede haber interrelación entre ellos, pero nunca subordinación, ni tampoco coordinación obligada en materias propias de la competencia exclusiva y excluyente del Poder Judicial. Es lo cierto es que la lectura integral del proyecto permite concluir que no se garantiza debidamente el principio de separación de poderes, no sólo por la sujeción a Mideplán (artículos 6, 7 y 9 por ejemplo), sino por la imposición de ciertas materias que son de competencia exclusiva y excluyente del Poder Judicial (artículos 14, 17, 18, 21 y 22 por ejemplo). Además, no solo se trata de una vulneración a los principios de separación de funciones y a la independencia judicial, sino a todo el sistema democrático y de organización del Poder que el Constituyente ha creado en nuestro Estado de Derecho. “Una garantía más de la independencia del Poder Judicial en el tema de empleo es que el Jefe del Departamento de Personal se encuentra vinculado al Presidente de la Corte, excluyendo la injerencia de instancias externas.” (voto n°2018-019511).

Finalmente, esta Sala observa del expediente legislativo que, la Corte Suprema de Justicia emitió un criterio desfavorable al proyecto en la consulta que le hiciera la Asamblea Legislativa, cuando indicó lo siguiente, mediante oficio n°SP-62-2021 del 03 de junio del 2021:

“Como se dijo, si bien el nuevo texto del proyecto … se mantiene la latente oposición de incluir al Poder Judicial en una normativa que implica una clara injerencia del Poder Ejecutivo en cuestiones que -constitucional y legalmente- son propias de esta otra institución. (…) se mantiene la base normativa del anterior texto y se pretende regular un régimen de empleo público que no considera aspectos diferenciadores de las entidades y órganos que somete a su ámbito de cobertura. Así, el Poder Judicial sigue formando parte del proyecto, con las consecuencias que eso implica para su estructura interna y funcionamiento, según las observaciones hechas en los anteriores informes.” (subrayado no corresponde al original) (Las notas particulares de los magistrados, sobre este apartado, por realizarse de forma conjunta con el Tribunal Supremo de Elecciones, se incluyen al final del siguiente apartado).

X.- Sobre la consulta de violación a la independencia del Tribunal Supremo de Elecciones.- 1) Aspectos consultados Los consultantes diputados consideran que los siguientes artículos del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, son violatorios del principio de separación de poderes. En concreto, consultan sobre los artículos siguientes, indicados, sea en el encabezado del título general o en el resto del texto del escrito de interposición:

2.a (ámbito de cobertura), 6.b (rectoría de Mideplan), 7 (competencias de Mideplan), 9.a (oficinas de Recursos Humanos), 12 (base de datos), 13 (familias de puestos), 14 (reclutamiento y selección), 15 (postulados de reclutamiento y selección), 17 (personal de Alta Dirección), 18 (plazo de prueba y plazo de nombramiento), 19 (movilidad o traslados), 21 (régimen único de despido), 22 (proceso de despido), 31 (metodología de trabajo), En primer lugar, sobre los artículos 12 (base de datos), 13.h (familia de puestos de confianza), 15 (postulados de reclutamiento y selección), 19 (movilidad o traslados), y 31 (metodología de trabajo), dado que no se realiza la fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, se declara inevacuable la consulta por falta de fundamentación.

En cuanto al resto de artículos, los consultantes consideran que los artículos 2.a, 6, 7, 9, 13, 14, 17, 18, 21 y 22 del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, es violatorio de la independencia del TSE y por tanto, de los artículos 9 y 99 de la Constitución. Los consideran inconstitucionales por cuanto obliga al TSE a aplicar y ejecutar las disposiciones de alcance general, directrices y reglamentos que emita el Mideplán en violación de su independencia, permitiendo una injerencia del Poder Ejecutivo en materia que le está vedada por mandato constitucional y en retroceso del Estado de Derecho. Indican que el art.9 de la Constitución garantiza la independencia del TSE situándolo en el rango de los demás Poderes del Estado, y no solo en cuanto a los actos relativos al sufragio sino respecto a las funciones que establece la propia Constitución y las demás leyes. Así, se advierte la existencia de aspectos que comprometen las competencias legales y constitucionales del TSE, el art.13.a.f que establece un único régimen de empleo público para los servidores y Magistrados del TSE; obligación de aplicar procesos de reclutamiento y selección de personas con las disposiciones de alcance general, directrices y reglamentos emitidos por Mideplán (art.14), sujeción a Mideplán en reclutamiento y selección de personal de alta dirección técnica, obligación de 6 meses de prueba y 6 años de nombramiento (art.17 y 18); un único procedimiento administrativo especial de despido. Además de la inclusión en el art.2.a, la obligación de aplicar y ejecutar las disposiciones de alcance general, directrices y reglamentos que emita el Mideplán violentando la independencia del TSE (arts. 9 y 99) y propone la sujeción e injerencia del Poder Ejecutivo en materia que le está vedada por mandato constitucional aunado el retroceso que implica para el Estado de Derecho.

Así entonces se procede al examen de los artículos indicados. Realizándose de previo, un resumen jurisprudencial sobre el tema de independencia del TSE, el cual servirá de contexto para el examen de cada artículo consultado.

• 2)Antecedentes Jurisprudenciales sobre el Principio Constitucional de Separación de Poderes en cuanto al Tribunal Supremo de Elecciones Respecto del Tribunal Supremo de Elecciones (TSE), debe indicarse que también existe profusa jurisprudencia sobre el fundamento, justificación y relevancia de su independencia. En el voto n°3194-1992, la Sala resolvió:

“En el caso de la materia electoral, la Constitución de 1949 dio especial importancia a la necesidad de segregar todo lo relativo al sufragio, principalmente de la órbita de los poderes políticos del Estado. En esa dirección, estableció una serie de principios y adoptó mecanismos eminentemente formales para garantizar la independencia del sufragio, sobre todo mediante la plena autonomía del órgano llamado a organizarlo, dirigirlo y fiscalizarlo. Originalmente en el artículo 99 constitucional, y luego también en el 9° -por la adición introducida por ley 5704 de 5 de junio de 1975- no sólo se atribuyó al Tribunal Supremo de Elecciones la organización, dirección y vigilancia de los actos relativos al sufragio, sino que, además, se le otorgó el rango e independencia propios de un poder del Estado.” Mientras que en el voto n°00495-1998, se agregó que “aunque (el TSE) no es un Poder del Estado en sentido estricto, sí cumple una función primordial en el Estado costarricense -cual es la de ocuparse de la materia electoral-, y por norma constitucional -transcrito párrafo segundo del artículo 9- se le confiere el rango e independencia de un poder del Estado”. Por su parte, en el voto n°2000-06326, esta Sala precisó:

“III.- DE LA NATURALEZA JURÍDICO-CONSTITUCIONAL DEL TRIBUNAL SUPREMO DE ELECCIONES. Con ocasión de los problemas electorales que motivaron la revolución de 1948, los miembros de la Asamblea Nacional Constituyente de 1949 tuvieron especial cuidado de cuidar la materia electoral, segregando todo lo relativo al sufragio, principalmente de la órbita de los Poderes del Estado, especialmente del Ejecutivo y de la Asamblea Legislativa, sin dejar de lado el Judicial. Establecieron una serie de principios básicos sobre los cuales se desarrolla el ejercicio del sufragio:

"La ley regulará el ejercicio del sufragio de acuerdo con los siguientes principios:

Autonomía de la función electoral; Obligación del Estado de inscribir, de oficio, a los ciudadanos en el Registro Civil y de proveerles de cédula de identidad para ejercer el sufragio; Garantías efectivas de libertad, orden, pureza e imparcialidad por parte de las autoridades gubernativas; Garantías de que el sistema para emitir el sufragio les facilita a los ciudadanos el ejercicio de ese derecho; Identificación del elector por medio de cédula con fotografía u otro medio técnico adecuado dispuesto por la ley para tal efecto; Garantías de representación para las minorías; Garantías de pluralismo político; Garantías para la designación de autoridades y candidatos de los partidos políticos, según los principios democráticos y sin discriminación (artículo 95 de la Constitución Política); y adoptaron mecanismos eminentemente formales para garantizar la independencia del sufragio, dotándole de plena autonomía al órgano llamado a organizarlo, dirigirlo y vigilarlo (el Tribunal Supremo de Elecciones), originalmente en los términos del artículo 89 de la Constitución Política, y luego en los del artículo 9 (adicionado mediante Ley número 5704, de 5 de junio de 1975), en virtud del cual, se delegó a este Tribunal, no sólo la competencia de la materia electoral –según se anotó anteriormente-, sino que además se le otorgó el rango e independencia propios de un poder del Estado. De lo dicho queda claro que el Tribunal Supremo de Elecciones es un órgano constitucional especializado en la materia electoral, que por disposición constitucional goza de la misma independencia de los Poderes del Estado en el ejercicio de sus atribuciones; es decir, tiene plena autonomía para organizar, dirigir y vigilar los procesos electorales y todos los actos relativos al sufragio, con la independencia y rango propios de un Poder estatal, lo cual ha sido considerado con anterioridad en la jurisprudencia constitucional en los siguientes términos:

"El Tribunal como órgano constitucional especializado para la materia electoral, con el rango e independencia de los poderes públicos, puede ser investido, sólo que en su ámbito específico, con cualquiera de las funciones del Estado, y de hecho lo está con las tres [que tiene asignadas], tener a su cargo «la organización, dirección y vigilancia de los actos relativos al sufragio, así como las demás funciones que le atribuyan la Constitución y las leyes»" (sentencia número 0980-91, de las 13:30 horas del 24 de mayo de 1991).

En este sentido, y por la importancia que reviste, debe hacerse mención a la facultad interpretativa que la jurisprudencia constitucional reconoció a este tribunal constitucional, obviamente en materia propia de su competencia: la electoral, en los siguientes términos:

"[...] competencias de las los artículos 97 párrafo segundo y 121 inciso 1) excluyen aún a la Asamblea Legislativa y que el 102 termina de reforzar con una no igualada amplitud, sobre todo al atribuirle poderes tan amplios como el de «interpretar en forma exclusiva y obligatoria las disposiciones constitucionales y legales referentes a la materia electoral» inciso 3º)" (sentencia número 0980-91, supra citada).

En virtud de esta especial competencia, de las prerrogativas y potestades del Tribunal Supremo de Elecciones, es que esta Sala Constitucional concluyó que la esfera de lo electoral es "un ámbito constitucional especial, al que no le convienen las mismas reglas que a los demás Poderes Públicos" (sentencia número 3194-92, de las 16:00 del 27 de octubre de 1992). A modo de ejemplo, debemos hacer referencia obligada a la competencia reglamentaria que se la jurisprudencia constitucional le ha reconocido únicamente en relación con la materia propia de su competencia, obviamente la actividad electoral:

(…)

IV.- DEL ÁMBITO DE COMPETENCIA DEL TRIBUNAL SUPREMO DE ELECCIONES: LA MATERIA ELECTORAL A LA LUZ DE LA JURISPRUDENCIA CONSTITUCIONAL. En reiteradas ocasiones esta Sala se ha manifestado acerca de la especial competencia del Tribunal Supremo de Elecciones, la cual es definida por propia disposición constitucional –artículos 9 y 99 de la Constitución Política- como la materia electoral; y en este sentido se pueden consultar las sentencias números 0980-91, 2150-92, 3194-92, 2430-94, 2456-96, 0034-98, 0466-98, 0563-98 y 0969-98. En todas estas resoluciones reconoce la competencia exclusiva que tiene en materia electoral, es y únicamente cuando éste deniegue su competencia que consideró que la Sala Constitucional puede conocer de esa materia, siempre y cuando se alegue que los actos impugnados lesionan derechos fundamentales:

(…) De esta suerte, ha indicado que la actividad electoral comprende las de organizar, dirigir y fiscalizar todos los actos relativos con el proceso de elecciones nacionales (sentencia número 0653-98), la cual se desarrolla en actividades tales como las siguientes, es decir, sin que ello implique una lista limitada, a modo de ejemplo: la regulación de las normas que rigen la deuda política, así como el control que sobre esta materia tiene el Tribunal Supremo de Elecciones en esta materia (0980-91, 3666-93, 0515-94, 0428-98); el control de las regulaciones estatutarias relativas al derecho de elegir y ser elegido en los procesos internos de los partidos políticos (sentencia número 3294-92); la integración del Consejo Municipal, la declaratoria de la elección y las posteriores sustituciones por pérdidas de credenciales de los regidores y síndicos municipales (sentencia número 2430-94); la tramitación del proceso contencioso electoral para conocer de la cancelación o anulación de credenciales de regidores municipales (sentencia número 0034-98); el cierre de negocios comerciales en los que se expende licor y que se encuentran ubicados en el centro de la ciudad de San José a consecuencia de la realización de las plazas públicas que celebran los partidos políticos (sentencia número 0466-98); y la determinación por parte del Tribunal Supremo de Elecciones de donde realizará la celebración solemne el día de las elecciones, para el conteo inicial de los resultados de las elecciones nacionales (0563-98).” Ahora bien, en lo referente específicamente al régimen de empleo público, aplicable al TSE, lo cierto es que no se tienen precedentes concretos sobre esa materia. Aunque sí cabe remitir, nuevamente, al voto n° 550-1991, en cuanto se dispuso:

“(…) en el caso de los poderes, su propia independencia constitucional, garantizada en general por el artículo 9° de la Constitución y, en los del Poder Judicial y del Tribunal Supremo de Elecciones por las de los artículos 99 y siguientes, 152 y siguientes y 177 de la misma, así como sus propias normas orgánicas, imponen a sus jerarcas la atribución y la responsabilidad de fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos, dentro, naturalmente, de sus disponibilidades presupuestarias, independientemente, desde luego, de que sus montos puedan coincidir o no con los de los diputados.” También cabe citar el voto n° 2005-14298 (que conoció de una acción contra el plazo de nombramiento del Oficial Mayor del Registro Civil). En dicho voto la Sala resolvió la acción con expreso sustento en los artículos 191 y 192 de la Constitución Política. Se reiteró que si bien la Constitución hace referencia a un estatuto de servicio civil, lo cierto es que:

“(…) El legislador derivado, optó sin embargo, por regular el servicio no de modo general, sino por sectores, promulgando así el Estatuto de Servicio Civil (que se aplica a los servidores del Poder Ejecutivo) y posteriormente, otros estatutos para regular la prestación de servicios en los restantes poderes del Estado y en algunas instituciones descentralizadas. No obstante, a pesar de que el legislador no recogió la idea del constituyente y reguló sólo parcialmente el servicio público, es lo cierto que los principios básicos del régimen (escogencia por idoneidad, estabilidad en el empleo), cubren a todos los funcionarios al servicio del Estado, tanto de la administración central, como de los entes descentralizados. (…) Se repite que la intención del constituyente originario fue la existencia una sola ley, un Estatuto, que regulara todo el empleo público. No obstante, lo importante es que se delegó en el legislador derivado, la regulación en detalle de la cobertura del régimen especial, lo cual podía hacer, como lo hizo, en leyes separadas, sin detrimento del mandato constitucional.” También se indicó:

“(…) En un Tribunal como éste, donde la materia electoral es su esencia, los principios constitucionales del régimen de empleo público de estabilidad e idoneidad comprobada, deben ser resguardados con mayor celo, por cuanto la intención del constituyente al crear este Poder, fue cercenar por completo la posibilidad de que los funcionarios electorales, se inmiscuyeran en toda actividad política, con el fin de garantizar un Órgano Electoral independiente.” De todo lo antes expuesto se concluye que, al Tribunal Supremo de Elecciones, como órgano constitucional encargado de organizar, dirigir y fiscalizar la independencia del sufragio, se le otorgó el rango y la independencia propios de un poder del Estado. Por ello goza de plena independencia para cumplir sus cometidos constitucionales. Debido a los problemas electorales que motivaron la revolución de 1948, los miembros de la Asamblea Nacional Constituyente de 1949 tuvieron especial cuidado de la materia electoral, segregando todo lo relativo al sufragio, principalmente de la órbita de los Poderes del Estado, blindando la función electoral por medio de distintos principios y garantías, como lo es en primer lugar, la autonomía de la función electoral. De lo dicho queda claro que el Tribunal Supremo de Elecciones es un órgano constitucional especializado en la materia electoral, que por disposición constitucional goza de la misma independencia de los Poderes del Estado en el ejercicio de sus atribuciones; es decir, tiene plena autonomía para organizar, dirigir y vigilar los procesos electorales y todos los actos relativos al sufragio, con la independencia y rango propios de un Poder estatal. Así, esta Sala Constitucional concluyó que “la esfera de lo electoral es un ámbito constitucional especial, al que no le convienen las mismas reglas que a los demás Poderes Públicos" (sentencia n°2000-06326). Si bien es cierto, los principios constitucionales del régimen de empleo público (idoneidad y estabilidad) también le aplican, se entiende que el TSE cuenta con sus propias normas orgánicas o especiales que les dan competencia exclusiva a sus jerarcas para fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos.

Finalmente, al igual que se indicó supra sobre el Poder Judicial, lo anterior no impide que el Legislador dicte una Ley General de Empleo Público en la que se incluya al TSE, siempre y cuando se respete los principios de separación de poderes o de funciones y de independencia electoral.

• 3)Sobre el examen del Articulado consultado Sobre el artículo 2.a (ámbito de cobertura) respecto del Tribunal Supremo de Elecciones (Redacta el magistrado Castillo Víquez) La norma consultada indica lo siguiente:

“ARTÍCULO 2- Ámbito de cobertura Esta ley es aplicable a las personas servidoras públicas de las siguientes entidades y órganos bajo el principio de Estado como patrono único:

• b)Los Poderes de la República (Ejecutivo, Legislativo y Judicial), sus órganos auxiliares y adscritos, y el Tribunal Supremo de Elecciones (TSE), sin perjuicio del principio de separación de Poderes establecido en la Constitución Política.

(…)” Tal como se dijo para el caso del Poder Judicial, ante tal panorama, y retomando lo que se expuso supra, en el sentido de que es plausible sujetar a todos los poderes del Estado a un único estatuto de empleo público, con lo que la sujeción del Poder Judicial y del Tribunal Supremo de Elecciones a esta ley no resulta inconstitucional, sí es inconstitucional por el hecho de no excluir a los (as) funcionarios (as) que ejercen las funciones jurisdiccionales -jueces- o para- jurisdiccionales -fiscales, defensores públicos y profesionales y personal especializado del Organismo de Investigación Judicial, etc.- y los funcionarios del nivel gerencial o de alta dirección política como los denomina el proyecto de ley, al igual que a los funcionarios del Tribunal Supremo de Elecciones que ejercen función electoral -letrados, directores del Departamentos, profesionales, etc.-, y quienes ejercen cargo de alta dirección política, así como el personal administrativo, profesional y técnico, que defina de forma exclusiva y excluyente cada jerarca del poder respectivo, pues, en estos casos, no es posible someterlo a directrices, disposiciones, circulares, manuales que emita Mideplán. Lo anterior significa, que el Poder Judicial y el Tribunal Supremo de Elecciones sí estaría sometido a esas potestades que la ley le otorga al Mideplán cuando se trata del resto de los funcionarios -los que defina cada jerarca del Poder Judicial y el Tribunal Supremo de Elecciones de manera exclusiva y excluyente-, que forman parte del staff administrativo, auxiliar o personal de apoyo.

Sobre el artículo 6 (rectoría de Mideplán), respecto del Tribunal Supremo de Elecciones (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 6- Creación del Sistema General de Empleo Público La rectoría del Sistema General de Empleo Público estará a cargo del Ministerio de Planificación Nacional y Política Económica (Mideplán). Dicho sistema estará compuesto por lo siguiente:

• a)El Ministerio de Planificación Nacional y Política Económica (Mideplán).
• b)Las oficinas, los departamentos, las áreas, direcciones, unidades o denominaciones homólogas de Gestión de Recursos Humanos de las entidades y los órganos bajo el ámbito de aplicación de la presente ley. (…)” En el mismo sentido en que se indicó para el Poder Judicial, en relación con el artículo 6, inciso b, del proyecto de ley consultado es inconstitucional, toda vez que somete a la potestad de dirección del Poder Ejecutivo al Poder Judicial y al Tribunal Supremo de Elecciones, lo que resulta contrario a los principios de independencia judicial y electoral. De ahí que las oficinas, los departamentos, las áreas, direcciones, unidades de Gestión de Recursos Humanos de estos poderes no pueden estar bajo la citada potestad, excepto en lo que atañe a quienes presten servicios administrativos básicos, auxiliares, que no inciden sobre las competencias exclusivas y excluyentes ni funciones administrativas necesarias para el cumplimiento de estas, definidos, exclusivamente, por los jerarcas del Poder Judicial y el Tribunal Supremo de Elecciones.

Sobre el artículo 7 (competencias de Mideplán), respecto del Tribunal Supremo de Elecciones (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 7- Competencias del Mideplán Son competencias del Ministerio de Planificación Nacional y Política Económica (Mideplan) las siguientes:

• a)Establecer, dirigir y coordinar la emisión de políticas públicas, programas y planes nacionales de empleo público, conforme a la Ley 5525, Ley de Planificación Nacional, de 2 de mayo de 1974.
• b)Establecer mecanismos de discusión, participación y concertación con las corporaciones municipales a través de la Unión de Gobiernos Locales y las instituciones de educación superior universitaria estatal, en materia de empleo público.
• c)Emitir disposiciones de alcance general, directrices y reglamentos, que tiendan a la estandarización, simplificación y coherencia del empleo público, según lo preceptuado en la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• d)Asesorar a las entidades y los órganos incluidos, bajo el ámbito de cobertura de la presente ley, para la correcta implementación de las políticas públicas, las disposiciones de alcance general, las directrices y los reglamentos que se emitan en el marco de la rectoría política en empleo público y la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• e)Administrar y mantener actualizada la plataforma integrada del empleo público.
• f)Publicar la oferta de empleo público, a través de la plataforma virtual que alimentarán las entidades y los órganos incluidos del ámbito de cobertura de la presente ley.
• g)Emitir los lineamientos y principios generales para la evaluación del desempeño.
• h)Administrar e implementar las acciones de investigación, innovación y formulación de propuestas de empleo público.
• i)Dirigir y coordinar la ejecución de las competencias inherentes en materia de empleo público con el Ministerio de Hacienda, el Ministerio de Trabajo y Seguridad Social, la Autoridad Presupuestaria y la Dirección General de Servicio Civil, entre otras dependencias técnicas en la materia de empleo público, lo concerniente a la materia de empleo público.
• j)Recolectar, analizar y divulgar información en materia de empleo público de las entidades y los órganos para la mejora y modernización de estos. A tal efecto, establecerá un sistema de indicadores, mediante el establecimiento de criterios de coordinación, para homogeneizar la recopilación y difusión de datos.
• k)Preparar una estrategia coherente e integral para el aprendizaje y el desarrollo en todo el servicio público, estableciendo cómo se desarrollará la capacidad a largo plazo para estándares de dirección y competencia profesional más altos y proporcionando orientación a las instituciones públicas sobre cómo planificar y aplicar las actividades dentro de la estrategia.
• l)Coordinar con la Procuraduría de la Ética Pública para emitir las disposiciones de alcance general, las directrices y los reglamentos, para la instrucción de las personas servidoras públicas sobre los deberes, las responsabilidades y las funciones del cargo, así como los deberes éticos que rigen la función pública, que resulten procedentes según la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• m)Establecer un sistema único y unificado de remuneración de la función pública de conformidad con esta ley y especifica del salario y los beneficios de todas las personas funcionarias públicas.
• n)Realizar diagnósticos en materia de recursos humanos de las entidades y los órganos incluidos para lograr un adecuado redimensionamiento de las planillas existentes y la elaboración de criterios generales que delimiten los sectores cuya actividad, por su valor estratégico institucional, así como la vinculación con la actividad sustantiva, se debería reservar para que sean realizadas exclusivamente por personas servidoras públicas. Además, analizar los que sirvan de orientación para delimitar la prestación de los que podrían ser externalizados y las condiciones de prestación de estos.
• o)Prospectar las tendencias globales del futuro del empleo público, con el propósito de informar la planificación de este.
• p)Analizar la eficiencia y eficacia de los mecanismos de evaluación, a efectos de determinar si estos cumplen o no su cometido.
• q)Evaluar el sistema general de empleo público en términos de eficiencia, eficacia, economía, simplicidad y calidad.” En el mismo sentido que el Poder Judicial, el artículo 7, incisos d), g) y p) resultan inconstitucionales, pues afectan la independencia del Poder Judicial y del Tribunal Supremo de Elecciones, en cuanto los somete a la potestad de dirección y reglamentaria de Mideplán, así como a la verificación de si cumplen o no con el cometido de la evaluación del desempeño y no se excluye de la potestad de dirección. Hay que enfatizar que el principio de separación de poderes o funciones es incompatible con la potestad de dirección y reglamentación que ejerce el Poder Ejecutivo, toda vez que no puede ordenar su actividad, estableciendo metas y objetivos. En lo que atañe a la evaluación del desempeño, queda reserva a cada poder del Estado, toda vez que esta materia es consustancial al ejercicio de sus competencias constitucionales. Quiere esto decir, que, en lo tocante a este extremo, todo el funcionariado de cada poder estaría sometido a las disposiciones internas que cada uno de estos dicten al respecto.

Sobre el artículo 9.a.- Oficinas de Recursos Humanos respecto del Tribunal Supremo de Elecciones (Redacta la magistrada Picado Brenes) El artículo consultado establece lo siguiente:

“ARTÍCULO 9- Funciones de las administraciones activas a) Las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos, de las instituciones incluidas en el artículo 2 de la presente ley, seguirán realizando sus funciones de conformidad con las disposiciones normativas atinentes en cada dependencia pública.

Asimismo, aplicarán y ejecutarán las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que el Ministerio de Planificación Nacional y Política Económica (Mideplán) remita a la respectiva institución, según la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

• b)Es responsabilidad de las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos elaborar y aplicar las pruebas de conocimientos, competencias y psicométricas, para efectos de los procesos de reclutamiento y selección de personal, efectuar los concursos internos y externos por oposición y méritos, los cuales deberán cumplir siempre al menos con los estándares que establezca la Dirección General del de Servicio Civil para cada puesto, según su ámbito de competencia, y los lineamientos que se emitan según el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

Además, incorporar dichos concursos en la oferta de empleo público de la Administración Pública y verificar que las personas servidoras públicas reciban la inducción debida sobre los deberes, las responsabilidades y las funciones del puesto, así como los deberes éticos de la función pública generales y particulares de la institución y puesto.

• c)Las oficinas de gestión institucional de recursos humanos, de ministerios e instituciones u órganos adscritos bajo el ámbito de aplicación del Estatuto de Servicio Civil, son dependencias técnicas de la Dirección General de Servicio Civil que, para todos los efectos, deberá coordinar la elaboración de las pruebas de reclutamiento y selección de personal con tales oficinas y desempeñar sus funciones de asesoramiento, capacitación y acompañamiento técnico.” Tal como se observa, el artículo 9 consultado establece ciertas funciones para todas las oficinas, departamentos, áreas, direcciones o las unidades de recursos humanos, de todas las instituciones incluidas en el proyecto, en cuenta, para Recursos Humanos del TSE. Así entonces, en lo que se refiere propiamente a la consulta realizada en cuanto al TSE, el segundo párrafo del inciso a) le impone a Recursos Humanos que aplique y ejecute las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que Mideplán le remita. Lo cual, implicaría que un órgano del Poder Ejecutivo, como lo es Mideplán, le imponga al TSE la aplicación y ejecución de sus disposiciones, directrices y reglamentos, y en materias que son resorte exclusivo de ese órgano constitucional, como lo es la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación o salarios y la gestión de las relaciones laborales. Siendo claramente tal obligación para Recursos Humanos del TSE una violación al principio de separación de poderes, conforme los alcances que la jurisprudencia constitucional le ha dado a tal principio básico de nuestra democracia. Recuérdese que, el principio de división de poderes, o como se le conoce más recientemente, principio de separación de funciones, está consagrado en el artículo 9 de la Constitución Política y se erige en “uno de los pilares fundamentales del Estado Democrático, en tanto establece un sistema de frenos y contrapesos que garantiza el respeto de los valores, principios y normas constitucionales en beneficio directo de los habitantes del país.” (sentencia n°2006-013708), y que el TSE tiene el rango e independencia propia de un poder de la República (sentencia n°3194-1992). Lo cual implica que, cada Poder del Estado pueda ejercer su función con independencia de los otros (sentencia n°6829-1993). Así el TSE, por su rango de poder del Estado, tiene poderes de organización y dirección propios (sentencia n°2000-06326); además, tiene “sus propias normas orgánicas, imponen a sus jerarcas la atribución y la responsabilidad de fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos…” (sentencia n°550-1991). Ello por cuanto, “…el Régimen del Empleo Público, es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones.” (sentencia n°03575-1996). Por todo lo anterior, se considera que el párrafo primero del artículo 9 consultado resulta violatorio del principio de separación de poderes, en este caso, propiamente del TSE.

Sobre el inciso a) del artículo 13, Familia de puestos respecto del Tribunal Supremo de Elecciones (Redacta la magistrada Picado Brenes) Se procede a examinar el inciso a) del artículo 13 del proyecto, respecto de su aplicación al TSE, ello por cuanto, así fue expresamente consultado por los diputados. Recuérdese que, esta Sala, en materia de consultas facultativas de constitucionalidad, procede a pronunciarse únicamente sobre los temas consultados.

Tal como se observa, el artículo 13 del proyecto establece un único régimen de empleo público, conformado por ocho familias de puestos. En el inciso a) se incluye a “las que se desempeñan en las instituciones señaladas en el artículo 2 de la presente ley, que no estén incluidas en las restantes familias de puestos.” En este caso, tratándose del TSE, se incluye a los magistrados como una familia de puestos (según el inciso f), y todo el resto de funcionarios del TSE dentro de esta primera familia de puestos (inciso a) o dentro de la familia de los puestos de confianza (inciso h). Recuérdese que este inciso h) no está siendo conocido en esta consulta, por lo cual, no se emite pronunciamiento particular sobre esta norma en concreto. Ahora bien, al haberse dejado únicamente a los magistrados como una familia aparte, el resto de funcionarios que no sean de confianza, que correspondan a puestos administrativos de apoyo, profesional y técnico, quedarían dentro de la misma familia que el resto de funcionarios incluidos dentro del Estatuto de Servicio Civil. Ello resulta claramente inconstitucional, con vista en las razones siguiente: En primer lugar, se está dividiendo al personal del TSE pese a que todos coadyuvan al cumplimiento de la función electoral. Solo a los magistrados estarían dentro del grupo indicado en el inciso f), pero todo el resto de funcionarios, que también coadyuvan al ejercicio de esta función tan importante para la democracia costarricense, quedarían integrando otro grupo de familia de puestos. En segundo lugar, todos los funcionarios del TSE que coadyuvan a la función electoral, directamente o por apoyo, requieren contar con toda la independencia de criterio en sus actuaciones. Incluir una parte importante de estos funcionarios junto a otros, que pertenecen a los otros poderes de la República y a otras instituciones, es una situación que pone en riesgo esa independencia de criterio. Máxime si se toma en cuenta que, para ese grupo de familia de puestos será Mideplán (órgano del Poder Ejecutivo) quien emitiría los lineamientos para el proceso de reclutamiento, selección, evaluación, compensación, etc. Es decir, se trataría de casi la totalidad de funcionarios del TSE que estarían totalmente sometidos a las directrices de Mideplán, lo cual es violatorio de la independencia de Poderes, en los términos indicados supra. Claramente una disposición de tal naturaleza es contraria al Derecho de la Constitución. El TSE, como órgano con rango de Poder del Estado, debe gozar de plena independencia en el ejercicio de sus funciones, lo cual implica, independencia para el manejo de su personal. En este caso, con mucho mayor celo que el resto de personal del Servicio Civil, puesto que “la intención del constituyente al crear este Poder, fue cercenar por completo la posibilidad de que los funcionarios electorales, se inmiscuyeran en toda actividad política, con el fin de garantizar un Órgano Electoral independiente.” (sentencia n°2005-14298). Ello no sería posible si se incluye a todo el personal del TSE dentro del mismo grupo de familia de puestos que el resto de los funcionarios del Servicio Civil. Nótese que tales funcionarios del TSE tienen asignadas funciones tan importantes para la actividad electoral como: organizar, dirigir y fiscalizar todos los actos relativos con el proceso de elecciones nacionales; la regulación de las normas que rigen la deuda política, así como el control sobre esta materia; el control de las regulaciones estatutarias relativas al derecho de elegir y ser elegido en los procesos internos de los partidos políticos; la integración del Concejo Municipal; la declaratoria de la elección y las posteriores sustituciones por pérdidas de credenciales de los regidores y síndicos municipales; la tramitación del proceso contencioso electoral para conocer de la cancelación o anulación de credenciales de regidores municipales; el cierre de negocios comerciales en los que se expende licor y que se encuentran ubicados en el centro de la ciudad de San José a consecuencia de la realización de las plazas públicas que celebran los partidos políticos; la determinación de donde realizará la celebración solemne el día de las elecciones, para el conteo inicial de los resultados de las elecciones nacionales; entre muchas otras. Todo lo cual requiere de la garantía de independencia en el manejo de este personal, que no puede quedar unido a la misma familia de puestos que el resto de los servidores públicos del Servicio Civil. Debe tomarse en cuenta que, al pasar a formar parte del servicio civil, a los funcionarios del TSE se les aplicarían las mismas normas que se le aplican a los funcionarios del Poder Ejecutivo que integran el servicio civil, en cuenta los traslados o la movilidad (art.12), entre otros. Lo cual agrava la situación y atenta contra la máxima de mantener la función electoral como una función independiente, al margen de injerencias de los otros Poderes. Así, se constata que el artículo 13 inciso a) es inconstitucional, respecto del Tribunal Supremo de Elecciones, pues casi todos los funcionarios de ese órgano pasarían al Servicio Civil, con excepción de sus magistrados y los empleados que se desempeñen en cargos de confianza. Por ello, considera esta Sala que, el artículo 13 inciso a) es inconstitucional, respecto del TSE -pues fue el único órgano que se consultó sobre este inciso-, pues casi todos los funcionarios de ese órgano pasarían al Servicio Civil.

Sobre el inciso f) del artículo 13 (familias de puestos), respecto del Tribunal Supremo de Elecciones (Redacta el magistrado Castillo Víquez) Se consulta sobre la norma siguiente:

“ARTÍCULO 13- Régimen general de empleo público Existirá un único régimen general de empleo público, el cual a su vez estará conformado por las siguientes ocho familias de puestos que serán de aplicación en los órganos y entes de la Administración Pública, según las funciones que ejecute su personal:

• a)Personas servidoras publicas bajo el ámbito de aplicación del título I y del título IV del Estatuto de Servicio Civil, así como a las que se desempeñan en las instituciones señaladas en el artículo 2 de la presente ley, que no estén incluidas en las restantes familias de puestos.
• b)Personas servidoras públicas que se desempeñan en funciones en ciencias de la salud.
• c)Personas servidoras públicas que se desempeñan en funciones policiales.
• d)Personas docentes contempladas en el Estatuto del Servicio Civil, del título II y el título IV.
• e)Personas docentes y académicas de la educación técnica y superior.
• f)Personas que administran justicia y los magistrados del Tribunal Supremo de Elecciones (TSE).
• g)Personas servidoras públicas que se desempeñan en funciones del servicio exterior.
• h)Personas servidoras públicas que se desempeñan en cargos de confianza.

La creación de familias de puestos de empleo público es reserva de ley y deberá estar justificada por criterios técnicos y jurídicos coherentes con una eficiente y eficaz gestión pública.

En todas las categorías descritas con anterioridad, la administración pública superior, por medio de las oficinas o los departamentos de salud ocupacional, deberá contar en cada entidad pública, según lo establece el artículo 300 del Código de Trabajo y su reglamento, con el diagnóstico de sus condiciones de trabajo, el programa de salud ocupacional y cuando existan condiciones de trabajo adversas a su salud deberán crearse los respectivos protocolos de seguridad para salvaguarda de su vida, que será validado a lo interno de esta y con el respectivo aval del Consejo de Salud Ocupacional, para lo cual se le brindará el recurso humano necesario. Dicha instancia dependerá administrativamente de manera directa del jerarca.

En el mismo sentido en que se indicó para el Poder Judicial, en cuanto al inciso f) del artículo 13 es inconstitucional porque no excluye a los funcionarios que realizan funciones para-jurisdiccionales -fiscales, defensores públicos y profesionales y personal especializado del Organismo de Investigación Judicial, etc.- y los funcionarios del nivel gerencial o de alta dirección política, al igual a que los funcionarios del Tribunal Supremo de Elecciones que ejercen función electoral -letrados, directores del Departamentos, profesionales, etc.-, y quienes ejercen cargos de alta dirección política. Además, no se excluye a todo el funcionario administrativo de apoyo, profesional y técnico, que los máximos órganos de los citados poderes del Estado definan, de forma exclusiva y excluyente, como indispensables o consustanciales para el ejercicio de sus competencias constitucionales. Máxime que, de conformidad con ese mismo artículo, inciso a), todos esos funcionarios quedarían incluidos en una categoría del Estatuto de Servicio Civil, lo que afecta la independencia tanto del Poder Judicial como del Tribunal Supremo de Elecciones partiendo del hecho de que el gobierno judicial y electoral lo ejerce la Corte Suprema de Justicia y el Tribunal Supremo de Elecciones de forma exclusiva y excluyente en lo que atañe a sus competencias constitucionales. Finalmente, hay que tener presente que la construcción de la familia, tal y como se explicó supra, corresponde, de forma exclusiva y excluyente, a cada poder del Estado.

Sobre el artículo 14.- Reclutamiento y selección respecto del Tribunal Supremo de Elecciones (Redacta la magistrada Picado Brenes) En igual sentido que respecto del Poder Judicial, los consultantes refieren que se lesiona el principio de independencia y la autonomía del Tribunal Supremo de Elecciones, al pretender someterlo también a las disposiciones que emite un órgano del Poder Ejecutivo, en lo relativo al reclutamiento y selección de su personal. El ordinal 14 en cuestión, dispone lo siguiente:

“ARTÍCULO 14- Reclutamiento y selección El reclutamiento y la selección de las personas servidoras públicas de nuevo ingreso se efectuará con base en su idoneidad comprobada, para lo cual el Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá, con absoluto apego a la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las disposiciones de alcance general, las directrices y los reglamentos, según la respectiva familia de puestos.

En los procesos de reclutamiento y selección no podrá elegirse a un postulante que se encuentre en alguna de las siguientes situaciones:

• a)Estar ligado por parentesco de consanguinidad o de afinidad en línea directa o colateral, hasta tercer grado inclusive, con la jefatura inmediata ni con las personas superiores inmediatas de esta en la respectiva dependencia.
• b)Encontrarse enlistada en el registro de personas inelegibles de la plataforma integrada de empleo público.” En igual sentido que se consultó respecto del Poder Judicial, los consultantes refieren que se lesiona el principio de independencia y la autonomía del TSE, al pretender someterlo también a las disposiciones que emite un órgano del Poder Ejecutivo, en lo relativo al reclutamiento y selección de su personal. Tal y como ya fue debidamente acreditado, conforme lo dispuesto en los ordinales 2 y 13 del mismo proyecto de ley, y según lo dispuesto en este artículo 14, el Tribunal Supremo de Elecciones también se vería sujeto a las disposiciones de alcance general, las directrices y los reglamentos que emita Mideplán en relación con el reclutamiento y la selección del personal de nuevo ingreso, lo cual deviene en inconstitucional. El artículo 9 de la Constitución expresa con claridad, que el TSE fue creado por los constituyentes con el rango e independencia de los Poderes del Estado, al cual se le asignó, en forma exclusiva e independiente, la organización, dirección y vigilancia de los actos relativos al sufragio, así como las demás funciones que le atribuyen la Constitución y las leyes, lo cual ha sido plenamente reconocido en la jurisprudencia de este Tribunal (véanse las sentencias n°1992-3194, 1998-495, 2000-6326, y 2012-9139, entre otras). En ese sentido, resulta igualmente inválida cualquier intromisión externa de otro poder en los aspectos propios del Tribunal Supremo de Elecciones, que lesione tal independencia. El Constituyente confirió a este órgano un grado de autonomía tal, para asegurar el debido ejercicio de su función electoral y de aquellas otras funciones administrativas esenciales que dan soporte e imparcialidad a su función principal. Bajo ese entendido, no es posible admitir que un órgano del Poder Ejecutivo, en este caso Mideplán, le imponga al Tribunal Supremo de Elecciones, disposiciones relativas a los procesos de reclutamiento y selección de su personal, materia que, tal y como se ha señalado, es consustancial al grado de autonomía e independencia de la que gozan estos órganos constitucionales. Al igual que en otros supuestos de este proyecto de ley, aun cuando el artículo 2 refiere que el ámbito de cobertura lo es “sin perjuicio del principio de separación de Poderes establecido en la Constitución Política”, el artículo 14 se aplicaría al Tribunal Supremo de Elecciones. En consecuencia, tal ordinal contiene un vicio de inconstitucionalidad, en tanto resulte aplicable al Tribunal Supremo de Elecciones.

Sobre el artículo 17.- Personal de Alta Dirección respecto del Tribunal Supremo de Elecciones (redacta la magistrada Picado Brenes) El artículo consultado establece lo siguiente:

“ARTÍCULO 17- Personal de la alta dirección pública El Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá las disposiciones de alcance general, las directrices, y los reglamentos, en materia del personal de la alta dirección pública, que sean acordes con la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, para dotar a la Administración Pública de perfiles con integridad y probada capacidad de gestión, innovación y liderazgo, para procurar el mejoramiento de la prestación de bienes y servicios públicos. (…)” Los consultantes señalan la lesión al principio de separación de funciones y a la independencia del TSE, por cuanto en esta norma se dispone que, tratándose de puestos de alta dirección será Mideplán quien emita las disposiciones de alcance general, directrices y reglamentos al respecto. En el mismo sentido en que esta Sala ha venido resolviendo estos aspectos, la injerencia de este Ministerio, que es un órgano del Poder Ejecutivo, emitiendo disposiciones de alcance general, directrices y reglamentos al TSE en materia de los puestos de alta dirección, resulta violatorio del principio de separación de poderes. Nótese que, estos son puestos estratégicos de gran importancia para su debida organización, tales como podrían ser la Dirección Ejecutiva, la Dirección General del Registro Civil, la Dirección General del Registro Electoral y Financiamiento de Partidos Políticos, entre otros. En atención a ello y a la imparcialidad que debe revestir este órgano constitucional, es al propio TSE a quien corresponde valorar las necesidades del servicio que presta y determinar las condiciones en que deben ser ocupados esos puestos, para dar cumplimiento a los fines constitucionales que le han sido asignados. Puestos que son de gran relevancia, que deben estar particularmente protegidos de la injerencia de otros Poderes de la República, y que requieren la estabilidad del personal necesaria para un adecuado e imparcial desempeño del cargo, lo cual es incompatible con una subordinación a las disposiciones que emita al respecto el Mideplán, como lo dispone la norma en cuestión. Siendo competente al respeto el mismo TSE, como esta Sala lo ha indicado antes:“… sea el Régimen del Empleo Público, es posible concluir que el órgano estatal competente en esta materia es cada poder de la República, dado que son estos- Ejecutivo, Legislativo, Judicial y Tribunal Supremo de Elecciones- los más capacitados para determinar sus necesidades y conocer sus particularidades condiciones.” (sentencia n°03575-1996). Por ende, se considera existe un vicio de inconstitucionalidad en el artículo 17 objeto de consulta, en los términos expuestos.

Sobre el artículo 18.- Plazo de prueba y plazo de nombramiento del personal de Ata Dirección respecto del Tribunal Supremo de Elecciones (redacta la magistrada Picado Brenes) En criterio de los consultantes, el ordinal 18 consultado resulta inconstitucional, por cuanto incide en materia que es propia de la competencia del Tribunal Supremo de Elecciones, al establecer que, tratándose de puestos de alta dirección técnica, el nombramiento será por 6 años con un período de prueba de 6 meses, prorrogables anualmente, sujetas a la evaluación de desempeño. El artículo 18 consultado dispone lo siguiente:

“ARTÍCULO 18- Nombramiento y período de prueba de la alta dirección pública Toda persona servidora pública, que sea nombrada en puestos de alta dirección pública, estará a prueba durante el período de seis meses y su nombramiento se efectuará por un máximo de seis años, con posibilidad de prórroga anual, la cual estará sujeta a los resultados de la evaluación del desempeño. (…)” Sobre este particular, resulta de aplicación lo ya indicado en relación con el Poder Judicial, en el sentido de que la regulación de aspectos relativos al nombramiento y selección de personal, tal como también ocurre con los puestos de alta dirección técnica, el período de prueba, plazo o condiciones de prórroga de los nombramientos, son regulaciones propias y atinentes a la autonomía organizacional y administrativa del TSE. Se entiende que los puestos de alta dirección técnica, definidos por el propio TSE, son puestos estratégicos de gran importancia para su debida organización, tales como podrían ser la Dirección Ejecutiva, la Dirección General del Registro Civil, la Dirección General del Registro Electoral y Financiamiento de Partidos Políticos, entre otros. En atención a ello y a la imparcialidad que debe revestir este órgano constitucional, es a este a quien corresponde, el valorar las necesidades del servicio que presta y determinar las condiciones en que deben ser ocupados esos puestos, para dar cumplimiento a los fines constitucionales que le han sido asignados, en respeto de la independencia reconocida, siempre y cuando atienda al principio de idoneidad. En su caso, por ejemplo, la conveniencia del período de nombramiento de esos puestos o las condiciones de prórroga podrían estar sujetas o no a períodos electorales, o atender una condición de mayor estabilidad en el puesto como la garantizada en el ordinal 192 constitucional. Todo de acuerdo a su normativa interna, y no, a una normativa genérica como la que se pretende en este proyecto de ley. La definición de tales condiciones es competencia exclusiva a este órgano constitucional especializado. De modo que, en los términos en que está dispuesto el artículo 18 consultado, contiene un vicio de inconstitucionalidad, por violentar el principio de independencia del TSE, a quien le corresponde de manera exclusiva la definición de las condiciones en que se deben desempeñar sus puestos de alta dirección.

Sobre el artículo 21 (régimen único de despido) y el artículo 22 (proceso de despido) respecto del Tribunal Supremo de Elecciones (redacta la magistrada Picado Brenes) Los artículos consultados establecen lo siguiente:

“ARTÍCULO 21- Procedimiento de despido Será causal de despido inmediato, aplicable a toda persona servidora pública, obtener dos evaluaciones del desempeño consecutivas inferiores a una calificación del setenta por ciento (70%), que se encuentren en firme, una vez agotado el procedimiento de impugnación de la calificación y siempre que se haya acreditado la responsabilidad de la persona servidora pública por dicha evaluación deficiente. Dicha calificación deberá ser debidamente justificada por la jefatura inmediata que la asigne y por la autoridad jerárquica que la confirme, en caso de haber sido recurrida.

Las entidades y los órganos incluidos deberán aplicar planes remediales pactados con la persona servidora pública, y con el asesoramiento de recursos humanos que les permitan determinar las causas por las que las personas servidoras públicas obtienen una calificación inferior al setenta por ciento (70%) y aplicar acciones para mejorar su desempeño. Si pese a la aplicación del plan remedial, la persona servidora pública no logra mejorar su desempeño y obtiene de forma consecutiva otra calificación inferior al setenta por ciento (70%), se configurará la causal de despido inmediato.

Las entidades y los órganos incluidos deberán aplicar planes remediales que les permitan determinar las causas por las que las personas servidoras públicas obtienen una calificación inferior al setenta por ciento (70%) y aplicar acciones para mejorar su desempeño. Si pese a la aplicación del plan remedial, la persona servidora pública no logra mejorar su desempeño y obtiene de forma consecutiva otra calificación inferior al setenta por ciento (70%), se configurará la causal de despido inmediato.

Todo despido justificado se entenderá sin responsabilidad para la Administración Pública y hará perder a la persona servidora pública todos los derechos que esta ley y la normativa aplicable en cada familia de puestos le concede, excepto las proporciones de los extremos laborales que correspondan y los adquiridos conforme a los regímenes de pensiones vigentes, siempre que se realice con observancia de las siguientes reglas:

• a)En todas las dependencias bajo el ámbito de aplicación de esta ley se aplicará un único procedimiento administrativo especial de despido, que garantice la satisfacción del debido proceso y sus principios, el cual deberá ser concluido por acto final en el plazo de dos meses, a partir de su iniciación. La investigación preliminar, en los casos en que se requiera, no dará inicio al procedimiento indicado en el párrafo anterior; no obstante, esta deberá iniciar, bajo pena de prescripción, a más tardar en el plazo de un mes a partir de que el jerarca o la jerarca tenga conocimiento, sea de oficio o por denuncia, de la posible comisión de una falta de uno de sus servidores. El mismo plazo de un mes de prescripción se aplicará si, iniciada la mencionada investigación preliminar, esta permanece paralizada por culpa de la Administración.

Para efectos del plazo de dos meses señalado en el primer párrafo de este inciso, el procedimiento ordinario de despido dará inicio a partir de que el jerarca institucional adopte la decisión de iniciar dicho procedimiento con el nombramiento del órgano director del proceso.

• b)Recibida, por parte del jerarca institucional, queja o denuncia o informado de presunta falta que, en su criterio, amerite el inicio de un procedimiento de despido, este nombrará un órgano director del proceso, el cual formulará por escrito los cargos y dará traslado a la persona servidora pública por un término de quince días, para evacuar toda la prueba ofrecida en una audiencia oral y privada, que notificará personalmente por el correo electrónico institucional del funcionario, correo certificado o por medio de publicación por una única vez en el diario oficial La Gaceta, cuando se demuestre que no existe forma de localizar al presunto infractor. Dentro del plazo indicado, la persona servidora pública deberá presentar, por escrito, sus descargos y podrá ofrecer toda la prueba que considere oportuna para respaldar su defensa, sea documental, testimonial o de cualquier otra índole en abono de estos, así como las excepciones o incidentes que considere oportunos.
• c)Si vencido el plazo que determina el inciso anterior, el servidor no hubiera presentado oposición o si expresamente hubiera manifestado su conformidad con los cargos que se le atribuyen, el jerarca institucional dictará la resolución de despido sin más trámite, salvo que pruebe no haber sido notificado por el órgano director del proceso o haber estado impedido por justa causa para oponerse.
• d)Si el cargo o los cargos que se hacen al empleado o empleada o persona servidora pública implica su responsabilidad penal o cuando sea necesario para el buen éxito del procedimiento administrativo disciplinario de despido o para salvaguardia del decoro de la Administración Pública, el jerarca institucional podrá decretar, en resolución motivada, la suspensión provisional de la persona servidora pública en el ejercicio del cargo. Si se incoara proceso penal en contra de la persona servidora pública, dicha suspensión podrá decretarse en cualquier momento como consecuencia de auto de detención o de prisión preventiva, o sentencia en firme con pena privativa de libertad.
• e)Si el interesado se opusiera dentro del término legal, el órgano director del proceso resolverá las excepciones previas que se hayan presentado y convocará a una comparecencia oral y privada, ante la Administración, en la cual se admitirá y recibirá toda la prueba y alegatos de las partes que sean pertinentes. Asimismo, podrán realizarse antes de la comparecencia las inspecciones oculares y periciales. Se podrá convocar a una segunda comparecencia únicamente cuando haya sido imposible en la primera dejar listo el expediente para su decisión final, y las diligencias pendientes así lo requieran.
• f)Si la persona servidora pública incurriera en nueva causal de despido durante el período de instrucción, se acumularán los cargos en el expediente en trámite y se procederá conforme a lo establecido en este capítulo.
• g)Evacuadas las pruebas, resueltas las excepciones previas presentadas dentro del plazo de los diez días otorgados para oponerse al traslado de cargos y presentadas las conclusiones por las partes o vencido el plazo para ello, se tendrá el expediente debidamente instruido y se elevará el informe respectivo al jerarca institucional para que dicte resolución definitiva.
• h)El jerarca o la jerarca institucional resolverá el despido de la persona servidora pública o declarará la falta de mérito y ordenará el archivo del expediente en este último supuesto. No obstante, en caso de considerar que la falta existe pero que la gravedad de esta no amerita el despido, ordenará una amonestación oral, una advertencia escrita o una suspensión sin goce de salario hasta por un mes, según la gravedad de la falta.
• i)Contra la resolución que ordene la amonestación oral, la advertencia escrita o la suspensión sin goce de salario, hasta por un mes, podrán interponerse los recursos ordinarios de revocatoria con apelación en subsidio, cuando este último resulte procedente, en un plazo de cinco días, contado a partir del día siguiente en que sea notificada dicha resolución. Ambos recursos podrán interponerse en forma conjunta o separada ante el órgano que emite la resolución, quien resolverá el recurso de revocatoria.

En el caso de las personas servidoras públicas que laboran en una institución cubierta por la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953, el recurso de apelación será resuelto por el Tribunal de Servicio Civil. El jerarca o la jerarca remitirá en alzada, al Tribunal de Servicio Civil, el expediente del procedimiento administrativo correspondiente donde conste la resolución de sanción así como la resolución del recurso de revocatoria, con expresión de las razones legales y de los hechos en que se fundamentan ambas resoluciones.

• j)Los casos no previstos en el presente procedimiento, en cuanto no contraríen el texto y los principios procesales que contiene este procedimiento, se resolverán aplicando supletoriamente, según el siguiente orden: la Ley 6227, Ley General de la Administración Pública, las normas del derecho público, los principios generales del derecho público, el Código de Trabajo, el Código Procesal Civil, los principios y las leyes del derecho común, la equidad, las costumbres y los usos locales.

Las instituciones de educación superior universitaria estatal emitirán normativa interna que regule esta materia, de conformidad con los artículos 84, 85 y 87 y el principio de debido proceso contenidos en la Constitución Política; en caso de que no exista normativa institucional al respecto aplicará, supletoriamente, la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las normas de derecho público, los principios generales del derecho público, el Código de Trabajo y el Código Procesal Civil.

ARTÍCULO 22- Fase recursiva Contra la resolución de despido emitida por el jerarca o la jerarca se tendrá un plazo improrrogable de cinco días hábiles, contado a partir de la notificación de la resolución para interponer el recurso de revocatoria y/o el recurso de apelación en subsidio, cuando este último resulte procedente, los cuales se resolverán con arreglo a las siguientes disposiciones:

• a)Si vencido el plazo de cinco días indicados anteriormente no se recurriera la resolución, esta quedará en firme y dará por agotada la vía administrativa.
• b)Si solo se interpuso recurso de revocatoria, lo resuelto por el jerarca o la jerarca será definitivo, la resolución quedará en firme y dará por agotada la vía administrativa.
• c)Si se interponen ambos recursos ordinarios a la vez, se tramitará la apelación, una vez declarada sin lugar la revocatoria.
• d)En el caso de las personas servidoras públicas que laboran en una institución cubierta por la Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953, el recurso de apelación se concederá en ambos efectos ante el Tribunal de Servicio Civil. El jerarca o la jerarca remitirá en alzada, al Tribunal de Servicio Civil, el expediente del procedimiento administrativo de despido, donde conste la resolución de despido de la persona servidora pública, así como la resolución del recurso de revocatoria, con expresión de las razones legales y de los hechos en que se fundamentan ambas resoluciones.

Si únicamente se interpuso el recurso de apelación, el jerarca o la jerarca remitirá en alzada, al Tribunal de Servicio Civil, el expediente del procedimiento administrativo de despido donde conste la resolución de despido de la persona servidora pública, con expresión de las razones legales y de los hechos en que se fundamenta dicha resolución.

La resolución que adopte el Tribunal del Servicio Civil en alzada será definitiva, la resolución quedará en firme y agotará la vía administrativa. Dicho fallo es vinculante para el jerarca o la jerarca institucional.

Autorizado el despido por resolución firme, el jerarca o la jerarca institucional tendrá un plazo de caducidad de un mes, contado a partir de la notificación de dicha resolución, para hacerlo efectivo. Para la ejecución del despido por parte del jerarca o la jerarca no se requiere acuerdo adicional, basta la comunicación del cese de su condición de funcionaria a la persona servidora, con base en la resolución firme dictada.

Si el Tribunal de Servicio Civil revocara la sentencia dictada por el jerarca o la jerarca institucional, dictará en el mismo acto nuevo fallo y resolverá si procede la restitución del empleado en su puesto, con pleno goce de sus derechos y el pago en su favor de los salarios caídos.

En caso de que el Tribunal de Servicio Civil considere que la falta existe pero que la gravedad de esta no amerita el despido, podrá ordenar una amonestación oral, una advertencia escrita o una suspensión sin goce de salario hasta por un mes.

Las instituciones de educación superior universitaria estatal emitirán normativa interna que regule esta materia, de conformidad con los artículos 84, 85 y 87 y el principio de debido proceso contenidos en la Constitución Política; en caso de que no exista normativa institucional al respecto, aplicará supletoriamente la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las normas de derecho público, los principios generales del derecho público, el Código de Trabajo y el Código Procesal Civil.” Los diputados consultan sobre los artículos 21 y 22 del proyecto, referido al régimen disciplinario y sancionatorio aplicable al Poder Judicial y al TSE. Indican que el art.21 establece una nueva causal de despido inmediato cuando el servidor público obtenga dos evaluaciones de desempeño consecutivas inferiores a 70%. Agregan que, las nuevas causales establecidas obedecen más a asuntos administrativos, por lo que se pretende sujetar a criterios ajenos a su quehacer a un incumplimiento netamente administrativo que podrá acarrear su destitución, provoca una injerencia odiosa y peligrosa para nuestro Estado Social de Derecho. Consideran que la nueva causal de despido inmediato consistente en obtener dos calificaciones de desempeño consecutivas inferiores a 70% contenida en el artículo 21, así como las dos nuevas causales graves creadas mediante la reforma al artículo 48 de la Ley de Salarios de la Administración Pública, que se reforma en el artículo 49:A) del proyecto de ley, violentan los principios constitucionales de legalidad, seguridad jurídica, razonabilidad, proporcionalidad, separación de poderes,. Luego, sobre el único procedimiento de despido, indican que, el proyecto de Ley Marco de Empleo Público establece que será aplicable a todas las personas servidoras públicas bajo el ámbito de aplicación de esta propuesta de ley, un único procedimiento especial de despido (artículo 21). Respecto al régimen recursivo, se le da la potestad al Tribunal de Servicio Civil de resolver todos los recursos de apelación que interpongan contra resoluciones que determinen cualquier tipo de sanción disciplinaria (artículo 21:i) y artículo 22). En relación con el único procedimiento que se crea en los artículos 21 a partir del inciso a) y el 22 del proyecto de ley objeto de esta consulta, consideramos que también violenta la independencia.

Al respecto, esta Sala considera que:

-La creación de una nueva causal de despido, por no pasar la evaluación del desempeño en dos ocasiones consecutivas (según el primer párrafo del art.21 del proyecto), no es inconstitucional en tanto la aplique el Poder Judicial y el Tribunal Supremo de Elecciones de acuerdo con su normativa interna. El establecimiento de esta causal nueva para el despido justificado, no violenta el Derecho de la Constitución, máxime si se entiende que esta nueva causal se aplicaría según las disposiciones internas del TSE, donde Mideplán no tendría ninguna injerencia.

-Sí resultan inconstitucionales los artículos 21 y 22 del proyecto consultado, respecto de su aplicación al TSE -y al Poder Judicial según se dijo supra-, por cuanto, el ejercicio de la potestad disciplinaria de los servidores del TSE es parte esencial de la independencia electoral. Así entonces, todo lo que en esas normas se establece en cuanto a procedimiento y fase recursiva no podrían aplicarse al TSE, el cual ya goza de normativa interna que dispone el ejercicio de la potestad disciplinaria. La adopción de medidas disciplinarias, la suspensión o la separación del cargo se deberá resolver de acuerdo con las normas internas para el resguardo de la función electoral. Así entonces, en consonancia con el principio de independencia de poderes, la entidad con competencia disciplinaria será, en este caso, exclusivamente el propio TSE.

• 4)Conclusión -Sobre los artículos 12 (base de datos), 13.h (familia en puestos de confianza), 15 (postulados de reclutamiento y selección), 19 (movilidad o traslados), y 31 (metodología de trabajo), dado que no se realiza la fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, se declara inevacuable la consulta por falta de fundamentación.

-En los términos indicados y conforme a la jurisprudencia de esta Sala, resultan inconstitucionales del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, los artículos siguientes.

Analizados todos los aspectos consultados en cuanto al artículo 2 (inciso a), 6 (inciso b), 7 (incisos d, g y p), 9 (segundo párrafo del inciso a), 13 (inciso a y f), 14, 17, 18, 21 y 22, del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación al principio de separación de funciones. La independencia de poderes es esencial en un Estado Constitucional de Derecho. Conforme a tal principio, cada poder es independiente del otro, cada órgano del Estado debe poder ejercer su función con independencia de los otros (art.9° Constitucional). Puede haber interrelación entre ellos, pero nunca subordinación. Además, no solo se trata de una vulneración a los principios de separación de funciones, sino a todo el sistema democrático y de organización del Poder que el Constituyente ha creado en nuestro Estado de Derecho. En el caso específico del TSE, es posible replicar -en lo atinente- las mismas conclusiones ya emitidas respecto del Poder Judicial. Si bien respecto del TSE también aplican lo principios fundamentales del régimen de empleo público, lo cierto es que, para proteger su independencia, debe seguir contando con su propio marco normativo, que regula de forma específica, particular y diferenciada las relaciones de empleo con sus servidores y la evaluación de su desempeño. Lo anterior, a fin de garantizar debidamente la independencia de dicho órgano, para el debido ejercicio de su función electoral y de aquellas otras funciones administrativas esenciales que dan soporte a su función primaria. De allí que resulte inconstitucional admitir que el Poder Ejecutivo, por medio de Mideplán tenga competencias de rectoría respecto de los funcionarios del TSE. Pese a que, al igual que ocurre en el caso del Poder Judicial, en el citado artículo 2, se afirma que la ley se aplicaría al TSE “sin perjuicio del principio de separación de Poderes establecido en la Constitución Política” -imperativo impuesto, de por sí, por la propia Constitución-. Es lo cierto es que la lectura integral del proyecto permite concluir que no se garantiza debidamente tal principio, no sólo por la sujeción a Mideplán, sino por la imposición de ciertas materias que son de competencia exclusiva y excluyente del TSE. Las normas del proyecto no evidencian, ni aseguran, la existencia ni la debida operatividad de una efectiva relación de cooperación/coordinación entre el Poder Ejecutivo y el TSE y, muy por el contrario, lo que se pone de manifiesto es que el objetivo general del proyecto consultado es sujetar al TSE a la rectoría del Mideplán y a los criterios técnicos de la Dirección General de Servicio Civil. De hecho, se otorga a Mideplán amplias competencias para emitir “disposiciones generales, directrices y reglamentos”, para desarrollar y regular los distintos aspectos abarcados -en términos genéricos- en el proyecto de ley. Finalmente, se advierte del expediente legislativo que el Tribunal Supremo de Elecciones emitió un criterio desfavorable al proyecto en la consulta que le hiciera la Asamblea Legislativa, cuando indicó lo siguiente, mediante oficio TSE-1226-2021 del 03 de junio del 2021:

“se advierte la existencia de una serie de aspectos que comprometerían las competencias legal y constitucionalmente encargadas a este Tribunal. (…) En nuestro criterio, disponer la inclusión del funcionariado funcionariado electoral en un subrégimen de personas servidoras públicas en general y con ello la subordinación del Tribunal a un órgano del Poder Ejecutivo que ejercería la rectoría en materia de empleo público y sus diversos aspectos, lesionaría gravemente el diseño ideado por el Constituyente y la independencia propia que con rango de Poder del Estado le otorgó a este Tribunal en el artículo 9 constitucional, con el fin de evitar cualquier influencia del Ejecutivo en la conducción de los procesos electorales. (…) Conclusión. Con base en lo expuesto, al estimar que la iniciativa en los términos actualmente propuestos quebrantaría el principio de separación de poderes y supondría un menoscabo a la independencia constitucionalmente otorgada a los organismos electorales, este Tribunal objeta el proyecto consultado, en los términos y con las consecuencias señaladas en el artículo 97 constitucional; quebranto constitucional que solo podría superarse introduciendo los cambios sugeridos en este acuerdo. ACUERDO FIRME”.” 5) Votos salvados, razones y notas sobre la consulta en cuanto al Poder Judicial y al Tribunal Supremo de Elecciones a) Nota del magistrado Rueda Leal en cuanto a la inclusión del Poder Judicial y el Tribunal Supremo de Elecciones en el numeral 2 inciso a) del proyecto consultado.

Subrayo que la inconstitucionalidad de este ordinal se da por sus efectos, visto que es necesario visualizarlo en la sistematicidad del articulado para comprender cómo se afecta la independencia del Poder Judicial y el Tribunal Supremo de Elecciones. Si bien se impone una aplicación de la doctrina general establecida en este voto con respecto al ejercicio de potestades exclusivas y excluyentes por parte de las jerarquías institucionales y la inclusión del Poder Judicial y el Tribunal Supremo de Elecciones en una ley marco de empleo público, no menos cierto es que la particularidad jurídica de estas dos instancias obligará a delimitar los efectos del voto en la práctica y a la luz de casos concretos. En ese sentido, el resguardo de la independencia -destacando que en este caso se habla de independencia y no de autonomía, como procede con otras instancias- del Poder Judicial y el Tribunal Supremo de Elecciones fue una preocupación del Constituyente, cuya importancia se refleja también en copiosa normativa convencional sobre la independencia judicial. En este esquema, la Sala mantiene su posición de guardiana de la Constitución Política, por lo que podrá valorar, en cada caso, si ha existido una intromisión indebida en los ámbitos de independencia señalados.

• b)Nota de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 2 inciso a) De previo a referirme a la constitucionalidad en concreto del art. 2 inciso a) del proyecto de ley consultado, estimo necesario realizar unas precisiones sobre aspectos generales que van a ilustrar cada una de mis notas o razones separadas en el texto de esta opinión consultiva.

En primer lugar, he de enfatizar que la democracia se deteriora cuando se debilita al Poder Judicial y, además, al Tribunal Supremo de Elecciones como instituciones que son cimientos esenciales de nuestro Estado de Derecho. Recuérdese, en ese sentido, que el Poder Judicial garantiza los derechos —no solo los fundamentales?, la paz, la seguridad jurídica (necesaria para el desarrollo humano y económico), la lucha contra el crimen menor y el organizado y la corrupción, etc. Asimismo, por disposición de la Constitución Política, le corresponde al Tribunal Supremo de Elecciones la organización, dirección y vigilancia de los actos relativos al sufragio. De manera que se trata de instituciones que claramente constituyen el soporte de una democracia consistente y, en esa medida, deben estar exentas de intervenciones de otros poderes de la república u otras instituciones que resten la solidez necesaria para la ejecución de las competencias constitucionalmente encomendadas.

En otras latitudes, el menoscabo de la independencia de estos poderes se lleva a cabo frontalmente desde el Poder Ejecutivo. En el caso que nos es sometido a consulta, con este proyecto de ley, es el propio Poder Legislativo el que le está dando la oportunidad al Poder Ejecutivo de hacerlo formalmente a través de las normas que hacen posible que un ministerio en concreto sea el que emita disposiciones de alcance general, directrices, reglamentos y otros actos administrativos que ordenen el manejo del personal de estas instituciones. Para ilustrar lo dicho conviene rescatar lo reseñado por la propia mayoría de esta Sala, cuando invocando sus antecedentes y concretamente la sentencia n°2017-009551, enfatizó:

“si no se le da la importancia al Poder Judicial en el Estado social y democrático de Derecho para su correcto funcionamiento, su debilitamiento conduce a forma de gobiernos antidemocráticas, prueba de ello es que uno de las funciones que primero controlan los gobiernos autoritarios o totalitarios es la judicial, de ahí la importancia de que todo sistema democrático tenga un Poder Judicial robusto” Estimo que a la luz de aspectos contingentes actuales de nuestra realidad nacional no se puede dejar sin efecto los pilares del Estado de Derecho, sino, más bien, corresponde resguardar siempre los aspectos nucleares y claves del diseño constitucional, como lo sería el principio de separación de funciones y la independencia entre los poderes de la república.

Justamente dentro de esos aspectos nucleares está también la necesidad de que exista un estatuto de servicio civil que regule las relaciones entre el Estado y los servidores públicos con el expreso propósito de garantizar la eficiencia en la administración pública. Como bien lo analiza la sentencia de mayoría, este estatuto puede ser uno general o varios específicos que atiendan a las especificidades de cada poder de la república, pero en todos los casos han de incorporar los valores consagrados en la Constitución Política.

Ahora bien, la posibilidad de que exista un solo estatuto para todos los servidores públicos, desde mi punto de vista, es compatible con el Derecho de la Constitución, siempre que tal estatuto se entienda como una serie de normativas generales que pauten ciertas conductas, por ejemplo, en el diseño de presupuestos públicos. El punto sensible es que haya una rectoría sobre las decisiones del Poder Judicial o del Tribunal Supremo de Elecciones respecto de la administración de su personal. En la opinión consultiva que rechazó la inconstitucionalidad de la “Ley de Administración Financiera de la República y de presupuestos Públicos”, ese fue justamente el núcleo de la decisión:

“En lo referente a la separación de poderes, considera esta Sala que, de la lectura atenta de los numerales de cita, se desprende que el proyecto consultado pretende dar a la Autoridad Presupuestaria competencias para elaborar en fase preliminar -pues luego requieren de aprobación por parte del Poder Ejecutivo- los lineamientos y directrices que determinarán el funcionamiento de la Administración en materia presupuestaria. Sobre la eficacia de tales disposiciones ya se referirá la Sala en este mismo considerando. En lo que respecta estrictamente a los órganos abarcados por el inciso b) del artículo 1 del proyecto, todos estos caracterizados por ser poseedores de independencia funcional constitucional respecto del Poder Ejecutivo, el mismo texto de los artículos 21 inciso b) y 23 in fine dispone que la aprobación de tales directrices compete a los jerarcas de tales órganos, cabiendo a la Autoridad Presupuestaria tan solo la función de proponer tales lineamientos. Es decir, que el mismo texto prevé un dispositivo que respeta la independencia funcional dada a los órganos del inciso b) del artículo 1° en materia presupuestaria, ya que el hecho de que los jerarcas de los órganos mencionados no apruebe los lineamientos dichos no acarrea ninguna consecuencia jurídica. Debido a lo anterior, cabe concluir que los artículos citados no representan alguna forma de afrenta a la separación de poderes, consagrada en el artículo 9° constitucional” (opinión consultiva evacuada mediante voto n.°1999-00919).

Por lo tanto, la lectura del art. 191 constitucional debe realizarse respetando el diseño del modelo republicado de separación de poderes, es decir, se prevé la obligatoriedad de un estatuto, no así de una rectoría en manos de una cartera ministerial del Poder Ejecutivo por sobre las competencias de otros poderes de la república. Así, una cosa es que se apruebe una ley marco de empleo público que regule de forma general los aspectos necesarios para garantizar la eficiencia de la administración, como también la idoneidad comprobada o las condiciones para justificar el despido en todo el sector público. Tales regulaciones, incluso, podrían derogar aspectos de los estatutos vigentes, pero siempre y cuando se resguarde la autonomía e independencia de los poderes. Es más, dicha norma general podría coexistir con los diferentes estatutos actualmente vigentes. Pero otra cosa muy distinta es dictar una ley que trastoque gravemente el diseño republicano recogido en la Constitución, al establecer una rectoría de una determinada cartera ministerial del Poder Ejecutivo por sobre las autoridades del gobierno interno de cada uno de los poderes de la república.

En consecuencia, reitero, no sería ilegítimo que se incluyan al Poder Judicial o al Tribunal Supremo de Elecciones dentro de un marco normativo general que pretenda establecer las líneas genéricas de regulación, pero no una rectoría en manos del Poder Ejecutivo. Ahora bien, como se refleja en el voto de mayoría, el art. 2 inciso a) del proyecto de ley consultado lo que pretende es incluir al Poder Judicial y al Tribunal Supremo de Elecciones dentro del ámbito de cobertura de la Ley Marco de Empleo Público. Sin embargo, he estimado necesario consignar la presente nota para manifestar que, conforme a las líneas generales expuestas supra, según mi criterio, dicho numeral no es en sí mismo inconstitucional en cuanto incluye al Poder Judicial y al Tribunal Supremo de Elecciones en un marco regulatorio de empleo público, siempre que ese marco regulatorio se entendiera como aquel que establezca principios y normas generales. De hecho, se pueden citar antecedentes normativos que, respetando este diseño, disponen reglas generales, pero cuya ejecución está reservada a los órganos internos (por ejemplo, la Ley General de Administración Pública o la Ley General de Contratación Administrativa). No obstante, como este proyecto de ley no cumple con esas características, este artículo sí es inconstitucional por conexidad con el resto del articulado (ver, por ejemplo, los artículos 4, 6, 7, 9, 12, 13, f), 14, 17, 18, 19, 21, 22, 30, 46 y 49 del proyecto de ley), porque supondría aplicarlas a esos poderes. Es decir, lo establecido en esas normas, en conexión con este art. 2 inciso a) vacía de contenido el principio de separación de poderes, pese a que la letra de este inciso intenta salvaguardar dicho principio. Además, la lógica de la ley en su totalidad está plasmada no sólo en su articulado sino en la exposición de motivos, que tiene un valor hermenéutico. De manera que para que ese art. 2 inciso a) se considere que no es “en sí mismo” inconstitucional tendría que verse desvinculado de lo que en dicha exposición de motivos hace relación con esas normas.

Es oportuno hacer hincapié en que, además, en el caso concreto la intromisión a las competencias del Poder Judicial se pretende realizar pese a las advertencias realizadas por la Sala en la opinión consultiva n.°2018-019511, en que se conoció de la consulta legislativa respecto del proyecto de “Ley de Fortalecimiento de las Finanzas Publicas” (expediente legislativo n.°20.580). En dicha consulta la Sala hizo énfasis sobre la incompatibilidad de una “rectoría” de parte del Poder Ejecutivo respecto de las competencias y la normativa especial que ya regula al Poder Judicial.

Entonces, si bien el proyecto en consulta establece que este se aplicará al Poder Judicial y al Tribunal Supremo de Elecciones “sin perjuicio del principio de separación de Poderes establecido en la Constitución Política”, lo cierto es que la lectura integral del proyecto permite concluir que no se garantiza debidamente tal principio. Al examinar el art. 2 inciso a) del proyecto de ley en conexión con el resto del articulado, y concretamente con las normas que pretenden reformar el Estatuto de Servicio Judicial y la Ley de Salario del Poder Judicial, así como con el art. 30 de dicho proyecto, se aprecia una supuesta relación de coordinación, pero ello no es más que una apariencia. Es decir, si se examina el art. 2 inciso a) con el resto de normas del proyecto de ley se denota que el objeto de este es justamente establecer una rectoría por parte del Ministerio de Planificación Nacional y Política Económica (Mideplan) respecto de los otros poderes de la república acá mencionados y no hay certeza de cómo va a operar esa supuesta coordinación, porque la mayoría de las normas le otorgan el poder de decisión al propio Mideplan.

Finalmente he de matizar que no comparto las apreciaciones de la mayoría en el sentido de que distingue entre funcionarios que realizan labores esenciales atinentes a la competencia específicamente asignada y los que no participan directamente de esta gestión en virtud de una decisión administrativa que igualmente podría resultar inconstitucional, tal y como ya lo detallé supra. Habrá funciones administrativas esenciales que dan soporte a la función primaria de administración de justicia y de organizar, dirigir y vigilar los actos relativos al sufragio, por lo que no comparto la distinción en los términos que la realiza la mayoría.

• c)Nota separada de la magistrada Picado Brenes, sobre el artículo 2 inciso a) del proyecto en cuanto a la inclusión del Poder Judicial y el Tribunal Supremo de Elecciones (punto 6 del Por Tanto) Por unanimidad, la Sala evacua la consulta indicando que el artículo 2 inciso a) del proyecto de Ley Marco de Empleo Público, no es inconstitucional por sí mismo en cuanto incluye al Poder Judicial y al Tribunal Supremo de Elecciones en un marco regulatorio general de empleo público, pero sí lo es por sus efectos porque algunas de sus normas vacían de contenido el principio de separación de poderes. No obstante, debo hacer algunas precisiones con sustento en las cuales concluyo que el proyecto venido en consulta debió partir de la premisa fundamental de la separación de poderes y respeto de las autonomías constitucionales.

Es preciso señalar que, de conformidad con la exposición de motivos del texto base del proyecto de Ley Marco de Empleo Público, según lo plantean sus promoventes, el mismo “tiene el propósito de ser una piedra angular para encaminar el servicio público hacia un ordenamiento jurídico más homogéneo entre sí, dirigido a disminuir las distorsiones generadas por la fragmentación, en un contexto de eficacia y eficiencia”. En criterio de los impulsores del proyecto, “El Estado debe regular la relación con las personas servidoras públicas, bajo normas y principios generales que rijan a toda la institucionalidad pública, salvaguardando la independencia de poderes y las particularidades de los subregímenes de empleo público, … pero siempre, procurando en todo momento, la satisfacción del interés público, garantizado la ciudadanía reciba bienes y servicios con calidad y oportunidad”. Manifiestan además que este proyecto “busca atender en conjunto las recomendaciones emitidas por diferentes instancias nacionales e internacionales, tales como la Contraloría General de la República y la Organización para la Cooperación y el Desarrollo”.

Se desprende de lo anterior, que el objetivo del proyecto es elaborar un ordenamiento jurídico homogéneo en materia de empleo público, de modo que sea -según el criterio de los que proponen el proyecto- menos fragmentado y, por consiguiente, que se den menos distorsiones, considerando que eso se lograría al emitirse normas y principios generales que rijan para todas las instituciones públicas, todo en aras de satisfacer el interés público y brindar a la ciudadanía bienes y servicios de calidad, oportunidad, eficacia y eficiencia. Sin embargo, a pesar de lo sencillo que pareciera alcanzar el objetivo propuesto emitiendo “normas y principios generales que rijan para todas las instituciones públicas”, lo cierto del caso es que, en la misma exposición de motivos, se observa el primer escollo que lo hace inalcanzable cuando se indica que ello se debe hacer “salvaguardando la independencia de poderes y las particularidades de los subregímenes de empleo público”. Pareciera que el legislador no ha tomado en cuenta que el diseño constitucional del Estado costarricense, hace imposible que se pretenda aplicar un régimen uniforme de empleo público conforme se ha ideado en este proyecto de Ley, o talvez ha obviado que la magnitud de la independencia de poderes que se tutela en el artículo 9 de la Constitución Política, sumado a la independencia que ahí se otorga al Tribunal Supremo de Elecciones, no permitiría que exista un órgano centralizado, proveniente del Poder Ejecutivo, que emita las directrices, lineamientos y normativa relativa al empleo público, sin ocasionar una lesión al Derecho de la Constitución. Desde esta perspectiva entonces, y partiendo de la Constitución Política como eje central de la democracia costarricense, respetar la independencia de Poderes y la del Tribunal Supremo de Elecciones tutelada en el artículo 9 Constitucional así como los subregímenes de empleo que existen en el país, es incompatible con una normativa unificada de todas las instituciones públicas sobre las relaciones de empleo público, que regula aspectos exclusivos de cada institución, bajo la rectoría del Poder Ejecutivo (Mideplán) en los términos en que lo hace este proyecto. Diferente sería si, con este proyecto, el legislador lo que hubiere pretendido hacer fuera emitir únicamente lineamientos generales de empleo público para desarrollar el 192 Constitucional y robustecer con ello el sistema estatutario que ya existe; cosa que evidentemente no ha sido planteada en esos términos.

Ahora bien, lo anterior se puede llevar a un nivel superior de gravedad pues, cuando se observa que la Ley de Fortalecimiento de las Finanzas Públicas N°9635, le otorgó la rectoría del empleo público al Ministerio de Planificación Nacional y Política Económica, se puede presuponer que, desde ese momento, el principio de separación de poderes estaba resultando algo confuso para el legislador; tema que se arrastró hasta el proyecto bajo estudio en el cual ya se materializa el eje de acción de aquélla rectoría al disponer en el artículo 2 inciso a) que el ámbito de acción incluye a los 3 poderes del Estado así como al Tribunal Supremo de Elecciones, poniéndose con ello en evidencia que, a la luz del proyecto de Ley Marco de Empleo Público, será un órgano del Poder Ejecutivo -Mideplán-, el que lleve la batuta de la materia y, en consecuencia, el que establezca, dirija y coordine la emisión de políticas públicas, programas y planes nacionales de empleo público. Consecuentemente, con ello queda demostrado, como tesis de principio que, a pesar de la separación de poderes, será un órgano del Poder Ejecutivo el que lidere la materia, sobre todo, el que se imponga a los demás poderes y al TSE, en esa área, en claro y absoluto irrespeto a aquél principio.

De una primera lectura general del proyecto consultado se evidencia que el modelo propuesto es que un órgano del Poder Ejecutivo, se imponga sobre los demás poderes y el TSE, en esta materia. A pesar de la contundencia de tal decisión, debo decir que, en mi criterio, el legislador ha obviado que la estructura del Estado costarricense no está diseñada para “la unificación” que pretende el proyecto y mucho menos ha detectado que, al final de cuentas, lo que pareciera que va a generar es más fragmentación entre los sectores e instituciones que pueden estar incluidos, los que deben estar incluidos y los que hay que excluir. El proyecto en examen no repara que no es válido que una norma infra legal contradiga -a este nivel- el principio de separación de poderes y lo que ello implica pues, como se viene diciendo, según este proyecto de Ley, será un órgano proveniente del Poder Ejecutivo el que se encargue de regular todo lo relativo a la materia de empleo público, soslayando automáticamente con esa decisión, la autonomía e independencia con que cuenta cada Poder de la República y el Tribunal Supremo de Elecciones para gestionar su recurso humano de acuerdo a sus necesidades institucionales.

Obsérvese que el artículo 2 del proyecto bajo consulta establece el ámbito de cobertura de la Ley Marco de Empleo Público y señala que será aplicable a las personas servidoras públicas de las entidades y órganos que ahí se indica, bajo el principio de Estado como patrono único, e incluye, en su inciso a) a los Poderes de la República (Legislativo, Ejecutivo y Judicial), sus órganos auxiliares y adscritos, y el Tribunal Supremo de Elecciones. Entonces, como ya lo señalé supra, si el artículo 9 de la Constitución Política dispone el principio de separación de poderes, y el proyecto pretende que sea un órgano del Poder Ejecutivo el que, por encima de los otros poderes -específicamente Poder Judicial- y del TSE, dicte e imponga la normativa relativa al empleo público, y que éstos se tengan que someter, no queda lugar a dudas: habrá una vulneración del principio de separación de poderes tutelado en el artículo 9 constitucional y, consecuentemente, de la independencia que tiene cada Poder de la República y el TSE, para darse su propia organización y administración, lo que incluye la gestión de su recurso humano. Ese artículo 2 inciso a) del proyecto bajo estudio, resulta contrario al Derecho de la Constitución, por violación al principio de separación de funciones, al principio de independencia judicial, al régimen particular de empleo del Poder Judicial y del Tribunal Supremo de Elecciones y a las competencias constitucionales administrativas otorgadas a la Corte Suprema de Justicia.

Si bien es cierto todo el aparato estatal está sometido a los principios del régimen de servicio público que se deriva del artículo 191 constitucional y por ello ya existe un sistema general -estatutario- de empleo público en el país ; también es lo cierto que aquél principio constitucional es de carácter general, no está imponiendo a ningún Poder de la República por encima de otro, como sí lo pretende el proyecto en estudio que tiene como único objetivo unificar -en un solo cuerpo normativo- toda la regulación de empleo público, centralizando en un órgano del Poder Ejecutivo (Mideplán) toda la rectoría del sistema de empleo público que allí se crea, de modo que ese órgano será el encargado de la regulación de todo lo atinente a reclutamiento y selección de personal (art.14), movilidad en el empleo público (art.19), cese y procedimiento de despido o régimen disciplinario (art.20, 21 y 22), actividades de capacitación (art.23), evaluación de desempeño (art.27), y régimen salarial (capítulo VIII), entre otros, lo cual será una imposición para todo el Poder Judicial y el Tribunal Supremo de Elecciones, a pesar de la autonomía e independencia con que cuentan ambos para organizar ese tema, a lo interno y de acuerdo con las necesidades institucionales de cada uno de ellos. Por el contrario, obsérvese que en el artículo 191 lo que se establece es un marco de acción de carácter general y, al relacionarlo con el 192 constitucional, se observa que lo pretendido por el constituyente no estaba dirigido a vulnerar la independencia de ningún órgano constitucional, sino a establecer que las relaciones entre el Estado y sus servidores debían estar regidas por el principio de idoneidad comprobada y que solo podrían ser removidos por causal de despido justificado o por reducción forzosa de servicios, admitiendo para todo ello las excepciones que establezcan la propia Constitución Política y la Ley. Entonces, es correcto que el constituyente pretendía que existiera un régimen unificado de gestión del recurso humano para todo el aparato estatal cuyo sustento fuera el principio de idoneidad comprobada en aras de garantizar la eficiencia de la administración, pero de ahí no se puede interpretar -como lo ha hecho el legislador con este proyecto de Ley Marco de Empleo Público-, que ese régimen unificado debía ser el que ahí se está proponiendo -para eliminar el sistema estatutario que ya existe- ni mucho menos en los términos en que se hace ya que, desde el artículo 2 inciso a), se puede observar una evidente lesión al Derecho de la Constitución que, como se ha dicho, atenta contra el principio de separación de poderes del artículo 9 constitucional, y de modo específico en perjuicio de la autonomía e independencia del Poder Judicial y del Tribunal Supremo de Elecciones. En este punto reitero mi posición en cuanto a que, diferente hubiera sido si, con este proyecto, el legislador lo que hubiere pretendido hacer era solo emitir lineamientos generales de empleo público para desarrollar el 192 Constitucional y robustecer con ello el sistema estatutario que ya existe; cosa que evidentemente no ha sido planteada en esos términos en el proyecto bajo estudio.

En lo que al Poder Judicial se refiere debe decirse que diversa normativa del proyecto bajo estudio, tiene incidencia en el ejercicio de la función jurisdiccional propia del Poder Judicial y de aquellas funciones administrativas esenciales que dan soporte a tal función primaria pues, se le otorga a Mideplán la rectoría en la materia de empleo público (art.6), amplias competencias para emitir “disposiciones generales, directrices y reglamentos” (art.7.c y 7.l), para emitir “los lineamientos y principios generales para la evaluación del desempeño” (art.7.g), y para establecer “un sistema único y unificado de remuneración de la función pública” (art.7.m). Todo lo anterior es contrario a la línea jurisprudencial de la Sala según la cual, en lo referente a las relaciones de empleo con sus servidores, en materia de evaluación de desempeño y de salarios, es improcedente que una instancia externa asuma la rectoría o imponga unilateralmente criterios al Poder Judicial, debiendo recordarse que este Tribunal ha avalado la existencia, procedencia y necesidad de un régimen particular de empleo público para los servidores del Poder Judicial (ver sentencia n°2018-019511). En consonancia con lo anterior, la creación de un Ministerio del Empleo Público como un órgano del Poder Ejecutivo, con tan amplios poderes, que pueda dar órdenes sobre esta materia al Poder Judicial, evidentemente viola además, las competencias exclusivas y excluyentes de la Corte Suprema de Justicia, contenidas en el artículo 156 constitucional (“La Corte Suprema de Justicia es el tribunal superior del Poder Judicial, y de ella dependen los tribunales, funcionarios y empleados en el ramo judicial, sin perjuicio de lo que dispone esta Constitución sobre servicio civil.”); lo anterior aunado al criterio vertido por este Tribunal en cuanto a que la normativa especial del Poder Judicial sobre estas materias, no puede ser “derogada tácitamente por una norma posterior de carácter general” (ver sentencias n°01265-1995 y 2017-003450).

De la lectura del proyecto de Ley Marco de Empleo Público queda demostrado que Mideplán, a pesar de ser un órgano del Poder Ejecutivo, asumiría una serie de competencias constitucionales de la Corte Suprema de Justicia que están relacionadas con la función de gobierno del Poder Judicial, siendo particularmente gravosas tales competencias en materia de relaciones de dirección y jerarquía de los titulares subordinados a la Judicatura, al Ministerio Público y al Organismo de Investigación Judicial. Recuérdese que la independencia judicial no sólo se refiere a la independencia de criterio del juzgador sino una serie de manifestaciones en los ámbitos administrativos, de financiamiento, de funcionamiento, que implican necesariamente que todo órgano perteneciente a otro Poder de la República, no puede tener injerencia en el Poder Judicial. Ciertamente, del examen de la normativa consultada se observa que el “Sistema General de Empleo Público” -que coloca al Ministerio de Planificación Nacional y Política Económica (Mideplán) como su ente rector- invade la materia de administración y gestión del talento humano del Poder Judicial toda vez que el proyecto establece que el Mideplán dará órdenes específicas al Poder Judicial para organizar y gestionar su recurso humano, lo cual abarcaría desde la forma en que se diseñan los requerimientos del personal, los criterios a utilizar en las pruebas de conocimiento, competencias y psicométricas para la selección de personal y la forma precisa en que deben efectuarse los concursos internos y externos, cómo debe realizar sus procesos de evaluación, hasta como diseñar la política salarial interna y la regulación así como la aplicación del régimen disciplinario, por ejemplo. En esta materia ha señalado la Sala Constitucional que “Una garantía más de la independencia del Poder Judicial en el tema de empleo es que el Jefe del Departamento de Personal se encuentra vinculado al Presidente de la Corte, excluyendo la injerencia de instancias externas.” (ver sentencia n°2018-019511); situación que se obvia totalmente en este proyecto, pues de su lectura se desprende que el Jefe del Departamento de Personal del Poder Judicial, pasaría a depender de una instancia externa como lo es el Mideplán.

Del proyecto de Ley bajo estudio se concluye que aquélla rectoría va más allá de la regulación de una actividad, hasta convertirse en la dirección y subordinación del receptor, que deberá acatar y cumplir con directrices y reglamentos concretos sobre la materia que emita el Mideplán. Con lo dicho hasta acá, obsérvese que las amplias competencias otorgadas al Mideplán, inciden directamente en la sustitución de potestades y competencias por parte de los órganos del Poder Judicial, desconociendo las normas especiales en cuanto a la regulación de servicio de los empleados del Poder Judicial; normas inclusive de rango legal. Debe ponerse énfasis en que la Independencia Judicial es una garantía básica del Estado de Derecho que supone que el Poder Judicial es independiente respecto del resto de Poderes para darse su propia organización y funcionamiento internos; es la posibilidad de autogestionar, por demás, con autonomía financiera, los medios personales y materiales e instrumentales con respecto a la Administración de Justicia, y se refiere tanto a la función jurisdiccional, como a la función administrativa, en apoyo a dicha función jurisdiccional, o lo que es lo mismo, a todo el Poder Judicial desde el más humilde de los cargos hasta el más alto en la escala jerárquica. En consecuencia, esa independencia judicial supone, particularmente que el Poder Ejecutivo, tiene vedado intervenir en las decisiones del órgano encargado de la administración de justicia, así sean decisiones de carácter organizativo o administrativo o auxiliar y ni que decir de las propias de la administración de justicia, porque todas ellas son propias del Poder Judicial. No puede olvidarse que la independencia económica, personal, funcional, orgánica e institucional, tanto del Poder Judicial en sí mismo, como de los jueces y auxiliares de la justicia, es esencial en un Estado Constitucional de Derecho y conforme a tal principio, cada Poder es independiente del otro, cada órgano del Estado debe poder ejercer su función con independencia de los otros (art.9° Constitucional) y si bien, puede haber interrelación entre ellos, nunca podrá existir subordinación de uno en relación con otro.

Así las cosas, es inconstitucional toda norma que sujete al Poder Judicial a órdenes, supervisión o directrices del Poder Ejecutivo, lo cual no solo vulnera los principios de separación de funciones e independencia judicial, sino a todo el sistema democrático y de organización del Poder que el Constituyente ha creado en el Estado de Derecho costarricense, y ello es así porque el proyecto consultado pretende una hipercentralización (contrario al proceso de descentralización establecido por el Constituyente) que además, le pasa por encima al principio de separación de poderes, particularmente a la independencia judicial.

Por su parte, en lo que al Tribunal Supremo de Elecciones se refiere, no puede obviarse que los artículos 9 y 99 de la Constitución Política establecen claramente que “goza de independencia en el desempeño de su cometido” y, sobre el particular, también existe profusa jurisprudencia sobre el fundamento, justificación y relevancia de tal independencia, con lo cual, el artículo 2 inciso a) también sería inconstitucional por cuanto atenta contra ella. En la sentencia n°3194-1992, la Sala resolvió que:

“En el caso de la materia electoral, la Constitución de 1949 dio especial importancia a la necesidad de segregar todo lo relativo al sufragio, principalmente de la órbita de los poderes políticos del Estado. En esa dirección, estableció una serie de principios y adoptó mecanismos eminentemente formales para garantizar la independencia del sufragio, sobre todo mediante la plena autonomía del órgano llamado a organizarlo, dirigirlo y fiscalizarlo. Originalmente en el artículo 99 constitucional, y luego también en el 9° -por la adición introducida por ley 5704 de 5 de junio de 1975- no sólo se atribuyó al Tribunal Supremo de Elecciones la organización, dirección y vigilancia de los actos relativos al sufragio, sino que, además, se le otorgó el rango e independencia propios de un poder del Estado.” Por su parte, obsérvese que en la sentencia n°00495-1998, se agregó que:

“aunque (el TSE) no es un Poder del Estado en sentido estricto, sí cumple una función primordial en el Estado costarricense -cual es la de ocuparse de la materia electoral-, y por norma constitucional -transcrito párrafo segundo del artículo 9- se le confiere el rango e independencia de un poder del Estado”.

Hay que tomar nota que, en relación con la independencia del Tribunal Supremo de Elecciones, la Sala también ha señalado:

“(…) sin embargo, es evidente que los poderes de organización y dirección atribuidos por la propia Constitución al Tribunal Supremo de Elecciones justifica plenamente que se le reconozcan esos mismos poderes en lo relativo a la materia electoral (…) " (ver sentencia número 0980-91).

Ahora bien, en lo referente específicamente al régimen de empleo público, aplicable al TSE, la Sala Constitucional también ha señalado:

“(…) en el caso de los poderes, su propia independencia constitucional, garantizada en general por el artículo 9° de la Constitución y, en los del Poder Judicial y del Tribunal Supremo de Elecciones por las de los artículos 99 y siguientes, 152 y siguientes y 177 de la misma, así como sus propias normas orgánicas, imponen a sus jerarcas la atribución y la responsabilidad de fijar la remuneración, gastos de representación y otras facilidades inherentes a los cargos, de sus propios miembros y subalternos, dentro, naturalmente, de sus disponibilidades presupuestarias, independientemente, desde luego, de que sus montos puedan coincidir o no con los de los diputados” (ver sentencia n° 550-1991).

Igualmente, dijo en la sentencia n° 2005-14298 que:

“(…) En un Tribunal como éste, donde la materia electoral es su esencia, los principios constitucionales del régimen de empleo público de estabilidad e idoneidad comprobada, deben ser resguardados con mayor celo, por cuanto la intención del constituyente al crear este Poder, fue cercenar por completo la posibilidad de que los funcionarios electorales, se inmiscuyeran en toda actividad política, con el fin de garantizar un Órgano Electoral independiente.” En consecuencia, existe justificación suficiente -no sólo por lo dispuesto en los artículos 9 y 99 de la Constitución Política y por jurisprudencia constitucional- para concluir que el artículo 2 inciso a) del Proyecto de Ley Marco de Empleo Público resulta inconstitucional también al incluir al Tribunal Supremo de Elecciones dentro de su ámbito de cobertura pues, como lo ha dicho la Sala, los principios constitucionales del régimen de empleo público, de estabilidad e idoneidad comprobada en relación con el TSE, deben ser resguardados con mayor celo, por cuanto la intención del constituyente al crear este Poder -TSE-, fue cercenar por completo la posibilidad de que los funcionarios electorales, se inmiscuyeran en toda actividad política, con el fin de garantizar un Órgano Electoral independiente. Evidentemente, con el proyecto de Ley bajo estudio, se estaría vulnerando esa independencia del órgano electoral que el Constituyente quiso resguardar a toda costa.

Con sustento en las razones señaladas, considero que el artículo 2 inciso a) del Proyecto de Ley Marco de Empleo Público que se tramita en el expediente legislativo nº 21.336, es inconstitucional en lo que se refiere al Poder Judicial y al Tribunal Supremo de Elecciones.

• d)Nota del magistrado Rueda Leal en cuanto a la aplicación del numeral 6 inciso b) del proyecto consultado al Poder Judicial y el Tribunal Supremo de Elecciones.

Desde mi perspectiva, la inconstitucionalidad detectada con respecto a esta norma también está unida a la inconstitucionalidad observada al analizar los incisos g) y h) del artículo 49, en lo que respecta a los departamentos de gestión humana, y su dinámica con los ordinales 30 y siguientes. Estimo que la coordinación entre distintas instancias gubernamentales es posible y deseable. Sin embargo, la valoración jurídica de esa coordinación dependerá de su contenido en cuanto a las materias, sujetos, respeto a derechos fundamentales, asignación de competencias, etc. En ese sentido, es insuficiente etiquetar una relación interorgánica o intersubjetiva como “cooperación” y asumir su constitucionalidad, sino que deben observarse los términos de tal cooperación y acatamiento de las disposiciones constitucionales.

• e)Razones diferentes de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 6 inciso b) en cuanto somete al Poder Judicial y al Tribunal Supremo de Elecciones a la rectoría del sistema general de empleo público a cargo del Mideplán.

Al igual que lo señalado por la mayoría, pero con mis propias consideraciones, estimo que el art. 6 inciso b) del proyecto de ley es inconstitucional en cuanto establece la rectoría del Sistema General de Empleo Público a cargo del Mideplan y contempla endicho sistema la inclusión de las oficinas de recursos humanos del Poder Judicial y del Tribunal Supremo de Elecciones. Es decir, bajo la óptica de este numeral, esas oficinas quedarían sometidas a la rectoría del Mideplan y no de sus respectivos órganos de gobierno. El establecimiento de esta rectoría, que despoja a dichos poderes de la potestad de dirección y fiscalización respecto de sus oficinas de recursos humanos, es inconstitucional por vaciar de contenido el principio de separación de poderes. Dicho numeral debe examinarse inexorablemente en conjunto con lo dispuesto en el art. 9 párrafo 2° del proyecto de ley que establece justamente que las oficinas de recursos humanos deberán aplicar y ejecutar las disposiciones de alcance general, las directrices y los reglamentos en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales que el Mideplan remita a la respectiva institución.

Es preciso destacar que, según la propia Constitución Política, el órgano de gobierno del Poder Judicial es la Corte Suprema de Justicia y el art. 156 señala expresamente que “de ella dependen los tribunales, funcionarios y empleados en el ramo judicial”, por lo que es inconstitucional establecer un Sistema General de Empleo Público, cuya rectoría está en manos de una cartera ministerial del Poder Ejecutivo ?Mideplan—, trasladando a las oficinas de gestión del recurso humano a ese sistema bajo el conjunto de normas administrativas, directrices y resoluciones del propio Mideplan (ver art. 6 incisos d) y e)), desconociendo abiertamente lo estatuido en la norma constitucional que ordena que los funcionarios y empleados del ramo judicial dependen de la Corte Suprema de Justicia. Se observa que la Corte Suprema o, en su caso, los Magistrados del Tribunal Supremo de Elecciones, desaparecen de la ecuación relativa a la administración del personal que realiza actividades intrínsecamente esenciales al órgano, pero también de todo el personal administrativo de apoyo que es necesario para llevar adelante las respectivas funciones encomendadas.

El diseño de la norma desconoce, además, lo dicho anteriormente por esta Sala Constitucional en la opinión consultiva n.°2018-019511, en la que se afirmó que la relación directa entre el Departamento de Personal con la Presidencia de la Corte es una garantía del principio constitucional de independencia entre los poderes. En el voto en mención esta Sala afirmó expresamente lo siguiente:

“Independientemente de que el ordinal 47 del proyecto hable de “salvedades”, se observa que la evaluación del desempeño y la competencia en la toma de decisiones en materia laboral, sean generales o concretas, se encuentran ya reguladas por el mencionado marco normativo del Poder Judicial, imposibilitando que una instancia externa asuma la “rectoría” o imponga criterios sobre ese Poder. Es más, dicho marco normativo está diseñado para garantizar la eficiencia de la función judicial y proteger a los servidores judiciales de injerencias externas, tal como indica el artículo 1 del Estatuto de Servicio Judicial:

“Artículo 1º.- El presente Estatuto y sus reglamentos regularán las relaciones entre el Poder Judicial y sus servidores, con el fin de garantizar la eficiencia de la función judicial y de proteger a esos servidores.” Nótese que la norma determina que las relaciones de empleo entre el Poder Judicial y sus servidores se encuentran reguladas por el Estatuto y su reglamento. La interpretación sistemática a que obliga ese numeral impide una regulación indirecta del servicio judicial mediante directrices o lineamientos procedentes de otras instancias. Esto se verifica porque el dictado del reglamento a que refiere la norma es, a su vez, competencia exclusiva de la Corte, como indica el mismo Estatuto:

“Artículo 5º.- Antes de dictar un reglamento interior de trabajo, ya sea de carácter general para todos los servidores judiciales o aplicables sólo a un grupo de ellos, la Corte pondrá en conocimiento de esos servidores el proyecto respectivo, por el medio más adecuado, a fin de que hagan por escrito las observaciones del caso, dentro de un término de quince días.

La Corte tomará en cuenta esas observaciones para resolver lo que corresponda, y el reglamento que dicte será obligatorio sin más trámite, ocho días después de su publicación en el "Boletín Judicial".” Una garantía más de la independencia del Poder Judicial en el tema de empleo es que el Jefe del Departamento de Personal se encuentra vinculado al Presidente de la Corte, excluyendo la injerencia de instancias externas:

“Artículo 6º.- El Departamento de Personal del Poder Judicial funcionará bajo la dirección de un Jefe que dependerá directamente del Presidente de la Corte y será nombrado por la Corte Plena.” Luego, el detalle de la normativa del Estatuto de Servicio Judicial distingue las diferentes competencias en materia de evaluación del desempeño, lo que corrobora la existencia de normativa especial para ese Poder” (lo destacado no corresponde al original).

En consecuencia, el diseño establecido en la norma consultada es inconstitucional, justamente por permitir que la oficina de recursos humanos del Poder Judicial pase a una subordinación del Mideplan, lo que conlleva admitir la injerencia de instancias externas respecto de la independencia del Poder Judicial y del Tribunal Supremo de Elecciones. Además, nótese que la Corte Suprema de Justicia, y los Magistrados de ese Tribunal, ven mutiladas sus funciones como jerarcas.

• f)Razones diferentes de la magistrada Picado Brenes, sobre el artículo 6 del proyecto en cuanto a la rectoría de Mideplán (punto 7 del Por Tanto) Coincido con el criterio unánime de la Sala en cuanto a que el artículo 6 del proyecto de Ley Marco de Empleo Público es inconstitucional, específicamente en lo que se refiere al inciso b), ello en cuanto somete al Poder Judicial y al Tribunal Supremo de Elecciones a la potestad de dirección del Poder Ejecutivo. No obstante lo anterior, considero necesario poner sobre la mesa otras razones que justifican mi decisión. Debe partirse de que el proyecto de Ley bajo estudio plantea incorporar al Poder Judicial dentro de una normativa general de empleo público, la cual se pretende que sea de aplicación generalizada en prácticamente todo el sector público; sin embargo, en el caso concreto del Poder Judicial, esa inclusión se está haciendo sin tomar en cuenta su naturaleza jurídica, su conformación orgánica, su particularidad así como la especificidad de las funciones que desempeña ese Poder de la República así como todos y cada uno de los servidores judiciales dentro del engranaje que conforman. A partir de la lectura general del proyecto se tiene muy claro que el Poder Ejecutivo, a través del Mideplán, asumiría toda la rectoría y gobernanza del sistema general de empleo público que se está creando, lo cual se hace sin tomar en cuenta el principio de separación de poderes y con pleno desconocimiento de todo el sistema de gestión del talento humano que ha creado el Poder Judicial como una de sus potestades plenas; sistema dentro del cual una gran cantidad de la normativa que lo regula y tutela, ha sido de creación legislativa, no producto de decisiones internas o caprichosas de ese Poder de la República. En este punto, no puede dejar de ponerse en la palestra que, con este proyecto, se incurre en una seria contradicción, pues a pesar de que ya había emitido normativa específica para el Poder Judicial en la materia, ahora simplemente decide dejarla sin efecto para sustituirla por normas de aplicación general y sin sustento técnico que justifique que una norma general modifique a una especial.

No puede perderse de vista que el artículo 153 de la Constitución Política dispone que la administración de justicia es una función exclusiva del Poder Judicial como órgano constitucional; por su parte, del artículo 9 constitucional surge el principio de separación de los Poderes de la República. Debe reiterarse que de la interpretación conjunta de ambos se desprende que el Poder Judicial -como órgano independiente de creación constitucional- no debe tener ningún tipo de interferencia por parte de otro Poder de la República, que le impida, limite o afecte en el ejercicio de su función exclusiva que es la administración de justicia; sin embargo, de la lectura del proyecto de Ley Marco de Empleo Público y específicamente del artículo 6 bajo estudio, resulta más que evidente que la intención del proyecto no es solo la creación de un sistema general de empleo público, sino una absoluta intromisión en el Poder Judicial, por parte del Poder Ejecutivo -ejercida a través del Mideplán-, en toda la materia relativa a la gestión del talento humano. Obsérvese que ese numeral 6 dispone la creación del referido sistema general de empleo público a cargo del Ministerio de Planificación Nacional y Política Económica (Mideplán) e incluye “Las oficinas, los departamentos, las áreas, direcciones, unidades o denominaciones homólogas de Gestión de Recursos Humanos de las entidades y los órganos bajo el ámbito de aplicación de la presente ley”. Al haberse incluido al Poder Judicial en el ámbito de aplicación de la Ley -artículo 2 inciso a)-, resulta más que obvio que el numeral 6 estaría, a su vez, incluyendo al Departamento de Gestión Humana del Poder Judicial y, en consecuencia, incorporando ahí toda la materia objeto de su conocimiento en relación con la gestión del talento humano que labora en el Poder Judicial. En este punto hago la aclaración de que, en mi criterio, esa intromisión que se pretende hacer por parte del Mideplán en el Poder Judicial, no estaría excluyendo a ningún funcionario sino que la intención es que el nuevo sistema le sea aplicado a todo el personal que labora en el Poder Judicial entendido como un todo, conformado por todo el sector de administración de justicia, la Defensa Pública, la Fiscalía General, el Organismo de Investigación Judicial, el sector administrativo, y cualquier otro departamento o unidad que integre el organigrama de trabajo de este Poder de la República, sea a nivel de judicatura, auxiliar o administrativo. Desde esta perspectiva entonces, no estoy de acuerdo con la posición de mayoría de esta Sala en cuanto a que es válido dividir a los empleados judiciales en dos bandos: los que sí pueden ser incluidos en el sistema de gestión de empleo público y los que no podrían ser inmersos ahí que, para la mayoría de integrantes de esta Sala, serían los (as) funcionarios (as) que ejercen las funciones jurisdiccionales -jueces- o para- jurisdiccionales -fiscales, defensores públicos y profesionales y personal especializado del Organismo de Investigación Judicial, etc.- así como los funcionarios del nivel gerencial o de alta dirección política como los denomina el proyecto de ley. Considero que todo el personal del Poder Judicial debe ser protegido de la más mínima interferencia de cualquier otro Poder. Los servidores judiciales no laboran para sectores fragmentados de la administración pública sino que su patrono es uno solo y único -Poder Judicial-, además, sus objetivos como trabajadores están dirigidos a la consecución de un fin común que es el mismo de todo el Poder Judicial.

Por esta razón, en mi criterio, ni es válido que se incluya al Poder Judicial dentro del ámbito de acción de la Ley Marco de Empleo Público, ni mucho menos es admisible que se pretenda sectorizar a sus empleados toda vez que el objetivo final de su trabajo está dirigido al cumplimiento de las metas del Poder Judicial como un todo.

Por otra parte, obsérvese que el artículo 6 del proyecto de Ley Marco de Empleo Público, está obviando las competencias que tiene la Corte Suprema de Justicia en materia de gestión del recurso humano, como órgano de gobierno del Poder Judicial, para que sean suplidas por el Mideplán. A partir de esa potestad, será el Mideplán -no la Corte Suprema de Justicia- el que emitirá los actos administrativos y reglamentos dirigidos a la Dirección de Gestión Humana del Poder Judicial y esto indiscutiblemente implicará un roce con el Derecho de la Constitución, en relación con el artículo 156, en tanto el Poder Ejecutivo estaría interfiriendo -de mutuo propio- en las decisiones en materia de administración de personal que son únicas y exclusivas de la Corte Suprema de Justicia pues, a la luz del artículo 156 constitucional, es el Tribunal Superior del Poder Judicial y de ella dependen los tribunales, funcionarios y empleados.

A mayor abundamiento, con el contenido del artículo 6 del proyecto de Ley Marco de Empleo Público, no existiría una relación de coordinación-cooperación entre el Poder Judicial y el Poder Ejecutivo -Mideplán- en materia de empleo público, sino una imposición de las decisiones, disposiciones, directrices, reglamentos, etc. emitidos por el Mideplán en esa área, obviando la existencia de órganos constitucionales que tienen esa competencia como lo es la Corte Suprema de Justicia (artículo 156 constitucional).

En adición a lo anterior, el artículo 6 bajo estudio implicaría vaciar de contenido las competencias constitucionales de la Corte Suprema de Justicia en materia de gestión del empleo de los servidores judiciales, pero también de toda la normativa existente a lo interno del Poder Judicial que le atribuye a ésta, dicha gestión.

Finalmente, en lo que al Poder Judicial se refiere, debo destacar que a pesar de que el artículo 2 inciso a) del proyecto de Ley Marco de Empleo Público lo incluye dentro del ámbito de cobertura de ese proyecto, y que en la frase final de ese inciso se dispone textualmente “sin perjuicio del principio de separación de Poderes establecido en la Constitución Política”, lo cierto del caso es que la mera enunciación de ese principio no significa nada porque, artículos como el 6 bajo estudio, lo están vaciando de contenido y están ocasionando una evidente vulneración de la separación de poderes, toda vez que la intromisión que pretende tener Mideplán en el Poder Judicial en materia de gestión del talento humano, es absoluta y contraria por completo a dicha separación.

Por otra parte, en lo que al Tribunal Supremo de Elecciones se refiere, se puede decir básicamente lo mismo toda vez que en el artículo 2 inciso a) se le incluyó en el ámbito de cobertura del proyecto de la Ley Marco de Empleo Público y, por ende, el artículo 6 siguiente le sería aplicable de manera que “Las oficinas, los departamentos, las áreas, direcciones, unidades o denominaciones homólogas de Gestión de Recursos Humanos” de dicho Tribunal, igualmente quedarían a expensas de las decisiones y disposiciones que, en materia de empleo público, se emitan por parte del Mideplán. Evidentemente, al igual que como ocurre con el Poder Judicial, la inclusión de este Tribunal en ese sistema general de empleo público resulta lesiva de la independencia que le otorga el artículo 99 de la Constitución Política. Recuérdese que el Tribunal Supremo de Elecciones es un órgano constitucional especializado para la materia electoral, con el rango e independencia de los otros Poderes (judicial, legislativo y ejecutivo) y que tiene a su cargo la organización, dirección y vigilancia de los actos relativos al sufragio, así como las demás funciones que le atribuye la Constitución y la Ley; funciones en razón de las cuales tiene plena independencia y autonomía para darse su propia organización interna, lo que indudablemente implica que puede gestionar el recurso humano que requiere para su cumplimiento. En consecuencia, es contrario al Derecho de la Constitución que un órgano del Poder Ejecutivo como sería el Mideplán, le imponga el modo de actuación a este Tribunal en relación con su recurso humano, toda vez que cuenta con plena autonomía para gestionarlo por su cuenta. Nuevamente en este punto, considero que el proyecto de Ley bajo estudio, pretende incluir a todo el personal que labora para el Tribunal Supremo de Elecciones y, una vez más, no comparto el criterio de la mayoría de esta Sala en cuanto a excluir del sistema general de empleo público a una parte de sus empleados, a saber, los funcionarios de ese Tribunal que ejercen función electoral -letrados, directores del Departamentos, profesionales, etc., y quienes ejercen cargo de alta dirección política, así como el personal administrativo, profesional y técnico, que defina de forma exclusiva y excluyente cada jerarca del poder respectivo, pues, en estos casos, no es posible someterlo a directrices, disposiciones, circulares, manuales que emita Mideplán. En mi opinión, y como ya lo señalé en relación con el Poder Judicial, no es posible crear dos bandos de funcionarios tampoco en el Tribunal Supremo de Elecciones de manera que, una parte de ellos, queden incluidos en el sistema de empleo público y otros estén excluidos. Una vez más reafirmo mi tesis en cuanto a que todos y cada uno de los empleados del TSE, son parte indispensable de todo el engranaje, desde el cargo más humilde hasta el más alto en la jerarquía, todos cumplen, desde diferentes labores, un objetivo único que es el constitucionalmente asignado al TSE. Hacer una fragmentación del régimen de los trabajadores, sin duda alguna vulnera el principio de igualdad y no discriminación pues, funcionarios que van encaminados al cumplimiento de un mismo fin, estarían regidos por sistemas de empleo público diferentes.

• g)Razones adicionales de la magistrada de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 7 por afectar la independencia del Poder Judicial y del Tribunal Supremo de Elecciones Respecto del art. 7 la mayoría de la Sala se limita a evacuar la consulta en relación con los incisos expresamente mencionados y justificados por los legisladores consultantes, a saber, los incisos d), g) y p) por afectar la independencia del Poder Judicial y del Tribunal Supremo de Elecciones.

Sin embargo, al estimar como admisible la consulta de constitucionalidad planteada por la Corte Suprema de Justicia y en virtud de lo dispuesto en el art. 101 párrafo primero de la LJC, no me veo limitada a pronunciarme exclusivamente sobre los incisos citados, sino en relación con la generalidad del art. 7 consultado. Por lo tanto, tal y como lo hace la mayoría de la Sala respecto a otras instituciones, considero que el art. 7 es inconstitucional en relación con aquellas disposiciones que someten al Poder Judicial y al Tribunal Supremo de Elecciones a la potestad de dirección y reglamentación por parte del Mideplan, obviando toda relación con la Corte Suprema de Justicia o el pleno de los Magistrados del Tribunal Supremo de Elecciones, órganos de los cuales dependen los funcionarios y empleados del ramo judicial y electoral, respectivamente.

Ya he expresado que considero que es inconstitucional la rectoría sobre el Poder Judicial y el Tribunal Supremo de Elecciones que se busca en manos del Poder Ejecutivo. En el art. 7 quedan de manifiesto todas las competencias que se pretenden conferir a este órgano en su condición de rector, por ejemplo: en el inciso a) la competencia de establecer, dirigir y coordinar la emisión de políticas públicas, programas y planes nacionales de empleo público; en el inciso c) la competencia de “emitir disposiciones de alcance general, directrices y reglamentos, que tiendan a la estandarización, simplificación y coherencia del empleo público”, lo que se complementa con lo dispuesto en el inciso d) que prevé la competencia de “asesorar a las entidades y los órganos incluidos, bajo el ámbito de cobertura de la presente ley, para la correcta implementación de las políticas públicas, las disposiciones de alcance general, las directrices y los reglamentos que se emitan en el marco de la rectoría política en empleo público”; en el inciso g) se dice que le corresponde al Mideplan “emitir los lineamientos y principios generales para la evaluación del desempeño” y en el inciso l) según el cual le compete “coordinar con la Procuraduría de la Ética Pública para emitir las disposiciones de alcance general, las directrices y los reglamentos, para la instrucción de las personas servidoras públicas sobre los deberes, las responsabilidades y las funciones del cargo, así como los deberes éticos que rigen la función pública”. Todo lo anterior evidencia que tanto Poder Judicial como el Tribunal Supremo de Elecciones quedan sujetos a la potestad de dirección y reglamentación del Mideplan. Asimismo, pese a la independencia que tienen dichos poderes para regular lo concerniente a su salario, se dispone en el inciso m) que le corresponde a esta cartera ministerial del Poder Ejecutivo establecer “un sistema único y unificado de remuneración de la función pública”, definiendo en consecuencia un sistema único de salarios a las personas que ejercen la judicatura y la función electoral, sometiéndolas a decisiones del Poder Ejecutivo que, como expliqué anteriormente, considero que es un mecanismo peligroso que mina la estabilidad del funcionamiento de las instituciones, que son el cimiento de la democracia costarricense. Por lo demás, como he dicho, no objeto que mediante una ley se establezcan normas generales sobre salarios y otras condiciones de los servidores públicos, que vinculen a todos los poderes.

• h)Razones adicionales de la magistrada Picado Brenes, sobre el artículo 7 del proyecto en cuanto a las amplias competencias de Mideplán respecto del Poder Judicial y el Tribunal Supremo de Elecciones (punto 8 del Por Tanto) Según se ha venido señalando, tanto el Poder Judicial como el Tribunal Supremo de Elecciones, gozan de independencia, constitucionalmente otorgada, para el ejercicio de sus competencias y el cumplimiento de sus fines. En atención al principio constitucional de separación de poderes, es bien sabido que ningún otro Poder de la República, puede interferir en las competencias del otro; en consecuencia, el Poder Ejecutivo a través del Mideplán, no podría imponer ni al Poder Judicial ni al Tribunal Supremo de Elecciones, ninguna de las potestades que se le confiere a ese órgano en el artículo 7 del proyecto de Ley Marco de Empleo Público. Obsérvese que ese numeral establece, como competencias del Mideplán, las siguientes:
• a)Establecer, dirigir y coordinar la emisión de políticas públicas, programas y planes nacionales de empleo público, b) Establecer mecanismos de discusión, participación y concertación con las corporaciones municipales en materia de empleo público.
• c)Emitir disposiciones de alcance general, directrices y reglamentos, que tiendan a la estandarización, simplificación y coherencia del empleo público.
• d)Asesorar a las entidades y los órganos incluidos, bajo el ámbito de cobertura, para la correcta implementación de las políticas públicas, las disposiciones de alcance general, las directrices y los reglamentos que se emitan en el marco de la rectoría política en empleo público.
• e)Administrar y mantener actualizada la plataforma integrada del empleo público.
• f)Publicar la oferta de empleo público, a través de la plataforma virtual que alimentarán las entidades y los órganos incluidos del ámbito de cobertura.
• g)Emitir los lineamientos y principios generales para la evaluación del desempeño.
• h)Administrar e implementar las acciones de investigación, innovación y formulación de propuestas de empleo público.
• i)Dirigir y coordinar la ejecución de las competencias inherentes en materia de empleo público con el Ministerio de Hacienda, el Ministerio de Trabajo y Seguridad Social, la Autoridad Presupuestaria y la Dirección General de Servicio Civil, entre otras dependencias técnicas en la materia de empleo público.
• j)Recolectar, analizar y divulgar información en materia de empleo público de las entidades y los órganos para la mejora y modernización de estos.
• k)Preparar una estrategia coherente e integral para el aprendizaje y el desarrollo en todo el servicio público, l) Coordinar con la Procuraduría de la Ética Pública para emitir las disposiciones de alcance general, las directrices y los reglamentos, para la instrucción de las personas servidoras públicas sobre los deberes, las responsabilidades y las funciones del cargo, así como los deberes éticos que rigen la función pública.
• m)Establecer un sistema único y unificado de remuneración de la función pública n) Realizar diagnósticos en materia de recursos humanos de las entidades y los órganos incluidos para lograr un adecuado redimensionamiento de las planillas existentes y la elaboración de criterios generales que delimiten los sectores cuya actividad, por su valor estratégico institucional, así como la vinculación con la actividad sustantiva, se debería reservar para que sean realizadas exclusivamente por personas servidoras públicas. Además, analizar los que sirvan de orientación para delimitar la prestación de los que podrían ser externalizados y las condiciones de prestación de estos.
• o)Prospectar las tendencias globales del futuro del empleo público, con el propósito de informar la planificación de este.
• p)Analizar la eficiencia y eficacia de los mecanismos de evaluación, a efectos de determinar si estos cumplen o no su cometido.
• q)Evaluar el sistema general de empleo público en términos de eficiencia, eficacia, economía, simplicidad y calidad.

A partir de la lectura anterior, es más que evidente que, en materia de empleo público y en los términos en que está redactado ese numeral 7, el Mideplán tendrá la competencia y potestad para establecer todo lo que estime pertinente, por encima de cualquier jerarquía o Poder de la República. En el caso concreto, la pretensión de aplicar ese numeral a lo interno del Poder Judicial y del Tribunal Supremo de Elecciones, implicaría vulnerar el Derecho de la Constitución y, específicamente, el principio de separación de poderes pues el Poder Ejecutivo no puede ordenar la actividad de aquéllos en materia de empleo público ni mucho menos establecerles metas u objetivos en los términos en que lo hace ese artículo 7 de cita. En ese sentido, y como ya lo he venido sosteniendo, no sería válido que el Mideplán indique al Poder Judicial o al Tribunal Supremo de Elecciones cuál sería la correcta implementación de las disposiciones que emita ese órgano del Poder Ejecutivo en materia de empleo público (inciso d), tampoco que dicte lineamientos para la evaluación del desempeño de empleados del Poder Judicial y del Tribunal Supremo de Elecciones (inciso g), ni mucho menos que Mideplán evalúe lo relativo al empleo en cuanto a eficiencia, eficacia, economía, simplicidad y calidad en relación con los servidores del Poder Judicial o del Tribunal Supremo de Elecciones. Todas esas competencias y atribuciones, son propias del Tribunal Supremo de Elecciones y del Poder Judicial, consustanciales a cada uno de ellos y, por tal razón, sería inconstitucional cualquier injerencia que pretendiera tener el Mideplán en la gestión del talento humano de ambos, al amparo de lo establecido en el artículo 7 del proyecto de Ley Marco de Empleo Público.

• i)Nota separada de la magistrada Garro Vargas en relación con el artículo 12 respecto al Poder Judicial y el Tribunal Supremo de Elecciones En el sub lite he coincidido con la mayoría de esta Sala cuando señala que no habido una apropiada fundamentación sobre las dudas de constitucionalidad del art. 12 del proyecto de ley y su aplicación, tanto al Poder Judicial como al Tribunal Supremo de Elecciones. Por lo tanto, tal aspecto debe declararse inevacuable. Sin embargo, me reservo la advertencia en el sentido de que, si llegara a comprobarse que la plataforma integrada de empleo público y su manejo implique una reglamentación que afecte la independencia de los otros poderes de la república, podría ser una disposición inconstitucional. Es decir, si hubiera una demostración de que existe una intromisión indebida, esta sería inconstitucional.
• j)Nota separada de la magistrada Picado Brenes, sobre el artículo 12 del proyecto en cuanto a la Base de Datos (punto 10 del Por Tanto) Coincido con el criterio unánime en cuanto a declarar inevacuable la consulta planteada en relación con el artículo 12 del proyecto de ley bajo estudio; sin embargo, estimo que, por la trascendencia de lo que se indica en este artículo, respecto del Poder Judicial y del Tribunal Supremo de Elecciones, es necesario rescatar algunos elementos que se pueden interpretar a partir de la lectura de ese numeral y que, en mi opinión, deben ser analizados. Obsérvese que el artículo bajo estudio está dando vida a una nueva figura que se ha dado en denominar “plataforma integrada de empleo público”, la cual será capaz de recolectar de modo centralizado, datos e información sobre el perfil laboral de las personas servidoras públicas, y ahí se podrá encontrar a personas que se consideran “inelegibles para ser nombradas nuevamente en puestos públicos por motivos de haber sido sancionados con una inhabilitación”. Esta plataforma será administrada por el Ministerio de Planificación Nacional y Política Económica y según se desprende del numeral, el objetivo de esa plataforma es contar con “evidencia oportuna y exacta” para la toma de decisiones en materia de empleo público. En mi criterio, la norma plantea serios problemas de podrían rozar con la Constitución, pues además de que se trata de un registro público en donde se contará con datos sensibles de las personas servidoras públicas, también debe tomarse en cuenta que su recolección se estaría haciendo de manera automática, y el acceso a su contenido pareciera ser libre, únicamente sujeto a la oportunidad y conveniencia de la administración y sin la más mínima intervención de un juez. Debe recordarse que la recolección de datos personales está sujeta a reglas que garanticen el derecho a la protección de esos datos así como el derecho a la autodeterminación informativa de su propietario y aún cuando en el ámbito público tales reglas pueden ser menos rígidas, lo cierto es que siempre debe existir una ley que lo autorice bajo situaciones que sean razonables y acordes con el principio democrático y siempre sujeto a la intervención de un juez en caso de que sea necesario. En el caso concreto, se observa que el proyecto de ley no establece una adecuada justificación de las razones por las cuales se hace necesario elaborar ese registro, tampoco se dispone si las personas servidoras públicas van a poder autorizar su inclusión en dicho registro, no se determina cuáles de sus datos constarán ahí ni mucho menos se establece el procedimiento a través del cual las personas van a tener acceso a su información, a su corrección o los fines para los cuales se usarán en cada caso concreto. Por otra parte, tampoco se establece el nivel de protección que se le dará a esos datos ya que solo se menciona que estarán administrados por el Mideplán; aspecto que es de gran relevancia pues no puede olvidarse que los datos que están almacenados en registros públicos, serán de acceso restringido, con lo cual el proyecto debería de contemplar -al menos- los elementos esenciales bajo los cuales se dará acceso a ese registro, sobre todo cuando se toma en cuenta que ahí podrá constar información sensible. Aunado a lo anterior, dada la gravedad del tema, en mi criterio, aun cuando el artículo 12 establece que esa plataforma integrada de empleo público deberá respetar lo dispuesto en la Ley 8968 de Protección de la Persona frente al Tratamiento de sus Datos Personales, lo cierto del caso es que el proyecto es omiso en incluir aspectos relativos al manejo de actuación de las personas que alimentarán esas bases de datos así como las posibles sanciones que pudieren existir en caso de que se haga un mal uso de la información a la que tienen acceso, ello por cuanto en cada dependencia pública habrá personal encargado y al sumar instituciones, serán muchas las personas que podrían tener algún tipo de contacto con esa información así como su manipulación. En esta materia no puede olvidarse que en ese registro puede constar información sensible, también pueden existir datos cuya difusión indiscriminada podría afectar seriamente a las instituciones públicas, pero sobre todo entratándose del Poder Judicial y del Tribunal Supremo de Elecciones, cuyos servidores deben gozar de una protección institucional especial en razón de la naturaleza de las funciones, como podría ser el caso de los agentes del OIJ, Fiscales, Defensores Públicos, Jueces, o personal estrechamente vinculado con el proceso electoral, entre otros.

En consecuencia, en mi criterio, el artículo podría contener roces de constitucionalidad al no incluir aspectos como los indicados que pueden ocasionar serias lesiones a los derechos fundamentales de las personas servidoras públicas que pudieren estar incluidas en esa plataforma integrada de empleo público.

• k)Razones diferentes de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 13 respecto al Poder Judicial y el Tribunal Supremo de Elecciones Al igual que la mayoría, considero que el art. 13 del proyecto de ley es inconstitucional por lesionar la independencia de poderes, tanto respecto del Poder Judicial como del Tribunal Supremo de Elecciones. Sin embargo, estimo que la inconstitucionalidad no se circunscribe a lo establecido en el inciso f), tal como lo declara la mayoría, sino que se proyecta a la totalidad del artículo. Esto es así porque, si solamente se declara inconstitucional el inciso f), se podría entender, en consecuencia, que es constitucional que el resto de funcionarios judiciales que no son jueces –pero que son personal de apoyo, vitales para la administración de justicia (fiscales, letrados, profesionales, policías judiciales, defensores públicos, etc.)– sí queden dentro del régimen general de empleo público bajo la expresa rectoría del Mideplan. En efecto, al entender la rama judicial solo desde la perspectiva del inciso f), esto es, que solo se refiere a jueces y magistrados (personas que administran justicia y magistrados del Tribunal Supremo de Elecciones), se desconocen todas las particularidades y necesidades del personal de apoyo de dichos poderes de la república. Es decir, dicho inciso es deficiente en sí mismo, pero su redacción hace que los demás también lo sean. Para explicar esto se podría decir que se trata de una realidad vista desde un punto de vista cóncavo y de uno convexo. Es decir, desde un ángulo, el inciso f) al contemplar solo una parte de la rama judicial y del Tribunal Supremo de Elecciones, desconoce la realidad de que estas instituciones están conformadas –además de los magistrados y el personal que directamente administra justicia– por una amplia gama de funcionarios de apoyo, que son esenciales para la adecuada ejecución de las competencias constitucionalmente designadas. Pero la sola declaratoria de inconstitucionalidad del inciso f) es insuficiente, pues implicaría que la declaratoria de inconstitucionalidad de dicho inciso en forma independiente podría provocar que el resto de los funcionarios judiciales o del Tribunal Supremo de Elecciones, que no son magistrados o no administran justicia de forma directa, queden sometidos a la rectoría del Mideplan. Por lo tanto, visto desde el otro ángulo, aunque no estuvieran consultados el resto de los incisos, es claro que dicho numeral debe examinarse de forma íntegra. Recuérdese que al evacuar una consulta de constitucionalidad, la Sala debe dictaminar sobre los aspectos y motivos consultados, pero también puede dictaminar “sobre cualesquiera otros que considere relevantes desde el punto de vista constitucional” (art. 101 párrafo primero de la LJC). En consecuencia, pese a que solamente se haya consultado el inciso f), por pura derivación lógico-jurídica, es claro que desde el punto de vista constitucional dicho artículo está revestido de inconstitucionalidad, en la medida en que la construcción de las familias de puestos desconoce las particulares y conformación institucional de los poderes de la república para llevar adelante la función de administrar justicia o de organizar el sufragio, pues lo asocia únicamente con magistrados y personas que administran justicia. Hay que observar que el propio art. 13 dispone que “La creación de familias de puestos de empleo público es reserva de ley y deberá estar justificada por criterios técnicos y jurídicos coherentes con una eficiente y eficaz gestión pública”, norma que debe examinarse además en conjunto con lo referido en el art. 32 del proyecto de ley, que ordena que “Cada familia laboral estará conformada por una serie de grados, cada uno de los cuales representa un grupo de puestos con perfil similar. El Ministerio de Planificación Nacional y Política Económica (Mideplán) definirá el número de grados requeridos dentro de cada familia laboral, así como sus características, como respuesta a una evaluación de todos los puestos dentro de la familia laboral”. De manera que debe reiterarse que de declararse solamente la inconstitucionalidad del inciso f) se corre el peligro de que el resto del personal judicial y del Tribunal Supremo de Elecciones sea ubicado —como de hecho lo es— en otras “familias de puestos”, cuya evaluación y definición quedaría a cargo de un órgano ajeno a los poderes mencionados. Se establecería así un peligroso portillo a través del cual se lleve a cabo la injerencia de parte de una cartera ministerial del Poder Ejecutivo respecto de la administración del personal de esos poderes, lesionándose así la independencia de estos.
• l)Razones diferentes de la magistrada Picado Brenes, sobre el artículo 13 del proyecto en cuanto a los grupos de familias de puestos del Poder Judicial y el Tribunal Supremo de Elecciones (punto 11 del por tanto) La Sala, por unanimidad, ha considerado que el artículo 13 inciso f) es inconstitucional por lesionar la independencia de Poderes tanto en relación con el Poder Judicial como con el TSE. Sobre el particular, en lo que a mi criterio particular se refiere, estimo necesario y oportuno hacer algunas precisiones.

Obsérvese que el artículo 13 del proyecto de Ley Marco de Empleo Público, se refiere al Régimen General de Empleo Público y se encuentra ubicado en el Capítulo IV Organización del Trabajo. En ese numeral del proyecto se dispone que existirá un único régimen general de empleo público que estará conformado por 8 familias de puestos, las cuales serán de aplicación en los órganos y entes de la Administración Pública, de acuerdo con las funciones que realice el personal de cada uno de ellos. Esas 8 familias de puestos serán las siguientes:

• a)Personas servidoras publicas bajo el ámbito de aplicación del título I y del título IV del Estatuto de Servicio Civil, así como a las que se desempeñan en las instituciones señaladas en el artículo 2 de la presente ley, que no estén incluidas en las restantes familias de puestos.
• b)Personas servidoras públicas que se desempeñan en funciones en ciencias de la salud.
• c)Personas servidoras públicas que se desempeñan en funciones policiales.
• d)Personas docentes contempladas en el Estatuto del Servicio Civil, del título II y el título IV.
• e)Personas docentes y académicas de la educación técnica y superior.
• f)Personas que administran justicia y los magistrados del Tribunal Supremo de Elecciones (TSE).
• g)Personas servidoras públicas que se desempeñan en funciones del servicio exterior.
• h)Personas servidoras públicas que se desempeñan en cargos de confianza.

Obsérvese que el artículo está redactado de manera genérica e imprecisa, lo que traerá serios problemas de interpretación en cuanto a su alcance, pero también debido a que no permitiría determinar algunos aspectos que serían de fundamental relevancia. En ese sentido considero que es inadecuado acumular en un solo grupo o familia de puestos a una categoría determinada de trabajadores solo por el hecho de serlo, pues aun cuando todos se dediquen a una misma función genérica, por ejemplo ser policías, las especificidades de cada uno de ellos serán diferentes en atención al centro de trabajo, a los objetivos a los que están dirigidos y a los fines asignados a la institución en la cual están adscritos. Para explicar mejor lo dicho, tómese como ejemplo los policías que pertenecen al área genérica de la seguridad ciudadana, la cual es una materia que, en la actualidad, está adscrita a varios órganos del Estado, de modo que los cuerpos policiales encargados de ella, atienden a los criterios y objetivos específicos de la institución a la que pertenecen; sin embargo, al pretender unificar a todos los cuerpos policiales bajo un mismo sistema de empleo público, no se sabe qué ocurriría en la práctica con la diversidad de ellos que existe en el país, a saber, policía penitenciaria, policía administrativa, policía de migración, policía municipal, policía de tránsito, policías del Organismo de Investigación Judicial, entre otros. Es más que evidente que los objetivos de trabajo de la policía de migración son completamente diferentes a los de la policía penitenciaria, atienden a objetivos diversos y, por ende, la gestión del recurso humano no podría ser uniforme. En mi criterio esto generaría nuevamente una vulneración al principio de separación de poderes tutelado en el artículo 9 de la Constitución Política ya que, insisto, no puede disponerse alegremente que un órgano del Poder Ejecutivo pretenda emitir directrices y órdenes a los diferentes cuerpos policiales del país cuando éstos pertenecen a otro Poder de la República o bien, como en el caso del Organismo de Investigación Judicial que es la policía técnica especializada del Poder Judicial y cuyas funciones son completamente diferentes a las que tiene la Fuerza Pública o a cualquier otra fuerza policial del país.

Ahora bien, al analizarse la situación concreta del Poder Judicial, se observa que la gestión de su recurso humano comprendería, al menos, 5 familias de puestos:

• a)las personas servidoras públicas del Poder Judicial que desempeñan funciones en ciencias de la salud: en este punto probablemente estarían incluidos los trabajadores (as) del Organismo de Investigación Judicial que laboran en el Departamento de Medicina Legal con funciones y fines muy concretos en lo que se refiere al auxilio para la administración de justicia pero también en algunas áreas administrativas -como por ejemplo la valoración de empleados que superan los plazos de incapacidad establecidos por la CCSS-; sin embargo, es muy posible que también se incluya a quienes laboran para el Servicio Médico de Empresa, que es evidente, atiende a objetivos muy diferentes.
• b)Personas servidoras públicas que se desempeñan en funciones policiales: conforme se dijo supra, no es válido que se pretenda incluir en una misma familia de puestos a policías del Ministerio de Seguridad Pública y a policías del Organismo de Investigación Judicial pues sus objetivos, preparación, metas y fines son completamente diferentes y, por ende, sus líneas de acción, son incompatibles como para pretender que, a pesar de su naturaleza, haya unidad en las directrices que les rigen.
• c)Personas que administran justicia y los magistrados: la función concreta de administrar justicia que realizan los jueces y los magistrados, es muy específica, tutelada así como resguardada por sendos principios de rango constitucional como la independencia judicial, la separación de poderes, entre otros; sin embargo, no sería consecuente que la norma no incluya a otros funcionarios que, con rango de jueces, realizan funciones similares a las de los jueces y necesarias para la administración de justicia como serían los jueces tramitadores o los letrados de las 4 Salas de la Corte Suprema de Justicia, con lo cual la norma genera una discriminación en perjuicio de un grupo de trabajadores, pero además también parece excluir a quienes administran justicia a nivel administrativo y que inclusive en la nomenclatura actual tienen rango de jueces, como sería el caso de los integrantes de los diferentes tribunales administrativos existentes en el país, o el caso de los jueces de la Inspección Judicial del Poder Judicial. La independencia del Poder Judicial no permite excluir de su regulación legal a ningún empleado porque todos son parte del engranaje necesario para lograr una administración judicial eficiente y efectiva en la que no sólo participan jueces y magistrados, sino también el conserje que limpia los despachos, el notificador que pone a las partes en conocimiento de la situación, el chofer que traslada al magistrado, el policía judicial que transporta a los privados de libertad, el defensor público que los defiende, el fiscal que ejerce la acción penal del Estado, y cuántos otros muchos funcionarios más del Poder Judicial que intervienen en este engranaje y que son parte muy importante de todo el Poder Judicial. En este punto no puede dejarse de afirmar que este tipo de fraccionamientos entre los que están y los que no están en el sistema de empleo público, también generará una vulneración del principio de igualdad y no discriminación, pues es contradictorio que empleados todos dirigidos a la consecución de un mismo fin constitucionalmente otorgado al Poder Judicial, pertenezcan a sistemas de empleo público diferentes, con objetivos y directrices diversas. El criterio de mayoría señala que se debe incluir a quienes ejercen realmente la función jurisdiccional y que cada Poder determinará quiénes conforman ese personal; sin embargo no se debe olvidar que para lograr el dictado de una sentencia y su respectiva ejecución -fin último del Poder Judicial-, es indispensable contar con la participación del citador, notificador, policía judicial, técnico judicial, conserje, personal administrativo que tramita planillas y salarios, peritos, choferes, trabajadores sociales y psicólogos forenses, capacitadores, y más de 200 categorías de empleados que hay en el Poder Judicial, todos indispensables en la administración de justicia.
• d)Personas servidoras públicas que se desempeñan en cargos de confianza: en el caso del Poder Judicial existen varios puestos a los que se les ha dado esta clasificación y dentro de ellos se encuentran las secretarias y choferes de los magistrados, algunos de los letrados sujetos al nuevo régimen, entre otros. Surge la duda entonces de cómo quedarán estas personas en relación con el nuevo sistema y si conservarán algún tipo de derecho o si, por el contrario, so pretexto de la nueva nomenclatura, podrían ser despedidos bajo el argumento de ser personal de confianza y para su sustitución en esos cargos, como le correspondería hacerlo a un órgano del Poder Ejecutivo, pudieren designar a otras personas que no necesariamente cumplen con los requisitos que se requiere para laborar en el Poder Judicial. En este punto se generan serias dudas en cuanto al manejo que un órgano del Poder Ejecutivo le pudiera dar a los “cargos de confianza”, sobre todo si con ellos se quisiera satisfacer intereses o compromisos políticos. Lo anterior es válido de pensar porque véase que la norma no establece ningún requisito o condición para el ingreso en esa familia de puestos y porque el proyecto tampoco contiene, en ninguna otra norma, lo que será entendido como un “cargo de confianza”, ni siquiera en el numeral 5 que, se supone, contendría todas las definiciones de la terminología utilizada en ese proyecto.
• e)las personas que se desempeñan en las instituciones señaladas en el artículo 2 de la presente ley -en donde se ha incluido al Poder Judicial-, que no estén incluidas en las restantes familias de puestos: en este punto se observa que, por exclusión, el resto del personal del Poder Judicial que no encajó en ninguna de las 7 familias de puestos anteriores, serían incluidas en éste. Acá, en la práctica, simple y sencillamente ocurriría que, ante la duda, ante no saber de qué se trata el puesto, ante la falta de comprensión de las funciones que realiza el personal, se le catalogaría bajo este ítem, con la grave consecuencia que se podrían encontrar personas y puestos tan diversos agrupados bajo un mismo esquema, que sería imposible pretender aplicarles un sistema unificado de regulación del empleo público. Piénsese por ejemplo en un investigador de alto estándar, con un perfil profesional muy específico, talvez dedicado a labores con cierto grado de confidencialidad a lo interno del Poder Judicial, con funciones que no encuadran en ninguna de las otras 7 familias que crea ese numeral 13, y que por no tener muy claro a qué se dedica debido al nivel de secreto de las labores, deberá ser incluido en esta familia, siendo que, a su vez, tendrá como compañero en esa clasificación a un obrero no especializado que tampoco es cubierto por las otras familias de puestos y que igualmente será incluido acá; indudablemente esto generará situaciones muy disímiles, imposibles de unificar en un solo grupo de reglas y directrices como se pretende hacer con el proyecto de Ley bajo estudio. Piénsese que, en un contexto como el descrito, sería absolutamente inconveniente que un órgano del Poder Ejecutivo -Mideplán-, pretenda imponer normativa de gestión del recurso humano similar, a servidores públicos tan diferentes, generándose con ello no solo vulneraciones al principio de igualdad y no discriminación, sino también serias lesiones -al Poder Judicial en este caso-, a su independencia y autonomía para la gestión de su recurso humano.

Por otra parte obsérvese que el artículo 13 establece que para cada una de esas 8 familias de puestos se deberá contar con el diagnóstico de las condiciones de trabajo, con un programa de salud ocupacional y con protocolos de seguridad para salvaguardar la vida de las personas trabajadoras. Al respecto es necesario ser realistas ya que, si en la actualidad el tema es bastante complejo e inclusive hasta carente de regulación adecuada en muchos espacios públicos de trabajo, a pesar de que cada institución tiene la competencia para manejarlo de acuerdo con sus características y objetivos, habría que imaginarse cómo va a ser al amparo de esta Ley Marco de Empleo Público en donde las directrices no serían específicas para el pequeño grupo de trabajadores de cada institución, sino que tendrán que ser de gran magnitud porque tendría que abarcarse a todas las instituciones incluidas en el ámbito de cobertura de la Ley; indudablemente esto generará una crisis de recursos para atender todo lo relativo a la salud y seguridad ocupacional, así como también conflictos entre las instituciones que lo tienen mejor tutelado que otras, reclamos de los trabajadores y, por supuesto, vulneraciones a varios principios constitucionales porque, nuevamente, es un tema que tiene relación directa con la gestión del talento humano y que debe atender a los fines y competencias de cada institución, no a criterios generales impuestos por un órgano proveniente del Poder Ejecutivo. En ese sentido, las directrices en materia de salud y seguridad ocupacional para los empleados del Poder Judicial, jamás podrían ser las mismas que las que se emitan para un Ministerio u otra institución con funciones más de índole administrativo; inclusive a lo interno del Poder Judicial, jamás podrían ser iguales esas medidas en la Medicatura Forense del Organismo de Investigación Judicial que las aplicables al Departamento Financiero Contable. De este modo, si a lo interno de una misma institución, se pueden generar directrices diferentes, con mayor razón si se habla de todo el Estado costarricense. Por lo menos, a lo interno de cada institución, se tiene la certeza de que se hará lo mejor posible en atención a los objetivos y fines de la institución de cara a los derechos de los trabajadores, pero ello no necesariamente ocurriría cuando se tiene que atender a la generalidad de todas las personas servidoras públicas con recursos limitados. Más grave sería el asunto cuando se quiera trasladar personal de una institución a otra -porque no puede olvidarse que el proyecto establece esa posibilidad de movilizar empleados- y se pase a la persona de un ambiente respetuoso de la salud ocupacional a otro que no cumple con esas condiciones.

Ahora bien, todo lo anterior es igualmente aplicable al Tribunal Supremo de Elecciones, por lo que también el artículo 13 es inconstitucional respecto del mismo, pues todos los funcionarios de ese órgano pasarían a integrar el sistema general de empleo público y a ser incluidos en algunas de estas 8 familias de puestos, a pesar de la garantía de independencia que le ha otorgado la Constitución Política a ese Tribunal en sus artículo 9 y 99, partiendo del hecho de que el gobierno judicial y el gobierno del órgano electoral, lo ejerce respectivamente la Corte Suprema de Justicia y el Tribunal Supremo de Elecciones, de forma exclusiva y excluyente en lo que atañe a sus competencias constitucionales, por lo que, igualmente, la construcción de la familia de puestos en caso de que así se pretendiera hacer, corresponde, de forma exclusiva y excluyente, a cada poder del Estado; consecuentemente tendrá que ser competencia única del Tribunal Supremo de Elecciones y del Poder Judicial.

• m)Nota separada de las magistradas Garro Vargas y Picado Brenes, con redacción de la última, sobre el artículo 19 del proyecto en cuanto a los Traslados o la Movilidad de puestos (punto 18 del Por Tanto) Si bien es cierto coincido con el criterio unánime en cuanto a declarar inevacuable la consulta planteada en relación con el artículo 19 del proyecto de ley bajo estudio, también estimo que, por la trascendencia de lo que se indica en este artículo respecto del Poder Judicial y del Tribunal Supremo de Elecciones, resulta importante realizar algunos señalamientos al respecto. Aun cuando los consultantes no hicieron un adecuado planteamiento de las razones por las cuales estiman que este artículo 19 del proyecto de Ley bajo estudio pudiere ser lesivo del Derecho de la Constitución, lo cierto del caso es que, en mi criterio, se trata de una norma cuya redacción es bastante abierta, lo que podría generar serios problemas de constitucionalidad por los siguientes motivos. En primer lugar, debo indicar que debido a que el proyecto pretende unificar en un solo cuerpo normativo toda regulación en materia de empleo público, al centralizarse la rectoría del sistema en un solo órgano del Poder Ejecutivo, incluyendo la materia relativa a la movilidad, se corre el riesgo de perder las especificidades de cada trabajador o de las diferentes áreas de trabajo que componen a la Administración Pública. En la medida en que se generaliza, se pierde especialidad y, con ello, también se puede dar una alteración del principio de idoneidad tutelado en los artículos 191 y 192 de la Constitución Política. Lo anterior se podría agravar porque ese numeral 19 bajo estudio, permite que se hagan traslados intra e inter entidades y órganos incluidos en el régimen de empleo público, con lo cual, sería difícil que una persona especializada en determinada área, pueda desempeñarse de manera adecuada e idónea si se le traslada a otra dependencia en la que su conocimiento y experiencia no se ajustan a lo que se le exige. En segundo lugar, he de manifestar que la redacción de la norma permitiría traslados indiscriminados bajo el argumento de que ello atiende al interés público o a la necesidad institucional, con lo cual la Administración se arriesga a perder eficiencia y eficacia en su actuación, pero más grave aún, se podrían ocasionar serios perjuicios al administrado. En tercer lugar, la norma no establece límites ni restricciones, en consecuencia quedaría al libre arbitrio de funcionarios indeterminados, la aplicación de esa movilidad y esto, indiscutiblemente, podría propiciar que se utilicen criterios subjetivos para realizar los traslados de personal que, en definitiva, lejos de favorecer el interés público y la necesidad institucional, podrían permitir la intromisión de otro tipo de intereses en las diferentes instituciones públicas. No puede olvidarse que el órgano que tiene la rectoría de esta materia pertenece al Poder Ejecutivo, con toda la carga política que, por su naturaleza, lleva aparejada.

En el caso concreto del Poder Judicial, considero que permitir la intromisión de un órgano del Poder Ejecutivo como sería el Mideplán, en la toma de decisiones relativa a la movilidad en el empleo público, tendría una peligrosa incidencia en el ejercicio de la función jurisdiccional propia del Poder Judicial, pero también de aquellas labores administrativas esenciales que dan soporte a tal función primaria, aunque igualmente, no puede dejarse de lado que, al final de cuentas, dada la función encomendada al Poder Judicial, la afectación que esto produciría se daría en todos los escalafones laborales de la institución. En mi criterio sería impensable que, en aplicación de este artículo 19 y bajo criterios subjetivos camuflados de interés público o de necesidad institucional, se pretenda trasladar a un Juez de la República a ejercer otro tipo de funciones para las cuales no fue nombrado y cuya idoneidad no resulte ser la adecuada. Del mismo modo, sería inimaginable trasladar a un funcionario policial experimentado a realizar labores administrativas o de escritorio en una dependencia pública sin relación alguna con las labores policiales. Nótese que en materia de movilidad, se le estaría otorgando a Mideplán la rectoría con amplias competencias para emitir “disposiciones generales, directrices y reglamentos”, lo cual se estima contrario a la línea jurisprudencial que ha venido sosteniendo la Sala sobre la improcedencia de que una instancia externa asuma la rectoría o imponga unilateralmente criterios al Poder Judicial, en lo referente a las relaciones de empleo con sus servidores, toda vez que la Sala ha avalado la existencia, procedencia y necesidad de un régimen particular de empleo público para los servidores del Poder Judicial (ver voto n°2018-019511). En mi opinión, la atribución de competencias relativas a empleo público a un órgano del Poder Ejecutivo, órgano del Poder Ejecutivo, con tan amplios poderes, que pueda dar órdenes sobre esta materia al Poder Judicial, evidentemente viola además -como se ha venido señalando-, las competencias exclusivas y excluyentes de la Corte Suprema de Justicia, contenidas en el artículo 156 constitucional (“La Corte Suprema de Justicia es el tribunal superior del Poder Judicial, y de ella dependen los tribunales, funcionarios y empleados en el ramo judicial, sin perjuicio de lo que dispone esta Constitución sobre servicio civil.”), constatándose con ello que, Mideplán, órgano del Poder Ejecutivo, asumiría una serie de competencias constitucionales de la Corte Suprema de Justicia, relacionadas con su función de gobierno del Poder Judicial. Bajo esta línea de pensamiento, considero que el artículo 19 bajo estudio, podría presentar serios roces constitucionales y de vulneración de los principios de independencia y autonomía del Poder Judicial, así como también la separación de poderes. Recuérdese que la independencia judicial no sólo se refiere a la independencia de criterio del juzgador sino también a una serie de manifestaciones en los ámbitos administrativo, de financiamiento, de funcionamiento, que implican necesariamente que todo órgano perteneciente a otro Poder de la República, no puede tener injerencia en el Poder Judicial. Ciertamente, del examen integral del proyecto consultado se observa que el “Sistema General de Empleo Público” que coloca al Ministerio de Planificación Nacional y Política Económica (Mideplán) como su ente rector, invade la materia de administración de los recursos humanos del Poder Judicial. La independencia económica, personal, funcional, orgánica e institucional, tanto del Poder Judicial en sí mismo, como de los jueces y auxiliares de la justicia, es esencial en un Estado Constitucional de Derecho. Conforme a tal principio, cada poder es independiente del otro, cada órgano del Estado debe poder ejercer su función con independencia de los otros (art. 9° constitucional), y si bien, puede haber interrelación entre ellos, nunca subordinación. Además, no solo se trata de una vulneración a los principios de separación de funciones y a la independencia judicial, sino a todo el sistema democrático y de organización del Poder que el Constituyente ha creado en nuestro Estado de Derecho, pues el proyecto consultado -en su generalidad- pretende una hipercentralización (contrario al proceso de descentralización establecido por el Constituyente) que, demás, transgrede el principio de separación de poderes, particularmente a la independencia judicial. De igual manera, estimo que lo anterior le es plenamente aplicable al Tribunal Supremo de Elecciones pues de conformidad con el artículo 99 de la Constitución Política, goza de independencia en el desempeño de su cometido; independencia que también incluye los ámbitos económico, personal, funcional, orgánico e institucional y, por tanto, sería inconstitucional que se pretenda someter a ese Tribunal a un “Sistema General de Empleo Público” que coloca al Ministerio de Planificación Nacional y Política Económica (Mideplán) como su ente rector, y que le otorga competencias para colocarse en una posición superior al propio Tribunal Supremo de Elecciones en materia de administración de los recursos humanos. Bajo esta posición, existe normativa que impide que una persona que fue juez litigue inmediatamente después de jubilarse o que una persona de un poder de la república trabaje en otro. Justamente para evitar tráfico de influencias o relaciones no apropiadas. Se podrían dar situaciones extremas como por ejemplo, cualquier traslado de un empleado del Poder Ejecutivo al Tribunal Supremo de Elecciones a realizar trabajo electoral, o situaciones igualmente de cuidado como sería el traslado de un policía del Ministerio de Seguridad o de una Municipalidad, al Organismo de Investigación Judicial.

• n)Nota separada de la magistrada Picado Brenes, sobre el artículo 31 del proyecto en cuanto a la Metodología de Valoración del Trabajo (punto 20 del Por Tanto) Ciertamente coincido con el criterio unánime en cuanto a declarar inevacuable la consulta planteada en relación con el artículo 31 del proyecto de ley bajo estudio; sin embargo, estimo que, por la trascendencia de lo que se indica en este artículo, respecto del Poder Judicial y del Tribunal Supremo de Elecciones, el numeral 31 deberá ser objeto de un estudio meditado toda vez que establece obligaciones importantes para los servidores públicos a partir de las cuales se valorará su trabajo, por lo que, para su aplicabilidad, deben estimarse muchos elementos en aras de que no implique lesiones a los derechos fundamentales de los trabajadores.

En vista de que el objetivo macro del proyecto de Ley es el sometimiento de todo el aparato estatal a un sistema único de regulación del empleo público y la centralización de toda su rectoría en un órgano del Poder Ejecutivo (Mideplán), ello indefectiblemente implicará generalizar una serie de pautas, postulados, metodología y procedimientos en aras de que ese sistema único pueda ser aplicado de manera uniforme a todos los sectores que se están incluyendo en la propuesta. Esta generalidad trae consigo una serie de implicaciones para la Administración y el Estado que inician con la sujeción de todas las dependencias y órganos a las decisiones que adopte el Poder Ejecutivo a través del Mideplán, -en mi criterio- en clara vulneración del principio de separación de poderes, como ya lo he venido sosteniendo.

En lo que al Poder Judicial se refiere, aún cuando el proyecto en consulta establece que éste se aplicará al Poder Judicial, “sin perjuicio del principio de separación de Poderes establecido en la Constitución Política” -imperativo impuesto, de por sí, por la propia Constitución-, lo cierto del caso es que, de la lectura integral del proyecto se puede concluir que el cumplimiento de tal principio no se garantiza de modo contundente pues, por el contrario, las normas del proyecto tienen, como objetivo general, sujetar a todos los Poderes de la República -incluido el Poder Judicial- a la rectoría del Mideplán y a los criterios técnicos de la Dirección General de Servicio Civil, con lo cual, es más que evidente que aquél principio queda completamente desvanecido con la normativa integral del proyecto.

En el caso concreto del artículo 31 bajo estudio, se observa que será ese órgano el que especificará la metodología de valoración del trabajo para el servicio público, la cual se haría a través de un esquema de factor de puntos en el cual las puntuaciones se asignarán a los puestos de trabajo de acuerdo con un análisis de los factores de trabajo relevantes, todo ello a criterio de Mideplán. Para la situación particular del Poder Judicial, ello implicará que sea una instancia externa la que imponga, unilateralmente, los criterios relativos al recurso humano, entre ellos la valoración que debe hacerse del trabajo del personal, con absoluta incidencia en el ejercicio de la función jurisdiccional propia del Poder Judicial y de aquellas funciones administrativas esenciales que dan soporte a tal función primaria, todo ello sin tomarse en consideración que la propia Sala Constitucional ha manifestado “que la evaluación del desempeño y la competencia en la toma de decisiones en materia laboral, sean generales o concretas, se encuentran ya reguladas por el mencionado marco normativo del Poder Judicial, imposibilitando que una instancia externa asuma la “rectoría” o imponga criterios sobre ese Poder. Es más, dicho marco normativo está diseñado para garantizar la eficiencia de la función judicial y proteger a los servidores judiciales de injerencias externas (…) (ver sentencia nº 2018-019511 de 21:45 horas de 23 de noviembre de 2018), y a que también la Sala ha dicho que la normativa especial del Poder Judicial sobre estas materias, no puede ser “derogada tácitamente por una norma posterior de carácter general” (votos n°01265-1995 y 2017-003450). Ahora bien, como se ha venido diciendo, si el Poder Judicial es un engranaje que se compone de múltiples piezas engarzadas entre sí, en donde todas son importantes y necesarias, la afectación que esta norma tendría se daría en relación con todo el Poder Judicial y no solamente con los que administran justicia, o con los que cumplen funciones auxiliares, o con los administrativos. Nuevamente debo indicar que una polarización del personal en estos términos, también resultaría lesiva del principio de igualdad y no discriminación.

Lo anterior lleva también a cuestionarse cómo un órgano del Poder Ejecutivo, externo por completo al Poder Judicial y sin conocimientos avanzados sobre la función jurisdiccional, pueda definir cuáles serán los factores de trabajo relevantes y específicos que requieren tener las personas servidoras del Poder Judicial, en áreas tan diversas como la práctica forense, la administración de justicia, la función auxiliar policial, la labor realizada por la Unidad Canina, las labores propias del Ministerio Público, entre otras muchas y complejas que se realizan a lo interno del Poder Judicial y de sus órganos auxiliares, que cuentan con una especificidad propia y particular que no existe en ningún otro Poder de la República y que no puede existir, porque el Poder Judicial en un Estado de Derecho es solo uno. Entonces, en mi criterio, cómo podría determinar ese órgano ejecutivo, con absoluta certeza, cuáles de esos aspectos que están regulados en el citado artículo 31, deberán tener mayor o menor peso para ser incluidos en una evaluación del trabajo de los servidores judiciales?. Igualmente, en mi opinión, la respuesta necesariamente implicaría que ese órgano -Mideplán-, interfiera en competencias que son exclusivas y excluyentes de la Corte Suprema de Justicia, contenidas en el artículo 156 constitucional (“La Corte Suprema de Justicia es el tribunal superior del Poder Judicial, y de ella dependen los tribunales, funcionarios y empleados en el ramo judicial, sin perjuicio de lo que dispone esta Constitución sobre servicio civil.”), o lo que es lo mismo, una evidente lesión al principio de separación de Poderes y al principio de independencia judicial, tutelados en la Constitución Política. Recuérdese una vez más que la independencia judicial no sólo se refiere a la independencia de criterio del juzgador sino una serie de manifestaciones en los ámbitos administrativos, de financiamiento, de funcionamiento, que implican necesariamente que todo órgano perteneciente a otro Poder de la República, no puede tener injerencia en el Poder Judicial.

Ciertamente, este “Sistema General de Empleo Público” que coloca al Ministerio de Planificación Nacional y Política Económica (Mideplán) como su ente rector, invade la materia de administración y gestión del talento humano del Poder Judicial y permite a Mideplán dar órdenes específicas al Poder Judicial para organizar su gestión de empleo, desde la forma en que se diseñan así como los criterios a utilizar en las pruebas de conocimiento, competencias y psicométricas para la selección de personal, el modo preciso en que deben efectuarse los concursos internos y externos y, en lo que a este artículo 31 se refiere, sobre cómo debe realizar sus procesos de evaluación y valoración del trabajo, desconociéndose con su contenido las normas especiales -inclusive de rango legal- en cuanto a la regulación de servicio de los empleados del Poder Judicial que existen a lo interno de la institución.

En otro orden de cosas, si bien es cierto, algunos de los rubros que contempla ese artículo 31 del proyecto bajo estudio, pudieren servir para clasificar determinados puestos de trabajo a lo interno del Poder Judicial, como podría ser la exigencia de conocimientos y experiencia, el margen de discrecionalidad para la adopción de decisiones, la disponibilidad, la complejidad del trabajo entre otros, también es lo cierto que hay muchos de ellos que, por el específico tipo de funciones que se realizan en el Poder Judicial, no podrían ser tomados en cuenta; en su defecto, sí habrían otros aspectos de fundamental relevancia a considerar que no estén incluidos en ese numeral 31, y ello es así precisamente por lo que se indicó supra en cuanto a que el objetivo de aplicar un sistema único de empleo público necesariamente conlleva el quebrantamiento de la especificidad propia de la función jurisdiccional, de sus labores anexas, de las auxiliares de justicia, de las administrativas y, en general, de todas las labores que se desarrollan en los diferentes departamentos de ese Poder de la República.

Otro aspecto que debe ser analizado en este artículo 31 es el hecho de que, la generalidad de la redacción de la norma, permitiría la intromisión de criterios subjetivos a la hora de asignarle a cada uno de los factores ahí señalados, un peso relativo, toda vez que no incluye parámetros objetivos que permitan establecer una metodología de valoración del trabajo más ajustada a los principios de idoneidad comprobada que se tutelan en los artículos 191 y 192 de la Constitución Política y que se correspondan con la especificidad del trabajo que se realiza en el Poder Judicial.

Concluyo que, frente a este panorama, es inconstitucional toda norma que sujete al Poder Judicial a órdenes, supervisión o directrices del Poder Ejecutivo, pues se vulneran los principios de separación de funciones y la independencia judicial, así como el sistema democrático y de organización del Poder que el Constituyente ha creado en nuestro Estado de Derecho.

• ñ)Voto salvado de los magistrados Castillo Víquez, Hernández López y Salazar Alvarado, con redacción del primero, sobre los artículos 49, inciso b Desde nuestra perspectiva, salvamos el voto de la forma más respetuosa, toda vez que el inciso b) del artículo 49 del proyecto de ley no tiene ninguna relación con las competencias constitucionales del Poder Judicial. Se refiere a un tema propio de la dinámica interna de un órgano de la Administración Pública -establecer quién agota la vía administrativa, el dotarlo de personalidad jurídica instrumental o presupuestaria y el atribuirle una competencia legal para garantizar la eficiencia-, por lo que lo procedente es salvar el voto en los términos explicados.
• o)Voto salvado del magistrado Castillo Víquez y la magistrada Hernández López, con redacción del primero, sobre los artículos 49, incisos g y h Con el respeto acostumbrado salvamos el voto y declaramos que no son inconstitucionales los incisos g) y h) del numeral 49 del proyecto de ley consultado, por la elemental razón de que la potestad de coordinación no conlleva el ejercicio de la potestad de dirección, ni mucho menos de jerárquica y, por consiguiente, se mantiene incólume la independencia de Poder Judicial. Hay que tener presente que la coordinación es una función jurídico- administrativa a la que recurre la Administración Pública cuando una cuestión desborda la competencia de un órgano o ente y atañe a varios de estos, o la complejidad de la cuestión demanda un esfuerzo conjunto de varios órganos o entes, o es necesario esta acción para aprovechar con criterio de eficacia, eficiencia y buen manejo los fondos públicos, etc., y por esto se hace necesario aunar esfuerzos, recursos, voluntades, etc., para dar una solución integral y sostenible a un determinado problema o enfrentar con éxito un reto que, con motivo de la satisfacción objetiva de los intereses públicos, debe realizar la Administración Pública sin dilación alguna. En todos estos supuestos y otros, no es posible sostener que una labor o función de coordinación vulnere el principio de independencia judicial.

XI.- Sobre la consulta de violación a la Autonomía Universitaria.- 1) Aspectos consultados Los consultantes diputados consideran que los siguientes artículos del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, son violatorios de la autonomía universitaria. En concreto, consultan sobre los artículos siguientes, indicados, sea en el encabezado del título general o en el resto del texto del escrito de interposición:

6 (rectoría de Mideplan), 7 (competencias de Mideplan), 9.a (oficinas de Recursos Humanos), 11 (planificación del empleo), 13 (familias de puestos), 14 (reclutamiento y selección), 15 y 16 (postulados de reclutamiento y selección y oferta de empleo), 17 (personal de Alta Dirección), 30 (postulados gestión de compensación) 31 (valoración de trabajo) 32 (grados dentro de las familias laborales) 33 (clasificación de puestos de trabajo) 34 (columna salarial global) 35 (régimen salarial unificado) 36 (política de remuneración) 37.f) (salario global de rectores) Al respecto, lo primero que se debe indicar es que, sobre los artículos 11 (planificación del empleo), 15 (postulados de reclutamiento y selección), 16 (oferta de empleo), los consultantes no realizan una fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, razón por la cual se declara inevacuable la consulta en relación a dichos artículos. Al realizar una lectura detallada de este argumento efectuado por los consultantes, se llega a la conclusión de que no se trata de un cuestionamiento de constitucionalidad que se le esté planteando a la Sala, sino más bien de una especie de queja que no cuenta con la debida fundamentación sobre los motivos por los cuales los diputados estiman que podría contener algún roce con el Derecho de la Constitución. Obsérvese que se trata de un simple enunciado en el que se indica que tales artículos del proyecto podrían contraponerse a la autonomía universitaria, sin que se indiquen los motivos o razones por las cuales ello podría ser cierto o no, sin hacer mención de los eventuales principios o normas constitucionales lesionados. Es decir, no contiene un razonamiento claro de los argumentos que, en criterio de los consultantes, harían que la norma sea inconstitucional. En consecuencia, no se cumple el requisito establecido en el artículo 99 de la Ley de la Jurisdicción Constitucional según el cual, la consulta debe formularse en memorial razonado, con expresión de los aspectos cuestionados en el proyecto y de los motivos por los cuales hay dudas u objeciones de constitucionalidad. Así las cosas, se declara inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n°21.336, en cuanto a los artículos 11 (planificación del empleo), 15 (postulados de reclutamiento y selección), 16 (oferta de empleo), por falta de una adecuada fundamentación desde el punto de vista constitucional.

Ahora bien, respecto del resto de artículos consultados, los diputados consultantes los consideran inconstitucionales por cuanto violan el principio de autonomía universitaria contenida en los artículos 84, 85 y 87 de la Constitución Política. Consideran que se viola la autonomía universitaria al someter al régimen de empleo a las personas docentes e investigadoras de las instituciones de educación superior, a planes de desarrollo, regímenes salariales, evaluaciones de desempeño, directrices, órdenes, instrucciones y circulares dictados por Mideplán y en algunos casos por la Dirección General de Servicio Civil y la Autoridad Presupuestaria. Con el establecimiento de Mideplán como órgano rector (art.6) y sus competencias (art.7), tal Ministerio no se limitará solo a diseñar los lineamientos generales de la política de empleo público sino que dará órdenes específicas para organizar su gestión de empleo, definiendo los criterios a utilizar en las pruebas de conocimiento, competencias y psicométricas para la selección de personal y la forma precisa en que deben efectuarse los concursos internos y externos, cómo debe cada entidad realizar sus procesos de evaluación, diseñar la política salarial interna y de control, lo que excede las potestades de dirección y coordinación. Se obliga a que las oficinas de recursos humanos de universidades ajusten las pruebas de conocimiento, competencias y psicométricas, los concursos internos y externos por oposición y méritos a las reglas de la Dirección General de Servicio Civil. Las universidades deberán nombrar a las personas docentes acatando las órdenes que sobre la materia establezca la Dirección General de Servicio Civil. El proyecto no incorpora la posibilidad de diferencias salariales por razones de mérito que incluyan conocimientos, experiencia y producción de conocimiento como fundamentación para esas diferencias, esenciales para las Universidades. Alegan que el proyecto resulta irrazonable y desproporcionado pues no hay estudios que demuestren el supuesto ahorro generado en las finanzas públicas, como consecuencia de la inclusión de las universidades en el proyecto, pues su presupuesto no se relaciona con el sostenimiento de las finanzas públicas de la Administración Central. Resulta imposible no visualizar la magnitud del poder que otorga dicho proyecto al Poder Ejecutivo, para que proceda regular, fiscalizar e incidir en las relaciones laborales de las universidades, lo que significa un sometimiento del pensamiento crítico a la clase política.

Seguidamente se procede al análisis por separado de cada uno de los artículos cuestionados. De previo se realiza un resumen jurisprudencial sobre el tema de autonomía universitaria, el cual servirá de contexto para el examen de cada artículo consultado.

• 2)Antecedentes Jurisprudenciales sobre la Autonomía Universitaria Conforme al artículo 84 Constitucional (“ARTÍCULO 84.- La Universidad de Costa Rica es una institución de cultura superior que goza de independencia para el desempeño de sus funciones y de plena capacidad jurídica para adquirir derechos y contraer obligaciones, así como para darse su organización y gobierno propios. Las demás instituciones de educación superior universitaria del Estado tendrán la misma independencia funcional e igual capacidad jurídica que la Universidad de Costa Rica. // El Estado las dotará de patrimonio propio y colaborará en su financiación.) las universidades públicas o universidades estatales gozan de un grado especial de autonomía, que se puede denominar autonomía universitaria. Conforme a la jurisprudencia constitucional tal autonomía abarca tanto la autonomía administrativa, política, financiera y organizativa. Por lo tanto, las universidades públicas cuentan con todas las facultades y poderes administrativos para llevar a cabo su misión. Así pueden autodeterminarse, en el sentido de que están facultadas para establecer sus planes, programas, presupuestos, organización interna y estructurar su propio gobierno, todo dentro de los límites establecidos por la propia Constitución Política y las leyes especiales que reglamentan su organización y funcionamiento (ver voto n°2012-011473). La Constitución Política dispone que las universidades gozan de independencia para el desempeño de sus funciones y de plena capacidad jurídica para adquirir derechos y contraer obligaciones, así como para darse su organización y gobierno propios. La línea jurisprudencial de la Sala ha sido clara en establecer que las universidades públicas tienen el grado más alto de autonomía, que es autonomía autoorganizativa o autonomía plena. Esa autonomía, que ha sido clasificada como especial, es completa y por esto, distinta de la del resto de los entes descentralizados de nuestro ordenamiento jurídico (regulados principalmente en otra parte de la Carta Política: artículos 188 y 190), y significa que aquéllas están fuera de la dirección del Poder Ejecutivo y de su jerarquía, que cuentan con todas las facultades y poderes administrativos necesarios para llevar adelante el fin especial que legítimamente se les ha encomendado. Pueden autodeterminarse, en el sentido de que están posibilitadas para establecer sus propios planes, programas, presupuestos, organización interna y estructurar su gobierno. Además, que las universidades públicas tienen poder reglamentario (autónomo y de ejecución); pueden auto estructurarse, repartir sus competencias dentro del ámbito interno del ente, desconcentrarse en lo jurídicamente posible y lícito, regular el servicio que prestan, y decidir libremente sobre su personal. Todas estas son potestades de las modalidades administrativa, política, organizativa y financiera de la autonomía que corresponde a las universidades públicas. La autonomía universitaria tiene como principal finalidad, procurar al ente todas las condiciones jurídicas necesarias para que lleve a cabo con independencia su misión de cultura y educación superiores. (ver sentencia n°1992-495, n°1993-1313, n°2002-8867 y n°2008-013091). Así se desprende de las palabras del Constituyente Fernando Baudrit cuando dijo:

“Lo que perseguimos es evitarle a la Universidad la amenaza de futuros Congresos movidos por intereses politiqueros ... Mañana, si la Universidad no se adapta al ambiente político imperante, un Congreso, con el propósito de liquidarla, lo podrá conseguir fácilmente rebajando el subsidio del Estado. Ya dije que si no estuviéramos viviendo el régimen actual, la Universidad habría desaparecido, o bien se hubiera convertido en una dócil dependencia del Poder Ejecutivo. Ya se tramaba, en este mismo recinto, y por el último Congreso en ese sentido. Hasta se barajaban los nombres de las personas que nos iban a sustituir, en la dirección de la Universidad. ¿Quién nos asegura que en el futuro no podría presentarse una situación parecida? Precisamente para evitar que esto pueda llegar a presentarse. Es necesario, indispensable, dotar a la Universidad de Costa Rica de una auténtica independencia administrativa, docente y económica.” (Acta 160, 4/X/1949, tomo III, p.395.)”.

Ello está íntimamente relacionado con la libertad de cátedra de las universidades y de ser, las universidades, crisoles (escenario de la fusión de muy diversas ideas) de la creación de pensamiento, crítica y construcción del conocimiento. Función básica en toda sociedad democrática. Así que, la autonomía de las universidades públicas las protege frente al Poder Ejecutivo y al resto de la Administración Pública; pero también frente a la ley, para impedir que el legislador delegue en autoridades administrativas potestades capaces de imponer a las universidades decisiones sobre el ámbito de sus competencias, como lo sería la regulación de los cursos, acción social, investigación, examen de ingreso, conferir grados académicos universitarios, entre otros, tal como reiteradamente lo ha dicho esta Sala en las sentencias n°1993-1313 y n°1996-276).

La autonomía universitaria es necesaria para que la institución cumpla con sus objetivos, los que correrían el riesgo de ser obstaculizados si se permite la intromisión del Poder Ejecutivo y del Legislativo. Esta Sala ha advertido que las universidades públicas no son simples instituciones de enseñanza sino que tienen fines más elevados, comprometidos con el desarrollo del país en general y de los costarricenses en particular. Concretamente señaló:(…) La autonomía universitaria tiene como principal finalidad procurar al ente todas las condiciones jurídicas necesarias para que lleve a cabo con independencia su misión de cultura y educación superiores. En ese sentido la Universidad no es una simple institución de enseñanza (…), pues a ella corresponde la función compleja, integrante de su naturaleza, de realizar y profundizar la investigación científica, cultivar las artes y las letras en su máxima expresión, analizar y criticar, con objetividad, conocimiento y racionalidad elevados, la realidad social, cultural, política y económica de su pueblo y el mundo, proponer soluciones a los grandes problemas y por ello en el caso de los países subdesarrollados o poco desarrollados como el nuestro, servir de impulsora a ideas y acciones para alcanzar el desarrollo en todos los niveles (espiritual, científico y material), contribuyendo con esa labor a la realización efectiva de los valores fundamentales de la identidad costarricense, que pueden resumirse … en los de la democracia, el Estado Social de Derecho, la dignidad esencial del ser humano y el ‘sistema de libertad’, además de la paz (artículo 12 de la Constitución Política) y la Justicia (41 ídem); en síntesis …que la Universidad, como centro de pensamiento libre, debe y tiene que estar exenta de presiones o medidas de cualquier naturaleza que tiendan a impedirle cumplir, o atenten contra ese su gran cometido (…)” (sentencia n°2008-013091) La Sala Constitucional al analizar el tema de la autonomía universitaria ha ahondado en aspectos muy específicos que inciden en la materialización de dicha autonomía, tal como lo es lo relacionado con el salario de los funcionarios universitarios. Es así como en la sentencia n° 2015-10248 aborda el tema del salario en los siguientes términos: “…la autonomía universitaria que les asiste a los centros de educación superior públicos (dispuesta con rango constitucional), alcanza para que estos –por medio de sus más altos órganos jerárquicos- establezcan la modalidad en que resolverán el régimen remunerativo de sus servidores “…siempre atendiendo a principios constitucionales elementales que rigen todo el aparato público, como la razonabilidad y proporcionalidad, así como el adecuado resguardo de las finanzas públicas (…).” Sin embargo, en el ejercicio de su autonomía, la UNED tiene la posibilidad de reconocer de manera diferenciada el pago de anualidades de las personas que vienen de laborar fuera de esa institución, toda vez que la especificidad de la dinámica universitaria y su administración, justifica una valoración diversa entre la anualidad proveniente de otra dependencia pública y la de aquella desarrollada propiamente dentro de la universidad. Así, resulta razonable que al tiempo servido dentro de la estructura organizativa de la UNED se le reconozca un mayor plus salarial mayor que a aquel laborado en otras dependencias públicas”.

Ahora bien, en cuanto a las limitaciones de esta autonomía, se pueden citar en primero lugar, las sentencias n°2016-02419 y n°2016-18087 en las que la Sala procedió a abordar la cuestión de los principios constitucionales del empleo público y se hace un juicio de ponderación entre dos principios constitucionales: el de la autonomía universitaria (artículo 84, párrafo 1°, de la Constitución) y el principio del sistema de méritos para acceder a la función pública mediante la idoneidad comprobada, (artículo 192 de la Constitución). La Sala se decantó por este último y manifestó que, pese a la autonomía las universidades públicas están sujetas a los principios, valores, preceptos y jurisprudencia constitucionales que los interpretan:

“La autonomía plena o del tercer grado reconocida a las universidades públicas en el ordinal 84, párrafo 1°, de la Constitución tiene, también, límites infranqueables, de modo que no puede entenderse, bajo ningún concepto, como un concepto jurídico indeterminado que habilite de manera indeterminada y abierta a los centros de enseñanza superior universitaria. La autonomía es una noción del Derecho Administrativo constitucional que, obviamente, debe entenderse dentro de las coordenadas del Estado Constitucional de Derecho. Ciertamente, como lo ha afirmado reiteradamente este Tribunal tal autonomía universitaria les habilita para dictar sus propias normas jurídicas fundamentales de organización. Empero, no puede extralimitarse tal potestad, puesto que, sin duda alguna, se encuentra limitada por el propio Derecho de la Constitución, esto es, los valores, principios, preceptos y jurisprudencia constitucionales. Las universidades ciertamente gozan de autonomía, pero no de soberanía, la soberanía, únicamente, la tiene el propio Estado. No puede entenderse, so pena de fragmentar la soberanía, que las universidades se pueden constituir en especie de micro-estados dentro del propio Estado costarricense. No cabe la menor duda que las universidades públicas al ejercer su autonomía, también, están sujetas a los principios, valores, preceptos y jurisprudencia constitucionales que los interpretan. Las universidades no pueden abstraerse del Derecho de la Constitución o del orden constitucional. Dentro de los límites infranqueables de la autonomía universitaria destacan, obviamente, los derechos fundamentales y humanos que son de aplicación directa e inmediata y que, desde luego, vinculan a todos los poderes públicos, incluidas, desde luego las universidades. Los derechos fundamentales y humanos que dimanan de la dignidad de la persona son la base del entero ordenamiento jurídico, por consiguiente cualquier regulación, incluso la emitida en el ejercicio de la autonomía plena o universitaria debe respetarlos y procurar su goce efectivo. (…) “En la doctrina del neo constitucionalismo, grandes juristas (Ronald Dworkin, Robert Alexy, Martin Borowsky, etc.) han recomendado para resolver los casos difíciles (hard cases) donde concurren principios en sentido contrario, la aplicación del denominado “juicio de ponderación”. El juicio de ponderación exige, mediante la utilización de los principios de razonabilidad y de proporcionalidad en sentido amplio, determinar cuál de los principios tienen mayor peso, consistencia, valor para concederle preferencia, sin que suponga la derogación del principio que es desplazado y que permanece vigente. En efecto, hay casos que no se pueden resolver mediante la aplicación de la clásica subsunción, por cuanto, no existe una regla de derecho claramente aplicable al mismo. En el presente asunto es evidente que se pueden entender que entran en confrontación o colisión (en sentido contrario) dos principios constitucionales, a saber: a) la autonomía universitaria reconocida en el artículo 84, párrafo 1°, de la Constitución y b) el principio del sistema de méritos para acceder a la función pública mediante la idoneidad comprobada contemplado en el artículo 192 de la Constitución. Consecuentemente, al actuar en sentido contrario sendos principios se impone un juicio de ponderación para determinar cuál tiene, en el caso concreto a resolver, mayor peso, consistencia y, por ende, preferencia. En nuestro criterio el principio del sistema de méritos para acceder a la función pública tiene un mayor peso al encontrarse conexo con otros valores, principios o si se quiere bienes constitucionales que determinan que se incline la balanza a su favor”.

A partir de allí se reforzó la idea de que las universidades estatales gozan de autonomía plena, pero no de soberanía, la cual reside únicamente en el Estado, y por tanto, debe entenderse que la normativa universitaria debe sujetarse a los valores y principios constitucionales. En ese sentido se han acogido algunas acciones de inconstitucionalidad en contra de normativa que puede resultar irrazonable o desproporcionada (ver voto n°2007-0055) o por la primacía de derechos fundamentales sobre algunas decisiones (ver voto n°2009-01675). Asimismo, al considerar que no se vulneraba la autonomía universitaria por el ingreso de la Fuerza Pública en el recinto universitario (ver votos n°2010-9339 y n°2019-03879), y al mantenimiento de las competencias de control, vigilancia y fiscalización por parte de la Contraloría General de la República (ver voto n°2012-09215, n°2012-10665). Por otro lado, el criterio más abundante es que la autonomía de las universidades es amplia y se extiende, por ejemplo, a modificar, suprimir y crear plazas (votos n°1999-9976 y 2002-7261) o, que es parte de la autonomía administrativa de los entes autónomos el poder disponer libremente de los recursos humanos, materiales y financieros (voto n°2002-9076). Además, se pueden mencionar sentencias sobre la autonomía universitaria referida en concreto a la materia de educación y cuestiones afines (ver voto n°1992-495 y 2012-9215). También se encuentran sentencias, donde se afirma que una mayor injerencia del Poder Ejecutivo o Poder Legislativo en relación con materias que no forman parte del núcleo central de las funciones esenciales, no lesiona su autonomía (ver votos n°94-3309, 96-276, y 2016-18087).

• 3)Análisis concreto de lo consultado Sobre el artículo 6.- Potestad de Dirección de Mideplán respecto de las Universidades Públicas (redacta magistrado Castillo Víquez) De la jurisprudencia de la Sala Constitucional se puede concluir que son dos los aspectos que la Sala ha señalado en sus sentencias de manera constante, en relación con las universidades y su autonomía: 1.- Las universidades no son microestados y, en ese sentido, deben someterse al Derecho de la Constitución; 2.- El Poder Ejecutivo no puede ejercer la potestad de dirección y reglamentación en la materia que corresponde a las universidades, según el fin constitucionalmente asignado -docencia, investigación y extensión social y cultural y su grado de autonomía.

En lo que atañe a la materia de empleo público, tal y como de seguido se pasa a explicar, la Sala ha analizado muchos de los temas al respecto, tales como: concursos, requisitos de nombramiento, evaluaciones, salarios, vacaciones y permisos, y ha sentado una jurisprudencia clara y precisa. El criterio más abundante, es que la autonomía de las universidades es amplia y se extiende, por ejemplo, a modificar, suprimir y crear plazas (votos No. 9976-99 y 7261-2002) o que es parte de la autonomía administrativa de los entes autónomos el poder disponer libremente de los recursos humanos, materiales y financieros (voto No. 9076-2002). Empero, la autonomía universitaria está referida a la materia de educación y cuestiones afines (voto No. 92-495 y 12-9215). Lo anterior significa que una mayor injerencia del Poder Ejecutivo o Poder Legislativo en relación con materias que no forman parte del núcleo central de las funciones esenciales relacionados con los fines constitucionalmente asignados, no lesiona su autonomía (votos Nos. 94-3309, 96-276, y 16-18087 este último con voto salvado del magistrado Rueda Leal). Así, pues, la Constitución Política dispone que las universidades gozan de independencia para el desempeño de sus funciones y de plena capacidad jurídica para adquirir derechos y contraer obligaciones, así como para darse su organización y gobierno propios (artículo 84). Sin embargo, lo anterior no significa que no estén vinculados a lo que dispone el legislador cuando se trata de cuestiones generales no relativas a los fines constitucionalmente asignados. En esta dirección, en la opinión consultiva No. 2018-19511, que analizó la consulta sobre la Ley de Fortalecimiento de las Finanzas Públicas, se estableció, en lo que interesa, lo siguiente:

“(…) el proyecto de ley consultado no lesiona la Constitución Política, pues como ya se indicó, se trata de una cuestión de política económica general del Estado ligada a la planificación y el desarrollo nacionales, campos en los que las instituciones autónomas se encuentran sujetas a la ley por tratarse de materia de gobierno y cuya conveniencia u oportunidad no corresponde valorar a este Tribunal, porque contraría al principio de autocontención del juez constitucional…”.

No menos importante es tener presente que la Constitución Política establece una reserva normativa en favor de las universidades del Estado. En efecto, en la sentencia n.° 1313-93, la Sala Constitucional expresó, a propósito de la Ley de Creación de la Universidad Estatal a Distancia, lo siguiente:

“Los conceptos expuestos nos indican, claramente, que fue la intención del Constituyente concederles a las universidades estatales un marco general de autonomía según lo que expresa el artículo 84 de la Constitución Política, y además, de un trato especial en lo que atañe al procedimiento legislativo para la discusión y aprobación de proyectos de ley, en materias que sin estar dentro del ámbito autonómico, tengan que ver con las universidades estatales, según lo dispone el artículo 88 ídem. Véase incluso lo dicho por los constituyentes proponentes de la moción completa del texto del citado artículo 88, de donde se deduce claramente su intención, no de excluir la ley del ámbito de competencia de la Universidad, sino, única y exclusivamente, de establecer esa mayoría especial cuando hubiere un criterio negativo del ente sobre el proyecto de Ley, cuando no fuera materia considerada bajo el régimen del artículo 84 : "El Diputado Facio usó de la palabra ... Recuérdese brevemente -dijo- que el corporativismo es un régimen antidemocrático, que suplanta las decisiones de una Asamblea libremente electa por el pueblo, por las de las corporaciones -corporaciones que no son instituciones técnicas del Estado, sino representaciones de gremios, de intereses profesionales- corporaciones éstas que son formadas, manipuladas y dirigidas por la política única del Estado omnipotente, del Estado totalitario. Nada más lejos que la intención de la moción; nada más apartado de su propósito. Lo que deseamos, sencillamente es conjugar la libertad soberana de la Asamblea popularmente electa, con los requerimientos técnicos del mundo moderno. Que sus pronunciamientos sean libres, pero que esa libertad se ejerza racionalmente, sobre el apoyo no de corporaciones, que representan intereses privados, sino de instituciones públicas, que por públicas, representan también al pueblo, y que, por técnicas, representan mejor sus intereses en el campo de las funciones que les han sido encomendadas. ¿Qué eso implica formalmente cierta restricción a la actividad del Congreso? Ciertamente es así, pero eso, lejos de ser un abandono de la democracia, es simplemente una adecuación de la democracia a problemas que existen hoy ... Sostiene el Dr. Jiménez de Aréchega, que la autonomía no puede significar sólo independencia con respecto al Poder Ejecutivo, sino también con respecto al Poder Legislativo, ya que si la Constitución la establece a favor de tal o cual organismo, es porque supone que las materias correspondientes deben ser manejadas al margen de la política y de la lucha de partidos; que entender de otro modo la autonomía es relativizar ésta a tal punto que sería como hacerla desaparecer. Pues bien, en la moción no se pide tanto; se pide sólo que se escuche al Consejo Universitario en tratándose de cuestiones universitarias...”. - (Véase: Acta número 161 de la Asamblea Nacional Constituyente de 1949. Tomo III, Imprenta Nacional, San José, 1956, págs. 410-414; los subrayados son de esta sentencia).- En otras palabras, y esta es la conclusión ineludible e indubitable de la larga pero trascendental serie de citas anteriores, el Constituyente.- no le quitó ni impidió a la Asamblea la potestad de legislar respecto de las materias puestas bajo la competencia de las instituciones de educación superior, o de las relacionadas directamente con ellas -para usar los propios términos de la Ley Fundamental-, y la única condición expresa que al respecto le impuso, fue la de oírlas previamente, para discutir y aprobar los proyectos de ley correspondientes, salvo lo que atañe a la facultad de organización y de darse el propio gobierno, según la independencia claramente otorgada en el artículo 84 constitucional”. La negrilla no es del original.

En relación con los límites de la Asamblea Legislativa, en ejercicio de la potestad de legislar, sobre las materias puestas bajo la competencia exclusiva y excluyentes de las Universidades del Estado este Tribunal fijó la siguiente postura:

“...Si bien es cierto -como ya se comprobó- la Asamblea Legislativa puede regular lo concerniente a la materia de las universidades, le está vedado imposibilitar, restar o disminuir a esas instituciones, aquellas potestades que les son necesarias para cumplir su correspondiente finalidad y que conforman su propia autonomía. Es decir, para expresarlo en los términos de cierta doctrina relevante, esos entes tienen la titularidad y el ejercicio inicial, independiente e irrestricto de todas las potestades administrativas y docentes para el cumplimiento de su especialización material, sin que ésto pueda ser menoscabado por la Ley. Pero además, dentro de la modalidad docente explicada, también sirve de escudo a esa autonomía, la libertad de cátedra (artículo 87 de la Carta Política), que se puede entender como la potestad de la universidad de decidir el contenido de la enseñanza que imparte, sin estar sujeta a lo dispuesto por poderes externos a ella, o bien, en el sentido de la facultad de los docentes universitarios de expresar sus ideas al interno de la institución, permitiendo la coexistencia de diferentes corrientes de pensamiento (véase sobre las limitaciones legítimas de la libertad, el precitado voto 3550-92). Por supuesto, también, que esos entes por disposición constitucional (artículo 85), están sujetos a coordinación por el "cuerpo encargado" que ahí se indica, y a tomar en cuenta los lineamientos que establezca el Plan Nacional de Desarrollo Vigente”.

Como puede fácilmente deducirse, la autonomía universitaria no es sinónimo de soberanía, una especie de extraterritorialidad. Todo lo contrario, las universidades del Estado están sometidas al ordenamiento jurídico, lo que significa que el legislador está autorizado por el Derecho de la Constitución a sujetarlas a la normativa que considere pertinente, en especial en aquellos casos cuando se trata de normas que tienen un alcance de carácter general. Incluso se puede sostener, con base en el Derecho de la Constitución, que si bien el artículo 84 establece una reserva normativa en favor de las universidades, creando un subsistema jurídico particular, esa reserva está referida a la “organización del servicio universitario”. (véase dictamen No. C-086-96 de 5 de junio de 1996 de la Procuraduría General de la República). “Por lo que la universidad queda sujeta a todas las regulaciones legales que afecten por igual a los demás sujetos del ordenamiento jurídico, precisamente por basarse en razones a todos comunes, extrañas a su especialización funcional, aunque indirectamente interfiera con la prestación de su servicio y la organización de sus medios. Asimismo, ha estimado la Procuraduría que en el ejercicio de su potestad normativa, la universidad está sujeta al ordenamiento jurídico general, por lo que no puede afectar las disposiciones estatales que, por ejemplo, otorgan beneficios a los trabajadores universitarios en su condición de servidores de la Administración Pública. En el mismo orden de ideas, en el dictamen N° C-191-98 10 de setiembre de l998, la Procuraduría consideró que la potestad normativa de la universidad no significa “inmunidad frente a las reglas legislativas de empleo público genéricas para toda la Administración Pública”. Se considera que está fuera del ámbito organizativo propio de la Universidad la regulación del empleo público, con lo que se reitera el dictamen N° C-184-97 antes citado”.

De modo que la autonomía de los entes universitarios -autonormativa o autoorganizativa, que lógicamente comprende la administrativa y de gobierno de esos entes está referida estrictamente al ámbito garantizado por la autonomía universitaria: la actividad académica, la investigación y las actividades de extensión social o cultural. Fuera de ese ámbito, las Universidades están sujetas a las regulaciones legales dirigidas a todos los sujetos del ordenamiento jurídico en tanto que tales.

En materia de sus competencias, que conlleva la organización del servicio universitario, en los que la autonomía universitaria y en concreto referidos a la actividad académica, la investigación o actividades de extensión social o cultural despliega toda su fuerza, resulta incompatible con esta la potestad de dirección del Poder Ejecutivo o uno de sus órganos, en este caso Mideplán, ni mucho menos la potestad reglamentaria. Dicho de otra forma, el constituyente originario al asignarle fines constitucionales a las universidades las dotó de la máxima autonomía, para garantizar la independencia en el ejercicio de sus competencias, ámbito del cual no se sustrae la materia de empleo público cuando está vinculada a esos fines o se trata de funciones administrativas, profesionales y técnicas, necesarias para esas funciones de conformidad con lo que dispongan las autoridades universitarias, de forma exclusiva y excluyente, tal y como se explicará cuando se analice en concreto la normativa consultada.

En cuanto a las normas concretas: Hay varias potestades que se mencionan regularmente en el proyecto en relación con el Mideplán, en su condición de órgano rector del empleo público y su relación con las entidades a quienes aplicaría esta ley, señaladas en el artículo 2. Se trata de su potestad de emitir disposiciones de alcance general, directrices y los reglamentos. La extensión y vinculatoriedad de algunas de estas potestades e instrumentos pueden determinar si el proyecto tiene o no roces de constitucionalidad.

En relación con el artículo 6, resulta inconstitucional, pues no se excluye de la potestad de dirección a los funcionarios que participan de la actividad académica, la investigación o actividades de extensión social o cultural, y quienes ejercen cargos de alta dirección política, así como todo aquel funcionariado administrativo de apoyo, profesional y técnico, que establezcan los máximos órganos de las universidades del Estado. Ergo, solo resulta constitucional la norma en lo que atañe al personal de administrativo básico, auxiliar, que estaría en la familia de puestos de conformidad con el numeral 13, inciso a) del proyecto de ley. Esta tesis encuentra sustento en la sentencia 96-0276, en la cual la Sala señaló:

“II.- Cabe, en primer término referirse a la autonomía que la Constitución les otorga a las universidades, para señalar que ésta, aunque muy amplia, es autonomía administrativa… Tampoco esa autonomía se extiende a las materias no universitarias, es decir, las no relativas a la docencia o investigación en la enseñanza superior…” Sobre el artículo 7.- Competencias de Mideplán respecto de las Universidades Públicas (redacta magistrado Castillo Víquez) En relación con el artículo 7, se mantiene el mismo criterio vertido respecto al numeral 6, además somete a la potestad de reglamentación de Mideplán en materias donde hay una potestad exclusiva y excluyente a favor de las universidades del Estado para alcanzar el fin constitucional asignado por el constituyente originario.

Sobre el artículo 9.a.- Oficina de Recursos Humanos en las Universidades Públicas (redacta magistrada Picado Brenes) La norma consultada establece lo siguiente:

“ARTÍCULO 9- Funciones de las administraciones activas a) Las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos, de las instituciones incluidas en el artículo 2 de la presente ley, seguirán realizando sus funciones de conformidad con las disposiciones normativas atinentes en cada dependencia pública.

Asimismo, aplicarán y ejecutarán las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que el Ministerio de Planificación Nacional y Política Económica (Mideplán) remita a la respectiva institución, según la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

• b)Es responsabilidad de las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos elaborar y aplicar las pruebas de conocimientos, competencias y psicométricas, para efectos de los procesos de reclutamiento y selección de personal, efectuar los concursos internos y externos por oposición y méritos, los cuales deberán cumplir siempre al menos con los estándares que establezca la Dirección General del de Servicio Civil para cada puesto, según su ámbito de competencia, y los lineamientos que se emitan según el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

Además, incorporar dichos concursos en la oferta de empleo público de la Administración Pública y verificar que las personas servidoras públicas reciban la inducción debida sobre los deberes, las responsabilidades y las funciones del puesto, así como los deberes éticos de la función pública generales y particulares de la institución y puesto.

• c)Las oficinas de gestión institucional de recursos humanos, de ministerios e instituciones u órganos adscritos bajo el ámbito de aplicación del Estatuto de Servicio Civil, son dependencias técnicas de la Dirección General de Servicio Civil que, para todos los efectos, deberá coordinar la elaboración de las pruebas de reclutamiento y selección de personal con tales oficinas y desempeñar sus funciones de asesoramiento, capacitación y acompañamiento técnico.” Tal como se observa, el artículo 9 consultado establece ciertas funciones para todas las oficinas, departamentos, áreas, direcciones o las unidades de recursos humanos, de todas las instituciones incluidas en el proyecto, en cuenta, para las oficinas de recursos humanos de las Universidades Públicas. Así entonces, en lo que se refiere propiamente a la consulta realizada en cuanto a las Universidades Públicas, el segundo párrafo del inciso a) le impone las distintas oficinas de recursos humanos de dichas universidades que apliquen y ejecuten las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que Mideplán le remita. Lo cual, implicaría que un órgano del Poder Ejecutivo, como lo es Mideplán, le imponga a las Universidades Públicas la aplicación y ejecución de sus disposiciones, directrices y reglamentos, y en materias que son de resorte exclusivo ellas, vista su autonomía plena, como lo es la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación o salarios y la gestión de las relaciones laborales. Siendo claramente tal obligación para las oficinas de recursos humanos de las Universidades Públicas una violación al contenido de la autonomía plena de que gozan las universidades del Estado. Recuérdese que, esta Sala ha establecido los alcances de esta autonomía indicando que la misma alcanza para establecer sus planes, programas, presupuestos, organización interna y estructura de su gobierno (ver sentencia n°2008-013091). Así que las Universidades Públicas están facultadas para establecer sus planes, programas, presupuestos, organización interna y estructurar su propio gobierno, todo dentro de los límites establecidos por la propia Constitución Política y las leyes especiales que reglamentan su organización y funcionamiento (ver sentencia n°2012-011473). Significa que las Universidades Públicas están fuera de la dirección del Poder Ejecutivo y de su jerarquía, que cuentan con todas las facultades y poderes administrativos necesarios para llevar adelante el fin especial que legítimamente se les ha encomendado; que pueden autodeterminarse; tienen poder reglamentario (autónomo y de ejecución); pueden autoestructurarse, repartir sus competencias dentro del ámbito interno del ente, desconcentrarse en lo jurídicamente posible y lícito, regular el servicio que prestan, y decidir libremente sobre su personal (ver sentencia n°2002-008867 y n°2008-13091). Así, está plenamente justificado que sea incompatible con su grado de autonomía estar bajo las disposiciones generales, directrices y reglamentos de un órgano de otro Poder de la República, como lo pretendía esta norma del proyecto consultada. En este sentido, el párrafo segundo del inciso a del artículo 9 es inconstitucional respecto a su aplicación a las universidades públicas.

Sobre el artículo 13.e.- Familia de Puestos respecto de las Universidades Públicas (redacta magistrado Castillo Víquez) Sobre el artículo 13, inciso e) alegan los consultantes que la potestad constitucional que tienen las universidades de establecer sus propios planes de educación podría verse afectada si el personal universitario está sometido al control, dirección, planificación y órdenes del gobierno de turno. Dicha normativa es inconstitucional, por no incluir en el citado inciso a los servidores que realizan investigación, acción social y cultural, así como el personal administrativo, profesional y técnico, necesario para alcanzar los fines constitucionalmente asignados a las universidades del Estado, en los términos que se explica en el considerando general.

Sobre el artículo 14.- Reclutamiento y selección en las Universidades Públicas (redacta magistrada Picado Brenes) Los consultantes cuestionan la constitucionalidad del artículo 14 del proyecto de ley objeto de consulta, toda vez que, en su criterio, podría lesionar la autonomía universitaria, en el tanto sujeta a las universidades públicas a las disposiciones que emite un órgano del Poder Ejecutivo, en lo referente a la gestión de empleo, lo cual comprende lo relativo al reclutamiento y selección de su personal. El ordinal 14 en cuestión, dispone lo siguiente:

“ARTÍCULO 14- Reclutamiento y selección El reclutamiento y la selección de las personas servidoras públicas de nuevo ingreso se efectuará con base en su idoneidad comprobada, para lo cual el Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá, con absoluto apego a la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las disposiciones de alcance general, las directrices y los reglamentos, según la respectiva familia de puestos.

En los procesos de reclutamiento y selección no podrá elegirse a un postulante que se encuentre en alguna de las siguientes situaciones:

• a)Estar ligado por parentesco de consanguinidad o de afinidad en línea directa o colateral, hasta tercer grado inclusive, con la jefatura inmediata ni con las personas superiores inmediatas de esta en la respectiva dependencia.
• b)Encontrarse enlistada en el registro de personas inelegibles de la plataforma integrada de empleo público.” Tal como ya fue supra indicado, las universidades públicas costarricenses gozan de un estatus autonómico privilegiado en el sector público descentralizado, toda vez que dicha independencia se extiende a los ámbitos administrativo, político, financiero y organizativo (sentencia n°2002-008867). En atención a ello, es imprescindible que dispongan todo lo relativo al reclutamiento y selección de su personal, sin interferencia externa alguna. Véase lo indicado en la sentencia n°2008-013091, cuando indica que las universidades públicas: “…están fuera de la dirección del Poder Ejecutivo y de su jerarquía, que cuentan con todas las facultades y poderes administrativos necesarios para llevar adelante el fin especial que legítimamente se les ha encomendado; que pueden auto-determinarse, en el sentido de que están posibilitadas para establecer sus planes, programas, presupuestos, organización interna y estructurar su gobierno propio. Tienen poder reglamentario (autónomo y de ejecución); pueden auto-estructurarse, repartir sus competencias dentro del ámbito interno del ente, desconcentrarse en lo jurídicamente posible y lícito, regular el servicio que prestan y decidir libremente sobre su personal…” En este caso, este Tribunal considera que el proyecto de ley consultado incide en las competencias propias de las Universidades Públicas, pues más allá de establecer principios o lineamientos generales en materia de empleo público que respeten el principio de separación de funciones, el artículo 14 de estudio, es claro en señalar que será el Ministerio de Planificación Nacional y Política Económica (Mideplán), quien emitirá las disposiciones de alcance general, las directrices y los reglamentos, según la respectiva familia de puestos, que regularán el reclutamiento y la selección de las personas servidoras públicas de nuevo ingreso. Ello, pues conforme lo dispuesto en los ordinales 13 y 2 del mismo proyecto de ley, lo señalado en el ordinal 14 aplicaría a las Universidades Públicas. Así las cosas, el artículo 14 resulta inconstitucional, al autorizar que un órgano del Poder Ejecutivo sea quien emita directamente disposiciones de alcance general, directrices y reglamentos, circulares, manuales, y resoluciones relativos a la materia de empleo público, que vacían de contenido las competencias reconocidas a las Universidades Públicas por el Constituyente. Más aún cuando ya existe un marco normativo atinente a cada una de las universidades que regula esos aspectos. En razón de lo expuesto, la norma consultada excede cualquier marco de cooperación que pueda establecer una política general de empleo público, pues no resulta propio que una dependencia del Poder Ejecutivo -Mideplán-, le dicte a las Universidades Públicas, quienes gozan de autonomía plena, y de manera obligatoria, las pautas o criterios para la selección y reclutamiento de su personal. Ello constituye una clara injerencia externa y, la intromisión del Poder Ejecutivo en aspectos que son competencia exclusiva de las Universidades Públicas. Por consiguiente, este Tribunal considera que el artículo 14 consultado contiene un vicio de inconstitucionalidad, por lesionar la autonomía universitaria resguardada en el artículo 84 constitucional.

Sobre el artículo 17.- Puestos de Alta Dirección en las Universidades Públicas (redacta magistrada Picado Brenes) La norma consultada establece lo siguiente:

“ARTÍCULO 17- Personal de la alta dirección pública El Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá las disposiciones de alcance general, las directrices, y los reglamentos, en materia del personal de la alta dirección pública, que sean acordes con la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, para dotar a la Administración Pública de perfiles con integridad y probada capacidad de gestión, innovación y liderazgo, para procurar el mejoramiento de la prestación de bienes y servicios públicos. (…)” Los consultantes señalan la lesión a la autonomía universitaria, por cuanto en esta norma se dispone que, tratándose de puestos de alta dirección será Mideplán quien emita las disposiciones de alcance general, directrices y reglamentos al respecto. En el mismo sentido en que esta Sala ha venido resolviendo estos aspectos, la injerencia de este Ministerio, que es un órgano del Poder Ejecutivo, emitiendo disposiciones de alcance general, directrices y reglamentos a las Universidades Públicas en materia de los puestos de alta dirección, resulta violatorio de la autonomía universitaria. La regulación de todo lo atinente a los puestos de alta dirección ya cuenta con la normativa especial en las Universidades Públicas. Recuérdese que las Universidades Públicas están facultadas para establecer su propia organización interna y estructurar su propio gobierno, todo dentro de los límites establecidos por la propia Constitución Política y las leyes especiales que reglamentan su organización y funcionamiento (ver sentencia n°2012-011473). Significa que las Universidades Públicas están fuera de la dirección del Poder Ejecutivo y de su jerarquía, que cuentan con todas las facultades y poderes administrativos necesarios para llevar adelante el fin especial que legítimamente se les ha encomendado y que pueden regular el servicio que prestan, y decidir libremente sobre su personal (ver sentencia n°2002-008867 y n°2008-13091). Nótese que, estos son puestos de gran importancia pues estarían referidos, al menos, respecto de quienes dirigen las distintas Vicerrectorías y Decanaturas, entre otros. Puestos que son de gran relevancia para el quehacer académico y el fiel cumplimiento del resto de las funciones asignadas a las universidades públicas, que deben estar particularmente protegidos de la injerencia de otros Poderes de la República, y que requieren la estabilidad del personal necesaria para un adecuado e imparcial desempeño del cargo, lo cual es incompatible con una subordinación a las disposiciones que emita al respecto el Mideplán, como lo dispone la norma en cuestión. Por ende, se considera existe un vicio de inconstitucionalidad en el artículo 17 objeto de consulta, en los términos expuestos.

Sobre el artículo 30.- Postulados para la compensación en las Universidades Públicas (redacta magistrado Castillo Víquez) En cuanto al artículo 30, es inconstitucional, en el tanto no excluye a los funcionarios que realizan labores sustanciales -propias de la actividad universitaria-, y porque no establece que -en atención a la autonomía universitaria-, la construcción de la familia de la columna salarial y sus características corresponde en forma exclusiva y excluyente a los máximos órganos de los entes universitarios. Siguiendo la línea argumentativa de la opinión consultiva, es claro que este es un elemento esencial que afecta a la autonomía universitaria en relación con el funcionariado que se desempeña en la docencia, en la investigación, en la extensión social y cultural, así como aquellos funcionarios, profesionales y técnicos, que realizan labores administrativas vinculadas con la materia universitaria. De ahí que los órganos competentes para construir la familia y sus características, desde la óptica constitucional, lo hacen con independencia de las directrices y disposiciones reglamentarias que en este ámbito emita el Mideplán o el Poder Ejecutivo. En esta dirección, en la sentencia No. 15-10248 la Sala se refirió a la fijación de salarios en las universidades. El Tribunal señaló que las universidades pueden establecer el régimen remunerativo de sus servidores. Concretamente, el Tribunal indicó: “…la autonomía universitaria que les asiste a los centros de educación superior públicos (dispuesta con rango constitucional), alcanza para que estos –por medio de sus más altos órganos jerárquicos- establezcan la modalidad en que resolverán el régimen remunerativo de sus servidores “…siempre atendiendo a principios constitucionales elementales que rigen todo el aparato público, como la razonabilidad y proporcionalidad, así como el adecuado resguardo de las finanzas públicas (…).” Este caso, atendiendo a los principios y postulados que se encuentran en el proyecto de ley, los que resultan trasversal a toda la Administración Pública.

Sobre el artículo 30.b- Salario del presidente de la República como tope de salarios en las Universidades Públicas (redacta magistrado Castillo Víquez) En lo que atañe al numeral 30, inciso b, del proyecto de ley consultado, por mayoría, el Tribunal concluye que no es inconstitucional establecer como tope el salario del presidente de la República para los funcionarios universitarios. En primer lugar, porque el salario del puesto de presidente de la República, según lo que establece el artículo 37 del mismo proyecto de ley, se debe fijar con base en estudios técnicos, responsabilidades y perfiles de puesto; amén de que se deben tener presente los parámetros que establece el numeral 36 del proyecto de ley para fijar la política salarial. Ergo, será a partir de esa fijación técnica que haga la Autoridad Presupuestaria que el salario del cargo de presidente de la República será el tope para los salarios de los funcionarios universitarios. En segundo término, la mayoría de la Sala Constitucional entiende que cualquier rebaja del salario del presidente de la República para fungir como tope también debe ser con base en estudios técnicos, responsabilidades y perfiles de puesto, en cuyo caso no aplicaría, para efectos de tope, la rebaja que voluntariamente haga la persona que ocupa el cargo de presidente de la República por razones personales, políticas o de otra índole. Asimismo, si un (a) presidente de la República decide renunciar a la totalidad o parte de su salario, dichas acciones individuales no afectarían el tope de salario, el que ha sido fijado técnicamente. Finalmente, hay que tener presente que en cumplimiento del principio de equilibrio financiero o presupuestario en este caso, resulta conforme con el Derecho de la Constitución que haya el citado tope. En esta dirección, en la opinión consultiva n.° 2018-18505, expresamos lo siguiente:

“Sobre el particular, frente a una condición crítica en las finanzas públicas (debidamente sustentada en estudios técnicos), que pone en riesgo la efectiva o adecuada ejecución de las prestaciones de relevancia constitucional, la decisión de las autoridades competentes de definir y aplicar medidas aptas para paliar o solucionar el problema no solo resulta razonable, sino que, aún más, es insoslayable.

Ahora bien, no atañe a la Sala definir en concreto qué tipo de remedios se deben aplicar ni cuál es el más adecuado, toda vez que ello forma parte de la política económica del Estado, que a su vez constituye materia de gobierno. En realidad, el control de constitucionalidad se encuentra constreñido a velar por que las soluciones se adopten salvaguardando los derechos fundamentales cobijados en la Constitución Política y los instrumentos del derecho internacional de los derechos humanos ratificados por Costa Rica, así como las cualidades esenciales del régimen político del país (en una república democrática, libre, independiente, multiétnica y pluricultural, cuyo Gobierno es popular, representativo, participativo, alternativo y responsable), todo lo cual implica un ejercicio de ponderación y optimización de los diversos principios, derechos y valores constitucionales en juego.

En este contexto, reviste de especial importancia una interpretación armoniosa del principio de equilibrio presupuestario y el Estado Social de Derecho. La Sala advierte que, para que un Estado Social de Derecho pueda persistir y cumplir sus fines constitucionales y legales, deviene necesario que se efectúe un sano manejo de las finanzas públicas; es decir, de manera inexorable debe existir un equilibrio entre los derechos prestacionales y la solvencia económica estatal, ya que los primeros dependen de las posibilidades materiales propiciadas por la segunda, mientras que el sentido de esta última es fortalecer el desarrollo de un sistema político solidario, uno en el que los estratos menos favorecidos de la sociedad encuentren resguardo de su dignidad humana y su derecho a progresar. Dicho de otra forma, el Estado Social de Derecho “ideal” es el Estado Social de Derecho “posible”, contra el que precisamente se actúa, cuando se quebranta el principio de equilibrio presupuestario, toda vez que, a mediano plazo, eso pone en serio riesgo o del todo impide obtener los recursos necesarios para sustentar un Estado Social de Derecho “real”, uno del que verdadera y efectivamente puedan gozar los más vulnerables. Vigilar entonces que no se llegue a caer en una Constitución fallida o de papel, donde los derechos prestacionales de rango constitucional no puedan ser efectivos, es tarea fundamental de esta Sala, estrictamente dentro de lo que el marco de sus competencias se lo permite.

Se debe advertir, eso sí, que todos los principios, valores y preceptos constitucionales deben ser observados en cualesquiera circunstancias, lo que permanentemente le corresponde vigilar a la jurisdicción constitucional. Ahora, con motivo del ejercicio de ponderación u optimización que el juez constitucional realiza para resolver alguna colisión entre tales principios, valores y preceptos, el contexto que rodea al conflicto no puede pasar desapercibido.

Corolario de lo expresado: la inobservancia del principio de equilibrio presupuestario ha sido una de las causas del deteriorado estado actual de las finanzas públicas, motivo que lleva a esta Sala a subrayar el carácter transversal de dicho principio y hacer énfasis en su implementación real en aras del principio del Estado Social de Derecho. Se insiste en la observación del Programa del Estado de la Nación: ‘Esto [refiriéndose al desbalance estructural en las finanzas públicas] ha puesto en jaque el futuro del Estado de bienestar social construido a lo largo de la segunda mitad del siglo XX, ya que su financiamiento y la eficiencia de su gasto no son suficientes’.

Justamente, la hermenéutica de los principios generales para resolver el sub examine, como el del equilibrio presupuestario y el del Estado Social de Derecho, no puede desligarse de los parámetros de relevancia constitucional que se colige de las medidas consultadas y las abundantes referencias técnicas a la coyuntura económica, que son elementos fundamentales para descartar una actuación arbitraria o irrazonable”.

Sobre los artículos 31, 32 y 34.- Valoración del trabajo, grados dentro de las familias de puestos y columna salarial global en las Universidades Públicas (redacta magistrado Castillo Víquez) En relación con los artículos 31, 32 y 34 los consultantes indican que se impide establecer diferencias salariales en razón de conocimientos, experiencia y producción de conocimiento, cuestiones que son esenciales para las universidades, mientras que el 32 le otorga la potestad a Mideplán para definir los grados requeridos dentro de cada familia laboral y, finalmente, el artículo 34, regula la elaboración de columna del salario global. La Sala concluye que son inconstitucionales, en el tanto no excluye a los funcionarios que realizan labores sustanciales -propias de la actividad universitaria-, es decir, aquellos que realizan funciones de docencia, investigación, extensión social y cultural, así como los que realizan funciones administrativas, profesionales y técnicas, necesarias para cumplir con criterios de eficacia y eficiencia los fines constitucionalmente asignados, y porque la definición de los factores de trabajo relevante, su peso relativo, el número de grado requeridos dentro de cada familia y sus características, y la elaboración de la columna salarial corresponde de forma exclusiva y excluyente a los máximos órganos de los entes universitarios. En esta materia en relación con el funcionariado que esté en la familia de puestos relativo a estos entes, establecido por el órgano jerárquico de cada universidad, todos estos aspectos al estar vinculados con el funcionariado necesario para alcanzar el fin constitucionalmente establecido la competencia resulta exclusiva y excluyente y, por consiguiente, Mideplán o el Poder Ejecutivo no les asiste ninguna potestad para definir ni elaborar ningún de esos extremos.

Sobre el artículo 33.- Clasificación de puestos de trabajo en las Universidades Públicas (redacta magistrado Castillo Víquez) En lo que respecta al artículo 33, la Sala Constitucional encuentra que es inconstitucional, en el tanto no excluye a los funcionarios que realizan labores sustanciales -propias de la actividad universitaria-, es decir, aquellos que realizan funciones de docencia, investigación, extensión social y cultural, así como los que realizan funciones administrativas, profesionales y técnicas, necesarias para cumplir con criterios de eficacia y eficiencia los fines constitucionalmente asignados, y somete el manual de puestos de dichos funcionarios al análisis y evaluación de Mideplán, lo que -en atención a la autonomía universitaria- corresponde en forma exclusiva y excluyente a los máximos órganos de los entes universitarios por las razones que explicaron supra.

Sobre el artículo 35 y 36.- Régimen salarial unificado y política de remuneración en las Universidades Públicas (redacta magistrado Castillo Víquez) Los artículos 35 y 36 son cuestionados por los consultantes. En relación con el primero, se establece un régimen unificado para todo el servicio público, incluyendo las universidades, lo cual a juicio de los y las consultantes, lesiona su autonomía. Empero, tal situación no se presenta, porque el salario global y un régimen unificado es constitucionalmente posible, toda vez que lo que estatuye la Carta Fundamental es el derecho al salario -artículo 56- es decir, una contraprestación económica por el servicio prestado, de ahí que no hay un derecho fundamental a un plus o pluses salariales, por lo que se está ante una materia de libre configuración del legislador y, por consiguiente, este, en el ejercicio de la potestad de legislar, puede establecer una determinada modalidad de salario, sea: un salario compuesto, global o mixto, etc. Por otra parte, la Sala Constitucional concluye que la fijación de un salario global por parte de legislador en el caso de las universidades no incide en las competencias exclusivas y excluyentes.

En lo que atañe al segundo, que regula la política de remuneración, y dispone la intervención del MIDEPLAN, la Dirección General de Servicio Civil y la Autoridad Presupuestaria, los consultantes cuestionan su constitucionalidad pues sujeta la política de remuneración al estado de fondos públicos disponibles. Según su criterio, de conformidad con el artículo 85 constitucional, las universidades tienen garantizadas sus rentas y financiamiento que nunca podrían ser disminuidas por el Gobierno central.

Esta afirmación no es jurídicamente correcta. En la sentencia No. 2019-08620, la Sala declaró SIN LUGAR una acción interpuesta en relación con el “Acuerdo para el Fondo Especial para la Educación Superior (FEES) 2018, firmado el 29 de agosto de 2017”, porque lo impugnado fue un acuerdo, no una disposición con efectos generales, de manera que no podía ser considerado como objeto de una acción en los términos del artículo 73 inciso a) de la Ley de la Jurisdicción Constitucional. En el informe que la Procuraduría General de la República rindió en ese asunto, se estableció que no existe una disposición que establezca un porcentaje en específico para la educación superior estatal.

Asimismo, en la opinión consultiva No. 2018-18505 (consulta legislativa sobre Ley No. 9635), la Sala manifestó:

“(...) Lo que sí demandan los principios mencionados es que la tónica sea aspirar siempre y de preferencia a aumentar la cobertura de los derechos humanos e igualmente de los prestacionales en aras del Estado Social de Derecho; empero, tal meta no es ajena al contexto socio económico de una coyuntura histórica determinada ni a la obligación de efectuar un ejercicio de ponderación y optimización de los diversos principios, derechos y valores constitucionales en juego (verbigracia, entre el principio del Estado Social de Derecho y el del Equilibrio Presupuestario), de manera que en el contexto de una insostenibilidad financiera del Estado particularmente seria, debidamente acreditada desde el punto de vista técnico, se puedan tomar medidas para paliar la situación, siempre que estas se adopten salvaguardando los derechos fundamentales cobijados en la Constitución Política y los instrumentos del derecho internacional de los derechos humanos ratificados por Costa Rica, así como las cualidades esenciales del régimen político del país…”. (La negritas no corresponden al original).

Finalmente, nótese que la definición de la política salarial es una competencia que el legislador le atribuye al Poder Ejecutivo, lo que resulta acorde con las potestades de Administración y Gobierno que la Constitución Política le asigna a ese poder en relación con su funcionario y otros entes que no gozan de competencias exclusivas y excluyentes o grados a autonomía que impiden la potestad de dirección. Ergo, son los entes universitarios los llamados a fijar su política de remuneración, así como el salario mínimo de inicio de la columna salarial única y el valor financiero que se asigne a cada punto de la columna del salario global, adoptando como parámetro los principios y postulados que dispone la norma cuestionada, con excepción de aquellos funcionarios que los jerarcas de estos entes decidan excluir de la columna porque realizan funciones administrativas básicas, auxiliares, que no están vinculadas a los fines constitucionalmente asignados.

Sobre el artículo 37.f).- Salario global aplicado a rectores de las Universidades Públicas (redacta magistrada Picado Brenes) Indican los consultantes que el proyecto consultado pretende otorgar mecanismos al gobierno de turno, para generar presión sobre los presupuestos universitarios, mediante la limitación de los salarios de conformidad con el artículo 37 del proyecto en cuestión. Al respecto, esta Sala observa que, el inciso f) del artículo 37 del proyecto establece que el salario de los rectores de las Universidades Públicas no solo no podrá ser mayor que el que ostente la Presidencia de la República, sino que, será establecido por la Autoridad Presupuestaria, con fundamento en estudios técnicos, responsabilidades y perfiles de puestos, así como en los topes salariales establecidos en la Ley de Salarios de la Administración Pública. Ello resulta evidentemente inconstitucional, por violar la autonomía universitaria. Conforme a esta autonomía, son las propias universidades públicas quienes deben establecer por sí mismas el régimen remunerativo de sus servidores (ver sentencia n°2015-010248), incluido el salario de los rectores. En este sentido, resulta inconstitucional establecer que el salario de los rectores sea establecido por la Autoridad Presupuestaria, que es un órgano de la Administración Pública Central, y no, por la propia universidad. Recuérdese que, las universidades públicas o universidades estatales gozan de un grado especial de autonomía, que se puede denominar autonomía universitaria. Conforme a la jurisprudencia constitucional se ha indicado que tal autonomía abarca autonomía administrativa, política, financiera y organizativa. Por lo tanto, las universidades públicas están fuera de la dirección del Poder Ejecutivo y cuentan con todas las facultades y poderes administrativos para llevar a cabo su misión.

• 4)Conclusión -Sobre los artículos 11 (planificación del empleo), 15 (postulados de reclutamiento y selección) y 16 (oferta de empleo), dado que no se realiza la fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, se declara inevacuable la consulta por falta de fundamentación.

-En los términos indicados y conforme a la jurisprudencia de esta Sala, resultan inconstitucionales del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, los artículos siguientes.

Analizados todos los aspectos consultados en cuanto al artículo 6, 7, 9 (segundo párrafo del inciso a), 13 (inciso e), 14, 17, 30 (salvo el inciso b), 31, 32, 33, 34, 37 (inciso f), del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación a la autonomía universitaria de las universidades públicas. Siendo constitucionales los artículos 30.b, 35 y 36 del proyecto en cuestión, por las razones ya indicadas.

• 5)Votos salvados, razones y notas sobre la consulta en cuanto a las Universidades Públicas a) Razones diferentes de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 6 en cuanto somete a las Universidades Públicas a la rectoría del sistema general de empleo público a cargo del Mideplán En el sub lite, me inclino por declarar inconstitucional la norma consultada respecto de la aplicación a las universidades públicas, separándome de la diferenciación realizada por la mayoría de la Sala, en los términos que ahí se señala, en cuanto distingue entre funcionarios que realizan una función esencial atinente a las propias universidades públicas y los que no.

Obsérvese que lo que se está cuestionando en este numeral es la creación de un Sistema General de Empleo Público, cuya rectoría estaría a cargo del Mideplan, y en ese sistema se están integrando “las oficinas, los departamentos, las áreas, direcciones, unidades” de gestión de recursos humanos de las entidades y los órganos bajo el ámbito de aplicación de la presente ley. De previo, el art. 2 inciso b) incluye a las universidades estatales en el ámbito de cobertura del proyecto de ley. Asimismo, como señalé anteriormente, dicha norma debe ser examinada en conjunto con lo referido en el art. 9 inciso a) párrafo segundo del proyecto de ley, que ordena que las oficinas de recursos humanos deberán aplicar y ejecutar las disposiciones de alcance general, las directrices y los reglamentos en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales que el Mideplan remita a la respectiva institución.

Ahora bien, recuérdese que el art. 84 de la Constitución Política regula, respecto de las universidades públicas, lo siguiente:

“La Universidad de Costa Rica es una institución de cultura superior que goza de independencia para el desempeño de sus funciones y de plena capacidad jurídica para adquirir derechos y contraer obligaciones, así como para darse su organización y gobierno propios. Las demás instituciones de educación superior universitaria del Estado tendrán la misma independencia funcional e igual capacidad jurídica que la Universidad de Costa Rica.

El Estado las dotará de patrimonio propio y colaborará en su financiación.” (lo resaltado no corresponde al original).

De la norma anterior se desprende con suma claridad que las universidades públicas están dotadas de independencia constitucional para el desempeño de sus funciones y, muy concretamente, para darse su organización y gobierno propios. A partir de esa premisa, resultaría inconstitucional que las oficinas de recursos humanos del gobierno propio de las universidades y estas como un todo, sean sometidas a la rectoría del Mideplan, que sería el órgano contemplado en el proyecto de ley para establecer las políticas públicas de empleo público y emitir las disposiciones de alcance general en la materia (planificación, organización del trabajo, gestión del empleo, gestión del rendimiento, de la compensación y de las relaciones laborales). Esas oficinas de recursos humanos, por lo demás, rigen a todo el universo de funcionarios de las respectivas instituciones públicas de educación superior.

Ya señalé supra que, desde mi perspectiva, es posible una normativa común que establezca un marco regulatorio general de empleo público, en donde se reúnan y desarrollen los postulados de los arts. 191 y 192 de la Constitución Política; sin embargo, a mi juicio sustraer las oficinas de recursos humanos de las universidades públicas del alcance que tiene la capacidad de auto organización y gobierno propias de dichas universidades es inconstitucional, pues además eso iría aparejado con la correlativa obligación de ejecutar las disposiciones de alcance general del Mideplan. Lo anterior con el agravante de que la regulación de esta ley quedará en manos de este.

Considero necesario precisar que respecto de las instituciones contempladas en el art. 2 del proyecto de ley (ámbito de cobertura), estimo que no tienen el mismo nivel de independencia los poderes de la república (inciso a) que otras instituciones del sector descentralizado (inciso b). No obstante, en el caso concreto, la norma constitucional que contempla la organización de las universidades públicas es muy clara respecto a su plena capacidad jurídica para darse su organización y gobiernos propios, por lo que, reitero, sí es inconstitucional que las oficinas de recursos humanos de dichas instituciones pasen a conformar un Sistema de Empleo Público, cuya rectoría está confiada a un órgano dependiente del Poder Ejecutivo. Tal previsión desconoce que corresponde a cada institución de educación superior delimitar de forma autónoma cuál es la mejor forma para autoorganizarse, claro está, siempre supeditada a normas de carácter general que no desconozcan su autonomía. Es decir, les corresponderá a sus propias autoridades de gobierno ejecutar de forma autónoma las disposiciones de carácter general que tiendan a satisfacer lo establecido en los arts. 191 y 192 de la Constitución Política —o cualquier otra disposición de esta?, pero sí resulta inconstitucional esa rectoría y ese traslape entre las competencias de gobierno que les son propias y otras que se intenten imponer de forma heterónoma. Lo dicho no supone entender que las universidades gozan de soberanía ni que están al margen de las exigencias propias del Estado de Derecho, sino reconocer que el Constituyente originario quiso otorgar a las universidades públicas un estatus y prerrogativas singulares, que ni la Sala ni el legislador en el ejercicio de sus funciones pueden soslayar.

• b)Razones diferentes de la magistrada Picado Brenes, sobre el artículo 6 del proyecto respecto de las Universidades Públicas en cuanto a la potestad de dirección de Mideplán (punto 23 del Por Tanto) Si bien coincido con la unanimidad del voto en este punto en cuanto a considerar el artículo 6 del proyecto inconstitucional en cuanto a las universidades públicas, doy razones diferentes para referirme a la inconstitucionalidad del artículo 6.

El Estado ha encomendado a las universidades públicas, en grado superior, la enseñanza a fin de que preparen a la ciudadanía en el aprendizaje de las ciencias y las artes, así como para el ejercicio de las diferentes profesiones que se impartan, todo en beneficio de la colectividad y, para ello, ha dotado también a esos centros de enseñanza, de un grado de autonomía que les otorga el derecho de gobernarse, todo dentro de lo establecido por la Constitución y las leyes; autonomía que, en los términos del artículo 84 constitucional, impide la injerencia externa de otros entes estatales, entre ellos el Poder Ejecutivo. En el caso concreto del proyecto de Ley Marco de Empleo Público, se observar que a partir del numeral 2 inciso b) se pretende incluir a las universidades estatales en el sistema general de empleo público, lo que podría rozar con lo dispuesto en el artículo 84 constitucional, toda vez que éste, como lo ha dicho la Sala Constitucional en su sentencia nº 2012-011473, establece una reserva normativa en favor de las universidades de manera tal que su poder reglamentario le permite normar la organización del servicio universitario. Como es bien sabido, la autonomía universitaria que les asiste a los centros de educación superior públicos (dispuesta con rango constitucional), alcanza para que por medio de sus más altos órganos jerárquicos, establezcan su organización y funcionamiento y, dentro de ello, que regulen todo lo relativo al régimen de gestión del talento humano que necesitan para el desempeño de sus funciones. En consecuencia, la universidad estatal no se debe sujetar a todas las directrices, disposiciones y normativa que, en materia de empleo público, pretenda emitir el Mideplán, por lo que no sería factible que las universidades estatales se sometan a la rectoría que, en esa materia, se dispone en el artículo 6 del proyecto de Ley Marco de Empleo Público. Así las cosas, en atención a la autonomía universitaria plena que se les otorga a las universidades públicas en el artículo 84 de la Constitución Política, debería respetarse su grado de autonomía organizativa según la cual, como se dijo, están habilitadas para dictar sus propias normas jurídicas fundamentales de organización, incluyendo por supuesto todo lo relativo a la gestión del personal de esos centros de enseñanza cuyo manejo deberá hacerse con claro respeto al principio de idoneidad comprobada, también de rango constitucional.

En consecuencia, es inconstitucional pretender que a las universidades estatales se les aplique el artículo 6, pues se contrapone con los principios y las labores asignadas a esos centros de enseñanza a partir del artículo 84 constitucional.

El proyecto consultado pretende sujetar a las Universidades públicas a la rectoría del Mideplán en materia de empleo público. Se le otorga a Mideplán la rectoría en la materia de empleo público (art.6) Lo anterior se estima contrario a la línea jurisprudencial de la Sala según la cual, es improcedente que una instancia externa asuma la rectoría o imponga unilateralmente criterios de organización interna a las universidades, pues todo ello está incluido dentro de su autonomía plena en lo referente a las relaciones de empleo con sus servidores, en materia de evaluación de desempeño y en materia de salarios. Recuérdese que, esta Sala ha establecido los alcances de esta autonomía indicando que es suficiente para establecer sus planes, programas, presupuestos, organización interna y estructura de su gobierno (ver voto n°2008-013091) y para disponer, por sí misma, el régimen remunerativo de sus servidores (ver voto n°2015-010248). La creación de un Ministerio del empleo público -órgano del Poder Ejecutivo- con tan amplios poderes, que pueda dar órdenes sobre esta materia a las Universidades estatales, evidentemente viola su grado de autonomía autoorganizativa, evidenciándose además que esa rectoría va más allá de la regulación de una actividad, para tratarse en realidad de la dirección y subordinación a través de la emisión de directrices y reglamentos concretos sobre la materia. En mi criterio, la estructuración del proyecto como tal, incide abiertamente en el grado de autonomía de las universidades estatales, al otorgar amplias competencias al Mideplán que inciden directamente en la sustitución de potestades y competencias. Debe ponerse énfasis en que, la descentralización administrativa supone particularmente que el Poder Ejecutivo tiene vedado intervenir en las decisiones de las universidades estatales y si bien, puede haber sometimiento a principios constitucionales generales para todo el sector público, nunca podrá ser subordinación como lo pretende el proyecto de Ley bajo estudio.

• c)Razones adicionales de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 7 por afectar la autonomía de las Universidades Públicas En este caso, al igual que lo dicho por la mayoría, considero que la totalidad del art. 7 es inconstitucional en cuanto somete a las universidades públicas a la potestad de rectoría y de reglamentación de Mideplan. Como ya se señaló, esa norma establece una serie de amplias competencias a favor de un ministerio del Poder Ejecutivo que, aplicadas a las instituciones de educación superior universitaria, resultan inconstitucionales por desconocer su plena capacidad jurídica para darse su organización y gobiernos propios.

Pero es que no se trata solamente de esa rectoría en materia de reglamentación (arts. 7 y 9), pues no se puede dejar de lado que el propósito esencial por el cual se resguarda la autonomía de las instituciones de educación superior es velar también por la libertad de cátedra como presupuesto de la divulgación del conocimiento y de la pluralidad en una sociedad democrática, por lo que los intentos de incidir en la planilla y en la escogencia de los docentes y personal de investigación y de apoyo, que sirven de base para el ejercicio de la libertad de cátedra, implican una transgresión al Derecho de la Constitución. Al respecto, obsérvese que el art. 7 inciso n) bajo examen pretende que el Mideplan tenga las siguientes competencias en lo atinente al recurso humano y de investigación de las universidades públicas:

“Realizar diagnósticos en materia de recursos humanos de las entidades y los órganos incluidos para lograr un adecuado redimensionamiento de las planillas existentes y la elaboración de criterios generales que delimiten los sectores cuya actividad, por su valor estratégico institucional, así como la vinculación con la actividad sustantiva, se debería reservar para que sean realizadas exclusivamente por personas servidoras públicas. Además, analizar los que sirvan de orientación para delimitar la prestación de los que podrían ser externalizados y las condiciones de prestación de estos.” Estas competencias, como se señaló, podrían suprimir la capacidad de autogobierno y de manejo del personal necesario para llevar a cabo las funciones que le son intrínsecas. Además, de nuevo aquí debe recordarse que la regulación de esta ley quedará en manos de Mideplán.

• d)Razones adicionales de la magistrada Picado Brenes, sobre el artículo 7 del proyecto en cuanto a las amplias competencias de Mideplán respecto de las Universidades Públicas (punto 24 del Por Tanto) Conforme se ha venido señalando, al asignarse fines constitucionales a las universidades estatales, el constituyente originario las dotó de la máxima autonomía -para auto normarse, auto gobernarse y auto organizarse-, a fin de garantizar la independencia en el ejercicio de sus competencias, incluyendo la materia de empleo público por cuanto está orientada al cumplimiento de aquéllos fines de conformidad con lo que dispongan las autoridades universitarias; fines que están referidos a la actividad académica, la investigación y las actividades de extensión social o cultural. Desde esta perspectiva, si la universidad estatal puede auto organizarse y administrarse, es lógico que todo lo relativo a la gestión del talento humano, sea propio de su competencia por cuanto se trataría de una herramienta más de su haber, para el cumplimiento de sus fines. Entonces, no es posible pretender que a la universidad estatal se le aplique lo dispuesto en el artículo 7 del proyecto de Ley Marco de Empleo Público pues, obsérvese, que se daría un choque normativo entre las competencias que ahí se le asignan al Mideplán en relación con las potestades que ya tiene, en materia de gestión de personal, la universidad pública. Así las cosas, en mi criterio no se puede imponer que el Mideplán asuma la rectoría sobre las Universidades públicas pues, en el caso de la gestión de su talento humano, es a la universidad pública a la que le corresponde establecer, dirigir y coordinar la emisión de las políticas, programas y planes relativos a sus trabajadores, así como también emitir las disposiciones, directrices, reglamentos y demás normativa que va a regular el manejo de sus servidores en todos los ámbitos, su cobertura, la oferta de empleo que requiera para el ejercicio de sus funciones, los lineamientos y principios para la evaluación del desempeño de sus trabajadores, las acciones de investigación, innovación y propuestas para su mejora, la realización de sus diagnósticos y los fines para los cuales se efectúan, entre otras múltiples funciones relativas a la gestión del talento humano con el que cuenten las universidades públicas.

En consecuencia, pretender sujetar a las universidades estatales a lo dispuesto en el artículo 7 del proyecto de Ley bajo estudio, implicaría un roce con lo dispuesto en el artículo 84 constitucional, así como una lesión al Derecho de la Constitución.

• e)Razones adicionales de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 13 respecto de las Universidades Públicas Como ya lo especifiqué supra respecto del Poder Judicial y del Tribunal Supremo de Elecciones, en mi caso declaro no solo la inconstitucionalidad del inciso e) tal y como lo ordena la mayoría, sino que declaro la inconstitucionalidad de todo el artículo. Esto es así porque si solamente se declara inconstitucional el inciso e) se podría entender, en consecuencia, que es constitucional que el resto de funcionarios universitarios que no son docentes y académicos, pero que son personal de apoyo vitales para toda la labor universitaria, de investigación y de docencia, sí queden dentro del régimen general de empleo público bajo la expresa rectoría del Mideplan. Por lo que al entender la actividad universitaria solo desde la perspectiva del inciso e), que solo se refiere a “personas docentes y académicas”, se desconocen toda las particularidades y necesidades del personal de apoyo de las instituciones de educación superior universitaria. Es decir, dicho inciso es deficiente en sí mismo. Es decir, se declara inconstitucional por contemplar una familia concreta de la educación superior, bajo el entendido de que esto afecta la autonomía de las universidades; pero se desconoce la realidad de que estas instituciones están conformadas además por una amplia gama de funcionarios de apoyo que son esenciales para la adecuada ejecución de las competencias constitucionalmente designadas (investigación, acción social y cultural, por citar unos ejemplos) que, por la declaratoria de inconstitucionalidad solamente del inciso e), quedarían, por lo tanto, sometidos a la rectoría del Mideplan en contravención de lo dispuesto en los arts. 84 y 87 de la Constitución Política.

Asimismo, se debe insistir que el propio art. 13 dispone que “La creación de familias de puestos de empleo público es reserva de ley y deberá estar justificada por criterios técnicos y jurídicos coherentes con una eficiente y eficaz gestión pública”, norma que debe examinarse además en conjunto con lo referido en el art. 32 del proyecto de ley que ordena que “Cada familia laboral estará conformada por una serie de grados, cada uno de los cuales representa un grupo de puestos con perfil similar. El Ministerio de Planificación Nacional y Política Económica (Mideplán) definirá el número de grados requeridos dentro de cada familia laboral, así como sus características, como respuesta a una evaluación de todos los puestos dentro de la familia laboral”. Por lo que, se insiste, de declararse solamente la inconstitucionalidad del inciso e) se corre el peligro de que el resto de los funcionarios universitarios sean ubicados en otras “familias de puestos” cuya evaluación y definición quedaría a cargo de un órgano ajeno a su autogobierno, lesionándose su autonomía y estableciéndose un peligroso portillo para que exista injerencia de parte del Poder Ejecutivo respectivo de la administración de su personal. En consecuencia, pese a que solamente se haya consultado el inciso e), por pura derivación lógico-jurídica, es claro que desde el punto de vista constitucional dicho artículo está revestido de inconstitucionalidad, en la medida que la construcción de las familias de puestos desconoce las particulares y conformación institucional de las instituciones universitarias. Asunto distinto es que debe velarse por el cumplimiento de los principios de razonabilidad y proporcionalidad en lo relativo a las políticas salariales y condiciones laborales que se tengan al interno las universidades; pero para eso no es necesario ni justificado lesionar con la autonomía universitaria, que tiene raigambre constitucional, sino que bastaría con establecer un marco legal de normas y principios generales en materia de empleo público que, aunque respetando tal autonomía, vinculen a las autoridades universitarias, tanto como otras leyes. Por lo demás, desde la perspectiva constitucional, nada obsta para que exista un marco de normas en esta materia que sea específico para las universidades públicas. En todo caso, la autonomía universitaria no supone sustraerse de la acción del legislador, sino que esta debe ejercerse partiendo de su existencia.

• f)Razones adicionales de la magistrada Picado Brenes, sobre el artículo 13 del proyecto en cuanto a los grupos de familias de puestos de las Universidades Públicas (punto 27 del Por Tanto) La Sala ha considerado, por unanimidad, que el artículo 13 inciso e) del proyecto de Ley Marco de Empleo Público, es inconstitucional por no incluir -en tal inciso- a los servidores de las universidades públicas que realizan investigación, acción social y cultura. En mi criterio, existen otras razones que justifican también la declaratoria de inconstitucionalidad de esta norma y que paso a revisar de seguido.

Conforme lo he venido indicando, el Constituyente asignó a las universidades estatales la misión de ser casas de enseñanza en donde se prepare a la ciudadanía en el aprendizaje de las ciencias y las artes, así como para el ejercicio de las diferentes profesiones que se impartan, todo en beneficio de la colectividad. En aras de cumplir ese objetivo, las dotó de un grado especial de autonomía que ha sido denominado “autonomía universitaria” y conforme a la jurisprudencia constitucional, tal autonomía abarca los ámbitos administrativo, político, financiero y organizativo, con lo cual, las universidades públicas cuentan con todas las facultades y poderes administrativos para llevar a cabo su misión. Interesa destacar la sentencia nº 2016-002419 en la que la Sala Constitucional la describió con gran precisión:

“(…) Conforme lo dispone el artículo 84 de la Constitución Política, las Universidades del Estado están dotadas de independencia para el desempeño de sus funciones y de plena capacidad jurídica para adquirir derechos y contraer obligaciones, así como para darse su organización y gobierno propios. Esa autonomía, que ha sido clasificada como especial, es completa y por ésto, distinta de la del resto de los entes descentralizados en nuestro ordenamiento jurídico (regulados principalmente en otra parte de la Carta Política: artículos 188 y 190), y significa, para empezar con una parte de sus aspectos más importantes, que aquéllas están fuera de la dirección del Poder Ejecutivo y de su jerarquía, que cuentan con todas las facultades y poderes administrativos necesarios para llevar adelante el fin especial que legítimamente se les ha encomendado; que pueden autodeterminarse, en el sentido de que están posibilitadas para establecer sus planes, programas, presupuestos, organización interna y estructurar su gobierno propio. Tienen poder reglamentario (autónomo y de ejecución); pueden autoestructurarse, repartir sus competencias dentro del ámbito interno del ente, desconcentrarse en lo jurídicamente posible y lícito, regular el servicio que prestan, y decidir libremente sobre su personal (como ya lo estableció esta Sala en la resolución No.495-92). Son estas las modalidades administrativa, política, organizativa y financiera de la autonomía que corresponde a las universidades públicas. La autonomía universitaria tiene como principal finalidad, procurar al ente todas las condiciones jurídicas necesarias para que lleve a cabo con independencia su misión de cultura y educación superiores... La anterior conceptuación no persigue agotar la totalidad de los elementos, pero de su contenido esencialmente se deduce -y es lo que se entiende que quiso y plasmó el Constituyente en la Ley Fundamental- que la universidad, como centro de pensamiento libre, debe y tiene que estar exenta de presiones o medidas de cualquier naturaleza que tiendan a impedirle cumplir, o atenten contra ese, su gran cometido”.

Ahora bien, como ya lo he señalado, el artículo 13 del proyecto de Ley Marco de Empleo Público, tiene una redacción muy genérica e inclusive confusa que va a generar serios problemas de interpretación a la hora de ser aplicado. Nuevamente reitero mi criterio en cuanto a que se trata de una norma más que no será de fácil aplicación a la generalidad de los servidores públicos como lo pretende el proyecto, y se verá que, en la práctica, resultará casi una misión imposible, agrupar de manera objetiva a la gran cantidad de servidores públicos que existen en el país, en tan solo 8 familias de puestos. Conforme lo he estado manifestando, lo propio y adecuado es que cada una de las instituciones que han sido incluidas en el ámbito de cobertura de la ley, mantengan la gestión de su propio recurso humano, conforme se ha venido haciendo hasta el momento, pues es cada una de ellas la que conoce a su personal y es a la que le corresponde elaborar las políticas en relación con sus trabajadores de acuerdo a sus fines y metas; caso contrario, como lo pretende el proyecto, se vulnerará la autonomía específica con que cuenta cada una de las instituciones que han sido incluidas en el ámbito de cobertura de la Ley y, específicamente en el caso de las universidades estatales, se lesionará aquélla autonomía universitaria que, según lo ha señalado la propia Sala Constitucional, implica que cuentan con todas las facultades y poderes administrativos necesarios para llevar adelante el fin especial que legítimamente se les ha encomendado; que pueden autodeterminarse, en el sentido de que están posibilitadas para establecer sus planes, programas, presupuestos, organización interna y estructurar su gobierno propio; que tienen poder reglamentario (autónomo y de ejecución); que pueden autoestructurarse, repartir sus competencias dentro del ámbito interno del ente, desconcentrarse en lo jurídicamente posible y lícito, regular el servicio que prestan, y decidir libremente sobre su personal (ver sentencias nº 495-92 y nº 2016-002419).

Específicamente, en lo que se refiere al inciso e) del artículo 13 del proyecto de Ley Marco de Empleo Público, obsérvese que se trata de una de las 8 familias de puestos que se aplicarán en las instituciones cubiertas por esa Ley, según las funciones que ejecuta el personal, disponiendo que se refiere a:

“e) Personas docentes y académicas de la educación técnica y superior”.

Obsérvese que esta familia de puestos es muy genérica ya que solo hace referencia a los docentes y académicos de las universidades estatales y, precisamente, por la forma en que está redactado, considero que de hacerse una interpretación amplia del inciso, perfectamente podría pensarse que incluye a los servidores de esos centros de enseñanza que realizan investigación, acción social y cultura, a pesar de que la Sala ha considerado que están excluidos y que, por ello, sería inconstitucional. No le corresponde a la Sala determinar quiénes son las personas docentes o las personas académicas, así como tampoco quienes son las personas que realizan investigación, acción social y cultura, pero podría pensarse que unos y otros no son excluyentes entre sí y que perfectamente una persona docente o académica, puede realizar investigación, acción social y cultura.

Ahora bien, en mi criterio, uno de los mayores problemas que presenta la norma es que pretenda integrar ahí a sus funcionarios en grupos de familias de puestos diseñados por el Poder Ejecutivo -Mideplán-, a pesar de que -según la línea jurisprudencial constitucional- es improcedente que una instancia externa asuma la rectoría o imponga unilateralmente criterios de organización interna a las universidades, pues todo ello está incluido dentro de su autonomía plena en lo referente a las relaciones de empleo con sus servidores y a toda la gestión de su talento humano, debiendo recordarse que ha sido la propia Sala Constitucional la que ha establecido las repercusiones de esta autonomía indicando que alcanza para establecer sus planes, programas, presupuestos, organización interna y estructura de su gobierno (ver voto n°2008-013091) y para determinar por sí mismas, lo relativo a su recurso humano (ver voto n°2015-010248).

Entonces, si la universidad estatal puede auto determinarse, es decir, que está facultada para establecer sus planes, programas, presupuestos, organización interna y estructurar su propio gobierno, todo dentro de los límites establecidos por la propia Constitución Política y las leyes especiales que reglamentan su organización y funcionamiento (ver voto n°2012-011473), no sería posible, bajo ningún concepto, que con el proyecto de Ley bajo estudio se pretenda aglomerar a los servidores públicos universitarios en diferentes grupos de familias que, además de lesionar aquélla autonomía universitaria, no corresponden con los fines y objetivos constitucionales asignados a esos centros de enseñanza. Recuérdese que esa autonomía, que ha sido clasificada como especial y completa, distinta de la del resto de los entes descentralizados del ordenamiento jurídico costarricense (regulados principalmente en otra parte de la Carta Política: artículos 188 y 190), significa que las universidades están fuera de la dirección del Poder Ejecutivo y de su jerarquía, que cuentan con todas las facultades y poderes administrativos necesarios para llevar adelante el fin especial que legítimamente se les ha encomendado, de modo tal que pueden establecer sus planes, programas, presupuestos, organización interna, estructurar su gobierno propio y, entre otras potestades, decidir libremente sobre su personal, todo al gozar de autonomía administrativa, política, organizativa y financiera para llevar a cabo, con independencia, su misión de cultura y educación superiores (ver sentencias n° 92-495 y n° 93-1313).

En consecuencia, estimo que el artículo 13 inciso e) es inconstitucional porque estimo que su aplicación estaría ocasionando un roce con lo dispuesto en el artículo 84 constitucional, toda vez que éste, como lo ha dicho la Sala Constitucional en su sentencia nº 2012-011473, establece una reserva normativa en favor de las universidades de manera tal que su poder reglamentario es el único competente para normar la organización del servicio universitario y porque aquéllas están fuera de la dirección del Poder Ejecutivo así como de su jerarquía, en consecuencia, no podrían estar dentro del ámbito de cobertura del Mideplán como lo pretende imponer el proyecto de Ley Marco Empleo Público, ya que la autonomía de las universidades públicas, las protege frente al Poder Ejecutivo y al resto de la Administración Pública, pero también frente a la ley, para impedir que el legislador delegue en autoridades administrativas - el Mideplán en este proyecto- potestades capaces de imponer a las universidades públicas, decisiones sobre el ámbito de sus competencias, como lo sería la regulación y gestión del personal universitario, entre otros (ver sentencias n°93-1313 y n°96-276).

• g)Nota de la magistrada Garro Vargas respecto de la inconstitucionalidad del artículo 17 aplicado al personal de alta dirección de las Universidades Públicas La suscrita Magistrada destaca que si bien el inciso 2° del artículo bajo examen dispone que “las entidades y los órganos, incluidos en el artículo 2 de la presente ley, establecerán la normativa administrativa en relación con el personal de la alta dirección pública”, con lo cual se da una apariencia de que serán los propios órganos los que establecerán esta normativa, no puede obviarse que a lo largo de todo el proyecto de ley se aprecia una intención de establecer una rectoría por parte del Mideplan, que está llamada a girar las disposiciones de alcance general, directrices y reglamentos en relación con la planificación, la organización del trabajo, la gestión de empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, lo que sin duda alguna también vincularía al personal de la alta dirección pública, en detrimento de la autonomía de las universidades públicas de darse su organización y gobierno propio, y en perjuicio del principio toral del funcionamiento de estas instituciones, como lo es la libertad de cátedra y la consecuente libertad en la investigación.
• h)Nota de la magistrada Picado Brenes, sobre el artículo 17 del proyecto en cuanto al personal de alta dirección de las Universidades Públicas (punto 30 del Por Tanto) Coincido con el criterio de la mayoría en cuanto a considerar inconstitucional el artículo 17 del proyecto de "Ley Marco de Empleo Público” que se tramita en el expediente legislativo n° 21.336, por someter al personal de alta dirección de las universidades públicas a lo que disponga el Mideplán; sin embargo, estimo necesario mencionar aspectos adicionales por los cuales considero que la norma también podría ser inconstitucional.

Como lo he venido mencionando, partiendo del artículo 84 de la Constitución Política, las universidades públicas o universidades estatales, gozan de un grado especial de autonomía que se puede denominar autonomía universitaria y que, conforme a la jurisprudencia constitucional, abarca a la autonomía administrativa, política, financiera y organizativa, de modo que cuentan con todas las facultades y poderes administrativos para llevar a cabo su misión. Estos centros de enseñanza pueden autodeterminarse, es decir, están facultados para establecer sus planes, programas, presupuestos, organización interna y estructurar su propio gobierno, todo dentro de los límites establecidos por la propia Constitución Política y las leyes especiales que reglamentan su organización y funcionamiento (ver voto n°2012-011473), ello porque la Constitución Política dispone que gozan de independencia para el desempeño de sus funciones y de plena capacidad jurídica a fin de adquirir derechos y contraer obligaciones, así como para darse su organización y gobierno propios. En este sentido, la línea jurisprudencial de la Sala Constitucional ha sido clara en establecer que las universidades públicas tienen el grado más alto de autonomía, que es autonomía autoorganizativa o autonomía plena, la cual ha sido clasificada como especial, completa y, por esto, distinta de la del resto de los entes descentralizados del ordenamiento jurídico (regulados principalmente en otra parte de la Carta Política: artículos 188 y 190). Lo anterior significa que las universidades públicas están fuera de la dirección del Poder Ejecutivo y de su jerarquía, que cuentan con todas las facultades y poderes administrativos necesarios para llevar adelante el fin especial que legítimamente se les ha encomendado, que pueden autodeterminarse porque están posibilitadas para establecer sus planes, programas, presupuestos, organización interna y estructurar su gobierno propio, que tienen poder reglamentario (autónomo y de ejecución), que pueden auto estructurarse a fin de repartir sus competencias dentro del ámbito interno del ente, desconcentrarse en lo jurídicamente posible y lícito, regular el servicio que prestan, y decidir libremente sobre su personal. Todas estas son potestades de las modalidades administrativa, política, organizativa y financiera de la autonomía que corresponde a las universidades públicas y que tiene, como principal finalidad, procurar al ente todas las condiciones jurídicas necesarias para que lleve a cabo, con independencia, su misión de cultura y educación superiores (ver sentencias n°92-495 y n°93-1313). Así las cosas, si se parte de este grado máximo de autonomía universitaria, resulta más que evidente que se produciría un choque frontal con el contenido del artículo 17 bajo estudio y, en consecuencia, éste sería inconstitucional.

En primer lugar, obsérvese que el numeral dispone que será el Mideplán el que emitirá la disposiciones de alcance general, las directrices y los reglamentos en materia del personal de alta dirección técnica, entendido éste como las personas servidoras públicas de cada uno de los órganos y entes que tienen a su cargo una o varias de las instancias calificadas como nivel directivo según los lineamientos generales para reorganizaciones administrativas, excluyéndose a todos los cargos cuyo nombramiento está expresamente regulado en la Constitución Política. Acá se tendría el primer motivo por el cual el numeral 17 de cita resultaría inconstitucional pues su contenido atentaría contra la autonomía universitaria tutelada en el artículo 84 de la Constitución Política a partir del cual las universidades públicas están fuera de la dirección del Poder Ejecutivo y de su jerarquía; en consecuencia, bajo ningún concepto, el Mideplán podría imponerles sus decisiones.

En segundo lugar, obsérvese que la norma establece que esa rectoría del Mideplán pretende dotar a la Administración Pública de perfiles con integridad y probada capacidad de gestión, innovación y liderazgo para procurar el mejoramiento de la prestación de bienes y servicios públicos. Nuevamente esa pretensión atentaría contra la autonomía universitaria tutelada en el artículo 84 de la Constitución Política, toda vez que las universidades públicas ya cuentan con la potestad de auto organizarse, auto estructurarse y auto determinarse para alcanzar objetivos similares, o inclusive ir más allá pues, en razón de su naturaleza y del tipo de servicio que prestan en la sociedad costarricense, cuentan con todas las facultades y poderes administrativos, económicos y políticos necesarios para llevar adelante el fin especial que legítimamente se les ha encomendado, y que está encaminado a difundir la cultura, la investigación y la educación entre la población.

En tercer lugar, si el objetivo macro de la Ley de Empleo Público es crear un sistema único y uniforme de gestión del empleo público en los términos en que lo indica el artículo 1 del proyecto de Ley bajo estudio y esta norma 17 presupone que las universidades públicas estarían incluidas dentro de ese megasistema de empleo público, nuevamente en atención al artículo 84 constitucional y al grado de autonomía completa de que gozan las universidades públicas, sería inconstitucional que se obligue a éstas a establecer la normativa administrativa en relación con su personal de alta dirección pública, ello por cuanto, no se les podría obligar a dictar normativa en determinada dirección o bajo alguna línea de pensamiento específica porque ello es una competencia que solo les corresponde a ellas, de manera independiente y como parte de su autonomía organizativa, no como una obligación o un direccionamiento que provenga de un órgano del Poder Ejecutivo. En razón de esta circunstancia, para las universidades estatales, no podrían aplicar los postulados que enumera este artículo 17.

Desde esta perspectiva entonces, lo que se considera personal de alta dirección pública en el sistema de empleo público, no correspondería con lo que las universidades estatales pudieren determinar que van a entender bajo ese concepto, toda vez que ello es parte de su autonomía total para organizarse, estructurarse y determinarse. Además de ello, la designación de ese tipo de personal, no podría estar sujeta a los principios que regula el artículo 17, ya que aquéllos centros de enseñanza tienen plena autonomía para determinar cuáles serían esos principios e inclusive, si quisieran, pueden no designar ningún tipo de personal de alta dirección si así lo deciden, o bien podrían establecer sistemas jerárquicos menos piramidales, todo lo cual, en definitiva, es parte de su ámbito de competencia. Por otra parte, el personal que las universidades públicas clasifiquen como de alta dirección pública, en caso de que así lo deseen hacer, podría regirse por otros principios diferentes a los que se disponen en este numeral. Igualmente, lo relativo a la evaluación del desempeño corresponde definirlo a la universidad estatal. Estas materias también resultan estar resguardadas por la auto regulación, auto estructuración y auto organización de que gozan esos centros de enseñanza públicos en virtud del artículo 84 constitucional.

En consecuencia, sería improcedente que una instancia externa asuma la rectoría o imponga unilateralmente criterios de organización interna en lo referente a las relaciones de empleo del personal de alta dirección pública en las universidades públicas, pues todo ello está incluido dentro de su autonomía plena. No puede olvidarse que esta Sala ya ha establecido la trascendencia de esa autonomía indicando que alcanza para establecer los planes, programas, presupuestos, organización interna y estructura de su gobierno (ver voto n°2008-013091).

En consecuencia, el contenido de este artículo 17, incide abiertamente en el grado de autonomía de las universidades estatales al otorgar amplias competencias al Mideplán para la sustitución de potestades y competencias que son propias de aquéllas, pero también implica una vulneración de la descentralización administrativa que es una garantía básica del Estado de Derecho, la cual supone que, el grado de poder del Poder Ejecutivo, se encuentra descentralizado y que le está vedado intervenir en las decisiones de las universidades estatales. Si bien es cierto, puede haber sometimiento a principios constitucionales generales para todo el sector público -incluyendo a las universidades estatales-, también es lo cierto que nunca podrá haber subordinación en las materias en que lo pretende este numeral 17 del proyecto de Ley.

• i)Razones diferentes de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 30 por lesionar la autonomía de las Universidades Públicas Coincido con la mayoría en el sentido de que es inconstitucional el art. 30 del proyecto de ley consultado por lesionar la autonomía de las universidades públicas. He de subrayar que, como lo he venido señalando, considero que no sería inconstitucional un marco general de empleo público que disponga en términos generales los postulados rectores que orienten la gestión de la compensación. No obstante, conforme a este proyecto de ley, la gestión de la compensación si bien aparenta que, en tesis de principio, podría contar con la intervención de las instituciones de educación superior estatal para la construcción de la “columna salarial global” (art. 30 párrafo final), lo cierto es que seguidamente la decisión final de cómo conformar la columna salarial global, la clasificación de puestos de trabajo y la política de remuneración será establecida por los órganos del Poder Ejecutivo, en detrimento de la autonomía universitaria. Por lo tanto, sin atender la distinción realizada por la mayoría, estimo que la construcción de la familia de la columna salarial y sus características corresponde en forma exclusiva y excluyente a los máximos órganos de los entes universitarios como una manifestación de su plena capacidad jurídica para darse su organización.

Concedo que los efectos de lo establecido en ese artículo 30 no es igualmente grave cuando se trata del Poder Judicial o el Tribunal Supremo de Elecciones, que cuando se trata de las universidades, pero el punto es que en el caso de estas tampoco hay apoyo constitucional para que esa norma se les aplique.

• j)Razones diferentes de la magistrada Picado Brenes, sobre el artículo 30 del proyecto en cuanto a los postulados sobre la compensación respecto de las Universidades Públicas (punto 31 del Por Tanto) Partiendo de que la autonomía universitaria es plena y que permite a las universidades estatales dictar sus propias normas jurídicas de organización con las cuales pueden auto gobernarse, auto organizarse y auto administrarse, incluyendo en esas áreas todo lo relativo a la gestión del talento humano, resulta lógico también que lo relacionado con la compensación salarial de los servidores universitarios, sea planificado, elaborado y ejecutado a lo interno de la propia universidad, toda vez que será ahí adonde se podrá determinar con criterios reales y ajustados al ejercicio de sus funciones, los niveles de compensación que serían adecuados y justos al trabajo realizado y al cumplimiento de las metas planteadas. No sería válido entonces que un ente externo a la universidad estatal como lo sería el Mideplán, sea el que venga a determinar los salarios de las personas servidoras de la universidad estatal. En ese sentido, solo le correspondería a la universidad pública establecer los postulados rectores que deben de aplicarse en esta materia pues es obvio que los parámetros para hacer tal determinación, deberán atender a los criterios de especialidad que se manejen en la universidad estatal, pero también al tipo de funciones que ahí se realizan. En ese sentido, serán los conocedores de la materia y en su propio campo de trabajo, los que puedan establecer la razonabilidad y proporcionalidad de los salarios que se fijen en función de las labores realizadas, los horarios, la exigencia de trabajo, los grados de peligrosidad, los desplazamientos de los trabajadores, la disponibilidad, el zonaje, entre otros aspectos a tomar en cuenta para establecer escalas y niveles salariales. Considero que no es posible aplicar criterios generales provenientes de un órgano externo y alejado del ámbito de trabajo de la universidad estatal, a funciones tan específicas, técnicas y determinadas como las que realizan investigadores y profesores universitarios o académicos, así como todo el personal administrativo y de apoyo que les rodean. En ese orden de ideas, sería ilusorio que las instituciones incluidas en el ámbito de aplicación del empleo público, puedan construir conjuntamente con el Mideplán, la Autoridad Presupuestaria y la Dirección General de Servicio Civil, una columna salarial global cuando, por más coordinación interinstitucional que exista, se están tratando de incluir en un mismo sitio, funciones, disciplinas, trabajos y personas tan disímiles, sin ningún elemento más en común que laborar para la administración pública.

En consecuencia, es contrario al Derecho de la Constitución, incluir a las universidades públicas en los postulados rectores que orientan la gestión de la compensación desarrollados en el artículo 30 del proyecto de Ley Marco de Empleo Público bajo estudio, por cuanto aquéllas cuentan con plena autonomía para crear y desarrollar sus propias medidas de compensación, sin interferencias externas y en atención a la especificidad de sus fines constitucionales así como de los colaboradores que los desempeñan.

• k)Voto salvado de las magistradas Hernández López, Garro Vargas y Picado Brenes, con redacción de la última, sobre el artículo 30 inciso b) en cuanto al tope de salario en las Universidades Públicas (punto 32 del por tanto) Disentimos del criterio de la mayoría y consideramos que el artículo 30 b) es inconstitucional por sus efectos, ya que no es válido que el salario del Presidente de la República sea tope para los salarios en las universidades públicas, particularmente cuando existan razones técnicas y de otra naturaleza que justifiquen otra remuneración. Consideramos que el proyecto parte de una premisa equivocada, presupone que el cargo de Presidente de la República, por ser el más alto de los que se pueden ocupar en la jerarquía estatal conlleva una mayor responsabilidad, lo que los hace concluir que debería ser el que más remuneración salarial reciba; sin embargo, ello se aleja de los principios básicos sentados por los expertos en el tema de gestión del talento humano. En primer término, no es comparable un puesto de naturaleza política, con un puesto técnico. En segundo lugar, la determinación de la estructura salarial de un puesto no puede atender a criterios subjetivos ni mucho menos definirse solo en atención al nivel jerárquico que ocupa, como lo hace el proyecto en estudio. De conformidad con los expertos en recursos humanos, para establecer el salario de un determinado cargo, se deben tomar en cuenta lo siguientes elementos: responsabilidad, autoridad, competencias o capacidades, formación profesional, habilidad de negociación, experiencia e inclusive, en algunos casos hasta la edad del oferente. En los últimos años, hay organizaciones que también toman en cuenta las habilidades blandas que incluyen la personalidad del trabajador y su capacidad para relacionarse con el resto, el liderazgo, la comunicación, entre otras habilidades que suelen trascender a las competencias técnicas. Si a todo esto se le suma que, en el caso específico del Presidente de la República, la Constitución Política en su artículo 131 dispone que para ocupar ese cargo, únicamente se requiere ser costarricense por nacimiento y ciudadano en ejercicio, del estado seglar y ser mayor de 30 años, y que además este cuenta con gastos confidenciales y otros, resulta más que evidente que los criterios que se podrían utilizar para fijar su salario, no corresponden con los del resto de servidores públicos, a quienes se les exige la demostración de idoneidad para el puesto, y en los puestos profesionales, ello supone contar con un título profesional. El pueblo soberano, cuando elige mediante el voto popular al Presidente de la República, no necesariamente lo escoge atendiendo a aquellos elementos objetivos que se utilizan como parámetros para la determinación de un salario. En consecuencia, si bien es cierto el cargo de Presidente de la República implica que la persona que lo ocupa tiene un alto grado de responsabilidad, también lo es que, por el solo hecho de ser Presidente de la República, no necesariamente debe imponerse su salario como un techo para el resto de salarios del sector público, pues dicho techo carece de elementos objetivos que lo justifiquen. No existe ninguna justificación técnica y objetiva que valide el hecho de que sea el cargo de presidente el que ostente el salario más alto, sobre todo cuando se compara con otros altos puestos de la Administración Pública para quienes la propia Constitución Política exige mayores requisitos profesionales como sería el caso de los Magistrados de la Corte Suprema de Justicia y del Tribunal Supremo de Elecciones (artículos 100 y 159), o bien para otros puestos en donde es la Ley la que requiere del oferente el cumplimiento de una serie de requisitos de mayor relevancia que lo exigido para el Presidente de la República, como sería el caso del Procurador General de la República (Ley Orgánica de la Procuraduría General de la República, artículo 9). Lo mismo podríamos decir de científicos o médicos especialistas. Así las cosas, pretender que el Presidente de la República, por el solo hecho de serlo, devengue el salario mayor implica sin duda una vulneración del principio de igualdad y no discriminación. Además, tal tope salarial resulta irrazonable e inconsecuente, pues el mismo proyecto de Ley Marco de Empleo Público, en su artículo 30 inciso a) establece que “el salario será siempre igual para igual trabajo en idénticas condiciones de eficiencia, puesto, jornada y condiciones, independientemente de la institución pública para la que labore”. Aplicando lo dicho al caso de las universidades estatales en relación con el artículo 30 inciso b), sería inconstitucional admitir una norma que permita que un docente universitario de carrera, perteneciente a régimen académico, con muchos años de experiencia en docencia pero también en investigación, con publicaciones, con varios títulos académicos de grado pero también de posgrado, responsable de alguna o varias unidades académicas, tenga que estar sometido a una remuneración inferior a la del Presidente de la República solo porque este proyecto de Ley así lo ordena y sin contar para ello con estudios técnicos que lo avalen. Lo anterior sería además lesivo de la autonomía universitaria que, como se ha señalado, se extiende a los ámbitos administrativo, político, financiero y organizativo. Por otra parte, debe decirse que imponer topes a los salarios a partir de un punto de referencia concreto -como sería en este caso el salario del Presidente de la República-, implica limitar gravemente la posibilidad de crecimiento intelectual y profesional de las personas servidoras públicas. En este punto el proyecto es contrario al principio de igualdad salarial, que permite que las personas puedan superarse y alcanzar metas altas. Una norma como la consultada llevaría a una seria polarización social y laboral, pues los funcionarios públicos, particularmente de las universidades públicas, según se consulta, se mantendrían en sus cargos con salarios estáticos, sin posibilidad alguna de superación o crecimiento, una vez que han llegado al tope del salario del Presidente de la República. En el caso concreto de la universidad pública, limitar el salario de los funcionarios universitarios al salario del Presidente de la República, pero sobre todo de los docentes, académicos, investigadores y quienes realizan acción social, significará también ponerle tope al conocimiento, a la investigación, a la acción social y cultural y, en definitiva, al desarrollo del país. En consecuencia, resulta contrario a la autonomía universitaria y a las reglas de la ciencia, de la técnica, establecerles un tope para la fijación de sus salarios, sin tomar en cuenta la relevancia de las funciones que realizan las universidades públicas en el país y su papel protagónico en la formación de la democracia costarricense. Con vista de todo lo anterior, consideramos que el artículo 30 inciso b) del proyecto de Ley Marco de Empleo Público es lesivo del Derecho de la Constitución.
• l)Razones diferentes de las magistradas Garro Vargas y Picado Brenes, con redacción de la segunda, sobre los artículos 31, 32 y 34 del proyecto, en cuanto a las reglas de compensación en las Universidades Públicas (punto 33 del Por Tanto) La autonomía universitaria tiene como principal finalidad procurar todas las condiciones jurídicas necesarias para que la universidad estatal, con independencia, lleve a cabo su misión de cultura y educación superior; misión que no sólo consiste en enseñar, sino también en realizar investigación científica, cultivar las artes y las letras, analizar con objetividad y conocimiento la realidad social, cultural, política y económica del país, de su entorno y del mundo, proponer soluciones a los grandes problemas y ser impulsora de ideas para lograr el desarrollo social en todos los ámbitos. La universidad estatal entonces no es un simple sitio dedicado a la enseñanza sino que es un centro de pensamiento libre, por lo que debe y tiene que estar exenta de presiones o de medidas de cualquier naturaleza que tiendan a impedirle cumplir su cometido, con independencia y responsabilidad. Desde esta perspectiva entonces, sería totalmente contrario a esa autonomía universitaria, que un órgano del Poder Ejecutivo -Mideplán en este caso-, pretenda imponerle directrices o reglamentación relativa a materia de empleo público, mucho menos en lo que tiene que ver con la metodología de valoración del trabajo de sus servidores, los grupos y grados de puestos así como la valoración para efectos de su remuneración salarial. Según el artículo 31 del proyecto de Ley Marco de Empleo Público, el Mideplán especificará una metodología de valoración del trabajo para el servicio público que será un esquema de “factor de puntos”, otorgándose puntuaciones a los puestos de trabajo de acuerdo con un análisis de factores de trabajo relevantes, siendo que Mideplán también definirá esos factores de trabajo relevantes. Obsérvese que es el Mideplán el que asume por completo esta labor, sin dejar margen de participación a la universidad estatal, a pesar de la autonomía de que ésta goza y de que esos puestos de trabajo así como lo relativo a éstos, es materia propia de la competencia universitaria, porque no se puede olvidar que se trata de sus trabajadores para el cumplimiento de sus fines.

Por su parte, véase en el artículo 32 del proyecto de Ley bajo estudio, que también será el Mideplán el que determinará las familias laborales de puestos así como los grados que las conforman y las características de todo este entramado, lo cual, según esa norma, se hará como respuesta a una evaluación de todos los puestos dentro de la familia laboral, siendo la participación del Mideplán decisiva ya que además de todo lo anterior, deberá emitir las directrices relativas a los puntos de remuneración dentro de los grados de cada entidad pública empleadora, sin que la norma haga referencia alguna a la autonomía universitaria ni mucho menos, que tenga alguna consideración especial en el caso de la especificidad de la materia de conocimiento de las universidades pues, debe tenerse en cuenta que, también, se ha incluido en este sistema general de empleo público, a los funcionarios que realizan labores sustanciales -propias de la actividad universitaria-, es decir, aquellos que realizan funciones de docencia, investigación, extensión social y cultural, así como los que realizan funciones administrativas, profesionales y técnicas, necesarias para cumplir con criterios de eficacia y eficiencia los fines constitucionalmente asignados a esos centros de enseñanza.

Finalmente, debe analizarse que el artículo 34 del proyecto de Ley bajo estudio, dispone que también será el Mideplán el que elaborará -junto con la Secretaría Técnica de la Autoridad Presupuestaria y la Dirección General de Servicio Civil-, la columna salarial global, sin que se observe ninguna exclusión de algunos puestos de trabajo de la universidad pública, ni mucho menos, como ya se dijo, alguna referencia aunque fuera mínima, a la autonomía plena con que cuenta la universidad estatal que le permite gestionar todo lo relativo al recurso humano, por lo que la intervención de un órgano externo como sería el Mideplán, resultaría lesiva de aquélla autonomía.

Resulta más que evidente que el Mideplán tendrá una participación sumamente activa, pero también casi que exclusiva y excluyente en esta materia, lo cual a su vez conlleva un choque frontal con la autonomía universitaria según la cual, todo ese tipo de labores relacionadas con la gestión del talento humano en esas áreas, es competencia única y exclusiva de la universidad estatal, por lo tanto, no podría el Mideplán pretender suplantar tales funciones sin que opere un abierto roce con lo dispuesto en el artículo 84 constitucional y por ende, considero que estos numerales 31, 32 y 34 del proyecto de ley bajo estudio, resultan inconstitucionales.

• m)Razones diferentes de las magistradas Garro Vargas y Picado Brenes, con redacción de la última, sobre el artículo 33 del proyecto, en cuanto a la clasificación de puestos en las Universidades Públicas (punto 34 del Por Tanto) Como ya se ha indicado, las universidades públicas gozan de autonomía plena que les habilita para dictar sus propias normas jurídicas fundamentales lo cual incluye los ámbitos administrativo, político, financiero y organizativo, por lo que cuentan con una amplia gama de facultades y poderes administrativos para llevar a cabo su misión, entre las que se encuentra la potestad de darse su organización interna y gestionar todo lo relativo al recurso humano, dentro de los límites establecidos por la propia Constitución Política y las leyes especiales que reglamentan su organización y funcionamiento. Así las cosas, resulta más que evidente que el Poder Ejecutivo, y en este caso, el Mideplán, no podría ejercer potestades de dirección ni dictar normativa en la materia que corresponde a las universidades, según el grado de autonomía con el que cuentan y el fin que constitucionalmente les fue asignado para la docencia, la investigación y la extensión social y cultural.

Desde esta perspectiva entonces, el artículo 33 del proyecto de Ley Marco de Empleo Público, no le podría ser aplicado a las universidades públicas, toda vez que la clasificación de puestos de trabajo es una competencia que se encuentra protegida por la autonomía universitaria. Le corresponde entonces a cada universidad pública, así lo dispone, decidir si para el manejo de su personal va a contar o no con un manual de puestos detallado, el cual no necesariamente corresponderá con los criterios previamente determinados por el Mideplán, pues será elaborado por cada universidad estatal en atención a las metas, así como a los objetivos de trabajo que se haya planteado. En ese mismo sentido, la universidad pública no puede estar sometida a la obligación de facilitarle esa información al Mideplán porque los puestos de trabajo que decida crear corresponderán a sus necesidades institucionales y a sus fines, no al interés genérico que pudiere tener aque órgano del Poder Ejecutivo; en consecuencia, los puestos de trabajo que la universidad pública determine que requiere para el ejercicio de sus funciones y el cumplimiento de sus metas estarán estrechamente vinculados a la docencia, la investigación y la extensión social y cultural y, por ende, la descripción de cada puesto y su evaluación serán materia de competencia única y exclusiva de aquélla, sin que sea válido ningún tipo de injerencia externa que no corresponda al ámbito universitario. Igualmente, como los objetivos de los diferentes puestos de trabajo universitarios están claramente determinados a conseguir aquelos fines propios de la universidad pública, no sería posible que el Mideplán pretenda asimilarlos con los que puedan ser asignados a otra institución pública de naturaleza diferente, toda vez que sería más que razonable que los fines, de unos y otros, no coincidan. Bajo esta premisa, pretender que la clasificación de puestos que se reconoce en el artículo 33 del proyecto de Ley sea aplicable por igual a todas las instituciones públicas incluidas en el sistema general de empleo público implica desconocer que el Constituyente originario otorgó, en el caso específico de las universidades públicas, un grado de autonomía que es único y exclusivo, por lo que cualquier Ley que pretenda modificarlo estaría vulnerando el Derecho de la Constitución. De igual manera ocurre con ese artículo 33 al incluir, dentro de su ámbito de acción, a los funcionarios universitarios que realizan labores sustanciales propias de la autonomía universitaria, toda vez que al sujetarlos a lo ahí dispuesto, se estaría incurriendo en una vulneración de lo dispuesto en el artículo 84 constitucional, toda vez que se trata de personal especializado que realiza funciones de docencia, investigación, extensión social y cultural, así como funciones administrativas, profesionales y técnicas, todos necesarios para cumplir con las funciones constitucionalmente asignadas a la universidad pública. También debe decirse que es más que evidente que, labores tan específicas y especializadas como las que se han asignado a las universidades públicas, no pueden ser tratadas con el menosprecio de la generalidad que pretende imponer el proyecto bajo estudio.

• n)Razones diferentes de la magistrada Garro Vargas en relación con la constitucionalidad de los artículos 35 y 36 respecto de las Universidades Públicas Respecto de los arts. 35 y 36 del proyecto de ley coincido con la mayoría de la Sala en el sentido de que dichas normas por sí mismas no son inconstitucionales. Tal como lo indiqué supra, no sería inconstitucional que el legislador regule un marco de empleo público que disponga en términos generales los postulados rectores que orienten la gestión de la compensación de todos los servidores públicos. Justamente los arts. 35 y 36 prevén el tránsito de todas las instituciones del sector público hacia un régimen salarial unificado, basado en columnas salariales, por lo que estimo que tales previsiones no son en sí mismas inconstitucionales. Sin embargo, en atención del marco constitucional que regula a las universidades públicas, a mi juicio, les corresponderá a las propias autoridades de gobierno de estas establecer la definición e implementar las columnas salariales de sus empleados y, por lo tanto, el diseño de la política de remuneración conforme a tales columnas. Lo anterior, con el propósito de dar coherencia al sistema que se pretende implementar para todo el empleo público, pero también respetando la autonomía que la Constitución ha consagrado a favor de todas las instituciones de educación superior universitaria.
• ñ)Razones adicionales de la magistrada Picado Brenes sobre los artículos 35 y 36 del proyecto en cuanto al régimen salarial unificado y las Universidades Públicas (punto 35 del Por Tanto) La Sala Constitucional ha concluido, por unanimidad, que la fijación de un salario global por parte de legislador en el caso de las universidades públicas, no es inconstitucional; sin embargo, considero que se impone hacer algunas precisiones al respecto.

-Son las propias Universidades Públicas quienes deben establecer su estructura salarial, la política salarial unificada del sector público operaría solo como un lineamiento general: Si bien es cierto, el artículo 56 de la Constitución Política, lo que establece es el derecho del trabajador a contar con una contraprestación económica por el servicio prestado que no implica un derecho fundamental a un plus o pluses salariales, así como también que se trata de una materia en la que puede haber libre configuración del legislador, también es lo cierto que ello no implica -en modo alguno- que una vez determinada esa política salarial para el sector público (como lo indica el art.35 consultado), se obvie por la autonomía universitaria. Conforme a esta autonomía, debe ser la universidad estatal quien, a partir de algunas líneas o parámetros generales del régimen salarial unificado, establezca de manera específica para sí misma: las condiciones, requisitos y características necesarias a fin de estructurar la política salarial propia de los empleados universitarios en atención a sus funciones, responsabilidades, competencias, formación profesional, experiencia, etc.. Se trata de que sea la misma Universidad pública quien establezca su régimen salarial unificado, basado en una columna salarial global diseñada por la misma Universidad. Claro está, dentro del marco de lo posible atendiendo la política salarial general de todo el sector público, en cuanto a sus lineamientos y principios generales. Se hace esta aclaración para que se comprenda en su justa dimensión el artículo 35 señalado, pues el proyecto parece no resguardar la autonomía universitaria en este sentido. Desde mi punto de vista se deben leer los artículos 35 y 36 en los términos antes expuestos, en donde la Universidad observará los lineamientos en cuanto a la política de remuneración salarial dictada para todo el sector público, pero con la autonomía suficiente para adaptarlos a sus necesidades y particularidades.

-La política de remuneración dictada a la luz del art.36 del proyecto consultado, debe respetar el art.85 constitucional: Conforme al artículo 85 Constitucional “El Estado dotará de patrimonio propio a la Universidad de Costa Rica, al Instituto Tecnológico de Costa Rica, a la Universidad Nacional y a la Universidad Estatal a Distancia y les creará rentas propias, independientemente de las originadas en estas instituciones. Además, mantendrá … un fondo especial para el financiamiento de la Educación Superior Estatal…” Así entonces, tal política de remuneración dictada por el Poder Ejecutivo no podría desconocer la obligación constitucional que tiene el Estado de dotar de patrimonio propio a las Universidades públicas. Además, se recalca que se trata de una política general de remuneración, pues nótese que es establecida por órganos del Poder Ejecutivo, y no podría nunca tener el carácter de una orden o una directriz.

-Todos los empleados universitarios estarían incluidos dentro de la política salarial universitaria: Tal como lo dice la redacción de este voto, son los entes universitarios los llamados a fijar su política de remuneración, así como el salario mínimo de inicio de la columna salarial única y el valor financiero que se asigne a cada punto de la columna del salario global, adoptando como parámetro los principios y postulados que dispone la norma cuestionada. Sin embargo, difiero en considerar que lo anterior es así solo para un tipo de trabajadores universitarios. Considero que no se puede dividir a los empleados universitarios para que algunos estén excluidos y otros incluidos en la columna salarial que establecerá la propia universidad ya que, implicaría crear una odiosa diferencia entre personas según las labores que realicen. Todos los trabajadores universitarios están cobijados bajo la autonomía universitaria. Aún cuando la Sala señale que “con excepción de aquellos funcionarios que los jerarcas de estos entes decidan excluir de la columna porque realizan funciones administrativas básicas, auxiliares, que no están vinculadas a los fines constitucionalmente asignados.” ”, y aunque tal determinación se haga a lo interno de la propia universidad, , lo cierto del caso es que todos y cada uno de los servidores universitarios, desde el más humilde de los puestos hasta quien funja como Rector y que pertenezcan a la estructura administrativa de la universidad estatal, pagados con fondos de esa universidad, están atendiendo con su trabajo al fin constitucional para el que fue creada la universidad pública, a la que se le ha encargado la enseñanza, en grado superior, en aras de preparar a la ciudadanía en el aprendizaje de las ciencias y las artes, así como para el ejercicio de las diferentes profesiones que se impartan, todo en beneficio de la colectividad. Entonces, en una universidad pública, el conserje que limpia las aulas, el administrativo que prepara informes o cobra matrículas, el guarda que vigila los edificios, el paramédico que maneja la ambulancia de la universidad, el docente, el académico, todos ellos realizan funciones que están encaminadas al cumplimiento del fin último de esos centros de enseñanza, por lo tanto, todos y cada uno de ellos, deben ser tratados como parte de la maquinaria universitaria vista como un todo y, por tanto, remunerados de acuerdo con las políticas que fije la universidad pública en atención a la autonomía que les otorga el derecho de auto gobernarse, todo dentro de lo establecido por la Constitución y las leyes. En este punto, segregar a los empleados entre sí, en cuanto a la política de remuneración, a pesar de que todos están encaminados al cumplimiento de una meta común, implicaría además de una violación a la autonomía universitaria, una lesión al principio de igualdad y no discriminación.

XII.- Sobre la consulta de violación a la autonomía de la Caja Costarricense de Seguro Social.- 1) Aspectos consultados Los consultantes diputados consideran que los siguientes artículos del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, son violatorios de la autonomía política de la Caja Costarricense de Seguro Social (CCSS). En concreto, consultan sobre los artículos siguientes, indicados, sea en el encabezado del título general o en el resto del texto del escrito de interposición:

2.b (ámbito de cobertura), 6 (rectoría de Mideplan), 7 (competencias de Mideplan), 9.a (oficinas de Recursos Humanos), 13.b (familias de puestos), 14 (reclutamiento y selección), 17 (personal de Alta Dirección), 18 (plazo de prueba y plazo de nombramiento), Consideran tales artículos inconstitucionales, por cuanto, viola la autonomía de la CCSS y los artículos 73, 188, 11, 33 y 140.18 de la Constitución Política. Consideran inconstitucional someter a la CCSS a las directrices, lineamientos y reglamentos que emita Mideplán en temas relacionados con el empleo público, sean: planificación del trabajo, organización del trabajo, gestión del empleo, gestión de rendimiento, gestión de la compensación y gestión de las relaciones laborales.

Al respecto, antes de proceder al examen de la constitucionalidad de las normas impugnadas, resulta oportuno recordar los alcances y limitaciones constitucionales de la autonomía de la Caja Costarricense de Seguro Social, conforme lo ha establecido la jurisprudencia constitucional.

• 2)Antecedentes Jurisprudenciales sobre la Autonomía de Gobierno de la Caja Costarricense de Seguro Social En reiteradas ocasiones, tal como se indicó en la sentencia n°2011-14624 de las 15:50 horas del 26 de octubre de 2011, este Tribunal señaló que la Caja Costarricense de Seguro Social (CCSS) goza de autonomía administrativa y de gobierno, de conformidad con el artículo 73 de la Constitución Política, por lo que puede emitir las disposiciones relacionadas con su régimen interior. La propia Ley Constitutiva de la Caja Costarricense de Seguro Social, número 17 de 22 de octubre de 1943, publicada en La Gaceta número 329 de 27 de octubre de 1943, en el artículo 70 establece lo siguiente:

“Créase la Carrera Administrativa de la Caja Costarricense de Seguro Social, para regular la cual (sic), la Junta Directiva establecerá las condiciones referentes al ingreso de los empleados al servicio de la Institución, garantías de estabilidad, deberes y derechos de los mismos, forma de llenar las vacantes, promociones, causas de remoción, escala de sanciones, trámite para el juzgamiento de infracciones y demás disposiciones necesarias…”.

Por otro lado, el artículo 14 inciso f) dota a la Junta Directiva de la CCSS, la atribución de reglamentar el funcionamiento de la institución, de tal modo que le confiere la potestad para dictar normas, incluso para regular el régimen de los funcionarios que requiere la institución para el cumplimiento de las responsabilidades que le señala la Constitución Política y su Ley Constitutiva, y ello resulta constitucional, según se indicó en dicho precedente:

“…En ese contexto, la posibilidad de que la Institución establezca por si misma los diferentes tipos de relaciones laborales con sus funcionarios, ya sea por relación estatutaria o sujetos a figuras especiales, como el caso del Reglamento de Reclutamiento y Selección de Profesionales en Farmacia, Odontología y Trabajo Social, no es inconstitucional. La Caja Costarricense de Seguro Social puede establecer las reglas para la selección de funcionarios que ocupan puestos en dicha institución, pero respetando los fines específicos en la prestación del servicio público de la Caja Costarricense de Seguro Social (artículos 73, 191 y 192 de la Constitución Política). En virtud de ello, el artículo 21 de la Ley Constitutiva, establece lo siguiente: "Artículo 21.- El Personal de la Caja será integrado a base de idoneidad comprobada, y los ascensos de categoría se otorgarán tomando en cuenta los méritos del trabajador en primer término y luego, la antigüedad en el servicio." A partir de lo anterior, así como de la lectura del numeral 191 constitucional, es claro que la regla ineludible consiste precisamente en que los funcionarios públicos deben estar regidos por una relación laboral estatutaria, es decir, por normas impuestas por la Administración en su calidad de empleador, en atención a la eficiente y eficaz prestación de los servicios públicos que cada instancia administrativa esté llamada a ofrecer. Aún cuando el constituyente haya pensado en un sistema estatutario único, lo cierto es que la redacción finalmente dada al artículo 191, así como el proceso de profunda descentralización que experimentó el Estado costarricense a partir de mil novecientos cuarenta y nueve, hace que en nuestros días resulte válida la existencia de diversas relaciones estatutarias en la Administración, en atención a la independencia funcional y autonomía administrativa que el ordenamiento asegura a varias instituciones públicas.” Lo anterior es conteste con la misma autonomía concedida por el Constituyente a determinadas instituciones, para el caso concreto, la conferida a la Caja Costarricense de Seguro Social en el artículo 73, definida como autonomía de gobierno, que resulta necesaria a fin de que pueda cumplir con los cometidos especiales asignados y sin injerencias del Poder Ejecutivo.

En sentencia n°2011-15665 de las 12:40 horas del 11 de noviembre de 2011, reiterada en la 2017-4797, particularmente en relación con la C.C.S.S. se indicó lo siguiente:

“…En este caso, estamos frente a un ente descentralizado creado por Constitución, y cuyo grado de autonomía, definido también por la misma Carta Magna, es de grado dos, la cual debe entenderse que incluye las potestades de formular planes o fijar los fines y metas del ente, la de darse los mecanismos internos de planificación funcional y financiera a través de los presupuestos y, el ejercicio de la potestad reglamentaria autónoma. Lo cual se traduce en el caso concreto de la administración del régimen de pensiones a cargo de la Caja Costarricense de Seguro Social -al menos- en la potestad de definir por sí misma, con exclusión de toda potestad legislativa, tres aspectos fundamentales sobre las pensiones: el monto de las cuotas de cotización, el número de cuotas que deben pagar los trabajadores para acceso a la pensión y la edad para jubilarse. Justamente este grado de autonomía mayor que tiene la Caja Costarricense de Seguro Social respecto del resto de instituciones autónomas, es lo que explica cómo se le ha excluido de la aplicación de leyes tales como “Ley de la Administración Financiera de la República y Presupuestos Públicos”, ley No. 8131 de 18 de setiembre del 2001. Véase el artículo 1° de dicha ley:

“Artículo 1.- Ámbito de aplicación La presente Ley regula el régimen económico-financiero de los órganos y entes administradores o custodios de los fondos públicos. Será aplicable a:

• a)La Administración Central, constituida por el Poder Ejecutivo y sus dependencias.
• b)Los Poderes Legislativo y Judicial, el Tribunal Supremo de Elecciones, sus dependencias y órganos auxiliares, sin perjuicio del principio de separación de Poderes estatuido en la Constitución Política.
• c)La Administración Descentralizada y las empresas públicas del Estado.
• d)Las universidades estatales, las municipalidades y la Caja Costarricense de Seguro Social, únicamente en cuanto al cumplimiento de los principios establecidos en el título II de esta Ley, en materia de responsabilidades y a proporcionar la información requerida por el Ministerio de Hacienda para sus estudios. En todo lo demás, se les exceptúa de los alcances y la aplicación de esta Ley (…)” Lo cual evidencia que la Caja Costarricense de Seguro Social se le ubica siempre en una categoría especial dentro de las instituciones autónomas, porque a diferencia de estas, no sólo es de creación constitucional, sino que tiene un grado de autonomía mayor, asimilable al grado de autonomía de que gozan las municipalidades, cual es, autonomía de gobierno. Lo cual significa un grado de protección frente a la injerencia del Poder Ejecutivo, pero también limitaciones a la intervención del Poder Legislativo. Aunque ciertamente la CCSS no escapa a la ley, esta última no puede “modificar ni alterar” la competencia y autonomía dada constitucionalmente a la CCSS, definiendo aspectos que son de su resorte exclusivo. La Caja Costarricense de Seguro Social, por ser básicamente una institución autónoma de creación constitucional, la materia de su competencia, dada constitucionalmente, está fuera de la acción de la ley. Dicho de otro modo, el legislador, en el caso de la administración y gobierno de los seguros sociales tiene limitaciones, debiendo respetar lo que el Constituyente estableció. Así como estaría vedado al legislador emitir una ley donde disponga que la administración y gobierno de los seguros sociales ya no le corresponde a la Caja Costarricense de Seguro Social, asimismo, tampoco puede emitir una ley que incursione en aspectos propios o correspondientes a la definición de la CCSS, en la administración y gobierno de los seguros sociales. En este sentido, véase lo que dispuso esta Sala mediante la resolución número 2001-010545 de las 14:58 horas del 17 de octubre del 2001:

“… Queda claro que la ley no puede interferir en materia de gobierno de la Caja Costarricense de Seguro Social en virtud de la autonomía plena de que goza esta institución…” (Criterio reiterado en la resolución número 2001-011592 de las 09:01 horas del 09 de noviembre del 2011).

Como argumento adicional, debe resaltarse que la norma que define las funciones y fines de la Caja Costarricense de Seguro Social, se ubica en nuestra Carta Magna en el capítulo de derechos y garantías sociales, mientras lo referente a Instituciones Autónomas se ubica en otro Titulo XIV; la diferencia en la ubicación refleja, desde una interpretación sistemática y sistémica, que la propia norma fundamental al crear la institución de la seguridad social, pretende brindarle protección solidaria y prioritaria a la persona por su propia condición; evidentemente se trata de una institución que asume el espíritu solidario que inspira el artículo cincuenta y setenta y cuatro de la Constitución. Lo que se pretende es que cada persona tenga la garantía que el Estado solidario le asegura salud, pensión, beneficios por incapacidad y todo lo referente a la seguridad social. Esta disposición que se convierte no sólo es un fin o guía de acción del Estado, sino también en un límite por sí mismo, al asegurar que ni el Poder Ejecutivo o el Poder Legislativo podrían menoscabar dicha competencia constitucional.” Luego, en sentencia n°2007-18484, reiterada en la 2018-6549, este Tribunal se refirió a los alcances de los distintos tipos de autonomía, en el siguiente sentido:

“A) Alcances de la autonomía administrativa de las instituciones autónomas, y la sujeción de éstas a la ley en materia de gobierno (…). El grado de autonomía administrativa -mínima y de primer grado-, es propia de las instituciones autónomas; de gobierno -de segundo grado-, propia de las municipalidades y de la Caja Costarricense del Seguro Social en lo relativo a la administración de los seguros sociales; y de organización - plena o de tercer grado, propia de las universidades del Estado. El ente descentralizado creado por ley ordinaria, está subordinado a su contenido e involucra la potestad legislativa para modificarlo y hasta extinguirlo; pero como la descentralización implica que le corresponden al ente todos los poderes del jerarca administrativo, quiere decir que su personalidad abarca la totalidad de los poderes administrativos necesarios para lograr su cometido en forma independiente. Así entonces, la Constitución Política le garantiza, en su ordinal 188, a todo ente público menor, distinto del Estado, una autonomía administrativa mínima o de primer grado, esto es, la potestad de auto-administrarse, sin sujeción a ningún otro ente público y sin necesidad de una norma legal que así lo disponga, para disponer de sus recursos humanos, materiales y financieros de la forma que lo estime más conveniente para el cumplimiento eficaz y eficiente de los cometidos y fines que tiene asignados. De este modo, el poder central tiene varias limitaciones respecto de su injerencia sobre las instituciones autónomas, así no puede actuar como jerarca del ente descentralizado: no puede controlarlo limitando la actividad del ente por razones de oportunidad; y, no puede, tampoco, actuar como director de la gestión del ente autónomo mediante la imposición de lineamientos o de programas básicos. Sin embargo, tal como lo expresa el mismo artículo 188 Constitucional, las instituciones autónomas están sujetas a la ley en materia de gobierno. Conforme a lo anteriormente dicho, la autonomía administrativa no es incompatible con la sujeción de las instituciones autónomas a las leyes, así entonces los objetivos, fines y metas del ente vienen dados por el legislador” (El énfasis no es del original).

Tal como se indica en el texto jurisprudencial citado, la CCSS además de gozar de la autonomía administrativa, también ostenta la autonomía política o de gobierno. De ahí que el Poder Ejecutivo tiene varias limitaciones respecto de su injerencia sobre la CCSS. No puede actuar como jerarca de esta, no puede controlarla limitando su actividad por razones de oportunidad; y, tampoco puede, actuar como director de la gestión de ese ente mediante la imposición de lineamientos o de programas básicos. Igualmente, respecto de la autonomía de esta institución en particular, la Sala en sentencia n°1994-6256, emite un criterio reiterado en las sentencias 2011-15665 y 2017-4797, que dice:

“III.- LA CAJA COSTARRICENSE DE SEGURO SOCIAL.- La Asamblea Nacional Constituyente, como consta en las Actas Nos. 125 y 126, aprobó la inclusión de la Caja Costarricense de Seguro Social, siguiendo, básicamente, el texto original de la Constitución de 1871; esto es, se trasplantó la institución de la Constitución de 1871, según las modificaciones de 1943 a la Constitución de 1949. Sin embargo, a los efectos de la consulta, resultan sugestivas las participaciones del Constituyente Volio Jiménez sobre el tema. De la página 34 del Tomo III de la Actas de la Asamblea Nacional Constituyente, se transcribe lo siguiente: "Además, la Caja, tarde o temprano, tendría que asumir el riesgo de desocupación, que vendrá a resolver el grave problema planteado por la cesantía. Insistió en que no le parecía adecuado debilitar la Caja. Lo prudente es fortalecerla. De ahí que lo más aconsejable es dejar las cosas como están, dándole a la Caja plena autonomía para independizarla así del Poder Ejecutivo"; y en la página 36 idem se agrega: "En ese sentido, lo más adecuado es mantener la redacción del artículo 63, que es buena por lo menos para el tiempo de ensayo. Todo lo que signifique limitar los recursos del Seguro Social, indudablemente será un retroceso inexplicable". Al ser aprobado el artículo, se incluyó un segundo párrafo que literalmente decía: "La administración y el gobierno de los seguros sociales estarán a cargo de una institución autónoma", texto que luego fue reformado por Ley No. 2737 de 12 de mayo de 1961, quedando hoy día de la siguiente manera: "La administración y el gobierno de los seguros sociales estarán a cargo de una institución autónoma, denominada Caja Costarricense de Seguro Social". En conclusión, el constituyente atribuyó la administración y gobierno de los seguros sociales a la Caja Costarricense de Seguro Social, como institución autónoma creada por la misma Constitución Política, con las especiales características que ella misma le ha otorgado y compartiendo los principios generales derivados de su condición de ente descentralizado…

…Doctrinariamente existe coincidencia en afirmar que está prohibida toda forma de intervención preventiva y anterior a la emisión del acto por el ente autónomo, salvo las funciones de control previo, como requisito para la validez de esos actos (autorizaciones); el Poder Central no puede actuar como jerarca del ente descentralizado: no puede controlarlo limitando la actividad del ente por razones de oportunidad; y, no puede, tampoco, actuar como director de la gestión del ente autónomo mediante la imposición de lineamientos o de programas básicos. Todas estas notas características de los entes descentralizados, que tienen su origen en una ley reforzada (artículo 189 inciso 3) de la Constitución Política), son igualmente aplicables, en lo pertinente, a las instituciones autónomas creadas por la propia Constitución Política, salvo que prevalecen las condiciones que ésta, en forma especial y exclusiva, le ha dado al ente.” De ahí que, incluso para lo relativo a la contratación de su personal tiene esa potestad de autoadministrarse, pues de ello también depende el cumplimiento de los fines asignados constitucionalmente. Como muestra de las particularidades y necesidades del servicio, por ejemplo, en la sentencia 2019-11130 de las 10:30 horas del 19 de junio de 2019, este Tribunal señaló lo siguiente:

“Al respecto, este Tribunal constata que efectivamente ese artículo señala que “para la calificación de atestados y asignación de puntajes, la Comisión Técnica de Enfermería hará la calificación de los concursos de acuerdo con (…) Se dará un punto por cada año de servicio o fracción mayor de seis meses, hasta un máximo de diez puntos en las zonas fuera de la meseta central (…)”. Sin embargo, no se considera que esta disposición vulnere el principio de igualdad y, por ende, devenga en inconstitucional, sino que esta decisión tiene una justificación razonable, que consiste en incentivar a los profesionales en enfermería para que acepten puestos fuera de la meseta central, con el aliciente de que en futuros concursos para puestos ubicados en zonas más codiciadas, cuenten con una mejor puntuación. Así, lo que busca la normativa no es únicamente la posición de mejor idoneidad, sino que busca incentivar que los profesionales enfermeros acepten trabajar en lugares alejados y poco apetecidos y, de esta forma, fomentar la prestación de servicios de enfermería, necesarios para una adecuada prestación de los servicios médicos, en todos los sectores del país. Esto acorde a los principios de solidaridad social.

Es claro, entonces, que el Constituyente le concedió tal autonomía, permitiéndole la selección de su personal bajo los estamentos que requiera para cumplir sus fines, eso sí respetando los principios constitucionales establecidos en los ordinales 191 y 192 constitucionales. Criterio reiterado por esta Sala en las sentencias números 03065-98, 10545-01 y 12494-11, al decir:

“…es dable a los diferentes establecimientos de la Caja, en aplicación del principio constitucional de autonomía de administración y gobierno, dictar las medidas de reorganización necesarias de sus servicios para su mejoramiento, con el fin de lograr la mejor satisfacción de sus usuarios y del interés general, que por su naturaleza nunca podría dejar de prevalecer ante los intereses particulares.” La autonomía que el legislador originario le concede a la Caja Costarricense de Seguro Social la protege de la intromisión del Poder Ejecutivo y del Legislativo, tal como se evidencia en la Sentencia 03065-98 de las 18:18 horas del 6 de mayo de 1998 (reiterada en la 2001-10545), al decir:

“…Lo cual evidencia que la Caja Costarricense de Seguro Social se le ubica siempre en una categoría especial dentro de las instituciones autónomas, porque a diferencia de estas, no sólo es de creación constitucional, sino que tiene un grado de autonomía mayor, asimilable al grado de autonomía de que gozan las municipalidades, cual es, autonomía de gobierno. Lo cual significa un grado de protección frente a la injerencia del Poder Ejecutivo, pero también limitaciones a la intervención del Poder Legislativo. Aunque ciertamente la CCSS no escapa a la ley, esta última no puede “modificar ni alterar” la competencia y autonomía dada constitucionalmente a la CCSS, definiendo aspectos que son de su resorte exclusivo. La Caja Costarricense de Seguro Social, por ser básicamente una institución autónoma de creación constitucional, la materia de su competencia, dada constitucionalmente, está fuera de la acción de la ley. Dicho de otro modo, el legislador, en el caso de la administración y gobierno de los seguros sociales tiene limitaciones, debiendo respetar lo que el Constituyente estableció. Así como estaría vedado al legislador emitir una ley donde disponga que la administración y gobierno de los seguros sociales ya no le corresponde a la Caja Costarricense de Seguro Social, asimismo, tampoco puede emitir una ley que incursione en aspectos propios o correspondientes a la definición de la CCSS, en la administración y gobierno de los seguros sociales…Como argumento adicional, debe resaltarse que la norma que define las funciones y fines de la Caja Costarricense de Seguro Social, se ubica en nuestra Carta Magna en el capítulo de derechos y garantías sociales, mientras lo referente a Instituciones Autónomas se ubica en otro Título XIV; la diferencia en la ubicación refleja, desde una interpretación sistemática y sistémica, que la propia norma fundamental al crear la institución de la seguridad social, pretende brindarle protección solidaria y prioritaria a la persona por su propia condición; evidentemente se trata de una institución que asume el espíritu solidario que inspira el artículo cincuenta y setenta y cuatro de la Constitución. Lo que se pretende es que cada persona tenga la garantía que el Estado solidario le asegura salud, pensión, beneficios por incapacidad y todo lo referente a la seguridad social. Esta disposición que se convierte no sólo es un fin o guía de acción del Estado, sino también en un límite por sí mismo, al asegurar que ni el Poder Ejecutivo o el Poder Legislativo podrían menoscabar dicha competencia constitucional.” De lo expuesto se deriva que, la Caja Costarricense de Seguro Social (CCSS), por disposición constitucional (art.73) goza de autonomía administrativa y de gobierno. Lo cual significa que, como ente descentralizado funcional, puede establecer las reglas para la selección de su personal, siendo válido en este caso la existencia de un marco normativo especial para su relación estatutaria, que atienda y asegure su grado de autonomía. Ese grado de autonomía le permite además, auto-administrarse (disponer de sus recursos humanos, materiales y financieros); darse su propia organización interna; la fijación de fines, metas y tipos de medios para realizarlas; la emisión de reglamentos autónomos de servicio o actividad, acorde con las disposiciones normalmente llamadas de política general. Así entonces, como institución autónoma de creación constitucional y con un grado de autonomía mayor (administrativa y de gobierno) le permite estar protegida frente a injerencias del Poder Ejecutivo y de limitaciones a la hora de legislar el Poder Legislativo (quien no puede modificar vía legal su grado de autonomía). Así el Poder Ejecutivo no puede actuar como director o en una relación de jerarquía frente a esta institución, no puede imponerle lineamientos, ni dar órdenes, ni controlar la oportunidad de sus actividades.

• 3)Análisis concreto de lo consultado Sobre el artículo 2.b.- Ámbito de cobertura respecto de la CCSS (redacta magistrada Picado Brenes) Los consultantes acusan que el inciso b) del artículo 2 del proyecto de ley consultado, en el tanto incluye a la CCSS dentro de su ámbito de aplicación, lesiona los artículos 73 y 188 constitucionales, al someter a esta institución que cuenta con autonomía constitucional administrativa y de gobierno en materia de empleo público. Al respecto, en el mismo sentido en que se ha sostenido la constitucionalidad de esta norma, respecto de otras instituciones, el artículo 2 inciso b) no es por sí mismo inconstitucional, en cuanto incluye a la CCSS en un marco regulatorio general de empleo público, pero sí es inconstitucional por sus efectos puesto que algunas de las normas de este proyecto de ley vacían de contenido su autonomía de gobierno, tal como se verá en concreto en los apartados siguientes. Recuérdese que, conforme lo establece el artículo 3 de la Ley de la Jurisdicción Constitucional, “Se tendrá por infringida la Constitución Política cuando ello resulte de la confrontación del texto de la norma o acto cuestionado, de sus efectos, o de su interpretación o aplicación por las autoridades públicas, con las normas y principios constitucionales.” Es decir, una norma puede ser inconstitucional, no por lo que dice textualmente, sino por los efectos que produce o produciría. Retomando lo que se expuso supra, es plausible sujetar a todos los poderes e instituciones del Estado a un único estatuto de empleo público. Sin embargo, en la medida en que tal sujeción vaya más allá de principios generales e incursione en materia propia de la autonomía de gobierno de la CCSS, sí es inconstitucional tal sujeción por sus efectos, pues, no es posible someter a una institución constitucional con un grado de autonomía como el que tiene la CCSS, a directrices, disposiciones, circulares, manuales que emita Mideplán. El grado de protección especial de la CCSS, que nace de su grado de autonomía, hace que la sujeción de la CCSS a este proyecto de ley general de empleo público sea inconstitucional por sus efectos. “Aunque ciertamente la CCSS no escapa a la ley, esta última no puede “modificar ni alterar” la competencia y autonomía dada constitucionalmente a la CCSS, definiendo aspectos que son de su resorte exclusivo.” (sentencia n°2011-12494). En conclusión, aunque la CCSS pueda estar sometida por ley a una normativa general de empleo público, en el tanto tal normativa violente su autonomía de gobierno, como en efecto lo hacen los artículos 6, 7, 9, 13, 14, 17 y 18, del proyecto, siendo las normas que fueron consultadas, dicho inciso b) del artículo 2 del proyecto, sería inconstitucional por sus efectos.

Sobre el artículo 6.- Potestad de Dirección de Mideplán respecto de la CCSS (redacta magistrado Castillo Víquez) El artículo 73 de la Constitución Política le asigna a la CCSS la administración y el gobierno de los seguros sociales. Para tal propósito, como fácilmente puede deducirse, lo referente a esa materia -fijación de metas y fines-, así como la fijación de las cuotas obrero-patronales, tiene como consecuencia lógica, desde la óptica jurídica, que el Poder Ejecutivo o uno de sus órganos -Mideplán- no pueden ejercer la potestad de dirección -dictarle directrices- o la potestad reglamentaria. Esta postura es constitucionalmente válida en lo que atañe a la materia de empleo público, concretamente aquel funcionariado indispensable para para cumplir con los fines constitucionalmente asignados, así como el personal administrativo, profesional y técnico, que las máximas autoridades de la CCSS definan en la respectiva familia de puesto que les corresponderá construir de forma exclusiva y excluyente. Significa lo anterior, que algunos empleados públicos de esa entidad, los que realizan funciones administrativas básicas, auxiliares, que sí podrían quedar bajo la rectoría del Poder Ejecutivo o Mideplán. Adoptando como hoja de ruta estas premisas, después de pasar revista por la jurisprudencia de este Tribunal, se hará un análisis de las normas que se consultan.

En reiteradas ocasiones, tal como se indicó en la sentencia No. 2011-14624 de las 15:50 horas del 26 de octubre de 2011, este Tribunal ha señalado que la Caja CCSS goza de autonomía administrativa y de gobierno, de conformidad con el artículo 73 de la Constitución Política, por lo que puede emitir las disposiciones relacionadas con su régimen interior. La propia Ley Constitutiva de la Caja Costarricense de Seguro Social, número 17 de 22 de octubre de 1943, publicada en La Gaceta número 329 de 27 de octubre de 1943, en el artículo 70 establece lo siguiente:

“Créase la Carrera Administrativa de la Caja Costarricense de Seguro Social, para regular la cual (sic), la Junta Directiva establecerá las condiciones referentes al ingreso de los empleados al servicio de la Institución, garantías de estabilidad, deberes y derechos de los mismos, forma de llenar las vacantes, promociones, causas de remoción, escala de sanciones, trámite para el juzgamiento de infracciones y demás disposiciones necesarias…”.

Por otro lado, el artículo 14 inciso f) dota a la Junta Directiva de la CCSS, la atribución de reglamentar el funcionamiento de la institución, de tal modo que le confiere la potestad para dictar normas, incluso para regular el régimen de los funcionarios que requiere la institución para el cumplimiento de las responsabilidades que le señala la Constitución Política y su Ley Constitutiva, y ello no resulta inconstitucional, según se indicó en ese precedente:

“…En ese contexto, la posibilidad de que la Institución establezca por si misma los diferentes tipos de relaciones laborales con sus funcionarios, ya sea por relación estatutaria o sujetos a figuras especiales, como el caso del Reglamento de Reclutamiento y Selección de Profesionales en Farmacia, Odontología y Trabajo Social, no es inconstitucional. La Caja Costarricense de Seguro Social puede establecer las reglas para la selección de funcionarios que ocupan puestos en dicha institución, pero respetando los fines específicos en la prestación del servicio público de la Caja Costarricense de Seguro Social (artículos 73, 191 y 192 de la Constitución Política). En virtud de ello, el artículo 21 de la Ley Constitutiva, establece lo siguiente: "Artículo 21.- El Personal de la Caja será integrado a base de idoneidad comprobada, y los ascensos de categoría se otorgarán tomando en cuenta los méritos del trabajador en primer término y luego, la antigüedad en el servicio." A partir de lo anterior, así como de la lectura del numeral 191 constitucional, es claro que la regla ineludible consiste precisamente en que los funcionarios públicos deben estar regidos por una relación laboral estatutaria, es decir, por normas impuestas por la Administración en su calidad de empleador, en atención a la eficiente y eficaz prestación de los servicios públicos que cada instancia administrativa esté llamada a ofrecer. Aún cuando el constituyente haya pensado en un sistema estatutario único, lo cierto es que la redacción finalmente dada al artículo 191, así como el proceso de profunda descentralización que experimentó el Estado costarricense a partir de mil novecientos cuarenta y nueve, hace que en nuestros días resulte válida la existencia de diversas relaciones estatutarias en la Administración, en atención a la independencia funcional y autonomía administrativa que el ordenamiento asegura a varias instituciones públicas.” (voto. No. 12494 de las 12:48 horas del 11 de noviembre de 2011).

Corolario de lo expuesto, el Constituyente originario previó la emisión de un solo estatuto que regulara las relaciones de empleo público; sin embargo, el legislador optó por aprobar diferentes estatutos, los cuales, según precedentes de este Tribunal, resultan válidos siempre y cuando se respete el principio de idoneidad y de estabilidad en el empleo público. En el proyecto de ley consultado, el legislador se decanta por crear un único estatuto que regule las relaciones se servicio en toda la Administración Pública, lo que también es conforme con el Derecho de la Constitución. Sin embargo, en relación con determinados entes, tal como la CCSS, debido a su grado de autonomía, aun el mismo legislador no puede sujetarla a órdenes, directrices y regulaciones de un órgano del Poder Ejecutivo, pues ello va en contra del grado de autonomía y tutela conferida por la Constitución Política a esta institución.

El propio Constituyente estableció la existencia de excepciones a esa única regulación, precisamente porque no se puede equiparar lo que no es igual, ni lesionar el ámbito de autonomía que tienen determinadas instituciones, tal como la CCSS, toda vez que estas revisten de ciertas características especiales que las diferencia razonablemente del resto de la administración, precisamente para dar cumplimiento a los fines que le fueron encomendados constitucionalmente.

En relación con el artículo 6, resulta inconstitucional, pues no se excluye de la potestad de dirección a los funcionarios que participan de las actividades vinculadas a los fines constitucionalmente asignados a la CCSS, y quienes ejercen cargos de alta dirección política, así como todo aquel funcionariado administrativo, profesional y técnico, que establezcan los máximos órganos de la entidad aseguradora. Ergo, solo resulta constitucional la norma en lo que atañe al personal de administrativo básico, auxiliar, que estaría en la familia de puestos de conformidad con el numeral 13, inciso a) del proyecto de ley.

Sobre el artículo 7.- Competencias de Mideplán respecto de la CCSS (redacta magistrado Castillo Víquez) En relación con el artículo 7, se mantiene el mismo criterio vertido en relación con el numeral 6, además somete a la potestad de reglamentación de Mideplán en materias donde hay una potestad exclusiva y excluyente a favor de la CCSS para alcanzar el fin constitucional asignado por el constituyente originario.

Sobre el artículo 9.- Oficina de Recursos Humanos en la CCSS (redacta magistrada Picado Brenes) La norma consultada indica lo siguiente:

“ARTÍCULO 9- Funciones de las administraciones activas a) Las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos, de las instituciones incluidas en el artículo 2 de la presente ley, seguirán realizando sus funciones de conformidad con las disposiciones normativas atinentes en cada dependencia pública.

Asimismo, aplicarán y ejecutarán las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que el Ministerio de Planificación Nacional y Política Económica (Mideplán) remita a la respectiva institución, según la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

• b)Es responsabilidad de las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos elaborar y aplicar las pruebas de conocimientos, competencias y psicométricas, para efectos de los procesos de reclutamiento y selección de personal, efectuar los concursos internos y externos por oposición y méritos, los cuales deberán cumplir siempre al menos con los estándares que establezca la Dirección General del de Servicio Civil para cada puesto, según su ámbito de competencia, y los lineamientos que se emitan según el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

Además, incorporar dichos concursos en la oferta de empleo público de la Administración Pública y verificar que las personas servidoras públicas reciban la inducción debida sobre los deberes, las responsabilidades y las funciones del puesto, así como los deberes éticos de la función pública generales y particulares de la institución y puesto.

• c)Las oficinas de gestión institucional de recursos humanos, de ministerios e instituciones u órganos adscritos bajo el ámbito de aplicación del Estatuto de Servicio Civil, son dependencias técnicas de la Dirección General de Servicio Civil que, para todos los efectos, deberá coordinar la elaboración de las pruebas de reclutamiento y selección de personal con tales oficinas y desempeñar sus funciones de asesoramiento, capacitación y acompañamiento técnico.” Tal como se observa, el artículo 9 consultado establece ciertas funciones para todas las oficinas, departamentos, áreas, direcciones o las unidades de recursos humanos, de todas las instituciones incluidas en el proyecto, en cuenta, para la Dirección y Administración de Gestión de Personal de la CCSS. Así entonces, en lo que se refiere propiamente a la consulta realizada en cuanto a la CCSS, el segundo párrafo del inciso a) le impone a dicho departamento que aplique y ejecute las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que Mideplán le remita. Lo cual, implicaría que un órgano del Poder Ejecutivo, como lo es Mideplán, le imponga a esta Institución con autonomía política, la aplicación y ejecución de sus disposiciones, directrices y reglamentos, y en materias que son de resorte exclusivo de dicha institución como lo es la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación o salarios y la gestión de las relaciones laborales. Siendo claramente tal obligación para la dirección de recursos humanos de la CCSS una violación a su autonomía política, conforme los alcances que la jurisprudencia constitucional le ha dado. Recuérdese que, propiamente sobre la CCSS esta Sala ha indicado que: “frente a un ente descentralizado creado por Constitución, y cuyo grado de autonomía, definido también por la misma Carta Magna, es de grado dos, la cual debe entenderse que incluye las potestades de formular planes o fijar los fines y metas del ente, la de darse los mecanismos internos de planificación funcional y financiera a través de los presupuestos y, el ejercicio de la potestad reglamentaria autónoma.” Por ello, “la Caja Costarricense de Seguro Social se le ubica siempre en una categoría especial dentro de las instituciones autónomas, porque a diferencia de estas, no sólo es de creación constitucional, sino que tiene un grado de autonomía mayor, asimilable al grado de autonomía de que gozan las municipalidades, cual es, autonomía de gobierno. Lo cual significa un grado de protección frente a la injerencia del Poder Ejecutivo, pero también limitaciones a la intervención del Poder Legislativo.” (sentencia n°2011-15665 y n°2017-004797). Dentro de esas limitaciones que tiene, tanto el Poder Ejecutivo como el Poder Legislativo respecto de la CCSS se encuentra que, la “Caja Costarricense de Seguro Social puede establecer las reglas para la selección de funcionarios que ocupan puestos en dicha institución…” (sentencia n°2011-14624). Siendo que, “el poder central tiene varias limitaciones respecto de su injerencia sobre las instituciones autónomas, así no puede actuar como jerarca del ente descentralizado: no puede controlarlo limitando la actividad del ente por razones de oportunidad; y, no puede, tampoco, actuar como director de la gestión del ente autónomo mediante la imposición de lineamientos o de programas básicos.” (sentencia n°2007-18484 y n°2018-006549). Ello por cuanto, “aunque ciertamente la CCSS no escapa a la ley, esta última no puede “modificar ni alterar” la competencia y autonomía dada constitucionalmente a la CCSS, definiendo aspectos que son de su resorte exclusivo. La Caja Costarricense de Seguro Social, por ser básicamente una institución autónoma de creación constitucional, la materia de su competencia, dada constitucionalmente, está fuera de la acción de la ley. Dicho de otro modo, el legislador, en el caso de la administración y gobierno de los seguros sociales tiene limitaciones, debiendo respetar lo que el Constituyente estableció.” (sentencia n°2011-12494). Así el Poder Ejecutivo no puede actuar como director o en una relación de jerarquía frente a esta institución, y no puede imponerle lineamientos, ni dar órdenes, ni controlar la oportunidad de sus actividades. Por ello, resulta inconstitucional el artículo 9 en cuestión por pretender someter al departamento de recursos humanos de la CCSS a aplicar y ejecutar las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que Mideplán le remita.

Sobre el artículo 13.b.- Familia de Puestos respecto de la CCSS (redacta magistrado Castillo Víquez) Sobre el artículo 13, inciso b) es inconstitucional, por no incluir en el citado inciso a los servidores que realizan labores sustanciales y administrativo, profesionales y técnicos, necesarios para alcanzar los fines constitucionalmente asignados a la CCSS, en los términos que se explica en el considerando general y supra.

Sobre el artículo 14.- Reclutamiento y selección en la CCSS (redacta magistrada Picado Brenes) Los consultantes refieren que se lesiona la autonomía política de la CCSS, al pretender someterla a las disposiciones que emite un órgano del Poder Ejecutivo, en lo relativo al reclutamiento y selección de su personal. El ordinal 14 en cuestión, dispone lo siguiente:

“ARTÍCULO 14- Reclutamiento y selección El reclutamiento y la selección de las personas servidoras públicas de nuevo ingreso se efectuará con base en su idoneidad comprobada, para lo cual el Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá, con absoluto apego a la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las disposiciones de alcance general, las directrices y los reglamentos, según la respectiva familia de puestos.

En los procesos de reclutamiento y selección no podrá elegirse a un postulante que se encuentre en alguna de las siguientes situaciones:

• a)Estar ligado por parentesco de consanguinidad o de afinidad en línea directa o colateral, hasta tercer grado inclusive, con la jefatura inmediata ni con las personas superiores inmediatas de esta en la respectiva dependencia.
• b)Encontrarse enlistada en el registro de personas inelegibles de la plataforma integrada de empleo público.” Tal y como ya fue debidamente acreditado, conforme lo dispuesto en los ordinales 2 y 13 del mismo proyecto de ley, y según lo dispuesto en este artículo 14, la CCSS también se vería sujeta a las disposiciones de alcance general, las directrices y los reglamentos que emita Mideplán en relación con el reclutamiento y la selección del personal de nuevo ingreso, lo cual deviene en inconstitucional. El artículo 73 de la Constitución expresa con claridad que “la Caja Costarricense de Seguro Social se le ubica siempre en una categoría especial dentro de las instituciones autónomas, porque a diferencia de estas, no sólo es de creación constitucional, sino que tiene un grado de autonomía mayor, asimilable al grado de autonomía de que gozan las municipalidades, cual es, autonomía de gobierno. Lo cual significa un grado de protección frente a la injerencia del Poder Ejecutivo, pero también limitaciones a la intervención del Poder Legislativo.” (sentencia n°2011-15665 y n°2017-004797). Además, claramente esta Sala ha indicado que la “Caja Costarricense de Seguro Social puede establecer las reglas para la selección de funcionarios que ocupan puestos en dicha institución,…” (sentencia n°2011-14624). En ese sentido, resulta inválida cualquier intromisión externa de otro poder en los aspectos propios de la CCSS, que lesione su autonomía. Bajo ese entendido, no es posible admitir que un órgano del Poder Ejecutivo, en este caso Mideplán, le imponga a la CCSS, disposiciones relativas a los procesos de reclutamiento y selección de su personal, materia que, tal y como se ha señalado, es consustancial al grado de autonomía de la que goza esta institución constitucional. En consecuencia, tal ordinal contiene un vicio de inconstitucionalidad, en tanto resulte aplicable a la CCSS.

Sobre el artículo 17.- Puestos de Alta Dirección en la CCSS (redacta magistrada Picado Brenes) El artículo consultado establece lo siguiente:

“ARTÍCULO 17- Personal de la alta dirección pública El Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá las disposiciones de alcance general, las directrices, y los reglamentos, en materia del personal de la alta dirección pública, que sean acordes con la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, para dotar a la Administración Pública de perfiles con integridad y probada capacidad de gestión, innovación y liderazgo, para procurar el mejoramiento de la prestación de bienes y servicios públicos. (…)” Los consultantes señalan la lesión a la autonomía de gobierno de la CCSS, por cuanto en esta norma se dispone que, tratándose de puestos de alta dirección será Mideplán quien emita las disposiciones de alcance general, directrices y reglamentos al respecto.

Al respecto, en el mismo sentido en que esta Sala ha venido resolviendo estos aspectos, la injerencia de este Ministerio, que es un órgano del Poder Ejecutivo, emitiendo disposiciones de alcance general, directrices y reglamentos a la CCSS en materia de los puestos de alta dirección, resulta violatorio de su autonomía de gobierno. La regulación de todo lo atinente a los puestos de alta dirección ya cuenta con regulación especial en la normativa interna de la propia CCSS. Recuérdese que esta Sala ha indicado que, la CCSS “puede establecer las reglas para la selección de funcionarios que ocupan puestos en dicha institución, pero respetando los fines específicos en la prestación del servicio público de la Caja Costarricense de Seguro Social (artículos 73, 191 y 192 de la Constitución Política).” (sentencia n°201114624). El Poder Ejecutivo, “…tiene varias limitaciones respecto de su injerencia sobre las instituciones autónomas, así no puede actuar como jerarca del ente descentralizado: no puede controlarlo limitando la actividad del ente por razones de oportunidad; y, no puede, tampoco, actuar como director de la gestión del ente autónomo mediante la imposición de lineamientos o de programas básicos.” (sentencia n°2018-6549). Nótese que, estos son puestos de gran importancia pues estarían referidos, al menos, respecto de quienes dirigen las distintas Gerencias y Direcciones, entre otros. Puestos que son de gran relevancia para el fiel cumplimiento de los fines asociados a la seguridad social asignados a la CCSS, que deben estar particularmente protegidos de la injerencia de otros Poderes de la República, y que requieren la estabilidad del personal necesaria para un adecuado e imparcial desempeño del cargo, lo cual es incompatible con una subordinación a las disposiciones que emita al respecto el Mideplán, como lo dispone la norma en cuestión. Por ende, se considera existe un vicio de inconstitucionalidad en el artículo 17 objeto de consulta, en los términos expuestos.

Sobre el artículo 18.- Plazos del Personal de Alta Dirección en la CCSS (redacta magistrada Picado Brenes) En criterio de los consultantes, el ordinal 18 consultado resulta inconstitucional, por cuanto incide en materia que es propia de la competencia de la CCSS, al establecer que, tratándose de puestos de alta dirección técnica, el nombramiento será por 6 años con un período de prueba de 6 meses, prorrogables anualmente, sujetas a la evaluación de desempeño. El artículo 18 consultado dispone lo siguiente:

“ARTÍCULO 18- Nombramiento y período de prueba de la alta dirección pública Toda persona servidora pública, que sea nombrada en puestos de alta dirección pública, estará a prueba durante el período de seis meses y su nombramiento se efectuará por un máximo de seis años, con posibilidad de prórroga anual, la cual estará sujeta a los resultados de la evaluación del desempeño. (…)” Sobre este particular, la regulación de aspectos relativos al nombramiento y selección de personal, tal como también ocurre con los puestos de alta dirección técnica, el período de prueba, plazo o condiciones de prórroga de los nombramientos, son regulaciones propias y atinentes a la autonomía política de la CCSS. Se entiende que los puestos de alta dirección técnica, definidos por la propia institución, son puestos estratégicos de gran importancia para su debida organización, tales como podrían ser las distintas Direcciones en Planificación, Actuarial, Gestión de Personal; y las distintas Gerencias Administrativa, Financiera y Médica, entre otros. En atención a ello y a los fines propios de esta institución constitucional, es a ella a quien corresponde, el valorar las necesidades del servicio que presta y determinar las condiciones en que deben ser ocupados esos puestos, para dar cumplimiento a los fines constitucionales que le han sido asignados, en respeto del grado de autonomía reconocido, siempre y cuando atienda al principio de idoneidad. En su caso, por ejemplo, la conveniencia del período de nombramiento de esos puestos o las condiciones de prórroga podrían estar sujetas a una condición de mayor estabilidad en el puesto como la garantizada en el ordinal 192 constitucional. Todo de acuerdo a su normativa interna, y no, a una normativa genérica como la que se pretende en este proyecto de ley. La definición de tales condiciones es competencia exclusiva a esta institución constitucional especializada. De modo que, en los términos en que está dispuesto el artículo 18 consultado, contiene un vicio de inconstitucionalidad, por violentar la autonomía política de la CCSS, a quien le corresponde de manera exclusiva la definición de las condiciones en que se deben desempeñar sus puestos de alta dirección.

• 4)Conclusión En los términos indicados y conforme a la jurisprudencia de esta Sala, resultan inconstitucionales del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, los artículos siguientes.

Analizados todos los aspectos consultados en cuanto al artículo 2 (inciso b), 6, 7 (incisos d), 9 (segundo párrafo del inciso a), 13 (inciso b), 14, 17 y 18, del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación a la autonomía de gobierno de la CCSS, constitucionalmente protegida (art.73 constitucional) de esta institución. Artículos referidos a lo siguiente: 6 (rectoría del Sistema General de Empleo Público a cargo de Mideplan), 7 (amplias competencias de Mideplan para convertirlo en una especie de superior jerarca con potestades normativas sobre todo el aparato estatal en materia de empleo público), 9 (la sujeción y el sometimiento de las oficinas de recursos humanos a Mideplan y a la Dirección General de Servicio Civil), 13 (sobre un único régimen general de empleo público conformado por ocho familias), 14 (reclutamiento y selección con base en disposiciones normativas de Mideplan), 17 y 18 (personal de alta dirección pública sometidos a un único plazo de periodo de prueba y un único plazo de nombramiento). Tratándose de la Caja Costarricense de Seguro Social, debido a su grado de autonomía, aún el mismo legislador no puede sujetarla a órdenes y regulaciones de un órgano del Poder Ejecutivo, pues ello va en contra del grado de autonomía y garantía conferida por la Constitución Política a esta institución. Toda esta normativa del proyecto tiene incidencia en el ejercicio de las funciones de la CCSS. Esta Sala ha establecido los alcances de esta autonomía indicando que a la CCSS se le dio plena autonomía para independizarla del Poder Ejecutivo (ver voto n°2011-15665). Ciertamente, del examen de la normativa consultada se observa que, el “Sistema General de Empleo Público” que coloca al Ministerio de Planificación Nacional y Política Económica (Mideplán) como su órgano rector, invade la materia de autonomía de gobierno de la CCSS. Evidenciando que esa rectoría va más allá de la regulación de una actividad, para tratarse en realidad de una relación de dirección y subordinación, con la emisión de directrices y reglamentos concretos sobre la materia.

• 5)Razones y notas sobre la consulta en cuanto a la CCSS a) Nota separada del magistrado Castillo Víquez en relación con la CCSS En relación con la autonomía de la Caja Costarricense de Seguro Social, son otras, pues, en cuanto a la autonomía de gobierno que le garantiza el Derecho de la Constitución a esta, la reforma parcial a la Carta Fundamental al numeral 188, realizada mediante Ley n.° 4123 de 30 de mayo de 1968 –aprobada en primera legislatura por medio de la Ley n.° 4097 de 30 de abril de 1968-, le introdujo una afectación, pero no su desaparición, tal y como se explicará más adelante.

A la Caja Costarricense de Seguro Social, como al resto de las instituciones autónomas, se les garantizó la autonomía en materia administrativa y de gobierno por parte del Constituyente originario. No obstante, en la década de los sesenta, bajo el impulso intelectual del gran costarricense Rodrigo Facio Brenes, Benemérito de la Patria, quien publicó un estudio sobre planificación económica en régimen democrático, doctrina, experiencias extranjeras y algunas ideas para establecerlas en Costa Rica en 1959, se llegó a la conclusión de que era necesario limitar la autonomía de gobierno que gozaban las instituciones autónomas para someterlas, principalmente, al Plan Nacional de Desarrollo. Para él era necesario lograr la coordinación y la planificación entre el Gobierno Central y las instituciones autónomas. Para este constituyente de 1949 la descentralización administrativa por servicio era crucial para la vida democrática – se evita la concentración del poder-, para la eficiencia administrativa –preeminencia del criterio técnico ante el político-; y con el sometiendo de estos entes a la coordinación y planificación se mantenía incólume el régimen autonómico. Años después, probablemente la experiencia que sufrió el Legislador, al momento de aprobar la Ley de Planificación, Ley n.° 3087 de 31 de enero de 1963, en el sentido de que solo podía someter a la planificación económica a las instituciones autónomas que voluntariamente así lo acordaran, resultó frustrante. La reacción no se hizo esperar, y en 1965, diputados de diversos partidos políticos, presentaron un proyecto de reforma constitucional con el propósito de someter a las instituciones autónomas al Plan Nacional de Desarrollo. En dicha propuesta se dijo lo siguiente:

“Si hay alguna disposición de nuestra Carta Fundamental que se encuentra necesitada de reforma es el artículo 188. Dicho artículo confiere a las instituciones autónomas, independencia en materia de gobierno y administración, con sólo dos limitaciones: la necesidad de una votación no menor de los dos tercios de la totalidad de los miembros de la Asamblea Legislativa para la creación, y la intervención de la Contraloría General de la República en los aspectos financieros de su funcionamiento. Nada dice dicha norma sobre las relaciones que deben existir entre el Poder Central y las instituciones autónomas, siendo ésta, materia que se escapó totalmente a las previsiones de los constituyentes de 1949.

Dieciséis años después, es posible darse cuenta que la fórmula concebida para darle rango constitucional al régimen de autonomía, presenta las siguientes fallas:

1.- Al poner una valla al crecimiento excesivo del poder y el presupuesto centrales, con fines de protección a la libertad y a la honestidad en el manejo de la Hacienda Pública, se ignoró en forma total el otro interés que debe satisfacer toda forma de organización: la eficiencia de la administración. Este interés exige la limitación de la autonomía de las instituciones, al relacionarse con otras y con el Estado mismo.

2.- Al otorgar la independencia en materia de gobierno y administración en términos absolutos se debilitó el Estado más de lo debido, al permitir, en forma indiscriminada, la posibilidad de que cada institución actúe con un criterio unilateral frente y por fuera de las necesidades nacionales.

Se dio, por tanto, origen a un verdadero feudalismo administrativo.

3.- Es unánime el reconocimiento de que el Estado es uno aunque sea divisible y aunque existan en su seno varias instituciones revestidas de autoridad. Esta unidad estatal exige no sólo comunidad de origen, sino también armonía de funcionamiento, para lograr la cual es necesario impedir que cualquier institución pueda ensancharse en forma que perturbe las otras, o se recluya dentro de su propia especialidad, con total ignorancia de los intereses nacionales.

4.- Para hacer real la unidad del Estado es absolutamente necesaria la coordinación y vigilancia de las instituciones autónomas. La vigilancia se hace indispensable para impedir que las instituciones violen la ley o descuiden el interés público que les ha sido encomendado en beneficio de la comunidad; y la coordinación, para que den su máximo aporte a la realización de aquellos planes que las comprendan en conjunción con el Poder Central u otras instituciones. Los instrumentos clásicos de articulación del Estado con los entes públicos menores, son la planificación y el control. Es absolutamente necesario que el Estado pueda planificar la vida de las instituciones señalando metas generales para su actividad, y que pueda influir su conducta, ejerciendo sobre ella, los debidos controles.

5.- La tutela de las instituciones por el Estado no puede ni debe ser uniforme. Muchas son las instituciones y sus clases, diverso su poder económico y su finalidad, distintos los medios legales que disponen para cumplir sus objetivos, el origen de su patrimonio y el sistema de su organización. Esa múltiple realidad institucional debe ser tomada en cuenta para el ejercicio de las potestades de dirección y control por el Estado, a fin de establecer entre ellas, diversos grados y medios de control. Pero, mientras exista una norma como el actual texto del artículo 188, que sin distingos ni matices impone a todas las instituciones autónomas un régimen de independencia total, es absolutamente imposible llevar a cabo un régimen de adecuación a la naturaleza de cada una de ellas.

6.- Es urgente llegar a establecer en Costa Rica un régimen que tome en cuenta la diferencia radical de intereses y de modos de funcionamiento que debe haber entre instituciones económicas de tipo industrial y comercial, e instituciones con una finalidad asistencial para desarrollar la educación, la salud, o la protección a la infancia. Ese régimen debe reflejar la diferente posición que guardan frente al Estado y la comunidad, aquéllos entes que cuentan con recursos propios y entregan al Estado partes de sus ganancias, y los que viven de subvenciones otorgadas en el Presupuesto Nacional y representan una pesada carga sobre éste. Debe, igualmente, distinguir las relaciones estatales que se llevan a cabo con entes monopolísticos de las que se traban con entes que participan en el libre mercado, las que se dan con instituciones de servicio, de las que tiene lugar con entidades de fomento o vigilancia a la actividad privada.

Por todo ello, creemos que la reforma es indispensable, no sólo para salvar la unidad del Estado costarricense sino para hacer efectivo el derecho de los ciudadanos a que los entes estatales tengan un funcionamiento adecuado y eficiente, y que ellos puedan ser estructurados en un solo aparato al servicio de la comunidad”. (Las negritas no están en el original). Este propuesta fue archivada (véase el expediente legislativo n.° 2537, n.° de archivado 4271).

La idea de la propuesta desechada se retoma en la iniciativa de reforma a la Carta Fundamental que presentó la Fracción del Partido Liberación Nacional a varios de sus artículos, entre los cuales se encontraba el numeral 188. “Incluimos la reforma propuesta el año pasado por un grupo de diputados de distintos partidos al concepto de autonomía. Al crearse las instituciones de este tipo, los Constituyentes de 1949 no previeron la necesidad de que debieran existir distintos grados de autonomía, de acuerdo con la naturaleza de la función de las instituciones. La experiencia costarricense ha indicado la necesidad de esa gradación, pero ello no puede lograrse si no es mediante esta reforma constitucional” (véase el folio 6 del expediente legislativo n.° 3631). De la lectura de lo que se ha podido reconstruir del expediente legislativo –el documento de estas importantes reformas se extravió hace muchos años-, así como de otros documentos legislativos a los que hemos tenido acceso, queda claro que la intención del Poder Reformador, con esta reforma, fue sujetar a las instituciones autónomas a la planificación nacional, concretamente al Plan Nacional de Desarrollo, incluyendo a la Caja Costarricense de Seguro Social. Es en este contexto que se debe interpretar la intervención del diputado Gutiérrez Gutiérrez ante la pregunta que le planteó directamente el diputado Carmona Benavides, en el sentido de si era necesario modificar el numeral 73 de la Constitución Política para someter a la entidad aseguradora a la reforma constitucional, a lo que el primero respondió que, para los propósitos de la reforma, la sola modificación del artículo 188 constitucional era suficiente (véase el expediente legislativo n.° 3631). Incluso, del acta del Plenario del primero de abril de 1968, de la intervención del diputado Hine García, queda claro que el objetivo de la reforma era “(…) lograr que éste sistema descentralizado, esté ubicado sin ninguna dificultad dentro de los planes nacionales que se desarrollan por la Oficina de Planificación, para lograr la marcha ordenada de la ‘cosa pública’. Ya en otra oportunidad lo dije que no es concebible en el Estado Moderno, y no puede ser aceptado por los costarricenses que en Costa Rica pueda llegar eventualmente a establecerse un sistema a través de planes que buscan precisamente eficiencia y desarrollo, y que eventualmente pueda alguna de las instituciones autónomas importantes, que todas las son, pero de la importancia las cosas, también son relativas, alguna de las más importantes pueda eventualmente sustraerse de sus planes, produciendo las perturbaciones, los choques, y las dificultades que son de esperarse.

Ahora bien, dentro de esta idea de la necesidad de que se establezca con claridad en la Constitución lo que nosotros entendemos y queremos que sean las Instituciones Autónomas, es indispensable tener presente que debemos al menos mantener por sobre todas las cosas el concepto de los que es la independencia en materia de gobierno: porque si establecemos como debe establecer que los directores de las instituciones autónomas son responsables por su gestión, eso exige, y es consecuencia precisamente de que exista antes una independencia en materia de gobierno, porque ahí deriva una responsabilidad por haber desarrollado la política institucional de manera equivocada, o en forma que no es la que corresponde al concepto de eficiencia que debe tener siempre la marcha de la Administración Pública.

Si se tiene un concepto de lo que es el Gobierno de las Instituciones Autónomas, que no es otra cosa más que la fijación de la política a desarrollar dentro del marco institucionalmente y legalmente le corresponde a una institución se entiende entonces que con toda propiedad, cabe mantener el concepto de la independencia en materia de Gobierno; si por ejemplo, el INVU, que es una institución autónoma, cuya especialidad orgánica, cuya función es la construcción de casas, el INVU por su ley orgánica tiene un cometido que llenar que es el hacer las casas pero no se concibe que existiendo un esfuerzo de planeamiento nacional, pueda el INVU desembocar su esfuerzo institucional digámoslo así en otra cosa más, que signifique choque con los planes que se han desarrollado de una manera orgánica y conforme a lo que se entiende por el interés público.

Pero dentro de esta especialidad orgánica de las hechuras de las casas, la institución autónoma, la Junta Directiva de ella, debe tener independencia para desarrollar esa política, así como existen independencia dentro de la esfera del Poder Central, en los diferentes Ministerios, y cada Ministro es responsable de lo que desarrolla dentro de su Ministerio, y no se concibe que un Ministro, un Ministerio de Transportes vaya a invadir lo que es esfera de un Ministerio de Agricultura, así no se puede concebir tampoco que una organización descentralizada pueda eventualmente invadir campos que le están vedados, porque en su ley orgánica le admite esa intromisión, y le podría eventualmente significar conflicto con la esfera de acción de otra organización descentralizada. Pero es necesario, porque estamos hablando a nivel constitucional que se establezcan dentro de la figura máxima de la descentralización con propiedad la independencia en materia de gobierno, que deben de tener las instituciones autónomas, para ser consecuentes con la responsabilidad que le corresponde a los Directores que desarrollan esa gestión.

Ahora bien, pero si existe esa independencia en materia de Gobierno debe existir también la obligación constitucional que imponga la obligación misma de la marcha concurrente con los planes que se desarrollan, para establecer con mayor claridad todavía a dónde puede eventualmente venirle la responsabilidad a los miembros de la Junta Directiva, que han desarrollado una política chocada con este esfuerzo nacional concurrente, coordinado hacia un fin que no es otra cosa más que el desarrollo y del mayor beneficio de los costarricenses”. (Las negritas no están en el original).

En este debate legislativo resulta de la mayor importancia la participación del diputado Volio Jiménez para tener claro el propósito de la reforma constitucional en relación con las instituciones autónomas. Al respecto puntualizó lo siguiente:

“Llamo primero la atención sobre el hecho de que está corriendo el tiempo donde tenemos, creo que demasiado cada texto propuesto, y posiblemente no vamos a poder dar en la legislatura a las más importantes reformas propuestas. En la semana anterior, al viernes al terminar esa semana, el viernes se había logrado concretar puntos de vista y proponer una redacción concisa con base en un texto propuesto por el Diputado Villanueva Badilla.

Creo, que ese texto concilia los diferentes puntos de vista, por que de lo que se trata es de lograr que en materia de gobierno las instituciones autónomas estén regidas por la ley; y la fórmula que propuso el diputado Villanueva Badilla.

Creo, que ese texto concilia los diferentes puntos de vista, por que de lo que se trata es de lograr que en materia de gobierno las instituciones autónomas estén regidas por la ley; y la fórmula que propuso el Diputado Villanueva Badilla enmendada según las observaciones que se le hicieron el viernes, logra el propósito deseado. No se trata de reformar la Constitución para que en lo administrativo también haya sujeción de las instituciones autónomas a un programa de planificación del Estado en efectos públicos.

Se trata nada más de lograr la coordinación repito en la materia de Gobierno; DIPUTADO HINE GARCÍA: Muy amable, Diputado Volio. Quisiera, ya que usted toca la moción del Diputado Villanueva, quisiera que me aclarara algo, que es lo siguiente, la moción del Diputado Villanueva Badilla también busca el objetivo que a nosotros nos está preocupando, pero dice así: “y está sujeta a la ley en materia de Gobierno”, a secas; para mi esto es muy peligroso porque por esa sujeción a secas como lo tiene la moción a la ley, es posible llegar a hacer desaparecer la independencia en materia de Gobierno, y es posible llegar a dejar convertida a las instituciones autónomas en cascarones vacíos de actividad. Es posible, por esto, debilitar el sistema institucional descentralizado, que es lo que me parece que debemos nosotros garantizar. Les agradecería, porque me tranquilizaría mucho, si ustedes me aclararan los alcances que puede tener, ya operando prácticamente y a través de los años, esta fórmula, porque al estar sometida a la ley en materia de gobierno, podría decirse, entonces, eventualmente en el futuro, que las instituciones autónomas, por legislación corriente, se pueden deshacer, se dejan como cascarones vacíos al irles restando sus posibilidades de acción independencia.

DIPUTADO VOLIO JIMÉNEZ: Entiendo, señor Diputado, la moción en el sentido no de que el legislador en el futuro pueda destruir una institución, porque si fuera esa la intención ni siquiera se haría referencia en la moción al problema del gobierno. Lo que se quiere es que el legislador considere la necesidad de coordinar la actividad de esas instituciones, en función del desarrollo económico y social del país.

Sin embargo, como no soy autor de la moción, su pregunta, en primer término, debe ser contestada por el Diputado Villanueva Badilla; pero insisto en la necesidad de que ya hoy nos dediquemos a tomar decisiones; y si fuera necesario presentar una moción para llegar a ese fin, una moción de orden; desde luego yo la presentaría de inmediato, pero creo que si el Directorio se decide a poner en discusión las mociones sobre el artículo 188, en su orden de presentación, podríamos llegar al mismo fin, en el entendido de que había un consenso en la Asamblea favorable a que se tomen esas decisiones, examinando uno a uno los textos propuestos”. (Las negritas no corresponden al original).

Así las cosas, al aprobarse la reforma del numeral 188 constitucional no cabe duda que se sujetó a la Caja Costarricense de Seguro Social al Plan Nacional de Desarrollo en los términos que defina la Ley. Lo anterior significa, que la citada reforma no afectó en su totalidad la autonomía de gobierno que tiene la Caja Costarricense de Seguro Social sobre los seguros sociales. Se trata de una afectación parcial a la autonomía política de la entidad aseguradora, cuyo objetivo precisamente era darle profundidad a los fines y objetivos del Estado, como un todo, solucionando el constituyente derivado una preocupación muy justificada desde la Constitución Política, mediante lo que hoy en día conocemos con los principios rectores de toda la Administración Pública: los principios de unidad y coordinación del Estado. Su fuerza naturalmente proviene del cumplimiento eficaz del bien común, y se constituye en la frontera de la autonomía de las instituciones autónomas, con la necesidad de coordinación pero sin desligarse de las respectivas competencias asignadas por el Constituyente, concebidas precisamente para darle aquella referida profundidad.

En ese orden de ideas, no hay duda alguna de que la Asamblea Legislativa tiene competencia, en el ejercicio de la potestad de legislar, para regular las materias puestas bajo el conocimiento de las instituciones autónomas, entre ellas las que corresponden a la Caja Costarricense de Seguro Social, siempre y cuando no vacíe el contenido de las competencias esencialmente técnicas que Poder Constituyente originario le asignó.- La competencia del Parlamento para regular las competencias de las instituciones autónomas queda claro de la discusión del numeral 190 en la Asamblea Nacional Constituyente. En efecto, conviene recordar que fue la Fracción Social Demócrata la que presentó, como parte del título relativo a las instituciones autónomas, la siguiente norma: “(…) No podrá discutirse en la Asamblea Legislativa ningún proyecto de ley relativo a materias encomendadas a una Institución Autónoma, sin que la respectiva Institución haya rendido dictamen al respecto. Dicho dictamen deberá incluirse y publicarse, obligatoriamente, como uno de los considerandos de la ley que se apruebe”. (A.A.C.: tomo III; pág. 465). Nótese que ya no se propone lo relativo a la mayoría calificada para la aprobación del proyecto de ley donde exista criterio negativo de la Institución. Suponemos que las votaciones adversas de la Asamblea Nacional Constituyente en los casos de la Universidad y el Organismo Técnico encargado de determinar la unidad monetaria disuadieron a los miembros de la Fracción Social Demócrata de presentar esa iniciativa.

Las razones de esta normativa las ofrece Facio Brenes al indicar: “(…) mediante él lo que se busca es obligar el cuerpo esencialmente político que es el Congreso, a escuchar la voz de las instituciones autónomas en aquellos asuntos que las afectan”. (A.A.C.N.: tomo III; p. 467).

Los motivos por las cuales este artículo no fue aprobado en la forma propuesta fueron:

“Los representantes Arroyo, Vargas, Fernández y Esquivel se manifestaron en desacuerdo. El primero expresó que no era posible continuar restándole atribuciones a la Asamblea Legislativa, obligándola a consultar todas las instituciones autónomas del estado. La Asamblea integra de su seno, distintas comisiones que tiene la obligación de consultar y documentarse en la debida forma respecto a asuntos que le son encomendados. Si se presenta un proyecto de ley relacionado con una institución autónoma es lógico que se consultará a esos organismos. El segundo indicó que la moción en debate introduce un nuevo sistema, ya que si una institución autónoma no rinde el dictamen respectivo, la Asamblea Legislativa no podrá conocer el proyecto de ley. El tercero manifestó, que no votará ninguna moción que venga en detrimento de las facultades de la Asamblea Legislativa, la máxima representación del pueblo en nuestro sistema político, obligándola hasta incluir en los considerandos de la ley que se apruebe, el Dictamen de la Institución Autónoma” (A.A.N.C.: tomo III; p.473).

A raíz de ello el representante Chacón Jinesta sugirió una nueva redacción:

“para la discusión y aprobación de proyectos relativos a una institución Autónoma, la Asamblea Legislativa deberá oír la opinión de aquella” (A.A.N.C.: tomo III, p. 473).

El diputado Facio Brenes a nombre de su compañero decidió retirar la moción y en definitiva se votó la propuesta del diputado Chacón Jinesta.

De la anterior discusión podemos concluir que quienes fueron los redactores de la Constitución Política actual tenían bien claro que las materias puesta bajo la competencia de las instituciones autónomas podían ser objeto de regulación por parte de la Asamblea Legislativa, siempre y cuando se les consultara. Esta postura se refuerza con el argumento de que si el Parlamento puede regular las materias puestas bajo las competencias de las Universidades Estatales (artículo 88 de la Constitución Política), o relacionadas directamente con ellas, quienes ostentan una autonomía de tercer grado –autonormativa- , a fortiori tiene competencia también para regular las materias que son propias de las instituciones autónomas, incluidas las que corresponden a la Caja Costarricense de Seguro Social. Esta idea también está presente en la discusión del artículo 73 de la Carta Fundamental en la Asamblea Nacional Constituyente, toda vez que en el acta n.° 125 el diputado Facio Brenes señala que esas instituciones “(…) aunque autónomas, no pueden desligar absolutamente del Estado. De otro modo será crear nuevos Estados dentro del Estado”. Por su parte, el diputado Ortiz Martín expresó que los legisladores debían señalar el camino a seguir a la Caja Costarricense de Seguro Social “(…) y ella, en forma autónoma, debe de desenvolverse dentro de esas leyes”.

De lo que llevamos dicho se extrae una conclusión necesaria, y es que el Poder Ejecutivo, por medio del Plan Nacional de Desarrollo, y la Asamblea Legislativa, en ejercicio de la potestad de legislar, están jurídicamente habilitados, para, en el primer caso, fijarle metas y objetivos a la Caja Costarricense de Seguro Social y, en el segundo, regular las materias que le corresponden, siempre y cuando, en este último supuesto, no se vacíe el contenido esencial de las competencias atribuidas por el Constituyente originario. Aplicando por analogía la teoría de la garantía institucional, la que ha sido diseñada por la doctrina para otro supuesto: la reserva constitucional de la Administración, lo que implica que ciertas actividades, que son funciones públicas soberanas, tienen que ser necesariamente desarrolladas por la Administración, tal y como se encuentra regulada por la Constitución, y necesariamente en un régimen jurídico de Derecho Público, salvo las actividades auxiliares o instrumentales, en el supuesto de la Caja Costarricense de Seguro Social hay materias técnicas esenciales de su competencia exclusiva y excluyente que no pueden ser vaciadas por el legislador. Lo anterior significa, a manera de ejemplo, que la Asamblea Legislativa, en una Ley, no puede obligar a la Caja Costarricense de Seguro Social a que el hospital que se pretende construir esté en equis lugar, o cómo desarrollar la atención primaria, secundaria, o terciaria del sistema hospitalario, cuál debe ser el monto de la cuota obrero-patronal o la del Estado a la seguridad social, la edad de retiro, el monto de la pensión, su formula de cálculo, etc. En todos estos casos y otros -someter a la potestad de dirección al funcionariado de la Caja Costarricense de Seguro Social indispensable para cumplir con el fin constitucionalmente asignado, como se explica en la opinión consultiva-, estamos frente a una materia no disponible del legislativo o como bien a dicho la doctrina nacional, ante un contenido constitucional, el que no puede ser desarrollado mediante Ley.

• b)Nota del magistrado Rueda Leal en cuanto a la inclusión de la Caja Costarricense de Seguro Social en el numeral 2 inciso b) del proyecto consultado Destaco que la inconstitucionalidad de este ordinal se da por sus efectos, dado que es necesario visualizarlo en la sistematicidad del articulado para comprender cómo se afecta la autonomía de la Caja Costarricense de Seguro Social. Tal como menciono en otras partes de esta resolución, la determinación puntual de las consecuencias jurídicas, en caso de que llegara a incorporarse este proyecto en el ordenamiento jurídico, será desarrollada por la jurisprudencia al analizar su aplicación práctica. Con respecto a la Caja Costarricense de Seguro Social, su finalidad constitucional cobrará especial relevancia en tal aplicación, visto que esa institución representa una garantía para la administración y el gobierno de los seguros sociales.
• c)Nota separada de la magistrada Garro Vargas en relación con el artículo 2 inciso b) y la inclusión de la Caja Costarricense de Seguro Social Tal y como lo consigné en la nota separada de la acción de inconstitucionalidad resuelta mediante sentencia n.°2020-10608, el artículo 73 párrafo segundo de la Constitución Política señala que “La administración y el gobierno de los seguros sociales estarán a cargo de una institución autónoma, denominada Caja Costarricense de Seguro Social”. De la literalidad de dicha norma se desprende que la Caja Costarricense de Seguro Social (CCSS) posee autonomía de segundo grado, es decir autonomía política o de gobierno, para cumplir con la función expresamente ordenada por el constituyente, sea, la administración y gobierno de los seguros sociales. Esta autonomía, que va más allá de la autonomía administrativa reconocida en el art. 188 de la Constitución Política a las demás instituciones autónomas, le otorga capacidad para realizar su cometido constitucional sin sujeción a otro ente, esto es, para autodirigirse, autogobernarse y dictar sus propios objetivos y organizarse en la forma en la que lo estime conveniente para el cumplimiento de la finalidad para la cual fue creada. En la referida nota advertí, no obstante, que si bien hay decisiones que son adoptadas en el marco de la autonomía institucional de la CCSS, las mismas deben estar limitadas por los correspondientes criterios técnicos que justifiquen de forma apropiada la decisión, con el fin de que la discrecionalidad con la que se adopta esté limitada por los principios de razonabilidad y proporcionalidad.

En concreto, respecto de la norma consultada, debo reiterar que conforme a las líneas generales expuestas supra sí resulta posible una ley marco de regulación del empleo público, sin embargo, dicha normativa no puede desconocer las particularidades de la configuración de nuestro Estado de Derecho establecida en la Constitución Política. En el caso concreto se cuestiona que el art. 2 inciso b) incluya a la CCSS dentro del ámbito de cobertura de la norma. Según mi criterio, dicho numeral no es en sí mismo inconstitucional en cuanto incluye a la CCSS en un marco regulatorio de empleo público, siempre que ese marco regulatorio se entendiera como aquel que establezca principios y normas generales. No obstante, como este proyecto de ley no cumple con esas características, este artículo sí es inconstitucional por conexidad con el resto del articulado (ver, por ejemplo, los artículos 4, 6, 7, 9, 12, 13, f), 14, 17, 18, 19, 21, 22, 30, 46 y 49 del proyecto de ley), porque supondría aplicarla a una institución que fue dotada constitucionalmente de autonomía de gobierno. Es decir, lo establecido en esas normas, en conexión con este art. 2 inciso b), vacía de contenido el principio de autonomía de gobierno. Además, la lógica de la ley en su totalidad está plasmada no sólo en su articulado sino en la exposición de motivos, que tiene un valor hermenéutico. De manera que para que ese art. 2 inciso b) se considere que no es “en sí mismo” inconstitucional tendría que verse desvinculado de lo que en dicha exposición de motivos hace relación con esas normas.

• d)Nota separada de la magistrada Picado Brenes, sobre el artículo 2 inciso b) sobre la inclusión de la CCSS en un marco regulatorio general de empleo público (punto 37 del por tanto) Por unanimidad, la Sala ha considerado que el artículo 2 inciso b) del proyecto de Ley Marco de Empleo Público que se tramita en el expediente legislativo n° 21.336, no es por sí mismo inconstitucional al incluir a la CCSS en un marco regulatorio general de empleo público, pero sí es inconstitucional por sus efectos puesto que algunas de sus normas vacían de contenido su autonomía de gobierno. En este tema considero necesario hacer algunas precisiones en los términos siguientes.

Debe recordarse que ha sido la propia Sala Constitucional la que señaló en la sentencia n° 2011-14624, entre otras, que la Caja Costarricense de Seguro Social (CCSS), goza de autonomía administrativa y de gobierno, de conformidad con el artículo 73 de la Constitución Política, por lo que puede emitir las disposiciones relacionadas con su régimen interior. Además, también hay que tomar en cuenta que el artículo 70 de la propia Ley Constitutiva de la Caja Costarricense de Seguro Social, dispone que su Junta Directiva establecerá las condiciones referentes al ingreso de los empleados al servicio de la Institución, garantías de estabilidad, sus deberes y sus derechos, forma de llenar las vacantes, promociones, causas de remoción, escala de sanciones, trámite para el juzgamiento de infracciones y demás disposiciones necesarias; en consecuencia, todo lo relativo a la materia de empleo público, sería competencia absoluta de la Caja Costarricense de Seguro Social. No puede perderse de vista que, por definición, la autonomía de gobierno que ostenta la CCSS, le permite, además de auto-administrarse (disponer de sus recursos humanos, materiales y financieros) y darse su propia organización interna, también actuar para la fijación de fines, metas y tipos de medios para realizarlas, así como emitir reglamentos autónomos de servicio o actividad, acorde con las disposiciones normalmente llamadas de política general. Por su parte, la autonomía administrativa es la posibilidad jurídica de que la CCSS realice su cometido legal por sí misma, sin sujeción a otro ente, conocida en doctrina como la capacidad de autoadministración, la cual le permite -sin necesidad de una norma legal que así lo establezca- disponer de sus recursos humanos, materiales y financieros de la forma que lo estime más conveniente para el cumplimiento eficaz y eficiente de los objetivos y fines que tiene asignados. Como se puede observar, tanto la autonomía administrativa como la política, le permiten a la CCSS dictar la normativa interna que estime necesaria para la gestión de su recurso humano.

Ahora bien, en atención a ese grado de autonomía que ostenta la CCSS, el Poder Ejecutivo tiene restringida su injerencia sobre ella, de modo que no puede actuar como jerarca de ésta, no puede controlarla limitando su actividad por razones de oportunidad; y, tampoco puede, actuar como director de la gestión de ese ente mediante la imposición de lineamientos o de programas básicos. Bajo este contexto, el artículo 2 inciso b) del proyecto de Ley Marco de Empleo Público, sería inconstitucional porque, si el objetivo de ese proyecto es unificar la gestión de los servidores públicos bajo un sistema general de empleo público que estaría bajo la dirección de un órgano del Poder Ejecutivo -Mideplán-, entonces resulta contrario al Derecho de la Constitución incluir a la CCSS en ese sistema unificado porque la autonomía constitucionalmente otorgada a la CCSS, la excluiría por completo de cualquier sistema que pretendiera imponerle directrices y órdenes a partir del Poder Ejecutivo.

Por otro lado considero imposible dividir la materia de empleo público como para que un grupo de trabajadores de la CCSS estén incluidos en el proyecto bajo estudio y otro grupo no; eso no sólo fraccionaría los objetivos de la institución que se cumplen a través de las labores que realizan sus empleados, todos sin exclusión alguna, sino que, además, la parte que tuviere que estar sometida a empleo público, estaría expuesta a una vulneración constante del Derecho de la Constitución. Definitivamente, ese grupo de empleados que fueren sometidos a tal sistema general de empleo público, se encontraría frente a directrices provenientes del Poder Ejecutivo que atentarían contra la autonomía de la CCSS, con lo cual, la norma, además de ser inconstitucional por las razones dichas, también lo sería por los efectos que se producirían posteriormente, ya que, como se ha venido diciendo, no es posible someter a una institución constitucional con un grado de autonomía como el que tiene la CCSS, a directrices, disposiciones, circulares, manuales que emita Mideplán. Igualmente he de reiterar lo que he venido manifestando en el sentido de que no es posible dividir a los empleados de esta institución entre los que están en el sistema de empleo público y los que no están, porque todos son parte de la gran maquinaria institucional llamada CCSS y todos están remando en la misma dirección que es garantizar los seguros sociales y la salud a la población, por lo tanto, no es posible realizar esa fragmentación como lo pretende el proyecto, y hacerlo es por lo demás, discriminatorio y violatorio del principio de igualdad.

En consecuencia, considero que el artículo 2 inciso b) por los efectos que produciría posteriormente al convertirse en Ley de la República, resulta contrario al Derecho de la Constitución.

• e)Razones diferentes de la magistrada Garro Vargas en cuanto somete a la Caja Costarricense de Seguro Social a la rectoría del sistema general de empleo público a cargo de Mideplán prevista en el artículo 6 Como he venido señalando, en mi caso, por mis propias razones declaro inconstitucional la norma consultada respecto de la aplicación a la Caja Costarricense de Seguro Social (CCSS), separándome en los términos en los que la mayoría de la Sala distingue entre funcionarios que realizan una función esencial atinente a la propia Caja y los que no.

Obsérvese que lo que se está cuestionando en este numeral es la creación de un Sistema General de Empleo Público, cuya rectoría estaría a cargo del Mideplan, y en ese sistema se están integrando “las oficinas, los departamentos, las áreas, direcciones, unidades” de gestión de recursos humanos de las entidades y los órganos bajo el ámbito de aplicación de la presente iniciativa. De previo, el art. 2 inciso b) incluye a la CCSS en el ámbito de cobertura del proyecto de ley. Asimismo, como señalé anteriormente, dicha norma debe ser examinada en conjunto con lo referido en el art. 9 inciso a) párrafo segundo del proyecto de ley, que ordena que las oficinas de recursos humanos deberán aplicar y ejecutar las disposiciones de alcance general, las directrices y los reglamentos en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales que el Mideplan remita a la respectiva institución.

Como señalé previamente del art. 73 constitucional se desprende la autonomía de gobierno de la CCSS para el desempeño de sus funciones. A partir de esa premisa, resultaría inconstitucional que su oficina de recursos humanos sea sometida a la rectoría del Mideplan, que sería el órgano contemplado en el proyecto de ley que estaría llamado a establecer las políticas públicas de empleo público y emitir las disposiciones de alcance general en la materia (planificación, organización del trabajo, gestión del empleo, gestión del rendimiento, de la compensación y de las relaciones laborales). Esa oficina de recursos humanos, por lo demás, rige a todo el universo de funcionarios de la CCSS.

Ya señalé supra que, desde mi perspectiva, es posible una normativa común que establezca un marco regulatorio general de empleo público, en donde se reúnan y desarrollen los postulados de los arts. 191 y 192 de la Constitución Política; sin embargo, a mi juicio sí es abiertamente inconstitucional que se sustraiga la oficina de recursos humanos de la CCSS de la capacidad que esta tiene de darse su organización y gobierno propio, pues además eso iría aparejado con la correlativa obligación de ejecutar las disposiciones de alcance general del Mideplan. Lo anterior con el agravante de que la regulación de esta ley quedará en manos de este.

Considero necesario precisar que, respecto de las instituciones contempladas en el art. 2 del proyecto de ley (ámbito de cobertura), estimo que no tienen el mismo nivel de independencia los poderes de la república (inciso a) que otras instituciones del sector descentralizado (inciso b). No obstante, en el caso concreto, la norma constitucional que contempla la creación de la CCSS es muy clara respecto de su autonomía de gobierno, por lo que, reitero, sí es inconstitucional que la oficina de recursos humanos de dicha institución pase a conformar un Sistema de Empleo Público, cuya rectoría está confiada a una cartera ministerial del Poder Ejecutivo. Tal previsión desconoce que corresponde a la CCSS delimitar de forma autónoma cuál es la mejor forma para autoorganizarse, claro está, siempre supeditada a normas de carácter general que no desconozcan su autonomía. Es decir, le corresponderá a su propia autoridad de gobierno ejecutar de forma autónoma las disposiciones de carácter general que tiendan a satisfacer lo establecido en los arts. 191 y 192 de la Constitución Política —o cualquier otra disposición de esta?, pero sí resulta inconstitucional esa rectoría y ese traslape entre las competencias de gobierno que les son propias y otras que se intenten imponer de forma heterónoma. Lo dicho no supone entender que la CCSS goza de soberanía ni que está al margen de las exigencias propias del Estado de Derecho, sino reconocer que el Constituyente originario quiso otorgarle un estatus y prerrogativas singulares, que ni la Sala ni el legislador en el ejercicio de sus funciones pueden soslayar. Asunto distinto es que en el debate público esté abierta la discusión sobre la necesidad de replantear el diseño, las competencias y mejorar la gestión de la institución en sus variados ámbitos. Pero mientras ese debate no incida en el plano normativo-constitucional, corresponde a esta Sala hacer valer el marco vigente.

• f)Razones diferentes de la magistrada Picado Brenes, sobre el artículo 6 del proyecto en cuanto a la rectoría de Mideplán (punto 38 del por tanto) Conforme se analizó por parte de la Sala en este punto, está claro que al amparo del artículo 73 de la Constitución Política, ni el Poder Ejecutivo ni ninguno de sus órganos -como sería el Mideplán-, podrían ejercer sobre la Caja Costarricense de Seguro Social, potestad de dirección o reglamentaria, y esto incluye también todo lo que atañe a la gestión del recurso humano de la institución, sin el cual no podría llevar a cabo las funciones que le han sido encomendadas. Así las cosas, el artículo 6 del proyecto de Ley Marco de Empleo Público no puede aplicarse a la Caja Costarricense de Seguro Social por cuanto, como se dijo, en materia de gestión del talento humano, esa institución cuenta con plena autonomía para organizarse y administrarse.

Desde esta perspectiva, igualmente sería improcedente que el Departamento de Recursos Humanos de la CCSS, pase a formar parte del Sistema General de Empleo Público a cargo del Ministerio de Planificación Nacional y Política Económica, como tampoco sería válido que una norma general elimine la normativa y reglamentación específica sobre la materia, que ha sido dictada por la CCSS a lo largo de su vida jurídica.

En consecuencia, en mi criterio, prevalece la autonomía de gobierno que tiene la CCSS y, por ende, ninguna sección o grupo del personal que tiene a su cargo, podría pasar a las órdenes del Mideplán toda vez que, en atención a lo que se deriva del artículo 73 constitucional, este órgano no podría ocupar la rectoría de la materia de empleo público en la CCSS en los términos planteados por el artículo 6 del proyecto de Ley Marco de Empleo Público, sin antes ocasionar una lesión al Derecho de la Constitución. Bajo este criterio, no se justificaría en lo absoluto que algunos departamentos de la CCSS se sometan al Mideplán, en tanto que otros no lo hagan, ello por cuanto debe tomarse en cuenta que lo que debe prevalecer es la satisfacción del interés público y de los usuarios de los servicios que brinda la CCSS y para ello es necesario que exista la mayor uniformidad de criterios y de procedimientos, en aras de lograr la eficiencia del servicio público y la satisfacción de las necesidades de las personas enfermas. Igualmente, un fraccionamiento de empleados o departamentos de la CCSS, resultaría lesivo del derecho a la igualdad y no discriminación del personal de esa institución porque, nuevamente, si todos los trabajadores están dirigidos a la consecución de una sola meta común que es la tutela de la salud y de los seguros sociales de la población, no es posible que unos pertenezcan a un sistema de empleo público y otro grupo esté sometido a reglas diferentes.

• g)Razones adicionales de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 7 por afectar la autonomía de la Caja Costarricense de Seguro Social En este caso me separo de la opinión vertida por la mayoría, puesto que considero que la totalidad del art. 7 es inconstitucional, en cuanto somete a la Caja Costarricense de Seguro Social (CCSS) a la potestad de rectoría y de reglamentación de Mideplan.

Como ya se señaló, esa norma establece una serie de amplias competencias a favor de un ministerio del Poder Ejecutivo que, aplicadas a la Caja, resultan inconstitucionales por desconocer su autonomía para darse su propia administración y gobierno. Estas competencias, como se señaló, podrían suprimir la capacidad de autogobierno y de manejo del personal necesario para llevar a cabo las funciones que le son intrínsecas.

Anteriormente apunté que, desde mi perspectiva, no es lo mismo afectar la independencia de los poderes de la república, que la autonomía de otras instituciones autónomas y, en esa medida, se debe matizar el análisis de las competencias otorgadas al Mideplan. No obstante, como he venido señalando, en la medida en que por disposición constitucional exista una autonomía de gobierno a favor de la CCSS para darse su propia administración, sí resultan inconstitucionales aquellas competencias que se pretenden otorgar al Mideplan y que implican una rectoría por sobre la autonomía reconocida a la Caja. Nuevamente, si se examina integralmente el art. 7 en conexión con el art. 6 incisos b) y d), así como el art. 9 inciso a) párrafo segundo, se desprende un sometimiento de la Caja a órdenes, directrices y regulaciones de una cartera ministerial del Poder Ejecutivo, lo que amenaza la autonomía de gobierno confiada constitucionalmente para el cumplimiento de sus fines. No estimo que ese diseño sea intocable, sino que no corresponde modificarlo por ley.

• h)Razones adicionales de la magistrada Picado Brenes, sobre el artículo 7 del proyecto en cuanto a las amplias competencias de Mideplán respecto de la CCSS (punto 39 del Por Tanto) La Caja Costarricense de Seguro Social (CCSS) encuentra su garantía de existencia en el artículo 73 constitucional mediante el cual se le otorga, en forma exclusiva, la administración y gobierno de los seguros sociales, pero además, un grado de autonomía que es distinto y superior al que se le concedió a las instituciones autónomas; autonomía a partir de la cual goza de amplias potestades en materia de gobierno y de administración que le permite emitir disposiciones relacionadas con su régimen interior, fijar sus metas y objetivos en atención a sus funciones, pero también establecer los medios y mecanismos para alcanzarlas, así como emitir reglamentos autónomos de servicio o de actividad acordes con las disposiciones de política general. Por su parte, en el artículo 70 de la Ley Constitutiva de la Caja Costarricense de Seguro Social, se establece que su Junta Directiva establecerá todo lo relativo a la materia de empleo público y gestión del recurso humano, para lo cual podrá emitir la reglamentación y disposiciones necesarias para el ingreso de los empleados al servicio de la Institución, las garantías de estabilidad de éstos, sus deberes y derechos, la forma de llenar las vacantes, promociones, causas de remoción, escala de sanciones, el trámite para el juzgamiento de infracciones y demás disposiciones necesarias. Indudablemente, al contraponerse esas potestades propias de la CCSS en general y de su Junta Directiva en particular, en materia de empleo público, es evidente la contradicción que se dará con lo regulado en el artículo 7 del proyecto de Ley Marco de Empleo Público pues obsérvese que las competencias que ahí se establecen para el Mideplán en esa materia, son las mismas que ya tiene la CCSS y que cuentan con respaldo constitucional toda vez que son parte del grado de autonomía de gobierno o política -incluyendo la administrativa- que caracteriza a esa institución. No puede dejarse de lado que el grado de autonomía que tiene la CCSS significa, a la vez, un grado de protección frente a la injerencia del Poder Ejecutivo, pero también limitaciones a la intervención del Poder Legislativo y, por ende, en el caso bajo estudio, del Mideplán -como órgano del Poder Ejecutivo-. Desde esta perspectiva entonces, éste no podría establecer, dirigir y coordinar la emisión de políticas públicas, programas y planes de empleo público en la CCSS, o emitir disposiciones de alcance general, directrices y reglamentos que tiendan a la estandarización, simplificación y coherencia del empleo público incluyendo a los funcionarios de la CCSS; tampoco podría emitir los lineamientos y principios generales para la evaluación del desempeño a lo interno de la CCSS, o administrar e implementar las acciones de investigación, innovación y formulación de propuestas de empleo público para ser utilizadas en esa institución, o establecer un sistema único y unificado de remuneración de la función pública de los servidores de la CCSS, o realizar diagnósticos en materia de recursos humanos en esa institución, entre otras múltiples competencias que se le otorgan en ese artículo 7 al Mideplán. Al observarse con detenimiento este numeral, es fácil concluir que desaparecerían por completo las competencias que tiene la CCSS y su Junta Directiva en lo que a gestión de personal se refiere, ello por cuanto todas ellas pasarían a ser propias del Mideplán. Recuérdese que las funciones que le han sido asignadas a la CCSS no solo cuentan con gran especificidad en razón de la materia que constitucionalmente se le han asignado, sino además, su correcta ejecución y cumplimiento, está estrictamente relacionado con la vida de sus usuarios o con valores también de rango constitucional como son la salud o el derecho a percibir prestaciones sociales como sería la pensión; en consecuencia, tales labores deben ser llevadas a cabo por personal especialmente capacitado cuyas instrucciones y directrices deberán provenir de manera directa de la institución y no de parte de un órgano centralizado del Poder Ejecutivo desconocedor de la dinámica de la organización.
• i)Razones adicionales de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 13 respecto a la Caja Costarricense de Seguro Social A diferencia de la mayoría, considero que el art. 13 del proyecto de ley es inconstitucional en su totalidad por lesionar la autonomía de la Caja Costarricense de Seguro Social (CCSS). Estimo que la inconstitucionalidad no se circunscribe a lo establecido en el inciso b), tal como lo declara la mayoría, sino que se proyecta a la totalidad del artículo. Esto es así porque, si solamente se declara inconstitucional el inciso b), que se refiere exclusivamente a “personas servidoras públicas que se desempeñan en funciones en ciencias de la salud”, se podría entender que es constitucional que el resto de funcionarios sí queden dentro del régimen general de empleo público bajo la expresa rectoría del Mideplan. En efecto, al entender la actividad de la CCSS solo desde la perspectiva del inciso b), se desconocen todas las particularidades y necesidades del personal de apoyo de dicha institución, que no solo se manifiesta en el ámbito de la atención clínica, sino, además, en la administración de los seguros sociales. Es decir, dicho inciso es deficiente en sí mismo. Para explicar esto se podría decir que se trata de una realidad vista desde un punto de vista cóncavo y de uno convexo. Es decir, desde un ángulo, el inciso b) al contemplar solo una parte de la actividad de la CCSS, desconoce la realidad de que esta institución está conformada además por una amplia gama de funcionarios de apoyo, que son esenciales para la adecuada ejecución de las competencias constitucionalmente designadas. Pero la sola declaratoria de inconstitucionalidad del inciso b) es insuficiente, pues implicaría que la declaratoria de inconstitucionalidad de dicho inciso en forma independiente podría provocar que el resto de los funcionarios que no se desempeñan en funciones directamente atinentes a las ciencias de la salud queden sometidos a la rectoría del Mideplan. Por lo tanto, visto desde el otro ángulo, aunque no estuvieran consultados el resto de los incisos, es claro que dicho numeral debe examinarse de forma íntegra. Recuérdese que al evacuar una consulta de constitucionalidad, la Sala debe dictaminar sobre los aspectos y motivos consultados, pero también puede dictaminar “sobre cualesquiera otros que considere relevantes desde el punto de vista constitucional” (art. 101 párrafo primero de la LJC). En consecuencia, pese a que solamente se haya consultado respecto de la Caja el inciso b), por pura derivación lógico-jurídica, es claro que desde el punto de vista constitucional dicho artículo está revestido de inconstitucionalidad, en la medida que la construcción de las familias de puestos desconoce las particulares y conformación institucional de la CCSS para llevar adelante la función de “la administración y el gobierno de los seguros sociales”. Hay que observar que el propio art. 13 dispone que “La creación de familias de puestos de empleo público es reserva de ley y deberá estar justificada por criterios técnicos y jurídicos coherentes con una eficiente y eficaz gestión pública”, norma que debe examinarse además en conjunto con lo referido en el art. 32 del proyecto de ley, que ordena que “Cada familia laboral estará conformada por una serie de grados, cada uno de los cuales representa un grupo de puestos con perfil similar. El Ministerio de Planificación Nacional y Política Económica (Mideplán) definirá el número de grados requeridos dentro de cada familia laboral, así como sus características, como respuesta a una evaluación de todos los puestos dentro de la familia laboral”. De manera que debe reiterarse que de declararse solamente la inconstitucionalidad del inciso b) se corre el peligro de que el resto del personal de la Caja sea ubicado en otras “familias de puestos” cuya evaluación y definición quedaría a cargo de un órgano ajeno a los poderes mencionados, estableciéndose un peligroso portillo a través del cual se lleve a cabo la injerencia de parte del Poder Ejecutivo respecto de la administración de su personal.
• j)Razones adicionales de la magistrada Picado Brenes, sobre el artículo 13 del proyecto en cuanto a los grupos de familias de puestos y la CCSS (punto 41 del Por Tanto) La Sala ha considerado por unanimidad que el artículo 13 inciso b) del proyecto Ley Marco de Empleo Público es inconstitucional por no incluir a los servidores de la CCSS que realizan labores sustanciales y profesionales referentes a los fines constitucionales que se le asignan a la institución. Considero importante hacer algunas observaciones al respecto en aras de aclarar mi criterio. Como ya lo he indicado, es preciso tener en cuenta que el artículo 13 del proyecto de Ley Marco de Empleo Público, se refiere al Sistema General de Empleo Público que se pretende implementar para todos los servidores de la Administración Pública; artículo que se encuentra ubicado en el Capítulo IV Organización del Trabajo. En ese numeral del proyecto se dispone que dicho régimen general y único de empleo público, estará conformado por 8 familias de puestos, las cuales se aplicarán en los órganos y entes de la Administración Pública.

Esos grupos de familias no necesariamente se han conformado por afinidad entre oficios y profesiones, o porque pertenecen a una misma institución, o por contar con un fin determinado como común denominador; simplemente, a partir de la libertad de configuración del legislador, se han agrupado personas servidoras públicas conforme se observa en el numeral y, por ende, el artículo encierra una serie de interrogantes y de inquietudes sin resolver. Reitero que, de acuerdo con la redacción del artículo, es inadecuado que se haya decidido acumular en un solo grupo o familia de puestos, a una categoría determinada de trabajadores solo por el hecho de serlo pues, aun cuando todos se dediquen a una misma función genérica, las especificidades de cada uno de ellos serán diferentes en atención al centro de trabajo, a los objetivos a los que están dirigidos y a los fines asignados a la institución bajo la cual están adscritos. Desde esta perspectiva, en el caso concreto de la CCSS, la Sala ha estimado que el artículo 13 inciso b) es inconstitucional porque no incluyó a quienes realizan labores sustanciales y profesionales que atienden a los fines constitucionales asignados a esa institución; sin embargo, dada la redacción del numeral, perfectamente podría interpretarse en el sentido de que sí están incluidos, pues obsérvese que la norma señala: “b) Personas servidoras públicas que se desempeñan en funciones en ciencias de la salud” y, esa frase, bien puede entenderse en el sentido de que se trata de todos los profesionales en el área de la salud, o de todas las personas que trabajan en el área de la salud independientemente de la labor que realicen, pues aún cuando brinden servicios administrativos, de terapia, de rehabilitación, de traslado, o de cualquier otro tipo de apoyo, pero en ciencias de la salud, bien podrían estar incluidos en esa frase. El inciso no hace diferencia en cuanto al lugar de trabajo de ese tipo de trabajadores, con lo cual, podría referirse perfectamente a personas que laboran en un hospital, en un EBAI, en el Ministerio de Salud, así como también al personal de los servicios médicos de empresa en cualquier institución pública, por el solo hecho de desempeñar funciones en ciencias de la salud, estarían incluidos. Entonces considero que el problema que podría generar la norma no se refiere al estilo de su redacción ni a la interpretación que se haga de ella, sino que va mucho más allá porque tiene alcances de gran magnitud ya que la aplicación de este artículo en la práctica implicaría una vulneración de la autonomía de la CCSS. Recuérdese que, en atención a ese grado de autonomía administrativa y de gobierno que ostenta la CCSS, el Poder Ejecutivo tiene restringida su injerencia sobre esa institución, de modo que no puede actuar como jerarca de ésta, no puede controlarla limitando su actividad por razones de oportunidad; y, tampoco puede accionar como director de la gestión de ese ente mediante la imposición de lineamientos, lo cual abarca indiscutiblemente todo lo relativo a la gestión del talento humano de la institución.

Bajo este contexto, el artículo 13 inciso b) del proyecto de Ley Marco de Empleo Público, sería inconstitucional porque, si el objetivo general de dicha Ley es unificar la gestión de los servidores públicos bajo un sistema general de empleo público que estaría bajo la dirección de un órgano del Poder Ejecutivo -Mideplán-, entonces resulta contrario al Derecho de la Constitución incluir a la CCSS en ese sistema unificado porque la autonomía constitucionalmente otorgada a la CCSS, la excluiría por completo de cualquier conglomerado normativo que pretendiera imponerle directrices y órdenes a partir del Poder Ejecutivo. La CCSS es la única autorizada para efectuar la gestión y manejo de su talento humano, el cual es uno solo debido al objetivo que persiguen, independientemente del área de trabajo en que se desempeñe cada uno de sus funcionarios. En ese sentido, tan encaminados están a la atención de la salud y de los seguros sociales los empleados del área administrativa, como todos aquéllos cuyo trabajo se desarrolla específicamente en el área de ciencias de la salud. En mi criterio, pretender incluir a unos sí y a otros no en el sistema general de empleo público, no solo implica una vulneración al derecho a la igualdad y no discriminación, sino también fraccionar los objetivos de la institución que se cumplen a través de las labores que realizan sus empleados, aunado al hecho de que el grupo de esos trabajadores que tuviere que estar sometido al sistema genérico de empleo público, estaría expuesto a una vulneración constante del Derecho de la Constitución porque se encontrarían frente a directrices provenientes del Poder Ejecutivo que atentarían contra la autonomía de la CCSS toda vez que, como lo he señalado, no es posible someter a una institución constitucional con un grado de autonomía como el que tiene la CCSS, a directrices, disposiciones, circulares, manuales que emita Mideplán.

• k)Razones adicionales de la magistrada Picado Brenes, sobre el artículo 18 del proyecto en cuanto a los plazos del personal de alta dirección en la CCSS (punto 44 del Por Tanto) El artículo 18 del proyecto de "Ley Marco de Empleo Público” que se tramita en el expediente legislativo n° 21.336, por unanimidad la Sala lo considera inconstitucional por afectar la autonomía política de la CCSS en cuanto a los plazos del personal de alta dirección pública; no obstante lo anterior, debo agregar razones adicionales por las que considero la norma presenta vicios de inconstitucionalidad.

Como ya lo he manifestado, se debe partir que la Caja Costarricense de Seguro Social (CCSS), por disposición constitucional establecida en el artículo 73, goza de autonomía administrativa y de gobierno, lo que significa que, como ente descentralizado funcional, puede establecer las reglas para la selección de su personal, siendo válido en este caso la existencia de un marco normativo especial para su relación estatutaria, que atienda y asegure su grado de autonomía. Ese grado de autonomía le permite, además, auto-administrarse (disponer de sus recursos humanos, materiales y financieros); darse su propia organización interna; la fijación de fines, metas y tipos de medios para realizarlas; la emisión de reglamentos autónomos de servicio o actividad, acorde con las disposiciones normalmente llamadas de política general. Así entonces, como institución autónoma de creación constitucional y con un grado de autonomía mayor (administrativa y de gobierno), se encuentra protegida frente a injerencias del Poder Ejecutivo y de limitaciones a la hora de legislar el Poder Legislativo (quien no puede modificar vía legal su grado de autonomía). De este modo, el Poder Ejecutivo no puede actuar como director ni ubicarse en una relación de jerarquía frente a esta institución, tampoco puede imponerle lineamientos, ni dar órdenes, ni controlar la oportunidad de sus actividades, siendo justamente por esta razón que la Sala ha considerado que algunas de las normas del proyecto de Ley bajo estudio, resultan inconstitucionales al vaciar de contenido el grado de autonomía de gobierno de esta institución, y una de esas normas en lo que al plazo del personal de alta dirección pública se refiere, es el artículo 18.

Obsérvese que ese numeral regula lo relativo al nombramiento y al período de prueba al que se va a someter al personal de alta dirección pública y dispone que ese lapso será de 6 meses, pero además que el nombramiento se efectuará por un máximo de 6 años, con posibilidad de prórroga anual. Si el punto de partida para el análisis de este numeral es el grado de autonomía con que la Constitución Política ha dotado a la CCSS y, como se dijo, éste implica que esa institución puede establecer las reglas para la selección de su personal mediante un marco normativo especial para su relación estatutaria, y que además puede auto-administrarse (disponer de sus recursos humanos, materiales y financieros), darse su propia organización interna, fijar sus fines, metas y tipos de medios para realizarlas así como emitir reglamentos autónomos de servicio o actividad, acorde con las disposiciones de política general, resulta más que evidente que pretender que la CCSS someta a su personal de alta dirección pública a un período de prueba de 6 meses, a nombramientos por un máximo de 6 años y a posibles prórrogas anuales, resultaría abiertamente inconstitucional, toda vez que el grado de autonomía con que cuenta la CCSS no sólo le permite -y le obliga en función de su naturaleza- a regular ese tipo de situaciones propias del recurso humano a su servicio, sino que además implicaría una intromisión del Poder Ejecutivo en sus competencias -constitucionalmente asignadas-, en clara vulneración de la protección con que cuenta frente a injerencias del Poder Ejecutivo y de las limitaciones que el legislador está obligado a respetar, toda vez que no podría modificar por vía legal, ese grado de autonomía institucional. Bajo este marco normativo de rango constitucional, es más que evidente que la CCSS podría determinar o no, si quiere contar con personal denominado de alta dirección pública, y en caso de que decida tenerlo, tiene completa autonomía para establecer qué tipo de períodos de prueba les va a aplicar, por cuáles plazos y qué clase de nombramientos les haría, si lo hace de carácter temporal o permanente, si se admiten prórrogas de esas designaciones o no, entre otros muchos aspectos propios de la gestión de este tipo de recurso humano. No podría entonces el Mideplán, como órgano del Poder Ejecutivo rector en materia de empleo público, imponer a la CCSS directrices o girar órdenes en esta materia como se pretende con el contenido del referido artículo 18.

De igual modo, la autonomía con la que cuenta la CCSS le permite determinar todas las políticas de evaluación del desempeño de sus funcionarios y, por lo tanto, quedará al arbitrio de la CCSS establecer cuáles serán esas políticas en materia del personal de alta dirección pública, como se dijo, si es que la institución decide tenerlo o categorizar a algunos funcionarios bajo esa clasificación. Tampoco podría entonces el Mideplán, contar con algún grado de injerencia en esta área y, en caso de hacerlo, su actuación sería absolutamente contraria al Derecho de la Constitución.

Ahora bien, independientemente de lo anterior, es necesario advertir que el numeral es omiso en establecer cuáles serían las condiciones por las cuales una persona servidora pública no podría cumplir a cabalidad con ese período de prueba.

Por otra parte, si la Constitución Política establece en sus artículos 191 y 192 que los nombramientos en la Administración se harán atendiendo al principio de idoneidad comprobada, no se comprende porqué una persona que ocupe un cargo de alta dirección pública -que no ha sido clasificado como un cargo de confianza-, se le niegue la oportunidad de optar por ese puesto de manera indefinida, en abierta contradicción con la obtención de una plaza por idoneidad. Además, al hacerse una designación por un período de 6 años, dependiendo de la institución y del tipo de trabajo a desempeñar, podría ser un plazo insuficiente para lograr el cumplimiento de las metas propuestas y, en definitiva, alcanzar objetivo final de la Administración que es la eficiencia en la prestación del servicio público y en la utilización del recurso humano, sobre todo cuando se requiere capacitación específica. Considero que todos estos motivos constituyen vicios de inconstitucionalidad adicionales de la norma bajo análisis.

XIII.- Sobre la consulta de violación a la autonomía de las Municipalidades.- 1) Aspectos consultados Los consultantes diputados consideran que los siguientes artículos del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, son violatorios de la autonomía municipal. En concreto, consultan sobre los artículos siguientes, indicados, sea en el encabezado del título general o en el resto del texto del escrito de interposición:

2.c (ámbito de cobertura), 6 (rectoría de Mideplan), 7 (competencias de Mideplan), 9.a (oficinas de Recursos Humanos), 13 (familias de puestos), 14 (reclutamiento y selección), 17 (personal de Alta Dirección), 18 (plazo de prueba y plazo de nombramiento), Los consultantes consideran inconstitucionales estas normas, por cuanto, se viola la autonomía de las Municipalidades. Indican que es inconstitucional sujetar a las Corporaciones Municipales a aplicar y ejecutar las disposiciones de alcance general, directrices y reglamentos que emita el Mideplán en temas relacionados con planificación del trabajo, organización del trabajo, gestión del empleo, gestión del rendimiento o evaluación de desempeño, gestión de la compensación y gestión de las relaciones laborales, la sujeción de las oficinas de recursos humanos al Sistema General de Empleo Público (arts. 6, 7 y 9), la creación de un único régimen de empleo público (art.13), la sujeción al Mideplán en materia de reclutamiento y selección de personal (art.14), incluido el de alta dirección técnica (art.17 y 18).

Antes de proceder al examen de la constitucionalidad de las normas impugnadas, resulta procedente recordar los alcances y limitaciones constitucionales de la autonomía de las municipalidades, conforme lo ha establecido la jurisprudencia constitucional.

• 2)Antecedentes Jurisprudenciales sobre la Autonomía de Gobierno de las Municipalidades Lo primero que se debe indicar es que, el régimen municipal es una modalidad de descentralización territorial, de conformidad con la propia redacción del párrafo primero del artículo 168 constitucional (sentencia n°2006-17113). Las Municipalidades son entes descentralizados, en razón del territorio, que han sido dotadas de un cierto grado de autonomía. Esta autonomía es de segundo grado, mayor que la de las instituciones autónomas, pues además de autonomía administrativa gozan de autonomía de gobierno. Así entonces, una de las mayores garantías que poseen las municipalidades frente al Gobierno Central, es el grado de autonomía que la Constitución les ha asignado. Definida por la jurisprudencia constitucional como autonomía de gobierno, o grado dos de autonomía. Aunque el texto constitucional es muy escueto en cuanto a los alcances y limitaciones de este grado de autonomía, la jurisprudencia constitucional ha dado ciertas definiciones al respecto. Ha dicho que la autonomía municipal contenida en el artículo 170 de la Constitución Política, esencialmente se origina en el carácter representativo por ser un gobierno local (única descentralización territorial del país), encargado de administrar los intereses locales. En cuanto a sus alcances se ha indicado que dicha autonomía incluye la autonomía presupuestaria, la creación de impuestos y darse sus propios planes reguladores. Además, pueden las municipalidades definir sus políticas de desarrollo (planificar y acordar programas de acción) y dictarse su propio presupuesto, en forma independiente y con exclusión de cualquier otra institución del Estado. Las municipalidades crean las obligaciones impositivas locales, en ejercicio de su autonomía, y las someten a la aprobación legislativa que condiciona su eficacia (sentencia n°2000-010136), conforme lo establece el artículo 121.14 constitucional. Los gobiernos locales pueden darse su propia ordenación territorial a través de los planes reguladores pero dicha normativa está subordinada y sometida a la legislación tutelar ambiental. Por ello, la Sala ha venido señalando que debe ser requisito fundamental que, obviamente no atenta contra el principio constitucional de la autonomía municipal, el que todo plan regulador del desarrollo urbano deba contar, de previo a ser aprobado e implementado, con un examen o evaluación de su impacto ambiental (Sentencia n°2012-001315). Por otro lado, en cuanto a los alcances de su competencia material, se ha indicado que, por lo amplio del concepto de “intereses y servicios locales”, debe entenderse que la descentralización territorial del régimen municipal no implica eliminación de las competencias asignadas a otros órganos y entes del Estado. En concreto se dijo que, el grado de autonomía municipal no puede entenderse que se trata de una autonomía plena o ilimitada, pues siempre se encuentra sujeta a ciertos límites:

“… esa autonomía de las Municipalidades otorgadas por el Constituyente en el artículo 170 de la Norma Fundamental, si bien constituye formalmente un límite a las injerencias del Poder Ejecutivo, no puede entenderse que se trata de una autonomía plena o ilimitada, pues siempre se encuentra sujeta a ciertos límites, ya que la descentralización territorial del régimen municipal, no implica eliminación de las competencias asignadas a otros órganos y entes del Estado. Es por ello, que existen intereses locales cuya custodia corresponde a las Municipalidades y junto a ellos, coexisten otros cuya protección constitucional y legal es atribuida a otros órganos públicos, entre ellos el Poder Ejecutivo…” (Sala Constitucional, sentencia n°2007-013577 y sentencia n°2010-020958).

Así por ejemplo, la autonomía municipal no le permite a los ayuntamientos sustraerse de lo que ha sido declarado como un interés de carácter nacional, de lo contrario se pervierte la autonomía territorial transformando a los municipios en micro estados, abstraídos de la dirección intersubjetiva o tutela que pueda ejercer el Estado, a través de los órganos constitucionales (sentencia n°2011-015736).

La autonomía municipal, que “… debe ser entendida como la capacidad que tienen las Municipalidades de decidir libremente y bajo su propia responsabilidad, todo lo referente a la organización de determinada localidad (el cantón, en nuestro caso)” (voto n° 5445-1999), implica que el gobierno local tiene potestad de autonormación y autoadministración, esto quiere decir que pueden dictar sus propios reglamentos para regular su organización interna y los servicios que presta, así como su capacidad de gestionar y promover intereses y servicios locales de manera independiente del Poder Ejecutivo. Asimismo, en la jurisprudencia precitada se ha indicado que no pueden subsistir funciones de ningún ente público que disputen su primacía con las municipalidades, cuando se trata de materia que integra lo local. Para definir lo local o distinguirlo de lo que no lo es, se puede hacer por medio de la ley, o bien, por interpretación jurisprudencial. Así, la plena autonomía municipal es referida, estrictamente a “lo local”, pero no puede crearse un antagonismo entre los intereses y servicios locales con los nacionales, puesto que ambos están llamados a coexistir. Ha dicho este Tribunal que “… en lo atinente a lo local no caben regulaciones de ningún otro ente público, salvo que la ley disponga lo contrario, lo que implica un fundado motivo para dictar la regulación; o lo que es lo mismo, el municipio no está coordinado con la política del Estado y solo por la vía de la ley se puede regular materia que pueda estar vinculada con lo local, pero a reserva que esa norma jurídica resulte razonable, según los fines que se persiguen” (voto n° 5445-1999).

Sobre la autonomía de las municipalidades en materia de empleo público, procede citar el voto n° 02934-1993 de las 15:27 horas del 22 de junio de 1993, en el cual se declaró inconstitucionales las regulaciones impugnadas en las que se establecía la intromisión de la Contraloría General de la República en el orden disciplinario interno de los gobiernos locales. En esa ocasión la Sala consideró que:

“III.- LA ALEGADA VIOLACION A LA AUTONOMIA MUNICIPAL.- Se argumenta que el artículo 18 de la Ley de Enriquecimiento Ilícito de los Servidores Públicos viola los principios establecidos en los artículos 170 y 184 inciso 5 de la Constitución Política, en razón que la norma atenta contra la autonomía municipal, que se debe entender no sólo en el ámbito administrativo, sino también de gobierno.

VI.- Los párrafos cuarto, en especial, y el quinto, son los que han sido cuestionados en la acción. Este último, si bien no es objeto de cuestionamiento en la acción, lo fue en la audiencia oral celebrada. Dispone la norma:

" Para cumplir con el espíritu de esta ley, cuando la Contraloría lo considere necesario, podrá permutar a los auditores de los diferentes entes públicos por el tiempo que ella fije, o los podrá sustituir por un plazo limitado para asignarlos a trabajos de investigación, dentro de la Contraloría o en el sitio que ella les fije".

Esta norma, a juicio de la Sala y de conformidad con lo que señala el artículo 89 de la Ley de la Jurisdicción Constitucional, por conexidad, resulta abiertamente inconstitucional por ser contraria a la Autonomía Municipal, contenida en el artículo 170 de la Constitución Política. La autonomía municipal, que proviene de la propia Constitución Política, esencialmente se origina en el carácter representativo de ser un gobierno local (única descentralización territorial del país), encargado de administrar los intereses locales y por ello las municipalidades pueden definir sus políticas de desarrollo (planificar y acordar programas de acción), en forma independiente y con exclusión de cualquier otra institución del Estado, facultad que conlleva, también, la de poder dictar su propio presupuesto. Esta autonomía política implica, desde luego, la de dictar los reglamentos internos de organización de la corporación, así como los de la prestación de los servicios públicos municipales. Por ello se ha dicho en la doctrina local, que "se trata de una verdadera descentralización de la función política en materia local". Dentro de esta concepción muy general de la autonomía municipal, la norma que se analiza resulta contraria a sus principios, puesto que entendida en su justa dimensión, lo que se señala es ni más ni menos, que el Auditor Municipal deja de ser un funcionario de la Comuna, para depender, jerárquicamente, de la Contraloría General de la República, que puede disponer de él libremente, con prescindencia del criterio de la propia Municipalidad. Esto implica, a todas luces, que el párrafo antes transcrito sea, a juicio de la Sala, inconstitucional y deba, por ello, anularse y eliminarse del ordenamiento jurídico. No lo sería en cambio, si todos los Auditores de los entes públicos, fueran funcionarios de la Contraloría General de la República y dependientes de ésta, que ejercieran sus funciones de control a priori por delegación, como se ha sugerido en algunas ocasiones, pero concepto, éste, que no es objeto de la acción.

VII.- Procede ahora analizar el párrafo que establece :

"La destitución del auditor de cada uno de los ministerios, entidades públicas y empresas públicas de derecho privado, requerirá la aprobación de la Contraloría General de la República".

La autonomía municipal no excluye el control de legalidad, del que la doctrina es unánime en admitir, en las manifestaciones de las autorizaciones y aprobaciones (control a priori y a posteriori, como requisitos de validez y eficacia de los actos, respectivamente), como compatibles con ella. La doctrina costarricense más calificada ha expresado sobre el punto : "No reputamos incompatibles con la autonomía municipal, sino más bien aconsejables, los controles de legalidad con potestades de suspensión, anulación y sustitución, por la Contraloría General de la República, de actos administrativos municipales totalmente reglados, pues ello vendría abonado por la lógica de ese tipo de control y por la conveniencia de frenar los desmanes administrativos antes de la vía judicial, como tal lenta e incumplida". Es decir, que el control que emana de la Contraloría General de la República, que es de origen también constitucional según los textos de sus artículos 183 y 184, no contraría la autonomía municipal, porque su función principal es el control de legalidad de la administración financiera del sector público estatal y municipal, de donde se infiere que en lo que toca a los gobiernos locales, su procedencia tiene sustento en un texto constitucional expreso (artículo 184 inciso 2). Este control se reduce a la verificación del cumplimiento de los presupuestos de legalidad aplicables, prescindiendo de toda alusión a las cuestiones de conveniencia y oportunidad. Así las cosas, estima la Sala que la sola aprobación de la destitución de un auditor municipal, como medida de verificación del cumplimiento de las reglas del debido proceso, no es una medida irrazonable, ni desproporcionada, capaz de violar la integridad administrativa de las Municipalidades. Como una nota del ejercicio de las competencias de control, no estima la Sala que la Contraloría General de la República esté suplantando las competencias municipales. Por el contrario, la ley lo que está señalando, es un procedimiento de verificación de la legalidad de lo actuado que no resulta a nuestro criterio, contrario al artículo 170 de la Constitución Política. Esta norma jurídica, como no requiere de posterior desarrollo para su aplicación a los casos concretos, resulta de obligatorio acatamiento, aún sin la existencia del reglamento, según la inconstitucionalidad que ahora se declara”.

En el mismo sentido, en el voto n° 1691-94 de las 10:48 horas del 8 de abril de 1994 se dispuso que el ejecutivo municipal -ahora alcalde- es el encargado del régimen disciplinario de los Gobiernos Locales, respecto de los funcionarios y empleados que de él dependen, de modo que es quien dicta la resolución de fondo en materia de despidos. Estos criterios fueron reiterados en el voto n° 5445-1999 de las 14:30 horas del 14 de julio de 1999, el cual ha sido mencionado en numerosas sentencias de esta Sala a la fecha. En este voto el Tribunal Constitucional se refirió a la relación de tutela administrativa entre las municipalidades y otras instituciones estatales, bajo formas pactadas de coordinación voluntaria (esto admite la función de control de legalidad y potestades de vigilancia del Estado, así como la emisión de directrices y lineamientos generales), además, a la función disciplinaria, la asignación de funciones a los empleados municipales y a la fijación del salario del Alcalde, con base en las siguientes consideraciones:

“I.- CONCEPTOS GENERALES SOBRE EL RÉGIMEN MUNICIPAL. Puede decirse, en síntesis, que las municipalidades o gobiernos locales son entidades territoriales de naturaleza corporativa y pública no estatal, dotadas de independencia en materia de gobierno y funcionamiento, lo que quiere decir, por ejemplo, que la autonomía municipal involucra aspectos tributarios, que para su validez requieren de la autorización legislativa, la contratación de empréstitos y la elaboración y disposición de sus propios ingresos y gastos, con potestades genéricas..

II.- AUTONOMÍA MUNICIPAL. GENERALIDADES. Gramaticalmente, es usual que se diga que el término "autonomía", puede ser definido como "la potestad que dentro del Estado pueden gozar municipios, provincias, regiones u otras entidades de él, para regir intereses peculiares de su vida interior, mediante normas y órganos de gobierno propios". Desde un punto de vista jurídico-doctrinario, esta autonomía debe ser entendida como la capacidad que tienen las Municipalidades de decidir libremente y bajo su propia responsabilidad, todo lo referente a la organización de determinada localidad (el cantón, en nuestro caso). Así, algún sector de la doctrina ha dicho que esa autonomía implica la libre elección de sus propias autoridades; la libre gestión en las materias de su competencia; la creación, recaudación e inversión de sus propios ingresos; y específicamente, se refiere a que abarca una autonomía política, normativa, tributaria y administrativa, definiéndolas, en términos muy generales, de la siguiente manera: autonomía política: como la que da origen al autogobierno, que conlleva la elección de sus autoridades a través de mecanismos de carácter democrático y representativo, tal y como lo señala nuestra Constitución Política en su artículo 169; autonomía normativa: en virtud de la cual las municipalidades tienen la potestad de dictar su propio ordenamiento en las materias de su competencia, potestad que en nuestro país se refiere únicamente a la potestad reglamentaria que regula internamente la organización de la corporación y los servicios que presta (reglamentos autónomos de organización y de servicio); autonomía tributaria: conocida también como potestad impositiva, y se refiere a que la iniciativa para la creación, modificación, extinción o exención de los tributos municipales corresponde a estos entes, potestad sujeta a la aprobación señalada en el artículo 121, inciso 13 de la Constitución Política cuando así corresponda; y autonomía administrativa: como la potestad que implica no sólo la autonormación, sino también la autoadministración y, por lo tanto, la libertad frente al Estado para la adopción de las decisiones fundamentales del ente. Nuestra doctrina, por su parte, ha dicho que la Constitución Política (artículo 170) y el Código Municipal (artículo 7 del Código Municipal anterior, y 4 del vigente) no se han limitado a atribuir a las municipalidades de capacidad para gestionar y promover intereses y servicios locales, sino que han dispuesto expresamente que esa gestión municipal es y debe ser autónoma, que se define como libertad frente a los demás entes del Estado para la adopción de sus decisiones fundamentales. Esta autonomía viene dada en directa relación con el carácter electoral y representativo de su Gobierno (Concejo y Alcalde) que se eligen cada cuatro años, y significa la capacidad de la municipalidad de fijarse sus políticas de acción y de inversión en forma independiente, y más específicamente, frente al Poder Ejecutivo y del partido gobernante. Es la capacidad de fijación de planes y programas del gobierno local, por lo que va unida a la potestad de la municipalidad para dictar su propio presupuesto, expresión de las políticas previamente definidas por el Concejo, capacidad, que a su vez, es política.

(…)

A. DE LAS RELACIONES DE LAS MUNICIPALIDADES CON LAS DEMÁS INSTITUCIONES ESTATALES Y LA SOCIEDAD.

X.- DE LA OBLIGACIÓN DE COORDINACIÓN CON LAS INSTITUCIONES ESTATALES. las municipalidades pueden compartir sus competencias con la Administración Pública en general, relación que debe desenvolverse en los términos como está definida en la ley (artículo 5 del Código Municipal anterior, artículo 7 del nuevo Código), que establece la obligación de "coordinación" entre la municipalidades y las instituciones públicas que concurran en el desempeño de sus competencias, para evitar duplicaciones de esfuerzos y contradicciones, sobre todo, porque sólo la coordinación voluntaria es compatible con la autonomía municipal por ser su expresión. En otros términos, la municipalidad está llamada a entrar en relaciones de cooperación con otros entes públicos, y viceversa, dado el carácter concurrente o coincidente -en muchos casos-, de intereses en torno a un asunto concreto. (…) Como no hay una relación de jerarquía de las instituciones descentralizadas, ni del Estado mismo en relación con las municipalidades, no es posible la imposición a éstas de determinadas conductas, con lo cual surge el imprescindible "concierto" interinstitucional, en sentido estricto, en cuanto los centros autónomos e independientes de acción se ponen de acuerdo sobre ese esquema preventivo y global, en el que cada uno cumple un papel con vista en una misión confiada a los otros. Así, las relaciones de las municipalidades con los otros entes públicos, sólo pueden llevarse a cabo en un plano de igualdad, que den como resultado formas pactadas de coordinación, con exclusión de cualquier forma imperativa en detrimento de su autonomía, que permita sujetar a los entes corporativos a un esquema de coordinación sin su voluntad o contra ella; pero que sí admite la necesaria subordinación de estos entes al Estado y en interés de éste (a través de la "tutela administrativa" del Estado, y específicamente, en la función de control la legalidad que a éste compete, con potestades de vigilancia general sobre todo el sector).

(…) Esta obligación de coordinación entre las instituciones del Estado y las municipalidades está implícita en la propia Constitución Política; (…)

“E. RÉGIMEN DISCIPLINARIO MUNICIPAL.

XXXVII.- DEL RÉGIMEN DISCIPLINARIO MUNICIPAL Y EL FUNCIONARIO A QUIEN LE CORRESPONDE SU DIRECCIÓN.

(…) Al implicar el régimen disciplinario una relación de subordinación del empleado público para con la institución para la que labora, queda en evidencia, que es a esa institución a la que le corresponde su dirección y aplicación directamente, sin interferencias de otras dependencias administrativas. El caso del régimen disciplinario de las municipalidades no es una excepción, en tanto corresponde al Ejecutivo Municipal -ahora Alcalde- la función disciplinaria de los funcionarios y empleados del los gobiernos locales que no dependan directamente del Concejo, en virtud de lo dispuesto en los artículos 141, 142, 148, 150 y 154 del Código Municipal anterior, artículos 17 inciso k) del Código Municipal vigente; de manera que el personal de las municipalidades es nombrado y administrado por este funcionario, salvo los que corresponden directamente al Concejo (auditor o contador y al Secretario del Concejo, -incisos f) del artículo 13 del Código Municipal, número 7794), según lo dicho en sentencia número 1691-94, de las diez horas cuarenta y ocho minutos del ocho de febrero de mil novecientos noventa y cuatro. Asimismo, en sentencia número 1355-96, de las doce horas dieciocho minutos del veintidós de marzo de mil novecientos noventa y seis, se dijo respecto del Ejecutivo Municipal XXXIX.- DE LA DEFINICIÓN DE FUNCIONES DE LOS EMPLEADOS MUNICIPALES. En los Considerandos anteriores se ha indicado que la competencia organizativa de las dependencias municipales es expresión de la autonomía administrativa de que gozan las corporaciones municipales. En este sentido, al ser el Alcalde Municipal -antes Ejecutivo Municipal- el administrador general de las dependencias locales, es a quien corresponde la asignación de funciones de sus empleados, conforme lo disponía el artículo 142 del Código Municipal anterior:

XL.- DE LA FIJACIÓN DE SALARIOS. El artículo 76 del Código Municipal es impugnado en cuanto establece una categorización de las municipalidades en razón del presupuesto y confiere al Instituto de Fomento y Asesoría Municipal, en coordinación con la Contraloría General de la República, la tarea para fijar los salarios de los entonces Ejecutivos Municipales y sus aumentos en relación con los presupuestos de las mismas, lo cual se estima violatorio de la autonomía municipal y el principio de razonabilidad. Efectivamente, conforme a todo lo dicho anteriormente en esta sentencia, esta disposición es absolutamente inconstitucional, en abierta violación de la autonomía administrativa de las municipalidades definida en el artículo 170 constitucional, en tanto la fijación del salario de su Alcalde (antes Ejecutivo) es materia propia de su gobierno y administración, debiendo corresponder a sus autoridades su determinación, conforme a las funciones que tiene encomendadas, lo cual, en todo caso, debe estar en relación proporcional con el presupuesto de la municipalidad, tal y como se define en el artículo 20 del Código Municipal, número 7794. En virtud de lo cual, la frase del párrafo tercero del artículo 76 que dice "La Contraloría General de la República y el Instituto de Fomento y Asesoría Municipal fijarán, anualmente, los salarios de los ejecutivos municipales, con base en el monto de los presupuestos municipales a que se refiere este artículo"; resulta inconstitucional.(…)”.

El criterio jurisprudencial emitido en la sentencia parcialmente citada ha sido reiterado y utilizado para resolver numerosos asuntos a la fecha, relacionados con autonomía municipal, potestad tributaria, policía municipal, materia ambiental, manejo de desechos, bienes municipales y otros (ver votos números 2001-04841 de las 15:02 del 6 de junio de 2001, 2002-05832 de las 08:58 horas del 14 de junio de 2002, 2005-02594 de las 14:58 horas del 9 de marzo de 2005, 17113-2006 de las 14:51 horas del 28 de noviembre de 2006, 2007-13577 de las 14:40 horas del 19 de septiembre de 2007, 2007-15206 de las 11:48 horas del 19 de octubre de 2007, 2011-004205 de las 17:49 horas del 29 de marzo de 2011, 04621-2016 de las 16:20 horas del 5 de abril de 2016, entre muchos otros. Sobre potestad tributaria y patentes véanse los votos números 9677-2001 de las 11:26 horas del 26 de septiembre de 2001, 2001-10153 de las 14:44 horas del 10 de octubre de 2001 y ° 2005-02910 de las 15:59 horas del 15 de marzo de 2005. Sobre tasas municipales y policía municipal votos números 2001-01613 de las 14:54 horas del 27 de febrero de 2001 y 2001-01614 de las 14:55 del 27 de febrero de 2001. Sobre las competencias municipales en materia ambiental votos números n° 2015-016362 de las 09:30 horas del 21 de octubre de 2015 y 2016-004621 de las 16:20 horas del 5 de abril de 2016. Sobre competencias municipales en manejo de desechos el voto n° 13577-2007 de las 14:40 horas del 19 de septiembre de 2007). Entre estos votos es oportuno destacar el voto n° 2007-13577 de las 14:40 horas del 19 de septiembre de 2007, en cuanto deja claro que a pesar de la autonomía que ostentan las municipalidades, no se pueden abstraer de la necesaria coordinación y sintonía que deben mantener con otras instituciones del Estado, a fin de lograr cumplir con el plan nacional de desarrollo del país. Concretamente se dijo en esa oportunidad:

“Ahora bien, esa autonomía de las Municipalidades otorgadas por el Constituyente en el artículo 170 de la Norma Fundamental, si bien constituye formalmente un límite a las injerencias del Poder Ejecutivo, no puede entenderse que se trata de una autonomía plena o ilimitada, pues siempre se encuentra sujeta a ciertos límites, ya que la descentralización territorial del régimen municipal, no implica eliminación de las competencias asignadas a otros órganos y entes del Estado. Es por ello, que existen intereses locales cuya custodia corresponde a las Municipalidades y junto a ellos, coexisten otros cuya protección constitucional y legal es atribuida a otros órganos públicos, entre ellos el Poder Ejecutivo. Por tal razón, ha reconocido esta Sala que cuando el problema desborda la circunscripción territorial a la que están supeditados los gobiernos locales, las competencias pueden ser ejercidas por instituciones nacionales del Estado, pues el accionar de las primeras quedan integradas dentro de los lineamientos generales que se han trazado dentro del plan nacional de desarrollo, sin que ello signifique una violación a su autonomía”.

En cuanto a las potestades del legislador para desarrollar el marco jurídico funcional del alcalde, la Sala ha señalado que esto obedece a los principios de oportunidad y conveniencia, cuyos límites están en la razonabilidad del acto legislativo, en este sentido, en el voto n° 2008-007685 de las 14:48 horas del 7 de mayo de 2008, se dispuso que:

“II.- La jurisprudencia de esta Sala sobre la autonomía municipal. El reclamo del Alcalde Municipal de Aguirre debe dilucidarse dentro del marco jurisprudencial que esta Sala Constitucional ha desarrollado sobre el tema de la autonomía municipal, la cual ha sido entendida como la capacidad que tienen las municipalidades de decidir libremente, y bajo su propia responsabilidad, todo lo relacionado con la organización de determinada localidad.

(…) Como se evidencia de la anterior cita jurisprudencial, la autonomía normativa implica la capacidad municipal para dictar su propio ordenamiento normativo (entendido este respecto de los reglamentos autónomos de organización y de servicio), pero supeditado a lo que la Ley establezca.

III.-(…), el constituyente delegó en el legislador ordinario desarrollar el marco jurídico funcional del Alcalde Municipal, con ello la Ley puede restringir o mejorar la figura de los Vice-Alcaldes como colaboradores del Alcalde en sus funciones. De conformidad con lo establecido por la norma constitucional, el desarrollo legislativo que se haga obedece a los principios de oportunidad y conveniencia del legislador, cuyos únicos límites están en la razonabilidad del acto legislativo. (el destacado no corresponde al original).

Finalmente, resulta importante resaltar como antecedente jurisprudencial la sentencia n° 11406-2017 de las 10:17 horas del 19 de julio de 2017, en la cual se impugnó varias normas de la Ley de Aguas porque establecían que el inspector de aguas era un funcionario nombrado por el MINAE, pero que al municipio le correspondía asumir el costo de su salario. Al respecto se resolvió que:

“De esta manera, en este orden argumentativo, podemos afirmar que la figura del inspector cantonal de aguas encuentra sustento en esta visión que se viene sosteniendo en esta sentencia respecto a que el agua no es un asunto de interés local que califique dentro de la autonomía municipal, pues no es meramente local -sino más bien de interés nacional-, ni susceptible de ser sometido a criterios de territorialidad. Por ende, este inspector actúa en la lógica de coordinación entre las instituciones públicas en materia ambiental, ya que es un funcionario subordinado al MINAE, órgano que ostenta la rectoría en materia del recurso hídrico, pero mantiene una relación cercana con los municipios, pues es pagado por ellos con un canon específico que prevé la normativa. En este sentido, no es posible afirmar que esta figura lesione la autonomía municipal, ya que, como se mencionó, en temas de carácter nacional, como el agua, ésta autonomía no es una autonomía plena o ilimitada, pues siempre se encuentra sujeta a ciertos límites, como por ejemplo cuando entran en juego principios y derechos constitucionales como el derecho al agua. Asimismo, tampoco puede alegarse que infrinja la competencia presupuestaria de la Municipalidad, pues, como recién se indicó, en la normativa está previsto un canon específico para su financiamiento. De este modo, es que este Tribunal considera que no lleva razón ni el alcalde accionante, ni la Procuraduría General de la República sobre una posible inconstitucionalidad sobreviniente, ya que la figura del inspector cantonal de aguas no lesiona la autonomía municipal consagrada en la Constitución Política, por lo que se trata de una figura conforme al Derecho de la Constitución. En virtud de lo expuesto, lo que corresponde es declarar sin lugar la acción.”.

En conclusión, los gobiernos locales son "una verdadera descentralización de la función política en materia local". El grado de autonomía de las municipalidades, cual es autonomía administrativa y de gobierno, les permite auto-administrarse (disponer de sus recursos humanos, materiales y financieros), realizar sus competencias legales por sí mismas, darse su propia organización interna. Pero además, en cuanto a la autonomía de gobierno, implica que pueden fijarse sus fines, metas y medios, también, pueden emitir reglamentos autónomos de servicio. Asimismo, pueden definir sus políticas de desarrollo (planificar y acordar programas de acción), crear impuestos (que deberán ser autorizados vía legal) y darse su propia ordenación territorial a través de los planes reguladores. Pero igual tienen la limitación de que no pueden sustraerse de aquello que ha sido declarado de interés nacional.

• 3)Análisis concreto de lo consultado Sobre el artículo 2.c.- Ámbito de cobertura respecto de las Municipalidades (redacta magistrada Picado Brenes) Los consultantes acusan que el inciso c) del artículo 2 del proyecto de ley consultado, en el tanto incluye a las municipalidades dentro de su ámbito de aplicación, lesiona la autonomía de gobierno de estos gobiernos locales. Al respecto, en el mismo sentido en que se ha sostenido la constitucionalidad per se de esta norma, respecto de otras instituciones, el artículo 2 inciso c) no es por sí mismo inconstitucional, en cuanto incluye a las municipalidades en un marco regulatorio general de empleo público, pero sí es inconstitucional por sus efectos puesto que algunas de las normas de este proyecto de ley vacían de contenido su autonomía de gobierno, tal como se verá en concreto en los apartados siguientes. Retomando lo que se expuso supra, es plausible sujetar a todos los poderes e instituciones del Estado a un único estatuto de empleo público. Sin embargo, en la medida en que tal sujeción vaya más allá de principios generales e incursione en materia propia de la autonomía de gobierno de las municipalidades, sí es inconstitucional tal sujeción por sus efectos, pues, no es posible someter a los gobiernos locales a directrices, disposiciones, circulares, manuales que emita Mideplán, ni tampoco establecer por ley obligaciones que son de ámbito de su grado de autonomía. Recuérdese que las Municipalidades son entes descentralizados, en razón del territorio, que han sido dotadas de un cierto grado de autonomía. Así entonces, una de las mayores garantías que poseen las municipalidades frente al Gobierno Central, es el grado de autonomía que la Constitución les ha asignado, cual es, autonomía política o de gobierno, o grado dos de autonomía. En cuanto a sus alcances se ha indicado que dicha autonomía incluye la autonomía presupuestaria, la creación de impuestos y darse sus propios planes reguladores. Además, pueden las municipalidades definir sus políticas de desarrollo (planificar y acordar programas de acción), en forma independiente y con exclusión de cualquier otra institución del Estado, facultad que conlleva, también la de poder dictar su propio presupuesto. Si bien es cierto, el grado de autonomía municipal no puede entenderse que se trata de una autonomía plena o ilimitada, pues siempre se encuentra sujeta a ciertos límites, es lo cierto que, tienen un grado de protección especial, que nace de su autonomía política, y que hace que la sujeción de las municipalidades a este proyecto de ley general de empleo público sea inconstitucional por sus efectos. En conclusión, el inciso c) del artículo 2 del proyecto es inconstitucional por sus efectos.

Sobre el artículo 6.- Potestad de Dirección de Mideplán respecto de las Municipalidades (redacta magistrado Castillo Víquez) Los artículos 169 y 170 de la Constitución Política les asignan a las municipalidades velar por los intereses y servicios locales, para lo cual las dota de autonomía política. Para tales fines, como fácilmente puede deducirse, lo referente a esa materia -fijación de metas y fines-, tiene como consecuencia lógica, desde la óptica jurídica, que el Poder Ejecutivo o uno de sus órganos –Mideplán- no pueden ejercer la potestad de dirección -dictarle directrices- o la potestad reglamentaria. Esta postura es constitucionalmente válida en lo que atañe a la materia de empleo público, concretamente aquel funcionariado indispensable para cumplir con los fines constitucionalmente asignados, así como el personal administrativo, profesional y técnico, que las máximas autoridades de las Corporaciones Municipales definan, de forma exclusiva y excluyente. Significa lo anterior, que algunos empleados públicos de esas corporaciones, los que realizan funciones administrativas básicas, auxiliares, que sí podrían quedar bajo la rectoría del Poder Ejecutivo o Mideplán. Adoptando como hoja de ruta estas premisas, después de pasar revista por la jurisprudencia de este Tribunal, se hará un análisis de las normas que se consultan.

De conformidad con los artículos 191 y 192 de la Constitución Política, que se incluya a las municipalidades dentro del proyecto de Ley Marco de Empleo Público no es inconstitucional. Por el contrario, el constituyente permite que haya varios o un solo estatuto que regule las relaciones entre el Estado y los servidores públicos. Esto, siempre y cuando se reconozca en esa normativa el ámbito de autonomía que tienen los gobiernos locales, conforme lo establece el artículo 170 constitucional y lo ha desarrollado esta Sala Constitucional en la jurisprudencia precitada.

La autonomía municipal, que “(…) debe ser entendida como la capacidad que tienen las Municipalidades de decidir libremente y bajo su propia responsabilidad, todo lo referente a la organización de determinada localidad (el cantón, en nuestro caso)” (voto No. 5445-1999), implica que el gobierno local tiene potestad de autonormación y autoadministración, esto quiere decir que pueden dictar sus propios reglamentos para regular su organización interna y los servicios que presta, así como su capacidad de gestionar y promover intereses y servicios locales de manera independiente del Poder Ejecutivo. No obstante, esta autonomía normativa está supeditada a lo que la Ley establezca.

Asimismo, en la jurisprudencia precitada se ha indicado que no pueden subsistir funciones de ningún ente público que disputen su primacía con las municipalidades, cuando se trata de materia que integra lo local. Para definir lo local o distinguirlo de lo que no lo es, se puede hacer por medio de la ley, o bien, por interpretación jurisprudencial. Así, la plena autonomía municipal es referida, estrictamente a “lo local”, pero no puede crearse un antagonismo entre los intereses y servicios locales con los nacionales, puesto que ambos están llamados a coexistir. Ha dicho este Tribunal que “… en lo atinente a lo local no caben regulaciones de ningún otro ente público, salvo que la ley disponga lo contrario, lo que implica un fundado motivo para dictar la regulación; o lo que es lo mismo, el municipio no está coordinado con la política del Estado y solo por la vía de la ley se puede regular materia que pueda estar vinculada con lo local, pero a reserva que esa norma jurídica resulte razonable, según los fines que se persiguen” (voto No. 5445-1999).

En relación con el artículo 6, resulta inconstitucional, pues no se excluye de la potestad de dirección a los funcionarios que participan de las funciones administrativas vinculadas a los fines constitucionalmente asignados, y quienes ejercen cargos de alta dirección política, así como todo aquel funcionariado administrativo, profesional y técnico, que establezcan los máximos órganos de las corporaciones municipales. Ergo, solo resulta constitucional la norma en lo que atañe al personal de administrativo básico, auxiliar, que estaría en la familia de puestos de conformidad con el numeral 13, inciso a) del proyecto de ley.

Sobre el artículo 7.- Competencias de Mideplán respecto de las Municipalidades (redacta magistrado Castillo Víquez) En relación con el artículo 7, se mantiene el mismo criterio vertido en relación con el numeral 6, además somete a la potestad de reglamentación de Mideplán en materias donde hay una potestad exclusiva y excluyente a favor de las municipalidades para alcanzar el fin constitucional asignado por el constituyente originario.

Sobre el artículo 9.- Oficina de Recursos Humanos en las Municipalidades (redacta magistrada Brenes Picado) La norma consultada establece lo siguiente:

“ARTÍCULO 9- Funciones de las administraciones activas a) Las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos, de las instituciones incluidas en el artículo 2 de la presente ley, seguirán realizando sus funciones de conformidad con las disposiciones normativas atinentes en cada dependencia pública.

Asimismo, aplicarán y ejecutarán las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que el Ministerio de Planificación Nacional y Política Económica (Mideplán) remita a la respectiva institución, según la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, y el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

• b)Es responsabilidad de las oficinas, los departamentos, las áreas, las direcciones, las unidades o las denominaciones homólogas de gestión de recursos humanos elaborar y aplicar las pruebas de conocimientos, competencias y psicométricas, para efectos de los procesos de reclutamiento y selección de personal, efectuar los concursos internos y externos por oposición y méritos, los cuales deberán cumplir siempre al menos con los estándares que establezca la Dirección General del de Servicio Civil para cada puesto, según su ámbito de competencia, y los lineamientos que se emitan según el artículo 46 de la Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

Además, incorporar dichos concursos en la oferta de empleo público de la Administración Pública y verificar que las personas servidoras públicas reciban la inducción debida sobre los deberes, las responsabilidades y las funciones del puesto, así como los deberes éticos de la función pública generales y particulares de la institución y puesto.

• c)Las oficinas de gestión institucional de recursos humanos, de ministerios e instituciones u órganos adscritos bajo el ámbito de aplicación del Estatuto de Servicio Civil, son dependencias técnicas de la Dirección General de Servicio Civil que, para todos los efectos, deberá coordinar la elaboración de las pruebas de reclutamiento y selección de personal con tales oficinas y desempeñar sus funciones de asesoramiento, capacitación y acompañamiento técnico.” Tal como se observa, el artículo 9 consultado establece ciertas funciones para todas las oficinas, departamentos, áreas, direcciones o las unidades de recursos humanos, de todas las instituciones incluidas en el proyecto, en cuenta, recursos humanos de todas las municipalidades. Así entonces, en lo que se refiere propiamente a la consulta realizada en cuanto a los gobiernos locales, el segundo párrafo del inciso a) le impone a todos los departamentos de recursos humanos que apliquen y ejecuten las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que Mideplán le remita. Lo cual, implicaría que un órgano del Poder Ejecutivo, como lo es Mideplán, le imponga a estos entes locales con autonomía política, la aplicación y ejecución de sus disposiciones, directrices y reglamentos, y en materias que son de resorte exclusivo de las municipalidades, tal como lo es la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación o salarios y la gestión de las relaciones laborales. Siendo claramente tal obligación a la dirección de recursos humanos de las municipalidades una violación a su autonomía política, conforme los alcances que la jurisprudencia constitucional le ha dado. Recuérdese que, la autonomía municipal, contenida en el artículo 170 de la Constitución Política, esencialmente se origina en el carácter representativo por ser un gobierno local (única descentralización territorial del país), encargado de administrar los intereses locales. El gobierno local tiene potestad de autonormación y autoadministración, esto quiere decir que pueden dictar sus propios reglamentos para regular su organización interna y los servicios que presta, así como su capacidad de gestionar y promover intereses y servicios locales de manera independiente del Poder Ejecutivo. Es claro, entonces que el Poder Ejecutivo no puede actuar como director o en una relación de jerarquía frente a las municipalidades, y no puede imponerle lineamientos, ni dar órdenes, ni controlar la oportunidad de sus actividades. Por ello, resulta inconstitucional el artículo 9 en cuestión por pretender someter a los departamentos de recursos humanos de los gobiernos locales a aplicar y ejecutar las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales, que Mideplán le remita.

Sobre el artículo 13.- Familia de Puestos respecto de las Municipalidades (redacta magistrado Castillo Víquez) Sobre el artículo 13 es inconstitucional, por no crear una familia de puestos de los empleados municipales y, por consiguiente, los incluye a todos en el Servicio Civil. No es posible pasar por alto que el Código Municipal, a partir del numeral 124 al 161 inclusive, contiene el Título V, que regula la relación de los servidores municipales y las administraciones públicas locales de forma pormenorizada, por un lado, y, el numeral 50 del proyecto de ley que establece que las derogatorias expresas ni siquiera hacen referencia a las normas que se encuentran en el citado Código, ni tampoco se hacen las modificaciones en el artículo 49 del proyecto consultado.

Sobre el artículo 14.- Reclutamiento y selección en las Municipalidades (redacta magistrada Picado Brenes) Los consultantes refieren que se lesiona la autonomía política de las Municipalidades, al pretender someterla a las disposiciones que emite un órgano del Poder Ejecutivo, en lo relativo al reclutamiento y selección de su personal. El ordinal 14 en cuestión, dispone lo siguiente:

“ARTÍCULO 14- Reclutamiento y selección El reclutamiento y la selección de las personas servidoras públicas de nuevo ingreso se efectuará con base en su idoneidad comprobada, para lo cual el Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá, con absoluto apego a la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, las disposiciones de alcance general, las directrices y los reglamentos, según la respectiva familia de puestos.

En los procesos de reclutamiento y selección no podrá elegirse a un postulante que se encuentre en alguna de las siguientes situaciones:

• a)Estar ligado por parentesco de consanguinidad o de afinidad en línea directa o colateral, hasta tercer grado inclusive, con la jefatura inmediata ni con las personas superiores inmediatas de esta en la respectiva dependencia.
• b)Encontrarse enlistada en el registro de personas inelegibles de la plataforma integrada de empleo público.” Tal y como ya fue debidamente acreditado, conforme lo dispuesto en los ordinales 2 y 13 del proyecto de ley, y según lo establecido en este artículo 14, todas las Municipalidades se verían sujetas a las disposiciones de alcance general, las directrices y los reglamentos que emita Mideplán en relación con el reclutamiento y la selección del personal de nuevo ingreso, lo cual deviene en inconstitucional. Esta Sala ha dicho que la autonomía municipal “implica la libre elección de sus propias autoridades; la libre gestión en las materias de su competencia; la creación, recaudación e inversión de sus propios ingresos; y específicamente, se refiere a que abarca una autonomía política, normativa, tributaria y administrativa.” (voto n° 5445-1999). Por ello, “las relaciones de las municipalidades con los otros entes públicos, sólo pueden llevarse a cabo en un plano de igualdad, que den como resultado formas pactadas de coordinación, con exclusión de cualquier forma imperativa en detrimento de su autonomía, que permita sujetar a los entes corporativos a un esquema de coordinación sin su voluntad o contra ella; pero que sí admite la necesaria subordinación de estos entes al Estado y en interés de éste (a través de la "tutela administrativa" del Estado, y específicamente, en la función de control la legalidad que a éste compete, con potestades de vigilancia general sobre todo el sector).” Es decir, se admite la coordinación y la tutela administrativa del Estado en cuanto al control de legalidad, pero no, en cuanto, un órgano del Poder Ejecutivo como lo es Mideplán pueda emitir disposiciones de alcance general, directrices y reglamentos, a las Municipalidades para sus procesos de reclutamiento y selección. En ese sentido, resulta inválida cualquier intromisión externa de otro poder en los aspectos propios de los gobiernos locales, que lesione su autonomía. Bajo ese entendido, no es posible admitir que un órgano del Poder Ejecutivo, en este caso Mideplán, le imponga a las Municipalidades, disposiciones relativas a los procesos de reclutamiento y selección de su personal, materia que, tal y como se ha señalado, es consustancial al grado de autonomía de la que gozan estos gobiernos locales. En consecuencia, tal ordinal contiene un vicio de inconstitucionalidad, en tanto resulte aplicable a las Municipalidades.

Sobre el artículo 17.- Puestos de Alta Dirección en las Municipalidades (redacta magistrada Picado Brenes) La norma consultada establece lo siguiente:

“ARTÍCULO 17- Personal de la alta dirección pública El Ministerio de Planificación Nacional y Política Económica (Mideplán) emitirá las disposiciones de alcance general, las directrices, y los reglamentos, en materia del personal de la alta dirección pública, que sean acordes con la Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, para dotar a la Administración Pública de perfiles con integridad y probada capacidad de gestión, innovación y liderazgo, para procurar el mejoramiento de la prestación de bienes y servicios públicos. (…)” Los consultantes señalan la lesión a la autonomía de gobierno de las Municipalidades, por cuanto en esta norma se dispone que, tratándose de puestos de alta dirección será Mideplán quien emita las disposiciones de alcance general, directrices y reglamentos al respecto. Sobre esta consulta, en el mismo sentido en que esta Sala ha venido resolviendo estos aspectos, la injerencia de este Ministerio, que es un órgano del Poder Ejecutivo, emitiendo disposiciones de alcance general, directrices y reglamentos a las municipalidades en materia de los puestos de alta dirección, resulta violatorio de su autonomía de gobierno. Recuérdese que esta Sala ha indicado que, “las municipalidades son gobiernos representativos con competencia sobre un determinado territorio (cantón), con personalidad jurídica propia y potestades públicas frente a sus munícipes (habitantes del cantón); operan de manera descentralizada frente al Gobierno de la República, y gozan de autonomía constitucionalmente garantizada y reforzada que se manifiesta en materia política, al determinar sus propias metas y los medios normativos y administrativos en cumplimiento de todo tipo de servicio público para la satisfacción del bien común en su comunidad.” (sentencia n°5445-1999). Nótese que, este tipo de puestos son de gran relevancia para el fiel cumplimiento de la administración de los intereses y servicios locales, que deben estar particularmente protegidos de la injerencia del Ejecutivo, y que requieren la estabilidad del personal necesaria para un adecuado desempeño del cargo, lo cual es incompatible con una subordinación a las disposiciones que emita al respecto el Mideplán, como lo dispone la norma en cuestión. Por ende, se considera existe un vicio de inconstitucionalidad en el artículo 17 objeto de consulta, en los términos expuestos.

Sobre el artículo 18.- Plazos del Personal de Alta Dirección en las Municipalidades (redacta magistrada Picado Brenes) En criterio de los consultantes, el ordinal 18 resulta inconstitucional, por cuanto incide en materia que es propia de la competencia de las municipalidades, al establecer que, tratándose de puestos de alta dirección técnica, el nombramiento será por 6 años con un período de prueba de 6 meses, prorrogables anualmente, sujetas a la evaluación de desempeño. El artículo 18 consultado dispone lo siguiente:

“ARTÍCULO 18- Nombramiento y período de prueba de la alta dirección pública Toda persona servidora pública, que sea nombrada en puestos de alta dirección pública, estará a prueba durante el período de seis meses y su nombramiento se efectuará por un máximo de seis años, con posibilidad de prórroga anual, la cual estará sujeta a los resultados de la evaluación del desempeño. (…)” Sobre este particular, la regulación de aspectos relativos al nombramiento y selección de personal, tal como también ocurre con los puestos de alta dirección técnica, el período de prueba, plazo o condiciones de prórroga de los nombramientos, son regulaciones propias y atinentes a la autonomía política de los gobiernos locales. Se entiende que los puestos de alta dirección técnica, definidos por ellas mismas, son puestos estratégicos de gran importancia para su debida organización y atención de los intereses y servicios locales. Por ello y conforme a los fines propios de las municipalidades, es a ellas a quienes corresponde valorar las necesidades de los servicios que prestan y determinar las condiciones en que deben ser ocupados esos puestos, para dar cumplimiento a los fines constitucionales que le han sido asignados, en respeto del grado de autonomía reconocido, siempre y cuando atienda al principio de idoneidad. En su caso, por ejemplo, la conveniencia del período de nombramiento de esos puestos o las condiciones de prórroga podrían estar sujetas a una condición de mayor estabilidad en el puesto como la garantizada en el ordinal 192 constitucional. Todo de acuerdo a su normativa interna, y no, a una normativa genérica como la que se pretende en este proyecto de ley. La definición de tales condiciones es competencia exclusiva los gobiernos locales. De modo que, en los términos en que está dispuesto el artículo 18 consultado, contiene un vicio de inconstitucionalidad, por violentar la autonomía política de las municipalidades, a quienes les corresponde de manera exclusiva la definición de las condiciones en que se deben desempeñar sus puestos de alta dirección.

• 4)Conclusión Analizados todos los aspectos consultados en cuanto a los artículos 2 (inciso c), 6, 7, 9 (segundo párrafo del inciso a), 13, 14, 17 y 18 del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación a la autonomía de gobierno de las municipalidades, consagrada constitucionalmente.

Tales normas someten a las Municipalidades a una relación de dirección y sujeción a un órgano del Poder Ejecutivo (Mideplán) en materia de empleo público, en violación de la autonomía de gobierno o política, resguardada constitucionalmente para las Municipalidades. Esos artículos se refieren a los siguientes temas:6 (rectoría del Sistema General de Empleo Público a cargo de Mideplán), 7 (amplias competencias de Mideplán para convertirlo en una especie de superior jerarca con potestades normativas sobre todo el aparato estatal en materia de empleo público), 9 (la sujeción y el sometimiento de las oficinas de recursos humanos a Mideplán y a la Dirección General de Servicio Civil), 13 (sobre un único régimen general de empleo público conformado por ocho familias), 14 (reclutamiento y selección con base en disposiciones normativas de Mideplán), 17 y 18 (personal de alta dirección pública sometidos a un único plazo de periodo de prueba y un único plazo de nombramiento). Todo ello resulta claramente violatorio de la autonomía de las municipalidades, pues tales normas suponen una especie de relación de rectoría y jerarquía con Mideplán. Además, cuando incluso esta autonomía supone un resguardo frente al legislador, quien no puede incursionar en materias propias de la autonomía municipal.

• 5)Razones y notas sobre la consulta en cuanto a las Municipalidades a) Nota del magistrado Rueda Leal en cuanto a la inclusión de las municipalidades en el numeral 2 inciso c) del proyecto consultado.

Destaco que la inconstitucionalidad de este ordinal se da por sus efectos, visto que es necesario visualizarlo en la sistematicidad del articulado para comprender cómo se afecta la autonomía de los gobiernos locales. Tal como señalo en otras partes de esta resolución, la determinación puntual de las consecuencias jurídicas, en caso de que llegara a incorporarse este proyecto en el ordenamiento jurídico, será desarrollada por la jurisprudencia al analizar su aplicación práctica. Con respecto a las municipalidades, los intereses locales cobrarán especial relevancia en tal aplicación.

• b)Nota separada de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 2 inciso c) En el caso concreto, por unanimidad, la Sala ha declarado que el art. 2 inciso c) consultado es inconstitucional por pretender incluir a las municipalidades dentro del ámbito de cobertura del proyecto de ley marco de empleo público.

A tal efecto quisiera puntualizar que, a partir de las disposiciones constitucionales, resulta claro que las corporaciones municipales son entes descentralizados en razón del territorio, que han sido dotadas de autonomía administrativa y de gobierno. La autonomía municipal contenida en el art. 170 de la Constitución Política se origina en el carácter representativo, por ser un gobierno local (única descentralización territorial del país), encargado de administrar los intereses y servicios locales de cada cantón. Conviene citar textualmente lo dispuesto en el arts. 168, 169 y 170 de la Constitución Política, que regulan lo relativo al régimen municipal:

“Art.168.- Para los efectos de la Administración Pública, el territorio nacional se divide en provincias; éstas en cantones y los cantones en distritos. La ley podrá establecer distribuciones especiales.

La Asamblea Legislativa podrá decretar, observando los trámites de reforma parcial a esta Constitución, la creación de nuevas provincias, siempre que el proyecto respectivo fuera aprobado de previo en un plebiscito que la Asamblea ordenará celebrar en la provincia o provincias que soporten la desmembración.

La creación de nuevos cantones requiere ser aprobada por la Asamblea Legislativa mediante votación no menor de los dos tercios del total de sus miembros.

Art. 169.- La administración de los intereses y servicios locales en cada cantón, estará a cargo del Gobierno Municipal, formado de un cuerpo deliberante, integrado por regidores municipales de elección popular, y de un funcionario ejecutivo que designará la ley.

Art. 170.- Las corporaciones municipales son autónomas. En el Presupuesto Ordinario de la República, se les asignará a todas las municipalidades del país una suma que no será inferior a un diez por ciento (10%) de los ingresos ordinarios calculados para el año económico correspondiente.

La ley determinará las competencias que se trasladarán del Poder Ejecutivo a las corporaciones municipales y la distribución de los recursos indicados.” Esas normas además se deben examinar con lo señalado en los arts. 121 inciso 13 (que señala que corresponde a la Asamblea Legislativa autorizar los impuestos municipales) y el 175 que ordena que las municipalidades dictarán sus presupuestos ordinarios o extraordinarios ?sujetos eso sí a la fiscalización de la Contraloría General de la República—, importantes indicios de la autonomía presupuestaria y financiera del Gobierno Municipal para cumplir el cometido de velar por la administración de los intereses y servicios locales. Asimismo, no se puede obviar lo señalado en el art. 149 inciso 5 de la Constitución Política que coloca a las municipalidades a un nivel similar de otros poderes de la república, al reprochar la responsabilidad del Poder Ejecutivo al obstaculizar las funciones que encomendadas a los gobiernos locales. Dicha norma regula lo siguiente:

“Art. 149. El Presidente de la República, y el Ministro de Gobierno que hubieran participado en los actos que en seguida se indican, serán también conjuntamente responsables: (…)

• 5)Cuando impidan o estorben las funciones propias del Poder Judicial, o coarten a los Tribunales la libertad con que deben juzgar las causas sometidas a su decisión, o cuando obstaculicen en alguna forma las funciones que corresponden a los organismos electorales o a las Municipalidades; (…)

Tal marco regulatorio constitucional se refleja, además, en el art. 2 del Código Municipal, que en el art. 2 refiere que la municipalidad es una persona jurídica estatal con patrimonio propio y personalidad y capacidad jurídica plena para ejecutar todo tipo de actos y contratos necesarios para cumplir sus fines, y en el art. 4 dispone lo siguiente:

“Artículo 4.- La municipalidad posee la autonomía política, administrativa y financiera que le confiere la Constitución Política. Dentro de sus atribuciones se incluyen las siguientes:

• a)Dictar los reglamentos autónomos de organización y de servicio, así como cualquier otra disposición que autorice el ordenamiento jurídico.
• b)Acordar sus presupuestos y ejecutarlos.
• c)Administrar y prestar los servicios públicos municipales, así como velar por su vigilancia y control.

(Así reformado el inciso anterior por el artículo 2° de la ley N° 9542 "Ley de Fortalecimiento de la Policía Municipal" del 23 de abril del 2018) d) Aprobar las tasas, los precios y las contribuciones municipales, así como proponer los proyectos de tarifas de impuestos municipales.

• e)Percibir y administrar, en su carácter de administración tributaria, los tributos y demás ingresos municipales (…)”.

Partiendo de ese marco constitucional descrito, que reconoce una amplia autonomía a los gobiernos municipales, y de conformidad con las líneas generales expuestas supra, reitero que sí resulta posible una ley marco de regulación del empleo público. Sin embargo, dicha normativa no puede desconocer las particularidades de la configuración de nuestro Estado de Derecho establecida en la Constitución Política. En el caso concreto se cuestiona que el art. 2 inciso c) incluya a las municipalidades dentro del ámbito de cobertura de la norma. Según mi criterio, dicho numeral no es en sí mismo inconstitucional en cuanto incluye a las corporaciones municipales en un marco regulatorio de empleo público, siempre que ese marco se entendiera como aquel que establezca principios y normas generales (lo que, por cierto, no significa que sean ambiguas). No obstante, como este proyecto de ley no cumple con esas características, este artículo sí es inconstitucional por conexidad con el resto del articulado (ver, por ejemplo, los artículos 4, 6, 7, 9, 12, 13, f), 14, 17, 18, 19, 21, 22, 30, 46 y 49 del proyecto de ley), porque supondría aplicarla a gobiernos locales los cuales justamente fueron dotados constitucionalmente de autonomía de gobierno. Es decir, lo establecido en esas normas, en conexión con este art. 2 inciso c), vacía de contenido la autonomía de gobierno, que es propia de los gobiernos locales. Además, la lógica de la ley en su totalidad está plasmada no sólo en su articulado sino en la exposición de motivos, que tiene un valor hermenéutico. De manera que para que ese art. 2 inciso b) se considere que no es “en sí mismo” inconstitucional tendría que verse desvinculado de lo que en dicha exposición de motivos hace relación con esas normas.

• c)Nota separada de la magistrada Picado Brenes, sobre el artículo 2 inciso c) del proyecto respecto de las Municipalidades en cuanto a la potestad de dirección de Mideplán (punto 45 del Por Tanto) Por unanimidad, la Sala Constitucional ha considerado que el artículo 2 inciso c) del proyecto Ley Marco de Empleo Público, no es por sí mismo inconstitucional en cuanto incluye a las municipalidades en un marco regulatorio general de empleo público, pero sí lo es por sus efectos puesto que, en criterio de la Sala, algunas de sus normas vacían de contenido su autonomía de gobierno. Es indispensable hacer algunas precisiones en relación con este punto en concreto y debo iniciar recordando que los artículos 169 y 170 de la Constitución Política, otorgan a las municipalidades, atribuciones para administrar los intereses y servicios locales y, en desarrollo de esos preceptos, gozan de autonomía política para determinar su organización y su forma de administración, en aras de lograr aquél cometido. Ese nivel de autonomía política o de gobierno, les permite fijar sus propias metas y objetivos así como los mecanismos para realizarlas, incluyendo todo lo relativo a la materia de empleo público. Debe tenerse presente que el grado de autonomía municipal no permite que el Mideplán, como órgano del Poder Ejecutivo, les imponga directrices, disposiciones o reglamentos relativos a la materia de empleo público y, en caso de hacerlo, se estaría lesionando esa autonomía, constitucionalmente otorgada. Tómese en cuenta que en los términos en que está redactado el proyecto, el Mideplán tendrá toda la competencia y potestad para establecer todo lo que estime pertinente, por encima de cualquier jerarquía o Poder de la República, y por ende, en lo que a las municipalidades se refiere, esto generará un choque con lo dispuesto en los artículos 169 y 170 constitucionales a partir de los cuales se deriva que, tanto en materia de empleo público como en cualquier otra materia relativa a darle vida y protección a los intereses locales, las municipalidades cuentan con plena autonomía de gobierno y administrativa. En atención a lo dispuesto en esos numerales constitucionales, no podría el Mideplán imponerse a las municipalidades en materia de empleo público sin que ello genere un roce con el Derecho de la Constitución.

En mi criterio, la potestad de auto regularse y de auto administrarse de las municipalidades, derivada de los artículos 169 y 170 constitucionales, quiere decir que pueden dictar sus propios reglamentos para regular su organización interna y los servicios que presta, así como su capacidad de gestionar y promover intereses y servicios locales de manera independiente del Poder Ejecutivo, incluyendo todo ello la potestad de organizar y administrar el recurso humano a través del cual cumplirán sus metas y fines. En consecuencia, toda la gestión del recurso humano, deberá ser competencia municipal porque al final ello redundará en beneficios de la corporación municipal; lo contrario, como lo pretende el proyecto bajo estudio, implica una lesión del Derecho de la Constitución.

• d)Razones adicionales de la magistrada Garro Vargas en relación con la inconstitucionalidad del artículo 7 por afectar la autonomía de las Municipalidades En este caso me separo de la opinión vertida por la mayoría, puesto que considero que la totalidad del art. 7 es inconstitucional, en cuanto somete a las municipalidades a la potestad de rectoría y de reglamentación de Mideplan.

Como ya se señaló, esa norma establece una serie de amplias competencias a favor de una cartera ministerial del Poder Ejecutivo que, aplicadas a las corporaciones municipales, resultan inconstitucionales por desconocer su autonomía para darse su propia administración y gobierno. Estas competencias, como se señaló, podrían suprimir la capacidad de autogobierno y de manejo del personal necesario para llevar a cabo las funciones que le son intrínsecas.

Anteriormente apunté que, desde mi perspectiva, no es lo mismo afectar la independencia de los poderes de la república, que la autonomía de otras instituciones autónomas y, en esa medida, se debe matizar el análisis de las competencias otorgadas al Mideplan. No obstante, como he venido señalando, en la medida en que por disposición constitucional exista una autonomía de gobierno a favor de las corporaciones municipales para darse su propia administración, sí resultan inconstitucionales aquellas competencias que se pretenden otorgar al Mideplan y que implican una rectoría por sobre la autonomía reconocida a los gobiernos municipales. Nuevamente, si se examina integralmente el art. 7 en conexión con el art. 6 incisos b) y d), así como el art. 9 inciso a) párrafo segundo, se aprecia un sometimiento de las municipalidades a órdenes, directrices y regulaciones de una cartera ministerial del Poder Ejecutivo, lo que lesiona la autonomía de gobierno confiada constitucionalmente para el cumplimiento de sus fines. Además, reitero, por ley es posible que alcance a las municipalidades un régimen de empleo público, pero siempre que no suponga una sujeción al Poder Ejecutivo. En este tema debe tenerse muy en cuenta que el régimen municipal corresponde a un nivel gobierno distinto del gobierno central.

• e)Razones adicionales de la magistrada Picado Brenes, sobre el artículo 7 del proyecto en cuanto a las amplias competencias de Mideplán respecto de las Municipalidades (punto 47 del Por Tanto) Conforme se ha venido manifestando, los artículos 169 y 170 de la Constitución Política, otorgan a las municipalidades, atribuciones para administrar los intereses y servicios locales y, en desarrollo de esos preceptos, gozan de autonomía política para determinar su organización y su forma de administración, en aras de lograr aquél cometido. Ese nivel de autonomía política o de gobierno, les permite fijar sus propias metas y objetivos así como los mecanismos para realizarlas, con lo cual, sería inconstitucional que el MIDEPLAN, como órgano del Poder Ejecutivo, les imponga directrices, disposiciones o reglamentos relativos a la materia de empleo público, como lo pretende el artículo 7 del proyecto de ley bajo estudio.

El artículo 7, dispone que el MIDEPLAN tendrá toda la competencia y potestad para establecer todo lo que estime pertinente, y por ende, en lo que a las municipalidades se refiere, esto generará un choque con lo dispuesto en los artículos 169 y 170 constitucionales a partir de los cuales se deriva que, tanto en materia de empleo público como en cualquier otra materia relativa a darle vida y protección a los intereses locales, las municipalidades cuentan con plena autonomía de gobierno y administrativa. En atención a lo dispuesto en esos numerales constitucionales, no podría el MIDEPLAN ubicarse por encima de las municipalidades en materia de empleo público sin que ello genere un roce con el Derecho de la Constitución. En este sentido, en consonancia con lo anteriormente expuesto, resulta preocupante el artículo 6, porque de la lectura integral del proyecto se desprende que al crearse el Sistema General de Empleo Público que ahí se regula, las municipalidades quedarían incluidas, por lo que Mideplán ejercería la potestad de dirección -dictarle directrices- o la potestad reglamentaria; lo que resulta violatorio del grado de autonomía que la Constitución le otorgó a las Municipalidades.

Considero que, si bien es cierto, el Estado a través de sus órganos constitucionales competentes, como la Asamblea Legislativa y el Poder Ejecutivo, pueden establecer una política general en cuanto a prioridades -como podría ser empleo público- por las necesidades que afronta el país en determinado momento, también es lo cierto que de acuerdo con el sistema democrático costarricense y lo dispuesto por la Constitución Política, a cada municipalidad en su jurisdicción le corresponderá velar por los intereses y servicios locales, con exclusión de toda interferencia que sea incompatible con el concepto de lo local en los términos en que lo establecen los artículos 169 y 170 constitucionales, por lo que precisamente respeto de su autonomía política, lo relativo a la gestión del recurso humano municipal, deberá ser del ámbito de su competencia, sin intervención del Poder Ejecutivo, en este caso, el MIDEPLAN.

En mi criterio, la potestad de auto regularse y de auto administrarse de las municipalidades, derivada de los artículos 169 y 170 constitucionales, quiere decir que pueden dictar sus propios reglamentos para regular su organización interna y los servicios que presta, así como su capacidad de gestionar y promover intereses y servicios locales de manera independiente del Poder Ejecutivo, incluyendo todo ello la potestad de organizar y administrar el recurso humano a través del cual cumplirán sus metas y fines. Absurdo sería pretender que los intereses locales sean determinados por las corporaciones municipales, pero su atención y cumplimiento sean llevados a cabo por personas que sirven en función de directrices, reglamentos y disposiciones que provienen de un ente centralizado que no necesariamente está ajustado al cumplimiento de aquéllas metas y fines locales. En el mismo sentido, y siempre en materia de gestión del recurso humano, considero ilógico que algunas funciones municipales atiendan a los intereses y servicios locales por cuanto fueron diseñadas a lo interno de la municipalidad, en tanto que otras, por provenir del MIDEPLAN, estén encaminadas a obtener objetivos distintos. Definitivamente debe haber consonancia y equilibrio entre los objetivos municipales y aquéllos otros que rigen la gestión del talento humano y, por ello, en mi criterio, lo relativo a los servidores municipales, deberá ser competencia municipal porque al final ello redundará en beneficio de la corporación municipal. En este punto entonces, he de hacer una aclaración que también sería válida para el artículo 6 del proyecto de Ley Marco de Empleo Público, pues considero que no es admisible dividir al recurso humano municipal en dos sectores: los que serían incluidos en el sistema general de empleo público y los que estarían excluidos; o como lo hace la mayoría de la Sala al considerar que hay:

• a)un funcionariado indispensable para cumplir con los fines constitucionalmente asignados y personal administrativo, profesional y técnico, que las máximas autoridades de las Corporaciones Municipales definan, de forma exclusiva y excluyente y; b) empleados públicos de esas corporaciones que realizan funciones administrativas básicas, auxiliares, que sí podrían quedar bajo la rectoría del Poder Ejecutivo o Mideplán.

En mi criterio, todo el personal que labora en las municipalidades, desde el puesto más humilde hasta el cargo jerárquico más alto, es absolutamente indispensable para el ejercicio de la función pública local que se les ha asignado constitucionalmente a estas corporaciones municipales y ello es así porque, a modo de ejemplo, sin la labor que hacen los recolectores de basura o los conserjes, el Consejo Municipal o el Alcalde, no podrían alcanzar el cumplimiento de las metas propuestas en beneficio de los intereses locales. Es absolutamente indispensable ver al personal municipal como un todo al servicio de un único fin que es la gestión de los intereses y servicios locales.

En materia de gestión del talento humano y de acuerdo con las nuevas teorías de Administración de Personal, el paradigma ha cambiado porque los empleados ya no pueden seguir siendo considerados como simples trabajadores de una organización, ellos son proveedores de conocimientos, habilidades, capacidades indispensables y, sobre todo, de otro importante aporte que es la inteligencia, la cual permite tomar decisiones más acertadas contribuyendo a lograr los objetivos generales. Los trabajadores son seres humanos dotados de personalidad y poseen conocimientos, habilidades, destrezas y capacidades que son indispensables para la gestión adecuada de los recursos organizacionales. Igualmente, son activadores inteligentes de los recursos organizacionales y fuente de impulso propio que dinamizan la organización, y no agentes pasivos, inertes y estáticos. Además de ello, estas personas invierten en la organización esfuerzo, dedicación, responsabilidad, compromiso, riesgos, entre otros, con la esperanza de recibir retornos de estas inversiones como son los salarios, crecimiento profesional, carrera, entre otros, pero también la satisfacción de que con su aporte, engrandecen la organización. Aplicando esta teoría de gestión del talento humano a las municipalidades -pero también podría ser al Poder Judicial, al TSE, a las instituciones autónomas, a la universidad estatal-, se justifica considerar a los empleados -municipales en este caso- como un todo, que dinamiza la actividad municipal y como personas proveedoras de conocimientos, habilidades, capacidades indispensables e inteligencia que les permite tomar decisiones racionales en beneficio de toda la municipalidad y que le imprimen significado y rumbo a los objetivos generales de toda la corporación municipal. Por ello no es válido seccionarlos en los que a) son indispensables para cumplir con los fines constitucionalmente asignados y personal administrativo, profesional y técnico, que las máximas autoridades de las Corporaciones Municipales definan, de forma exclusiva y excluyente y; b) los empleados públicos que realizan funciones administrativas básicas, auxiliares, que sí podrían quedar bajo la rectoría del Poder Ejecutivo o Mideplán, pues es más que evidente que unos y otros, están, laboran y actúan como parte de un engranaje en el que todos actúan para lograr el cumplimiento de un único objetivo, la satisfacción de los intereses y servicios locales.

Por otra parte cabe señalar que los fines de las corporaciones municipales son muy diferentes a aquéllos que sirvieron de base para la redacción de este artículo 7; en consecuencia, no necesariamente lo que se pretenda regular para un órgano del Poder Ejecutivo, sea compatible con lo que deba ser direccionado en una municipalidad o en una institución autónoma. Frente a objetivos y metas tan disímiles como las que tienen las diferentes instituciones agregadas al ámbito de cobertura de este proyecto de Ley, resulta imposible contar con una fórmula mágica aplicable por igual a todas ellas como lo pretende hacer este artículo 7 y, por ende, en el camino, cuando se tenga que aplicar, inevitablemente se darán roces con el Derecho de la Constitución.

• f)Razones adicionales de la magistrada Garro Vargas respecto de la inconstitucionalidad del artículo 9 inciso a) párrafo segundo y su aplicación a las Municipalidades Luego de una lectura integral de las razones dadas por la mayoría para declarar la inconstitucionalidad del art. 9 inciso a) párrafo segundo del proyecto de ley, he de manifestar que si bien consigné unas razones diferentes, ahora coincido con el razonamiento realizado en el sentido de que resulta inconstitucional la intención de que las oficinas de recursos humanos de las corporaciones municipales se incorporen al Sistema General de Empleo Público bajo una expresa rectoría del Mideplan (art. 6 inciso b del proyecto). Lo anterior con el agravante de que se les obliga a dichas dependencias a aplicar y ejecutar todas las disposiciones de alcance general, las directrices y los reglamentos en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales que a tales efectos les remita el Mideplan. Esto en abierto desconocimiento de la autonomía administrativa y de gobierno que ostentan las corporaciones municipales en virtud de las disposiciones constitucionales supra mencionadas.
• g)Razones adicionales de la magistrada Picado Brenes, sobre el artículo 9 del proyecto en cuanto a las funciones de las administraciones activas respecto de las Municipalidades (punto 48 del Por Tanto) La Sala, por unanimidad, ha considerado que el párrafo segundo del inciso a) del artículo 9 es inconstitucional respecto a su aplicación a las municipalidades. Aparte de los motivos analizados por este Tribunal en relación con dicha norma, existen otras razones de peso que justifican esa declaratoria.

Recuérdese que de conformidad con los artículos 168 y 169 de la Constitución Política, el régimen municipal es una modalidad de descentralización territorial (sentencia n°2006-17113), pero además, como ya lo he manifestado, en atención a lo dispuesto en el artículo 170 constitucional, las Municipalidades son entes descentralizados, en razón del territorio, que han sido dotados de la autonomía, llamada de segundo grado, la cual es mayor que la de las instituciones autónomas, pues además de autonomía administrativa gozan de autonomía de gobierno. Así entonces, una de las mayores garantías que poseen las municipalidades frente al Gobierno Central -Poder Ejecutivo-, es el grado de autonomía que la Constitución les ha asignado y que ha sido definida por la jurisprudencia constitucional como autonomía de gobierno, o grado dos de autonomía.

En materia de empleo público, las Municipalidades cuentan con autonomía normativa y administrativa, lo que les permite dictar su propio ordenamiento -a través de reglamentos internos- en las materias de su competencia, lo cual les posibilita regular internamente la organización de la municipalidad y de los servicios que presta, pero también tienen competencia para auto administrarse y gozar de libertad frente al Estado a fin de adoptar decisiones fundamentales del ente (ver sentencias nº 002934-1993, 001691-1994 y 005445-1999, entre otras). La Sala ha manifestado que el legislador, al promulgar el Código Municipal, comprendió que la designación de funciones de los empleados municipales, es una expresión de la autonomía administrativa de las corporaciones locales, y por ello dispuso que la asignación de atribuciones se hiciera en el Manual Descriptivo de Puestos (artículos 128 y 129 del Código Municipal), así como también se ha señalado que el régimen disciplinario de las municipalidades, corresponde verificarlo internamente a las propias corporaciones locales (ver sentencia nº 005445-1999). Entonces, la autonomía normativa municipal implica la capacidad con la que cuentan las municipalidades para dictar su propio ordenamiento normativo, entendido como los reglamentos autónomos de organización y de servicio, supeditados a lo que la Ley establezca (ver sentencia nº 2002-003493); en consecuencia, resulta más que evidente que, en materia de empleo público, las corporaciones municipales tienen plena competencia y autonomía para establecer las políticas y la normativa que sea necesaria para su adecuado funcionamiento. Con sustento en lo anterior, al analizarse el contenido del párrafo segundo del inciso a) del artículo 9 del proyecto de Ley de Empleo Público, resultaría imposible sujetar a las Municipalidades a las exigencias ahí contenidas pues, en atención a su autonomía administrativa y de gobierno, cuentan con libertad frente al Estado -incluyendo al Poder Ejecutivo- para dictar la normativa que requieran en aras de realizar la gestión de su recurso humano.

Obsérvese que la norma analizada dispone que los departamentos de recursos humanos de las Municipalidades, deberán de aplicar y ejecutar las disposiciones de alcance general, las directrices y los reglamentos, en relación con la planificación, la organización del trabajo, la gestión del empleo, la gestión del rendimiento, la gestión de la compensación y la gestión de las relaciones laborales que el Mideplán les remita, según la Ley General de la Administración Pública y la Ley de Salarios de la Administración Pública. Evidentemente la norma está pasando por alto que un órgano del Poder Ejecutivo como sería el Mideplán, no podría imponer a una corporación municipal, disposiciones de alcance general, directrices ni reglamentos en materia de gestión del empleo público, toda vez que ello -como se dijo- pertenece a un área sensible que es propia de la autonomía municipal.

Tal pretensión no solamente lesionaría lo dispuesto en el artículo 170 constitucional, sino que además podría ocasionar un evidente invisibilidad de la cosmovisión de cada municipalidad y de las funciones específicas que tienen asignadas -consideradas en su individualidad- pues recuérdese que, cada gobierno local, cuenta con condiciones y características muy particulares, definidas por el núcleo y la densidad poblacional, la geografía, la cultura y costumbres, las etnias predominantes, el territorio, entre otros muchos aspectos que gozan de protección constitucional.

En mi criterio, la creación de un sistema único de empleo público que se pretenda imponer a las corporaciones municipales en esa materia, también atentaría contra la división territorial del país -que goza de rango constitucional-, la cual no fue decidida con criterios arbitrarios o meramente subjetivos, sino que tiene todo un transfondo histórico, cultural y socioeconómico que, a su vez, permitió la división del país en esos pequeños gobiernos locales cuya forma de administración y de gobierno no podría provenir de una única opinión centralizada. Tómese en cuenta que las Municipalidades no son simples grupos de personas y de territorios unidos por un objetivo común, sino que atienden a una serie de elementos de carácter histórico, étnico, cultural, social y económico, siendo en función de esos aspectos que determinan sus necesidades, las priorizan y se organizan para la satisfacción de sus intereses locales, lo que indiscutiblemente permea también en las características y requisitos a cumplir por su recurso humano. En ese sentido, no se podrían aplicar pautas generales para todos los municipios pues cada uno de ellos tiene necesidades y prioridades completamente diferentes, de modo tal que la persona funcionaria municipal que realiza determinadas labores en una Municipalidad ubicada en el Gran Área Metropolitana, probablemente no podría realizarlas con la misma destreza en la Municipalidad de una zona rural, agrícola o costera, ello por cuanto sus condiciones y características -las de la persona y las de la municipalidad-, son completamente diferentes.

En consonancia con lo anterior, resulta evidente que la norma bajo estudio también estaría creando obligaciones adicionales a las corporaciones municipales y a sus funcionarios cuyo cumplimiento estarían obligados a ejecutar pero que, a la vez, en caso de no cumplir o de no hacerlo conforme lo exige el órgano centralizado, los sujeta a eventuales responsabilidades que podrían ser innecesarias y evitables en vista de que esas nuevas responsabilidades no deberían ser de aplicación general para todas las municipalidades pues, en atención a lo dicho supra, las necesidades o prioridades o proyectos de una municipalidad de zona metropolitana, podrían ser muy diferentes a las que se han planteado en una municipalidad de zona agrícola, rural, costera o aquellas con mucha población indígena.

• h)Razones adicionales de la magistrada Garro Vargas respecto del artículo 13 y su aplicación a los empleados municipales El art. 13 consultado establece que existirá un único régimen general de empleo público conformado por ocho familias de puestos. Dentro de esas familias de puesto no es posible identificar alguna categoría en la que se puedan incluir a los funcionarios municipales. Ahora bien el hecho de que no haya una familia concreta no significa que la autonomía municipal no quede lesionada porque justamente sus funcionarios quedan en una condición genérica como si fueran empleados del Ejecutivo, no le reconocen diferencias y quedan en un estatus “intercambiable” o de posible trasiego con el Gobierno Central. Recuérdese que en el proyecto de ley también se pretende introducir la posibilidad de la movilidad en el empleo público, al entender al Estado como un patrono único. No reconocer la especificidad de las labores de los empleados municipales en aras del cumplimiento de la función constitucional de administrar los intereses y servicios locales igualmente resulta inconstitucional, pues supone soslayar las particularidades de los gobiernos locales, asimilándolos a funcionarios del gobierno central, que claramente tiene otra naturaleza. Asimismo, se les incluye en una familia “genérica”, sin una decisión previa proveniente justamente del propio gobierno municipal que, en ejercicio de su autonomía de gobierno, decida cuál es la forma administrativa más idónea para representar a sus munícipes y velar por la adecuada prestación de los servicios locales.
• i)Razones adicionales de la magistrada Picado Brenes, sobre el artículo 13 del proyecto en cuanto a los grupos de familias de puestos de las Municipalidades (punto 49 del Por Tanto) El artículo 13 del proyecto de Ley Marco de Empleo Público explica que existirá un único régimen general de empleo público que estará conformado por 8 familias de puestos, las cuales se aplicarían en los órganos y entes de la Administración Pública, de acuerdo con las funciones que realice el personal de cada uno de ellos. Dentro de esas 8 familias de puestos, no existe ninguna específica para los servidores municipales. En lo que a las municipalidades se refiere, de los artículos 169 y 170 de la Constitución Política, se desprende que, tanto en materia de empleo público como en cualquier otra que pretenda satisfacer los intereses locales, esas corporaciones cuentan con plena autonomía de gobierno y administrativa. En atención a lo dispuesto en esos numerales constitucionales, no podría el Mideplán imponerse a las municipalidades en materia de empleo público sin que ello genere un roce con el Derecho de la Constitución, específicamente con la autonomía que se les ha otorgado en aquéllos numerales. Sostengo el criterio de que toda la gestión del talento humano, deberá ser competencia municipal porque cada una de esas corporaciones cuenta con la potestad de auto regularse y de auto administrarse, lo que quiere decir que pueden dictar sus propios reglamentos para regular su organización interna y los servicios que prestan, pueden gestionar y promover intereses y servicios locales en completa independencia del Poder Ejecutivo, y para lograr todos esos objetivos, cuentan con la potestad de organizar y administrar su personal. Recuérdese además que las municipalidades tienen normativa específica de rango legal -Código Municipal- que regula la relación entre los servidores municipales y las administraciones públicas locales; normativa que atiende y respeta la autonomía que les ha otorgado la Constitución Política.
• j)Razones adicionales de la magistrada Picado Brenes, sobre el artículo 18 del proyecto en cuanto a los plazos del personal de alta dirección en las Municipalidades (punto 52 del Por Tanto) En el artículo 18 del proyecto de Ley de Empleo Público consultado, se determinó por unanimidad que es inconstitucional por afectar la autonomía política de las municipalidades respecto de los plazos del personal de alta dirección pública. He de agregar que, en mi criterio, existen otros motivos que conducen también a una contradicción de ese numeral con el Derecho de la Constitución. Conforme ya lo he indicado supra, para analizar este artículo debe partirse del grado de autonomía que caracteriza a las corporaciones municipales, la cual desde el punto de vista administrativo, les permite auto organizarse, dotarse de recurso humano y disponer de éste, estructurarse internamente, establecer las políticas de gestión de su personal así como los objetivos o metas a cumplir en esa materia, entre otras potestades. En consecuencia, si el artículo 18 les obliga a obviar tales competencias para sujetarse a lo ahí dispuesto, evidentemente se estaría incurriendo en una lesión de la autonomía municipal constitucionalmente garantizada. Ahora bien, la situación va mucho más allá porque, precisamente, en atención a tales potestades, las corporaciones municipales ni siquiera estarían obligadas a contratar personal denominado de “alta dirección pública”, o a clasificar recurso humano bajo ese nombre, o con la definición que el proyecto le atribuye a ese tipo de funcionarios en el artículo 5. Igualmente, si decidieran tener personal con esa denominación y/o las características establecidas en el proyecto de Ley, las municipalidades contarían con plena autonomía para establecer los procesos de selección y reclutamiento, los requisitos a exigir, las condiciones de contratación, los períodos de prueba, entre otros muchos aspectos propios de la gestión del talento humano; en consecuencia, tendrían competencia para determinar plazos de prueba inferiores, iguales o superiores a los que regula la norma bajo estudio, así como también para disponer que este tipo de personal estaría nombrado de manera indefinida, o por lapsos diferentes a los que regula este artículo 18. Bajo esta perspectiva, el Mideplán no podría tener ninguna injerencia en las corporaciones municipales para imponerles la aplicación de condiciones como las que se están disponiendo en ese numeral.

Nuevamente debe traerse a colación que cada una de las municipalidades existentes en el país, goza de condiciones, características, proyectos, necesidades, prioridades y metas a conseguir completamente diferentes entre sí y la imposición, desde un órgano centralizado como sería el Mideplán, de directrices únicas y generales, atentaría no sólo contra la división territorial del país sino también contra la especificidad de la población y de los intereses locales a los que se debe cada corporación municipal, ambas protegidas por la Constitución Política.

Es evidente que el legislador al redactar esta norma, no tomó en cuenta esos aspectos que, de aplicarse en los términos en que lo pretende el proyecto, provocarían una lesión del Derecho de la Constitución.

XIV.- Sobre la consulta de violación a la autonomía de las Instituciones Autónomas.- 1) Aspectos consultados Los consultantes consideran inconstitucionales tanto el artículo 2 inciso b) del proyecto de Ley Marco de Empleo Público que se tramita en el expediente legislativo nº 21.336, al incluir a las instituciones autónomas dentro del ámbito de cobertura de esa ley, así como los numerales 6, 7, 9, 13, 14, 17, 18, 21, 22, 24, 30 y 49 por invadir su autonomía administrativa consagrada en el artículo 188 constitucional, pues las sujetan a las disposiciones, directrices, reglamentos, circulares, manuales, etc. que emita el Ministerio de Planificación Nacional y Política Económica, en temas relacionados con planificación del trabajo, las gestiones de empleo, rendimiento, desempeño, compensación y relaciones laborales.

Al revisarse la consulta, se ha logrado constatar que el dicho externado por los consultantes en relación con esos numerales, carece de una adecuada fundamentación y no expresa, de manera clara, los motivos o razonamientos por los cuales se plantea esa inquietud ante la Sala; inclusive no se observa que se haya formulado una consulta de constitucionalidad en sentido estricto, sino que, simplemente, se hace una mera enunciación en cuanto al choque que ellos estiman que pudiere darse entre las potestades que se le están otorgando al MIDEPLAN frente a la autonomía de las instituciones autónomas. Igualmente no se observa ninguna justificación de las razones por las cuales estiman que tales numerales atentarían contra el artículo 188 de la Constitución Política. Sobre el particular debe tenerse presente que el artículo 99 de la Ley de la Jurisdicción Constitucional, es muy claro al establecer que la consulta deberá expresar los aspectos cuestionados del proyecto y los motivos por los cuales se tienen dudas u objeciones de constitucionalidad, además todo ello debe hacerse de manera razonada y debidamente fundamentada; requisito que no se cumple en el caso concreto y, por ende, la consulta no puede ser evacuada en los términos en que lo pretenden los consultantes.

• 2)Conclusión En consecuencia, por unanimidad se declara inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, en cuanto al artículo 2 inciso b) -específicamente en lo referido a “las instituciones autónomas y sus órganos adscritos, incluyendo instituciones semiautónomas y sus órganos adscritos” y los artículos 6, 7, 9, 13, 14, 17, 18, 21, 22, 24, 30 y 49 por falta de una adecuada fundamentación desde el punto de vista constitucional.

XV.- Sobre la consulta de violación al principio de seguridad jurídica por la figura de la Objeción de Conciencia.- (redacta la Magistrada Picado Brenes) 1) Aspectos consultados En la Consulta Legislativa Facultativa tramitada en el expediente N° 21-011713-0007-CO, interpuesta por varios diputados, se externan consideraciones en cuanto a que el artículo 23 inciso g) del proyecto de “LEY MARCO DE EMPLEO PÚBLICO”, que se tramita en el expediente legislativo N° 21.336, es violatorio de los principios de legalidad y de seguridad jurídica, de proporcionalidad y razonabilidad. Este numeral establece la posibilidad de la objeción de conciencia en los procesos de formación y capacitación, tal como se indica textualmente:

“ARTÍCULO 23- Postulados rectores que orientan los procesos de formación y capacitación (…)

• g)Los servidores públicos podrán informar a la Administración, por medio de una declaración jurada, sobre su derecho a la objeción de conciencia, cuando se vulneren sus convicciones religiosas, éticas y morales, para efectos de los programas de formación y capacitación que se determine sean obligatorios para todas las personas servidoras. (…)” Argumentan los consultantes que esa norma resulta inconstitucional por cuanto, la posibilidad que tendrán las personas funcionarias públicas de alegar la objeción de conciencia con el fin de no recibir formación y capacitaciones que el Estado ha considerado obligatorias, resulta lesiva de los principios de legalidad y de seguridad jurídica, de proporcionalidad y razonabilidad, ello por cuanto, en su criterio, la norma no regula las condiciones, parámetros y restricciones que deben rodear esa situación y con las cuales se pueda impedir la violación de derechos humanos fundamentales comprendidos en el Derecho Convencional así como otros plenamente reconocidos por el ordenamiento jurídico costarricense. Señalan que mediante una simple declaración jurada, las personas funcionarias públicas podrán informar sobre un derecho de objeción de conciencia cuando los contenidos de los programas de formación y capacitación vulneren, según su criterio, sus convicciones religiosas, éticas o morales. Estiman que se trata de una norma totalmente amplia que permitirá, apelando a criterios totalmente subjetivos, que cualquier persona se niegue a capacitarse sobre temas medulares de la Administración Pública. En ese sentido, consideran que no es posible apelar a la objeción de conciencia para promover la desigualdad, el maltrato y la discriminación desde un puesto de poder, por ejemplo.

En la Consulta Legislativa Facultativa, tramitada en el expediente N° 21-012118-0007-CO, interpuesta por otros diputados, ellos consultan sobre la constitucionalidad del artículo 23 inciso g), por cuanto consideran que permite la violación de los principios constitucionales de legalidad, seguridad jurídica, razonabilidad y proporcionalidad, así como del Pacto Internacional de Derechos Civiles y Políticos (art. 18.3) y de la Convención Americana de Derechos Humanos (artículo 12.3). Manifiestan que, en 1948, la Declaración Universal de Derechos Humanos en su artículo 18, reconoció que toda persona tiene libertad de pensamiento, de conciencia y de religión por lo que ahí existe un reconocimiento a la capacidad individual o colectiva de expresarse libremente sobre sus creencias o religión. Añaden que el Pacto Internacional de Derechos Civiles y Políticos, adoptado en 1966, en su numeral 18, ampara y reconoce la libertad de pensamiento, conciencia y de religión de las personas, respetando las condiciones y limitaciones legales que permiten su pleno ejercicio; norma que, a su vez, establece que el ejercicio de este derecho no puede sobreponerse a las limitaciones prescritas por la ley que sean necesarias para proteger la seguridad, el orden, la salud o la moral públicos, o los derechos y libertades fundamentales de las demás personas. Por su parte indican que, en el año de 1987, la resolución número 46 de la Comisión de Derechos Humanos de la Organización de la Naciones Unidas, reconoció la objeción de conciencia con respecto al servicio militar y, en ese caso en particular, en resguardo de los derechos humanos, la objeción de conciencia respaldó la negativa de realizar el servicio militar en virtud de la libertad de pensamiento, conciencia y religión ya incluidas en el marco internacional proveniente del reconocimiento del derecho a negarse a prestar servicio militar para imponer el Apartheid; posición que se reafirmó en 1989 cuando la Comisión de Derechos Humanos, por medio de la resolución 1989/59, reconoció el derecho de tener objeciones de conciencia en relación con el servicio militar como un derecho humano, en apego a lo establecido por la Declaración Universal de Derechos Humanos así como el Pacto Internacional de Derechos Civiles y Políticos. Argumentan los consultantes que, a nivel internacional, los derechos humanos han reconocido y analizado el roce de la objeción de conciencia con el derecho a la salud ante la posibilidad de que, el ejercicio de aquel derecho, impida que se brinde una correcta atención sanitaria y de salud a los usuarios del servicio. Señalan que el artículo 18.3 del Pacto Internacional de Derechos Civiles y Políticos, así como el artículo 12.3 de la Convención Americana de Derechos Humanos, establecen que la libertad de manifestar la propia religión y creencias está sujeta únicamente a las limitaciones prescritas por la ley y que sean necesarias para proteger la seguridad, el orden, la salud o la moral públicos o los derechos o libertades de los demás. Así, manifiestan que debe entenderse que, para un funcionario que brinda sus servicios en el área de la salud, el ejercicio de la objeción de conciencia procede únicamente cuando esa negativa no implique una lesión a los derechos humanos de los pacientes (sean estos hombres, mujeres o niños). Añaden que específicamente, sobre el respeto de la libertad de conciencia en los profesionales en salud, la Corte Interamericana de Derechos Humanos ha resuelto que deben respetarse los derechos de sus pacientes como usuarios de un servicio público y es por este motivo que debe existir una clara manera de ejercer ese derecho para evitar vulneraciones. Recuerdan que, en Costa Rica, la Sala Constitucional, mediante la resolución No. 2020-001619, se ha pronunciado sobre la objeción de conciencia y ha sido consecuente con el respeto de los derechos humanos en el ejercicio del derecho de objeción de conciencia, en el tanto, no exista roce con otros derechos. Argumentan que la objeción de conciencia se entiende como un derecho (reconocido) que permite que los individuos rechacen una conducta que les está siendo exigida por ley con sustento en razones que les sean contrarias o que afecten sus creencias. Aducen los consultantes que, a la luz del proyecto de Ley en consulta, lo propuesto por el artículo 23, inciso g), en cuanto incluye de manera abierta y desregulada la posibilidad de que los funcionarios públicos puedan negarse a recibir formación técnica y capacitaciones que sean obligatorias y necesarias para el ejercicio del cargo que desempeñan con la mera comunicación mediante declaración jurada, podría considerarse un ejercicio abusivo y contrario a los derechos humanos de los demás ciudadanos. Señalan los consultantes que, analizando el articulado del proyecto en consulta, en su criterio, entran en discrepancia un cúmulo de derechos, tanto de los funcionarios como de los ciudadanos que reciben servicios de parte de estos funcionarios públicos. Indican que en la resolución No. 2020-002965 de la Sala Constitucional, este órgano reconoció la igualdad y universalidad en el trato que debe darle la administración a los usuarios, de modo que los funcionarios públicos, para poder ejercer sus funciones de manera proba, eficiente y efectiva, ameritan necesariamente tener los conocimientos técnicos y administrativos que les permitan desempeñar sus funciones. Además, argumentan que existe una obligación del Estado de capacitar a los funcionarios para que la operación estatal sea acorde a los parámetros de prestación de los servicios públicos que deben garantizarse a los ciudadanos. Señalan que la necesaria capacitación de funcionarios no puede ser entendida como un adoctrinamiento o imposición de condiciones para los servidores públicos, sino que se trata de un necesario traslado o intercambio de información que debe hacerse llegar a los funcionarios para que realicen sus funciones de conformidad con las condiciones para las que han sido contratados. Cuestionan los consultantes cómo puede determinar un funcionario público, de previo a recibir una capacitación, que ésta atenta contra sus creencias o convicciones personales. Afirman que la solución que la Sala Constitucional ha dado a este tema está referida a que las jerarquías institucionales deberán adoptar planes para evitar que ocurra una desatención del servicio público porque, si bien es cierto, el funcionario tiene ese derecho, no puede limitarse o perjudicarse al ciudadano en relación con un trámite respecto del cual el funcionario objetante, se excusa de atender. Además, manifiestan que la Sala Constitucional ha dicho que los funcionarios cuando asumen un cargo sobre el cual deben realizar determinados actos, están obligados a cumplirlos sin derecho a objeción de conciencia, en el tanto han aceptado ejercer el cargo público conforme al derecho vigente al momento de su nombramiento. Consideran que el abordaje que se le ha dado a este tema durante la tramitación del proyecto, acompañado del rechazo de mociones que pretendían aclarar y delimitar el ejercicio de la objeción de conciencia para que no existieran afectaciones a otros derechos fundamentales, terminó siendo una vulneración a derechos fundamentales en sí misma. Estiman que el considerar la objeción de conciencia como un mero trámite, sin mayores condiciones y restricciones, sin ninguna seriedad técnica, solo para polemizar y polarizar a la sociedad costarricense, resulta contrario a los derechos humanos reconocidos por la Corte Interamericana de Derechos Humanos, considerando que ello se contrapone a la obligación que tiene el Estado y que debe garantizar la Asamblea Legislativa sobre el resguardo de la legalidad y la seguridad jurídica que deben acompañar las leyes que se emiten. Estiman que la inclusión de la objeción de conciencia en el artículo 23, inciso g), del proyecto de ley denominado "Ley Marco de Empleo Público", expediente legislativo n°21.336, podría constituir una violación a los principios constitucionales y a los derechos humanos en los términos señalados.

• 2)Antecedentes Jurisprudenciales Este Tribunal Constitucional se ha pronunciado en relación con la objeción de conciencia, en ese sentido, ha reconocido su aplicabilidad en distintos ámbitos. Entre los primeros pronunciamientos, reconoce la libertad de conciencia como un derecho público subjetivo individual, oponible por el administrado ante el Estado, en ese sentido, en la sentencia n°1993-3173 de las 14:57 horas del 06 de julio de 1993 se indicó:

“VII.- La libertad religiosa encierra, en su concepto genérico, un haz complejo de facultades. En este sentido, en primer lugar se refiere al plano individual, es decir, la libertad de conciencia, que debe ser considerado como un derecho público subjetivo individual, esgrimido frente al Estado, para exigirle abstención y protección de ataques de otras personas o entidades. Consiste en la posibilidad, jurídicamente garantizada, de acomodar el sujeto, su conducta religiosa y su forma de vida a lo que prescriba su propia convicción, sin ser obligado a hacer cosa contraria a ella. En segundo lugar, se refiere al plano social, la libertad de culto, que se traduce en el derecho a practicar externamente la creencia hecha propia. Además la integran la libertad de proselitismo o propaganda, la libertad de congregación o fundación, la libertad de enseñanza, el derecho de reunión y asociación y los derechos de las comunidades religiosas, etc.

VIII.- La libertad de culto, en cuanto manifestación externa de la libertad religiosa, comprende el derecho a mantener lugares de culto y a practicarlo, tanto dentro de recintos como en el exterior, siempre dentro de las limitaciones establecidas por el ordenamiento, sea por norma constitucional o norma legal. En este sentido, es el mismo texto constitucional que permite el libre ejercicio en la República de otros cultos -de la religión católica-, siempre y cuando "no se opongan a la moral universal, ni a las buenas costumbres" (artículo 75).

IX.- El artículo 75 de la Constitución dispone que el Estado debe contribuir al "mantenimiento" de la religión Católica, esta norma constitucional no puede interpretarse en sentido restrictivo; por el contrario, se entiende que el Estado tiene una obligación, en sentido general, de cooperar con las diferentes confesiones religiosas que profesan los habitantes del país y en forma específica con la Iglesia Católica. Esta obligación constitucional consiste en posibilitar la formación religiosa en los centros docentes públicos, en la creación necesaria para su desarrollo y no concretamente en la asistencia de financiamiento económico. Con esto, la norma suprema considera de interés general la satisfacción de las necesidades religiosas, pese a la existencia de personas que no participen de ellas. Además, debe interpretarse, no como un indicador de parcialidad de la Constitución en beneficio de una confesión religiosa determinada, sino como un indicador de una realidad sociológica, cual es la mención expresa a la confesión indiscutiblemente más arraigada y extendida en nuestro país, lo que en ningún momento implica una discriminación por parte de los poderes públicos para las demás confesiones o para los ciudadanos aconfesionales.” En la misma línea jurisprudencial, mediante la sentencia n°1996-5492 de las 16:54 horas del 16 de octubre de 1996, en relación con el ejercicio de la objeción de conciencia en el ámbito educativo, se indicó:

“(…) queda claro, que la interpretación que realizan las funcionarias recurridas del último párrafo del artículo 210 del Código de Educación, y que le fuera comunicada al recurrente mediante nota de fecha 13 de marzo de 1996, en el sentido de que debía impartir lecciones de Educación Religiosa, aduciendo también en apoyo de la misma el artículo 3 de la Ley Fundamental de Educación, y Decreto Ejecutivo número 10850-E del veintidós de octubre de mil novecientos setenta y nueve, violenta en perjuicio del amparado la libertad religiosa, contenida en los artículos 75, 28, 29 y 33 de la Constitución Política y considerada por la jurisprudencia de este Tribunal, en el plano individual, como un derecho público subjetivo individual, que puede ser esgrimido frente al Estado, cuando se considere amenazado, como en el caso que nos ocupa, dada la condición del gestionante de no practicante de la religión católica, y exigirle al propio Estado la protección necesaria para que se le respete en el plano individual, lo íntimo de sus creencias. Respeto y protección que no se ha dado en la especie, pues la nota que ha recibido el recurrente de parte de las funcionarias recurridas, según se desprende de su lectura, no se le respetan sus convicciones de tipo religioso, pues se le obliga a realizar una actividad contraria a dichas convicciones individuales. En consecuencia, la indicada norma contenida en el artículo 210 del Código de Educación, debe entenderse en el sentido de que, debe haber disposición del maestro de acuerdo con sus convicciones religiosas, para suplir esa enseñanza. No sólo se trata de un respeto de la libertad de conciencia y de culto del maestro, sino de la protección del educando que estaría expuesto a recibir una deficiente o incluso inconveniente educación religiosa. Por lo anterior, lo procedente es declarar con lugar el recurso.” De igual manera, la Sala Constitucional, en el ámbito de la libertad de conciencia en el campo de la educación, reconoce la tutela internacional de la libertad de conciencia. En la sentencia N°1999-03914 de las 16:27 horas del 20 de mayo de 1999, en lo que interesa indicó:

“IX.- El artículo 75 de la Constitución dispone que el Estado debe contribuir al "mantenimiento" de la religión Católica, esta norma constitucional no puede interpretarse en sentido restrictivo; por el contrario, se entiende que el Estado tiene una obligación, en sentido general, de cooperar con las diferentes confesiones religiosas que profesan los habitantes del país y en forma específica con la Iglesia Católica. Esta obligación constitucional consiste en posibilitar la formación religiosa en los centros docentes públicos, en la creación necesaria para su desarrollo y no concretamente en la asistencia de financiamiento económico. Con esto, la norma suprema considera de interés general la satisfacción de las necesidades religiosas, pese a la existencia de personas que no participen de ellas. Además, debe interpretarse, no como un indicador de parcialidad de la Constitución en beneficio de una confesión religiosa determinada, sino como un indicador de una realidad sociológica, cual es la mención expresa a la confesión indiscutiblemente más arraigada y extendida en nuestro país, lo que en ningún momento implica una discriminación por parte de los poderes públicos para las demás confesiones o para los ciudadanos aconfesionales." Por otra parte, el artículo 14 de la Convención sobre los Derechos del Niño establece:

"1. Los Estados Partes respetarán el derecho del niño a la libertad de pensamiento, conciencia y de religión. 2. Los Estados Partes respetarán los derechos y deberes de los padres, y en su caso, de los representantes legales, de guiar al niño en el ejercicio de su derecho de modo conforme con la evolución de sus facultades. 3. La libertad de manifestar la propia religión o las propias creencias, estará sujeta únicamente a las limitaciones prescritas por la ley que sean necesarias para proteger la seguridad, el orden, la moral o la salud pública o los derechos y libertades fundamentales de los demás".

De lo expuesto se concluye que a la niña amparada le asiste el derecho a no ser obligada a practicar actos de culto o a recibir asistencia religiosa contraria a sus convicciones personales. Dado que una de las creencias religiosas de la amparada se refiere al mandato de Dios de no hacer uso de imágenes o ídolos de connotación religiosa, la obligación de portar un escudete con la imagen de la Virgen de Las Mercedes constituye una imposición contraria a sus convicciones y al culto religioso que practica. En virtud de que en el Centro Educativo Las Mercedes la omisión de portar el escudete de la institución es sancionada en los términos indicados en el artículo 76 del Reglamento de Evaluación de los Aprendizajes, la amparada ha sido obligada a portar la imagen de la Virgen de Las Mercedes en su uniforme escolar, situación que resulta violatoria de la libertad religiosa y de culto, garantizada en los artículos 75 de la Constitución Política, 14 de la Convención de Naciones Unidas sobre los Derechos del Niño, 24 del Pacto Internacional de Derechos Civiles y Políticos, artículo 13.3 del Pacto Internacional de Derechos Económicos, Sociales y Culturales y 36 de la Ley Fundamental de Educación.” La tutela de la Sala Constitucional respecto a la objeción de conciencia, como garantía del derecho a la libertad de culto, se reiteró en la sentencia N° 2001-10491 de las 15:57 horas del 16 de octubre de 2001, en la que se señaló:

“IV.- Ahora bien, la negatoria de la solicitud planteada por el amparado, tuvo como fundamento tres cosas básicas: que la nota mediante la cual se le pidió la referida exoneración no aparecía firmada por el representante legal del menor; que ésta había sido presentada después del inicio del curso lectivo, cuando lo correcto es hacerlo al principio; Y que esa es una materia obligatoria para todos los alumnos. Ninguna de los tres argumentos tiene base jurídica alguna que lo sustente. El numeral 210 del Código de Educación es claro al señalar que "La asistencia a clases de religión se considera obligatoria para todos los niños cuyos padres no soliciten por escrito al Director de la escuela o colegio que se le exima de recibir esa enseñanza", de lo cual se infiere que el requisito de presentar la referida carta al inicio del curso es simple y llanamente una maniobra abusiva de parte del accionado Director en perjuicio del educando, pues impone límites a la libertad de culto que la ley no da. También se constata de la citada norma, que la obligatoriedad a que ella se refiere, está condicionada, únicamente, a que los padres del estudiante no soliciten por escrito la exoneración de la misma, situación que en el sublitem si se ha dado, según se desprende de los folios 10 y 32 del expediente, en donde aparecen la nota que en ese sentido dirigiera el padre del amparado al Director del Liceo. Por último, tampoco resulta cierto que la carta aludida carezca de la firma del responsable del menor amparado, ya que claramente puede leerse en ella que una de las dos firmas que allí aparecen está hecha bajo el subtítulo "PADRE O ENCARGADO" lo cual no se debe desmerecer por el solo hecho de que la rúbrica sea ilegible. Así las cosas, actuar como lo ha hecho el Director accionado, es quebrantar los principios de razonabilidad y proporcionalidad que informan al ordenamiento jurídico, ya que imponen límites que ni la Constitución Política ni la ley exigen a la libertad de culto, de allí que, dicha ruptura tenga como consecuencia dejar sin contenido la citada libertad de culto establecida en el artículo 75 constitucional y desarrollada en el 210 aludido. Por ello, lo procedente es declarar con lugar el recurso.” En otro precedente, la Sala Constitucional tuteló a una persona estudiante de la Universidad de Costa Rica a quien no se le respetó una objeción de conciencia para no recibir lecciones o realizar pruebas los sábados debido a la religión que profesa. Este precedente luego fue aplicado también al ámbito laboral. En ese sentido en la resolución n°2002-03018 de las 11:12 horas del 22 de marzo de 2002, se indicó:

“III.- Ahora bien, partiendo de los lineamientos expuestos en el considerando anterior, el derecho a la libertad religiosa ha sido vulnerado en el caso objeto de nuestro examen respecto del ámbito de las relaciones de cooperación que con las distintas confesiones ha de mantener el Estado a tenor del artículo 45 (sic) de la Constitución Política. En efecto, la negativa de la Universidad de Costa Rica a realizar un examen de reposición a la recurrente pese que su religión limita la realización de actividades educativas los días sábados, afecta el derecho a practicar los actos de culto propios de una creencia de la recurrente y como se dijo en el considerando anterior ese es uno de los elementos de la libertad religiosa. Estima esta Sala que la negativa de las autoridades universitarias a realizar un examen de reposición resulta irrazonable, dado que la realización de un examen extraordinario o de reposición, para la recurrente no sólo no afecta el debido funcionamiento de centro universitario recurrido, sino además se trata de una práctica usual y reconocida por toda la población estudiantil y docente. Así las cosas, se evidencia en el caso concreto que la Universidad de Costa Rica ha irrespetado ese deber de cooperación y de no injerencia externa por parte de los poderes públicos en las actividades de la creencia religiosa de la recurrente. En esa medida el ejercicio de su libertad religiosa de actuar conforme a determinado credo se ha visto restringida, condicionada y obstaculizada. La amparada se ha visto imposibilitada a desarrollar actividades que constituyen actos manifestaciones o expresiones de sus creencias religiosas. En virtud de ello, se ordena al Rector de la Universidad de Costa Rica acoger la gestión de la recurrente a fin de que no se le obligue a realizar exámenes los sábados, dado que ello va contra su fe religiosa y ello en definitiva limita y restringe su libertad de culto tutelado en el artículo 75 de la Constitución Política. Así las cosas, lo procedente es acoger el recurso, como en efecto se hace.” En la sentencia n°2002-08557 de las 15:37 horas del 03 de septiembre de 2002, se reconoce la posibilidad de los estudiantes para que, en el ejercicio del derecho contenido en el numeral 75 constitucional, nieguen, por objeción de conciencia, recibir formación de enseñanza religiosa, en ese sentido se indicó:

“La libertad de creencias, reconocido por el artículo 75 constitucional, es un género que comprende no sólo la libertad religiosa o de ejercer libremente su culto, sino que comprende el derecho de desarrollar y cultivar las convicciones individuales sin ser perturbados por el Estado. La libertad religiosa se inserta en la más comprensiva libertad de creencias nacida en la historia de la humanidad a partir de la Paz de Westfalia, como un reconocimiento a la tolerancia por parte de la Iglesia. El principal efecto de este reconocimiento es que nadie puede ser perjudicado ni favorecido por causa de sus creencias. También hay un trasfondo de respeto de igualdad ante la ley en este principio. El Derecho de profesar libremente el culto es la libertad de practicar una creencia religiosa. Ello significa libertad de exteriorización religiosa –no de creencia en la intimidad, pues ella escapa al alcance del derecho-, siempre que no afecte el orden, la moral o la seguridad pública (artículo 28 constitucional). También implica la facultad de asociación religiosa en comunidades de ese tipo. De modo que otra consecuencia inmediata de la libertad religiosa es el derecho que tienen los fieles y adeptos de asociarse en comunidades religiosas o de bien público. La libertad de creencias es incompatible con cualquier intento, por parte de los profesores (en general por parte del Estado) de incidir en la formación religiosa de los niños (en general de la población); salvo que el propio interesado (o en representación de los niños sus padres) accediese o solicitare dicho tipo de instrucción. De modo que resulta incompatible con el Derecho de la Constitución la expulsión de las escuelas de aquellos alumnos que se negaren, por objeción de conciencia, a cumplir la obligación de recibir formación o enseñanza religiosa de un tipo determinado.

IV.- El artículo 77 de la Constitución Política reconoce que el derecho a la educación pública, la cual será organizada como un proceso integral, correlacionado en sus diversos ciclos, desde la preescolar hasta la universitaria. Además, el artículo 75 Constitucional establece la libertad de creencias, principio según el cual se redactó el artículo 210 del Código de Educación que en lo conducente indica: "Cada grado o sección de las escuelas de primera enseñanza de la República, sin excepción, recibirá semanalmente dos horas lectivas de enseñanza religiosa. La asistencia a las clases de religión se considerará obligatoria para todos los niños cuyos padres no soliciten por escrito al Director de la escuela que se les exima de recibir esa enseñanza". De manera que se regula así la objeción de conciencia para los alumnos que por sus creencias se negaren a recibir la formación religiosa que imparte el Estado. En el caso que nos ocupa, ha sido debidamente acreditado que mediante nota fechada 25 de setiembre del 2001 el Director del Colegio Nocturno de Siquírres, (…), aceptó la solicitud de los padres de los amparados en el sentido de excluirlos de su obligación de recibir las clases de "Etica Cristiana" (folio 2). No obstante, (…), Directora del Colegio Nocturno de Siquirres, ha impedido que los amparados continúen cursando el tercer año de estudios secundarios en virtud de que en el período lectivo 2001 no aprobaron la asignatura "Etica Cristiana" (folios 2, 3, 4, 22, 23, 24). Estima la Sala que esta exclusión del sistema educativo de la que han sido objeto los amparados (…) constituye una flagrante violación del derecho a la educación y de la libertad religiosa, motivo por el cual el amparo resulta procedente en todos sus extremos. En consecuencia, se ordena a la Directora del Colegio Nocturno de Siquirres, reincorporar en forma inmediata a los amparados (…), como alumnos regulares del tercer año de estudios secundarios, tomando las medidas necesarias para que puedan adecuarse al estado en que se encuentran actualmente las asignaturas que cursan.” En la sentencia n°2003-03018 de las 14:48 horas del 22 de abril de 2003, este Tribunal tuteló a un estudiante que no cantaba el himno nacional ni realizaba el saludo a la bandera, considerando que dichos actos de adoración son contrarios a sus creencias religiosas, al respecto se indicó:

“V.- Es cierto que el derecho a la adecuación de la conducta a las convicciones propias no puede ser ilimitado, ya que esa conducta no debe dañar la moral, ni el orden públicos, ni a terceros. Sin embargo, en este caso no se está ante ninguno de esos supuestos. No cantar el Himno Nacional no atenta contra la moral ni el orden públicos ni daña a ningún tercero. El texto del artículo 32 del Reglamento Interno Estudiantil debe adecuarse a la Constitución Política, que está muy por encima de él. El deber de cantar el Himno Nacional está supeditado a derechos humanos superiores como la libertad de pensamiento y la libertad religiosa.

VI.- El Director alega también que los padres nunca solicitaron al colegio que eximieran al niño de cantar el Himno Nacional. El argumento no es de recibo, puesto que consta en los informes de calificaciones, a folios 68 a 70, que el estudiante no recibía el curso de religión. Está claro que el colegio conocía el credo religioso del amparado. Si el director esperaba una solicitud formal, estaba equivocado. El ejercicio de un derecho fundamental no puede estar supeditado a una formalidad. El más interesado en este asunto, precisamente el titular del derecho, el menor, ya había manifestado al colegio su decisión.” En la sentencia n°2005-05573 de las 16:07 horas del 10 de mayo de 2005, la Sala tuteló el derecho de una persona estudiante de la Universidad de Costa Rica para no realizar exámenes los sábados, debido a que es el día que según su credo debe dedicarse únicamente para uso devocional, en ese sentido dispuso:

“II.- Objeto del recurso. La recurrente estima violentado en su perjuicio la libertad religiosa, toda vez que está inscrita en el Programa de Educación Abierta del Ministerio de Educación Pública, en el cual se pretende obligarla a realizar los exámenes los días sábados, día que según su credo debe dedicarse únicamente para uso devocional, lo cual resulta contrario a su libertad religiosa y de culto.

III.- Sobre el fondo. En un asunto similar al de estudio este Tribunal dispuso:

“I.- La queja vertida por la recurrente versa sobre el derecho a la libertad religiosa reconocido en el artículo 75 de la Constitución Política. Aduce en síntesis la recurrente que al obligarla la Universidad de Costa Rica a realizar exámenes los sábados, día en que según su credo debe dedicarse únicamente para uso devocional, resulta contrario a su libertad religiosa y de culto.

II.- Delimitando el contenido del derecho fundamental a la libertad religiosa podemos decir que sería propiamente una libertad a decidir por sí mismo la propia ideología, religión o creencia. La libertad que analizamos incluye por consiguiente: a) el derecho a profesar una religión o a no profesar ninguna, b) el derecho a practicar los actos de culto propios de una creencia, c) el derecho a comportarse en la vida social de acuerdo con las propias convicciones. Asimismo, tenemos que el artículo 75 de la Constitución Política garantiza la libertad religiosa y de culto de los individuos y las comunidades sin más limitación, en sus manifestaciones, que la necesaria para el mantenimiento del orden público protegido por la ley. Ahora bien, el contenido del derecho a la libertad religiosa no se agota en la protección frente a injerencias externas de una esfera de libertad individual o colectiva que permite a los ciudadanos actuar con arreglo al credo que profesen, pues cabe apreciar una dimensión externa de la libertad religiosa que se traduce en la posibilidad de ejercicio, inmune a toda coacción de los poderes públicos, de aquellas actividades que constituyen manifestaciones o expresiones del fenómeno religioso. Sobre este tema esta Sala en sentencia número 3173-93 de las catorce horas cincuenta y siete minutos del siete de junio de mil novecientos noventa y tres dispuso:

"...VII.- La libertad religiosa encierra, en su concepto genérico, un haz complejo de facultades. En este sentido, en primer lugar se refiere al plano individual, es decir, la libertad de conciencia, que debe ser considerado como un derecho público subjetivo individual, esgrimido frente al Estado, para exigirle abstención y protección de ataques de otras personas o entidades. Consiste en la posibilidad, jurídicamente garantizada, de acomodar el sujeto, su conducta religiosa y su forma de vida a lo que prescriba su propia convicción, sin ser obligado a hacer cosa contraria a ella. En segundo lugar, se refiere al plano social, la libertad de culto, que se traduce en el derecho a practicar externamente la creencia hecha propia...” En la sentencia n°2012-10456 de las 05:27 horas del 01 de agosto de 2012, la Sala Constitucional, resolvió un proceso de amparo contra el Ministerio de Educación Pública por el tema del Programa de Educación para la Afectividad y Sexualidad, dejando claro que el Ministerio de Educación debe respetar las convicciones religiosas y filosóficas de los padres en la educación de sus hijos; es decir la Sala reconoció el derecho a la objeción de conciencia en la educación de personas menores de edad relacionada con la materia de sexualidad. En lo que interesa la Sala dijo:

“VI.- SOBRE EL DERECHO A LA EDUCACIÓN Y LAS OBLIGACIONES DEL ESTADO EN MATERIA DE EDUCACIÓN SEXUAL. El Derecho Internacional de los Derechos Humanos reconoce el derecho a la educación, en general, para todas las personas sean ellas menores de edad o no, tal como lo ha señalado este Tribunal en reiterada jurisprudencia -entre otras, sentencia número 1791-2004, de las nueve horas dos minutos del veinte de febrero del dos mil cuatro-. En relación con el objeto del presente amparo, el derecho a la educación impone una serie de obligaciones al Estado en materia de educación sexual y salud. Al respecto, la Convención sobre la Eliminación de todas las formas de Discriminación contra la Mujer, señala:

“Artículo 10: Los Estados Partes adoptarán todas las medidas apropiadas para eliminar la discriminación contra la mujer, a fin de asegurarle la igualdad de derechos con el hombre en la esfera de la educación y en particular para asegurar, en condiciones de igualdad entre hombres y mujeres:

(…)

• h)Acceso al material informativo específico que contribuya a asegurar la salud y el bienestar de la familia”.

Por su parte, la Convención Iberoamericana de los Derechos de los Jóvenes, integra como parte del derecho a la educación, el derecho a la educación sexual de los jóvenes, al disponer lo siguiente:

“Artículo 23: 1. Los Estados Parte reconocen que el derecho a la educación también comprende el derecho a la educación sexual como fuente de desarrollo personal, afectividad y expresión comunicativa, así como la información relativa la reproducción y sus consecuencias. 2. La educación sexual se impartirá en todos los niveles educativos y fomentará una conducta responsable en el ejercicio de la sexualidad, orientada a su plena aceptación e identidad, así como, a la prevención de las enfermedades de transmisión sexual, el VIH (Sida), los embarazos no deseados y el abuso o violencia sexual. 3. Los Estados Parte reconocen la importante función y responsabilidad que corresponde a la familia en la educación sexual de los jóvenes. 4. Los Estados Parte adoptarán e implementarán políticas de educación sexual, estableciendo planes y programas que aseguren la información y el pleno y responsable ejercicio de este derecho”.

Finalmente, la Convención sobre los Derechos del Niño indica:

“Artículo 19: 1. Los Estados Partes adoptarán todas las medidas legislativas, administrativas, sociales y educativas apropiadas para proteger al niño contra toda forma de perjuicio o abuso físico o mental, descuido o trato negligente, malos tratos o explotación, incluido el abuso sexual, mientras el niño se encuentre bajo la custodia de los padres, de un representante legal o de cualquier otra persona que lo tenga a su cargo.”.

Las mencionadas obligaciones internacionales en materia de educación sexual y salud han sido acogidas por nuestro ordenamiento jurídico, en especial en el Código de la Niñez y la Adolescencia, el cual dispone lo siguiente:

“Artículo 44.- Competencias del Ministerio de Salud.

El Ministerio de Salud velará porque se verifique el derecho al disfrute del más alto nivel de salud, el acceso a los servicios de prevención y tratamiento de las enfermedades, así como la rehabilitación de la salud de las personas menores de edad. Para esta finalidad, el Ministerio de Salud tendrá las siguientes competencias:

(…)

• c)Garantizar la creación y el desarrollo de los programas de atención y educación integral dirigidos a las personas menores de edad, incluyendo programas sobre salud sexual y reproductiva; (…)
• g)Garantizar programas de tratamiento integral para las adolescentes, acerca del control prenatal, perinatal, postnatal y psicológico”.

“Artículo 55.- Obligaciones de autoridades educativas.

Será obligación de los directores, representantes legales o encargados de los centros de enseñanza de educación general básica preescolar, maternal u otra organización, pública o privada, de atención a las personas menores de edad:

(…)

• c)Poner en ejecución los programas de educación sobre salud preventiva, sexual y reproductiva que formule el ministerio del ramo”.

“Artículo 58.- Políticas nacionales.

En el diseño de las políticas educativas nacionales, el Estado deberá:

(…)

• f)Propiciar la inclusión, en los programas educativos, de temas relacionados con la educación sexual, la reproducción, el embarazo en adolescentes, las drogas, la violencia de género, las enfermedades de transmisión sexual, el sida y otras dolencias graves”.

Como se desprende de las normas transcritas, tanto a nivel internacional como a partir del desarrollo normativo interno que de ellas se hace, existe una obligación para el Estado costarricense de implementar políticas de educación sexual para las personas menores de edad. Este Tribunal acredita que el programa de estudio de “Educación para la afectividad y la sexualidad integral” elaborado por el Ministerio de Educación responde precisamente a dicha obligación convencional y legal. Ahora bien, esta obligación no implica a su vez, la posibilidad del Estado, - al menos no en un estado constitucional de derecho-, de afectar los derechos de libertad y conciencia y de religión de una parte de la población, también establecidos en instrumentos internacionales de derechos humanos, por lo que es necesario, tomar acciones que permitan armonizar la existencia armónica de ambos derechos según se detalla a continuación.

VII.- SOBRE EL RECLAMO POR AFECTACIÓN DEL DERECHO CONSTITUCIONAL DE LOS PADRES EN RELACIÓN CON LA EDUCACIÓN DE SUS HIJOS: En este caso la competencia de este Tribunal, no apunta a determinar cuál debe ser el contenido específico de las guías sexuales que se impartirán en el sistema educativo nacional; este es asunto que corresponde al Consejo Superior de Educación de conformidad con el numeral 81 de la Constitución Política. Más bien la competencia de la Sala se enmarca en la protección de los derechos fundamentales de los justiciables, particularmente el referido a la normativa jurídica del más alto rango jurídico que reconoce a los padres de familia la posibilidad de que sus hijos sean educados en forma acorde con sus creencias morales o religiosas. Al respecto, es importante citar lo que los instrumentos internacionales sobre Derechos Humanos señalan, comenzando por la Declaración Universal de Derechos Humanos, que en su artículo 26, inciso 3, puntualiza que los padres tienen derecho preferente a escoger el tipo de educación que habrá de darse a los hijos. Por su parte, el Pacto Internacional de Derechos Económicos, Sociales y Culturales, expresa, en su numeral 13, inciso 3), lo siguiente:

“Artículo13 (…)

3. Los Estados Partes en el presente Pacto se comprometen a respetar la libertad de los padres y, en su caso, de los tutores legales, de escoger para sus hijos o pupilos escuelas distintas de las creadas por las autoridades públicas, siempre que aquéllas satisfagan las normas mínimas que el Estado prescriba o apruebe en materia de enseñanza, y de hacer que sus hijos o pupilos reciban la educación religiosa o moral que esté de acuerdo con sus propias convicciones”.

Asimismo, el Pacto Internacional de Derechos Civiles y Políticos, en su artículo 18, inciso 4, establece lo siguiente:

“Artículo 18.- (…)

4. Los Estados Partes en el presente Pacto se comprometen a respetar la libertad de los padres y, en su caso, de los tutores legales, para garantizar que los hijos reciban la educación religiosa y moral que esté de acuerdo con sus propias convicciones”.

Este concepto se repite en el artículo 12 inciso 4) de la Convención Americana Sobre Derechos Humanos que señala:

“Artículo 12.- Libertad de Conciencia y de Religión (…)

4. Los padres, y en su caso los tutores, tienen derecho a que sus hijos o pupilos reciban la educación religiosa y moral que esté de acuerdo con sus propias convicciones.” Finalmente y dentro de dicha normativa internacional aplicable al caso, debe mencionarse la Convención sobre los Derechos del Niño establece 12 que:

“1) Los Estados Partes respetarán el derecho del niño a la libertad de pensamiento, de conciencia y de religión. 2) Los Estados Partes respetarán los derechos y deberes de los padres y, en su caso, de los representantes legales, de guiar el niño en el ejercicio de su derecho de modo conforme a la evolución de sus facultades. 3) La libertad de manifestar la propia religión estará sujeta únicamente a las limitaciones prescritas por la ley y que sean necesarias para proteger la seguridad, el orden, la moral o la salud pública o los derechos o libertades de los demás”.

Igualmente, se desprende de las normas anteriores la existencia de una obligación estatal referida concretamente a la actividad estatal de educación, de manera que la educación que se imparte oficialmente no podría simplemente imponer su poder, por sobre el contenido esencial de los derechos recogidos en los instrumentos recién citados.

VIII.- Este tema, a su vez, tiene un desarrollo jurisprudencial, en la jurisprudencia del Tribunal Europeo de Derechos Humanos. Este Tribunal ha resuelto casos de objeción de conciencia en el ámbito educativo a causa de la invocación del artículo 2 del primer Protocolo adicional a la Convención Europea de Derechos Humanos, en el que se le impone al Estado el deber de respetar las convicciones religiosas y filosóficas de los padres en la educación de sus hijos. Destaca el primer enfoque sobre el tema, que se dio en la sentencia Kjeldsen, Busk Madsen y Pedersen vs. Dinamarca, donde se analizó precisamente un conflicto entre unos padres de familia que se oponían a que sus hijos recibieran una asignatura obligatoria sobre educación sexual integrada, la Corte consideró que la finalidad perseguida por el gobierno danés, con la nueva ley, era legítima, pues con ello se pretendía combatir el número de embarazos no deseados fuera del matrimonio, el número de abortos y las enfermedades venéreas. Puntualizó también que el numeral 2 del citado Protocolo no impedida que los Estados difundieran, por medio de la enseñanza o la educación, conocimientos o informaciones que tengan, directamente o no, carácter religioso o filosófico. No le permitió a los padres oponerse a este tipo de temas, pues la enseñanza institucionalizada corría el riesgo de hacerse impracticable, aunque sí le impuso al Estado el deber de vigilancia para que esos conocimientos insertados en un programa se difundiera de manera objetiva, crítica y pluralista, con lo que prohibió perseguir una finalidad de adoctrinar, lo que sí podría afectar las convicciones religiosas y filosóficas de los padres. En este caso, resulta de particular relevancia el voto salvado del Juez Verdross, que se convirtió –con el paso del tiempo- en posición de mayoría del Tribunal en casos subsiguientes. Según el citado Juez, una enseñanza en materia sexual, detallada y demasiado precoz impartida por el Estado al amparo del monopolio del Estado en el dominio de la educación, priva a los padres de su derecho primordial de asegurar la educación a sus hijos de acuerdo con sus propias convicciones religiosas. También puntualizó que todo lo que concierne a la conciencia de los hijos –su orientación moral- es un tema que incumbe a los padres según la doctrina cristiana, por lo que el Estado no puede interponerse entre los padres y los hijos contra la voluntad de los primeros. Se pregunta, si con base en el artículo 2 del Protocolo pueden los padres oponerse a una educación sexual obligatoria en una escuela pública e, incluso, cuando la mencionada educación no constituye una tentativa de adoctrinamiento. Para responder esa interrogante, hace una distinción entre los hechos de la sexualidad humana, que forman parte de la biología, y las conductas sexuales, incluida la contracepción y métodos anticonceptivos. Para el citado Juez, estas últimas sí se encuentran sumidas dentro del ámbito moral y de conciencia, por lo que es a los padres a quienes corresponde su formación, no al Estado; ese derecho de los padres no puede vulnerarse, desconocerse o menospreciarse por el Estado. Por ello, aun y cuando la información sobre conductas sexuales tenga un carácter objetivo, lesionan el derecho de los padres en cuanto invaden la conciencia de los hijos menores, pues pueden recibir una educación contraria a las convicciones religiosas de sus progenitores. La doctrina sentada en ese voto salvado fue seguida por el citado Tribunal en la sentencias Folgero y Zengin v. Turquía. En esta última sentencia, el Tribunal concluye que el Estado está en la obligación de respetar las convicciones religiosas y filosóficas de los padres, en el conjunto del programa de la enseñanza pública. Este deber del Estado vale para el contenido de la enseñanza y la manera de dispensarla y en ese contexto los padres pueden exigir al Estado el respeto de sus convicciones religiosas y filosóficas.

IX.- También la Corte Suprema de Justicia de los Estados Unidos de América se ha pronunciado sobre el nexo entre la educación y la libertad de conciencia. Al respecto, en la sentencia Winsconsin v. Yoder (1972), la Corte consideró, a propósito de la educación impartida a los niños de la religión Amish, que " (…) la esencia de todo lo que se ha dicho y escrito sobre este tema es que los intereses de orden superior y aquellos otros que no pueden ser ejercidos de otra manera pueden contrabalancear el legítimo reclamo a la libre profesión de una religión. Podemos dar por aceptado, en consecuencia, que no importa cuán fuerte sea la obligación del Estado en la educación general obligatoria, éste no es de modo alguno absoluto no permite la exclusión o subordinación del resto de los intereses. El cumplimiento de la ley estatal que requiere la asistencia obligatoria a la escuela... pondría en peligro gravemente, si es que no destruiría, el libre ejercicio de su fe a los demandados." Así, se consideró prevalente la libertad religiosa frente al interés estatal de una educación obligatoria para los menores hijos de los Amish.

X.- CONSIDERACIONES SOBRE EL CASO CONCRETO: En este caso, existen elementos de convicción suficientes para concluir que el programa de estudio de “Educación para la afectividad y la sexualidad integral” no se refiere únicamente a hechos de la sexualidad humana, sino que también abarca conductas sexuales. Basta para ello señalar que en el documento en que se plasma, se establece lo siguiente:

“En Costa Rica, hasta ahora, la educación para la sexualidad se ha planteado mayoritariamente como un proceso informativo y centrado en su dimensión biológica. Este programa de estudio, en el marco de la política general vigente aprobada por el Consejo Superior de Educación del 2001, denominada Política Educación Integral de La expresión de la Sexualidad Humana (Acuerdo del artículo tres del acta 2001-12-06 modificado en su apartado No.6 con el acuerdo 02-08-04) integra esa dimensión, como elemento indispensable de una formación de sexualidad, pero agrega una dimensión formativa y afectiva, en la que se enfatiza”. (Las negritas no corresponden al original). Más adelante se puntualiza que con el contenido y las estrategias de este programa lo que se busca es “(…) generar cambios de actitud que potencien el respeto y la promoción de la persona humana”, sea la forma de actuar de los estudiantes, su comportamiento frente a la sexualidad, lo que lógicamente implica inculcarles valores, conocimiento, concepciones, destrezas y habilidades frente al fenómeno de la sexualidad. Prueba de lo que venimos afirmando, es que cuando se precisa que se entiende por educación para la afectividad y la sexualidad integral, “(…) parte de que la misión de la sexualidad es el vínculo, desde dimensiones afectiva, corporal, ética y espiritual, con el apoyo y la promoción de la madurez emocional”. Se entiende por lo espiritual lo relativo a los valores, los criterios éticos y el sentido de la vida.” Ahora bien, si nuestra sociedad tiene formalmente reconocidas como finalidades el pluralismo, la democracia y el respeto de libertad de pensamiento y de creencias, es de esperar que dentro de ella surjan prosperen o decaigan numerosas visiones y perspectivas sobre una amplia variedad de cuestiones ideológicas y morales entre las cuales se incluyen las conductas sexuales de los individuos, las cuales a menudo se hallan estrechamente relacionadas con creencias religiosas o filosóficas de las personas; similarmente, también es inevitable que quienes profesan tales creencias, pretendan ejercitar el precitado derecho fundamental a transmitirlas a sus hijos.- Dentro de esta pluralidad, cabe entonces hacerse cuestión sobre la validez de imponer una visión de las conductas sexuales por parte del Estado en el sentido de preguntarse cuál entre todas ha de ser esa visión favorecida: ¿La de del Consejo Superior de Educación o la del señor Ministro de Educación Pública? ¿la de la señora Defensora de los Habitantes o la de los profesores que imparten la materia? ¿Debe imponerse la ligada a una práctica religiosa particular o más bien deben difundirse los criterios de los agnósticos, de los ateos, o de los amorales? Evidentemente, resulta imposible que el contenido de este tipo de programa pueda satisfacer a todos, es decir, esté acorde con las creencias religiosas y filosóficas de todos los padres de familias y sus hijos, de ahí que se reconozca la potestad del Estado de dar el contenido que considere el más conveniente, pero ante el hecho de que este tipo de enseñanza forma parte del acervo moral de los educandos e incide en su escala de valores, en sus creencias y en su conciencia, los padres que consideren que el contenido de guías sexuales afecta negativamente las creencias religiosas y filosóficas que quieren para sus hijos, no tienen la obligación de soportar una invasión de parte del Estado, en un ámbito que el Derecho de la Constitución y el Derecho Internacional de los Derechos Humanos reserva a la esfera de la relación padres e hijos. En esta dirección, resulta pertinente traer a colación lo que la Corte Constitucional colombiana puntualizó en la sentencia T 662/99, en el sentido de que:

“(…) no puede afirmarse que el pensamiento de uno de los estudiantes o su comportamiento moral o religioso legitimen conductas de la institución orientadas hacia el desconocimiento de los derechos constitucionales fundamentales, particularmente en el espacio reservado a su libertad de conciencia. Mientras se trate apenas de la profesión de sus ideas o de prácticas acordes con el libre ejercicio de aquélla, y en tanto con su conducta no cause daño a la comunidad estudiantil, la conciencia individual debe estar exenta de imposiciones externas”.

La sociedad democrática es una sociedad tolerante y, por consiguiente, se impone tanto el respeto de las creencias de todas las personas que forman parte de la sociedad, como el derecho que dichas creencias se traduzcan en la realidad, independientemente de lo que piensen los demás sobre estas, así como a rechazar cualquier invasión en ámbito de la conciencia. Por ello, entiende este Tribunal que la manera apropiada de conciliar los derechos en juego en este caso, apunta a la necesidad de establecer un mecanismo en favor de aquellos padres que consideren que la puesta en ejecución del programa de estudio de “Educación para la afectividad y la sexualidad integral” afecta sustancialmente su derecho fundamental a incidir efectivamente en los aspectos que afecten la educación moral o religiosa de sus hijos, según la formulación recogida en las normas de derecho positivo ya reseñadas.- XI.- Ahora bien, este Tribunal considera importante dejar establecidas algunas ideas generales sobre ese mecanismo de exclusión del programa de estudio de “Educación para la afectividad y la sexualidad integral” que aquí se reconoce como parte de un ejercicio válido de un derecho fundamental.- Como se indicó, la Sala comprende la relevancia de la educación sexual y asume como suyas las inquietudes respecto de los problemas de salud pública y de desarrollo que se han atribuido a la falta de educación sexual.- Esto, sumado a las obligaciones impuestas al Estado por el Derecho internacional, hacen que el relevo de la obligación educativa estatal y de su responsabilidad en este aspecto. Para que los padres puedan excluir a sus hijos de la atención del programa de estudio de “Educación para la afectividad y la sexualidad integral” debe el Ministerio de Educación Pública establecer la forma en que los representantes del menor puedan hacer la respectiva objeción a través de un mecanismo ágil y sencillo, con el fin de garantizarles el respeto de sus derechos fundamentales relativos a la educación de sus hijos. A manera de ejemplo podría bastar una simple comunicación por escrito del padre de familia al Director del Centro Educativo indicándole que sus hijos no recibirán ese contenido educativo.” En el ámbito laboral, la Sala mediante la sentencia N° 2015-008155, de las 10:05 horas del 05 de junio de 2015, resolvió un proceso de amparo en el cual se tuteló el despido de un funcionario que no laboraba los días sábado por pertenecer a la Iglesia Adventista del Séptimo Día, en ese sentido dispuso:

“El recurrente reclama que, a pesar de ser conocido por autoridades de tránsito que pertenece a la Iglesia Adventista del Séptimo Día y, por ende el sábado es día de reposo, el Delegado de Tránsito de Cartago le cambió el horario incluyendo los sábados, además, que el once de mayo siguiente fue advertido verbalmente que ya se había dado traslado del informe para su despido por no laborar los sábados.

II.- Hechos probados. De importancia para la decisión de este asunto, se estiman como debidamente demostrados los siguientes hechos, sea porque así han sido acreditados o bien porque el recurrido haya omitido referirse a ellos según lo prevenido en el auto inicial:

a. El 10 de mayo de 2013, el recurrente presentó ante el Despacho del Ministerio de Obras Públicas y Transportes una carta en la cual hace constar que es miembro activo de la organización religiosa Adventista del Séptimo Día (véase Informe de ley).

b. El 07 de abril de 2015, el Delegado de Tránsito de Cartago le informó, de manera verbal, al recurrente que debido a necesidades de personal se le modificó el horario (véase informe de ley).

c. El 14 de abril de 2015, el recurrente presentó ante el Departamento de Relaciones Laborales del Ministerio de Obras Públicas y Transportes una gestión en la que indica que está en desacuerdo en trabajar los sábados debido a su condición religiosa. (véase informe de ley).

d. El 15 de abril de 2015, mediante oficio DRL-088-2015 el Departamento de Relaciones Laborales del MOPT, le informó al recurrente que ese departamento carece competencia para resolver lo solicitado. (véase informe de ley).

e. El 21 de abril en el oficio DTC-2015-0240, se le comunicó al recurrente el cambio de horario.

f. El 24 de abril de 2015, el Consejo de Personal del MOPT le solicitó al Director Jurídico que emitiera un criterio legal sobre la solicitud del recurrente (véase informe de ley).

g. El 14 de mayo de 2015, mediante oficio 20152143, la Dirección Jurídica del Ministerio de Obras Públicas y Transportes señaló: “Es nuestro criterio jurídico que la Administración debe respetar el derecho constitucional de aquellos funcionarios que profesen un credo religioso cuya celebración se lleva a cabo los días sábados (…)” (véase informe de ley ).

h. El 19 de mayo de 2015, se giró el oficio DGTP-0704-2015 en donde se le comunicó a Mariano Alfaro Mora (Jefe de la Policía de Tránsito de Cartago), que modificara el horario del recurrente (véase informe de ley).

i. El 20 de mayo de 2015, el Jefe del recurrente, mediante oficio DTC 2015-0310, indicó: “Le comunico que procederé inmediatamente con el cambio de rol de trabajo del funcionario, lo anterior de conformidad con el criterio emitido por… la Asesoría Jurídica… así también del Acuerdo del Consejo de Personal (…)” (véase informe de ley).

j. La Dirección General de Tránsito del Ministerio de Obras Públicas y Transportes, no ha promovido gestión alguna para el despido del recurrente (véase informe de ley).

III.- Hechos no probados. Ninguno de relevancia para la resolución del presente asunto.

IV- Sobre el fondo. Del informe rendido por la autoridad recurrida -que se tiene dado bajo fe de juramento con las consecuencias, incluso penales, previstas en el artículo 44 de la Ley que rige esta Jurisdicción- y la prueba aportada para la resolución del asunto, si bien las autoridades recurridas manifiestan haber resuelto la gestión que presentó el recurrente el 8 de abril del 2015 en relación con el cambio de horario emitido por la Jefatura de Tránsito de Cartago, también es lo cierto que sobre la solicitud presentada por la recurrente (14 de abril de 2015), la autoridad recurrida le comunicó lo resuelto el 20 de de mayo del presente año, lo que se produjo con posterioridad a la notificación de la resolución que dio curso al presente amparo (18/05/2015). Ahora bien, en cuanto al despido que alega el recurrente, del informe emitido se tiene que no ha promovido gestión alguna. En este contexto, lo que corresponde es declarar con lugar el recurso, únicamente para efectos indemnizatorios.” En la sentencia N°2015-011897 de las 11:41 horas del 31 de julio de 2015, la Sala Constitucional, tuteló a un oficial de la Fuerza Pública que profesa el judaísmo, religión para la cual el Shabat "sábado" es un día de reposo, en ese sentido se indicó:

“IV.- Caso concreto.- Ahora bien, en el caso particular, se tiene debidamente acreditado que el recurrente, [NOMBRE001], es miembro activo de la Asociación Toras Jai VeAhavas Jesed, cuya actividad es de carácter religioso, según constancia emitida por el Rabino Rinjos Dov Fishman, el 17 de febrero del 2015. Asimismo, es oficial del Ministerio de Seguridad Pública, y se encuentra destacado en la Delegación Policial de Alajuelita. El tutelado alega violación a su libertad religiosa -consagrada en el artículo 75, de la Constitución Política-, debido a que el 9 de diciembre de 2014, presentó ante sus superiores un libelo en el que -por sus creencias religiosas- solicitó que se le otorgara un rol de labor de 5 x 2, debido a que profesa el judaísmo y el Shabat "sábado" es un día de suma importancia como parte fundamental de sus creencias y prácticas de culto, ya que es día de reposo. Por ello, se abstienen de realizar actividades que no tengan relación con las del culto y adoración, propias de ese día. No obstante, asegura que dicha gestión –así como otras posteriores-, han sido denegadas por sus superiores por diversas razones de índole administrativa. Por su parte, el Jefe de la Delegación Policial de Alajuelita y el Director Jurídico del Ministerio de Seguridad Pública, indican, en su informe, que ese Ministerio no se opone a las creencias religiosas del señor [NOMBRE001], ni a la libertad de culto a la que tiene derecho; sin embargo, alegan que se encuentra de por medio toda la operatividad de una Delegación Policial, la cual está previamente establecida, e implica toda una organización del personal con que se cuenta, por lo que el cambio de rol de un funcionario hace que la misma se vea alterada, ya que no se dispone de la cantidad de personal con la que se contaba al momento de elaborar los planes de trabajo diario de dicha delegación. Asimismo, indican que mediante oficio N°0249-2015-D10 del 14 de abril del 2015, se brindó respuesta a la nota del 11 de abril, en la cual se explicó al recurrente que no procede asignarle el rol 5 x 2, debido a que las funciones que permiten dicho rol ya están siendo realizadas en la Delegación Policial, y el amparado ocupa el puesto de Agente de Comunicaciones, en Análisis Ocupacional, clase 2. Al respecto, resulta pertinente aclarar que los miembros de los cuerpos policiales del Estado, al igual que cualquier persona, gozan de derechos fundamentales, y si bien se ha reconocido que pueden ser objeto de ciertas limitaciones de naturaleza laboral en razón de la función que desempeñan, lo cierto es que esto sería posible únicamente en aquellos casos en los que se encuentre de por medio el interés de la colectividad debidamente comprobado, pues de lo contrario se incurriría en una actuación ilegítima. Tomando en cuenta lo anterior, y tras analizar los elementos aportados a los autos, se estima que la decisión de la autoridad accionada resulta contraria a derecho, pues si se toma en cuenta que una gran mayoría de la población del país pertenece al catolicismo, y una minoría es protestante, y dentro de esa minoría un porcentaje aún más pequeño guarda el sábado por razones religiosas, es razonable sostener que en el caso de los miembros de la Fuerza Pública, son pocos los que profesan esas creencias religiosas, de ahí que el hecho de que se permita a estos oficiales cumplir con ese precepto, no implica de ninguna manera una afectación grave del servicio público que les ha sido encomendado. En ese sentido, previo a adoptar la decisión que se cuestiona en este recurso de amparo, los recurridos se encontraban en la obligación de buscar la solución menos gravosa para el tutelado, con el fin de que se no se afectara lo dispuesto por el numeral 75, de la Constitución Política, no obstante, los accionados no procedieron de esa manera, pues la medida adoptada implicó una lesión a la libertad religiosa del amparado, y, además, no fue proporcional al fin por el que fue adoptada, ya que como se indicó anteriormente, el hecho de que se hubiera permitido al amparado guardar su día de descanso, no conllevaba a una vulneración seria del interés público. Es decir, dentro de dos soluciones posibles, se opta por la más gravosa para el derecho fundamental y, por consiguiente, se vulnera, además de que la medida acordada por la autoridad recurrente, no es proporcional ni justa en sí misma, por lo que no hay otra alternativa que declarar con lugar el recurso de amparo. En consecuencia, el amparo resulta procedente por acreditarse la lesión al artículo 75 constitucional, y se ordena a los funcionarios recurridos de forma inmediata respetar al señor [NOMBRE001], el sábado como día de culto y adoración, el cual se le tendrá siempre como su día de descanso.” En la sentencia N°2017-000228 de las 09:15 horas del 13 de enero de 2017, la Sala Constitucional, tuteló de igual manera a un estudiante de la Universidad de Costa Rica para que no le fueran realizadas pruebas o evaluaciones lo sábados y señaló que:

“…en el caso que nos ocupa, resulta pertinente tener presente que la libertad religiosa, consagrada en el artículo 75, de la Constitución Política, encierra, en su concepto genérico, un haz complejo de facultades. En este sentido, en primer lugar, se refiere al plano individual, es decir, la libertad de conciencia, que debe ser considerado como un derecho público subjetivo individual, esgrimido frente al Estado, para exigirle abstención y protección de ataques de otras personas o entidades. Consiste en la posibilidad, jurídicamente garantizada, de acomodar el sujeto, su conducta religiosa y su forma de vida a lo que prescriba su propia convicción, sin ser obligado a hacer cosa contraria a ella. En segundo lugar, se refiere al plano social, la libertad de culto, que se traduce en el derecho a practicar externamente la creencia hecha propia. Ahora bien, al igual que cualquier derecho fundamental, el ejercicio de la libertad religiosa o de culto, no es ilimitado, pues la propia Constitución Política dispone, en el numeral 75, que éste no podrá oponerse a la moral universal, ni a las buenas costumbres. Asimismo, tratados internacionales como el Pacto Internacional de Derechos Civiles y Políticos, dispone, en su artículo 18, que “ la libertad de manifestar la propia religión o las propias creencias estará sujeta únicamente a las limitaciones por la ley que sean necesarias para proteger la seguridad, el orden, la salud o la moral públicos, o los derechos o libertades fundamentales de los demás”. De lo anterior, se desprende que cualquier manifestación de la libertad religiosa podrá ser posible, siempre y cuando no resulte contraria a la moral y las buenas costumbres de la sociedad, o lesione en forma grave el interés público, pues de darse alguno de estas situaciones, sí sería posible la limitación del derecho de cita.” En relación con la objeción de conciencia en el ámbito laboral, la Sala Constitucional, se pronunció recientemente, sobre el caso planteado por un juez del Juzgado Notarial del Poder Judicial, luego de que las autoridades accionadas denegaran el ejercicio de la objeción de conciencia ante gestiones planteadas por personas del mismo sexo. En ese sentido, en la sentencia N°2020-001619 de las 12:30 horas del 24 de enero de 2020, se indicó:

“IV.- Sobre el derecho a la objeción de conciencia. Tanto en la doctrina como en la jurisprudencia más autorizada de los Tribunales garantes de los derechos fundamentales, se ha conceptualizado la objeción de conciencia como un derecho fundamental de toda persona a negarse a cumplir un deber, el que se encuentra en el ordenamiento jurídico, a causa de que la norma respectiva resulta incompatible con sus creencias o convicciones, las que tienen como basamento, en regla de principio, convicciones religiosas, morales o ideológicas. Se sostiene que este derecho es una derivación lógica y necesaria de la libertad de conciencia, y constituye una de sus manifestaciones externas. El reconocimiento y la tutela efectiva de este derecho fundamental, es un elemento distintivo indiscutible de una sociedad pluralista, al extremo, de que su no reconocimiento o su reducción a la mínima expresión -afectación severa a su contenido esencial que lo hace irreconocible o impracticable-, no solo denota su vulneración, sino que constituye un signo preocupante de que la sociedad que se encuentra en tal situación, pretende imponer una visión única, un pensamiento exclusivo y excluyente, sobre temas y cuestiones en las que debe privar la diversidad de opiniones en consonancia con el numeral 28 de la Carta Fundamental y los artículos 12 y 13 de la Convención Americana sobre Derechos Humanos, as í como su numeral 6, donde de manera expresa se establece el servicio militar y, en los países donde se admite exención por razones de conciencia, el servicio nacional que la ley establezca en lugar de aquél. Al igual que la citada Convención, el Convenio Europeo para la Protección de los Derechos Humanos y las Libertades Fundamentales, hace referencia expresa a la objeción de conciencia en los mismos términos en el artículo 4.3.b. Por su parte, la Carta Europea de los Derechos Fundamentales de la Unión Europea, cuando se refiere a la libertad de pensamiento, de conciencia y de religión en su numeral 10, inciso 2, reconoce de forma expresa el derecho a la objeción de conciencia de acuerdo con las leyes nacionales que regulen su ejercicio. A diferencia de la Corte Interamericana de Derechos Humanos, el Tribunal Europeo de Derechos Humanos (en adelante el TEDH) sí se ha pronunciado sobre el derecho fundamental a la objeción de conciencia. En lo que respecta al servicio militar obligatorio, en el caso Tblimmenos vs. Grecia, en el año 2000, el TEDH concluyó que el citado Estado había violentado la prohibición de discriminación (artículo 14 del Convenio) en relación con el derecho a la libertad de pensamiento, de conciencia y exclusión (artículo 9 del Convenio), al considerar que la exclusión del solicitante de la profesión de contador público era desproporcionada en relación con la garantía del adecuado castigo de las personas que se niegan a servir al país -se trataba de un testigo de Jehová que había sido condenado a cuatro años de prisión por haberse negado a alistarse en el ejército-, especialmente porque ya había cumplido la pena. Seis a ños pasaron para que el TEDH, en el caso Ulke vs. Turquía 2006, estableciera límites a los Estados parte del Convenio, al prohibir el infligir tratos inhumanos y degradantes (artículo 3o del Convenio) contra la persona objetante. El actor era un ciudadano turco que se negó a prestar el servicio militar por sus creencias pacifistas, quien había sido condenado nueve veces a prisión. De gran importancia en esta reseña jurisprudencial, es el caso Bayatyan vs. Armenia de 2011, en el que la Gran Cámara del TEDH sostiene que si bien el artículo 9 del Convenio no se refiere de manera expresa al derecho a la objeción de conciencia, este es un derecho autónomo que se desprende de la libertad de conciencia por lo que debía garantizarse -como cualquier otra libertad del Convenio- de las injerencias arbitrarias del Estado. Así las cosas, una limitación al citado derecho debe aprobar el test de razonabilidad y proporcionalidad, toda vez que toda acción del Estado de atender estrictamente a los límites definidos en ese test, es decir, que se trate de una medida proporcional que responda a un fin legítimo y necesario en una sociedad democrática. Además, resulta importante reseñar, que el TEDH advirtió que esa regla no se aplica de manera general, sino que siempre debe evaluarse a la luz de las particulares circunstancias de cada caso. Este criterio fue reiterado en los casos Ercep vs. Turquía (2011), Sarda vs. Turquía (2012), Tarban vs. Turquía (2012) Feti Demitras vs. Turquía (2012) y Buldu vs. Turquí a (2014). También el Tribunal, en una ocasión, se ha pronunciado sobre la objeción de conciencia en el caso de los productos farmacéuticos y otro, en el supuesto del derecho de propiedad. En el caso Pichón y Sajous vs. Francia (2001), el Tribunal sostuvo que al ser legal la venta de productos anticonceptivos y que en el caso se produjo por una prescripción médica, las demandantes no podían dar prioridad a sus creencias religiosas e imponerlas a los demás para justificar su negativa a vender este tipo de producto. En el caso Hermann vs. Alemania (2012), en el que el accionante se vio obligado a soportar la caza en su predio por la ley alemana e hizo la objeción de conciencia con fundamento en sus creencias pacifistas, el Tribunal le dio la razón, pues se daba una interferencia en su propiedad a tener que soportar hombres armados y perros de caza en su terreno. El TEDH reitera su postura en los casos Chassagnou y Schneider, en el sentido de que imponer la cacería a los terratenientes que se oponen a esta sobre la base de creencias éticas, conllevan una carga desproporcionada, incompatible con el artículo 1o del Protocolo 1 o. En lo que respecta, a la objeción de conciencia en relación con el uso de símbolos religiosos, el TEDH se ha pronunciado en varios casos sobre su impacto en distintos ámbitos, concretamente en el espacio público, en el entorno educativo y en el ámbito laboral. Al respecto, hay cuatro casos significativos Dablab v. Suiza (2001), Leyla Sabin vs. Turquía (2004), Drogu vs. Francia (2008) y Kervanci vs. Francia (2008). Del análisis de ellos se extrae que el TEDH ha mantenido una línea de respaldo al margen de apreciación de los Estados, autorizando la limitación al uso de símbolos religiosos, en particular, el uso del velo islámico. Un caso muy interesante fue el de Eweida y otras vs. Reino Unido (2013), en el que el TEDH amparó a la primera peticionaria por quebranto a la libertad de conciencia y religión, mas no a las tres restantes. Especial interés presenta el caso de Ladele, quien era notaria encargada de registrar matrimonios, nacimientos y defunciones, quien, con motivo del cambio normativo, se vio obligada a registrar uniones de personas del mismo sexo. El TEDH reiteró su postura que la libertad religiosa abarca la libertad de manifestar las creencias de manera privada, pero también conlleva su práctica en comunidad con otros y en público. Dichas manifestaciones pueden tomar forma de adoración, enseñanza, práctica y observación. Como la manifestación de las creencias religiosas de la persona puede tener un impacto en otros, sus restricciones deben estar prescritas por Ley, ser necesaria en una sociedad democrática y perseguir un fin legítimo. A su vez, para contar como manifestación en el sentido del artículo 9 del Convenio, el acto en cuestión debe estar íntimamente ligado con la religión o creencia. En este caso, resulta importante resultar las opiniones disidentes de los jueces Vucinié y De Gaetano en relación con la peticionaria Ladele, pues se visualiza la objeción de conciencia como un derecho que facilita la interacción armoniosa con otros derechos fundamentales que pueden entrar en tensión con aquélla. Para ambos, el TEDH se equivocó al negar la violación de los derechos a la libertad de conciencia y religión, así como el derecho a la no discriminación de la notaria, quien, a causa de sus convicciones cristianas, se negaba a registrar matrimonios entre personas del mismo sexo. Enfatizan sobre la importancia que tiene para una persona el juicio moral o de la conciencia, protegido por el derecho a la objeción de conciencia y diferente del contenido propio de la libertad religiosa. Concluyen que la mayoría del TEDH erró, pues las creencias de la tercera peticionaria no tuvieron un impacto en el contenido de su trabajo, sino solo en el alcance de este. Tampoco se probó que ella hubiera intentado imponer sus creencias a los demás, de manera abierta o subrepticiamente, por lo que el hecho de que ella perdiera su trabajo resultaba totalmente desproporcionado.

(…)

VI.- La objeción de conciencia y el ejercicio de la función jurisdiccional. Un tema no poco polémico es de si el Juez, en el ejercicio de la función jurisdiccional, es decir, ejerciendo la titularidad de un poder el Estado, puede o no ejercer el derecho a la objeción de conciencia. Es claro que hay determinados supuestos en los que no es procedente, por su propia naturaleza y su carácter generalizado el derecho a la objeción de conciencia. Ha sostenido la doctrina que no es posible la objeción de conciencia de un Juez penal que alegase que su conciencia no le permite establecer castigos. Lo mismo puede afirmarse en el caso de un Juez de familia que objete el divorcio. En todos estos supuestos -además hay que tener presente que él cuando optó por el cargo asumió voluntariamente todas sus funciones-, consecuentemente, estaríamos quebrantando una regla elemental de buena fe si luego pretendiese ejercer el derecho a la objeción de conciencia. Empero, hay otros casos, donde sí resulta procedente la objeción de conciencia en la función jurisdiccional. En efecto, la Corte Constitucional italiana tuvo la oportunidad de conocer un caso en el que un Juez objetó suplir el consentimiento de una menor para abortar, en el año 1987. En este caso, el citado tribunal rechazó la cuestión argumentado que no estaba suficientemente fundamentada, lo que causó perplejidad y críticas y un intenso debate, pues se dio un cierto acuerdo doctrinal, en el sentido que la cuestión de constitucionalidad pudo haberse resuelto por la vía de la interpretación extensiva del artículo 51 del Código de Procedimientos Civiles italiano, que permite la abstención en la causa de aquel Juez que alegue “graves razones de conveniencia”, haciendo posible así el traspaso del caso a otro Juez que no oponga la objeción de conciencia. Como puede observarse de lo anterior, hay quienes sostienen que a través de la causal de recusación se puede ejercer el derecho a la objeción de conciencia de los juzgadores; empero, al estar en presencia de un derecho fundamental autónomo y siendo un derecho-deber en este caso, debe ejercerse de forma personalísima, ya que corresponde al objetante, con fundamento en sus creencias o convicción, determinar si estas le impiden resolver la controversia jurídica que está en su despacho. Distinta es la posición de la Corte Constitucional colombiana, la que en la sentencia de Tutela n. ° 388/09 del 28 de mayo del 2009, sostuvo una posición absoluta, maximalista, en el sentido de que las autoridades judiciales no pueden escudarse en el derecho a la objeción de conciencia para negarse a tramitar o a decidir un asunto que se ponga bajo su conocimiento. Esta postura, vacía del contenido esencial del derecho a la objeción de conciencia, toda vez que para este Tribunal los jueces y juezas no gozan de este derecho fundamental. Veremos que sí es posible garantizar el servicio público de Administración de Justicia en condiciones de igualdad y no discriminación, admitiendo el derecho a la objeción de conciencia en la función jurisdiccional, tal y como acertadamente lo ha sostenido un importante sector de la doctrina.

VII.- Sobre el caso concreto. Ahora bien, en todas estas cuestiones hay que tener presente una premisa fundamental, y una constante histórica, en el sentido de que no hay derechos fundamentales absolutos, excepto el derecho a no ser sometido a tratos crueles, inhumanos o degradantes, por consiguiente, el derecho a la objeción de conciencia tiene límites y limitaciones y, en aquellos casos, en los que entra en colisión con otro derecho fundamental se debe recurrir al principio de la concordancia práctica y, por consiguiente, es menester hacer un juicio de ponderación entre los derechos que están en conflicto, tal y como se desarrollará más adelante. En el sub judice el recurrente expresa que el acto impugnado quebranta su derecho a la objeción de conciencia, toda vez que el Consejo Superior del Poder Judicial no toma en consideración sus convicciones religiosas y lo obliga a actuar en contra de ellas, al verse compelido a efectuar el acto del matrimonio entre personas del mismo sexo; la situación es radicalmente diferente cuando se trata de actuaciones de mero trámite, verbigracia: inscripción de un matrimonio, tal y como aconteció en el caso Eweida y otros vs. Reino Unido supra reseñado, donde no es posible ejercer el derecho a la objeción de conciencia. Como puede observarse, en el sub judice no se trata de una función propiamente jurisdiccional -una que resuelve una controversia jurídica con carácter de cosa juzgada-, sino de una de naturaleza judicial, sea funciones no jurisdiccionales establecidas mediante Ley. Ante esta situación, lo primero que hay que traer a colación es que este derecho fundamental es inherente a la persona juzgadora. Lo segundo, es que cuando la persona objetante plantea el impedimento se deben seguir varios criterios en extremo de suma importancia. El primero, que acredite la existencia del motivo de conciencia y su relación directa con el deber legal que objeta. Lo segundo, que se trate de una situación sobrevenida, pues no es posible el ejercicio de este derecho fundamental cuando la persona juzgadora voluntariamente aceptó el cargo y, dentro de sus funciones, se encontraban el deber jurídico que ahora pretende objetar. Y, finalmente, cuando se acepta el ejercicio del derecho fundamental a la objeción de conciencia, el Poder Judicial está en el deber jurídico de sustituirlo, dentro de un plazo perentorio, de forma tal que el sistema estructurado d é a la persona usuaria de los servicios de Administración Justicia el servicio en condiciones de eficacia, eficiencia e igualdad, sea, se le resuelva la situación conforme al derecho fundamental a una tutela judicial efectiva o justicia pronta y cumplida y sin discriminación alguna. Ahora bien, podría argumentarse que el derecho fundamental a la objeción de conciencia no se puede ejercer cuando conlleva una discriminación; no obstante, dicha posición parte de una visión absoluta y, por consiguiente, se vacía el contenido esencial de un derecho fundamental. En ese sentido, debe quedar claro que nadie, en su sano juicio, estaría en contra de la afirmación de que la judicatura se debe ejercer de forma independiente e imparcial y sin discriminación alguna. Desde esta visión, es inadmisible que un Juez o Jueza dé un trato preferente a unas personas y a otras un trato discriminatorio por razones políticas, de raza, de religión, de preferencia sexual, etc. En el ejercicio de la judicatura, así como en el ejercicio de la función administrativa, la imparcialidad es el norte y, por consiguiente, el Poder Judicial está en el deber de dar un trato igual a las personas heterosexuales y homosexuales en cuanto atención, trámite, tiempo de respuesta, resolución y ejecución de los asuntos, etc. Por ello, resulta inadmisible que un juzgador o un funcionario administrativo se niegue a tramitar un asunto de una persona porque tiene una visión del mundo o un estilo de vida que él no comparte; en estos casos, no tiene cabida el ejercicio del derecho fundamental a la objeción de conciencia, verbigracia: negarse a realizar un acto de inscripción, tramitar un juicio, ejecutar lo resuelto, etc. Radicalmente es la situación cuando se trata de ejercer un acto que está abiertamente en contra de sus más profundas convicciones religiosas, morales o ideológicas -como es la celebración del acto de matrimonio-, en este supuesto, para garantizar el ejercicio de los dos derechos fundamentales en conflicto, se debe echar mano al principio de la concordancia práctica. Como acertadamente lo ha sostenido la doctrina alemana, cuando hay una colisión de derechos fundamentales se debe aplicar el principio de la concordancia práctica, de forma tal que no se puede sacrificar un derecho en beneficio del otro en tal magnitud, que se vacíe su contenido esencial. En este tipo de situaciones, el operador jurídico, en primer lugar, está llamado a realizar una interpretación y aplicación de los derechos fundamentales de forma tal que permita el mayor grado de ejercicio por parte de ambas personas. Ante una incompatibilidad manifiesta, el juicio de ponderación impone que, ante el sacrificio de uno frente al otro, el que ve menguado su ejercicio, sea lo estrictamente necesario para hacer posible el ejercicio del otro. Y, finalmente, siempre hay que tener presente que el juicio de ponderación lo es del caso concreto, lo que significa, ni más ni menos, que en otra situación el juicio de ponderación bien puede inclinarse a favor del derecho fundamental sacrificado en el anterior caso. Teniendo como marco de referencia lo anterior, la Sala observa las distintas variables en el presente asunto. Por una parte, se puede pensar que se debe sacrificar en su contenido esencial el derecho fundamental a la objeción de conciencia porque esta no tiene cabida alguna ante un caso de discriminación. Dicho de otra forma, los jueces están obligados a sacrificar, deben hacer a un lado sus más profundas convicciones, en este caso religiosas, y proceder a realizar el matrimonio. Bajo esa línea de pensamiento, de no realizar el Juez el matrimonio, se estaría ante un acto discriminatorio. Sobre el particular, lo primero que hay que tener presente es que no se vulnera el principio de igualdad y la no discriminación cuando hay una justificación objetiva y razonable. Al respecto, la Sala Constitucional ha expresado, de forma reiterada, lo siguiente:

"El principio de igualdad, contenido en el Artículo 33 de la Constitución Política, no implica que en todos los casos, se deba dar un tratamiento igual prescindiendo de los posibles elementos diferenciado)-es de relevancia jurídica que pueda existir; o lo que es lo mismo, no toda desigualdad constituye necesariamente una discriminación. La igualdad, como lo ha dicho la Sala, sólo es violada cuando la desigualdad está desprovista de una justificación objetiva y razonable. Pero además, la causa de justificación del acto considerado desigual, debe ser evaluada en relación con la finalidad y sus efectos, de tal forma que deba existir, necesariamente, una relación razonable de proporcionalidad entre los medios empleados y la finalidad propiamente dicha. Es decir, que la igualdad debe entenderse en función de las circunstancias que concurren en cada supuesto concreto en el que se invoca, de tal forma que la aplicación universal de la ley, no prohíbe que se contemplen soluciones distintas ante situaciones distintas, como tratamiento diverso. Todo lo expresado quiere decir, que la igualdad ante la ley no puede implicar una igualdad material o igualdad económica real y efectiva " (véanse los votos n. ° 1770-94 y 1045-94).

La mayoría del Tribunal considera que el hecho de que un Juez que plantee una objeción de conciencia en un tema que, desde el punto de vista religioso, resulta de la mayor envergadura, no significa que esté discriminando a una persona determinada, se trata de una justificación objetiva y razonable. Lo que sucede es que tiene una visión diferente sobre una institución social y religiosa a la que pueden tener los contrayentes y, por consiguiente, el obligarlo a celebrar el acto de matrimonio lacera sus convicciones religiosas más profundas, y deja sin contenido esencial el derecho fundamental del juzgador. En segundo término, es un hecho público y notorio que un país donde hay varios jueces notariales, bien puede la Administración de Justicia aceptar la objeción de conciencia, la que, como se expresó supra, debe de cumplir todos los requisitos para que se pueda ejercer este derecho fundamental, y encargar a los jueces no objetantes la realización de los matrimonios entre las personas del mismo sexo e, incluso, en un Estado garante de todos los derechos fundamentales de las personas, establecer un sistema que permita tener siempre a disposición jueces que sí está n dispuestos a brindar el servicio a las personas del mismos sexo en condiciones de igualdad que a otros usuarios del servicio. Vista así las cosas, no hay tal acto de discriminación, toda vez que siempre habrá jueces y juezas que realizarán el acto de matrimonio, con lo cual se satisface los derechos de las personas contrayentes. Por otra parte, tampoco puede desconocerse que Costa Rica es un Estado que tiene un sistema de notoria abierta, en la que las distintas personas pueden acudir a un (a) notario (a) de libre elección para contraer matrimonio, siempre y cuando no haya planteado la objeción de conciencia de conformidad con el numeral 3 de los Lineamientos para el Ejercicio y Control del Servicio Notarial (véase La Gaceta n.° 23 del 5 de febrero del 2020). Finalmente, no menos importante, es que el derecho a la objeción de conciencia se aplicaría para aquellos jueces que fueron nombrados antes de la entrada en vigor del matrimonio entre personas del mismo sexo -dentro de sus funciones no se encontraba el realizar el acto de matrimonio entre personas del mismo sexo-, pues a quienes se nombre con posterioridad, es claro que han aceptado voluntariamente realizar el acto de matrimonio tanto para personas heterosexuales como homosexuales. En consonancia con la posición que sigue la mayoría del Tribunal, es importante traer a colación las palabras del juez Neil Gorsuch, en el sentido que el lugar de los funcionarios seculares no es juzgar las creencias religiosas -de las personas- sino solo proteger su libre ejercicio, pronunciada en el famoso Caso Masterpiecf. Cakeshop. L td., v. Colorado Civil Rights Commission ET AL. -SIETE VOTOS A FAVOR Y DOS EN CONTRA DE PROTEGER LA LIBERTAD DE CONCIENCIA-, en el que una pareja del mismo sexo solicitó a un pastelero de Colorado en el verano del 2012, que les confeccionara un queque de bodas; el dueño de apellido Phillips se negó a hacer el pedido especial, lo que implicaba crear y venderles un pastel de bodas para parejas del mismo sexo. Consta que ofreció otros productos de su tienda. Al momento de la solicitud, no existía una ley que reconociera el matrimonio del mismo sexo, por lo que el casamiento se haría en un Estado en que si fuera legal y ofrecerían la celebración en Denver. Jack Phillips se autodenominaba como profesional en pastelería y devoto cristiano, cuyo principal objetivo en la vida era ser obediente a las enseñanzas de Jesucristo, por lo que buscaba honrar a Dios mediante su trabajo en su tienda en Masterpiece Cakeshop. Precisamente, una de sus creencias religiosas radicaba en la intención de Dios para que el matrimonio fuera la unión de un hombre y una mujer, de modo que, al crear un queque de bodas para una pareja del mismo sexo, sería equivalente a participar en esa celebración que resultaba contraria a sus creencias más preciadas. La madre de uno de los muchachos llamaría a Phillips el día siguiente por más explicaciones y éste le contestó en similares términos, agregando que la creación de un queque implicaría celebrar algo que sería contrario a las enseñanzas de la Biblia y, además, implicaría a su parecer una aprobación personal para la ceremonia y la relación de pareja que constituirían.

VIII.- Partiendo de lo externado líneas atrás, la mayoría del Tribunal considera que una sociedad pluralista, resulta necesario que el Derecho de la Constitución -valores, principios y normas- se autoriza a las personas a tener distintas visiones sobre los fenómenos políticos, económicos, sociales y culturales, pues de lo contrario se caería en una sociedad autoritaria o totalitaria en la que hay una homogenización o estandarización del pensamiento. En ese sentido, los Tribunales de Derechos Humanos no están llamados a imponer un pensamiento único, sino que a través de un juicio de ponderación y en aplicación de los principios de razonabilidad y de proporcionalidad, deben permitir el máximo ejercicio de los derechos fundamentales que están en colisión, de forma tal que coexistan de manera respetuosa. Hay que tener presente que, en aquellos casos de conflicto de derechos fundamentales, el Tribunal Constitucional no es un promotor de una determinada ideología o visión del mundo, pues cuando actúa de esa forma claudica a su misión y, por consiguiente, aunque resulte paradójico, termina atropellando los derechos fundamentales de la persona que debe tutelar. Así, en virtud de lo expuesto anteriormente, lo procedente es acoger el recurso, con las consecuencias que se dirán en la parte dispositiva.

IX.- Conclusión. El principio de igualdad y no discriminación es un elemento esencial del servicio público de Administración de Justicia, por lo que sus usuarios deben recibir un trato igualitario en la atención, el trámite, resolución y ejecución de los distintos asuntos que se conocen en todas las instancias judiciales. Por su parte, la mayoría del Tribunal considera que es posible ejercer el derecho a la objeción de conciencia en la función jurisdiccional -aunque en el presente caso se trata del ejercicio de una función judicial-. En estos supuestos, se concilia dos derechos fundamentales, sin embargo, no se vacía del contenido esencial al primero -igualdad y no discriminación-, toda vez que ante un caso de objeción de conciencia de un juzgador relativo a realizar el acto de matrimonio, el Consejo Superior del Poder Judicial debe adoptar todas las medidas necesarias para que el servicio público de Administración de Justicia se brinde a las parejas del mismo sexo en las mismas condiciones y tiempos de respuesta que le da a las personas heterosexuales. Finalmente, es claro que todas aquellas personas que se nombren con posterioridad a la entrada en vigor del matrimonio de personas del mismo sexo no pueden ejercer el derecho a la objeción de conciencia, pues voluntariamente han aceptado esa función al ofertar y aceptar el cargo.” Sobre la objeción de conciencia. En una acepción genérica, la objeción de conciencia refiere a un instituto de antigua data, que desde tiempos remotos aparece en la sociedad y se trata de la posibilidad de apartarse de un deber o mandato jurídico cuando estos riñen o se contraponen a las convicciones del objetor sin que se le pueda exigir responsabilidad. En otras palabras, se podría considerar una especie de resistencia hacia el precepto normativo, en cuanto este se fundamente en el conflicto aparente entre las obligaciones morales, religiosas o de justicia de la persona y el cumplimiento de disposiciones legales. La objeción de conciencia es entendida como una concreción ad extra del derecho a la libertad de conciencia, que se manifiesta como límite de los poderes públicos para que estos no interfieran con las convicciones personales. Tal como se mencionó en el apartado anterior, desde los primeros pronunciamientos de este Tribunal Constitucional, se entendió que “…la libertad de conciencia, que debe ser considerada como un derecho público subjetivo individual, esgrimido frente al Estado, para exigirle abstención y protección de ataques de otras personas o entidades. Consiste en la posibilidad, jurídicamente garantizada, de acomodar el sujeto, su conducta religiosa y su forma de vida a lo que prescriba su propia convicción, sin ser obligado a hacer cosa contraria a ella. En segundo lugar, se refiere al plano social, la libertad de culto, que se traduce en el derecho a practicar externamente la creencia hecha propia. Además la integran la libertad de proselitismo o propaganda, la libertad de congregación o fundación, la libertad de enseñanza, el derecho de reunión y asociación y los derechos de las comunidades religiosas, etc.” (ver sentencia N°3173-93 de las 14: 57 horas del 6 de julio de 1993, doctrina reiterada en las sentencias N°5492-96 de las 16:54 horas del 16 de octubre de 1996, N°2001-10491 de las 15:57 horas del 16 de octubre de 2001, N°2002-03018 de las 11:12 horas del 22 de marzo de 2002, N°2002-08557 de las 15:37 horas del 03 de septiembre de 2002, N°2003-03018 de las 14:48 horas del 22 de abril de 2003, N°2004-008763 de las 12:15 horas del 13 de agosto del 2004, 2012-10456 de las 05:27 horas del 01 de agosto de 2012 y N°2014-004575 de las 14:30 horas del 2 de abril de 2014, entre otras). De lo anterior puede concluirse que la libertad de conciencia es un derecho fundamental, que debe garantizar el Estado respetuoso de la libertad religiosa y de sociedad democrática, amplia y pluralista con amplio respeto de la diversidad de opiniones, creencias y convicciones morales. Asimismo, la libertad de pensamiento y de conciencia se erigen como elementos fundamentales que conforman la identidad de los creyentes y su concepción de la vida, así como para las personas ateas, agnósticas, escépticas e indiferentes. La objeción de conciencia debe ser diferenciada de figuras afines como la desobediencia civil, dado que la intención del objetor no es obstaculizar el cumplimiento social del precepto legislativo, sino obtener el respeto de su propia conciencia. La diferencia radica, principalmente, en la finalidad de la acción. El objetivo principal de la desobediencia civil es la modificación de un precepto normativo o política pública, por ejemplo, el movimiento por los derechos civiles de las personas afrodescendientes emprendido por Martin Luther King para terminar con la segregación y discriminación racial en los Estados Unidos de Norteamérica. También debe diferenciarse entre la objeción de conciencia y la evasión de conciencia, tal como lo señala John Rawls (Teoría de la Justicia, 1975), la distinción se refiere a la publicidad del acto y no a su finalidad. En ese sentido, la objeción de conciencia se manifiesta de manera pública, pues el objetor debe comunicar su negativa a los superiores a efectos de obtener la exención. De manera contraria, la evasión de conciencia se identifica por su carácter esencialmente secreto, por ejemplo, la personas que se separa de los dogmas normativos para emprender reservadamente una acción entendida como deber moral, como aquel que emprende la justicia de propia mano en defensa de sus convicciones. Inicialmente, la objeción de conciencia fue concebida como un instituto que permitía a los objetores desligarse de participar en el servicio militar sin ser responsabilizados por deserción. De esta manera, la objeción de conciencia al servicio militar se fundamentó en el derecho a la libertad de pensamiento, de conciencia y de religión, establecido en la Declaración Universal de Derechos Humanos y en el Pacto Internacional de Derechos Civiles y Políticos. El derecho a la objeción de conciencia al servicio militar no es un derecho en si´ mismo, ya que en los instrumentos internacionales de las Naciones Unidas no se menciona directamente, sino que se le califica como un derecho derivado o como una manifestación de estos, pues tal como se indicó, se deriva de una interpretación del derecho a la libertad de pensamiento, de conciencia y de religión. Es claro que una evolución progresiva y expansiva de la objeción de conciencia ha permitido ampliar los alcances en dos vertientes; la primera, respecto a los alegatos subjetivos, permitiendo al objetor de conciencia no solo anteponer sus creencias religiosas, sino también, otro tipo de convicciones, normalmente éticas, morales y filosóficas y; la segunda, en cuanto al ámbito de aplicación, ya que dicho instrumento ya no solo es oponible al servicio militar obligatorio sino que se trasladó al ámbito de la educación, al ámbito sanitario y al ámbito laboral. Desde luego, la justificación iusfilosófica de la objeción de conciencia puede ser abordada desde diversas perspectivas. Desde una visión iusnaturalista, como la del realismo jurídico clásico, así como desde una visión constructivista o contractualista como la de John Rawls y Ronald Dworkin influenciadas por la moral kantiana, en tanto exaltan el principio de autonomía individual como aquel que justifica el ejercicio de la objeción de conciencia.

Sobre el reconocimiento de la objeción de conciencia en el ámbito laboral y educativo según la jurisprudencia de la Sala Constitucional. Tal como se indicó en el primer apartado de este considerando, el reconocimiento de la objeción de conciencia, por parte de este Tribunal Constitucional tiene sus orígenes en el año de 1993 (ver sentencia N°3173-93 de las 14:57 horas del 06 de julio de 1993), referido al ámbito de educación y desde esa fecha hasta la actualidad se ha reconocido el derecho de las personas estudiantes a la objeción de conciencia en el ámbito educativo, como instrumento derivado de la libertad de conciencia y la libertad de culto, señalando que “…Consiste en la posibilidad, jurídicamente garantizada, de acomodar el sujeto, su conducta religiosa y su forma de vida a lo que prescriba su propia convicción, sin ser obligado a hacer cosa contraria a ella. En segundo lugar, se refiere al plano social, la libertad de culto, que se traduce en el derecho a practicar externamente la creencia hecha propia. Además la integran la libertad de proselitismo o propaganda, la libertad de congregación o fundación, la libertad de enseñanza, el derecho de reunión y asociación y los derechos de las comunidades religiosas, etc.”. Esta interpretación es común de otras latitudes, como por ejemplo, en el caso de España desde la sentencia 15/1982 de 23 de abril de 1982, el Tribunal Constitucional Español reconoció la objeción de conciencia por interpretación del artículo 30.2 de la Constitución, el cual señala explícitamente la objeción de conciencia para el servicio militar en conjunto con la interpretación del artículo 16.1, atribuyéndole un contenido amplio que consiste no solo en creer o dejar de creer lo que se tenga por conveniente, sino también a la posibilidad de comportarse en la vida personal y social de acuerdo a las propias convicciones, cualesquiera que estas sean, señalando expresamente:

“…tanto la doctrina como el derecho comparado afirman la conexión entre la objeción de conciencia y la libertad de conciencia. Para la doctrina, la objeción de conciencia constituye una especificación de la libertad de conciencia, la cual supone no sólo el derecho a formar libremente la propia conciencia, sino también a obrar de modo conforme a los imperativos de la misma. En la Ley Fundamental de Bonn el derecho a la objeción de conciencia se reconoce en el mismo artículo que la libertad de conciencia y asimismo en la resolución 337, de 1967, de la Asamblea Consultiva del Consejo de Europa se afirma de manera expresa que el reconocimiento de la objeción de conciencia deriva lógicamente de los derechos fundamentales del individuo garantizados en el art. 9 de la Convención Europea de Derechos Humanos, que obliga a los Estados miembros a respetar las libertades individuales de conciencia y religión.

Y, puesto que la libertad de conciencia es una concreción de la libertad ideológica, que nuestra Constitución reconoce en el art. 16, puede afirmarse que la objeción de conciencia es un derecho reconocido explícita e implícitamente en el ordenamiento constitucional español, sin que contra la argumentación expuesta tenga valor alguno el hecho de que el art. 30.2 emplee la expresión «la Ley regulará», la cual no significa otra cosa que la necesidad de la interpositio legislatoris no para reconocer, sino, como las propias palabras indican, para «regular» el derecho en términos que permitan su plena aplicabilidad y eficacia.” Asimismo, la Sala Constitucional ha trasladado la aplicabilidad de la objeción de conciencia al ámbito laboral, para resolver situaciones en las cuales los empleados o funcionarios desean apartarse del cumplimiento de obligaciones. Específicamente, en la concepción de la objeción de conciencia en el ámbito laboral, la Sala Constitucional indicó que “… se ha conceptualizado la objeción de conciencia como un derecho fundamental de toda persona a negarse a cumplir un deber, el que se encuentra en el ordenamiento jurídico, a causa de que la norma respectiva resulta incompatible con sus creencias o convicciones, las que tienen como basamento, en regla de principio, convicciones religiosas, morales o ideológicas. Se sostiene que este derecho es una derivación lógica y necesaria de la libertad de conciencia, y constituye una de sus manifestaciones externas.” (ver sentencia N°2020-001619 de las 12:30 horas del 24 de enero de 2020). En el precedente de cita, el Tribunal valoró la posibilidad de que un juzgador en su función judicial pueda invocar una objeción de conciencia y advirtió que la “…la mayoría del Tribunal considera que una sociedad pluralista, resulta necesario que el Derecho de la Constitución -valores, principios y normas- se autoriza a las personas a tener distintas visiones sobre los fenómenos políticos, económicos, sociales y culturales, pues de lo contrario se caería en una sociedad autoritaria o totalitaria en la que hay una homogenización o estandarización del pensamiento. En ese sentido, los Tribunales de Derechos Humanos no están llamados a imponer un pensamiento único, sino que a través de un juicio de ponderación y en aplicación de los principios de razonabilidad y de proporcionalidad, deben permitir el máximo ejercicio de los derechos fundamentales que están en colisión, de forma tal que coexistan de manera respetuosa. Hay que tener presente que, en aquellos casos de conflicto de derechos fundamentales, el Tribunal Constitucional no es un promotor de una determinada ideología o visión del mundo, pues cuando actúa de esa forma claudica a su misión y, por consiguiente, aunque resulte paradójico, termina atropellando los derechos fundamentales de la persona que debe tutelar.” En el citado fallo, la Sala Constitucional finalmente destacó que la Administración de Justicia se rige bajo el principio de igualdad y no discriminación, como elemento esencial del servicio público, que funciona como garantía para que los administrados reciban un trato igualitario en la atención, el trámite, resolución y ejecución de los distintos asuntos que se conocen en todas las instancias judiciales. De igual manera, concretó que es posible ejercer el derecho a la objeción de conciencia en la función jurisdiccional, aunque el caso que estaba resolviendo se refería al ejercicio de una función judicial. Finalmente, resaltó que, en estos supuestos, se concilian dos derechos fundamentales, sin desatender el derecho de igualdad y no discriminación, pues ante un caso de objeción de conciencia el Consejo Superior del Poder Judicial deberá adoptar todas las medidas necesarias para que el servicio público de Administración de Justicia se brinde en las mismas condiciones y tiempos de respuesta.

Normativa Internacional de la objeción de conciencia en el ámbito universal. El artículo 18 de la Declaración Universal de los Derechos Humanos de 1948, dispone que:

“Toda persona tiene derecho a la libertad de pensamiento, de conciencia y de religión; este derecho incluye la libertad de cambiar de religión o de creencia, así como la libertad de manifestar su religión o su creencia, individual y colectivamente, tanto en público como en privado, por la enseñanza, la practica, el culto y la observancia.” Casi de manera similar, el artículo 18 del Pacto Internacional de Derechos Civiles y Políticos de 1976, preceptúa que:

“1. Toda persona tiene derecho a la libertad de pensamiento, de conciencia y de religión; este derecho incluye la libertad de tener o de adoptar la religión o las creencias de su elección, así como la libertad de manifestar su religión o sus creencias, individual o colectivamente, tanto en público como en privado, mediante el culto, la celebración de los ritos, las prácticas y la enseñanza.

2. Nadie será objeto de medidas coercitivas que puedan menoscabar su libertad de tener o de adoptar la religión o las creencias de su elección.” Asimismo, el artículo 8 del Pacto Internacional de Derechos Civiles y Políticos de 1976, también señala:

“Artículo 8.

3. a) Nadie será constreñido a ejecutar un trabajo forzoso u obligatorio (…)

• c)No se considerarán como "trabajo forzoso u obligatorio", a los efectos de este párrafo:
• ii)El servicio de carácter militar y, en los países donde se admite la exención por razones de conciencia, el servicio nacional que debe prestar conforme a la ley quienes se opongan al servicio militar por razones de conciencia;” En el precepto normativo parcialmente transcrito no se reconoce un derecho general de objeción de conciencia y se hace una indicación de los Estados que legislaron sobre el particular, haciendo referencia al servicio sustituto. De igual manera el servicio militar obligatorio no debería ser considerado como trabajo forzoso. En la Convención Internacional sobre la Eliminación de todas las Formas de Discriminación Racial de 1969, se indica en el artículo 5 lo siguiente:

“Artículo 5.

En conformidad con las obligaciones fundamentales estipuladas en el artículo 2 de la presente Convención, los Estados partes se comprometen a prohibir y eliminar la discriminación racial en todas sus formas y a garantizar el derecho de toda persona a la igualdad ante la ley, sin distinción de raza, color y origen nacional o étnico, particularmente en el goce de los derechos siguientes:

(…)

• d)Otros derechos civiles, en particular:

(...)

(...)

• vii)El derecho a la libertad de pensamiento, de conciencia y de religión.” Normativa Internacional de la objeción de conciencia en el ámbito regional. El derecho a la libertad de pensamiento, de conciencia y de religión también se reconoce en los instrumentos regionales de derechos humanos. El Convenio para la Protección de los Derechos Humanos y de las Libertades Fundamentales de 1950, en el artículo 9 señala:

“1. Toda persona tiene derecho a la libertad de pensamiento, de conciencia y de religión; este derecho implica la libertad de cambiar de religión o de convicciones, así´ como la libertad de manifestar su religión o sus convicciones individual o colectivamente, en público o en privado, por medio del culto, la enseñanza, las prácticas y la observancia de los ritos.

2. La libertad de manifestar su religión o sus convicciones no puede ser objeto de más restricciones que las que, previstas por la ley, constituyan medidas necesarias, en una sociedad democrática, para la seguridad pública, la protección del orden, de la salud o de la moral públicas, o la protección de los derechos o las libertades de los demás.” La Carta de los Derechos Fundamentales de la Unión Europea (2000/C 364/01), reconoce de manera explícita la objeción de conciencia, de esta manera, en el artículo 10 indica:

“1. Toda persona tiene derecho a la libertad de pensamiento, de conciencia y de religión. Este derecho implica la libertad de cambiar de religión o de convicciones, así´ como la libertad de manifestar su religión o sus convicciones individual o colectivamente, en público o en privado, por medio del culto, la enseñanza, las prácticas y la observancia de los ritos.

2. Se reconoce el derecho a la objeción de conciencia de acuerdo con las leyes nacionales que regulen su ejercicio.” Por su parte, en el ámbito regional americano, la Convención Americana sobre Derechos Humanos de 1969, indica:

“Artículo 6. Prohibición de la esclavitud y servidumbre 2. Nadie debe ser constreñido a ejecutar un trabajo forzoso u obligatorio. (...)

3. No constituyen trabajo forzoso u obligatorio, para los efectos de este artículo:

(...) b. el servicio militar y, en los países donde se admite exención por razones de conciencia, el servicio nacional que la ley establezca en lugar de aquél; Artículo 12. Libertad de conciencia y de religión.

“1. Toda persona tiene derecho a la libertad de conciencia y de religión. Este derecho implica la libertad de conservar su religión o sus creencias, o de cambiar de religión o de creencias, así como la libertad de profesar y divulgar su religión o sus creencias, individual o colectivamente, tanto en público como en privado.

2. Nadie puede ser objeto de medidas restrictivas que puedan menoscabar la libertad de conservar su religión o sus creencias o de cambiar de religión o de creencias.

3. La libertad de manifestar la propia religión y las propias creencias estará sujeta únicamente a las limitaciones prescritas por la ley y que sean necesarias para proteger la seguridad, el orden, la salud o la moral públicos o los derechos o libertades de los demás.” “Artículo 27. Suspensión de garantías 1. En caso de guerra, de peligro público o de otra emergencia que amenace la independencia o seguridad del Estado parte, éste podrá adoptar disposiciones que, en la medida y por el tiempo estrictamente limitados a las exigencias de la situación, suspendan las obligaciones contraídas en virtud de esta Convención, siempre que tales disposiciones no sean incompatibles con las demás obligaciones que les impone el derecho internacional y no entrañen discriminación alguna fundada en motivos de raza, color, sexo, idioma, religión u origen social.

2. La disposición precedente no autoriza la suspensión de los derechos determinados en los siguientes artículos: (...) 6 (Prohibición de la Esclavitud y Servidumbre); (...) 12 (Libertad de Conciencia y de Religión) (...), ni de las garantías judiciales indispensables para la protección de tales derechos.” Asimismo, la Carta Africana de Derechos Humanos y de los Pueblos de 1981, en el artículo 8 dispone:

“La libertad de conciencia y la profesión y libre práctica de la religión estarán garantizadas. Nadie que respete la ley y el orden puede ser sometido a medidas que restrinjan el ejercicio de esas libertades.” En la Convención Americana se reconoce expresamente el derecho de todas las personas a la libertad de conciencia y de religión, el cual implica la titularidad para conservar, cambiar, profesar y divulgar su religión o creencias. En el ámbito regional americano, estos derechos han sido objeto de pocos pronunciamientos por parte de la Corte Interamericana de Derechos Humanos (CIDH). De esta manera, el alto tribunal se ha pronunciado en relación con la libertad de conciencia y religión en el contexto de vulneraciones de los derechos humanos de las que fueron víctimas personas que ejercían actividades religiosas (Juan Gerardi vs. Guatemala 1982, Dianna Ortiz vs. Guatemala 1997, y Loren Laroye Riebe Star, Jorge Alberto Baro´n Guttlein y Rodolfo Izal Elorz vs. México 1998). Asimismo, la CIDH se ha pronunciado sobre la libertad de conciencia en relación con la censura de la exhibición de una obra cinematográfica (Olmedo Bustos y otros vs. Chile 2001). En este pronunciamiento la CIDH reconoció que el derecho a la libertad de conciencia y de religión, es sobre la tutela para que las personas conserven, cambien, profesen y divulguen su religión o sus creencias. Este derecho es uno de los cimientos de la sociedad democrática y en su dimensión religiosa, constituye un elemento trascendental en la protección de las convicciones de los creyentes y en su forma de vida. En el ámbito americano, el derecho a la libertad de conciencia y religión no puede ser suspendido. Sin embargo, la libertad de manifestar la propia religión y creencias sí puede ser limitada. Para que estas limitaciones sean legítimas, se exige que estas estén prescritas por la ley, así como, que sean necesarias para proteger la seguridad, el orden, la salud o la moral pública o los derechos y libertades de los demás. De igual manera, de los pronunciamiento de la CIDH se extrae que el derecho a la libertad de conciencia y religión puede ser violado a través de, por ejemplo, la denegación de ingreso al país de origen; la detención arbitraria y expulsión de un país de manera apresurada; la violación del derecho al debido proceso; la vigilancia; amenazas; secuestro y tortura perpetrados por agentes del Estado para castigar o truncar las actividades religiosas de las personas (Juan Gerardi vs. Guatemala 1982, Dianna Ortiz vs. Guatemala 1997, y Loren Laroye Riebe Star, Jorge Alberto Baro´n Guttlein y Rodolfo Izal Elorz vs. México 1998). La Convención Americana de Derechos Humanos, no reconoce el derecho a la objeción de conciencia como tal, (aunque sí menciona la objeción de conciencia al servicio militar obligatorio), sino que éste se desprende en forma autónoma del derecho a la libertad de conciencia (artículo 12 de la Convención Americana). La objeción de conciencia se deriva del derecho a la libertad de conciencia interpretado con lo señalado en la norma que afirma que el servicio nacional o alternativo establecido por leyes internas que admitan la objeción de conciencia no constituyen trabajo forzoso u obligatorio (artículo 6.3.b Convención Americana). Es decir, la libertad de conciencia solo ampara la objeción de conciencia en el ámbito militar en los casos en que la legislación interna lo admita (Cristián Daniel Sahli Vera y otros vs. Chile 2005, Alfredo Di´az Bustos vs. Bolivia 2005 y Xavier Alejandro Leo´n Vega vs. Ecuador 2006).

• 3)Análisis concreto de lo consultado Los consultantes consideran que el artículo 23 inciso g) del proyecto de “LEY MARCO DE EMPLEO PÚBLICO”, que se tramita en el expediente legislativo N°21.336, el cual establece la posibilidad de la objeción de conciencia en los procesos de formación y capacitación, es violatorio de los principios de legalidad y de seguridad jurídicas, de proporcionalidad y razonabilidad. Consideran que dicho precepto riñe con el Derecho de la Constitución, por cuanto, permite que las personas funcionarias públicas puedan alegar la objeción de conciencia con el fin de no recibir formación y capacitaciones que el Estado ha considerado obligatorias, violenta los principios de legalidad y de seguridad jurídicas, de proporcionalidad y razonabilidad al no regular las condiciones, parámetros y restricciones que impidan la violación de derechos humanos fundamentales comprendidos en el Derecho Convencional y plenamente reconocidos por nuestro ordenamiento jurídico. Señalan que, mediante una simple declaración jurada, las personas funcionarias públicas podrán informar sobre un derecho de objeción de conciencia cuando los contenidos de los programas de formación y capacitación vulneren, según su criterio, sus convicciones religiosas, éticas o morales, se trata de una norma totalmente amplia, que permitirá, apelando a criterios totalmente subjetivos, que cualquier persona se niegue a capacitarse sobre temas medulares de la Administración Pública. En ese sentido, consideran que no es posible apelar a la objeción de conciencia para promover la desigualdad, el maltrato y la discriminación desde un puesto de poder. Tal como se ha señalado, este Tribunal Constitucional, se ha pronunciado sobre la objeción de conciencia en diversos ámbitos, que abarcan la educación y el ámbito laboral. Entre los primeros señalamientos, se destaca de una fórmula derivada de los artículos 28 y 75 de la Constitución Política, entendido como una manifestación ad extra de la libertad de conciencia y la libertad de religión, que como toda exteriorización o manifestación debe estar expuesta dentro de las limitaciones establecidas por el ordenamiento, sea por norma constitucional o norma legal (ver sentencia N°3173-93 de las 14:57 horas del 06 de julio de 1993). Esta posición ha permitido dilucidar conflictos de raigambre constitucional en relación con objeciones de conciencia presentadas en el ámbito educacional y laboral. En ese sentido, este Tribunal ha sido de la tesis que las objeciones de conciencia se presentan por el conflicto que se produce entre el precepto legal y una convicción personal. Asimismo, se ha admitido que esta objeción se formule frente a disposiciones de cualquier naturaleza, sean normativas, políticas públicas o contractuales, en el tanto afecten las convicciones de una persona. En el proyecto de consulta es claro que el precepto normativo propuesto permitiría a un funcionario alegar una objeción de conciencia a efectos de que se aplique una exención frente a una capacitación o curso de formación obligatorios por considerarla contraria a sus convicciones religiosas, éticas y morales. En ese sentido los consultantes (consultas acumuladas: expediente N°21-011713-0007-CO y expediente N°21-012118-0007-CO) refieren que: 1. El fin de no recibir formación y capacitaciones que el Estado ha considerado obligatorias, violenta los principios de legalidad y de seguridad jurídicas, de proporcionalidad y razonabilidad al no regular las condiciones, parámetros y restricciones que impidan la violación de derechos humanos fundamentales comprendidos en el Derecho Convencional y plenamente reconocidos por nuestro ordenamiento jurídico. 2. Que, mediante una simple declaración jurada, las personas funcionarias públicas podrán informar sobre un derecho de objeción de conciencia cuando los contenidos de los programas de formación y capacitación vulneren, según su criterio, sus convicciones religiosas, éticas o morales, se trata de una norma totalmente amplia, que permitirá, apelando a criterios totalmente subjetivos, que cualquier persona se niegue a capacitarse sobre temas medulares de la Administración Pública. 3. Que la formulación permite de manera abierta y desregulada, la posibilidad de que los funcionarios públicos puedan negarse a recibir formación técnica y capacitaciones que sean obligatorias y necesarias para el ejercicio del cargo que desempeñan con la mera comunicación mediante declaración jurada, podría considerarse un ejercicio abusivo y contrario a los derechos humanos de los demás ciudadanos. Analizando el articulado del proyecto en consulta, entran en discrepancia un cúmulo de derechos, tanto de los funcionarios como de los ciudadanos que reciben servicios de estos servidores públicos. 4. Que los funcionarios públicos para poder ejercer sus funciones de manera proba, eficiente y efectiva ameritan necesariamente tener los conocimientos técnicos y administrativos que les permitan desempeñar sus funciones. 5. Además, existe una obligación del Estado de capacitar a los funcionarios para que la operación estatal sea acorde a los parámetros de prestación de los servicios públicos que deben garantizarse a los ciudadanos. 6. Cuestionan cómo puede determinar un funcionario público, de previo a recibir una capacitación, que la misma atenta contra sus creencias o convicciones personales. 7. Alegan que incluir la objeción de conciencia dentro de este proyecto de ley podría tornarlo inconstitucional en la medida que el Estado permitiría a funcionarios desatender el cumplimiento de potestades públicas, que son obligatorias y que alguien debe hacerlas. 8. Además, también este órgano constitucional ha dicho que los funcionarios cuando asumen un cargo sobre el cual deben realizar determinados actos, están obligados a cumplirlos sin derecho a objeción de conciencia, en el tanto han aceptado ejercer el cargo público conforme al derecho vigente al momento de su nombramiento. 9. La negativa de recibir una capacitación y formarse en temas acordes con su cargo, podría vulnerar, por ejemplo, el derecho del ciudadano a recibir adecuada atención de salud, un correcto servicio de los órganos que imparten justicia o un mensaje sesgado o equivocado por parte de instituciones educativas. 10. El considerar la objeción de conciencia como un mero trámite sin mayores condiciones y restricciones, sin ninguna seriedad técnica, solo para polemizar y polarizar a la sociedad costarricense resulta contrario a los derechos humanos reconocidos por la Corte Interamericana de Derechos Humanos, y se contrapone a la obligación que tiene el Estado y que debe garantizar.

Sobre el primer alegato formulado. Los consultantes indicaron que, si los funcionarios no reciben capacitaciones que el Estado ha considerado obligatorias, se violentan los principios de legalidad y de seguridad jurídicas, de proporcionalidad y razonabilidad al no regular las condiciones, parámetros y restricciones que impidan la violación de derechos humanos fundamentales comprendidos en el Derecho Convencional y plenamente reconocidos por nuestro ordenamiento jurídico. Al respecto debe indicarse que el alcance de la norma está delimitado, en este proyecto de ley, para que el servidor público no reciba capacitaciones que estime contrarias a sus convicciones religiosas, éticas y morales. De ahí que, no sería válido el razonamiento de los consultantes en el sentido señalado, en primer lugar, porque la condición y alcances se encuentran claramente delimitados a un supuesto específico, en este caso a las capacitaciones obligatorias, y; en segundo lugar, porque de este no se desprende que con el ejercicio de la objeción de conciencia se vulneren los derechos fundamentales o humanos de las personas. En ese sentido, debe recordarse que la objeción de conciencia ha sido el mecanismo válido de una persona para ejercitar otros derechos, como la libertad de conciencia y la liberta de religión (art. 75 constitucional) que, entendidos en armonía con el ordenamiento jurídico, su ejercicio estaría limitado por los derechos de terceros (artículo 28 constitucional). En ese sentido en la sentencia N°2020-001619 de las 12:30 horas del 24 de enero de 2020, se indicó “… se ha conceptualizado la objeción de conciencia como un derecho fundamental de toda persona a negarse a cumplir un deber, el que se encuentra en el ordenamiento jurídico, a causa de que la norma respectiva resulta incompatible con sus creencias o convicciones, las que tienen como basamento, en regla de principio, convicciones religiosas, morales o ideológicas. Se sostiene que este derecho es una derivación lógica y necesaria de la libertad de conciencia, y constituye una de sus manifestaciones externas.”.

Sobre el segundo alegato formulado. Los consultantes indican que, mediante una simple declaración jurada, las personas funcionarias públicas podrán informar sobre un derecho de objeción de conciencia cuando los contenidos de los programas de formación y capacitación vulneren, según su criterio, sus convicciones religiosas, éticas o morales, se trata de una norma totalmente amplia, que permitirá, apelando a criterios totalmente subjetivos, que cualquier persona se niegue a capacitarse sobre temas medulares de la Administración Pública. En relación con el mecanismo empleado a efectos de comunicar la objeción de conciencia, contrario a lo señalado por los consultantes, esta Sala considera que éste es apto, en el tanto el proyecto legislativo requiere una actuación suficiente por parte del servidor público, pues le impone informar mediante una declaración jurada la objeción de conciencia. No es un mecanismo laxo, por el contrario, supone una actuación a través de una declaración, la cual debe ser “jurada”, por lo que tiene consecuencias administrativas e incluso penales cuando se consignan datos falsos bajo juramento. La declaración jurídica es un instrumento ampliamente utilizado en la administración pública para temas de variada índole, por ejemplo encontramos la declaración de bienes que los funcionarios públicos anualmente realizan ante la Contraloría General de la República, también se utiliza en las Universidades Públicas y otras entidades cuando los docentes y/o funcionarios deben rendir información bajo ese formato. La Sala no considera que se trate de un instrumento débil o inapropiado para el ejercicio del derecho tutelado en el artículo 23 inciso g) del proyecto bajo estudio, pues ese juramento en realidad es una promesa de decir verdad, y por ello la persona que la emite asume la responsabilidad en caso de que sus manifestaciones no se ajusten a la verdad. El uso de la declaración jurada en la administración pública ha permitido agilizar trámites así como procedimientos en beneficio de la persona usuaria pero también de la Administración Pública. Es por esta razón que no es válido señalar que se trata de un documento con criterios totalmente subjetivos. En cuanto a su aplicación práctica, interesa señalar que, de conformidad con los precedentes jurisprudenciales de este Tribunal, en atención a lo dicho en la sentencia N°2012-010456 de las 05:27 horas del 01 de agosto de 2012, la objeción de conciencia puede ejercitarse a través de “…un mecanismo ágil y sencillo”, y por lo tanto, la Sala es del criterio que la declaración jurada, se ajustaría perfectamente porque se trata de un mecanismo ágil y sencillo. De otra parte, en cuanto al ámbito subjetivo, esta Sala ya ha indicado que la objeción procede no solo ante las convicciones religiosas, ampliando el ámbito a las convicciones morales o ideológicas (ver sentencia N°2020-001619 de las 12:30 horas del 24 de enero de 2020), considerándose que es perfectamente posible que una persona emita una declaración jurada para hacer referencia a esas convicciones morales o ideológicas para oponerse en los términos del inciso g) del artículo 23, sin que en ese documento tenga la obligación de demostrar o hacer una explicación profusa de tales convicciones -toda vez que ello podría rozar con su ámbito interno y personal- pero, a la vez, ello no obsta para que a través de una declaración jurada informe a la Administración su oposición en razón de sus convicciones morales o ideológicas. De igual manera, debe recordarse que “…la mayoría del Tribunal considera que una sociedad pluralista, resulta necesario que el Derecho de la Constitución -valores, principios y normas- se autoriza a las personas a tener distintas visiones sobre los fenómenos políticos, económicos, sociales y culturales, pues de lo contrario se caería en una sociedad autoritaria o totalitaria en la que hay una homogenización o estandarización del pensamiento. En ese sentido, los Tribunales de Derechos Humanos no están llamados a imponer un pensamiento único, sino que a través de un juicio de ponderación y en aplicación de los principios de razonabilidad y de proporcionalidad, deben permitir el máximo ejercicio de los derechos fundamentales que están en colisión, de forma tal que coexistan de manera respetuosa. Hay que tener presente que, en aquellos casos de conflicto de derechos fundamentales, el Tribunal Constitucional no es un promotor de una determinada ideología o visión del mundo, pues cuando actúa de esa forma claudica a su misión y, por consiguiente, aunque resulte paradójico, termina atropellando los derechos fundamentales de la persona que debe tutelar” (ver sentencia N°2020-001619 de las 12:30 horas del 24 de enero de 2020). A la luz de esta cita jurisprudencial, es válido entonces que una persona que piensa diferente, pueda manifestar su oposición a través de una declaración jurada mediante la cual no está obligada a exponer de manera abierta y explícita sus convicciones porque quiere resguardar su intimidad, pero este instrumento sí le permitiría defender su posición y exigir respeto por ella. Ahora bien, si el receptor de ese documento considera que pudiere contener manifestaciones falsas o inexactas, debe recordarse que el sistema también prevé esa posibilidad y para ello existe todo un procedimiento legalmente establecido a través del cual se podrá verificar la veracidad de las manifestaciones y será ahí, en la vía correspondiente, en donde se deberá probar que la persona no dijo la verdad, y en donde se podrían aplicar las sanciones que correspondan, inclusive penales, pero esa posibilidad de hacer manifestaciones falsas, tampoco puede convertirse en un obstáculo para el uso de este instrumento, toda vez que, como se dijo, se parte de que se presume verdad.

Igualmente debe decirse que es un mecanismo simple porque no implica una tramitación engorrosa, a la vez que efectivo y hasta discreto, que le permite a la persona ejercer su derecho a la objeción de conciencia y exigir respeto de éste, pero que, también le facilita resguardar su confidencialidad y su intimidad, sobre todo pensando en casos de personas que no quieren revelar su identidad de género, sus creencias religiosas o su agnosticismo, sus convicciones personales, entre otros.

Se estima entonces que la amplitud subjetiva es la garantía de inclusión y de reconocimiento de las diversas cosmovisiones, creencias y convicciones que se presentan en una sociedad democrática. Por lo tanto, se considera que el mecanismo ideado por el artículo consultado a través de la utilización de la declaración jurada, se ajusta a esa amplitud subjetiva sin lesionar otros derechos de la persona, por lo que no es contrario al Derecho de la Constitución.

Sobre el tercer alegato formulado. Los consultantes indicaron que la formulación planteada en el proyecto de Ley bajo estudio permite, de manera abierta y desregulada, la posibilidad de que los funcionarios públicos puedan negarse a recibir formación técnica y capacitaciones que sean obligatorias y necesarias para el ejercicio del cargo que desempeñan, ello con la mera comunicación mediante declaración jurada, lo que en criterio de los consultantes podría considerarse un ejercicio abusivo y contrario a los derechos humanos de los demás ciudadanos. Analizando el articulado del proyecto en consulta, puede afirmarse que entran en juego varios derechos, tanto de los funcionarios como de los ciudadanos que reciben servicios de estos servidores públicos. Al respecto, debe indicarse que los servidores públicos son contratados sobre la base del principio constitucional de idoneidad comprobada, es decir, que en tesis de principio la formación profesional y técnica de los funcionarios está previamente verificada en cuanto a los requisitos exigibles para desempeñarse en diversos cargos. Recuérdese que el régimen de los servidores públicos se sustenta en dos pilares fundamentales, la idoneidad comprobada en el ingreso y la estabilidad en el puesto. Por lo anterior, la consideración de que un profesional que no asista a un curso impacte directamente en su formación sería una situación que debería ser analizada frente a un caso concreto. Ahora bien, también es pertinente mencionar que todo servidor público tiene un llamado constitucional a brindar un servicio de calidad en el ejercicio de su cargo y, en caso de que esta persona incumpla con dicho mandamiento, podría incurrir en una falta disciplinaria, consecuentemente, cargaría con la responsabilidad correspondiente, para lo cual deberán ser valorados todos los supuestos fácticos concretos en cada caso. De ahí que, si un servidor incurriera en una conducta abusiva o arbitraria, frente a cualquier situación, incluida la objeción de conciencia, podría ser acreedor directo de las responsabilidades que se indican en la ley en todos aquellos supuestos en los cuales no se esté ante algún eximente o justificación válida de responsabilidad; sin embargo, todo ello se trata de previsiones o meras especulaciones que no pueden ser determinadas a ciencia cierta en este momento, y que serán establecidas hasta que se valore la situación en concreto, por lo que, tan solo partiendo del numeral bajo estudio, no podría afirmarse que con la redacción actual se vulnere el Derecho de la Constitución.

Sobre el cuarto alegato formulado. Los consultantes indicaron que los funcionarios públicos para poder ejercer sus funciones de manera proba, eficiente y efectiva ameritan necesariamente tener los conocimientos técnicos y administrativos que les permitan desempeñar sus funciones. Tal como se indicó, los procesos de selección y nombramiento se fundamentan en la escogencia de las personas capacitadas para ejercer cargos públicos, para lo cual se solicitan una serie de requisitos académicos, técnicos y actitudinales, entre otros, en aras de garantizar la eficiencia en la prestación de los servicios públicos. En el supuesto que algún servidor público dejara de cumplir con los requisitos, que en un inicio le fueron solicitados por el empleador -en este caso el Estado-, existe la posibilidad para iniciar los procedimientos necesarios a fin de garantizar la máxima eficiencia y la continuidad de los servicios, como, por ejemplo: traslado de personal, reorganización de los servicios, despido del funcionario, etc., todo lo anterior de conformidad con lo que se establece en las leyes a través de las vías concretas, ya sean administrativas o jurisdiccionales.

Sobre el quinto alegato formulado. Los consultantes refieren que existe una obligación del Estado de capacitar a los funcionarios para que la operación estatal sea acorde a los parámetros de prestación de los servicios públicos que deben garantizarse a los ciudadanos. En cuanto a la capacitación de los funcionarios públicos, debe señalarse que en el artículo 1 de la Ley 6362, Ley de Capacitación personal Administración Pública señala:

“Artículo 1º.- Se declara de interés público la formación profesional y la capacitación del personal de la Administración Pública en ciencias y técnicas administrativas, como el medio más adecuado para promover el mejoramiento integral de ésta.” Asimismo, el artículo 5 del mismo cuerpo normativo dispone:

“Artículo 5º.- La formación profesional y la capacitación constituyen un derecho y un deber de los funcionarios de la Administración Pública. Como derecho implica que a todo servidor que reúna las condiciones requeridas para participar en los programas de profesionalización y capacitación, se le brinde la posibilidad de participar en ellos. Como deber, la obligación de someterse a aquellos programas de adiestramiento en servicio y mejoramiento técnico que demande el buen desempeño del cargo.” Ciertamente existe un reconocido interés público en la formación de los servidores públicos con la intención de promover el mejoramiento integral de la Administración Pública. En relación con el proyecto de ley consultado, debe indicarse que la cláusula de objeción no resulta antagónica con lo preceptuado en la Ley de Capacitación personal Administración Pública, en el tanto se basa en el ejercicio de las libertades de conciencia y religión de las personas que invoquen una objeción ante la capacitación o formación obligatoria por considerarse contraria a las convicciones religiosas, éticas o morales.

Sobre el sexto alegato formulado. Los consultantes cuestionan: ¿cómo puede determinar un funcionario público, de previo a recibir una capacitación, que la misma atenta contra sus creencias o convicciones personales?. En relación con este planteamiento, es claro que la normativa propuesta, no establece una condición temporal en la cual se pueda plantear la objeción de conciencia, lo cual permite plantear la objeción antes o durante el desarrollo de la capación o curso. Es claro que dicha objeción solo podría ser planteada ante los procesos de formación o capacitación que sean obligatorios, en cuyo caso, al informarse al servidor de la obligación y el nombre del programa o curso así como de sus contenidos, este válidamente podría plantear la objeción, en el tanto se infiera del título o del contenido que entraría en conflicto con sus convicciones personales. No resulta necesario que el servidor deba iniciar un curso para que luego pueda ejercitar la objeción de conciencia, esto sería tan inoportuno como obligar a una persona no creyente a que reciba clases de religión para que luego pueda indicar si estas son contrarias o no a sus convicciones.

Sobre el sétimo alegato formulado. Los consultantes alegan que incluir la objeción de conciencia dentro de este proyecto de ley podría tornarlo inconstitucional en la medida que el Estado permitiría a funcionarios desatender el cumplimiento de potestades públicas, que son obligatorias y que alguien debe hacerlas. Una de las obligaciones constitucionales de las administraciones públicas es la prestación célere y eficiente de los servicios públicos. En ese sentido, al reconocerse la objeción de conciencia, la administración se encuentra en la obligación de disponer lo necesario a efectos de que los administrados no vean menoscabados sus derechos fundamentales ante funcionarios objetantes. De esta manera se indicó en la sentencia 2020-001619 de las 12:30 horas del 24 de enero de 2020, señalando que “…en estos supuestos, se concilia dos derechos fundamentales, sin embargo, no se vacía del contenido esencial al primero -igualdad y no discriminación-, toda vez que ante un caso de objeción de conciencia de un juzgador relativo a realizar el acto de matrimonio, el Consejo Superior del Poder Judicial debe adoptar todas las medidas necesarias para que el servicio público de Administración de Justicia se brinde a las parejas del mismo sexo en las mismas condiciones y tiempos de respuesta que le da a las personas heterosexuales.”. La norma del proyecto de ley consultado no se refiere propiamente a la prestación de servicios públicos, dado que su alcance está circunscrito a cursos o capacitaciones obligatorios. En ese supuesto, no podría entenderse como la desatención de los mandatos constitucionales y las obligaciones de la Administración, ya que solo supondría la exención de la persona objetante, debiéndose adoptar todas las medidas necesarias para que el servicio público se brinde en las mismas condiciones y tiempos de respuesta de servicios por parte los servidores no objetantes.

Sobre el octavo alegato formulado. Los consultantes señalan que la Sala Constitucional ha dicho que los funcionarios cuando asumen un cargo sobre el cual deben realizar determinados actos, están obligados a cumplirlos sin derecho a objeción de conciencia, en el tanto han aceptado ejercer el cargo público conforme al derecho vigente al momento de su nombramiento. Sobre la objeción de conciencia en el ámbito laboral, la Sala se ha pronunciado en varias ocasiones y ha tutelado las libertades de conciencia y religión de los servidores públicos en ese sentido, en la sentencia N°2015-011897 de las 11:41 horas del 31 de julio de 2015, la Sala Constitucional, tuteló a un oficial de la Fuerza Pública que profesa el judaísmo, indicando que “…los recurridos se encontraban en la obligación de buscar la solución menos gravosa para el tutelado, con el fin de que se no se afectara lo dispuesto por el numeral 75, de la Constitución Política, no obstante, los accionados no procedieron de esa manera, pues la medida adoptada implicó una lesión a la libertad religiosa del amparado, y, además, no fue proporcional al fin por el que fue adoptada, ya que como se indicó anteriormente, el hecho de que se hubiera permitido al amparado guardar su día de descanso, no conllevaba a una vulneración seria del interés público. Es decir, dentro de dos soluciones posibles, se opta por la más gravosa para el derecho fundamental y, por consiguiente, se vulnera, además de que la medida acordada por la autoridad recurrente (SIC), no es proporcional ni justa en sí misma, por lo que no hay otra alternativa que declarar con lugar el recurso de amparo.” La Corte Interamericana de Derechos Humanos reconoció el derecho a la libertad de conciencia y de religión, para que las personas conserven, cambien, profesen y divulguen su religión o sus creencias. Este derecho es uno de los cimientos de la sociedad democrática y en su dimensión religiosa, constituye un elemento trascendental en la protección de las convicciones de los creyentes y en su forma de vida (Juan Gerardi vs. Guatemala 1982, Dianna Ortiz vs. Guatemala 1997, y Loren Laroye Riebe Star, Jorge Alberto Baro´n Guttlein y Rodolfo Izal Elorz vs. México 1998). Es claro que la libertad de conciencia y de religión encuentra resguardo en el numeral 12 de la Convención Americana, indicando:

Artículo 12. Libertad de conciencia y de religión.

“1. Toda persona tiene derecho a la libertad de conciencia y de religión. Este derecho implica la libertad de conservar su religión o sus creencias, o de cambiar de religión o de creencias, así como la libertad de profesar y divulgar su religión o sus creencias, individual o colectivamente, tanto en público como en privado.

(…)” En razón de lo expuesto, si bien el servidor público al asumir un cargo sobre el cual debe realizar determinados actos, claramente, está obligado a cumplirlo, lo cierto es que el cumplimiento de sus funciones no hace nugatorios sus derechos fundamentales ni humanos, por lo que no sería admisible pensar que con la aceptación del cargo este renuncia ipso facto a estos derechos. Es claro que se trata de derechos que, por su naturaleza, son irrenunciables dado que tutelan la dignidad humana.

Sobre el noveno alegato formulado. La negativa de recibir una capacitación y formarse en temas acordes con su cargo, podría vulnerar, por ejemplo, el derecho del ciudadano a recibir adecuada atención de salud, un correcto servicio de los órganos que imparten justicia o un mensaje sesgado o equivocado por parte de instituciones educativas. Como ya se indicó, la objeción de conciencia debe ser diferenciada de figuras afines como la desobediencia civil, dado que la intención del objetor no es obstaculizar el cumplimiento social del precepto legislativo -como lo podría ser dejar de brindar la prestación de los servicios de salud o de administración de justicia-, sino obtener el respeto de su propia conciencia. La diferencia radica, principalmente, en la finalidad de la acción. El objetivo principal de la desobediencia civil es la modificación de un precepto normativo o política pública. De igual manera, debe diferenciarse entre la objeción de conciencia y la evasión de conciencia, la distinción se refiere a la publicidad del acto y no a su finalidad. En ese sentido, la objeción de conciencia se manifiesta de manera pública, pues el objetor debe comunicar su negativa a los superiores a efectos de obtener la exención. De manera contraria, la evasión de conciencia se identifica por su carácter esencialmente secreto, por ejemplo, la personas que se separa de los dogmas normativos para emprender reservadamente una acción entendida como deber moral, ejemplo, el médico que practica un procedimiento abortivo de forma clandestina con la intención de ayudar a la madre. Tal como se mencionó en la sección anterior, ante la exención de un servidor público, la Administración está en la obligación constitucional y legal de disponer lo necesario a efectos de que los administrados no vean menoscabados sus derechos fundamentales ante funcionarios objetantes, asegurando la celeridad y la calidad de los servicios prestados. Asimismo, no podría suponerse que ante la falta de una capacitación determinada el servidor público emita un criterio sesgado o deje de brindar un servicio, pues esto podría darse aún con la capacitación, de igual manera, tampoco podría suponerse lo contrario. En consecuencia, tampoco en este extremo no se observa la existencia una vulneración al Derecho de la Constitución.

Sobre el décimo alegato formulado. El considerar la objeción de conciencia como un mero trámite sin mayores condiciones y restricciones, sin ninguna seriedad técnica, solo para polemizar y polarizar a la sociedad costarricense resulta contrario a los derechos humanos reconocidos por la Corte Interamericana de Derechos Humanos, y se contrapone a la obligación que tiene el Estado y que debe garantizar. Tal como ya se mencionó, esta Sala considera que el procedimiento relativo a la cláusula de objeción es apto, en el tanto el proyecto legislativo requiere de una actuación suficiente de parte del servidor público y que consiste en informar mediante una declaración jurada la objeción de conciencia. Lo cual es consecuente con lo indicado por este Tribunal, así en la sentencia N°2012-010456 de las 05:27 horas del 01 de agosto de 2012. Al contrario de lo que señalan los consultantes, el ejercicio de la objeción de conciencia no busca polemizar ni polarizar a la sociedad, sino por el contrario pretende el respeto de las creencias del funcionario público y, por ende, en cuanto a este punto, tampoco se observa una lesión al Derecho de la Constitución.

• 4)Conclusión En mérito de lo expuesto, puede concluirse que la objeción de conciencia es entendida como una concreción ad extra de las libertades de conciencia y religión, que se manifiesta como límite frente a los poderes públicos para que estos no interfieran con las convicciones personales. Concretamente, se refiere a la posibilidad de apartarse de un deber o mandato jurídico cuando estos riñen o se contraponen a las convicciones del objetor sin que se pueda exigir a este responsabilidad. Por su parte, la libertad de pensamiento y de conciencia se erigen como elementos fundamentales que conforman la identidad de los creyentes y su concepción de la vida, así como para las personas ateas, agnósticas, escépticas e indiferentes. En el proyecto de consulta es claro que el precepto normativo propuesto permitiría a un funcionario alegar una objeción de conciencia a efectos de que se aplique una exención frente a una capacitación o curso de formación obligatorios por considerarla contraria a sus convicciones religiosas, éticas y morales. En ese sentido, debe recordarse que la objeción de conciencia ha sido el mecanismo válido para que una persona pueda ejercitar otros derechos, como la libertad de conciencia y la liberta de religión (art. 75 constitucional) que, entendidos en armonía con el ordenamiento jurídico, su ejercicio estaría limitado por los derechos de terceros. Respecto al mecanismo propuesto en la norma de consulta, a efectos de comunicar la objeción de conciencia, esta Sala considera que este es apto, en el tanto el proyecto legislativo requiere una actuación suficiente de parte del servidor público, pues le impone informar mediante una declaración jurada la objeción de conciencia. Así entonces, en cuanto al artículo 23 inciso g) del proyecto de “LEY MARCO DE EMPLEO PÚBLICO”, que se tramita en el expediente legislativo N°21.336, se evacúa la consulta, en el sentido de que no presenta vicios de inconstitucionalidad, porque garantiza adecuadamente el derecho a la objeción de conciencia.
• 5)Razones diferentes e interpretación Razones diferentes del magistrado Rueda Leal en cuanto al inciso g) del artículo 23 del proyecto.

En cuanto a este punto, la mayoría de la Sala cita una serie de pronunciamientos para fundar su criterio, no todas ligadas directamente a la objeción de conciencia. Así, de los antecedentes mencionados y en los que he conformado el Tribunal, coincidí con la mayoría en las sentencias n.os 2015-011897 de las 11:41 horas del 31 de julio de 2015, 2017-000228 de las 09:15 horas del 13 de enero de 2017 y 2017014918 de las 09:15 horas del 22 de setiembre de 2017, la última de mi redacción y todas vinculadas con la protección a las libertades religiosa y de culto. No obstante, ningún derecho es absoluto y el parámetro de control de constitucionalidad está compuesto por una serie de principios, bienes y derechos (unos de raigambre constitucional, otros convencional), respecto de los cuales, cuando ocurre un conflicto, en cantidad de ocasiones se debe desarrollar una tarea de optimización, de manera que se potencie de la mejor forma posible el contenido de los principios, bienes y derechos en colisión, sin que se llegue a vulnerar su contenido esencial. Conforme ese norte, en ciertos casos he vertido razones separadas o votos salvados, cuando la mayoría del Tribunal y el infrascrito hemos guardado diferencias con respecto a la armonización entre la objeción de conciencia, la protección de la dignidad humana, el interés superior del menor, y varios principios del derecho internacional de los derechos humanos.

Así, en la sentencia n.º 2012-10456 de las 05:27 horas del 01 de agosto de 2012 consigné estas razones distintas:

“Comparto el criterio de la mayoría en cuanto a la fundamentación técnica del Programa de Estudio de “Educación para la Afectividad y la Sexualidad Integral”, por impartirse en el Tercer Ciclo de Educación General Básica, sea a todos los estudiantes de sétimo, octavo y noveno año de secundaria de todo el país. En efecto, se trata de un programa de formación en aspectos de la sexualidad, cuyo contenido resultó de la consulta a diversas dependencias, organismos y especialistas con conocimiento en dicha área, así como de varios estudios de campo. Al respecto, de conformidad con lo dispuesto en el numeral 81 de la Constitución Política, estimó que la definición del contenido de los programas educativos únicamente atañe al Consejo Superior de Educación, presidido por el Ministro de Educación Pública, de manera que la Administración, dentro de una amplia discrecionalidad, está facultada para decidir sobre tal aspecto así como determinar a quién consultar o no. Atinente a la educación sexual, como indica la mayoría, en adición existe sobrado sustento normativo que obliga al Estado a desarrollar programas educativos en esa área (artículo 10 inciso h de la Convención sobre la Eliminación de todas las formas de Discriminación contra la Mujer, numeral 23 de la Convención Iberoamericana de los Derechos de los Jóvenes, ordinal 19.1 de la Convención sobre los Derechos del Niño, artículos 44, 55 y 58 del Código de la Niñez y la Adolescencia). Ahora bien, esta facultad no obsta para desconocer el papel subsidiario y complementario que en esta materia tiene la Administración, toda vez que la educación de la sexualidad humana atañe en primera instancia a la familia, como lo reconoció el mismo Consejo Superior de Educación en el acuerdo número 28-01 del 12 de junio de 2001. Sin duda, como indica la mayoría, los padres y madres, en ejercicio de su derecho a educar a sus hijos, tienen un papel fundamental en la formación sexual de estos, de acuerdo con una visión de mundo y valores que goza de amplia protección constitucional, porque se trata del ejercicio de derechos fundamentales como la libertad de pensamiento, que incluye la libertad religiosa. Precisamente, los programas de educación sexual no son meramente biológicos, sino que contemplan un conjunto de valores plasmados en modelos de conducta sexual por seguir, en los que, definitivamente, madres y padres asumen una responsabilidad determinante, que resulta constitucionalmente relevante. De esta forma, la elaboración técnica de los programas de educación sexual atañen a la Administración, y para ello existe un amplio margen de discrecionalidad para definir su forma de elaboración; empero, en lo atinente a su implementación, padres y madres ostentan el derecho a opinar si tales programas son apropiados o no para la formación de sus hijos según el conjunto de valores, religiosos o no, y parámetros éticos abrazados por padres y madres. Esto también tiene sobrado sustento normativo, según se infiere del artículo 23 inciso 3 de la Declaración Universal de Derechos Humanos, numeral 13 inciso 3 del Pacto Internacional de Derechos Económicos, Sociales y Culturales, ordinal 12 inciso 4) de la Convención Americana Sobre Derechos Humanos, artículos 2 a 3 de la Declaración sobre los Derechos de las Personas Pertenecientes a Minorías Nacionales o Étnicas, Religiosas y Lingüísticas, numerales 1 a 3 de la Declaración sobre la Eliminación de Todas las Formas de Intolerancia y Discriminación Fundadas en la Religión o las Convicciones, y ordinal 18 inciso 4 del Pacto Internacional de Derechos Civiles y Políticos. Ante tal situación, evidentemente se necesita conciliar las facultades del Estado y los derechos de padres y madres, por lo que resulta razonable el establecimiento de algún mecanismo en que se dirima si un educando puede ser excluido o no del programa de estudio de “Educación para la afectividad y la sexualidad integral”, una vez escuchado el criterio de los padres y madres. No obstante, en esta materia, no solo deben ser escuchados los padres y madres, puesto que los adolescentes también tienen derecho a manifestarse. En efecto, conforme al Interés Superior del Menor, no solo cuentan los criterios del Estado, padres y madres, pues resulta constitucionalmente inviable desconocer el derecho de opinión de los propios adolescentes. En efecto, en el sub examine, un elemento fundamental consiste en que los programas de educación sexual están dirigidos a estudiantes de sétimo, octavo y noveno año, esto es a menores que inician la adolescencia, fase de la vida humana que comienza con la pubertad. En la especie, independientemente de la discusión que pudiera darse para determinar la edad comprendida en la adolescencia, resulta indubitable que estudiantes de sétimo, octavo y noveno año, esto es normalmente con una edad de doce años en adelante, son adolescentes, lo que implica un desarrollo emocional y cognitivo superior al de la niñez. En efecto, la adolescencia constituye el periodo en que el menor ingresa al mundo de los adultos, descubre su propia identidad, construye su individualidad, desarrolla su capacidad de relativizar y elabora su visión de mundo. Precisamente, el adolescente necesita obrar por convicciones personales, y aunque su grado de madurez no corresponda al de un adulto, por lo que requiere de guía y orientación, no menos cierto es que su desarrollo emocional y cognitivo demanda respeto para con sus convicciones y valores, es decir, con el proceso de formación de su personalidad. Tales circunstancias no pasan inadvertidas por parte del instituto jurídico del Interés Superior del Menor, recogido en el artículo 3 de la Convención sobre los Derechos del Niño. Este instrumento es simultáneamente Principio General y Derecho. En cuanto principio, posee la naturaleza jurídica de norma rectora del resto de normas del ordenamiento jurídico. Esto implica que tanto en la aplicación del derecho positivo por parte de los órganos jurisdiccionales como en la fase de creación jurídica y desarrollo de políticas de gobierno por parte de los Poderes Legislativo y Ejecutivo, debe imperar la consideración a la protección y atención de los intereses de los menores. Desde el punto de vista constitucional, ese principio es un marco de referencia ineludible al momento de interpretar derechos fundamentales y valorar posibles lesiones al orden constitucional. Como derecho humano, es inherente a la persona menor por el mero hecho de serlo, se aplica de manera universal y transnacional, y su ámbito de protección es irreversible. El Interés Superior del Menor parte de una superación de la Doctrina de la Situación Irregular, en que la persona menor de edad no era concebida como titular de derechos, sino como mero objeto de abordaje por parte de la justicia. Tal superación se da mediante la consagración de la Doctrina de la Protección Integral, que considera al menor como sujeto de derecho, no como mero objeto pasivo de tutela. Implica, para niños, niñas y adolescentes, el reconocimiento de su condición humana y sus capacidades, el respeto a su dignidad de ser humano en proceso de desarrollo y la atención de sus necesidades específicas. En el marco de esta doctrina, el menor adquiere el derecho a ser escuchado y a que sus puntos de vista sean tomados en consideración a la hora de decidir respecto de cuestiones que les afectan. Anteriormente, se consideraba al niño y la niña como un sujeto con un interés jurídico abstracto, dependiente, estático y sin una proyección determinada, tenía que forzosamente estimarse al menor de edad, como un sujeto (carente de autonomía) con interés menor o inferior al de los adultos, considerados ideal o abstractamente. Por ello, a tales menores de edad frente a los mayores de edad, principalmente sus respectivos padres y madres, se les reconocía un interés jurídico en la tenencia de la personalidad, inferior a la de otros. Por el contrario, en la concepción actual, el resguardo y promoción de la niñez se explica según la teoría de la protección integral, que concibe al menor como un sujeto de derecho. De esta forma, el interés de la personas menores de edad no es más un concepto alejado de la voluntad propia del menor, impuesto por un estado tutelar; por el contrario, en su definición converge diversidad de criterios y factores, dentro de los que el punto de vista del adulto o del Estado no es definitivo. Es decir, en la plena satisfacción de los derechos de los pequeños, estos cuentan. Precisamente, el artículo 14 de la Convención sobre los Derechos del Niño establece lo siguiente:

“1) Los Estados Partes respetarán el derecho del niño a la libertad de pensamiento, de conciencia y de religión. 2) Los Estados Partes respetarán los derechos y deberes de los padres y, en su caso, de los representantes legales, de guiar el niño en el ejercicio de su derecho de modo conforme a la evolución de sus facultades. 3) La libertad de manifestar la propia religión estará sujeta únicamente a las limitaciones prescritas por la ley y que sean necesarias para proteger la seguridad, el orden, la moral o la salud pública o los derechos o libertades de los demás”.

De lo anterior se infiere que el Estado debe respetar tanto el derecho de los padres y madres a orientar a sus hijos e hijas, como el derecho de esto últimos a su libertad de pensamiento, conciencia y religión. Ahora bien, el numeral 12 inciso 1 de la Convención de cita determina que los Estados Partes deben garantizar al niño y la niña que estén en condiciones de formarse un juicio propio, el derecho de expresar su opinión libremente en todos los asuntos que le afectan, para cuyo efecto se deben tomar en cuenta las opiniones del menor, en función de su edad y madurez. Como bien señala el Comité de los Derechos del Niño, tal norma se refiere al derecho del menor a expresar puntos de vista relacionados específicamente con cuestiones que le afectan, así como al derecho de participar en decisiones y acciones que influyan en su vida. El artículo 12 conmina a los Estados Miembros a presentar el marco legal y los mecanismos necesarios para facilitar la participación activa del niño en todas las acciones y tomas de decisiones que afecten su vida, así como a respetar el compromiso de dar la debida importancia a estos puntos de vista luego de ser expresados. Por otro lado, según el ordinal 13 de la Convención de cita, la libertad de expresión no impone este tipo de compromiso o respuesta de parte de los Estados Miembros. Sin embargo, establece un ambiente de respeto, consistente con el numeral 12 supra citado, en el que los niños puedan expresar sus opiniones y que, además, contribuya al desarrollo de capacidades para que estos puedan ejercer su derecho a la libertad de expresión. Congruente con lo expuesto, el artículo 5 del Código de la Niñez Código de la Niñez y la Adolescencia atinadamente estatuye, entre otros elementos, que en el proceso de determinación del Principio, el menor debe ser visto como sujeto de derechos y responsabilidades, y que la aplicación del Principio no puede ser uniforme, pues depende de la edad del menor, su grado de madurez, capacidad de discernimiento y demás condiciones personales. Así las cosas, la atención que merece la opinión de los menores no es única para todos ellos, sino que varía según su grado de madurez. Precisamente, el artículo 14 inciso b) del Código de la Niñez y Adolescencia confiere al menor el derecho a expresar su opinión en los ámbitos de su vida cotidiana, especialmente en la familia, comunidad y escuela, lo que no solo se limita a expresar, sino que comprende, además, el derecho a que su opinión sea tomada en cuenta según sea su desarrollo emocional. En este mismo orden de ideas, ese cuerpo normativo, en el artículo 60 inciso b, determina como principio educativo el respeto por los derechos de los educandos, en especial los de organización, participación, asociación y opinión, este último, particularmente, respecto de la calidad de la educación que reciben, lo que evidentemente incluye la educación sexual. Con base en las consideraciones expuestas, concuerdo con la necesidad de que exista un mecanismo para dirimir si procede o no la exclusión de un educando del programa de estudio de “Educación para la afectividad y la sexualidad integral”; no obstante, discrepo que en ese mecanismo solo se tome en consideración el criterio de los padres y madres sin que la persona menor de edad tenga oportunidad alguna de manifestarse. Ciertamente, reconozco que los padres y las madres tienen el derecho fundamental a incidir efectivamente en los aspectos que afecten la educación moral o religiosa de sus hijos, lo que podría incidir en la visión y modo de brindar educación sexual. No obstante, como he señalado en anteriores ocasiones, el interés superior del niño no es paternocéntrico ni estatocéntrico sino infantocéntrico (ver sentencias números 2012-001806 de las 9:05 horas del 10 de febrero de 2012 y 2011-012458 de las 15:37 horas del 13 de setiembre de 2011), razón por la que el menor también tiene derecho a ser escuchado y a que su opinión sea considerada. En el caso de los adolescentes, el Principio del Interés Superior del Menor obliga al Estado a que la opinión del menor sea tomada en cuenta con mayor énfasis dado su grado de desarrollo emocional y cognitivo. Por ello, estimo que a los menores les asiste el derecho a exteriorizar su opinión acerca de si participan o no en el programa de estudio de “Educación para la afectividad y la sexualidad integral”, en la medida que este incluye aspectos que no son meramente biológicos, sino que contemplan un conjunto de valores plasmados en modelos de conducta sexual por seguir, lo que puede reñir creencias o convicciones personales del adolescente. Lo anterior constituye aplicación de la doctrina denominada “Guillick competence”. En el caso Gillick v West Norfolk and Wisbech Area Health Authority, relacionado con la posibilidad de suministrar tratamiento anticonceptivo a menores de 16 años incluso sin requerir el consentimiento de los padres, la “House of Lords” afirmó que los “derechos parentales para controlar al niño no existen en beneficio de los padres… [sino que] están establecidos en beneficio del niño y están justificados solo hasta el punto en que le permitan al padre el cumplimiento de sus deberes hacia el niño... Por cierto que el consentimiento de los padres debe normalmente ser consultado, pero ese consentimiento puede muchas veces no estar disponible de inmediato. En condiciones que el paciente, no importa si niño o niña, es capaz de entender lo que se le propone y de expresar sus propios deseos, no veo dónde puede haber una buena razón para sostener que él o ella carece de la capacidad para expresarlo válida y efectivamente”. A medida que el menor de edad se aproxima a la adultez legal la autoridad parental va decreciendo, siendo claro que las decisiones relativas a los tratamientos médicos a que se someterá un adolescente, pueden ser determinadas por el mismo adolescente: “Es preciso tener en cuenta que un niño llega a ser independiente en la medida que va creciendo; mientras el niño es mayor, la autoridad parental va -correspondientemente- disminuyendo. Por lo mismo, la ley no reconoce ninguna regla de autoridad parental absoluta sobre alguna determinada edad. En cambio de ello, los derechos parentales son reconocidos por el derecho solo en cuanto ellos son necesarios para la protección del niño, por lo que esos derechos ceden frente a los derechos del niño a tomar sus propias decisiones cuando ha alcanzado el suficiente entendimiento e inteligencia para ser capaz de tomar una decisión [informada] a su propio cargo”. En consecuencia, en la materia específica de la educación sexual, estimo que a medida que el menor de edad se aproxima a la adultez legal, la autoridad parental va decreciendo; esta tesis, sin embargo, depende del tipo de asunto que afecte al menor, pues evidentemente existen otras materias en las que la autoridad parental se preserva precisamente en función del interés del menor, verbigracia el consumo de sustancias perjudiciales o la realización de actividades recreativas peligrosas. Lo relevante, entonces, es favorecer aquella medida que más favorezca al menor, lo que el juzgador debe valorar en el caso concreto según un enfoque infantocéntrico. Por lo demás, con el debido respeto para la mayoría, no considero oportuno, en virtud del Principio de Autocontención del Juez Constitucional, que esta Sala establezca, con el detalle que consigna la mayoría, los requerimientos y condiciones en que debe operar el propuesto mecanismo de exclusión del programa de estudio de “Educación para la afectividad y la sexualidad integral”, pues ello compete al Ministerio de Educación Pública, lo que no excluye un posterior control de constitucionalidad. Por consiguiente, declaro sin lugar el recurso y aclaro que en virtud del Principio del Interés Superior del Menor, el criterio de los adolescentes, en virtud de su grado de desarrollo emocional y cognitivo, debe ser tomando en consideración como reconocimiento al derecho a valorar la calidad de educación que deben recibir según sus convicciones y creencias personales. Esto se aplica exclusivamente al programa de educación sexual en cuestión, en la medida, como indiqué supra, que contiene, amén de aspectos meramente biológicos, un conjunto de valores plasmados en modelos de conducta sexual por seguir que pueden reñir con creencias o convicciones personales del adolescente. Distinta es la valoración cuando se trata del resto de programas académicos, toda vez que están referidos a áreas del conocimiento en los que inexorablemente las personas menores de edad requieren ser formadas, áreas en las que evidentemente estos pueden plantear sus propias opiniones y argüir críticamente, mas no al extremo de eludir la asistencia y aprobación de los cursos.” Asimismo, en la sentencia n.° 2020-001619 de las 12:30 horas del 24 de enero de 2020, la magistrada Esquivel Rodríguez y el infrascrito disentimos de la mayoría en este sentido:

“Por tanto:

Por mayoría se declara con lugar el recurso, en consecuencia se ordena a Fernando Cruz Castro, en su condición de Presidente del Consejo Superior del Poder Judicial, o a quien en su lugar ocupe el cargo, que ajuste el acuerdo dispuesto en el artículo XVII de la sesión n.° 60-19 del 4 de julio de 2019 a los términos de esta sentencia, con el fin de garantizar el acceso, la atención y la resolución expedita del servicio público de administración de justicia en condiciones de igualdad. El Magistrado Rueda Leal y la Magistrada Esquivel Rodríguez salvan el voto y declaran sin lugar el recurso. Se condena al Estado al pago de las costas, daños y perjuicios causados con los hechos que sirven de fundamento a esta declaratoria, los que se liquidarán en ejecución de sentencia de lo contencioso administrativo. Notifíquese esta sentencia a Fernando Cruz Castro, en su condición de Presidente del Consejo Superior del Poder Judicial, o a quien en su lugar ocupe el cargo, de forma personal.

Fernando Castillo V.

Presidente a.i.

Paul Rueda L. Nancy Hernández L.

Luis Fdo. Salazar A. Jorge Araya G.

Marta Esquivel R. Alejandro Delgado F.

Voto salvado del Magistrado Rueda Leal y la Magistrada Esquivel Rodríguez, con redacción del primero. Con el respeto acostumbrado nos separamos del criterio de la mayoría por los siguientes motivos:

1.- Referencia jurisprudencial. Visto que la resolución de mayoría únicamente menciona algunos precedentes internacionales que son de gran relevancia en el sub examine, consideramos que una ponderación balanceada amerita una transcripción de algunos de sus argumentos. Por ejemplo, si bien la sentencia se refiere a jurisprudencia del TEDH relacionada con el servicio militar, productos farmacéuticos, derecho propiedad y uso de símbolos religiosos, se trata de asuntos que pueden servir de referencia general en cuanto a la existencia de un derecho a la objeción de conciencia, mas no tocan el tema de fondo en el sub íudice: el matrimonio civil entre parejas del mismo sexo y el derecho a la objeción de conciencia. El caso que sí lo hace es Eweida y otros vs. Reino Unido. La mayoría de esta Sala se enfocó en las opiniones disidentes sin hacer justicia a los argumentos de la decisión del TEDH. En tal oportunidad, ese Tribunal resolvió el caso de una funcionaría del registro de nacimientos, defunciones y matrimonios, quien se oponía a registrar matrimonios entre personas homosexuales:

“102. El Tribunal señala que la tercera demandante es una cristiana, que mantiene la opinión cristiano-ortodoxa de que el matrimonio es la unión de un hombre y una mujer para toda la vida. Cree que las uniones del mismo sexo son contrarias a la voluntad de Dios y que no sería bueno que ella participara en la creación de una institución equivalente al matrimonio entre una pareja del mismo sexo. Debido a su negativa a ser designada como funcionaría registradora de uniones homosexuales, se inició un procedimiento disciplinario en su contra, que culminó con la pérdida de su empleo.

103. La demandante tercera no reclamó en virtud del artículo 9 leído aisladamente, sino que alegó que había sufrido discriminación como resultado de sus creencias cristianas, en violación del artículo 14 en relación con el artículo 9. Para el Tribunal, está claro que la objeción de la demandante a oficiar uniones civiles de personas del mismo sexo estaba directamente motivada por sus creencias religiosas. Los hechos en cuestión entraban dentro del ámbito del artículo 9 y el artículo 14 era de aplicación.

104. El Tribunal considera que la comparación significativa en este caso es con el de un funcionario registrador sin objeciones religiosas a uniones del mismo sexo. Está de acuerdo con la afirmación de la demandante de que el requisito de la autoridad local de que todos los funcionarios registradores de nacimientos, matrimonios y defunciones fueran también designados como funcionarios registradores de uniones civiles del mismo sexo tuvo un impacto particularmente perjudicial en ella debido a sus creencias religiosas. Con el fin de determinar si la decisión de la autoridad local de no hacer una excepción con la demandante y otros en su situación supuso una discriminación indirecta en violación del artículo 14, el Tribunal debe considerar si la decisión perseguía un objetivo legítimo y si fue proporcionada.

105. El Tribunal de apelaciones declaró en este caso que el objetivo perseguido por la autoridad local era proporcionar un servicio que no sólo fuera eficaz en términos de practicidad y eficiencia, sino también que cumpliera con la política general de ser «un empleador y una autoridad pública totalmente comprometida con la promoción de la igualdad de oportunidades y requería que todos sus empleados actuaran de una manera no discriminatoria respecto a los otros». El Tribunal recuerda que en su jurisprudencia en virtud del artículo 14 ha declarado que las diferencias de trato basadas en la orientación sexual requieren justificarse por razones particularmente serias (véase, por ejemplo. Karner contra Austria, núm. 40016/98, ap. 37. TEDH 2003 IX: Smith y Grady, ya citada, ap. 90; Schalk y Kopf contra Austria, núm. 30141/04, ap. 97, TEDH 2010). También ha declarado que las parejas del mismo sexo están en una situación significativamente similar a las parejas de diferente sexo en cuanto a su necesidad de reconocimiento legal y protección de su relación, aunque la práctica en este sentido sigue evolucionando en toda Europa, los Estados contratantes disfrutan de un amplio margen de apreciación en cuanto a la forma en que esto se logra en el ordenamiento jurídico interno (Schalk y Kopf, citada, apartados 99-108). En este contexto, es evidente que el objetivo perseguido por la autoridad local era legítimo.

106. Queda por determinar si los medios utilizados para conseguir este objetivo fueron proporcionados. El Tribunal tiene en cuenta que las consecuencias para la demandante fueron graves: dada la fuerza de su convicción religiosa, consideró que no tenía otra opción que enfrentarse a una acción disciplinaria, antes de ser designada funcionaría registradora de las uniones homosexuales civiles y, en última instancia, perdió su trabajo. Además, no puede decirse que, cuando ella firmó su contrato de trabajo, la demandante renunciara expresamente a su derecho a manifestar sus creencias religiosas oponiéndose a participar en la unión de parejas homosexuales, dado que este requisito se introdujo en una fecha posterior. Por otro lado, sin embargo, la política de la autoridad local buscaba garantizar los derechos de los demás que también están protegidos por el Convenio. El Tribunal concede generalmente a las autoridades nacionales un amplio margen de apreciación cuando se trata de un equilibrio entre derechos contrapuestos del Convenio (véase, por ejemplo. Evans contra el Reino Unido. GS. núm. 6339/05. ap. 77, TEDH 2007 I). En cualquier circunstancia, el Tribunal no considera que las autoridades nacionales, como son el superior de la autoridad local que llevó el proceso disciplinario y los tribunales nacionales que rechazaron la reclamación de discriminación de la demandante, superaran el margen de apreciación del que disponían. Por lo tanto, no puede decirse que haya habido una violación del artículo 14 leído en relación con el artículo 9 respecto a la tercera demandante.” Se destaca que ese Tribunal consideró como fin legítimo que el Estado demandado procurase una política general de promoción de la igualdad de oportunidades y, por ello, requiriese que todos sus empleados actuasen de manera no discriminatoria para con los usuarios, refiriéndose concretamente al trato desigual para con las parejas homosexuales. También estimó que la medida adoptada -el despido de la funcionaría- estaba dentro del margen de apreciación del Estado.

El voto de mayoría también menciona la decisión de la Corte Constitucional colombiana, empero, sin adentrarse en las razones de ese Tribunal para denegar la objeción de conciencia en el ejercicio de la función jurisdiccional:

“5.3. Las autoridades judiciales no pueden escudarse en la objeción de conciencia para negarse a tramitar o a decidir un asunto que se ponga bajo su consideración La objeción de conciencia es un derecho que se garantiza de modo extenso en el campo privado — cuando no está de por medio el desconocimiento de derechos de terceras personas -. No obstante, queda excluido alegarla cuando se ostenta la calidad de autoridad pública. Quien ostenta tal calidad, no puede excusarse en razones de conciencia para abstenerse de cumplir con sus deberes constitucionales y legales pues con dicha práctica incurriría en un claro desconocimiento de lo dispuesto en los artículos 2o y 6o de la Constitución Nacional. De conformidad con el primero:

"Son fines esenciales del Estado: servir a la comunidad, promover la prosperidad general y garantizar la efectividad de los principios, derechos y deberes consagrados en la Constitución; facilitar la participación de todos en las decisiones que los afectan y en la vida económica, política, administrativa y cultural de la Nación; defender la independencia nacional, mantener la integridad territorial y asegurar la convivencia pacífica y la vigencia de un orden justo.

Las autoridades de la República están instituidas para proteger a todas las personas residentes en Colombia, en su vida, honra, bienes, creencias, y demás derechos y libertades, y para asegurar el cumplimiento de los deberes sociales del Estado y de los particulares.” Mientras que el segundo consagra:

"Los particulares sólo son responsables ante las autoridades por infringir la Constitución y las leyes. Los servidores públicos lo son por la misma causa y por omisión o extra/imitación en el ejercicio de sus funciones”.

Lo consignado en los artículos trascritos, pone de relieve el papel que desempeñan las autoridades públicas y las diferencias sustanciales que surgen respecto del sentido y alcance de los deberes en cabeza de estas autoridades si se comparan con los que radican en cabeza de las personas particulares en lo relativo al ejercicio de la objeción de conciencia. Cuando se acepta voluntariamente ostentar la calidad de autoridad judicial e, incluso, cuando en calidad de particulares se asumen compromisos que implican el ejercicio de la actividad jurisdiccional, una de las consecuencias, si no la más importante, es el compromiso de velar por el estricto cumplimiento de la normatividad vigente.

En efecto, cuando un funcionario o funcionaría judicial profiere su fallo no está en uso de su libre albedrío. En estos casos el juez se encuentra ante la obligación de solucionar el problema que ante él se plantea —art. 230 de la Constitución-, con base en la Constitución y demás normas que compongan el ordenamiento jurídico aplicable. Esto por cuanto su función consiste precisamente en aplicar la ley -entendida ésta en sentido amplio-, de manera que no le es dable con base en convicciones religiosas, políticas, filosóficas o de cualquier otro tipo faltar a su función. Lo anterior no significa que como persona no tenga la posibilidad de ejercer sus derechos fundamentales; significa que en su labor de administrar justicia sus convicciones no lo relevan de la responsabilidad derivada de su investidura, debiendo administrar justicia con base única y exclusivamente en el derecho, pues es esa actitud la que hace que en un Estado impere la ley y no los pareceres de las autoridades públicas, es decir, lo que lo define que en un Estado gobierne el derecho y no los hombres, siendo ésta la vía de construcción y consolidación del Estado de derecho.

Adicionalmente, admitir la posibilidad de objetar por motivos de conciencia la aplicación de un precepto legal determinado significa, en el caso de las autoridades jurisdiccionales, aceptar la denegación injustificada de justicia y obstaculizar de manera arbitraria el acceso a la administración de justicia. Debe tenerse presente, que con el ejercicio de la función judicial está en juego la protección de los derechos constitucionales fundamentales que han sido, a su turno, el resultado de grandes esfuerzos por parte de grupos de la sociedad históricamente discriminados - como, en el caso que nos ocupa, lo han sido las mujeres-.

Ha de repararse, de la misma manera, en que estas conquistas cristalizadas bajo la forma de derechos fundamentales, no siempre reciben aceptación pacífica por parte de todos los sectores de la sociedad y se ven expuestas, con frecuencia, a los ataques provenientes de quienes pretenden imponer un punto de vista abarcador y excluyen te incompatible, como ya se dijo, con la apertura al pluralismo y con la necesidad de proteger y promover la diversidad cultural, tal como lo disponen los artículos 1oy 7o de la Constitución Nacional en armonía con otros preceptos contenidos en la misma Norma Fundamental[43].

Aquí cabe, por consiguiente, afirmar que las autoridades judiciales deben dejar de lado sus consideraciones de conciencia para que, en desarrollo del Estado de Derecho, se garantice el derecho que tienen las personas a acceder a la justicia y, por esa vía, asegurar que sus derechos constitucionales fundamentales sean debidamente respetados y protegidos. No se pueden convertir las razones particulares de conciencia de un funcionario o de una funcionaría judicial en obstáculo que impida a las personas obtener pronta y debida justicia.

Aparece claro, entonces, que quien voluntariamente resuelve convertirse en miembro de la rama judicial debe dejar de lado sus consideraciones de conciencia cuando se encuentre en ejercicio de sus funciones y ha de aplicar la normatividad vigente. Otra cosa sucede cuando estas personas obran en la esfera privada, por cuanto en ese ámbito la Constitución Nacional les reconoce la plena posibilidad de obrar de conformidad con los mandatos de su conciencia y les asegura que ello tendrá lugar sin intromisiones inadmisibles por parte del Estado o de particulares.” (Destacado no corresponde al original. Sentencia de Tutela n.° 388/09 del 28 de mayo de 2009).

Desde nuestra perspectiva, notamos que a la fecha de dictada esta resolución no existe un reconocimiento expreso a la objeción de conciencia en nuestro ordenamiento jurídico, como sí ocurre en otras latitudes (por ejemplo, el ordinal 30 de la Constitución Española para el servicio militar). Ante esta situación, en Costa Rica, su aplicación se deriva de normas más genéricas, relacionadas con la libertad de conciencia, pensamiento o culto, como fue analizado en esta sede constitucional mediante sentencia n.° 2012-10456 de las 16:27 horas del 1 de agosto de 2012 (citada en el voto de mayoría).

2.- Aplicación de la objeción de conciencia. Sobre la delimitación del orden jurídico y el religioso. En nuestro criterio, el fallo de mayoría cae irremisiblemente en el error de omitir la diferenciación entre el orden jurídico y el religioso, problema que ya se vislumbra en el escrito de interposición, sin que en ello reparara la Mayoría. El accionante manifestó que se violan los derechos del “...juez o jueza católica, evangélica o musulmana, o judía (o técnicos -as- judiciales), para quien el matrimonio entre personas del mismo sexo va en contra de sus convicciones más profundas…”. Haciendo eco de este reclamo, la Sala determinó que cada uno de tales jueces “...tiene una visión diferente sobre una institución social y religiosa a la que pueden tener los contrayentes y, por consiguiente, el obligarlo a celebrar el acto de matrimonio lacera sus convicciones religiosas más profundas, y deja sin contenido esencial el derecho fundamental del juzgador.” (El subrayado es agregado).

De previo a conocer el caso concreto conviene revisar algunas situaciones de objeción de conciencia basadas en la religión, para evidenciar pautas generales a partir de un ejercicio de inducción.

El primer ejemplo es el servicio militar. Algunos países disponen el servicio militar o el reclutamiento obligatorio, e imponen sanciones a quienes se nieguen a enlistarse en el ejército cuando sea solicitado. Ocurre que el sujeto obligado profesa alguna religión pacifista que se opone a la violencia o al homicidio, situaciones comunes en la guerra u otra clase de acciones militares. Lo que ocurre entonces es que el servicio militar plantea un conflicto para el individuo: por un lado, en caso de cumplir con él y enlistarse, entonces desobedecerá las normas religiosas; por otro, si actúa según sus creencias religiosas, entonces sufrirá la sanción estatal por no prestar el servicio militar.

Un segundo ejemplo es el aborto. En países que lo permiten, un médico del sistema de seguridad social estatal podría verse obligado a aplicarlo en el ejercicio de sus funciones públicas. No obstante, esta obligación jurídica podría contraponerse a su creencia religiosa, con base en la cual la vida debe resguardarse desde la concepción. Nuevamente, el sujeto se encuentra en una disyuntiva: o cumple su deber jurídico e incurre en condena religiosa, o se expone a una sanción jurídica con motivo de la observación a los mandatos religiosos. Un planteamiento idéntico se daría en casos de eutanasia o eugenesia, o bien cuando la razón de la objeción más bien proviene de la ética.

Según se extrae de los ejemplos anteriores, en la objeción de conciencia por motivos religiosos subyace un conflicto entre dos órdenes normativos: el jurídico y el religioso. Dado que el individuo es sometido a un dilema que lo pone a escoger entre sus creencias religiosas y su obligación jurídica, la objeción de conciencia funciona como cláusula de escape, en tanto libera a la persona de su deber jurídico. Igual aplica lo expuesto, cuando se está ante una controversia en el ámbito ético.

Este tipo de conflicto se percibe en la justificación esgrimida por el TEDH para emitir la resolución Bayatyan vs. Armenia de 2011, que constituyó un cambio de paradigma en su jurisprudencia, como el propio Tribunal indicó, al incluir la objeción de conciencia en el ámbito de protección del artículo 9 de la Convención Europea de Derecho Humanos. El Tribunal señala: “110. In this respect, the Court notes that Article 9 does not explicitly refer to a right to conscientious objection. However, it considers that opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person 's conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9...”[1] (El subrayado es agregado) Es decir, si la oposición al servicio militar se basa en un serio e insuperable conflicto entre la obligación de servir al ejército y las genuinas y profundas creencias de una persona, incluyendo su concepción acerca del bien “vida”, entonces su protección podría encontrar acogida en el ordinal 9.

En el sub lite, debido a la equivocación en el punto de partida supra citado, de manera generalizada se englobó el concepto de matrimonio, incluyendo en él tanto al civil como al religioso. Aclaramos que el recurrente de modo expreso manifestó que “No está en discusión en este amparo el derecho humano de toda persona de LIBREMENTE escoger la preferencia sexual con que mejor se sienta. Elegir y decidir sobre su sexualidad. Ese derecho merece todo mi respeto y se lo doy." (La mayúscula es del original) Es decir, el problema radica en la celebración o reconocimiento del matrimonio civil entre personas del mismo sexo y no en su orientación sexual. El accionante incluso puntualiza el objeto de su desavenencia: “Es un hecho notorio que la población judicial concretamente jueces y juezas, técnicos y técnicas judiciales, en una amplia mayoría profesan la fe cristiana y para muchos de ellos y ellas participar en el trámite de matrimonios entre personas del mismo sexo sería algo contra ABIERTAMENTE A LA FE QUE PROFESAN.” (La mayúscula es del original).

A diferencia de los ejemplos expuestos, la pretendida objeción de conciencia no muestra en el sub iudice una colisión entre dos obligaciones impuestas por los distintos órdenes normativos, sino que en realidad constituye una oposición a que el Estado tenga su propio orden normativo para regular las cuestiones civiles. El sujeto -en el sub lite, el juez- no se encuentra ante una disyuntiva como las expuestas supra, ya que estamos ante dos esferas normativas diferentes, cada una de las cuales por aparte le asigna consecuencias disímiles a un mismo evento: una pareja homosexual se une en matrimonio. Frente a ese supuesto, la respuesta normativa atinente a la esfera religiosa del amparado en este asunto es desconocer tal pretensión y negar el matrimonio, pues no reúne los requisitos para un matrimonio religioso (que sea entre hombre y mujer). Frente a ese mismo supuesto de hecho, el Estado puede reconocer tal matrimonio en caso de que cumpla las demás exigencias normativas, toda vez que el Estado tiene la potestad de determinar los requisitos normativos para el matrimonio civil. En otras palabras, cuando una pareja homosexual pretende su unión, la norma religiosa le prescribiría a la autoridad religiosa encargada “No celebre un matrimonio religioso, pues no cumple los requisitos”; mientras que la ley civil le indicaría a la autoridad civil “Celebre el matrimonio civil porque cumple los requisitos legales ”. Ambas respuestas conviven sin colisión entre ellas: un matrimonio civil, sin reconocimiento religioso.

En palabras más sencillas, la única forma de aceptar este tipo de objeción de conciencia sería que el credo religioso de la persona le prohibiera al Estado regular el matrimonio civil (“Mi religión prohíbe que el Estado regule el matrimonio entre personas del mismo sexo”), lo que tendría que ser rechazado debido al imperio de ley en un régimen civilista, como en la actualidad es propio del Estado Democrático de Derecho.

Es evidente que se trata de dos institutos del todo diferentes. Por este motivo, el matrimonio religioso (sin reconocimiento civil) no puede exigir un tratamiento igual al matrimonio civil. El matrimonio religioso no puede acudir a tribunales a discutir gananciales, derechos sucesorios, constituir patrimonio familiar, derechos alimentarios, etc. Tales efectos pueden surgir únicamente si el Estado decide concederlos, pero no por decisión de la autoridad religiosa, sino porque el Estado así lo regula. De otro lado, un matrimonio civil no podría exigir alguna clase de reconocimiento o efecto religioso: no podría ser considerado un sacramento, imponer los votos religiosos, reclamar una posición ante los ojos de determinada iglesia, etc.

Esta confusión entre el matrimonio civil y el religioso se pone de manifiesto, porque -como ha ocurrido en muchos países- la oposición religiosa cede cuando el instituto civil tiene una denominación diferente a “matrimonio”, verbigracia llamándosele “unión civil”, “sociedad civil”, etc.

El desconocimiento de estos dos órdenes normativos, de estos dos institutos diferentes, se nota en la sentencia de mayoría cuando, de manera completamente inconsecuente, indica que la objeción de conciencia no podría darse en el caso de un divorcio: “Ha sostenido la doctrina que no es posible la objeción de conciencia de un Juez penal que alegase que su conciencia no le permite establecer castigos. Lo mismo puede afirmarse en el caso de un Juez de familia que objete el divorcio. En todos estos supuestos -además hay que tener presente que él cuando optó por el cargo asumió voluntariamente todas sus funciones-, consecuentemente, estaríamos quebrantando una regla elemental de buena fe si luego pretendiese ejercer el derecho a la objeción de conciencia.” (El subrayado es agregado) ¿Acaso todas las religiones aceptan el divorcio? La respuesta es claramente negativa o bien lo hacen de manera mucho más restrictiva que en lo civil. Entonces, ¿por qué se impide ejercer la objeción de conciencia para el divorcio? Sencillamente, porque el divorcio es civil, no es uno religioso. El divorcio civil carece de efectos en la esfera religiosa, de la misma manera que el matrimonio civil tampoco los tiene.

Podría argüirse, como lo hace la mayoría, que la persona nombrada en el cargo de juez asumió de manera voluntaria que debía ejecutar divorcios, figura que ya estaba reconocida en nuestro ordenamiento jurídico. Sin embargo, ¿qué sucederá cuando surja una nueva causal de divorcio, como la incompatibilidad de caracteres (expediente legislativo n.° 20.406)? En la tesis de mayoría, los jueces podrán alegar que tal causal no existía al momento de asumir el cargo y negarse a aplicarla argumentando una objeción de conciencia. En nuestra tesis, el divorcio solo afecta al matrimonio civil, por lo que carece de consecuencias en la esfera religiosa (en caso de existir concomitantemente un matrimonio religioso, esa unión permanecería incólume).

Otro caso es la reciente modificación al numeral 35 del Código de Familia. Originalmente, esa norma regulaba que el “…marido es el principal obligado a sufragar los gastos que demanda la familia...”. En la actualidad, esa obligación recae en ambos cónyuges. ¿Podría un juez negarse a aplicar esa norma porque su religión (o su creencia ética) se basa en el patriarcado y el deber del hombre de ser el proveedor del hogar? Al respecto, debe negarse tal posibilidad, pues se trata de una consecuencia del matrimonio civil.

Advertimos que en esta exposición se hace referencia a la objeción de conciencia con marcado énfasis en el aspecto religioso. Esto responde al agravio formulado por el reclamante. Empero, está claro que tal elucidación procede de idéntico modo, cuando la objeción de conciencia se vincula a una razón ética.

Por último, cabe precisar que en el juicio de concordancia práctica en que está de por medio la objeción de conciencia resulta fundamental tomar en consideración el tipo de bien constitucional contrapuesto. En tal sentido, evidentemente, cuando está involucrada “la vida”, pesa con particular fuerza una cualidad relevante de este bien constitucional: es una condición sine qua non para el disfrute de los derechos fundamentales por parte del ser humano, individualmente considerado. Tal característica no se observa en el sub iudice, donde la ponderación solo concierne a la libertad religiosa en relación con otros derechos, como la igualdad y el acceso a la justicia.

3.- Con respecto a la discriminación. En torno a este punto, la sentencia señaló:

“La mayoría del Tribunal considera que el hecho de que un Juez que plantee una objeción de conciencia en un tema que. desde el punto de vista religioso, resulta de la mayor envergadura, no significa que esté discriminando a una persona determinada, se trata de una justificación objetiva y razonable. Lo que sucede es que tiene una visión diferente sobre una institución social y religiosa a la que pueden tener los contrayentes y, por consiguiente, el obligarlo a celebrar el acto de matrimonio lacera sus convicciones religiosas más profundas, y deja sin contenido esencial el derecho fundamental del juzgador. En segundo término, es un hecho público y notorio que un país donde hay varios jueces notariales, bien puede la Administración de Justicia aceptar la objeción de conciencia, la que, como se expresó supra, debe de cumplir todos los requisitos para que se pueda ejercer este derecho fundamental, y encargar a los jueces no objetantes la realización de los matrimonios entre las personas del mismo sexo e, incluso, en un Estado garante de todos los derechos fundamentales de las personas, establecer un sistema que permita tener siempre a disposición jueces que sí están dispuestos a brindar el servicio a las personas del mismos sexo en condiciones de igualdad que a otros usuarios del servicio. Vista así las cosas, no hay tal acto de discriminación, toda vez que siempre habrá jueces y juezas que realizarán el acto de matrimonio, con lo cual se satisface los derechos de las personas contrayentes.” Según la mayoría, no habría discriminación porque el matrimonio civil entre personas del mismo sexo podría ser efectuado por otros jueces (no objetantes) o bien, a los efectos de tal matrimonio, el Estado podría diseñar un “sistema” para tener a disposición jueces que brindasen ese servicio.

El 1o de diciembre de 1955, Rosa Parks se negó a sentarse en la parte del bus que estaba reservada para “personas de color”. No se le estaba negando el servicio de transporte; incluso, tenía una “sección especial” para ella. Empero, hoy en día resultaría insostenible afirmar que aquel trato diferenciado no constituía un odioso acto discriminatorio.

En la solución de la mayoría, las parejas homosexuales tendrán un “sistema especial” para que se conozca su matrimonio. Así, según razona la mayoría, no se les estaría negando el servicio de los tribunales de justicia; más bien, tendrían un sistema particularmente dirigido a ellas ¿No significa esto un acto discriminatorio violatorio del orden constitucional y promovido, ni más ni menos, por el propio Tribunal llamado a combatir el trato desigual?

El problema en el razonamiento de la mayoría radica en que desconoce que la objeción de conciencia no puede oponerse, cuando de ella deriva una violación grave a la dignidad humana, esto es, a su núcleo esencial o Kernbereich; en este caso, a través de una discriminación contraria al orden constitucional y convencional.

La situación no mejora si se efectúa una supuesta concordancia práctica, como pretende la mayoría. No dejaría de ser discriminación si el conductor del bus se hubiese negado a transportar a Rosa Parks aludiendo a sus más firmes creencias; tampoco si el Estado hubiese instaurado un sistema de buses particularmente dirigido a los afrodescendientes a fin de “tutelar” las creencias de los conductores “objetores”.

En el caso hipotético de una religión que negara -con fundamento en su más arraigado credo- la unión entre personas de diferentes etnias (el mal llamado matrimonio interracial), de otras religiones, etc. ¿debería aceptarse la objeción de conciencia del juez? Absolutamente, no. Tal objeción debe rechazarse de manera contundente, pues se justifica a través de una lesión a la dignidad humana, con independencia del momento en que el funcionario fuese nombrado en el puesto.

Este límite a la objeción de conciencia también tiene fundamento normativo y jurisprudencial.

En primer plano tenemos que la Constitución Política garantiza el libre ejercicio de otros cultos (diferentes a la religión católica), siempre y cuando “...no se opongan a la moral universal ni a las buenas costumbres.” La Convención Americana sobre Derechos Humanos sigue esta misma línea al salvaguardar la libertad de conciencia y de religión con el siguiente límite: “3. La libertad de manifestar la propia religión y las propias creencias está sujeta únicamente a las limitaciones prescritas por la ley y que sean necesarias para proteger la seguridad, el orden, la salud o la moral públicos o los derechos o libertades de los demás.” (Ordinal 12).

La situación no es diferente en el ámbito europeo. El artículo 9, empleado por el TEDH para reconocer la objeción de conciencia, estatuye: “2. La libertad de manifestar su religión o sus convicciones no puede ser objeto de más restricciones que las que, previstas por la ley, constituyan medidas necesarias, en una sociedad democrática, para la seguridad pública, la protección del orden, de la salud o de la moral públicas, o la protección de los derechos o las libertades de los demás." En el sub examine, si se llegara a asumir que existe una objeción de conciencia basada en un conflicto verdadero (lo que rechazamos, según se explicó en el punto anterior), entonces tal objeción sería limitada por la moral pública y los derechos de los demás.

Del lado de la jurisprudencia, este Tribunal ha afirmado numerosas veces que no se puede discriminar a una persona con base en su orientación sexual. En casos, verbigracia, donde se niega el servicio o la entrada a un local público (bar, restaurante, etc.) por ese motivo, la Sala ha sido contundente en rechazar tal posibilidad:

“VI.- Este Tribunal, en la sentencia No. 2014-012703 de las 11:51 hrs. de 1o de agosto de dos mil 2014, estimó, en lo que interesa, lo siguiente:

"...IV- SOBRE LA DISCRIMINACIÓN POR ORIENTACIÓN SEXUAL. Tradicionalmente, las personas que conforman la población LGTB (siglas que designan, colectivamente, a lesbianas, gais, bisexuales y transexuales) han sido sujetos de acciones discriminatorias, sea, por acción u omisión por parte de autoridades públicas como por parte de terceros. Lo anterior, pese a que conforme nuestro ordenamiento jurídico, toda diferencia de trato fundada en la orientación sexual de una persona resulta contraria a la dignidad humana y al principio de igualdad. La orientación sexual es un aspecto esencial de la identidad de la persona, cuya protección se ha ido reconociendo a partir de la interpretación de las disposiciones de diferentes instrumentos internacionales que conforman el bloque de constitucionalidad, las cuales prohíben la discriminación basada en el sexo. A manera de ejemplo, el Pacto Internacional de Derechos Civiles y Políticos en su artículo 26 establece que “todas las personas son iguales ante la ley y tienen derecho sin discriminación a igual protección de la ley. A este respecto, la ley prohibirá toda discriminación y garantizará a todas las personas protección igual y efectiva contra cualquier discriminación por motivos de raza, color, sexo, idioma, religión opiniones políticas o de cualquier índole, origen nacional o social, posición económica, nacimiento o cualquier otra condición social.”; de igual forma, la Convención Americana sobre Derechos Humanos. Pacto de San José de Costa Rica, establece que 'todas las personas son iguales ante la ley. En consecuencia, tienen derecho, sin discriminación, a igual protección de la ley” (artículo 24). No obstante, en el sistema universal de protección de las Naciones Unidades, existe una declaratoria específica conocida como los Principios de Yogyakarta, cuya denominación completa es Los Principios de Yogyakarta sobre la Aplicación del Derecho Internacional de Derechos Humanos a las Cuestiones de Orientación Sexual e Identidad de Género, presentado en el 2007 ante el Consejo de Derechos Humanos de la ONU en Ginebra. El documento contiene una serie de principios que pretenden marcar estándares básicos para garantizar la protección de los derechos fundamentales de las personas que conforman la población LGBT. En su principio 2 se establecen los derechos a la igualdad y a la no discriminación, según los cuales "todas las personas tienen derecho al disfrute de todos los derechos humanos, sin discriminación por motivos de orientación sexual o identidad de género. La ley prohibirá toda discriminación y garantizará a todas las personas protección igual y efectiva contra cualquier discriminación.”. Una proclama como esta visibiliza la necesidad de tutelar la libre orientación sexual y la identidad de género dadas las violaciones de derechos humanos, marginación, estigmatización y prejuicios que sufre esta población. Este Tribunal, en su función protectora de derechos fundamentales, ha tutelado la orientación sexual de las personas como parte del respeto a la dignidad humana y al principio de igualdad. Así, en la sentencia No. 2007-018660 de las 11:17 horas de 21 de diciembre de 2007 y en otras posteriores, este Tribunal ha reconocido "(...) como principio jurídico fundamental contenido en la Constitución Política de Costa Rica el respeto a la dignidad de todo ser humano y, en consecuencia, la prohibición absoluta de realizar cualquier tipo de discriminación contraria a esa dignidad. Discriminar, en términos generales, es diferenciar en perjuicio de los derechos y la dignidad de un ser humano o grupo de ellos; en este caso de los homosexuales. A partir de lo anterior, puede válidamente afirmarse que la discriminación por motivos de orientación sexual es contrario al concepto de dignidad debidamente consagrado en la Constitución Política y en los Tratados Internacionales en materia de Derechos Humanos suscritos por nuestro país''. De igual forma, en la sentencia No. 2011-13800 de las 15:00 horas de 12 de octubre de 2011, en la cual se acogió la acción de inconstitucionalidad planteada en contra del artículo 66 del Reglamento Técnico Penitenciario, Decreto Ejecutivo No. 33876-J que limitaba la visita íntima de las personas privadas de libertad al contacto con una persona de sexo distinto al suyo, esta Sala sostuvo: "(...) la dignidad humana no puede violentarse a través de normas legales que no respeten el derecho inalienable que tiene cada persona a la diversidad, tal como sucede con la norma que se impugna en la presente acción, la cual establece una prohibición contraria a la dignidad humana, desprovista de una justificación objetiva, pues se basa en criterios de orientación sexual, discriminando ilegítimamente a quienes tienen preferencias distintas de las de la mayoría, cuyos derechos o intereses en nada se ven afectados por la libre expresión de la libertad de aquellos. Tomando en cuenta que la norma tiene como fin el permitir el contacto de con el mundo exterior con el objeto de consentir la libertad sexual de los internos, la diferencia de trato no se encuentra justificada, toda vez que los privados de libertad con una orientación sexual hacia personas del mismo sexo, se encuentran en la misma situación fáctica de los privados de libertad con una orientación heterosexual, situación que resulta contraria no solamente al derecho de igualdad, sino también al derecho que tienen los privados de libertad de ejercer su derecho a comunicase con el mundo exterior por medio de la visita íntima ” (el énfasis es agregado). Aun cuando en este contexto jurídico, la realidad de la población LGTB se ha hecho más visible, todavía subsisten resistencias sociales y culturales que se proyectan más allá de los ámbitos y espacios privados y se plasman en actuaciones administrativas e incluso, en normas jurídicas que restringen los derechos de estas personas. Por lo anterior, la diversidad sexual y sus manifestaciones concretas en la vida social exigen un reconocimiento jurídico que no puede eludirse en un Estado que tiene como pilar fundamental el respeto a la dignidad humana (...)".

VII.- A través de su línea jurisprudencial esta Sala ha reconocido como principio jurídico fundamental contenido en la Constitución Política de Costa Rica el respeto a la dignidad de todo ser humano y, en consecuencia, la prohibición absoluta de realizar cualquier tipo de discriminación contraria a esa dignidad. Discriminar, en términos generales, es diferenciar en perjuicio de los derechos y la dignidad de un ser humano o grupo de ellos; en este caso de los homosexuales. A partir de lo anterior, puede válidamente afirmarse que la discriminación por motivos de orientación sexual es contraria al concepto de dignidad debidamente consagrado en la Constitución Política y en los Tratados Internacionales en materia de Derechos Humanos suscritos por nuestro país. A manera de ejemplo, el Pacto Internacional de Derechos Civiles y Políticos prohíbe en su artículo 26 la discriminación por motivos de "raza, color, sexo, idioma, religión, opiniones políticas o de cualquier índole, origen nacional o social, posición económica, nacimiento o cualquier otra condición social"; de lo que también deriva que no son permitidos los actos que atenten contra el derecho a la igualdad y dignidad humana de las personas por su orientación sexual, pues tienen derecho a acceder a cualquier establecimiento comercial y a recibir un trato igual, sin discriminación en razón de su preferencia sexual (ver sentencia No. 2007-018660 de las 11:17 hrs. de 21 de diciembre de 2007).'" (Sentencia n.° 2018-10289 de las 14:36 horas del 26 de junio de 2018. El subrayado es agregado).

En esta sentencia, la Sala en forma explícita reconoció que la discriminación por motivo de la orientación sexual constituía una lesión al ordenamiento jurídico y un acto contrario a la dignidad humana.

Imagínense el caso de un restaurante familiar, cuyo dueño se oponga al matrimonio civil entre personas homosexuales alegando creencias religiosas. En la solución de la mayoría sería válido que el matrimonio fuera a otro restaurante que brinde igual servicio o que, en el propio negocio involucrado se instalara una “sección especial” para tales matrimonios, donde fueran atendidos por personas diferentes al propietario, pues, como resulta de la argumentación de la mayoría, de esta manera se “tutelan” los “derechos” del dueño del establecimiento y los del matrimonio homosexual. Esta aberrante situación demuestra que en este caso subyace una discriminación y una lesión a la dignidad humana, pues se impone la objeción de conciencia a contrapelo no solo de los derechos y libertades de terceros, sino de la moral pública, dado que tal clase de trato discriminatorio siempre será incompatible con aquella.

No es ocioso mencionar que la orientación sexual es una categoría resguardada por el Pacto de San José, tal como ha consignado la Corte Interamericana de Derechos Humanos en varias resoluciones (Atala Riffo y niñas vs. Chile, Duque vs. Colombia y la opinión consultiva OC-24/17).

Recordemos que muchos grupos poblacionales han visto reconocidos sus derechos merced a las luchas libradas por las generaciones que precedieron, y que ese reconocimiento no ha estado libre de opositores. Las mujeres, las personas afrodescendientes o indígenas, las personas nacidas fuera del matrimonio, con discapacidad, adultas mayores y homosexuales, incluso quienes profesan determinada religión minoritaria, por mencionar algunos ejemplos, son sectores de la población que histórica- y culturalmente han sido marginados en diverso grado. El matrimonio entre personas del mismo sexo es un paso a favor de ese tipo de minoría, que merece y debe ser protegida por este Tribunal.

Por los motivos expuestos, salvamos el voto y declaramos sin lugar el recurso.

Paul Rueda L. Marta Esquivel R.” Ahora, atinente al inciso cuestionado en el sub lite, nuevamente vierto consideraciones diferentes a la mayoría. Primeramente, sostengo que el razonamiento del Tribunal es desacertado. En resumen, el voto de mayoría estima que una declaración jurada es un medio adecuado para ejercer la objeción de conciencia, ya que, en caso de que el sujeto falte a la verdad, podría ser acreedor de las sanciones (incluso penales) establecidas en el ordenamiento jurídico. En mi criterio, existe un error en tal planteamiento en cuanto al contenido de la declaración jurada. En ella, el declarante puede dar fe sobre hechos, que podrán ser ciertos o falsos. Empero, él no puede dar fe sobre una interpretación jurídica o efectos normativos. Es decir, el interesado en ejercer la objeción de conciencia puede manifestar que sus convicciones más profundas versan sobre un tema u otro, pero no podría imponerle a la Administración, como objeto de la declaración jurada, la consecuencia jurídica de esa manifestación; en el caso, sería interpretar que su convicción choca con una obligación jurídica y que, por lo tanto, la última no le es oponible. A manera de ejemplo, un contribuyente puede declarar bajo juramento que sus ganancias anuales no superan determinado monto; sin embargo, no puede declarar bajo juramento sobre la consecuencia jurídica de ese hecho (verbigracia, si la Administración lo debe incluir en uno u otro régimen tributario). En el sub iudice, estimo que la situación es análoga. El declarante podrá declarar bajo juramento sobre sus convicciones y, con base en ello, solicitar que la Administración le exima de una obligación jurídica. No obstante, la interpretación y la asignación de la consecuencia jurídica -aceptar o no la objeción de conciencia- será una decisión que recaerá solo en esta última. Justamente, en el sub examine estimo que el inciso cuestionado tiene tal función, es decir, permite que el administrado declare sobre sus creencias o convicciones personales para que sea la Administración quien decida sobre la consecuencia jurídica que proceda. Es decir, como se colige con facilidad de la literalidad del texto de la norma consultada, esta disposición lo que faculta es -simple y llanamente- a que los servidores públicos puedan informar a la Administración, por medio de una declaración jurada, sobre su derecho a la objeción de conciencia a los efectos de los programas de formación y capacitación obligatorios; empero, el derecho a informar no acarrea correlativamente la obligación automática de la Administración de acceder a la pretensión del petente, pues, para ello, aquella debe realizar un ejercicio de armonización y optimización entre los principios, bienes y derechos en juego, de manera que en el asunto concreto se potencie la sustancia protectora de cada uno de ellos, pero sin llegar a vaciar de contenido el núcleo esencial (Kernbereich) de ninguno, como ocurriría si se propiciare un abierto trato discriminatorio o contrario a la dignidad humana, como explico en mi voto salvado a la sentencia n.º 2020-001619, en cuyo caso siempre quedaría abierta la puerta a un eventual control de constitucionalidad, por ejemplo, a través de la vía del amparo.

Por último, reitero que salvé el voto con respecto a la admisibilidad de la consulta presentada en el expediente n.° 21-012118-0007-CO. En ese tanto, omito pronunciamiento en cuanto a los reproches ahí planteados.

Voto salvado de la Magistrada Hernández López en cuanto al artículo 23 inciso g) del proyecto consultado.

Según consta en la parte dispositiva de la sentencia (ítem 54), la decisión del punto referente al artículo 23 inciso g) del proyecto consultado se da por mayoría, no por unanimidad, ya que en este punto, tal y como allí se indica, he considerado que la norma es contraria a la constitución y sólo sería conforme a ésta si se da una interpretación que incluya las limitaciones que se indican, es decir, “siempre y cuando se interprete que la declaración jurada a que se refiere la norma debe estar sujeta a un proceso de verificación que garantice que el funcionario público no se está sustrayendo de obligaciones propias de su relación de sujeción especial, que dejen sin efecto o sin contenido, las garantías límites y limitaciones constitucionales y legales de la objeción de conciencia, entre éstas, la seguridad, el orden, la salud y el respeto a los derechos fundamentales de las personas, en particular de la dignidad humana y no discriminación”. Debo aclarar, asimismo, que en este tema de la objeción de conciencia se presentaron dos consultas legislativas facultativas, primero la del expediente 21-011713 y luego el expediente 21-012118. Esta última consulta, es rechazada por razones de forma por dos compañeros Magistrados (Castillo Víquez y Rueda Leal), pero no así la primera, en la cual sí participan por el fondo con el criterio de la mayoría que señala que no encuentran vicios de constitucionalidad en la norma consultada, criterio del que difiero según dejé constando expresamente. Aclarado lo anterior, paso a explicar el fundamento de mi razonamiento que reconoce la existencia de un derecho fundamental a la objeción de conciencia con capacidad de ser ejercido en materia de capacitaciones de funcionarios públicos (que es a lo que se refiere la norma) pero con límites expresos, que deben garantizar, al menos: la seguridad ( en el caso costarricense no hay ejército como institución permanente por lo que no me referiré a la excepción de objeción permitida en este sentido), el orden, la salud y el respeto a los derechos fundamentales de las personas, en particular de la dignidad humana así como la no discriminación, límites que deben ser verificados en cada caso concreto y para ello no puede quedar abierto en la ley la posibilidad de objetar una capacitación con la sola presentación de una declaración jurada, sin más trámite. En ese sentido, estimo que la forma en que quedó regulado este tema en el proyecto consultado (artículo 23 inciso g)) no se ajusta al derecho de la Constitución. Al ser la objeción de conciencia un derecho fundamental, no procedía declarar la inconstitucionalidad de la norma consultada, ya que esta norma en su primera parte lo que hace es reconocer la existencia de ese derecho fundamental como tal, de allí que la opción que me parecía más viable es la interpretación conforme porque como de seguido se explica, dejar la norma abierta como tal -en su segunda parte-, sin la regulación o verificación de las condiciones para su ejercicio, sí resulta lesivo de la Constitución. Paso a explicar mi razonamiento.

Relación entre democracia y derechos humanos.

Costa Rica es una democracia constitucional, en consecuencia, uno de sus fines primordiales es garantizar la protección y promoción de una serie de derechos y libertades fundamentales como parte de su modelo ideológico. Por ello, es ampliamente reconocido que entre democracia y derechos humanos existe una relación simbiótica, tanto así que la democracia no puede definirse sin derechos humanos y éstos sólo pueden protegerse debidamente dentro del marco de un Estado democrático de derecho. Es incuestionable que ambos dependen el uno del otro y que no existe Estado constitucional sin derechos fundamentales.

Los derechos humanos le dan titularidad legal y moral a cada uno de sus habitantes para reclamar condiciones inherentes a su condición de seres humanos, universalmente reconocidos como esenciales para el ejercicio de las libertades y de una vida digna. En ese sentido, uno de los objetivos del Estado democrático es procurar el desarrollo integral de los individuos que lo componen para lo cual es fundamental el respeto y garantía de una serie de bienes jurídicos sin los cuales no se pueden garantizar la igualdad y dignidad humanas.

Los derechos humanos abarcan una gama de derechos (individuales o prestacionales, según la clasificación que se utilice) y tienen la característica de que son interdependientes, es decir se relacionan entre sí y son a su vez, indivisibles porque el reconocimiento y desarrollo de cada uno de los derechos solo puede garantizarse por el reconocimiento de todos ellos.

En ese sentido, la tutela de los derechos fundamentales es la razón de ser del Estado democrático y su legitimidad está ligada a su nivel de cumplimiento o resguardo. Los derechos y las libertades fundamentales, a su vez, tienen una función legitimadora de la democracia, sin su efectivo cumplimiento la democracia no es tal, lo es meramente formal (“democracia light”) pero no en sus elementos sustanciales. Por lo anterior, en la historia del constitucionalismo ha quedado plasmado el consenso de que el Estado solo justifica su existencia y se legitima en la medida en que los derechos humanos se encuentren debidamente resguardados.

La doble dimensión de los derechos humanos y las obligaciones del Estado.

Los derechos humanos, en el Estado social de derecho, imponen obligaciones concretas, tienen una dimensión dual (subjetiva y objetiva). Por un lado, imponen deberes de protección (de no violar los derechos) y por otro, imponen mandatos de actuación, obligaciones de hacer que se convierten en mandatos del Estado que implican una obligación de una determinada puesta en marcha de la actividad estatal para la consecución de los derechos fundamentales.

En esta doble dimensión los derechos humanos se convierten en valores supremos que rigen para todo el ordenamiento jurídico y orientan toda la actividad estatal. Tiene efectos sobre los poderes públicos, esto es, se manifiesta en la conformación material de las normas jurídicas por parte del Legislador, en las actuaciones del Ejecutivo en el ámbito de sus funciones y en la aplicación e interpretación del juez de las normas jurídicas (esencial por ejemplo en su rol de interpretación y ponderación de derechos).

Así por ejemplo, el Tribunal Constitucional español ha entendido que de la obligación de sometimiento de todos los poderes públicos a la Constitución (lex superior) , no solamente se deduce la obligación negativa del Estado de no lesionar la esfera individual o institucional protegida por los derechos fundamentales, sino también la obligación positiva de contribuir con la efectividad de tales derechos y de los valores que representan, aun cuando no exista una pretensión subjetiva por parte del ciudadano. En ese sentido ha señalado:

“Como consecuencia de este doble carácter de los derechos fundamentales, pende sobre los poderes públicos una obligación también dual: en su tradicional dimensión subjetiva, les impone la obligación negativa de no lesionar la esfera de libertad por ellos acotada; y en su vertiente jurídico-objetiva, reclaman genéricamente de ellos que, en el ámbito de sus respectivas funciones, coadyuven a fin de que la implantación y disfrute de los derechos fundamentales sean reales y afectivos, sea cual fuere el sector del ordenamiento en el que los mismos resulten concernidos.( ver Sentencia 53/1985) Por su parte, el Tribunal Constitucional alemán reconoce que el carácter objetivo de los derechos fundamentales parte de entender que estos derechos están destinados a garantizar la esfera de libertad del particular frente a intervenciones del Estado, pero además, tienen un cometido axiológico de validez universal, porque irradian toda dirección y todos los ámbitos del derecho. Son tanto derechos de defensa, acciones negativas del Estado frente al ciudadano, que le dan al titular del derecho, según ha señalado R. Alexy, tres tipos de potestades: a) El derecho a que el Estado no impida u obstaculice determinadas acciones del titular; b) El derecho a que el Estado no afecte las situaciones o propiedades establecidas del titular; y c) El derecho a que el Estado no elimine las posiciones jurídicas fijadas del titular del derecho. También los derechos fundamentales son normas de principios, que, junto a su concepción tradicional como derechos de defensa, forman un sistema de valores que permea todos los ámbitos del ordenamiento jurídico (ver sentencia del Tribunal Constitucional Alemán del BVerfG 6, 55 (72), y en particular el fallo Lüth del 15 de enero de 1958, sentencia BVerfG 7, 98 (204).

En otras palabras, los derechos fundamentales en la actualidad no se limitan a actuar como derechos subjetivos que tiene el titular del derecho oponibles respecto al sujeto pasivo, frente al poder público o un particular, sino que también operan como normas objetivas de principio que rigen como principios rectores supremos que vinculan a todos los poderes del Estado y que constituyen verdaderos mandatos de actuación y deberes de protección para el Estado. Como veremos luego, ello incide directamente en la obligación del estado de capacitar y educar en derechos humanos, como parte de sus obligaciones objetivas, en particular al funcionariado público.

La objeción de conciencia como derecho fundamental.

Dentro de la gama de derechos fundamentales, reconocidos a nivel constitucional o convencional, no existe duda de la existencia de la objeción de conciencia como como derecho humano, tema sobre el que existe un amplio consenso, aunque ese consenso se desvanece en cuanto a su naturaleza o alcances en la doctrina y jurisprudencia. La objeción de conciencia hoy en día es reconocida en los principales pactos y declaraciones de derechos humanos en algunos casos como un derecho contenido dentro de la libertad de pensamiento, conciencia o religión. A manera de ejemplo, la Declaración Universal de los Derechos Humanos, en su artículo 18 señala: “Toda persona tiene derecho a la libertad de pensamiento, de conciencia y de religión; este derecho incluye la libertad de cambiar de religión o de creencia, así como la libertad de manifestar su religión o su creencia, individual y colectivamente, tanto en público como en privado, por la enseñanza, la práctica, el culto y la observancia”. Con términos muy semejantes, esta disposición básica se reproduce en el Pacto Internacional de Derechos Civiles y Políticos, en su artículo 18; en el Convenio Europeo para la Protección de los Derechos Humanos y las Libertades Fundamentales, artículo 9; y la Convención Americana sobre Derechos Humanos, artículos, 6, apartado 3, letra b) y 12. La Carta Africana de Derechos Humanos y de los Pueblos también reconoce genéricamente la libertad de conciencia y religión en el artículo 8.

Desde luego que como todo derecho fundamental, no es ilimitado, y debe observar como lo ha señalado el TC español (SSTC 11/81, 2/82, 110/84 ó 120/90, entre otras), límites en relación a los derechos fundamentales que establece la Constitución por sí misma y que obligan a la regulación de su ejercicio.

En cuanto a su naturaleza (por ejemplo si es un derecho autónomo o no) y su contenido o alcances no existe consenso ni en la doctrina ni la jurisprudencia, ya que diferentes sistemas jurídicos le dan tratamiento disímil, aunque sí se ha aceptado mayoritariamente en casos de servicio militar obligatorio o de personal de salud en diversos temas.

La objeción de conciencia como se sabe, implica el derecho a no ser obligado a actuar —conforme a un deber jurídico— contra las convicciones más arraigadas del fuero interior o la propia conciencia, de tal forma que puede identificarse como un corolario de la libertad de conciencia o de religión, por lo que las disposiciones convencionales supra citadas son suficientes para establecer su reconocimiento normativo a nivel internacional. En nuestra Constitución Política, la Sala Constitucional lo ha derivado de la libertad religiosa y de conciencia, sobre la cual ha emitido jurisprudencia sobre sus alcances y limitaciones en algunos casos concretos. A manera de ejemplo pueden verse las sentencias 3173-93 2004-08763, 2014-4575 y en materia educativa las sentencias 2002-08557 2012-10456 y más recientemente en la sentencia 2020-001619.

También, la Sala ha reconocido que ese derecho tiene límites y limitaciones para el personal de salud, en su negativa de vacunarse contra el covid-19, reconociendo que uno de los límites principales a este derecho es la salud pública. Así por ejemplo, en la sentencia 2020-01619 señala que la objeción de conciencia no es un derecho absoluto:

“(…) hay que tener presente una premisa fundamental, y una constante histórica, en el sentido de que no hay derechos fundamentales absolutos, excepto el derecho a no ser sometido a tratos crueles, inhumanos o degradantes, por consiguiente, el derecho a la objeción de conciencia tiene límites y limitaciones y, en aquellos casos, en los que entra en colisión con otro derecho fundamental se debe recurrir al principio de la concordancia práctica y, por consiguiente, es menester hacer un juicio de ponderación entre los derechos que están en conflicto (…)” (el énfasis no pertenece al original).

Y en la sentencia No. 2020-0019433, agrega:

“(…) esta Sala ha reconocido, en primer lugar, la importancia de la vacunación como parte de la asistencia sanitaria esencial que debe garantizar el Estado costarricense en aras de proteger el derecho fundamental a la salud de todas las personas, y, en segundo lugar, que el resguardo de la salud pública y la prevención de las enfermedades constituye un fin constitucionalmente legítimo que puede justificar válidamente la obligatoriedad de las vacunas (…)” (el énfasis no pertenece al original).

Ha señalado la Sala que para abstraerse de esta obligación no es oponible la objeción de conciencia sino únicamente con una contraindicación médica que debe ser analizada y validada por parte de los profesionales de la institución, mediante los procedimientos establecidos en la normativa interna.

Por su parte, hasta ahora en el Sistema Interamericano de Derechos Humanos (SIDH) los pronunciamientos en esta materia son escasos y relacionados principalmente con el servicio militar (ver a manera de ejemplo: Sahli Vera vs. Chile (2005) Alfredo Díaz Bustos vs. Bolivia (2005), Xavier Alejandro León Vega vs. Ecuador 11 (2006), Luis Gabriel Caldas vs. Colombia 12 (2010) todos éstos ante la Comisión Interamericana.

Sin embargo, en el informe “Acceso a la información en materia reproductiva desde una perspectiva de derechos humanos de la CIDH de noviembre de 2010” se reconoció que los profesionales de la salud tienen derecho a que se respete su libertad de conciencia y se adopta una línea de armonización entre el derecho a la objeción de conciencia del personal de salud y la de los y las usuarias del servicio de recibir un servicio (deben establecer procedimientos de referencia, así como de las sanciones respectivas frente al incumplimiento de su obligación) ante el posible conflicto entre esa libertad y los derechos de terceros (pacientes). En lo que interesa, sostuvo:

95. La objeción de conciencia es un tema muy relevante cuando se aborda el acceso a información en materia de salud reproductiva. Muchos profesionales de la salud tienen sus propias convicciones respecto de la utilización de métodos de planificación familiar, de la anticoncepción oral de emergencia, de la esterilización, y del aborto legal, y prefieren no proveer los servicios. […] el derecho a la objeción de conciencia del profesional de la salud es una libertad. Sin embargo, dicha libertad podría colisionar con la libertad de los pacientes. En consecuencia, el equilibrio entre los derechos de los profesionales de la salud y los derechos de los pacientes se mantiene a través de la referencia. Es decir, un profesional de la salud puede negarse a atender a un paciente, pero lo debe transferir sin objeción a otro profesional de la salud que puede proveer lo solicitado por el paciente [...].

99. En este sentido, la CIDH considera que los Estados deben garantizar que las mujeres no se vean impedidas de acceder a información y a servicios de salud reproductiva, y que frente a situaciones de objetores de conciencia en el ámbito de la salud, deben establecer procedimientos de referencia, así como de las sanciones respectivas frente al incumplimiento de su obligación. (lo resaltado no es del original) En el texto de este informe, la CIDH hace un reconocimiento expreso de la objeción de conciencia como concreción de una libertad individual y a su vez, ante el posible conflicto entre esa libertad y los derechos de terceros (pacientes), asoma la misma solución adoptada frente a este tema por el TEDH en el caso P. y S. vs. Polonia (n. 57375/08), del 30 de octubre de 2012, es decir, de la armonización o conciliación del derecho del objetor y del paciente al señalar:

“106. En la medida que el Gobierno hace referencia en su argumentación al derecho de los médicos a negarse a prestar ciertos servicios por motivos de conciencia, basado en el artículo 9 de la convención, la Corte reitera que la palabra “práctica” usada en el artículo 9.1 no abarca todos y cada uno de los actos o formas de comportamiento motivadas o inspiradas por la religión o una creencia (ver, entre muchas otras autoridades, Pichon y Sajous v. Francia (dec.), no. 49853/99, ECHR 2001-X). Para la Corte, los Estados están obligados a organizar sus sistemas de servicios de salud de tal forma que se garantice que el ejercicio efectivo de la libertad de conciencia por los profesionales sanitarios en un contexto profesional no impida a los pacientes obtener acceso a los servicios a los que tienen derecho de acuerdo con la legislación aplicable (ver R.R. v. Poland, antes citado, no. 27617/04, § 206).

107. En relación con lo dicho, la Corte nota que la ley polaca ha reconocido la necesidad de garantizar que los doctores no estén obligados a llevar a cabo servicios que ellos objeten y a tal efecto, contempla un mecanismo en cuya virtud tal negativa pueda ser expresada. Este mecanismo también incluye elementos que permiten conciliar el derecho de los objetores de conciencia con los intereses del paciente, al hacer obligatorio que tal negativa sea hecha por escrito y que incluyan el historial médico del paciente y, sobre todo, mediante la imposición al doctor de la obligación de referir al paciente a otro médico competente que lleve a cabo el mismo servicio. Sin embargo, no se ha evidenciado que estos requerimientos procedimentales fueran cumplidos en el presente caso o que la legislación aplicable que rige el ejercicio de las profesiones médicas haya sido debidamente observada.” (La traducción es propia. El subrayado no es del original).

En el sistema europeo, el Tribunal Europeo de Derechos Humanos también se encuentran casos- poco uniformes por cierto-, pero también referidos principalmente al servicio militar y temas relacionados con la salud o el uso de símbolos religiosos. (ver a manera de ejemplo referente al servicio militar: Thlimmenos vs. Grecia, U¨lke vs. Turquía (2006), Bayatyan vs. Armenia (2011, caso a partir del cual trata la objeción de conciencia frente al servicio militar obligatorio como un derecho autónomo, Erc¸ep vs. Turquía (2011), Savda vs. Turquía (2012), Tarhan vs. Turquía (2012), Feti Demitras vs. Turquía (2012) y Buldu vs. Turquía (2014).Referente a temas de salud ( farmacúeticos) ver: Pichon y Sajous vs. Francia (2001). Referente a uso de símbolos religiosos ver: Dahlab vs. Suiza, Leyla Sahin vs. Turquía, Dogru vs. Francia y Kervanci vs. Francia.

Obligaciones jurídicas de las personas encargadas de la prestación de servicios públicos.

De los ejemplos supra citados vemos como un sector relevante de la doctrina y jurisprudencia reconoce la objeción de conciencia para casos calificados, pero con límites que no eximen del cumplimiento de deberes ante la ley y del deber de ejercer este derecho en un correcto balance con el ejercicio de los derechos de terceros.

En ese sentido, la objeción de conciencia, es un derecho que sólo puede ejercerse para casos muy puntuales o excepcionales ya que por su naturaleza implica la posibilidad de abstraerse del cumplimiento de deberes legales y si se permitiera su ejercicio en forma indiscriminada, sería la negación propia del estado de derecho. El propio Tribunal Constitucional español se ha mostrado contrario a su aplicación genérica en la sentencia 161/1987 al señalar:

“El derecho de ser eximido del cumplimiento de los deberes constitucionales o legales por resultar ese cumplimiento contrario a las propias convicciones no está reconocido ni cabe imaginar que lo estuviera en nuestro derecho ni en derecho alguno, pues significaría la negación de la idea misma de Estado.” En el caso del servicio público la posibilidad de excepcionarse del cumplimiento de deberes legales por objeción de conciencia es y debe ser aún más restrictivo o excepcional que en el caso de los particulares, ya que el servicio público debe ser ejercido bajo un absoluto respeto del ordenamiento jurídico (principio de legalidad -incluidos desde luego el cumplimiento y respeto de los derechos humanos), y de los principios de objetividad o neutralidad, eficiencia y continuidad que lo rigen. Es decir, la distinción entre particulares y servidores públicos es importante, al valorar las condiciones para el ejercicio de este derecho, porque no son aplicables o extrapolables los mismos supuestos cuando el objetor es un particular que cuando es un funcionario público, entre otras razones porque éste último tiene una relación de sujeción especial que implica obediencia al ordenamiento jurídico vigente y los principios rectores del servicio público exigen que este sea neutral e igualitario, es decir libre de discriminación, eficiente, continuo y desde luego sujeto al principio de legalidad (ver entre otras sentencia 2011-6221). Como señalé en el apartado 2 de este voto, un Estado Constitucional de Derecho como el costarricense, además está obligado a promover los derechos humanos, mediante acciones positivas que creen las condiciones para su ejercicio y respeto, lo cual implica que aparte de garantizar el ejercicio del servicio público bajo los principios de igualdad, no discriminación, eficiencia y eficacia ya señalados, está obligado a promover la educación y promoción del cumplimiento de los derechos humanos a nivel general y en particular en su funcionariado que está vinculado por la normativa, es decir al cumplimiento de los derechos fundamentales garantizados por la Constitución Política y los tratados internacionales de derechos humanos vigentes en la República. Esa labor educativa es particularmente relevante cuando se trata de la protección de personas en estado de vulnerabilidad, casos de discriminación o desigualdad estructuralmente arraigada, por ejemplo, en los cuales es indispensable cambiar la cultura por medio de la educación para el cumplimiento efectivo de las normas jurídicas vigentes. Por eso tiene tanta relevancia lo dicho por Nelson Mandela cuando señalaba que “nadie nace odiando a otra persona por el color de su piel, su origen o su religión”. El odio y la violencia son conductas que se pueden desaprender y modificar por medio de la promoción de valores positivos en la sociedad. La educación es una de las herramientas principales para erradicar la desigualdad y odio, es el camino para cumplir la máxima expresada en la Declaración Universal sobre Derechos Humanos, en su artículo 1 que establece como aspiraciones supremas de la humanidad la igualdad y dignidad de todos los seres humanos:

“Todos los seres humanos nacen libres e iguales en dignidad y derechos y, dotados como están de razón y conciencia, deben comportarse fraternalmente los unos con los otros.” Entonces ante la pregunta de si el servidor público puede ser objetor de conciencia para abstraerse de la obligación de capacitarse en los temas necesarios para mejorar el servicio público (principios de eficiencia, objetividad-neutralidad, continuidad y legalidad) o en las obligaciones del Estado de promover y respetar los derechos humanos, la respuesta es no. Únicamente puede hacerlo ante supuestos muy excepcionales, reglados que no violenten los supuestos señalados, para lo cual es necesario someter la objeción presentada a un proceso de verificación estar previamente establecido en la ley en cuanto a los límites y limitaciones del ejercicio del derecho.

En líneas generales se puede afirmar, que el servidor público no puede objetar de conciencia para ceder el cumplimiento de su deber funcional -salvo en casos muy calificados según se analizó supra-, pues si bien todos los ciudadanos tienen derecho a la libertad de conciencia, este derecho como se indicó no cobija de la misma manera a los servidores públicos, que a los particulares. Y si es excepcionalísima su invocación y aceptación para abstraerse del ejercicio de deberes funcionariales, debe serlo aún más para abstraerse del deber de recibir capacitación para el mejoramiento del servicio público y el cumplimiento del deber del estado de respetar y promover los derechos humanos como parte de sus obligaciones constitucionales y convencionales.

Asimismo, como la objeción de conciencia no es un derecho que pueda invocarse indiscriminadamente, requiere, en el caso de los funcionarios públicos, de un mecanismo de comprobación de que se está ante una de las condiciones que permiten su ejercicio, entre éstas, una gestión por escrito (que se satisface con la declaración jurada), pero que no se puede agotar con ésta, ya que de lo contrario, se estaría propiciando la abstracción de deberes funcionariales propios del servicio público y del estado de derecho, entre éstos, repito, la promoción y respeto de los derechos humanos o los derechos de terceros, tema que ha sido abordado en la jurisprudencia de otros Tribunales de relevancia, entre estos el TC Español en la sentencia 160/1987. En esa oportunidad señaló que la invocación por sí sola de la objeción de conciencia, no sería suficiente para liberar a los ciudadanos (menos a los funcionarios públicos) de deberes constitucionales. Para el ejercicio de este derecho, deben respetarse los límites aceptados en la doctrina y jurisprudencia más reconocida, entre éstos repito: la seguridad (con excepción del servicio militar obligatorio en los casos en que existe), el orden, la salud y el respeto a los derechos humanos de las personas, en particular de la dignidad humana así como la no discriminación, límites que deben ser verificados como se indicó, y para ello no puede quedar abierto en la ley (sin procedimiento de verificación de la idoneidad de la objeción alegada) la posibilidad de objetar una capacitación con la sola presentación de una declaración jurada, de tal forma que estimo que así como quedó regulado en el proyecto consultado el artículo 23 inciso g) no se ajusta al derecho de la Constitución.

En esa misma línea, en la sentencia 2020-001619 de esta Sala se estableció que como el derecho a la objeción de conciencia tiene límites, y limitaciones si se da una colisión de derechos, se debe recurrir a una valoración o ponderación, lo cual implica necesariamente un procedimiento de comprobación sobre la idoneidad o no de la objeción planteada. En lo que interesa se señaló:

“…el derecho a la objeción de conciencia tiene límites y limitaciones y, en aquellos casos, en los que entra en colisión con otro derecho fundamental se debe recurrir al principio de la concordancia práctica y, por consiguiente, es menester hacer un juicio de ponderación entre los derechos que están en conflicto”.

Ese juicio de ponderación no se puede hacer, sin verificar que se dan las condiciones para el ejercicio del derecho.

Al analizar el artículo 23 inciso g) consultado, no queda duda, que el proyecto de Ley permitiría a las y los funcionarios públicos, que, con la sola presentación de la declaración jurada, se les apruebe su objeción de conciencia, sin establecer un proceso de revisión o verificación de la idoneidad de la objeción de conciencia planteada por la persona funcionaria pública en su declaración jurada. Ya se explicó supra que la objeción de conciencia no es un derecho ilimitado y como todo derecho, se encuentra sujeto límites y limitaciones, y esas limitaciones requieren regulación legal dentro de los límites y limitaciones constitucionalmente aceptados.

El artículo consultado, no desarrolla los procesos de excepción para la persona objetora, sino, que promueve, un mecanismo carente de control, o de contradicción posterior, que, podrá generar, que el personal de la administración pública desatienda su deber de capacitación, sin que la Ley permita a sus superiores jerárquicos, cuestionar la idoneidad de la objeción y su relación con el objeto de esta última. Dicha eventualidad, por sus efectos, podría afectar seriamente la eficacia del funcionamiento del servicio público, ya que, permitiría una evasión del deber de capacitarse en pro de la mejora del servicio que presta la administración pública, como parte de sus obligaciones constitucionales. Asimismo, podría propiciar el incumplimiento de deberes establecidos en la normativa internacional vigente en materia de derechos humanos, en particular frente a la no discriminación en todas sus formas. A manera de ejemplo, el artículo 7 de la Convención contra la discriminación racial ratificada por nuestro país, expresamente señala la obligación de educar como herramienta para su erradicación:

“Artículo 7. Los Estados partes se comprometen a tomar medidas inmediatas y eficaces, especialmente en las esferas de la enseñanza, la educación, la cultura y la información, para combatir los prejuicios que conduzcan a la discriminación racial y para promover la comprensión, la tolerancia, y la amistad entre las naciones y los diversos grupos raciales o étnicos, así como para propagar los propósitos y principios de la Carta de las Naciones unidas, de la Declaración Universal de Derechos Humanos, de la Declaración de las Naciones Unidas sobre la eliminación de todas las formas de discriminación racial y de la presente Convención”. (lo subrayado no es del original) No podemos perder de vista, que la idoneidad comprobada y la eficiencia de las personas funcionarias públicas, son requisitos que se deben de mantener a lo largo de toda la relación del servidor o servidora pública con el Estado. Lo anterior implica, que la Administración puede establecer la obligatoriedad para las personas funcionarias públicas, de realizar cursos de capacitación que estén relacionados a mejorar la eficacia y eficiencia del servicio público que el Estado brinda a sus administrados. La anterior premisa se encuentra directamente relacionada, con el derecho que tienen todas las personas de acceso a un servicio público de calidad, lo que también implica que la Administración tiene el deber de procurar los conocimientos necesarios, para que las y los funcionarios públicos, brinden un servicio que promueva el acceso y desarrollo de los derechos humanos y de los intereses personales de los administrados, sin discriminación alguna, fines que como se desarrolló supra, son de obligada promoción en un estado constitucional de derecho. Históricamente y durante las últimas décadas, la Administración pública ha implementado cursos de capacitación para su personal, tendientes a la mejora de la atención de personas que se encuentran en condiciones de vulnerabilidad (indígenas, personas con algún tipo de discapacidad, afrodescendientes, mujeres, privados de libertad, niños y niñas, personas adultas mayores, sin dejar de lado, las personas LGBTIQ+, víctimas, entre otras), siendo varios los ejemplos de políticas públicas en pro de la prevención, eliminación y sanción de cualquier conducta de carácter discriminatorio. Incluso es normal, que los Poderes de la República y el resto de instituciones y oficinas que conforman a la Administración Pública, contengan dentro de sus objetivos institucionales, la ejecución de cursos de capacitación, tanto de la índole de obtención de habilidades propias para el ejercicio del cargo respectivo, como de atención de usuarios y de prestación de un servicio público de calidad para los administrados.

Del anterior análisis es importante reiterar que la posición de las y los funcionarios públicos, es la de un servidor público sometidos al principio de legalidad (artículo 11 de la Constitución Política). El diseño de nuestra Constitución, le impone a la función pública la obligación de brindar un servicio bajo criterios de objetividad y eficiencia en favor de las personas, que operan como elementos principales de su legitimación. Evidentemente, las anteriores premisas no implican que las y los servidores públicos deban de tolerar en el ejercicio de sus funciones, tratos que menoscaben sus derechos, por cuanto su condición de servidores no les elimina su condición inherente de persona -es aquí, donde opera la objeción de conciencia, dependiendo del caso y la situación concreta-.

No obstante, como se indicó supra, dejar abierta la posibilidad de un funcionario público de abstraerse de una capacitación necesaria que busca la idoneidad y legalidad del servicio -entendida ésta en su sentido más amplio-, genera un ambiente propicio para la inidoneidad por un lado y la discriminación por otro, y en el caso de la discriminación para perpetuar conductas discriminatorias arraigadas en la cultura, deficiencias educativas, entre otras, capaces de dejar sin contenido los derechos humanos, especialmente de las personas que forman parte de grupos en condición de vulnerabilidad, lo cual es particularmente relevante cuando se afecta o entorpece el acceso al servicio público, en el sistema salud, y la seguridad común, entre otros.

No menos relevante es señalar que existen Convenios Internacionales de Derechos Humanos vigentes en la República que obligan dentro de sus postulados a los Estados a educar, es decir, capacitar como parte de las acciones para erradicar la conducta lesiva de éstos derechos, conscientes de que de otra forma no se cambia la realidad.

Igualmente existen sentencias contenciosas en el sistema interamericano de derechos humanos en las cuales se condena a los Estados a capacitar en una determinada materia, obligaciones de las que no se puede abstraer el Estado. Así por ejemplo, en varios casos, (vgr. CASO MUJERES VÍCTIMAS DE TORTURA SEXUAL EN ATENCO VS. MÉXICO) se ha establecido que la educación y la capacitación de funcionarios públicos es una forma efectiva de erradicar violencia contra las mujeres:

“13. El Estado debe, en un plazo de dos años, crear un plan de capacitación de oficiales de la Policía Federal y del estado de México, y establecer un mecanismo de monitoreo y fiscalización para medir y evaluar la efectividad de las políticas e instituciones existentes en materia de rendición de cuentas y monitoreo del uso de la fuerza de la Policía Federal y la policía del estado - 139 - de México, en los términos de los párrafos 355 a 356 de la presente Sentencia.” (CASO MUJERES VÍCTIMAS DE TORTURA SEXUAL EN ATENCO VS. MÉXICO SENTENCIA DE 28 DE NOVIEMBRE DE 2018 (Excepción Preliminar, Fondo, Reparaciones y Costas) Finalmente, estimo que las falencias apuntadas, no pueden ser solventadas únicamente a través del ejercicio reglamentario, ya que, al ser regulaciones al ejercicio de un derecho fundamental (del objetor), éstos por imperativo constitucional, deben estar contenidos en la Ley, lo cual implica la necesidad de que exista un proceso de verificación de la idoneidad o no de la objeción alegada, independientemente de si el desarrollo ulterior del procedimiento concreto se da a través de la potestad reglamentaria.

En síntesis, la omisión de la norma consultada de establecer la necesidad de una verificación de la declaración jurada del funcionario público, deja abierta la objeción de conciencia a una aplicación automática lo cual es incompatible con el ordenamiento jurídico constitucional y convencional, y sólo sería conforme con la Constitución si se interpreta que la declaración jurada debe estar sujeta a un proceso de verificación que garantice que el funcionario público no se está sustrayendo de obligaciones propias de su relación de sujeción especial, que dejen sin efecto o sin contenido, las garantías límites y limitaciones constitucionales y legales de la objeción de conciencia como son entre otras, el orden, la salud, y el respeto a los derechos humanos de las personas, en particular de la dignidad humana y no discriminación, aspectos que estimo deben ser corregidos en el artículo 23 inciso g) consultado.

XVI.- Sobre la consulta de violación al derecho de negociación colectiva y al derecho de sindicación.- 1) Aspectos consultados Los consultantes consideran que los artículos 43 y el transitorio XV del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, es violatorio del derecho fundamental a la negociación y el derecho de sindicación. Tales normas indican expresamente lo siguiente:

“ARTÍCULO 43- Negociaciones colectivas Mediante la negociación colectiva no se podrán generar nuevas obligaciones o derechos, o variar condiciones laborales referentes a:

• a)Salarios o remuneraciones y variar o modificar lo referente a la escala salarial o componentes de la columna salarial global.
• b)La creación de incentivos, compensaciones o pluses salariales.
• c)Asuntos donde se deba realizar una erogación adicional de recursos que afecten el presupuesto nacional o el de una institución pública, mediante gastos que no se ajusten a los principios de razonabilidad y proporcionalidad desarrollados por la Sala Constitucional de la Corte Suprema de Justicia.
• d)Normas de carácter prohibitivo contenidas en la presente ley.
• e)La creación de nuevas plazas.

Las condiciones que se pacten en los instrumentos de negociación colectiva deberán respetar los principios constitucionales de razonabilidad, proporcionalidad, legalidad, igualdad y legalidad presupuestaria. De cada sesión de negociación se levantará un acta, que se publicará como máximo al finalizar el proceso, junto con un acta de cierre en la que se recogerá el texto completo de las cláusulas que fueron negociadas y en la que se indicará cuáles cláusulas del proyecto fueron desechadas o no pudieron negociarse por falta de acuerdo acerca de ellas.

Tratándose de normas que por su naturaleza o su afectación del principio de legalidad presupuestaria requieran aprobación legislativa o reglamentaria, su eficacia quedará condicionada a la inclusión en la ley de presupuesto o en los reglamentos respectivos, lo mismo que a la aprobación por parte de la Contraloría General de la República, cuando afecte los presupuestos de las instituciones, cuyos presupuestos ordinarios y extraordinarios o las modificaciones presupuestarias requieran aprobación de esta última entidad. “ “TRANSITORIO XV- A partir de la entrada en vigencia de la presente ley, los jerarcas de las entidades públicas están en la obligación de denunciar las convenciones colectivas a su vencimiento.

En el caso en que se decida renegociar la convención, esta deberá adaptarse en todos sus extremos a lo establecido en esta ley y demás regulaciones que dicte el Poder Ejecutivo.” Los consultantes consideran inconstitucionales tales normas, por cuanto, se prohíbe la negociación colectiva en materia salarial, y otros temas, que abarcaría prácticamente todo lo negociable, vaciando de contenido la posibilidad de cualquier acuerdo que busque mejorar las condiciones labores de las personas trabajadoras en contraposición con lo dispuesto en el artículo 62 constitucional, del Convenio sobre el derecho de sindicación y de negociación colectiva, 1949, N° 98 de la Organización Internacional del Trabajo (OIT), artículos 4 y 6; Convención Americana de Derechos Humanos, Pacto de San José de Costa Rica, artículo 2; Pacto Internacional de los Derechos Económicos, Sociales y Culturales, artículos 2 y 8; el Protocolo Adicional a la Convención Americana sobre Derechos Humanos en Materia de Derechos Económicos, Sociales y Culturales de San Salvador, artículo 5; el numeral 7 de la Constitución Política. Además del art. 690 del Código de Trabajo. Todo en violación además del principio de progresividad. Sostienen que el artículo 43 del proyecto consiste en una restricción excesiva y desproporcionada al derecho de negociación colectiva al prohibir que se pueda negociar cualquier materia, no solo salarial, sino también aquella que implique una erogación adicional en los presupuestos, o la creación de plazas, o que abarque materia prohibitiva de esta ley, como podrían entenderse las vacaciones (la OIT se ha referido a las vacaciones como parte de la materia a negociar colectivamente, ver Recomendación n°7). Las disposiciones contenidas en el artículo 43 y transitorio XV del proyecto, violentan su disfrute al imponer limitaciones irrazonables y abusivas contrarias al principio de convencionalidad garantizados por las Convención Americana de Derechos Humanos y el Pacto Internacional de los Derechos Económicos, Sociales y Culturales y su Protocolo. Si bien, la jurisprudencia constitucional ha reconocido que el derecho a la negociación colectiva está sujeta a los controles de constitucionalidad y legalidad, a los principios de razonabilidad y proporcionalidad y buen uso de los fondos públicos, dichos controles no pueden llevar a vaciar de contenido este derecho humano fundamental por violación al principio de libertad sindical, tal y como plantea el proyecto de ley. Respecto a la obligación a los jerarcas institucionales de denunciar las convenciones colectivas a su vencimiento, ya la Sala Constitucional se pronunció sobre la inconstitucional de dicha disposición, al resolver la consulta facultativa referente al proyecto Ley de Fortalecimiento de las Finanzas Públicas, que se tramitó bajo expediente 20580, que contenía una norma idéntica; sin embargo, se insiste en incluirla de nuevo en el proyecto de ley 21336, al indicar: “I) En relación con la obligatoriedad de la denuncia de la convención colectiva a su vencimiento (transitorio L del Título V "Disposiciones Transitorias"), en aplicación de la Constitución Política (artículos 62 y 74), los Convenios Internacionales de la Organización Internacional del Trabajo y la jurisprudencia de este Tribunal, se interpreta que cada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente.” (Resolución Nº 2018-19511). Así consideran que, se viola lo dispuesto en el artículo 62 de la Constitución Política y en el Convenio sobre el derecho de sindicación y de negociación colectiva, 1949, N° 98 de la Organización Internacional del Trabajo (OIT), artículos 4 y 6; Convención Americana de Derechos Humanos, Pacto de San José de Costa Rica, artículo 2; Pacto Internacional de los Derechos Económicos, Sociales y Culturales, artículos 2 y 8; el Protocolo a la Adicional Convención Americana sobre Derechos Humanos en Materia de Derechos Económicos, Sociales y Culturales de San Salvador, artículo 5; el numeral 7 constitucional que les otorga rango superior a la ley y los principios constitucionales de legalidad y de convencionalidad, puesto que la negociación colectiva es un derecho humano fundamental.

Para el examen de estos argumentos, lo primero que debe recordarse es lo que esta Sala ha establecido en reiterada jurisprudencia sobre los alcances y limitaciones del derecho fundamental de negociación colectiva, a efectos de examinar, si en efecto, las normas consultadas del proyecto, violan su contenido esencial.

• 2)Antecedentes Jurisprudenciales sobre el Derecho fundamental a la Negociación Colectiva La trilogía de derechos fundamentales, que se deriva del Derecho Laboral Colectivo, son: el derecho a la sindicación, el derecho a la negociación colectiva y el derecho a la resolución efectiva de los conflictos colectivos (ver sentencia n°2006-03002 de las 10:40 horas del 9 de marzo de 2006). Estos derechos persiguen hacer realidad y dar solución a la necesidad de los trabajadores de agruparse para compensar la inferioridad real en que se encuentran cuando actúan aislados, frente al patrono y ante la genérica regulación de sus derechos en el Código de Trabajo. Propiamente, sobre las convenciones colectivas, el artículo 62 de la Constitución Política contempla su reconocimiento constitucional, su carácter de fuerza de ley y la necesidad de que tales convenciones se ajusten a lo que disponga la ley. En efecto, esta norma constitucional señala que:

“Artículo 62. Tendrán fuerza de ley las convenciones colectivas de trabajo que, con arreglo a la ley, se concierten entre patronos o sindicatos de patronos y sindicatos de trabajadores legalmente organizados”.

La ubicación de la norma en el Capítulo de los Derechos y Garantías Sociales de la Constitución Política y su contenido, indican que lo que se busca garantizar es el derecho a la “negociación colectiva laboral". Sobre este particular, en la sentencia n°2020-12800 de las 11:01 horas del 8 de julio de 2020, este Tribunal destacó los tres aspectos que se derivan de esta norma, a saber: a) el reconocimiento de la negociación colectiva como un derecho constitucional; b) que las negociaciones así concertadas tienen carácter de fuerza de ley; y c) que tales convenciones deben ser acordadas conforme lo disponga la ley. Todo lo cual es, por demás, ratificado por la Corte Interamericana de Derechos Humanos, mediante Opinión Consultiva OC-27/21 del 05 de mayo del 2021, cuando indica lo siguiente:

“94. En consideración a lo antes mencionado, y a manera de corolario, la Corte considera pertinente señalar que el derecho a la negociación colectiva, como parte esencial de la libertad sindical, está compuesto de diversos elementos, que incluyen, como mínimo: a) el principio de no discriminación del trabajador o trabajadora en ejercicio de la actividad sindical, pues la garantía de igualdad es un elemento previo para una negociación entre empleadores y empleadoras, y trabajadores y trabajadoras; b) la no injerencia directa o indirecta de los empleadores en los sindicatos de trabajadores y trabajadoras en las etapas de constitución, funcionamiento y administración, pues puede producir desbalances en la negociación que atentan en contra del objetivo de los trabajadores y las trabajadoras de mejorar sus condiciones de vida y de trabajo mediante negociaciones colectivas y por otros medios lícitos; y c) el estímulo progresivo a procesos de negociación voluntaria entre empleadores y empleadoras, y trabajadores y trabajadoras, que permitan mejorar, a través de contratos colectivos, las condiciones del empleo.” Propiamente sobre el derecho a la negociación colectiva en el sector público, primero se puede citar la sentencia n°1696-92 de las 15:30 horas del 23 de agosto de 1992, donde la Sala declaró la inconstitucionalidad de los mecanismos del arreglo directo, la conciliación y el arbitraje para los funcionarios que realicen gestión pública, pero reconoció que es válido que los obreros, trabajadores o empleados que no participan de la gestión pública de la Administración puedan celebrar convenciones colectivas de trabajo, de tal forma que entes con un régimen de empleo de naturaleza laboral (no pública), como por ejemplo, las empresas del Estado, sí pueden negociar colectivamente. Criterio que es reiterado en varias sentencias posteriores (ver n°2000-07730 y n°2000-04453). Luego, en la sentencia n°2020-008396 de las 9:20 horas del 6 de mayo de 2020, este Tribunal resolvió lo siguiente sobre las convenciones colectivas en el sector público, ratificando que se permiten únicamente en el caso de los trabajadores que no desempeñan gestión pública:

“V.- Sobre la negociación colectiva en el sector público.- Conforme se desprende de la jurisprudencia de esta Sala, como tesis de principio, la relación laboral que se establece entre el Estado (en cuenta las Municipalidades) y sus trabajadores se rige por el Derecho Público -y no el Código de Trabajo-, relación que se ha denominado, de empleo público o estatutaria. Ahora bien, se dice que en tesis de principio los trabajadores del Estado están sometidos a un régimen de empleo público porque, se ha hecho una excepción, a saber, los trabajadores que no participan de la gestión pública, por ser trabajadores de empresas estatales. Así se ha establecido que los trabajadores que no participan de la gestión pública, al estar sometidos al derecho común, pueden acudir a los procedimientos de resolución de los conflictos colectivos de carácter económico y social previsto en el Código de Trabajo (resolución N° 94-3053) y al arbitraje bajo ciertas limitaciones (resolución N° 92-1696); y pueden celebrar convenciones colectivas (resolución N° 00-4453), aunque también bajo ciertas limitaciones. Así, la posibilidad de negociar colectivamente para los trabajadores que no participan de la gestión pública de la Administración (los empleados de empresas o servicios económicos del Estado, encargados de gestiones sometidas al Derecho común), ha sido reconocida reiteradamente por esta Sala a partir de la sentencia número 03053-94, criterio que reitera o ratifica después en las sentencias 2000-07730 y 2000-04453. El resto de empleados del Estado, que por lo tanto sí participan de la gestión pública (siendo estos en general, no sólo los jerarcas institucionales y órganos de control legal y financiero como dice el representante del Sindicato, sino todos aquellos trabajadores que ejerzan competencias públicas), ni pueden solucionar sus conflictos colectivos de trabajo por la vía del arbitraje (resolución N° 92-1696), ni tampoco pueden celebrar convenciones colectivas (resolución N° 00-4453), siendo inconstitucional la celebración de convenciones colectivas que se celebren en el sector público cuando se trate de personal regido por una relación estatutaria. Lo cual implica que no se pueda tolerar la negociación colectiva en el sector público, de conformidad con los artículos 191 y 192 constitucionales. En conclusión, las convenciones colectivas no están del todo prohibidas en el sector público, sino que están permitidas únicamente en el caso de los trabajadores que no desempeñan gestión pública, es decir, aquellos cobijados en los artículos 3, 111 y 112 de la Ley General de la Administración Pública. Siendo, la determinación en cada caso concreto de cuáles trabajadores están cobijados en dichas normas, una cuestión ajena a esta jurisdicción constitucional y que corresponde a los operadores del derecho”. (sentencia N°2013-14499) IV.- Sobre la normativa impugnada. (…) debe reiterarse que no existe una prohibición absoluta de celebrar convenciones colectivas en el sector público o que estas resultan per se inconstitucionales, pues, como ya se indicó, existe un grupo de empleados del sector público que pueden válidamente celebrar convenciones colectivas de acuerdo con la Constitución, en concreto, es “constitucionalmente posible la aplicación de la institución de las convenciones colectivas…. en las llamadas empresas o servicios económicos del Estado y en aquellos núcleos de personal de instituciones y entes públicos en los que la naturaleza de los servicios que se prestan no participan de la gestión pública” (voto N°2000-004453. El resaltado no corresponde al original). De esta forma, respecto de las convenciones colectivas impugnadas en la presente acción, estas resultan constitucionalmente válidas en cuanto a los referidos núcleos de personal que laboran o prestan sus servicios para las entidades o instituciones en cuestión. Ahora bien, como ya se indicó en el precedente parcialmente transcrito, corresponde:

“(…) a cada Administración Pública definir cuáles son esos funcionarios cubiertos por la convención colectiva o con posibilidad de negociar o pactar este tipo de convenciones colectivas, todo conforme a los criterios de la Administración Pública, o la de los Tribunales de Justicia, según la decisión que corresponda.”(voto N°2015-7221)”.

En lo que respecta al contenido de la negociación colectiva laboral, la Sala se ha referido a las llamadas clausulas normativas (regulan la interacción que surge con motivo de la prestación del servicio del trabajador y el pago de los salarios o remuneraciones por el patrono), las cláusulas de configuración (especifican el ámbito personal, temporal y espacial de la convención y entre las que se incluyen el poder disciplinario del empleador y al ejercicio de su derecho a la organización y la dirección) y las cláusulas obligacionales (crean derechos y obligaciones entre las partes y que tienen que ver, primordialmente, con la paz social y con el deber de ejecución de la convención, como la creación de las juntas de relaciones laborales, instalación de centros de formación), en los siguientes términos:

“Dentro de la especialidad de la materia, las partes solo pueden convenir, válidamente, sobre lo que jurídicamente puedan cumplir, en razón de la naturaleza contractual del convenio colectivo y como tesis de principio se admite que su ámbito sean las condiciones de trabajo o laborales, sin que pueda extenderse ese fin a normar cuestiones extra laborales. En otras palabras, la convención colectiva tiene como objeto regular, por un lado, las condiciones a que deben sujetarse las relaciones individuales de trabajo, o lo que es lo mismo, las llamadas cláusulas normativas, que regulan la interacción que surge con motivo de la prestación del servicio del trabajador y el pago de los salarios o remuneraciones por el patrono, como lo afirma la mayoría de la doctrina del Derecho laboral y esto conduce a la conclusión de que puede ser materia de una convención colectiva, todo lo que podría serlo en un contrato de trabajo individual; también, dentro de este contenido, pueden ser objeto de negociación colectiva las llamadas cláusulas de configuración, que son las que especifican el ámbito personal, temporal y espacial de la convención y entre las que se incluyen las que limitan o fijan procedimientos para el ejercicio de los derechos del empleador, en especial en lo que se refiere al poder disciplinario y al ejercicio de su derecho a la organización y la dirección. En segundo orden, las cláusulas obligacionales, que son las que crean derechos y obligaciones entre las partes y que tienen que ver, primordialmente, con la paz social y con el deber de ejecución de la convención, como la creación de las juntas de relaciones laborales, la institución de prestaciones patronales con destino a obras sociales dentro de la comunidad laboral, instalación de centros de formación, entre otros. A manera de síntesis, diremos que las convenciones colectivas, por disposición constitucional, tienen como fin inmediato la revisión, inter partes y con el carácter de ley, del contenido mínimo de los beneficios legales que ordenan las relaciones laborales, todo ello con el objeto de mejorar o de superar ese mínimo esencial.” (ver sentencia n°2007-18485 de las 18:02 horas del 19 de diciembre de 2007).

Sobre este mismo tema, en la sentencia n°2020-12800 de las 11:01 horas del 8 de julio de 2020, la Sala estimó que se puede reconocer un mayor derecho al que reconoce la ley:

“De igual manera, tampoco es dable aducir, que mediante una negociación colectiva se pueda reconocer mayores derechos a las partes, lo cual ciertamente es así, pero debe señalarse que se trata de mayores concesiones sobre derechos válida y legítimamente reconocidos, lo cual, no es el caso de limitar la libre negociación de alguna de las partes involucradas. Dicho de otro modo, una convención colectiva puede reconocer un mayor derecho al que reconoce la ley, pero no puede limitarlo. Y, en todo caso, aquel mayor reconocimiento, de conformidad con lo dicho en el anterior considerando, igualmente deberá sujetarse al Derecho de la Constitución, para lograr así la armonía jurídica de la cual depender un ordenamiento.” (el destacado no es del original).

Por su parte, en la sentencia n°2008-003935 de las 14:48 horas del 12 de marzo de 2008, la Sala señaló que los entes de la Administración Pública pueden otorgar determinados incentivos o beneficios a sus trabajadores, los cuales serán válidos constitucionalmente únicamente cuando estén amparados en razones objetivas que se traduzcan además en una mejor prestación del servicio público. Al respecto, indicó:

“En otras palabras, esta Sala no ha cuestionado que cualquier ente de la Administración Pública pueda reconocer determinados incentivos o beneficios a sus trabajadores, ya que ello puede constituir una medida idónea para remunerar una exigencia especial del puesto de trabajo, que implique determinadas calificaciones profesionales o habilidades a quienes lo desempeñen, o bien para compensar un riesgo particular que caracteriza el desempeño de tales funciones, sea un riesgo material (por ejemplo, labores físicamente peligrosas) o uno de carácter legal (por ejemplo, trabajo susceptible de generar responsabilidad civil).” Ahora, si bien se reconoce el derecho a la negociación colectiva en el sector público, a través del cual pueden otorgarse o reconocerse derechos o beneficios con mayor amplitud a lo legalmente predefinido, también existen límites a dichas negociaciones, en cuanto deben congeniarse con el ejercicio de las competencias legales de los entes públicos, y respetar las limitaciones necesarias para armonizar el gasto público con la disponibilidad presupuestaria y el sano manejo de los fondos públicos. Sobre el particular, la Sala se ha referido a los límites de la negociación colectiva, como los principios constitucionales de razonabilidad, proporcionalidad, economía y eficiencia, y la ley:

“Se ha indicado, además, que sin demérito alguno de que la negociación colectiva sea un derecho reconocido constitucionalmente y por instrumentos internacionales de la Organización Internacional del Trabajo, lo cierto es que su contenido se encuentra también subordinado a las normas y principios constitucionales, en el tanto las decisiones que ahí se tomen, en cantidad de casos implican consecuencias para las finanzas públicas. Dentro de este contexto, su adopción y validez no queda únicamente sujeta a la mera verificación del procedimiento de adopción, sino también a un análisis de fondo, en la media que su contenido debe ajustarse a las normas y principios constitucionales por tratarse de fondo públicos. De este modo, las obligaciones pactadas por las instituciones públicas para con sus empleados, como ocurre en este tipo de negociación, pueden ser objeto del análisis de razonabilidad, economía y eficiencia, con el objeto de evitar que a través de una convención colectiva desproporcionadamente sean limitados o lesionados los derechos de los propios trabajadores, o para impedir que se haga un uso abusivo de fondos públicos” (ver sentencia N°2021-009580 de las 9:15 horas del 12 de mayo de 2021).

De particular interés resulta mencionar la sentencia n°2018-19511, no solo porque hace acopio de jurisprudencia constitucional relevante sobre la materia, sino porque se ratifica que el derecho a la negociación colectiva parte de una negociación libre y voluntaria; y, además, de un contenido mínimo o esencial, que es la posibilidad de negociar sobre mejores condiciones socioeconómicas para los trabajadores. Señaló la Sala que:

“(…) el derecho a la negociación colectiva parte de la posibilidad de una negociación libre y voluntaria; y, además, de un contenido mínimo o esencial, que es la posibilidad de negociar sobre mejores condiciones socioeconómicas para los trabajadores.

2.4.- Sobre los límites y el control del contenido de las convenciones colectivas: Claro está, que dicha capacidad de negociación, no puede ser irrestricta, como esta Sala lo ha dicho en varias oportunidades, pero esa restricción no puede implicar un vaciamiento, por vía de ley, del contenido mínimo de ese derecho. Las restricciones legales que se impongan al derecho a la negociación colectiva, deben ser conformes a la Constitución Política y a los Instrumentos Internacionales relativos a la materia.

En este sentido, es que ha de entenderse lo resuelto por esta Sala en Sentencia N° 2000-004453 de las 14:56 horas del 24 de mayo de 2000, en la que se señaló:

“Sexta: No obstante lo ya expresado, es importante aclarar que aún en el sector público en el que resulta constitucionalmente posible la aplicación de la institución de las convenciones colectivas, valga decir, en las llamadas empresas o servicios económicos del Estado y en aquellos núcleos de personal de instituciones y entes públicos en los que la naturaleza de los servicios que se prestan no participan de la gestión pública, en los términos del inciso 2 del artículo 112 de la Ley General de la Administración Pública, la Sala repite y confirma su jurisprudencia en el sentido de que la autorización para negociar no puede ser irrestricta, o sea, equiparable a la situación en que se encontraría cualquier patrono particular, puesto que por esa vía, no pueden dispensarse o excepcionarse leyes, reglamentos o directrices gubernamentales vigentes, ni modificar o derogar leyes que otorgan o regulan competencias de los entes públicos, atribuidas en razón de la jerarquía normativa o de las especiales condiciones de la Administración Pública con relación a sus trabajadores, conclusión que se infiere del artículo 112 inciso 3) de la Ley General de la Administración Pública y del considerando XI de la sentencia N°1696-92 de esta Sala”. (Ver en igual sentido las sentencias números 2000-006480, 2000-006481, 2000-006482, 2000-006483, 2000-006435, 2000-007730, 2005-006858, 2006-007261 y 2006-17436).

(...)

Así, con respecto a las convenciones del sector público, la Sala ha señalado que deben respetarse las leyes, reglamentos o directrices gubernamentales vigentes, así como las competencias legales de los entes públicos, atribuidas con fundamento en la jerarquía normativa o en las especiales condiciones de la Administración Pública en relación con sus trabajadores. Además, se deben respetar las limitaciones requeridas para armonizar el gasto público con la disponibilidad presupuestaria en aras del derecho ciudadano al sano manejo de los fondos públicos, derivado del numeral 11, Constitucional (ver Sentencia N° 2017-013443 de las 9:15 horas del 25 de agosto de 2017).

Debe entenderse, además, que la facultad de negociación está sujeta a los controles de legalidad y constitucionalidad, en atención a los principios de razonabilidad, proporcionalidad y buen uso y manejo de los fondos públicos.

(...)

De allí que, como parte esencial de la libertad sindical -y de su contraparte la acción sindical- está el derecho de los trabajadores a la negociación colectiva, como instrumento para el mejoramiento de sus condiciones socio-económicas, a través de incentivos, compensaciones o pluses salariales. Lo que se enmarca dentro de los cuatro derechos que comprende la libertad sindical: a) libertad para constituir organizaciones sindicales; b) libertad de ingreso a una organización sindical; c) libertad para dejar de pertenecer a una organización sindical; y d) libertad del afiliado para participar democráticamente dentro del sindicato; a lo cual debe añadirse el derecho de toda organización sindical a desenvolverse libremente con respecto al Estado y en relación con la sociedad, considerada como un todo, siempre dentro del marco legal respectivo.

Lo anterior, implica, eso sí, según lo dicho, que todos esos componentes salariales acordados a través de esa válida negociación colectiva, tienen que ajustarse al principio de proporcionalidad y razonabilidad constitucional, así como al resto del ordenamiento jurídico. Pero resulta contrario al Derecho de la Constitución, en específico a la libertad sindical y al derecho a la negociación colectiva, que el legislador impida que esos extremos puedan ser pactados dentro de una negociación colectiva y solo queden reservados a la ley formal”. (el destacado no es del original).

Luego, en lo que atañe al tema de la denuncia obligatoria de las convenciones colectivas, en la misma sentencia n°2018-019511 de las 21:45 horas del 23 de noviembre de 2018, la Sala señaló lo que se indica a continuación:

“(…)

Pero, se debe insistir, el hecho de que existan esos controles no puede llevar a vaciar el contenido mínimo del derecho a la negociación colectiva, ni a obligar a su denuncia. Y, por ello, resulta contrario a la esencia misma de la negociación colectiva que, incluso en aquellos sectores en donde esta resulte constitucional y legalmente posible, solo a través de una ley formal, emanada del Poder Legislativo, puedan crearse incentivos o compensaciones, o pluses salariales, pues ello, conforme lo dicho, vaciaría de contenido de ese derecho y, por ende, se violaría el principio de libertad sindical, el cual ha sido desarrollado por esta Sala a través de su jurisprudencia. …

(…)

Por último, y en relación con el tema de la denuncia obligatoria de las convenciones colectivas que prevé el Transitorio L, del proyecto de ley consultado, (…)

Con lo cual es claro que, según lo ha definido la OIT, una disposición jurídica que obligara a una parte a concluir un convenio colectivo con otra sería contraria al principio de la negociación libre y voluntaria.

En síntesis, una disposición que obligue a denunciar las convenciones colectivas y, por otro lado, que impida, por medio de estas, lograr mejorar las condiciones, sin modulación de ningún tipo, resultaría contraria al Derecho de la Constitución; de manera, que el legislador no podría, de antemano, restringir la posibilidad de celebrar convenciones colectivas entre patronos y trabajadores, en el sector público en el que resulta constitucionalmente posible la aplicación de esta institución, sin violar la libertad sindical.” Así también, en la sentencia n°2020-12800 de las 11:01 horas del 8 de julio de 2020, se indicó en lo que interesa:

“Bajo este entendimiento, una norma en ese sentido sería ya no sólo contraria al principio de libre negociación, sino claramente también sería antagónica con los principios de razonabilidad y proporcionalidad.

Es en este sentido, que en la misma sentencia 2018-19511, señaló la Sala que:

“[C]ada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente.” -énfasis añadido- De tal manera, si la norma que ahora se cuestiona señala, como en efecto lo hace, que ambas partes de la Convención Colectiva de Trabajo de la Universidad Nacional se comprometen a no denunciar de forma unilateral dicha Convención, se está imponiendo a ambas partes, no solamente a la Universidad, sino al sindicato también, un deber que contraría la previsión constitucional sobre la negociación colectiva, al impedirle a ambas el libre ejercicio de la negociación a que tienen derecho dentro de un marco de razonabilidad y proporcionalidad, y a la parte accionante, obligándole a no poder validar en conjunto con el sindicato, situaciones relacionadas con el buen uso de los fondos públicos.

En este sentido, debe declararse con lugar la acción, por cuanto la frase aludida del último párrafo del artículo 185 de la Convención Colectiva de Trabajo de la Universidad Nacional, resulta contraria al Derecho de la Constitución, en los términos señalados.

-Conclusión. - En definitiva, siendo que la primera parte del último párrafo del artículo 185 de la Convención Colectiva de Trabajo de la Universidad Nacional resulta contraria al Derecho de la Constitución, lo que corresponde es declarar con lugar esta acción de inconstitucionalidad, anulando por inconstitucional la frase “Las partes se comprometen a no denunciar de forma unilateral esta Convención”.

Derivado del reconocimiento constitucional al derecho a la negociación colectiva en el sector público, así como de los límites constitucionales señalados anteriormente, se verifica la competencia de esta jurisdicción para ejercer control sobre el contenido y alcances de las convenciones colectivas del trabajo. Así, en la sentencia N°2020-024200 de las 12:11 horas del 16 de diciembre de 2020, el Tribunal destacó que no existen zonas de inmunidad o actuaciones públicas que escapen al sometimiento constitucional, incluso tratándose de empresas públicas, en los siguientes términos:

III.- LAS CONVENCIONES COLECTIVAS DE TRABAJO FRENTE AL PARÁMETRO DE CONSTITUCIONALIDAD. Este Tribunal Constitucional ha sentado una sólida jurisprudencia en el sentido de que hay necesidad de someter las convenciones colectivas de trabajo al control de constitucionalidad que ejerce esta Sala. Desde la sentencia n.°2006-17441, se consideró que sea cual sea el rango normativo que se reconozca a este tipo de instrumentos, es claro que se encuentran subordinados a las normas y principios constitucionales. Es por lo anterior que, pese al reconocimiento constitucional del derecho a la negociación colectiva y a su desarrollo en diversos instrumentos internacionales, no existen, en el ordenamiento costarricense, zonas de “inmunidad constitucional”, es decir, actuaciones públicas que escapen al sometimiento al principio de regularidad constitucional. A partir de lo cual la Sala ha sido consistente en que si bien tienen un origen constitucional, las convenciones colectivas particulares sí pueden ser sometidas a la valoración de su conformidad constitucional, incluso, tratándose de empresas públicas. Asimismo, se ha hecho énfasis en que las obligaciones contraídas por las instituciones públicas y sus empleados pueden ser objeto de un análisis de razonabilidad, economía y eficiencia, sea para evitar que a través de una convención colectiva sean limitados o lesionados derechos de los propios trabajadores, sea para evitar que se haga un uso abusivo de fondos públicos (ver, entre otras, las sentencias 2019-008679, 2019-009222, 2019-016791 y 2019-017398).” Del amplio compendio jurisprudencial aludido, se puede concluir que el derecho a la negociación colectiva es un derecho constitucional reconocido en el artículo 62 de nuestra carta fundamental que tiene como fin inmediato la revisión, inter partes y con el carácter de ley, del contenido mínimo de los beneficios legales que ordenan las relaciones laborales, todo ello con el objeto de mejorar o de superar ese mínimo esencial. Esta Sala ha reconocido que solo se pueda admitir la negociación colectiva en el sector público para aquellos trabajadores que no realizan gestión pública, los empleados de empresas o servicios económicos del Estado y los encargados de gestiones sometidas al Derecho común. En cuanto al contenido de la negociación colectiva en el sector público, se ha señalado que las partes solo pueden convenir válidamente sobre lo que jurídicamente puedan cumplir, en razón de la naturaleza contractual del convenio colectivo y se admite que su ámbito sean las condiciones de trabajo o laborales, sin que pueda extenderse ese fin a normar cuestiones extra laborales. De esta forma, puede ser objeto de una convención colectiva, todo lo que podría ser referente a un contrato individual de trabajo (sea las que regulan la interacción que surge con motivo de la prestación del servicio del trabajador y el pago de los salarios o remuneraciones por el patrono), así como las normas que limitan o fijan procedimientos para el ejercicio de los derechos del empleador, en especial en lo que se refiere al poder disciplinario y al ejercicio de su derecho a la organización y la dirección, y las normas que crean derechos y obligaciones entre las partes y que tienen que ver primordialmente, con la paz social y con el deber de ejecución de la convención, como la creación de las juntas de relaciones laborales. No se trata de reconocer otros derechos distintos a los válida y legítimamente reconocidos, sino de procurar mayores concesiones sobre aquellos derechos válida y legalmente reconocidos, de ahí que una convención colectiva puede reconocer un mayor derecho al que reconoce la ley, pero no puede limitarlo. En este sentido, se ha admitido la posibilidad de reconocer incentivos salariales o sobresueldos, como instrumentos para incentivar la mayor calidad, permanencia, eficiencia en el servicio, lealtad e idoneidad, de ahí que resulte contrario al Derecho de la Constitución, en específico a la libertad sindical y al derecho a la negociación colectiva, que el legislador impida que esos extremos puedan ser pactados dentro de una negociación colectiva y solo queden reservados a la ley formal. Así las cosas, la Administración Pública puede otorgar determinados incentivos o beneficios a sus trabajadores, cuando éstos estén amparados en razones objetivas que busquen una mejor prestación del servicio público. Existe “una doctrina constitucional de las convenciones colectivas del sector público (indispensable a falta de ley formal que las regule), que puede resumirse en que todos los derechos beneficios y avances en los mínimos legales (que procedan de una legislación social de mediados del siglos pasado) contemplados en una negociación colectiva de trabajo, deben fundarse en razones objetivas que busquen una mejor prestación del servicio público, a la vez que signifiquen un progreso social conjunto y solidario para los servidores públicos y la Administración, respetuoso eso sí de un manejo adecuado y razonable de los fondos públicos”. Y que las “convenciones colectivas no solo tienen fuerza de ley, sino un contenido mínimo intangible para el legislador, entre los cuales está el mejoramiento de las condiciones laborales mínimas y, por ende, también salariales. Lo anterior basado en los principios cristianos de justicia social y de solidaridad, que, tal y como se indicó, están contenidos en el artículo 74, de la Constitución Política…” (sentencia N°2012-08891 de las 16:02 horas del 27 de junio de 2012). Al estar involucrados entes públicos que administran fondos públicos, su contenido se encuentra también subordinado a las normas y principios constitucionales. De esta forma, la validez de la negociación colectiva en el sector público no queda únicamente sujeta a la mera verificación del procedimiento de adopción, sino también a un análisis de fondo de los controles de legalidad y constitucionalidad, en atención a los principios de razonabilidad, proporcionalidad y buen uso y manejo de los fondos públicos, lo anterior, con el objeto de evitar que a través de una convención colectiva, desproporcionadamente sean limitados o lesionados los derechos de los propios trabajadores, o para impedir que se haga un uso abusivo de fondos públicos. En la Administración Pública, la autorización para negociar colectivamente no puede ser irrestricta, o sea, equiparable a la situación en que se encontraría cualquier patrono particular, puesto que se deben respetar las leyes, reglamentos o directrices gubernamentales vigentes, así como las competencias legales de los entes públicos, atribuidas con fundamento en la jerarquía normativa o en las especiales condiciones de la Administración Pública en relación con sus trabajadores. De esta forma, las obligaciones contraídas por las instituciones públicas y sus empleados pueden ser objeto de un análisis de razonabilidad, economía y eficiencia, sea para evitar que a través de una convención colectiva sean limitados o lesionados derechos de los propios trabajadores, sea para evitar que se haga un uso abusivo de fondos públicos. El derecho a la negociación colectiva está sometido al control jurisdiccional de la Sala, pues como se indicó, se encuentra subordinado a las normas y principios constitucionales.

• 3)Análisis concreto de lo consultado (redacta el magistrado Castillo Víquez) Solicitan los consultantes que se declare la inconstitucionalidad del artículo 43 y del transitorio XV de proyecto de Ley Marco de Empleo Público, expediente 21336, por contravenir lo dispuesto en el artículo 62 de la Constitución Política y en el Convenio sobre el derecho de sindicación y de negociación colectiva, 1949, N O 98 de la Organización Internacional de Trabajo (OIT), artículos 4 y 6; Convención Americana de Derechos Humanos, Pacto de San José de Costa Rica, artículo 2; Pacto Internacional de los Derechos Económicos, Sociales y Culturales, artículos 2 y 8; el Protocolo a la Adicional Convención Americana sobre Derechos Humanos en Materia de Derechos Económicos, Sociales y Culturales de San Salvador, artículo 5; el numeral 7 constitucional que les otorga rango superior a la ley y los principios constitucionales de legalidad y de convencionalidad, puesto que la negociación colectiva es un derecho humano fundamental y opera como instrumento a través del cual las personas trabajadoras del sector público en sentido amplio, de las empresas públicas y de las empresas e instituciones públicas en competencia, pueden convenir condiciones laborales dignas, por lo que el Estado tienen a su cargo una doble responsabilidad, por un lado, el de la vigilancia permanente para garantizar su ejercicio sin que medie discriminación alguna, y, por otro, la no intervención estatal que perjudique su efectivo ejercicio.

En cuanto a este punto, también existe profusa jurisprudencia de la Sala Constitucional en materia de negociación colectiva. Ahora bien, en lo referente específicamente a la negociación colectiva en el sector público, cabe señalar que, recientemente, en el voto nro. 2018-019511, este Tribunal hizo un recuento de su jurisprudencia sobre el tema y destacó los siguientes puntos:

Esta Sala ha reconocido, como tesis de principio, que la relación entre el Estado y los servidores públicos es una relación de empleo público o estatutaria; en otras palabras, el servidor del régimen de empleo público se encuentra en relación con la Administración, en un estado de sujeción; aquella puede imponer unilateralmente las condiciones de la organización y prestación del servicio para garantizar el bien público. Esta conclusión implica que no se pueda tolerar la negociación colectiva en el sector público, de conformidad con los artículos 191 y 192 constitucionales. No obstante, sí se ha admitido la posibilidad de negociación colectiva respecto de los obreros, trabajadores o empleados que no participan de la gestión pública de la Administración, de tal forma que entes con un régimen de empleo de naturaleza laboral (no pública), como, por ejemplo, las empresas del Estado sí pueden negociar colectivamente de conformidad con las disposiciones que informan el Derecho Colectivo del Trabajo.

En cuanto a su contenido, se ha señalado que las partes solo pueden convenir, válidamente, sobre lo que jurídicamente puedan cumplir, en razón de la naturaleza contractual del convenio colectivo y como tesis de principio se admite que su ámbito sean las condiciones de trabajo o laborales, sin que pueda extenderse ese fin a normar cuestiones extra laborales. En otras palabras, la convención colectiva tiene como objeto regular, por un lado, las condiciones a que deben sujetarse las relaciones individuales de trabajo, o lo que es lo mismo, las llamadas cláusulas normativas, que regulan la interacción que surge con motivo de la prestación del servicio del trabajador y el pago de los salarios o remuneraciones por el patrono, y esto conduce a la conclusión de que puede ser materia de una convención colectiva, todo lo que podría serlo en un contrato de trabajo individual; también, dentro de este contenido, pueden ser objeto de negociación colectiva las llamadas cláusulas de configuración, que son las que especifican el ámbito personal, temporal y espacial de la convención y entre las que se incluyen las que limitan o fijan procedimientos para el ejercicio de los derechos del empleador, en especial en lo que se refiere al poder disciplinario y al ejercicio de su derecho a la organización y la dirección. En segundo orden, las cláusulas obligacionales, que son las que crean derechos y obligaciones entre las partes y que tienen que ver, primordialmente, con la paz social y con el deber de ejecución de la convención, como la creación de las juntas de relaciones laborales, la institución de prestaciones patronales con destino a obras sociales dentro de la comunidad laboral, instalación de centros de formación, entre otros. En definitiva, las convenciones colectivas, por disposición constitucional, tienen como fin inmediato la revisión, Inter partes y con el carácter de ley, del contenido mínimo de los beneficios legales que ordenan las relaciones laborales, todo ello con el objeto de mejorar o de superar ese mínimo esencial. Asimismo, se ha admitido la posibilidad de reconocer incentivos salariales o sobresueldos, como instrumentos para incentivar la mayor calidad, permanencia, eficiencia en el servicio, lealtad e idoneidad. Sea, la Administración Pública puede otorgar determinados incentivos o beneficios a sus trabajadores, cuando éstos estén amparados en razones objetivas que busquen una mejor prestación del servicio público. Por lo demás, el contenido de las convenciones colectivas ha de someterse a las normas de mayor rango jerárquico y ha de respetar el cuadro de derechos fundamentales acogidos en nuestra Constitución Política. De esta forma, las Convenciones Colectivas de Trabajo, se encuentran sometidas al Derecho de la Constitución; así, las cláusulas convencionales, deben guardar conformidad con las normas y los principios constitucionales de igualdad, prohibición de discriminación, legalidad, razonabilidad y proporcionalidad, sobre todo, cuando de fondos públicos se trate, sujetos al principio de legalidad presupuestaria.

Ahora bien, como lo señalan los propios consultantes, el tema específico que se plantea en esta consulta ya fue analizado en el citado voto nro. 2018-019511, en que se conoció de la consulta legislativa respecto del proyecto de "Ley de Fortalecimiento de las Finanzas Publicas" (expediente legislativo nro. 20.580). Como se indicó en tal voto, en tal ocasión se alegaba:

“h) Sobre la alegada inconstitucionalidad del artículo 55, del Capítulo VII, “Disposiciones generales”, del Título III, “Modificación a la ley de salarios de la administración pública”, y del Transitorio L, del expediente 20580, por violación a los numerales 62, de la Constitución Política, y del Convenio N° 98, sobre el Derecho de Sindicación y de Negociación colectiva, de la Organización Internacional de Trabajo (OIT).

1.- Alegatos de los consultantes: Los consultantes cuestionan la constitucionalidad del ordinal 55, del Capítulo VII, “Disposiciones generales”, del Título III, “Modificación a la ley de salarios de la administración pública”, del Proyecto Legislativo 20.580, que estatuye:

“Artículo 55- Reserva de Ley en la creación de incentivos y compensaciones salariales La creación de incentivos o compensaciones, o pluses salariales sólo podrá realizarse a través de ley”.

Estiman que, de esta forma, pese a que el derecho a la negociación colectiva está contemplado en el numeral 62, de la Constitución Política, se pretende suprimir ese derecho en materia salarial, en contraposición a lo dispuesto en los incisos h), j) y m), del ordinal 690, del Código de Trabajo.

Agregan, que el carácter de ley profesional otorgado por el ordenamiento jurídico a las convenciones colectivas, consiste en que lo acordado en ellas deberá adaptarse a todos los contratos individuales o colectivos existentes, así como los que luego se celebren en las empresas, industrias o regiones que afecten, o sea, que las condiciones laborales ahí pactadas no podrán ser desmejoradas a futuro.

Asimismo, citan el numeral 4, del Convenio sobre el Derecho de Sindicación y de Negociación Colectiva, de 1949, N° 98, de la Organización Internacional de Trabajo (OIT), donde se le impone a los Estados Parte lo siguiente:

“Artículo 4 Deberán adoptarse medidas adecuadas a las condiciones nacionales, cuando ello sea necesario, para estimular y fomentar entre los empleadores y las organizaciones de empleadores, por una parte, y las organizaciones de trabajadores, por otra, el pleno desarrollo y uso de procedimientos de negociación voluntaria, con objeto de reglamentar, por medio de contratos colectivos, las condiciones de empleo”.

Así, el derecho a la negociación colectiva es ratificado en la Declaración de la OIT relativa a los principios y derechos fundamentales en el trabajo, de 1998, que declara que todos los Miembros, aun cuando no hayan ratificado los convenios aludidos, tienen un compromiso, que se deriva de su mera pertenencia a la Organización, de respetar, promover y hacer realidad, de buena fe y de conformidad con la Constitución, los principios atinentes a los derechos fundamentales objetos de esos convenios, es decir: a) la libertad de asociación y la libertad sindical y b) el reconocimiento efectivo del derecho de negociación colectiva.

También cuestionan los consultantes, la constitucionalidad del Transitorio L, del Proyecto N° 20580, que regula:

“TRANSITORIO L - A partir de la entrada en vigencia de la presente ley los jerarcas de las entidades públicas están en la obligación de denunciar las convenciones colectivas a su vencimiento En el caso en que se decida renegociar la convención, esta deberá adaptarse en todos sus extremos a lo establecido en esta Ley y demás regulaciones que dicte el Poder Ejecutivo”.

Consideran que tal obligación limita el derecho a la renegociación o a la prórroga automática en las condiciones estipuladas en el inciso e), del ordinal 58, del Código de Trabajo.

En cuyo caso, luego de hacer un análisis sobre el derecho a la negociación colectiva, sobre las convenciones colectivas en el sector público y sobre el principio de libertad sindical, a la luz de su propia jurisprudencia y de la normativa que integra al Derecho de la Constitución, se concluyó:

“(…) que el derecho a la negociación colectiva parte de la posibilidad de una negociación libre y voluntaria; y, además, de un contenido mínimo o esencial, que es la posibilidad de negociar sobre mejores condiciones socioeconómicas para los trabajadores.

2.4.- Sobre los límites y el control del contenido de las convenciones colectivas: Claro está, que dicha capacidad de negociación, no puede ser irrestricta, como esta Sala lo ha dicho en varias oportunidades, pero esa restricción no puede implicar un vaciamiento, por vía de ley, del contenido mínimo de ese derecho. Las restricciones legales que se impongan al derecho a la negociación colectiva, deben ser conformes a la Constitución Política y a los Instrumentos Internacionales relativos a la materia.

En este sentido, es que ha de entenderse lo resuelto por esta Sala en Sentencia N° 2000-004453 de las 14:56 horas del 24 de mayo de 2000, en la que se señaló:

“Sexta: No obstante lo ya expresado, es importante aclarar que aún en el sector público en el que resulta constitucionalmente posible la aplicación de la institución de las convenciones colectivas, valga decir, en las llamadas empresas o servicios económicos del Estado y en aquellos núcleos de personal de instituciones y entes públicos en los que la naturaleza de los servicios que se prestan no participan de la gestión pública, en los términos del inciso 2 del artículo 112 de la Ley General de la Administración Pública, la Sala repite y confirma su jurisprudencia en el sentido de que la autorización para negociar no puede ser irrestricta, o sea, equiparable a la situación en que se encontraría cualquier patrono particular, puesto que por esa vía, no pueden dispensarse o excepcionarse leyes, reglamentos o directrices gubernamentales vigentes, ni modificar o derogar leyes que otorgan o regulan competencias de los entes públicos, atribuidas en razón de la jerarquía normativa o de las especiales condiciones de la Administración Pública con relación a sus trabajadores, conclusión que se infiere del artículo 112 inciso 3) de la Ley General de la Administración Pública y del considerando XI de la sentencia No. 1696-92 de esta Sala”. (Ver en igual sentido las sentencias números 2000-006480, 2000-006481, 2000-006482, 2000-006483, 2000-006435, 2000-007730, 2005-006858, 2006-007261 y 2006-17436).

(…)

Así, con respecto a las convenciones del sector público, la Sala ha señalado que deben respetarse las leyes, reglamentos o directrices gubernamentales vigentes, así como las competencias legales de los entes públicos, atribuidas con fundamento en la jerarquía normativa o en las especiales condiciones de la Administración Pública en relación con sus trabajadores. Además, se deben respetar las limitaciones requeridas para armonizar el gasto público con la disponibilidad presupuestaria en aras del derecho ciudadano al sano manejo de los fondos públicos, derivado del numeral 11, Constitucional (ver Sentencia N° 2017-013443 de las 9:15 horas del 25 de agosto de 2017).

Debe entenderse, además, que la facultad de negociación está sujeta a los controles de legalidad y constitucionalidad, en atención a los principios de razonabilidad, proporcionalidad y buen uso y manejo de los fondos públicos. Entre otras, en Sentencia N° 2006-17441 de las 19:39 horas del 29 de noviembre de 2006 (antes citada), este Tribunal se pronunció al respecto, en los siguientes términos:

(…)

Pero, se debe insistir, el hecho de que existan esos controles no puede llevar a vaciar el contenido mínimo del derecho a la negociación colectiva, ni a obligar a su denuncia. Y, por ello, resulta contrario a la esencia misma de la negociación colectiva que, incluso en aquellos sectores en donde esta resulte constitucional y legalmente posible, solo a través de una ley formal, emanada del Poder Legislativo, puedan crearse incentivos o compensaciones, o pluses salariales, pues ello, conforme lo dicho, vaciaría de contenido de ese derecho y, por ende, se violaría el principio de libertad sindical, el cual ha sido desarrollado por esta Sala a través de su jurisprudencia. …

(…)

De allí que, como parte esencial de la libertad sindical -y de su contraparte la acción sindical- está el derecho de los trabajadores a la negociación colectiva, como instrumento para el mejoramiento de sus condiciones socio-económicas, a través de incentivos, compensaciones o pluses salariales. Lo que se enmarca dentro de los cuatro derechos que comprende la libertad sindical: a) libertad para constituir organizaciones sindicales; b) libertad de ingreso a una organización sindical; c) libertad para dejar de pertenecer a una organización sindical; y d) libertad del afiliado para participar democráticamente dentro del sindicato; a lo cual debe añadirse el derecho de toda organización sindical a desenvolverse libremente con respecto al Estado y en relación con la sociedad, considerada como un todo, siempre dentro del marco legal respectivo.

Lo anterior, implica, eso sí, según lo dicho, que todos esos componentes salariales acordados a través de esa válida negociación colectiva, tienen que ajustarse al principio de proporcionalidad y razonabilidad constitucional, así como al resto del ordenamiento jurídico. Pero resulta contrario al Derecho de la Constitución, en específico a la libertad sindical y al derecho a la negociación colectiva, que el legislador impida que esos extremos puedan ser pactados dentro de una negociación colectiva y solo queden reservados a la ley formal.

Por último, y en relación con el tema de la denuncia obligatoria de las convenciones colectivas que prevé el Transitorio L, del proyecto de ley consultado, la Organización Internacional del Trabajo (OIT), en el Informe N° 344, de marzo de 2007, Caso N° 2460, párrafo 990, expresó:

“990. En cuanto al fallo del tribunal en el caso Atkins, según el cual, la prohibición jurídica de la negociación colectiva es aceptable a tenor de la Constitución de los Estados Unidos porque ésta no contiene disposición alguna — incluido el derecho de libre asociación, consagrado en la Primera Enmienda — que obligue a una parte a concluir un contrato con otra, el Comité al tiempo que recuerda la importancia que concede a la obligación de negociar de buena fe para el mantenimiento de un desarrollo armonioso de las relaciones profesionales, quiere puntualizar que la negociación voluntaria de convenios colectivos y, por tanto la autonomía de los interlocutores sociales en la negociación, constituye un aspecto fundamental de los principios de la libertad sindical. La negociación colectiva, para ser eficaz, debe tener carácter voluntario y no implica el recurso a medidas de coacción que alterarían el carácter voluntario de dicha negociación. Ninguna disposición del artículo 4 del Convenio núm. 98 obliga a un gobierno a imponer coercitivamente un sistema de negociaciones colectivas a una organización determinada, intervención gubernamental que claramente alteraría el carácter de tales negociaciones [véase Recopilación, op. cit., párrafos 925-927 y 934]. Por lo tanto, si bien una disposición jurídica que obligara a una parte a concluir un contrato con otra sería contraria al principio de la negociación libre y voluntaria, disposiciones tales como los párrafos 95-98 de los NCGS, que prohíben a las autoridades públicas y los empleados públicos, incluidos aquellos que no participan en la administración del estado, concluir un acuerdo, incluso si quieren hacerlo, es igualmente contrario a dicho principio”.

Con lo cual es claro que, según lo ha definido la OIT, una disposición jurídica que obligara a una parte a concluir un convenio colectivo con otra sería contraria al principio de la negociación libre y voluntaria.

En síntesis, una disposición que obligue a denunciar las convenciones colectivas y, por otro lado, que impida, por medio de estas, lograr mejorar las condiciones, sin modulación de ningún tipo, resultaría contraria al Derecho de la Constitución; de manera, que el legislador no podría, de antemano, restringir la posibilidad de celebrar convenciones colectivas entre patronos y trabajadores, en el sector público en el que resulta constitucionalmente posible la aplicación de esta institución, sin violar la libertad sindical.

En consecuencia, debe entenderse, que el artículo 55, de la Ley N° 2166 (Ley de Salarios de la Administración Pública), tal como lo adiciona el proyecto consultado, no es inconstitucional, siempre y cuando se entienda que no se aplica a los empleados del Sector Público que válidamente puedan celebrar convenciones colectivas de acuerdo con la Constitución y la ley; sin perjuicio de los controles de legalidad y de constitucionalidad sobre el resultado de la negociación, en atención a los principios de razonabilidad, proporcionalidad y el buen uso y manejo de los fondos públicos. De igual forma, en relación con el Transitorio L, del proyecto consultado, debe interpretarse que cada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente.” 4) Conclusión A la luz de la jurisprudencia de la Sala y, muy en específico, del citado voto nro. 2018-019511, se puede concluir que las normas consultadas:

a.- El artículo 43 no contiene vicios de constitucionalidad, en el tanto las nuevas obligaciones o derechos obtenidos al alcance de la negociación colectiva se ajusten a los principios de razonabilidad, proporcionalidad y legalidad presupuestaria, al amparo de la jurisprudencia constitucional, y siempre y cuando se trate de convenciones colectivas donde participen los empleados del Sector Público que válidamente puedan celebrar convenciones colectivas de acuerdo con la Constitución y la ley.

b.- El Transitorio XV referido a la denuncia de las convenciones colectivas, no resulta inconstitucional siempre y cuando se interprete en el mismo sentido que se indicó en el voto número 2018-019511 de las 21:45 horas del 23 de noviembre del 2018, es decir, en aplicación de la Constitución Política (artículos 62 y 74), los Convenios Internacionales de la Organización Internacional del Trabajo y la jurisprudencia de este Tribunal, deberá interpretarse que cada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente.

• 5)Razones diferentes a) Razones diferentes del magistrado Rueda Leal sobre el ordinal 43 y el Transitorio XV del proyecto.

Concerniente al numeral 43 y partiendo de que se trate del sector público que puede válidamente efectuar una negociación colectiva, estimo que no existen roces de constitucionalidad, por cuanto únicamente establece límites parciales a la negociación colectiva, que están íntimamente vinculados con el principio de equilibrio presupuestario. En mi criterio, el ámbito de aplicación de la negociación colectiva incluye una variedad de temas que va más allá de los límites de ese artículo, cuya negociación permanecería invariable con la eventual entrada en vigor de este proyecto de ley, por ejemplo, aquellas relacionados con la configuración del trabajo, régimen disciplinario, organizaciones sindicales, entre otros. El hecho de que una ley venga a regular las materias objeto de negociación colectiva no solo es acorde a la Constitución, sino prescrito por ella, tal como expliqué en mis razones diferentes consignadas en la sentencia n.° 2018-019511:

“Tras analizar los reclamos, considero que el punto de partida del análisis de constitucionalidad debe ser, precisamente, nuestra Constitución Política. En materia de negociación colectiva, su ordinal 62 reza:

“ARTÍCULO 62.- Tendrán fuerza de ley las convenciones colectivas de trabajo que, con arreglo a la ley, se concierten entre patronos o sindicatos de patronos y sindicatos de trabajadores legalmente organizados.” Tomando como base los reclamos externados y las normas transcritas, acoto que la labor del juez constitucional es examinar si los tres textos transcritos son conciliables. Únicamente en caso de ser inviable una lectura constitucional del ordinal 55, procedería su declaratoria de inconstitucionalidad.

Lo primero que observo es que el artículo 4 del Convenio impone la obligación de adoptar “…medidas adecuadas a las condiciones nacionales, cuando ello sea necesario, para estimular y fomentar…” (el subrayado es agregado) las negociaciones colectivas.

Dos puntos sobresalen de su literalidad. Por un lado, se trata de medidas para estimular y fomentar la negociación colectiva. Es decir, la regulación no delega la definición de todos los elementos del contrato laboral en la negociación colectiva; tampoco se observa que ella límite la potestad configurativa del legislador en la materia, ya de por sí garantizada por el artículo 62 constitucional, como se verá de seguido.

Más importante aún es el segundo punto. El mencionado ordinal 4 remite a las “condiciones nacionales”, a fin de determinar las medidas a tomar por parte del Estado. Un elemento básico de tales requerimientos es el ordenamiento jurídico doméstico e, ineludiblemente, la Constitución Política. Esta remisión obliga a revisar el texto del numeral 62 de nuestra Carta Magna, transcrito supra. Entre sus regulaciones, se nota la fuerza de ley que otorga a las convenciones colectivas y la definición de las partes de la negociación colectiva. A los efectos del sub examine, debe subrayarse que nuestra Constitución, de forma expresa, descansa la regulación de la negociación colectiva en una norma legal, toda vez que la fuerza de ley de la convención colectiva está condicionada a que ella sea concertada “…con arreglo a la ley…”. Este precepto no solo estatuye la obligación de acatar la ley al momento de negociar una convención colectiva, sino que instaura el deber de legislar en la materia, a fin de establecer un marco legal que regule la negociación colectiva.” Con respecto al transitorio XV, dada su redacción, resultan aplicables las consideraciones que expresé en el citado voto n.° 2018-019511, al analizar una disposición transitoria idéntica:

“Los consultantes cuestionan la constitucionalidad del transitorio L del proyecto 20.580, que indica:

“TRANSITORIO L - A partir de la entrada en vigencia de la presente ley los jerarcas de las entidades públicas están en la obligación de denunciar las convenciones colectivas a su vencimiento.

En el caso en que se decida renegociar la convención, esta deberá adaptarse en todos sus extremos a lo establecido en esta Ley y demás regulaciones que dicte el Poder Ejecutivo." Consideran que tal obligación limita el derecho a la renegociación o a la prórroga automática en las condiciones estipuladas en el inciso e) del artículo 58 del Código de Trabajo.

Tras analizar el escrito de interposición, observo que la fundamentación brindada por la parte se refiere únicamente a la aparente oposición de la disposición cuestionada con el citado numeral del Código de Trabajo. Tal conflicto normativo es una cuestión de mera legalidad, ajeno a las competencias de esta Sala.

Por otro lado, descarto que la simple mención de una alegada infracción al artículo 62 constitucional sea suficiente para satisfacer los requisitos de una consulta legislativa. Tal como exige el numeral 99 de la Ley de la Jurisdicción Constitucional, la consulta facultativa debe efectuarse en un “memorial razonado”, situación que la diferencia de la consulta preceptiva. Así, los gestionantes tienen el deber de manifestar de forma clara los motivos de la supuesta infracción constitucional, como ha indicado la Sala en otras ocasiones:

“Al respecto, la Sala Constitucional, al desarrollar los alcances de esa norma, por medio de la sentencia No. 5544-95 de las 15:00 hrs. de 11 de octubre de 1995, expresó:

“En cuanto la consulta se refiere al artículo 28 del Proyecto por no formularse razonadamente, "con expresión de los aspectos cuestionados del proyecto, así como de los motivos por los cuales se tuvieren dudas u objeciones sobre su constitucionalidad" (art. 99 de la Ley de la Jurisdicción Constitucional), ya que los consultantes simplemente señalan el tema consultado, prescindiendo de realizar algún tipo de argumento de constitucionalidad, no procede evacuar la consulta. Así lo ha resuelto reiteradamente la jurisprudencia constitucional y por ese motivo en cuanto a este aspecto se refiere, no ha lugar a evacuar la consulta formulada (Vid. Opinión Consultiva Nº 5399-95, relacionada con la Consulta Nº 4773-95 y resolución interlocutoria posterior, Nº 501-I-95)”.

Independientemente de lo anterior, un análisis prima facie de la norma –límite impuesto dada la ausencia de fundamentación en el escrito de interposición- no permite visualizar su inconstitucionalidad. Resalto que se trata de una regulación transitoria y de aplicación limitada a las convenciones colectivas donde figura el Estado como parte patronal. Enfatizo este hecho toda vez que considero que la obligación impuesta por dicha disposición tiene la finalidad de ajustar las convenciones colectivas al marco legal que entraría en vigor con el proyecto impugnado. De ahí que la posible renegociación de la convención conlleve que ella sea adaptada “…en todos sus extremos a lo establecido en esta Ley y demás regulaciones que dicte el Poder Ejecutivo.” Asimismo, aclaro y subrayo que tal artículo no significa la suspensión, derogación o anulación de convenciones colectivas o sus disposiciones, ni impone una restricción a sus efectos que sea diferente de la vigencia temporal que había sido previamente pactada por las partes.

Ahora bien, debe recordarse que la Constitución Política establece un requisito básico para las convenciones colectivas y es que ellas sean concertadas “…con arreglo a la ley…”. Así, queda claro que el contenido y la forma de una convención colectiva quedan sometidos a la ley, por mandato constitucional. Ergo, no es inconstitucional que una norma –como la impugnada- busque que las convenciones colectivas respeten la ley. Nótese asimismo que ella no deroga ni vacía el contenido del artículo inciso e) del artículo 58 del Código de Trabajo, dejando intacta la posibilidad de renegociar la convención colectiva.” b) Razones diferentes de la magistrada Garro Vargas en relación con la constitucionalidad del artículo 43 La suscrita magistrada considera que el art. 43 del proyecto de ley sometido a consulta es en sí mismo constitucional, sin necesidad de realizar ninguna interpretación en los términos en los que lo propone la mayoría de este Tribunal.

En efecto, la mayoría afirma que dicho numeral no es inconstitucional “en el tanto las nuevas obligaciones o derechos obtenidos al alcance de la negociación colectiva se ajusten a los principios de razonabilidad, proporcionalidad y legalidad presupuestaria”. No obstante, el propio texto de la norma consultada así lo dispone expresamente en su párrafo segundo, al afirmar que “Las condiciones que se pacten en los instrumentos de negociación colectiva deberán respetar los principios constitucionales de razonabilidad, proporcionalidad, legalidad, igualdad y legalidad presupuestaria”. Por lo tanto, del simple cotejo de la norma se aprecia que esta ya contempla, en sí misma, sin necesidad de interpretación alguna, lo considerado por la mayoría de la Sala.

Adicionalmente, estimo que la norma en cuestión se debe examinar a la luz de los objetivos del marco regulatorio general que está proponiendo el legislador para todo el sector público. Uno de los principales propósitos buscados por el Poder Legislativo es introducir una serie de disposiciones sobre el salario global como un sistema de remuneración que aspira al reconocimiento salarial equitativo y trasparente, evitando ciertos mecanismos que distorsionen el presupuesto nacional. Al respecto, se puede consultar la exposición de motivos del proyecto de ley que, atendiendo a las recomendaciones y principios generales de la Organización para la Cooperación y el Desarrollo Económicos (OCDE) y de la Contraloría General de la República (CGR), hace énfasis en las siguientes ideas:

“La evaluación de gobernanza pública realizada por la OCDE en el 2015, recomendó al país migrar gradualmente hacia un esquema de salario único para nuevos funcionarios, así como también, incorporar incentivos no monetarios, con la finalidad de buscar otros mecanismos de motivación, tal como se muestra en el siguiente extracto el Estudio de Gobernanza Pública Costa Rica:

‘Evolucionar hacia un sistema de compensación más transparente y sostenible basado en el desempeño incluyendo incentivos no monetarios. El sistema actual de compensación puede ser simplificado iniciando una transición gradual hacia un sistema de “salario único”, o sea una amalgamación del salario base y bonificaciones y remuneraciones. Cualquier pago adicional sobre el salario base debe ser universal y hacerse de la manera más transparente y simple posible’ (…).

Recomendaciones de la CGR en el tema de remuneraciones:

En diferentes oportunidades, la Contraloría General de la República ha llamado la atención sobre la necesidad de revisar el esquema de remuneraciones, principalmente de aquellos incentivos salariales que generan disparidades entre los mismos tipos de puesto, como es el caso de las anualidades. En el estudio Retos para la modernización del esquema remunerativo en los ministerios de Gobierno DFOE-SAF-OS-00001-2018, la CGR reveló que hay un conjunto de principios marco que deben regir la gestión de las remuneraciones en el sector público, tales como el pago de un salario igual en condiciones iguales y pagar un salario distinto si existen diferencias, tal y como lo establece el artículo 57 de la Constitución Política (…).

Adicionalmente, se acogen las recomendaciones de la Contraloría General de la República y la Organización para el Desarrollo y la Cooperación Económica, las cuales van en la línea de reducir las distorsiones salariales tanto verticales como horizontales, mediante la introducción del salario global para las nuevas personas servidoras públicas, así como aquellas que opten por trasladarse, y para los jerarcas institucionales”. (Lo destacado no corresponde al original).

Se acredita, de este modo, que el proyecto de ley pretende reducir las inequidades salariales en el empleo público a través de la introducción de la figura del “salario global” y, paralelamente, evitar ciertos incentivos salariales que, en el fondo, se consideran como mecanismos distorsionadores que, a la postre, impactan en el presupuesto nacional.

En mi criterio, el sistema de pago que se pretende implementar, denominado “salario global”, no está ni implícita ni explícitamente contemplada en la Constitución Política. Es decir, no está exigido, pero tampoco vedado por esta. Si la ley se decanta por este mecanismo de pago, bajo las premisas y propósitos ya examinados, perfectamente puede constituirse en un límite a la negociación colectiva. En otras palabras, si el legislador entiende que debe existir un marco normativo que establezca postulados rectores que orienten la gestión de la compensación, no resultaría conforme que, a través de negociaciones colectivas, se deje sin efecto todo este esfuerzo regulatorio y de planificación en la metodología de remuneración de los servidores públicos. Por lo tanto, debe entenderse legítimo que, en la negociación colectiva, se restrinja la posibilidad de “generar nuevas obligaciones o derechos” relacionados con salarios o remuneraciones, creación de incentivos, compensaciones o pluses salariales, erogaciones adicionales de recursos que afecten el presupuesto nacional o la creación de nuevas plazas.

Debe tomarse en cuenta que el art. 62 de la Constitución Política establece expresamente:

“Tendrán fuerza de ley las convenciones colectivas de trabajo que, con arreglo a la ley, se concierten entre patronos o sindicatos de patronos y sindicatos de trabajadores legalmente organizados”.

De la propia norma constitucional se desprende que si bien las convenciones colectivas tienen fuerza de ley entre las partes, estas deben negociarse y concertarse “con arreglo a la ley”. De la anterior premisa se deriva que lo lógico es entonces que la negociación y suscripción de las convenciones colectivas debe realizarse en correspondencia con la legislación nacional. Es decir, pese a que tienen rango de ley, no están por encima de los postulados legales. Por lo tanto, para entenderlas legítimas, estas negociaciones deben ser suscritas al amparo del marco legal aplicable y en sujeción a este.

En este orden de ideas si, por unanimidad, la Sala encuentra que no hay vicio de constitucionalidad en el hecho de que se pretenda que la compensación de los empleados públicos migre hacia el concepto de “salario global”, con el expreso propósito del legislador de evitar distorsiones en el gasto público, resulta conforme y lógico que se introduzcan los límites señalados en la negociación colectiva, para que justamente se apliquen las nuevas reglas de contención en el pago de los salarios del sector público.

De lo contrario, a través de las convenciones colectivas –y concretamente de disposiciones que incidan directamente en el pago de salarios–, se podría ver frustrado uno de los fines del proyecto de ley. Por eso es lógico que se introduzcan estas medidas que responden a un objetivo nuclear del proyecto, sea, transitar hacia un esquema de salario único que evite las disparidades irrazonables y desproporcionadas en el pago de remuneraciones, en perjuicio de las finanzas públicas.

A la luz de las consideraciones esbozadas, considero que el art. 43 del proyecto de ley no es inconstitucional, sino que introduce limitaciones razonables y acotadas, que son congruentes y necesarias para dar cumplimiento al propósito pretendido por el legislador, en lo que a las remuneraciones se refiere. Y, como he dicho, la sujeción de las convenciones colectivas a la ley es parte del diseño constitucional.

• c)Razones diferentes de la magistrada Picado Brenes, sobre el artículo 43 del proyecto en cuanto a las convenciones colectivas (punto 55 del Por Tanto) La mayoría de la Sala ha considerado que el artículo 43 del proyecto de Ley de Empleo Público, no contiene vicios de constitucionalidad en el tanto, las nuevas obligaciones o derechos obtenidos al alcance de la negociación colectiva, se ajusten a los principios de razonabilidad, proporcionalidad y legalidad presupuestaria, a la jurisprudencia constitucional, y a que los empleados del Sector Público que participan, válidamente puedan celebrar convenciones colectivas de acuerdo con la Constitución y la ley.

Es necesario aclarar aún más la lectura que se da a la norma, pues la misma podría lesionar el contenido mínimo del derecho fundamental a la negociación colectiva, por cuanto según se desprende de la lectura del artículo 43 se prohíbe, “generar nuevas obligaciones o derechos, o variar condiciones laborales” referentes a “salarios o remuneraciones y variar o modificar lo referente a la escala salarial o componentes de la columna salarial global”, la “creación de incentivos, compensaciones o pluses salariales”, “normas de carácter prohibitivo contenidas en la presente ley” (p. ej.: vacaciones) y “la creación de nuevas plazas”. Debe tenerse presente que la libertad de negociación entre las partes -que es un rasgo característico y distintivo del derecho a la negociación colectiva laboral- como instrumento para el mejoramiento de las condiciones socio-económicas de los trabajadores, conlleva la posibilidad de la Administración, de otorgar determinados incentivos salariales, compensaciones o beneficios a sus trabajadores, ya que ello puede constituir una medida idónea para remunerar una exigencia especial del puesto de trabajo, que implique determinadas calificaciones profesionales o habilidades a quienes lo desempeñen, o bien para compensar un riesgo particular que caracteriza el desempeño de tales funciones, sea un riesgo material (por ejemplo, labores físicamente peligrosas) o uno de carácter legal, todo ello, siempre y cuando estén amparados en razones objetivas que conlleven una mejor prestación del servicio público.

En el caso concreto de Costa Rica, los beneficios y derechos contenidos en el Código de Trabajo, constituyen un mínimo que se les debe otorgar a los trabajadores pero, a partir de ahí, nada impide a los empleadores -aun cuando sean del sector público, que realicen negociaciones que permitan superar esos mínimos en atención a situaciones especiales como las recién descritas. Sobre el particular, este Tribunal Constitucional ha enfatizado que resulta contrario al Derecho de la Constitución, en específico a la libertad sindical y al derecho a la negociación colectiva, que el legislador impida que esos extremos puedan ser pactados dentro de una negociación colectiva y que solo queden reservados a la ley formal, pudiendo citarse como ejemplo la sentencia n°2018-019511 de las 21:45 horas del 23 de noviembre de 2018 en la que se indicó que era inconstitucional, por resultar “contrario a la esencia misma de la negociación colectiva que, incluso en aquellos sectores en donde esta resulte constitucional y legalmente posible, solo a través de una ley formal, emanada del Poder Legislativo, puedan crearse incentivos o compensaciones, o pluses salariales, pues ello, conforme lo dicho, vaciaría de contenido de ese derecho y, por ende, se violaría el principio de libertad sindical”. Así las cosas, ha reconocido esta Sala en su jurisprudencia, que tales aspectos -incentivos, pluses, etc.-constituyen dentro de los respectivos límites de razonabilidad, proporcionalidad y debido resguardo de los fondos públicos, elementos que efectivamente se pueden incluir en una negociación colectiva. Las convenciones colectivas gozan de reconocimiento constitucional en el artículo 62 de la Constitución Política, así como también constituyen instrumentos que persiguen hacer realidad y dar solución a la necesidad de los trabajadores de agruparse para compensar la inferioridad real en que se encuentran cuando actúan aislados, frente al patrono y ante la genérica regulación o inclusive omisión de sus derechos, en el Código de Trabajo.

En este punto interesa destacar que ha sido la propia Sala Constitucional la que, en la sentencia n°2020-12800 de las 11:01 horas del 8 de julio de 2020, destacó los tres aspectos que se derivan del artículo 62 constitucional, a saber:

• a)el reconocimiento de la negociación colectiva como un derecho constitucional; b) que las negociaciones así concertadas tienen carácter de fuerza de ley; y c) que tales convenciones deben ser acordadas conforme lo disponga la ley.

Igualmente debe decirse que esos elementos, también han sido ratificados por la Corte Interamericana de Derechos Humanos, mediante Opinión Consultiva OC-27/21 del 05 de mayo del 2021, cuando indicó lo siguiente:

“94. En consideración a lo antes mencionado, y a manera de corolario, la Corte considera pertinente señalar que el derecho a la negociación colectiva, como parte esencial de la libertad sindical, está compuesto de diversos elementos, que incluyen, como mínimo: a) el principio de no discriminación del trabajador o trabajadora en ejercicio de la actividad sindical, pues la garantía de igualdad es un elemento previo para una negociación entre empleadores y empleadoras, y trabajadores y trabajadoras; b) la no injerencia directa o indirecta de los empleadores en los sindicatos de trabajadores y trabajadoras en las etapas de constitución, funcionamiento y administración, pues puede producir desbalances en la negociación que atentan en contra del objetivo de los trabajadores y las trabajadoras de mejorar sus condiciones de vida y de trabajo mediante negociaciones colectivas y por otros medios lícitos; y c) el estímulo progresivo a procesos de negociación voluntaria entre empleadores y empleadoras, y trabajadores y trabajadoras, que permitan mejorar, a través de contratos colectivos, las condiciones del empleo.” Dada la relevancia que la materia ha tenido en Costa Rica, es de interés señalar que, en lo que respecta al contenido de la negociación colectiva laboral, la Sala se ha referido a las llamadas clausulas normativas (regulan la interacción que surge con motivo de la prestación del servicio del trabajador y el pago de los salarios o remuneraciones por el patrono), las cláusulas de configuración (especifican el ámbito personal, temporal y espacial de la convención y entre las que se incluyen el poder disciplinario del empleador y al ejercicio de su derecho a la organización y la dirección) y las cláusulas obligacionales (crean derechos y obligaciones entre las partes y que tienen que ver, primordialmente, con la paz social y con el deber de ejecución de la convención, como la creación de las juntas de relaciones laborales, instalación de centros de formación), y ha manifestado que:

“Dentro de la especialidad de la materia, las partes solo pueden convenir, válidamente, sobre lo que jurídicamente puedan cumplir, en razón de la naturaleza contractual del convenio colectivo y como tesis de principio se admite que su ámbito sean las condiciones de trabajo o laborales, sin que pueda extenderse ese fin a normar cuestiones extra laborales. En otras palabras, la convención colectiva tiene como objeto regular, por un lado, las condiciones a que deben sujetarse las relaciones individuales de trabajo, o lo que es lo mismo, las llamadas cláusulas normativas, que regulan la interacción que surge con motivo de la prestación del servicio del trabajador y el pago de los salarios o remuneraciones por el patrono, como lo afirma la mayoría de la doctrina del Derecho laboral y esto conduce a la conclusión de que puede ser materia de una convención colectiva, todo lo que podría serlo en un contrato de trabajo individual; también, dentro de este contenido, pueden ser objeto de negociación colectiva las llamadas cláusulas de configuración, que son las que especifican el ámbito personal, temporal y espacial de la convención y entre las que se incluyen las que limitan o fijan procedimientos para el ejercicio de los derechos del empleador, en especial en lo que se refiere al poder disciplinario y al ejercicio de su derecho a la organización y la dirección. En segundo orden, las cláusulas obligacionales, que son las que crean derechos y obligaciones entre las partes y que tienen que ver, primordialmente, con la paz social y con el deber de ejecución de la convención, como la creación de las juntas de relaciones laborales, la institución de prestaciones patronales con destino a obras sociales dentro de la comunidad laboral, instalación de centros de formación, entre otros. A manera de síntesis, diremos que las convenciones colectivas, por disposición constitucional, tienen como fin inmediato la revisión, inter partes y con el carácter de ley, del contenido mínimo de los beneficios legales que ordenan las relaciones laborales, todo ello con el objeto de mejorar o de superar ese mínimo esencial.” (ver sentencia n°2007-18485 de las 18:02 horas del 19 de diciembre de 2007).

Sobre este mismo tema, en la sentencia n° 2020-12800 de las 11:01 horas del 8 de julio de 2020, la Sala estimó que se puede reconocer un mayor derecho al que reconoce la ley:

“De igual manera, tampoco es dable aducir, que mediante una negociación colectiva se pueda reconocer mayores derechos a las partes, lo cual ciertamente es así, pero debe señalarse que se trata de mayores concesiones sobre derechos válida y legítimamente reconocidos, lo cual, no es el caso de limitar la libre negociación de alguna de las partes involucradas. Dicho de otro modo, una convención colectiva puede reconocer un mayor derecho al que reconoce la ley, pero no puede limitarlo. Y, en todo caso, aquel mayor reconocimiento, de conformidad con lo dicho en el anterior considerando, igualmente deberá sujetarse al Derecho de la Constitución, para lograr así la armonía jurídica de la cual depender un ordenamiento.” (el destacado no es del original).

Por su parte, en la sentencia n° 2008-003935 de las 14:48 horas del 12 de marzo de 2008, la Sala señaló que los entes de la Administración Pública pueden otorgar determinados incentivos o beneficios a sus trabajadores, los cuales serán válidos constitucionalmente únicamente cuando estén amparados en razones objetivas que se traduzcan, además, en una mejor prestación del servicio público:

“En otras palabras, esta Sala no ha cuestionado que cualquier ente de la Administración Pública pueda reconocer determinados incentivos o beneficios a sus trabajadores, ya que ello puede constituir una medida idónea para remunerar una exigencia especial del puesto de trabajo, que implique determinadas calificaciones profesionales o habilidades a quienes lo desempeñen, o bien para compensar un riesgo particular que caracteriza el desempeño de tales funciones, sea un riesgo material (por ejemplo, labores físicamente peligrosas) o uno de carácter legal (por ejemplo, trabajo susceptible de generar responsabilidad civil).” No obstante lo anterior, también es de justicia mencionar que si bien se reconoce el derecho a la negociación colectiva en el sector público a través del cual pueden otorgarse o reconocerse derechos o beneficios con mayor amplitud a lo legalmente predefinido, también existen límites a dichas negociaciones, en cuanto deben congeniarse con el ejercicio de las competencias legales de los entes públicos, y respetar las limitaciones necesarias para armonizar el gasto público con la disponibilidad presupuestaria y el sano manejo de los fondos públicos y, en ese sentido, la Sala se ha referido a que los límites de la negociación colectiva son los principios constitucionales de razonabilidad, proporcionalidad, economía y eficiencia, y la ley:

“Se ha indicado, además, que sin demérito alguno de que la negociación colectiva sea un derecho reconocido constitucionalmente y por instrumentos internacionales de la Organización Internacional del Trabajo, lo cierto es que su contenido se encuentra también subordinado a las normas y principios constitucionales, en el tanto las decisiones que ahí se tomen, en cantidad de casos implican consecuencias para las finanzas públicas. Dentro de este contexto, su adopción y validez no queda únicamente sujeta a la mera verificación del procedimiento de adopción, sino también a un análisis de fondo, en la medida que su contenido debe ajustarse a las normas y principios constitucionales por tratarse de fondos públicos. De este modo, las obligaciones pactadas por las instituciones públicas para con sus empleados, como ocurre en este tipo de negociación, pueden ser objeto del análisis de razonabilidad, economía y eficiencia, con el objeto de evitar que a través de una convención colectiva desproporcionadamente sean limitados o lesionados los derechos de los propios trabajadores, o para impedir que se haga un uso abusivo de fondos públicos” (ver sentencia N°2021-009580 de las 9:15 horas del 12 de mayo de 2021).

Este recuento de la jurisprudencia de la Sala sobre las convenciones colectivas ilustra temas sobre los cuales se ha pronunciado, aclarando con ello hasta dónde es posible la negociación colectiva y los términos de las mismas; dejando claro, además, que la negociación colectiva debe analizarse a la luz de la razonabilidad, proporcionalidad, economía y eficiencia.

Teniendo claro lo expuesto y después de efectuar una lectura pausada del artículo 43 del proyecto de Ley consultado puedo concluir que en realidad no se está prohibiendo la negociación colectiva aún en aspectos monetarios, a pesar del enunciado del párrafo primero. Se debe observar en detalle que del párrafo segundo del artículo 43 se desprende que es posible la negociación colectiva pero ajustada a los principios constitucionales de razonabilidad, proporcionalidad, legalidad, igualdad y legalidad presupuestaria; parámetros todos plasmados en los precedente jurisprudenciales antes citados. Por otro lado el párrafo tercero del artículo 43 indica que la negociación puede ser en aspectos de carácter monetario, pues expresamente indica la posibilidad de que la negociación tenga una afectación del principio de legalidad presupuestaria y requieran aprobación legislativa o reglamentaria, haciendo referencia a la necesidad de incluir lo pactado en la ley de presupuesto o en los reglamentos respectivos, así como la aprobación por parte de la Contraloría General de la República, cuando afecte los presupuestos de las instituciones. Me pregunto ¿Cómo se podría afectar el presupuesto de una institución si la negociación no trata de algún aspecto económico relacionado con el salario, incentivos, pluses, etc? Aunque la redacción de la norma es confusa debo rescatar que la misma lo que trata es dejar claro las condiciones que deben darse para que una negociación en el tema económico sea posible. Al darle esta lectura al artículo 43 considero que el mismo no es inconstitucional. Sin embargo, debo enfatizar en que se trata de una norma confusa que podría presentar problemas en su aplicación.

Pueden surgir situaciones discriminatorias, tal como la que podría generarse entre las personas servidoras públicas que serán sometidas al nuevo sistema de empleo público -como por ejemplo las de primer ingreso-, frente a aquéllas otras que sí podrían continuar recibiendo algunos beneficios derivados de convenciones colectivas que quedaren vigentes. Esta situación implica una evidente contradicción pues, si el objetivo del proyecto de Ley es unificar las condiciones laborales de todos los trabajadores incluidos en este nuevo sistema de empleo público, normas como la que se estudia -incluida en el mismo proyecto de Ley- estaría creando diferencias y posibles discriminaciones entre los servidores públicos, lo cual indiscutiblemente atentaría contra el principio de igualdad y no discriminación tutelado en el artículo 33 constitucional.

En atención a lo dicho, en caso de permanecer la redacción de la norma en iguales términos, su contenido deberá ser interpretado a la luz de lo dispuesto en el artículo 62 constitucional y de la jurisprudencia sentada por este Tribunal, de manera tal que no se estaría prohibiendo la realización de negociaciones colectivas, sino que más bien, lo no permitido sería que se efectúen bajo criterios que no respeten la proporcionalidad, la razonabilidad y el contenido de la Constitución y de la Ley.

• d)Razones diferentes de la magistrada Garro Vargas en relación con la constitucionalidad del Transitorio XV Me separo de lo resuelto por la mayoría de la Sala para evacuar la consulta legislativa en el sentido de que el transitorio XV del proyecto de ley es en sí mismo constitucional. La norma consultada dispone lo siguiente:

“A partir de la entrada en vigencia de la presente ley, los jerarcas de las entidades públicas están en la obligación de denunciar las convenciones colectivas a su vencimiento”.

La mayoría de la Sala propone evacuar la consulta en el sentido de que la norma no es inconstitucional “siempre y cuando se interprete en el mismo sentido que se indicó en el voto número 2018-019511 de las 21:45 horas del 23 de noviembre del 2018, es decir, en aplicación de la Constitución Política (artículos 62 y 74), los Convenios Internacionales de la Organización Internacional del Trabajo y la jurisprudencia de este Tribunal, deberá interpretarse que cada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente”. Es decir, de entrada, la mayoría de la Sala está trastocando el contenido de la disposición consultada, pues afirma que la denuncia de la convención colectiva es potestativa; mientras que el propósito del proyecto de ley es que, al “vencimiento” de la convención colectiva correspondiente, el jerarca “está en la obligación de denunciar”. Lo anterior implica que la convención colectiva válidamente negociada por las partes debe mantener su vigencia originalmente pactada, pero, una vez concluido el plazo, los jerarcas están en la obligación de presentar la denuncia correspondiente. Esto con la finalidad de que luego se pueda pactar una nueva convención, pero al amparo de la legislación que se está aprobando y, por lo tanto, se tomen en cuenta las normas que procuran restringir los elementos que provocan distorsiones en el pago de salarios en el sector público (ver consideraciones relacionadas con la constitucionalidad del art. 43 del proyecto).

Es preciso aclarar que la situación planteada en el proyecto de ley bajo examen difiere de lo resuelto por este Tribunal en la sentencia n.°2018-019511 —en la que participé?, por cuanto en dicha resolución se examinó la constitucionalidad de una disposición que, por el contrario, limitaba o restringía la posibilidad de las partes de denunciar la convención colectiva negociada. Es decir, la norma que se declaró inconstitucional pretendía imponer la obligación a las partes de no denunciar la convención colectiva. Esto implicaba, por lo tanto, una especie de eternización de los términos negociados. Por tal motivo, lo que afirmo en esta ocasión no contradice lo resuelto en aquella oportunidad, en la que, a la luz de lo dispuesto en los arts. 62 y 74 de la Constitución Política, se resolvió que la norma era inconstitucional al “contempla[r] de manera indebida, una obligación de abstenerse de ejercer un derecho que se reconoce por la norma de orden público que rige el sistema de negociación colectiva”. Asimismo, en dicha resolución se cita, a manera de referencia, lo resuelto en la opinión consultiva n.°2018-19511 y algunas consideraciones de la Organización Internacional del Trabajo (OIT) en las que se indica que “una disposición jurídica que obligara a una parte a concluir un contrato con otra sería contraria al principio de la negociación libre y voluntaria”. Al respecto, debo precisar que no participé de la referida opinión consultiva, pero, además, estimo que la consideración realizada no se ajusta al caso que ahora se nos somete a examen. En efecto, las apreciaciones de la OIT hacen referencia a una medida que, de forma anticipada, pone fin a una negociación colectiva. Mientras que en el caso concreto se trata de un escenario distinto. Se procura respetar el término original de la negociación, sin que de forma anticipada se demande su denuncia. Por el contrario, se respeta el término pactado y al “vencimiento” se exige la denuncia. Desde mi punto de vista, tal supuesto no coincide con el caso examinado por la OIT, pues no se está obligando a la terminación anticipada de la convención y no infringe los términos pactados en este. Sólo indica que, una vez culminado el plazo de vigencia, se procuren llevar a cabo los reajustes correspondientes “con arreglo” a lo dispuesto en la ley (tal como lo indica el art. 62 de la Constitución Política) y una de estas, concretamente, sería la nueva ley de empleo público que se intenta aprobar.

En definitiva, se trata de una disposición transitoria que reconoce el valor jurídico de las convenciones colectivas ya pactadas de conformidad con la legislación vigente, pero plantea una solución jurídica para ajustar las sucesivas convenciones a las nuevas disposiciones legales, que pretenden evitar las distorsiones salariales que impactan en los presupuestos públicos.

En consecuencia, me aparto de las consideraciones realizadas por la mayoría de esta Sala y, con fundamento en las razones aquí explicadas, evacuo la consulta en el sentido de que la norma transitoria consultada no es lesiva del Derecho de la Constitución.

• e)Razones diferentes de la magistrada Picado Brenes, sobre el Transitorio XV del proyecto en cuanto a la denuncia de las convenciones colectivas (punto 56 del Por Tanto) He concurrido con el voto unánime de la Sala que ha considerado que el Transitorio XV del proyecto de Ley de Empleo Público, no resulta inconstitucional siempre y cuando se interprete en aplicación de la Constitución Política (artículos 62 y 74), los Convenios Internacionales de la Organización Internacional del Trabajo y la jurisprudencia de este Tribunal, de modo tal que deberá entenderse que cada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente.

En relación con este tema de la denuncia de las convenciones colectivas, interesa recordar que la Sala Constitucional en la sentencia n°2018-019511 de las 21:45 horas del 23 de noviembre de 2018, señaló que no se puede obligar a realizar una denuncia de una convención colectiva porque ello resulta contrario a la esencia misma de la negociación colectiva, y manifestó la Sala que:

“(…)

Por último, y en relación con el tema de la denuncia obligatoria de las convenciones colectivas que prevé el Transitorio L, del proyecto de ley consultado, la Organización Internacional del Trabajo (OIT), en el Informe N° 344, de marzo de 2007, Caso N° 2460, párrafo 990, expresó:

"990. En cuanto al fallo del tribunal en el caso Atkins, según el cual, la prohibición jurídica de la negociación colectiva es aceptable a tenor de la Constitución de los Estados Unidos porque ésta no contiene disposición alguna incluido el derecho de libre asociación, consagrado en la Primera Enmienda que obligue a una parte a concluir un contrato con otra, el Comité al tiempo que recuerda la importancia que concede a la obligación de negociar de buena fe para el mantenimiento de un desarrollo armonioso de las relaciones profesionales, quiere puntualizar que la negociación voluntaria de convenios colectivos y, por tanto la autonomía de los interlocutores sociales en la negociación, constituye un aspecto fundamental de los principios de la libertad sindical. La negociación colectiva, para ser eficaz, debe tener carácter voluntario y no implica el recurso a medidas de coacción que alterarían el carácter voluntario de dicha negociación. Ninguna disposición del artículo 4 del Convenio núm. 98 obliga a un gobierno a imponer coercitivamente un sistema de negociaciones colectivas a una organización determinada, intervención gubernamental que claramente alteraría el carácter de tales negociaciones [véase Recopilación, op. cit., párrafos 925-927 y 934]. Por lo tanto, si bien una disposición jurídica que obligara a una parte a concluir un contrato con otra sería contraria al principio de la negociación libre y voluntaria, disposiciones tales como los párrafos 95-98 de los NCGS, que prohíben a las autoridades públicas y los empleados públicos, incluidos aquellos que no participan en la administración del estado, concluir un acuerdo, incluso si quieren hacerlo, es igualmente contrario a dicho principio”.

Con lo cual es claro que, según lo ha definido la OIT, una disposición jurídica que obligara a una parte a concluir un convenio colectivo con otra sería contraria al principio de la negociación libre y voluntaria.

En síntesis, una disposición que obligue a denunciar las convenciones colectivas y, por otro lado, que impida, por medio de estas, lograr mejorar las condiciones, sin modulación de ningún tipo, resultaría contraria al Derecho de la Constitución; de manera, que el legislador no podría, de antemano, restringir la posibilidad de celebrar convenciones colectivas entre patronos y trabajadores, en el sector público en el que resulta constitucionalmente posible la aplicación de esta institución, sin violar la libertad sindical.” Así también, en la sentencia n° 2020-12800 de las 11:01 horas del 8 de julio de 2020, se indicó en lo que interesa:

“Bajo este entendimiento, una norma en ese sentido sería ya no sólo contraria al principio de libre negociación, sino claramente también sería antagónica con los principios de razonabilidad y proporcionalidad.

Es en este sentido, que en la misma sentencia 2018-19511, señaló la Sala que:

“[C]ada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente.” -énfasis añadido- De tal manera, si la norma que ahora se cuestiona señala, como en efecto lo hace, que ambas partes de la Convención Colectiva de Trabajo de la Universidad Nacional se comprometen a no denunciar de forma unilateral dicha Convención, se está imponiendo a ambas partes, no solamente a la Universidad, sino al sindicato también, un deber que contraría la previsión constitucional sobre la negociación colectiva, al impedirle a ambas el libre ejercicio de la negociación a que tienen derecho dentro de un marco de razonabilidad y proporcionalidad, y a la parte accionante, obligándole a no poder validar en conjunto con el sindicato, situaciones relacionadas con el buen uso de los fondos públicos.

En este sentido, debe declararse con lugar la acción, por cuanto la frase aludida del último párrafo del artículo 185 de la Convención Colectiva de Trabajo de la Universidad Nacional, resulta contraria al Derecho de la Constitución, en los términos señalados.

-Conclusión. - En definitiva, siendo que la primera parte del último párrafo del artículo 185 de la Convención Colectiva de Trabajo de la Universidad Nacional resulta contraria al Derecho de la Constitución, lo que corresponde es declarar con lugar esta acción de inconstitucionalidad, anulando por inconstitucional la frase “Las partes se comprometen a no denunciar de forma unilateral esta Convención”.

En consecuencia, y en iguales términos lo indico para el artículo 43 del proyecto de Ley bajo estudio, considero que cualquier disposición que obligue a denunciar las convenciones colectivas como lo hace el Transitorio XV de cita debe analizarse a la luz de lo resuelto en la sentencia citada n°2018-019511.

Tal como lo indiqué en las razones que externé en relación con el artículo 43 objeto de esta consulta, de mantenerse la redacción de este transitorio, su contenido deberá ser interpretado a la luz de lo dispuesto en el artículo 62 constitucional y de la jurisprudencia sentada por este Tribunal, con lo cual no se estaría prohibiendo la realización de negociaciones colectivas, sino que, más bien, lo que estaría vedado sería que se efectúen bajo criterios que no respeten la proporcionalidad, la razonabilidad y el contenido de la Constitución y de la Ley.

XVII.- Sobre la consulta planteada en cuanto a la sanción de inhabilitación genérica.- (redacta la magistrada Picado Brenes) 1) Análisis concreto de los aspectos consultados Los consultantes consideran que el artículo 4.a del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo N° 21.336, al establecer una sanción de inhabilitación de forma general, resulta violatoria de los principios constitucionales. Tal norma indica, expresamente, lo siguiente:

“ARTÍCULO 4- Principios rectores Son principios rectores del empleo público:

• a)Principio de Estado como patrono único: parte de la premisa de que el Estado es un único centro de imputación de derechos laborales, independientemente de en dónde labora la persona servidora pública. Esto implica que, cuando una persona servidora pública se traslada de un puesto a otro dentro del sector público, la relación de empleo debe computarse como una sola a efectos de reconocer los derechos laborales que correspondan y responder por los deberes funcionales, indistintamente de las variaciones de puesto que puedan presentarse. Adicionalmente, conlleva a que las sanciones que generen el despido sin responsabilidad patronal del funcionario en una institución, de conformidad con el ordenamiento jurídico vigente, impedirán a cualquier otra entidad u órgano que forme parte del Estado contratarlo por un plazo que va de seis meses a dos años.” Los consultantes la consideran inconstitucional, por cuanto, en su criterio, se trata de una sanción genérica y automática de inhabilitación, que se aplicaría a cualquier tipo de despido, indistintamente de si se trata de faltas graves o leves, sin que el órgano sancionador pueda valorar la gravedad de la conducta y sin que exista una ponderación de los derechos que se verán afectados. Consideran que, si bien es cierto la Sala Constitucional ha avalado las sanciones de inhabilitación para el ejercicio de cargos públicos como parte de los criterios para garantizar la idoneidad de las personas trabajadoras del sector público, la sanción creada en la norma consultada es genérica, es decir, se aplicaría a cualquier tipo de despido, indistintamente si se trata de faltas graves o leves, estimando que, por ello, deviene en una sanción automática, por el simple hecho de ser despedida la persona sin responsabilidad patronal. En criterio de quienes suscriben la consulta, las faltas que dan origen a terminar la relación de trabajo sin responsabilidad patronal, no constituyen todas, irreparablemente, la existencia de una falta de idoneidad para ocupar cargos en todas las Administraciones Públicas y consideran que la aplicación automática de una medida tan severa, debe tomar en cuenta el tipo de falta cometida, ponderando la proporcionalidad y razonabilidad del acto administrativo sancionatorio; sin embargo, estiman que la norma en cuestión no permite realizar esa ponderación o valoración.

En este punto interesa recordar, en primer lugar, que la Sala Constitucional se ha pronunciado, en reiteradas ocasiones, en cuanto a la sanción de inhabilitación, manifestando que existe la posibilidad de inhabilitar temporalmente a una persona para ocupar un cargo público en vía administrativa, por lo que no resulta ser una sanción extraña al ámbito administrativo. Así, por ejemplo, en la sentencia n°2013-04491 de las 16:00 del 03 de abril de 2013, dispuso lo siguiente:

“Con lo cual, el pronunciamiento no resulta particularmente concluyente en cuanto a los motivos por los que resultaría inconstitucional la imposición en sede administrativa de la inhabilitación para puestos públicos. Y es que en torno a este particular tipo de sanción no se levantan los límites rígidos y sobradamente fundamentados que se oponen, por ejemplo, al establecimiento de la pena de prisión por alguna autoridad pública que no sea la jurisdiccional. En este último sentido, los artículos 35, 37 y 39 de la Constitución Política; 7° y 8° de la Convención Americana sobre Derechos Humanos; 10 y 11 de la Declaración Universal de Derechos Humanos; y 9° del Pacto Internacional de Derechos Civiles y Políticos son inequívocos sobre la necesidad, entre otros requerimientos, de que sea por medio de un acto de juez que se adopte una decisión de tanta gravedad como la restricción de la libertad personal. La inhabilitación, en cambio, no es una sanción que resulte extraña al campo administrativo. En nuestro ordenamiento, por ejemplo, normas como la 100 inciso a) de la Ley de Contratación Administrativa, 3 del Código de Minería, 9 inciso f) del Reglamento al Estatuto de Servicio Civil y 13 del Código Notarial autorizan a los respectivos órganos competentes a imponer una pena administrativa de ese carácter, habiendo rechazado la Sala sistemáticamente las impugnaciones que se hicieran de algunas de ellas (sentencia #2000-5525 de las 14:58 horas del 5 de junio de 2000, respecto de la Ley de Contratación Administrativa; resoluciones #2002-6057 de las14:42 horas del 19 de junio de 2002, #2002-10940 de las 15:08 horas del 20 de noviembre de 2002, #2003-3423 de las 15:58 horas del 29 de abril de 2003 y #2006-3135 10:42 horas del 10 de marzo de 2006, sobre el Reglamento al Estatuto de Servicio Civil)”. (El subrayado no corresponde al original) En cuanto a su fundamento constitucional, en la sentencia n°2006-08493 de las 14:43 horas del 14 de junio de 2006, se indicó:

“Se justifica la inhabilitación en:

“el poder que tiene el Estado de sancionar las faltas en que incurran sus empleados en la función pública, como también la necesidad de resguardarse y protegerse de los comportamientos irregulares de sus funcionarios, que afecten las normas de subordinación, y los intereses públicos, por medio del poder sancionatorio, como todo empleador, contra el no cumplimiento exacto de los deberes de la función pública. Una vez aplicado el régimen disciplinario, como acto ejecutivo y ejecutable, entra a operar la norma en cuestión. Tómese en cuenta que la jurisprudencia reconoce la existencia de requisitos razonables que impone la ley, no como una limitación a los artículos 56 y 57 constitucionales, sino, para garantizar que la prestación del servicio público, esté conforme a lo dispuesto por los numerales 191 y 192 de la Constitución Política. De modo que, previo al nombramiento de todo empleado público es lícito que el Estado implemente condicionantes o requisitos adicionales, para la selección de sus empleados, y más aún, en caso de surgir la posibilidad de una nueva recontratación. Así, las condiciones de la norma impugnada son limitaciones lícitas –desde el punto de vista constitucional- impuestas en una Ley de la República que dispone la inidoneidad temporal de exfuncionarios a un nuevo puesto público, en caso de haber sido despedido sin responsabilidad patronal, como sucede en el asunto bajo examen. Véase que la jurisprudencia de la Sala, incluso admite que las investigaciones disciplinarias no se archiven con motivo de la cesación anticipada del investigado en su puesto, para efecto de que conste en archivos si solicita nuevamente ser nombrado por la administración.” Y se asevera, en fin, en esa sentencia:

“De lo anterior, se concluye que la existencia de una norma, que fije las consecuencias en el tiempo de un despido, no resulta inconstitucional, pues precisamente existe para que funcionarios que hayan hecho uso indebido de su puesto o del patrimonio del Estado, no puedan ser nombrados nuevamente por un plazo específico, todo para garantizar la moralidad y la legalidad de la Administración.” (En el mismo sentido v. los pronunciamientos #2002-6057 de las 14:42 horas del 19 de junio de 2002 y #2003-05262 de las 14:40 horas del 18 de junio del 2003. Sobre la posibilidad de continuar el procedimiento administrativo, pese a renuncia de servidor, v. los fallos #1999-2958 y #622-93 de las 15:48 horas del 8 de febrero de 1993).

A mayor abundamiento, en la sentencia n°2012-00267 de las 15:34 horas del 11 de enero de 2012, la Sala estimó en lo que interesa:

“En el caso de la norma cuestionada, se trata de una disposición reglamentaria que determina las consecuencias de un despido sin responsabilidad patronal dentro de la Administración Pública, siendo que los funcionarios públicos que hayan hecho uso indebido de su puesto o del patrimonio del Estado, no puedan ser nombrados nuevamente en un cargo en el Servicio Civil por un plazo específico. Tratándose de empleados públicos, éstos deben cumplir con un determinado bagaje de deberes éticos y morales, y resulta prudente sujetar sus nombramientos al principio constitucional de idoneidad, como ocurre en el caso. Además, estima la Sala que resulta ilusorio y ausente de toda lógica jurídica, que un funcionario despedido por el quebrantamiento a estos principios pretenda regresar a la función pública en forma inmediata, obviando los mecanismos de protección que establece el ordenamiento jurídico, frente a posibles abusos, de los bienes del Estado, y que inciden directamente en la ética y moralidad que todo funcionario debe acreditar (sentencia 2002-5424 11:10 31 de mayo 2002). La norma bajo estudio, establece una inidoneidad temporal a los funcionarios públicos que fueron despedidos de su puesto sin responsabilidad patronal y su único fin es proteger a la Administración Pública en relación a la aptitud moral de las personas que en algún momento infringieron la normativa del Estatuto de Servicio Civil, por lo que quedan condicionados a determinado plazo los futuros nombramientos en el Poder Ejecutivo bajo ese régimen. Toma en cuenta la Sala que por sentencia número 2001-12005, se indicó que:

"Tiene efectivamente un claro sentido señalar que la idoneidad de los servidores públicos no solamente debe entenderse en un sentido específico, "académica" o "física" por ejemplo, sino que debe más bien asumirse como una conjunción de elementos o factores de diversa índole que, valorados en su conjunto producen que una persona resulte ser la más idónea para el cargo. Más aún, realmente no concibe la Sala la forma en que pudiera dejarse de considerar la necesaria "aptitud psicológica" no solo en términos generales de "estabilidad" o "normalidad", sino en lo que se refiere a las condiciones o "aptitudes específicas" que ciertos puestos requieran de modo necesario para ser ejercidos con eficiencia. Se trata entonces a juicio de la Sala de un medio adecuado y proporcionado de obtener el fin constitucional fijado en los artículos 191 y 192 Constitucionales, en tanto viene a complementar como se explicó los demás aspectos de la idoneidad; y esta misma razón la que hace que mantenga una primacía –en este caso concreto- frente a los otros derechos constitucionales que el recurrente considera involucrados en esta controversia, a saber, derecho a la igualdad de trato y derecho al trabajo, ello en el tanto que la aptitud psicológica, debe estimarse parte integrante de la idoneidad exigida por la propia Constitución Política, según se explicó. Para concluir sobre este punto cabe señalar que, como en efecto lo señala el Director General del Servicio Civil, el Estatuto sí incorpora dentro de sus reglas la necesidad de la demostración –de forma amplia- de la idoneidad para el cargo y con ella la exigencia de comprobación de la idoneidad psicológica. " En consecuencia, resulta dentro de los parámetros constitucionales que la norma establezca un plazo de inhabilitación para el reingreso al Servicio Civil de aquel servidor público que fue despedido sin responsabilidad estatal. Tómese en cuenta que no se trata de una sanción adicional al despido, como parece entenderlo el accionante, sino la regulación de las consecuencias jurídicas de un hecho, con lo que el Estado se protege de conductas irregulares que minan la subordinación que todo servidor debe al Estado como patrono, y al ordenamiento, de manera que al constatarse una falta por la que se debió aplicar el poder sancionatorio, como medio para exigir el cumplimiento exacto de los deberes de la función pública o el rompimiento de la relación de servicio según las causales existentes, ello deberá formar parte de los requisitos de reingreso al servicio civil”.

Desde esta perspectiva entonces, el cuestionamiento que se plantea en cuanto a la posibilidad de aplicar en el ámbito del empleo público, una sanción de inhabilitación, no resultaría inconstitucional. En criterio de la Sala, se trata de limitaciones lícitas –desde el punto de vista constitucional- impuestas en una ley de la República, que dispone la inidoneidad temporal de exfuncionarios a un nuevo puesto público, en caso de haber sido objeto de despidos sin responsabilidad patronal, como sucede en el asunto bajo examen. La Sala también ha manifestado que, la existencia de una norma que fije las consecuencias en el tiempo de un despido, no resulta inconstitucional, pues precisamente existe para que funcionarios que hayan hecho uso indebido de su puesto o del patrimonio del Estado, no puedan ser nombrados nuevamente por un plazo específico, todo para garantizar la moralidad y la legalidad de la Administración (ver sentencia nº 2006-08493 de las 14:43 horas del 14 de junio de 2006 y en igual sentido, los pronunciamientos 2002-6057 de las 14:42 horas del 19 de junio de 2002 y 2003-05262 de las 14:40 horas del 18 de junio del 2003). Para este Tribunal, resulta acorde con los principios constitucionales, imponer una inhabilitación a un funcionario despedido con justa causa, pues no se puede pretender que dicho funcionario pueda regresar a la función pública en forma inmediata, obviando los mecanismos de protección que establece el ordenamiento jurídico (sentencia 2002-5424 de las 11:10 horas del 31 de mayo 2002). Bajo esta perspectiva, al analizarse el artículo 4.a del proyecto bajo estudio, se observa que, en vista de que el objetivo del legislador es constituir al Estado en un único patrono, las sanciones que generen el despido sin responsabilidad patronal del funcionario en una institución, implican automáticamente un impedimento para que labore en cualquier otra entidad u órgano que forme parte del Estado, por el plazo establecido en esa norma. En este punto, no se puede perder la perspectiva en cuanto a la obligación que tiene el Estado de resguardar la idoneidad que debe asistir a quien aspire a un cargo en la función pública, como parte integral de la exigencia del numeral 192 de la Constitución Política. Ahora bien, lo relativo a los cuestionamientos que plantean los consultantes en cuanto a la relación existente entre el tipo de falta cometida y la sanción, o bien sobre la proporcionalidad y razonabilidad del acto administrativo sancionatorio, son temas que deberán valorarse en cada caso concreto y como parte del debido proceso, y que no por ello, vuelven inconstitucional per se la norma. Por otro lado, resulta de interés recordar que, en el ordenamiento jurídico costarricense se pueden encontrar algunas normas referentes a la inhabilitación con algún contenido similar al del artículo 4 a. bajo estudio. Entre ellas se pueden citar, las siguientes:

• 1)Reglamento del Estatuto del Servicio Civil:

“Artículo 9° - Son requisitos para ingresar al Servicio Civil, aparte de lo establecido por el artículo 20 del Estatuto, los siguientes:

• d)No haber sido destituido por infracción de las disposiciones del Estatuto, del presente Reglamento, o de los reglamentos autónomos de las instituciones cubiertas por el Régimen Estatutario, durante un período no menor a tres ni mayor a diez años, anteriores a la fecha de ingreso, de acuerdo con la gravedad de la falta y conforme a los lineamientos que sobre esta materia se establecerán por parte de la Dirección General de Servicio Civil.” 2) Ley Orgánica de la Contraloría General de la República.

“Artículo 72.- Prohibición de ingreso o de reingreso del infractor. No podrá ser nombrado en un cargo de la Hacienda Pública quien haya cometido un delito o falta grave contra las normas que integran el sistema de fiscalización, contemplado en esta Ley o contra la propiedad o la buena fe de los negocios. La presente prohibición tendrá vigencia por un plazo que no será menor de dos años ni mayor de ocho años, a juicio de la Contraloría General de la República, la cual resolverá con vista de la prueba del caso. Asimismo regirá la prohibición, por igual plazo, en contra de ex servidores públicos que intenten reingresar a la Hacienda Pública, cuando hayan cometido un delito o falta grave como los mencionados en los numerales anteriores, aunque su relación de servicio anterior con la Hacienda Pública haya terminado sin responsabilidad de su parte. Además, se aplicará la prohibición aquí establecida contra el servidor público que haya sido despedido, por haber cometido un delito o falta grave como los ya citados”.

Entonces, la inhabilitación temporal en vía administrativa de una persona servidora pública, para que acceda a cargos públicos, es una figura reconocida por este Tribunal, la cual permite que funcionarios que hayan faltado a sus deberes éticos y morales haciendo uso indebido de su puesto o de bienes del Estado, puedan no ser nombrados nuevamente por un plazo definido, con el fin de garantizar los principios de eficiencia de la Administración e idoneidad comprobada. Este principio de idoneidad no debe ser entendido únicamente como la comprobación de aptitudes académicas, físicas o de experiencia, sino que se extiende, además, a una serie de elementos éticos y morales e, incluso, psicológicos, que son parte de esa idoneidad que requiere el ejercicio de cargos públicos, de ahí que resulta un medio adecuado a los fines constitucionales plasmados en los artículos 191 y 192 de nuestra carta fundamental. De conformidad con lo anterior, la inhabilitación dispone la inidoneidad temporal de exfuncionarios, a un puesto público, en caso de haber sido despedidos sin responsabilidad patronal, con lo que se busca -como se dijo supra- garantizar que la prestación de los servicios públicos sea conforme a los principios de idoneidad comprobada y eficiencia en la función pública (artículos 191 y 192 de la Constitución Política). Igualmente, interesa destacar, que la Sala ha señalado que esta inhabilitación no es absoluta, sino que está compuesta de una serie de límites que encausan su aplicación, entre los cuales este Tribunal ha destacado los siguientes: 1) que posea un plazo definido autorizado por ley, o que se imponga por un plazo razonable; 2) que sea temporal; 3) que se encuentre debidamente fundamentada; 4) que se imponga únicamente como consecuencia de la destitución por faltas graves comprobadas. Todo lo cual son extremos que deberán valorarse en cada caso concreto y como parte del debido proceso. Además, todo ello deberá ser aplicado tomando en cuenta la normativa especial que cada institución pueda tener al respecto, realizando el operador jurídico una labor interpretativa. En este sentido, debe recordarse que, en materia de consultas facultativas, este Tribunal únicamente se pronuncia sobre los temas consultados, de tal forma que no puede interpretarse que exista una especie de aval al proyecto de ley consultado, en aquello en lo que no exista pronunciamiento. Si sobre este tema se considera que existen otros elementos, aparte de los consultados, que puedan violentar la supremacía de la Constitución Política, quedaría abierta la vía correspondiente para su debida discusión (ver en ese sentido las sentencias 2001-11643, 2001-12459, 2012-9253, 2019-9220 y 2020-010160, entre otras).

• 2)Conclusión De conformidad con las consideraciones anteriores, se puede concluir que la existencia de una norma que fije la inhabilitación, como una de las consecuencias en el tiempo de un despido, no resulta inconstitucional. Así, en los términos indicados y conforme a la jurisprudencia constitucional, en cuanto a lo consultado, no resulta inconstitucional el artículo 4.a del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo N° 21.336. Siendo un tema que corresponderá al operador jurídico todo lo referido a aplicar el debido proceso al despido, valorar la relación existente entre el tipo de falta cometida y la sanción, o bien sobre la proporcionalidad y razonabilidad del acto administrativo sancionatorio, y determinar la norma concreta a aplicar cuando exista normativa especial en la institución en cuestión.
• 3)Nota Nota de la magistrada Picado Brenes, sobre el artículo 4 inciso a) del proyecto referido a la sanción de inhabilitación general (punto 57 del Por Tanto) Concurro con el voto de mayoría al estimar que la sanción de inhabilitación contenida en el inciso a) del artículo 4 del proyecto de Ley bajo estudio, no resulta inconstitucional en sí misma; sin embargo, considero necesario hacer algunas precisiones que, en mi criterio, son importantes de tomar en cuenta porque podrían llevar inconstitucionalidades aparejadas.

Debo partir de que, si bien es cierto, y en términos generales, la existencia de una norma que fije las consecuencias en el tiempo de un despido -como lo sería la inhabilitación para el ejercicio de cargos públicos regulada en este numeral 4 inciso a)- no resulta inconstitucional, también es lo cierto que ello debe estar rodeado de una serie de herramientas que faciliten su correcta aplicación, así como de garantías para la Administración en beneficio del servicio público y para la persona funcionaria en resguardo de sus derechos. En el caso concreto del artículo 4 inciso a) del proyecto, considero que la redacción es omisa en cuanto a considerar estos detalles y ello, en la práctica, podría generar problemas de índole constitucional.

En primer lugar, obsérvese que la norma simplemente hace referencia a “las sanciones que generen el despido sin responsabilidad patronal del funcionario en una institución”, las cuales han sido entendidas por los consultantes como referidas a la sanción de inhabilitación; sin embargo, es más que evidente que con la apertura en la redacción de la norma, podrían caber cualquier otro tipo de sanciones que se hayan impuesto al trabajador, tanto de las que existen en la actualidad en el ordenamiento jurídico, como de cualquiera otra que se pudiere crear a futuro. Este solo elemento podría generar problemas venideros pues recuérdese que la materia sancionatoria debe estar expresamente tipificada y la palabra “sanciones” puede referirse a muchas situaciones -indeterminadas en este momento- pero que, para efectos de dañar a un trabajador, bien podrían abarcar una gran cantidad de conductas en las que inclusive podría permear la aplicación de criterios subjetivos.

En otro orden de cosas, si la norma se interpreta como lo hacen los consultantes en el sentido de que se refiere -de modo único- a la sanción de inhabilitación, en mi criterio, ello se trataría de una inhabilitación automática y genérica para acceder a cargos públicos, en perjuicio de cualquier servidor que haya sido despedido sin responsabilidad patronal, indistintamente del tipo o gravedad de la falta cometida; situación que deja de lado el parámetro de proporcionalidad que debe existir entre la gravedad de la consecuencia jurídica (inhabilitación), el tipo de conducta sancionada y el interés público protegido. Sobre el particular, interesa citar la sentencia de este Tribunal n°2009-14027 en cuanto concluyó que debe existir una proporcionalidad constitucionalmente admisible entre la gravedad de la conducta respecto de los intereses que pretenden proteger y las características y tipo de sanción establecida legislativamente. En el caso de la norma bajo estudio, obsérvese que no explica cuáles faltas son objeto de cuáles sanciones, así como tampoco determina el tipo de sanción que se le ha de aplicar a cada falta o conducta. Además, el artículo no establece cuál es el parámetro para determinar si esa inhabilitación debe aplicarse por el plazo mínimo que serían 6 meses o por el máximo de 2 años.

Conforme lo ha señalado la Sala Constitucional en reiterada jurisprudencia, la Administración Pública cuenta con la potestad de inhabilitar temporalmente en vía administrativa a una persona para ocupar un cargo público cuando ha hecho uso indebido de su puesto o del patrimonio del Estado y por ello la norma, en términos generales, no sería inconstitucional; sin embargo, es indispensable señalar que tal sanción de inhabilitación no es absoluta, sino que está compuesta de una serie de límites que encausan su aplicación: 1) que posea un plazo definido autorizado por ley, o que se imponga por un plazo razonable; 2) que sea temporal; 3) que se encuentre debidamente fundamentada; y 4) que se imponga únicamente como consecuencia de que el servidor público hubiere incurrido en faltas graves que sean comprobadas a través de un debido proceso, esto por cuanto debe existir una proporcionalidad constitucionalmente válida entre la gravedad de la conducta, el interés que se pretende proteger y el tipo de sanción establecida legislativamente. Sobre el particular, en la sentencia n°4425-94 de las 8:06 horas del 19 de agosto de 1994, citada posteriormente en resolución n°2013-015701 de las 9:20 horas del 29 de noviembre de 2013, la Sala estimó que esta resulta improcedente para un exfuncionario que no ha sido separado de la función pública por faltas graves. En aquella oportunidad, al referirse a los límites para su aplicación, la Sala destacó:

“VI.- Corolario de los anteriores considerandos sería entonces que la imposición de la sanción aquí cuestionada sería constitucional si: a) posee un plazo definido autorizado por la ley, o se impone por un término razonable (se advierte que el plazo de tres años y actual de cinco, no parece excesivo, en el tanto se aplique bajo las condiciones mencionadas y que a continuación se resumen); b) fuera temporal; c) se pronunciara y fundamentara expresamente y; d) se impusiera solo como consecuencia de la destitución por faltas graves, comprobadas a través del seguimiento de un debido proceso.” (El destacado no es del original).

Ahora bien, en el caso bajo estudio, de la lectura del artículo 4 inciso a) se desprende que ese numeral no incluye herramientas que permitan hacer una valoración de la razonabilidad y proporcionalidad de la conducta reprochada. Obsérvese que dicho artículo establece la inhabilitación automática y genérica para acceder a cargos públicos de cualquier servidor que haya sido despedido sin responsabilidad patronal, indistintamente del tipo o gravedad de la falta cometida, situación que deja de lado el parámetro de proporcionalidad que debe existir entre la gravedad de la consecuencia jurídica (inhabilitación), el tipo de conducta sancionada y el interés público protegido.

En adición a lo dicho, debe partirse de que el objetivo de una sanción de inhabilitación para ocupar cargos públicos es garantizar los principios de eficiencia de la Administración e idoneidad comprobada toda vez que la persona que ha sido sancionada incurrió en alguna falta que atenta contra esos principios y, en este sentido, hay que tener presente que la idoneidad no debe ser entendida únicamente como la comprobación de aptitudes académicas, físicas o de experiencia, sino que se extiende además, a una serie de elementos éticos y morales e, incluso, psicológicos, que son necesarios para el ejercicio de cargos públicos por lo que resulta un medio adecuado a los fines constitucionales plasmados en los artículos 191 y 192 de la Constitución Política. En consecuencia, si la inhabilitación de una persona presupone su inidoneidad -temporal o definitiva- para ocupar un puesto público -en caso de haber sido despedido sin responsabilidad patronal como lo dispone la norma- y ello busca garantizar que la prestación de los servicios públicos sea conforme a los principios de idoneidad comprobada y eficiencia en la función pública (artículos 191 y 192 de la Constitución Política), la lógica indica que la determinación de esa circunstancia en el servidor, requerirá del cumplimiento de una serie de requisitos previamente tasados mediante los cuales se valorarán aquellas aptitudes; requisitos o condiciones que -como se dijo- no se observan en la norma y que también podrían implicar una omisión lesiva de derechos fundamentales toda vez que la redacción del artículo permitiría que esa determinación se haga a partir de criterios subjetivos y poco técnicos.

Interesa citar la sentencia N°2002-05424 por cuanto, al analizar la constitucionalidad del artículo 72 de la Ley Orgánica de Contraloría General de la República, la Sala descartó que la figura de la inhabilitación contraviniera el Derecho de la Constitución, resaltando que se resguardaba la idoneidad moral que debe asistir a quien aspire a un cargo en la función pública, como parte integral de la exigencia del numeral 192 de la Carta Política, por haber cometido faltas graves, según se transcribe de seguido, en lo que interesa:

“Lo que la norma establece es una presunción de inidoneidad temporal del exfuncionario que mediante despido deja la función pública por haber cometido faltas graves contra el sistema de fiscalización, contra la propiedad o la buena fe de los negocios, o el que haya cometido infracciones penales. La norma veda del cargo de la Hacienda Pública al que haya cometido un acto delictivo o las faltas graves descritas en la norma impugnada, una vez ejercida la potestad disciplinaria...” (el destacado no es del original).

Otro tema que debe tomarse en cuenta es el plazo pues la Sala ha estimado lesivo al principio de seguridad jurídica permitir a la Administración, que de manera discrecional, determine el período de tiempo que debe transcurrir para que un aspirante sea habilitado para el reingreso a la función pública sin que se establezcan parámetros objetivos para ello o bien topes máximos, de ahí lo que se dijo supra en cuanto a la ambigüedad e imprecisión de la norma al establecer un plazo de 6 meses a 2 años. Al respecto, en la sentencia de cita N°2012-00267, se estimó:

“VIII.- Por otra parte, el segundo párrafo del inciso d) del artículo 9 establece que “......Se considerará como inelegible indefinidamente el servidor que por segunda vez haya sido destituido por causal de despido sin responsabilidad patronal en el Poder Ejecutivo o en cualquiera de las instituciones del Estado. ". La norma dispone en la frase transcrita una medida de carácter definitivo, por lo que vendría a constituirse en una sanción con carácter de perpetuidad, llevando aparejado el consecuente perjuicio que esto representa para los derechos del afectado, situación que se enfrenta abiertamente con lo dispuesto por el artículo 40 de la Constitución Política. La única salvedad a lo anterior es el caso en que dicha inegibilidad haya sido dispuesta por una sentencia judicial condenatoria, por lo que la Administración no puede mediante disposiciones de carácter general establecer una inhabilitación de carácter indefinida, y por esa razón, éste párrafo se contrapone a los artículo 39 y 56 de la Carta Política.

Ciertamente el ex empleado público que ha sido despedido en una sola ocasión (primario)y aquel que lo ha sido en dos ocasiones (reincidente) no se encuentran en una situación de igualdad, por lo que no se merecen un trato igualitario en lo que respecta al plazo de inhabilitación, pero el hecho de ser reincidente no justifica que dicha discriminación sea contraria a la dignidad humana, pues el tratamiento que en definitiva puede dársele al reincidente, es el mismo que eventualmente se le dará al primario, dado que las consecuencias del despido en ambos casos debe fijarse dentro de límites razonables. La inidoneidad, en este caso representada por la reincidencia, es una circunstancia que se debe de tomar en cuenta al individualizar el período de inhabilitación en virtud que la gravedad de los hechos por los cuales fue despedido y el principal parámetro a considerar como una condición personal del candidato. Otro aspecto importante, es que los antecedentes laborales o de vida valorados en las investigaciones o informaciones de vida realizados por la Administración, en los que se sustente la razones de ineligibilidad por inidoneidad, no deben de datar de más de 10 años atrás, (salvo si exista una resolución judicial que así lo disponga) como bien lo señaló la Procuraduría General de la República en su informe. La inidoneidad motivada en los antecedentes disciplinarios del ex empleado público, debe tomar en consideración el tiempo transcurrido de dichas anotaciones, dado que no pueden mantenerse vigente indefinidamente en virtud de lo dispuesto en el artículo 40 de la Constitución Política. Una inscripción del despido del funcionario ya sea con o sin responsabilidad patronal que data de más de diez años y no se ha cancelado del expediente personal, surtirá efecto de manera permanente y lesionaría además el derecho fundamental a la intimidad y el estado de inocencia, porque estigmatiza a la persona y prolonga su culpabilidad. De esta forma, la inhabilitación no es por sí inconstitucional, pero sus efectos pueden resultarlo, caso de ser lesivos a derechos fundamentales. Lo anterior conlleva a que deba reconocerse la inconstitucionalidad del párrafo segundo de la citada norma, en la que se posibilita tomar en consideración la reincidencia como un parámetro propio de la inhabilitación de carácter indefinido al ingreso de la carrera del servicio civil”.

XVIII.- Sobre la consultada violación al derecho de igualdad salarial y el salario global 1) Aspectos consultados Los diputados consultantes cuestionan sobre este tema del Salario Global, los siguientes tres aspectos:

-Violación al principio de separación de poderes y de autonomías, por el hecho de que sea un Ministerio del Poder Ejecutivo quien establezca la columna salarial global (art. 34) y con ello, los salarios de todo el aparato estatal, incluyendo al Poder Judicial, las universidades, las municipalidades, y a los entes descentralizados.

-Violación al principio de igualdad salarial, por el hecho de que personas que ocupen iguales puestos en iguales condiciones estarían recibiendo un salario diferente (transitorio XI); además, porque se da un trato igual a quienes no están en condiciones de igualdad, como lo sería funcionarios de las ciencias de la salud, los que despliegan funciones policiales del Ministerio de Seguridad con los del Organismo de Investigación Judicial, administradores de justicia, servicio exterior, puestos de confianza, etc. (art. 30.a y 34). Asimismo, se consulta que los salarios de los diputados no están incluidos dentro del tope de salario (art.37).

-Violación al principio de dignidad humana en el trabajo, por el hecho de que la definición de salario (art. 5.r) excluye el reconocimiento de cualquier otro emolumento en efectivo o en especie que, de manera directa o indirecta, reconozca el empleador a las personas trabajadoras, como dispone el Convenio N° 100 de la OIT. Además, porque se tomará en cuenta la “disponibilidad” como un factor relevante para la evaluación del trabajo (art.31.f), en detrimento particular de las mujeres, quienes usualmente tienen trabajo fuera de oficina y, por ello tienen poca “disponibilidad”. Además, por el hecho de que, el salario se congelará a ciertos funcionarios y no se les reconocerá ningún aumento a la base ni incentivo (transitorio XII).

Una vez revisado el escrito de interposición de la consulta, se logra constatar, que el cuestionamiento externado por los consultantes en relación con esos numerales, carece de una adecuada fundamentación y no expresa, de manera clara, los motivos o razonamientos por los cuales se plantean esas dudas ante esta Sala. Sobre el particular, debe tenerse presente que, el artículo 99 de la Ley de la Jurisdicción Constitucional, es muy claro al establecer que la consulta deberá expresar los aspectos cuestionados del proyecto y los motivos por los cuáles se tienen dudas u objeciones de constitucionalidad, así como también que todo ello debe hacerse de manera razonada y debidamente fundamentada; requisito que no se cumple en este caso concreto y, por ende, la consulta no puede ser evacuada en los términos en que lo pretenden los consultantes. Las únicas dos normas que son consultadas de forma fundamentada, se refieren al Transitorio XI y Transitorio XII. Por ello, procede esta Sala a pronunciarse únicamente sobre estos dos (agregar “extremos”). En el entendido de que, sobre el resto de normas, no se está examinando su conformidad o no con la Constitución Política.

Al respecto, antes de proceder al examen de la constitucionalidad de las normas impugnadas, resulta procedente recordar los alcances y limitaciones constitucionales de la jurisprudencia constitucional, en materia de salarios.

• 2)Antecedentes Jurisprudenciales sobre el derecho fundamental a la igualdad de salario En general, sobre el derecho al salario, la jurisprudencia constitucional ha indicado, que: “El salario como remuneración debida al servidor en virtud de una relación estatutaria, por los servicios que haya prestado, no es sólo una obligación del empleados, sino un derecho constitucionalmente protegido.” (ver voto n°2015-009504). Derecho fundamental que, por demás, resulta irrenunciable (art. 74 constitucional). Luego, sobre el derecho fundamental a la igualdad salarial o derecho a la equidad salarial, es entendido como aquel derecho que permite diferenciar salarios de acuerdo a las condiciones del cargo (vertiente negativa), pero sin poder llegar a realizarse una discriminación (art. 68 constitucional: “No podrá hacerse discriminación respecto al salario, … respecto de algún grupo de trabajadores”). A contrario sensu, es aquel derecho que permite mantener mismos salarios, si las condiciones del cargo son iguales (vertiente positiva). Este último, según el art. 57 constitucional que indica: “El salario será siempre igual para trabajo igual en idénticas condiciones de eficiencia.” Lo cual es ratificado por la Declaración Universal de los Derechos Humanos (art. 23.”2: Toda persona tiene derecho, sin discriminación alguna, a igual salario por trabajo igual.”), el Pacto Internacional de Derecho Económicos, Sociales y Culturales (art. 7.a.i: “Un salario equitativo e igual por trabajo de igual valor, sin distinción de ninguna especie…”). El Protocolo de San Salvador (Art. 7.a: “…y un salario equitativo e igual por trabajo igual, sin ninguna distinción…”), solo para citar algunos.

La Sala ha manifestado que, pese a que debe procurarse una política salarial equilibrada y justa, no pueden dejarse de lado las diferencias en cuanto a las funciones de cada puesto. En la sentencia n° 97-1320 manifestó:

“I. Es evidente que de los artículos constitucionales que se estima infringidos (33, 57, 68 y 74) se puede derivar un claro propósito de que, en materia salarial, exista un tratamiento equilibrado y justo para las distintas actividades laborales, tengan o no un carácter profesional. Esta Sala lo ha reiterado así en sus diversos pronunciamientos. Pero, como ha sido explicado también, ese trato equilibrado supone –como en cualquier otro caso en que esté de por medio una disputa de igualdad– que se reconozcan las diferencias que existen entre las diversas actividades, de modo que no se equiparen las que son distintas ni se diferencien las que son iguales, de forma tal que resulten indebidos privilegios por el hecho de sobrevaluar a unas, o injusticias porque se subvalúen otras.” Con relación a la igualdad salarial en particular, en sentencia nº 94-6471, se dijo: "Tampoco se observa menoscabo al derecho de salario igual para idénticas condiciones pues resulta evidente que al existir diversidad de funciones en el Manual descriptivo de puestos, ello lógicamente acarrea diferencias salariales." Además, en la sentencia n° 15-10348, la Sala señaló:

“[La PGR]… el órgano asesor aclara que si bien la intención del Constituyente fue establecer un régimen salarial único y uniforme para toda la Administración Pública, lo cierto es que tratándose de otros Poderes del Estado distintos al Ejecutivo, entidades autónomas, descentralizadas y empresas públicas, sus órganos jerárquicos superiores tienen plena potestad para dictar sus propias políticas en materia de clasificación y valoración de puestos, así como para fijar, a su vez, las respectivas remuneraciones en ejercicio de su facultad legal. La PGR concluye afirmando que la UNED rige su vida y organización interna de acuerdo con los postulados de su ley orgánica y estatutos internos, que son manifestación de la voluntad universitaria colectiva, pues goza de un grado superlativo de autonomía administrativa y de gobierno, distinto de la del resto de los entes descentralizados, de conformidad con los artículos 84 y 85 de la Constitución Política, por lo que puede emitir libremente –dentro de los límites de la Constitución- las disposiciones relacionadas con su régimen interior en materia de empleo (incluido lo remunerativo), tanto de puestos académicos como administrativos. Este Tribunal Constitucional comparte la postura adoptada por el órgano asesor para dirimir el fondo de este caso”.

Por eso se expresó, respecto de la igualdad general, en la sentencia nº 4090-94 lo siguiente:

"Es de suma importancia indicar para los efectos de la cuestión planteada, que el principio de igualdad que establece el artículo 33 Constitucional no tiene un carácter absoluto pues no concede propiamente un derecho a ser equiparado a cualquier individuo sin distinción de circunstancias, sino más bien a exigir que la ley no haga diferencias entre dos o más personas que se encuentren en una misma situación jurídica o en condiciones idénticas, y no puede pretenderse un trato igual cuando las condiciones o circunstancias son desiguales..." La línea jurisprudencial de la Sala, ha sido clara, en el sentido de que reconocer, que no cabe la equiparación indiscriminada de remuneraciones entre los miembros de los poderes públicos, pues el imponer un tratamiento igual a situaciones o funcionarios que se encuentran objetivamente en circunstancias de desigualdad, quebrantaría, en general, el principio de igualdad y específicamente en materia de salarios y condiciones de trabajo, el 57 de la Constitución. Sin embargo si la equiparación salarial no es indiscriminada, sino que atiende a criterios técnicos objetivos y sustentados, no habría desigualdad:

“En cuanto a la discriminación invocada, esta Sala en su reiterada jurisprudencia ha señalado que el artículo 33 de la Constitución Política, no implica, que, en todos los casos, se deba de dar un tratamiento, igual prescindiendo de los posibles elementos diferenciadores de relevancia jurídica que puedan existir; o lo que es lo mismo, no toda desigualdad constituye necesariamente una discriminación. El principio de igualdad, como lo ha dicho esta Sala, sólo se infringe cuando la desigualdad se encuentra desprovista de una justificación objetiva y razonable”. (voto n° 2000-00953).

Sobre los aumentos salariales y la dignidad humana en el trabajo, mediante sentencia n° 2003-005374, para la mayoría de la Sala en ese momento, no existe un derecho fundamental a los aumentos por costo de vida, en aquellos casos en que el salario esté por encima del salario mínimo:

“Se afirma además, que existe un derecho fundamental al aumento por costo de vida. Esta última argumentación no resulta de recibo para la mayoría de la Sala, toda vez que conforme a la Carta Política, lo único que exis-te como derecho público subjetivo, es el derecho al salario, norma que ocasiona el deber jurídico del patrono de remunerar dignamente el trabajo de sus colaboradores. Es decir, la norma genera, automáticamente, una prestación positiva a cargo del patrono, consistente en su deber de remu-nerar dignamente al asalariado. Así, conforme lo dispone el artículo 57 constitucional, todo trabajador tiene derecho a "...un salario mínimo, de fijación periódica, por jornada normal, que le procure bienestar y exis-tencia digna." De tal garantía fundamental, no puede derivarse, como se pretende, un derecho fundamental a los aumentos por costo de vida. La norma garantiza un mínimo de retribución, derecho que se traduce en la garantía de ver remunerado el trabajo, mediante un salario mínimo, sujeto a una fijación periódica, lo cual no equivale, en modo alguno, a un dere-cho a un aumento de salario anual, en aquellos casos en que éste está por encima del salario mínimo. Por otra parte, no considera la mayoría de es-te Tribunal que exista evidencia en autos de que la norma vede la posibi-lidad de los accionantes de ser remunerados dignamente, por lo que tal alegación debe ser igualmente rechazada. No sólo se extraña dicha prueba, sino que además, no podría entenderse que se trata de una circunstancia evidente que no precise ser probada.” Lo antes expuesto fue ratificado por el voto n° 2004-013421, en cuanto dice que, no existe derecho fundamental alguno que se refiera al aumento al salario. Sin embargo, advierte este Tribunal, que el congelamiento de salarios no solo es una situación diferente, sino que, además, debe ser temporal y no permanente, según se desprende del voto n° 2003-009952, pues tal congelamiento que supone un sacrificio del trabajador, al no ver aumentado su salario pese al aumento en el costo de vida, se puede hacer únicamente por un plazo definido o determinado y únicamente por circunstancias de orden extraordinario o de interés nacional. El congelamiento indefinido en el tiempo afectaría ilegítimamente situaciones jurídicas consolidadas a futuro y constituiría un abuso estatal ad infinitum, ya que no solo perjudicaría el salario del funcionario, sino otros derechos como la jubilación.

• 3)Análisis concreto de lo consultado (redacta el magistrado Castillo Víquez) En la primera consulta de constitucionalidad facultativa los (as) diputados (as) aducen que con el congelamiento de los salarios establecido en el Transitorio XI, inciso b), se lesionan los artículos 11 y 33 constitucionales, porque desconocen otra normativa ya existente que reconoce derechos a este sector de profesionales en la salud -refiriéndose al funcionario de la CCSS-, y porque dispondrá de un salario diferente a las personas que ingresen a laborar con un mayor salario en las mismas condiciones de los que ya trabajan para la institución. Para fundamentar la violación en cuestión, hacen alusión específicamente a lo dispuesto en las siguientes disposiciones: 6, 7 d), 9, 13 b), 14, 17 y 18 del proyecto de ley. Asimismo, argumentan que somete a la CCSS a disposiciones de Mideplán en materia de gestión de empleo público, así, por ejemplo: les impone el deber de alimentar y actualizar una plataforma de empleo cada 6 meses. Expresan que el Transitorio XI, inciso b), pretende modificar el sistema salarial a un salario global, sin derogar o modificar otra normativa que reconoce ajustes diferenciados en el salario, tales como la Ley de Incentivos a los Profesionales en Ciencias Médicas y su reglamento, ni el Estatuto de Servicios de Enfermería.

En la segunda consulta de constitucionalidad facultativa, se afirma por parte de los consultantes que el Transitorio XI, tal y como está planteado, concibe y promueve que se establezcan dos escalas salariales y montos de remuneración distintos para un mismo puesto de trabajo, para funcionarios públicos que desarrollan funciones y responsabilidades en igualdad de condiciones y que serán remunerados de forma diferenciada, sin que esto tenga base en elementos objetivos y racionales, lo cual puede prolongarse por 12 o 15 años. Para los (as) diputados (as) se lesionan los principios de igualdad salarial, equidad y no discriminación y los artículos 33 y 57 de la Carta Fundamental, así como los artículos 167 y 405 del Código de Trabajo. Además, sostienen que no hay estudios o razonamientos técnicos u objetivos que justifiquen la prevalencia de la diferencia salarial propuesta en ese transitorio. Finalmente, el Transitorio XI transgrede y lesiona el principio de equidad salarial establecido en el ordinal 4 c) del mismo proyecto.

Como puede deducirse de este resumen de los agravios de ambas consultas, la inconformidad de los (as) diputados (as) se centra en el citado transitorio, mas no así en otras normas de proyecto de ley. La invocación a normas del proyecto de ley, así como de otra normativa legal vigente -Código de Trabajo y leyes de incentivos en el área de salud- son argumentos de apoyo que se esgrimen para sostener que el transitorio XI y, en menor medida el XII, son inconstitucionales. Ergo, la mayoría se limitará al análisis de las normas transitorias cuestionadas, y no de otras normas infraconstitucionales vigentes -que no pueden ser objeto de control previo de constitucionalidad, sino de un control de constitucionalidad a posteriori-, ni del proyecto de ley que invocan.

Como es bien sabido, el derecho transitorio es una técnica jurídica que busca dar respuesta a los problemas de aplicación de las normas en el tiempo, que se producen a raíz de la derogatoria y la vigencia de otra, en la que se hace necesario adaptar las situaciones prevalecientes a la nueva realidad que crea la ley recién promulgada. En efecto, como bien lo ha sostenido la doctrina, las disposiciones transitorias forman parte del Derecho Intertemporal en cuanto tienen a solucionar conflictos de leyes. Ante los problemas de transitoriedad que la nueva ley causa, el legislador establece un régimen jurídico aplicable a las situaciones jurídicas pendientes. En ese sentido, la función de las llamadas disposiciones transitorias es la de regular, en forma temporal, determinadas situaciones, con el fin de ajustar o acomodar la normativa nueva o la de dar un tratamiento distinto y temporal, de carácter excepcional, a ciertas situaciones. Interesa resaltar, que en la base de la norma transitoria se encuentra esa necesidad de responder a problemas planteados por la entrada en vigencia de la nueva ley; esa es su esencia. Se ha dicho que el contenido de las disposiciones transitorias busca solucionar varias situaciones. En primer lugar, si las nuevas regulaciones se aplican o no a las situaciones jurídicas previas a la ley, sea declarando la aplicación de la nueva ley, la pervivencia de la ley antigua o estableciendo un régimen transitorio distinto al fijado en ambas leyes -la antigua y la nueva-. Otra opción que tiene el legislador, dentro de una gama de alternativas, es regular en forma provisional situaciones jurídicas nuevas cuando con ello se pretenda facilitar la aplicación definitiva de la nueva ley.

Sobre si se da o no una vulneración al principio de igualdad a causa de una norma transitoria, es importante traer a colación lo que expresó el Tribunal Constitucional español en el auto 367/2003, de 13 de noviembre -ECl:ES:TC:2003:367A-.

“Por otra parte no se advierte que el precepto cuestionado incurra en la discriminación lesiva del art. 14 CE a que alude el Auto de planteamiento por remisión a los argumentos, ciertamente confusos, del demandante en el proceso a quo. De entrada debe observarse que la aplicación de las reglas de cálculo de la base reguladora de la pensión nada tienen que ver con que la jubilación se produzca anticipadamente o por cumplimiento de la edad ordinaria de 65 años (la edad se tiene en cuenta a efectos del porcentaje), por lo que no existe término de comparación válido en el que sustentar el juicio de igualdad sobre la supuesta discriminación que se invoca para cuestionar el precepto. En efecto, las reglas contenidas en la disposición transitoria quinta, 1, LGSS, se aplican, para cualquier tipo de jubilación que se produzca a partir de la entrada en vigor de la norma, en función de la fecha en que la jubilación se haya producido. Como el demandante se jubila en el año 2002 le resulta aplicable lo dispuesto en el último párrafo de la disposición transitoria quinta, 1, LGSS, que se remite al art. 162.1 LGSS (precepto por otra parte no cuestionado por el órgano judicial proponente), esto es, dividiendo por 210 las bases de cotización del interesado durante los 180 meses inmediatamente anteriores al hecho causante. Ciertamente, si el demandante en el proceso a quo hubiera nacido varios años antes, se habría podido jubilar con anterioridad al año 2002 y le habrían sido aplicadas otras reglas de cálculo, las vigentes en el año en que se hubiese producido la jubilación. Mas que la aplicación de la legislación precedente pudiera resultarle en su caso más beneficiosa al demandante en el proceso a quo no determina que la nueva regulación pueda considerarse por tal motivo contraria al art. 14 CE, pues el principio de igualdad no puede constituirse en un dique frente a las reformas legales sucesivas que el legislador considere necesario introducir, pues dicho principio no exige que todas las situaciones, con independencia del tiempo en que se originaron o produjeron sus efectos, deban recibir un tratamiento igual por parte de la ley, puesto que con ello se incidirá en el círculo de competencias atribuido constitucionalmente al legislador y, en definitiva, en la natural y necesaria evolución del Ordenamiento jurídico (SSTC 119/1987, FJ 3; 88/19991, FJ 2; 38/1995, FJ 4).

Como ya señalara tempranamente este Tribunal en su STC 27/1981, de 20 de julio, FJ 10, con ocasión de una reforma legal referida al mutualismo administrativo, cuyos argumentos pueden ser perfectamente trasladados al asunto que nos ocupa, "el Ordenamiento jurídico, por su propia naturaleza, se resiste a ser congelado en un momento histórico determinado: ordena relaciones de convivencia humana y debe responder a la realidad social de cada momento, como instrumento de progreso y de perfeccionamiento. Normalmente, lo hace así, al establecer relaciones pro futuro. Pero difícilmente una norma puede evitar que la regla de futuro incida sobre relaciones jurídicas preexistentes, que constituyen el basamento de las relaciones venideras; y es por ello que, a menudo tales normas deben contener unas cautelas de transitoriedad que reglamentan el ritmo de la sustitución de uno por otro régimen jurídico.... El cambio de régimen jurídico que se denuncia no supone la supresión de ninguna prestación ya consolidada”. (Las negritas no corresponden al original).

En adición a lo antes expuesto, hay que tener presente que el artículo 33 de la Constitución Política, que reconoce el principio de igualdad, implica, tal y como lo ha reconocido la Sala Constitucional en múltiples resoluciones, que todas las personas que se encuentran en una misma situación, deben ser tratadas en forma igual. Por otra parte, “El principio de igualdad, contenido en el Artículo 33 de la Constitución Política, no implica que en todos los casos, se deba dar un tratamiento igual prescindiendo de los posibles elementos diferenciadores de relevancia jurídica que pueda existir; o lo que es lo mismo, no toda desigualdad constituye necesariamente una discriminación. La igualdad, como lo ha dicho la Sala, sólo es violada cuando la desigualdad está desprovista de una justificación objetiva y razonable. Pero además, la causa de justificación del acto considerado desigual, debe ser evaluada en relación con la finalidad y sus efectos, de tal forma que deba existir, necesariamente, una relación razonable de proporcionalidad entre los medios empleados y la finalidad propiamente dicha. Es decir, que la igualdad debe entenderse en función de las circunstancias que concurren en cada supuesto concreto en el que se invoca, de tal forma que la aplicación universal de la ley, no prohíbe que se contemplen soluciones distintas ante situaciones distintas, como tratamiento diverso. Todo lo expresado quiere decir, que la igualdad ante la ley no puede implicar una igualdad material o igualdad económica real y efectiva” (véanse los votos n.° 1770-94 y 1045-94).

El punto está en determinar si esta diferenciación de trato está fundada en fines legítimos constitucionalmente, en si es objetiva, es decir, si está sustentada en un supuesto de hecho diferente, si está basada en diferencias relevantes (tertium comparationis), si existe proporcionalidad entre el fin constitucional y el trato diferenciado que se ha hecho y el motivo y el contenido del acto y, si ese trato es idóneo para alcanzar el fin que se persigue.

En el primer supuesto, la diferencia de trato supone que esté basada en objetivos constitucionalmente legítimos, lo que conlleva tres consecuencias en la finalidad perseguida. En primer lugar, las leyes no pueden perseguir fines que contradigan el Derecho de la Constitución o las normas que se encuentran en los instrumentos internacionales de Derechos Humanos. En segundo término, cuando se persiguen fines no tutelados constitucionalmente, pero que no contradicen sus valores y principios, la diferenciación de trato debe ser estrictamente vigilada en relación con los supuestos de hecho que la justifican y la finalidad que persigue. Por último, cuando se persigue un fin constitucionalmente tutelado, la diferenciación de trato será válida siempre y cuando respete los criterios de razonabilidad, proporcionalidad y sea necesaria.

La Sala Constitucional, en el voto N.º 4883-97, expresó sobre este principio, lo siguiente:

“El principio de igualdad, contenido en el Artículo 33 de la Constitución Política, no implica que en todos los casos, se deba dar un tratamiento igual prescindiendo de los posibles elementos diferenciadores de relevancia jurídica que puedan existir; o lo que es lo mismo, no toda desigualdad constituye necesariamente una discriminación. La igualdad, como lo ha dicho esta Sala, sólo es violada cuando la desigualdad está desprovista de una justificación objetiva y razonable. Pero además, la causa de justificación del acto considerado desigual, debe ser evaluada en relación con la finalidad y sus efectos, de tal forma que debe existir, necesariamente, una relación razonable de proporcionalidad entre los medios empleados y la finalidad propiamente dicha. Es decir, que la igualdad debe entenderse en función de las circunstancias que concurren en cada supuesto concreto en el que se invoca, de tal forma que la aplicación universal de la ley, no prohibe que se contemplen soluciones distintas ante situaciones distintas, con tratamiento diverso. Todo lo expresado quiere decir, que la igualdad ante la ley no puede implicar una igualdad material o igualdad económica real y efectiva.’ (Sentencia número 6832-95 de 16:15 horas del 13 de diciembre de 1995).” (Las negritas no corresponden al original).

Finalmente, hay que enfatizar que el cumplimiento del principio de equilibrio financiero o presupuestario en este caso, es una justificación objetiva y razonable para concluir que la normativa transitoria es conforme con el Derecho de la Constitución, máxime si se toma en cuenta la situación fiscal tan deteriorada que tiene el Gobierno central, que pone en peligro la viabilidad del Estado Social de Derecho y de la economía costarricense en su conjunto. En esta dirección, en la opinión consultiva n.° 2018-18505, expresamos lo siguiente:

“Sobre el particular, frente a una condición crítica en las finanzas públicas (debidamente sustentada en estudios técnicos), que pone en riesgo la efectiva o adecuada ejecución de las prestaciones de relevancia constitucional, la decisión de las autoridades competentes de definir y aplicar medidas aptas para paliar o solucionar el problema no solo resulta razonable, sino que, aún más, es insoslayable.

Ahora bien, no atañe a la Sala definir en concreto qué tipo de remedios se deben aplicar ni cuál es el más adecuado, toda vez que ello forma parte de la política económica del Estado, que a su vez constituye materia de gobierno. En realidad, el control de constitucionalidad se encuentra constreñido a velar por que las soluciones se adopten salvaguardando los derechos fundamentales cobijados en la Constitución Política y los instrumentos del derecho internacional de los derechos humanos ratificados por Costa Rica, así como las cualidades esenciales del régimen político del país (en una república democrática, libre, independiente, multiétnica y pluricultural, cuyo Gobierno es popular, representativo, participativo, alternativo y responsable), todo lo cual implica un ejercicio de ponderación y optimización de los diversos principios, derechos y valores constitucionales en juego.

En este contexto, reviste de especial importancia una interpretación armoniosa del principio de equilibrio presupuestario y el Estado Social de Derecho. La Sala advierte que, para que un Estado Social de Derecho pueda persistir y cumplir sus fines constitucionales y legales, deviene necesario que se efectúe un sano manejo de las finanzas públicas; es decir, de manera inexorable debe existir un equilibrio entre los derechos prestacionales y la solvencia económica estatal, ya que los primeros dependen de las posibilidades materiales propiciadas por la segunda, mientras que el sentido de esta última es fortalecer el desarrollo de un sistema político solidario, uno en el que los estratos menos favorecidos de la sociedad encuentren resguardo de su dignidad humana y su derecho a progresar. Dicho de otra forma, el Estado Social de Derecho “ideal” es el Estado Social de Derecho “posible”, contra el que precisamente se actúa, cuando se quebranta el principio de equilibrio presupuestario, toda vez que, a mediano plazo, eso pone en serio riesgo o del todo impide obtener los recursos necesarios para sustentar un Estado Social de Derecho “real”, uno del que verdadera y efectivamente puedan gozar los más vulnerables. Vigilar entonces que no se llegue a caer en una Constitución fallida o de papel, donde los derechos prestacionales de rango constitucional no puedan ser efectivos, es tarea fundamental de esta Sala, estrictamente dentro de lo que el marco de sus competencias se lo permite.

Se debe advertir, eso sí, que todos los principios, valores y preceptos constitucionales deben ser observados en cualesquiera circunstancias, lo que permanentemente le corresponde vigilar a la jurisdicción constitucional. Ahora, con motivo del ejercicio de ponderación u optimización que el juez constitucional realiza para resolver alguna colisión entre tales principios, valores y preceptos, el contexto que rodea al conflicto no puede pasar desapercibido.

Corolario de lo expresado: la inobservancia del principio de equilibrio presupuestario ha sido una de las causas del deteriorado estado actual de las finanzas públicas, motivo que lleva a esta Sala a subrayar el carácter transversal de dicho principio y hacer énfasis en su implementación real en aras del principio del Estado Social de Derecho. Se insiste en la observación del Programa del Estado de la Nación: ‘Esto [refiriéndose al desbalance estructural en las finanzas públicas] ha puesto en jaque el futuro del Estado de bienestar social construido a lo largo de la segunda mitad del siglo XX, ya que su financiamiento y la eficiencia de su gasto no son suficientes’”.

En lo que atañe al quebranto del principio de legalidad, los consultantes no hacen una argumentación adecuada desde la óptica del Derecho de la Constitución. De ahí que, este Tribunal no emita mayor consideración al respecto.

• 4)Conclusión Por las razones anteriores, se concluye, por mayoría, que los Transitorios XI y XII no vulneran el principio de igualdad -igual salario a trabajo igual en idénticas condiciones de eficiencia-, ni el de legalidad y, por consiguiente, no resultan inconstitucionales.
• 5)Voto salvado y nota a) Voto Salvado sobre el inciso a) del Transitorio XI del proyecto sobre las reglas del salario (punto 58 del por tanto) de las Magistradas Hernández López, Garro Vargas y Picado Brenes, con redacción de la última Las suscritas Magistradas salvamos el voto en este punto toda vez que consideramos que, en el inciso a) del Transitorio XI del proyecto se encuentra una violación al derecho fundamental de igualdad salarial. De la lectura de dicho inciso se desprende que personas que ocupan iguales puestos, en igualdad de condiciones, recibirán un salario diferente. De esta manera, trabajadores públicos de viejo ingreso que, si bien realizan las mismas funciones que trabajadores públicos de nuevo ingreso, son ubicados en categorías salariales diferentes. Concretamente se trata del siguiente supuesto: “Salario inferior al global: salario compuesto menor al global continuarán devengan su salario y una vez que alcance al salario global se trasladarán de manera automática a ese.” Si bien es cierto, la finalidad de las normas transitorias es realizar los ajustes necesarios para la entrada en aplicación de una ley nueva, también lo es que ese espacio de transición debe ser respetuoso de los derechos fundamentales de las personas y, en este caso concreto, esa premisa no se estaría cumpliendo. Obsérvese que los servidores públicos con salario compuesto menor al que les correspondería bajo el sistema de salario global, sería a quienes se les estaría violentando su derecho a la igualdad salarial, pues a pesar de haber entrado a laborar antes y realizar las mismas funciones que el trabajador de nuevo ingreso sujeto al salario global, estarían recibiendo un salario menor que el que reciben esos empleados nuevos. Ello supone una desigualdad salarial contraria al Derecho de la Constitución, en el mismo sentido en que lo evidencia el Informe del Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa AL-DEST-CJU-027-2021. Desde esta perspectiva, cerrar la posibilidad de que funcionarios actuales (con un salario compuesto menor al global) se puedan trasladar al salario global, constituye una desigualdad desprovista de una justificación objetiva y razonable (ver voto n°1997-4883). Tal como lo expone el resumen jurisprudencial, sobre el derecho fundamental a la igualdad salarial o derecho a la equidad salarial, éste es entendido como aquel derecho que permite diferenciar salarios de acuerdo con las condiciones del cargo (vertiente negativa), pero sin poder llegar a realizarse una discriminación (art.68 constitucional: “No podrá hacerse discriminación respecto al salario, … respecto de algún grupo de trabajadores”). A contrario sensu, el derecho al salario es aquel derecho que permite mantener mismos salarios si las condiciones del cargo son iguales (vertiente positiva). Esta última vertiente, según el art.57 constitucional que indica: “El salario será siempre igual para trabajo igual en idénticas condiciones de eficiencia.” Así entonces, se produciría una desigualdad entre los funcionarios actuales, quienes tendrían un menor salario, respecto a los funcionarios nuevos con el salario global. Todo lo cual consideramos inconstitucional.
• b)Nota separada de la magistrada Garro Vargas sobre el inciso a) del Transitorio XI y XII del proyecto sobre las reglas del salario (punto 58 del por tanto) Como premisa para examinar el agravio consultado, se hace preciso señalar que estoy consciente del propósito que subyace en el proyecto de ley, en el sentido de que —en aras de resguardar las finanzas públicas— es necesario combatir las inequidades y los mecanismos disparadores o distorsionadores del gasto público a través del pago descontrolado de pluses y reconocimientos salariales. Esto último ha generado un crecimiento incontrolado del gasto, lo que impacta sensiblemente las finanzas públicas, pero sobre todo ha creado una gran desigualdad (salarial y de responsabilidades) entre los mismos servidores públicos que realizan labores similares.

Ahora bien, para examinar y contextualizar la duda de constitucionalidad planteada, corresponde hacer referencia también a lo señalado en la exposición de motivos del proyecto de ley. La iniciativa parlamentaria parte del objetivo de mejorar y actualizar los mecanismos de compensación para todos los servidores públicos. De la atenta revisión de dicha exposición de motivos se desprende que una de las máximas es justamente procurar la igualdad salarial:

“Recomendaciones de la CGR en el tema de remuneraciones:

En diferentes oportunidades, la Contraloría General de la República ha llamado la atención sobre la necesidad de revisar el esquema de remuneraciones, principalmente de aquellos incentivos salariales que generan disparidades entre los mismos tipos de puesto, como es el caso de las anualidades. En el estudio Retos para la modernización del esquema remunerativo en los ministerios de Gobierno DFOE-SAF-OS-00001-2018, la CGR reveló que hay un conjunto de principios marco que deben regir la gestión de las remuneraciones en el sector público, tales como el pago de un salario igual en condiciones iguales y pagar un salario distinto si existen diferencias, tal y como lo establece el artículo 57 de la Constitución Política. Concretamente el informe de la CGR indicó lo siguiente:

‘En el estudio se determina, a partir de la revisión de literatura, que existen principios generales hacia los cuales se pueden orientar los esquemas de remuneraciones en el sector público, con el objetivo de contar con recurso humano motivado, efectivo y eficiente. Estos son: pagar igual salario por el mismo trabajo realizado en las mismas condiciones; pagar diferente salario en presencia de diferencias en el trabajo realizado, responsabilidades asignadas y calificaciones requeridas; pagar salarios en el gobierno comparables al de las habilidades equivalentes a las del sector privado; revisar periódica y sistemáticamente los esquemas de remuneración, para garantizar su continua validez’”. (Lo destacado no corresponde al original).

Concretamente, respecto de la gestión de compensación, la exposición de motivos del proyecto de ley lo resume en el siguiente sentido:

“Gestión de la compensación: Se establecen postulados rectores que orientan la gestión de la remuneración y el reconocimiento de incentivos monetarios y no monetarios por competitividad, productividad y desempeño.

Adicionalmente, se acogen las recomendaciones de la Contraloría General de la República y la Organización para el Desarrollo y la Cooperación Económica, las cuales van en la línea de reducir las distorsiones salariales tanto verticales como horizontales, mediante la introducción del salario global para las nuevas personas servidoras públicas, así como aquellas que opten por trasladarse, y para los jerarcas institucionales”. (Lo destacado no corresponde al original).

Por eso, uno de principios nucleares en los que se fundamenta esta reforma es la equidad salarial, como mecanismo previsto justamente para evitar las distorsiones salariales. En el art. 4 del proyecto de ley aprobado en primer debate se recoge lo siguiente:

“c) Principio de equidad salarial: la remuneración de las personas servidoras públicas se determinará con fundamento en estrictos criterios técnicos, en función de la responsabilidad y el cargo que ejerzan, procurando que las diferencias salariales en la propia dependencia o en relación con las otras entidades y órganos incluidos sean diferencias consistentes y razonables, y se respete el principio de igual función igual salario”. (Lo destacado no corresponde al original).

Ahora bien, para atender la migración hacia ese esquema de compensación ideado de “salario global”, el proyecto de ley propuso en un primer momento el siguiente mecanismo:

“TRANSITORIO XI- Transición al salario global La transición a salario global será facultativo para las personas servidoras públicas activas a la fecha de entrada en vigencia de la presente ley. Vía reglamento se determinará el orden así como los porcentajes máximos del total de la planilla, que en cada una de las dependencias públicas incluidas en el artículo 2° de esta ley, irá migrando de forma gradual a la remuneración por salario global”.

Es decir, en un primer momento, se valoró que un mecanismo podría ser el tránsito voluntario a las reglas del salario global. Sin embargo, la Contraloría General de la República (CGR) cuestionó la posible incidencia en la situación fiscal y por eso recomendó la realización de una serie de estudios técnicos que justificaran la decisión. Así, por ejemplo, en el informe DJ-1737-2020, DFOE-0116-2020 de 24 de noviembre de 2020, la CGR dirigió las siguientes recomendaciones a la Asamblea Legislativa:

“Con el propósito de alcanzar gradualmente los efectos positivos esperados de la implementación del salario global en todo el sector público, de seguido se realizan algunas observaciones y alertas sobre los mecanismos de transición propuestos y sus posibles impactos en las finanzas públicas, en aras de que se realicen las valoraciones correspondientes durante la discusión legislativa y se logre diseñar una transición factible, sostenible y gradual a partir de una medida razonable que haga viable la necesaria reforma al régimen de empleo público, teniendo en cuenta que cualquier medida aplicada tendrá un efecto multiplicador cuyo costo económico será indispensable conocer y analizar. Como primer aspecto se observa que el transitorio no incluye a las personas servidoras de nuevo ingreso, por lo que se comprende que para estas regirá directamente la modalidad de salario global una vez que inicien su relación laboral. Esto resulta coincidente con lo señalado en varias ocasiones por la Contraloría General, respecto de la necesidad de que el proyecto de empleo público contemple reglas simples y sustentadas técnicamente respecto a la implementación del salario global, abordando primero a las personas servidoras de nuevo ingreso y luego, gradualmente, las personas ya integradas a la función pública. Ahora bien, debe señalarse que el transitorio XI propone reglas para incluir bajo esa modalidad a las personas servidoras ya integradas actualmente al sector público, bajo diferentes escenarios, son respecto de estos que se requiere puntualizar las observaciones y alertas del Órgano Contralor. Así, el primer escenario abre la posibilidad de traslado voluntario al salario global para aquellos funcionarios que al momento de la entrada en vigencia de la ley devengan un salario compuesto menor que aquel que les va a corresponder como salario global de su respectiva categoría; el segundo escenario regula el cese de incrementos para los 2 servidores públicos que al entrar en vigor la ley devenguen un salario compuesto superior al salario global que corresponda a su categoría, lo anterior hasta que el salario global alcance el nivel de su remuneración actual, momento a partir del cual continuarán bajo el régimen de salario global, al igual que quienes opten por mantener el esquema compuesto en el primer escenario. Especial atención merece el primer supuesto, correspondiente al traslado voluntario, por cuando debe advertirse que esta modalidad de transición tendría implicaciones fiscales a corto plazo que en la situación actual de las finanzas públicas haría inviable su financiamiento y pondría en riesgo la efectiva y sostenible transición al modelo de salario único y sus beneficios futuros. Si bien de manera acertada esta regulación busca estandarizar y homologar los diferentes esquemas de retribución salarial vigentes en la Administración Pública, a fin de establecer un modelo que con el paso del tiempo elimine las disparidades que genera el esquema de salario compuesto y disminuya la estructura desigual y no equilibrada de los diversos regímenes salariales que existen actualmente, es indispensable para su análisis y aprobación que el legislador disponga de datos claros y precisos suministrados por el Poder Ejecutivo sobre las estimaciones económicas que estos mecanismos de transición conllevan y que aporten evidencia de que existirán las fuentes de financiamiento necesarias para hacer frente a las erogaciones que puedan derivarse, no solo a nivel de todo el sector público sino de frente a cada realidad institucional. Resulta indispensable para la aprobación del transitorio señalado, contar con la información adecuada que permita sopesar las implicaciones de este mecanismo a fin de asegurar que se proponga una transición viable tanto jurídica como económicamente. Dicha información permitirá también gestionar atinadamente -desde ya- eventuales efectos inmediatos y durante los primeros años, sobre las finanzas públicas, especialmente en el complejo escenario económico actual caracterizado por el desequilibrio fiscal que compromete severamente la disponibilidad de fondos para hacer frente a nuevas erogaciones por parte del Estado.

Sobre el particular, para ilustrar la relevancia de contar con los datos oportunos, pertinentes y precisos según se señaló, la Contraloría General realizó un análisis de los 3 efectos que tendría la aplicación del transitorio propuesto al aplicarlo a 30 instituciones del Gobierno Central. Se determinó -a modo de referencia- que el rubro por concepto de remuneraciones, en promedio, podría incrementarse entre un 1 y 5%, dicho incremento podría variar entre instituciones en un rango entre el 0,1 y el 12,8% dependiendo de factores como el salario definido y la estructura organizacional. Lo anterior implicaría, al menos, una previsión presupuestaria promedio de poco más de 18.000 millones de colones para ese grupo, siendo mayor la previsión para todo el sector público. Por ello, considera este Órgano Contralor que de mantenerse la idea y para lograr la transición de las personas servidoras públicas actualmente integradas al sector público, deben valorarse otros mecanismos de transición que contemplen medidas razonables, sostenibles y graduales para asegurar una verdadera reforma al régimen de empleo público. Tal medida podría ser que tratándose de personas servidoras públicas que a la entrada en vigencia de la ley devenguen un salario inferior al que les corresponde según la categoría de salario global pertinente, su traslado se faculte en tanto resulte viable conforme a las posibilidades financieras de la Administración, ligado con el comportamiento de la deuda del Gobierno Central, de tal forma que los traslados voluntarios puedan autorizarse de conformidad con el análisis de la disminución de la deuda pública. Lo anterior no sólo permitiría contar con criterios objetivos y técnicos para la toma de decisiones sino que guardaría coherencia con los esfuerzos de saneamiento de las finanzas públicas ya introducidos mediante la Ley n.° 9635. Así, los traslados voluntarios podrían permitirse únicamente cuando la deuda del Gobierno Central sea inferior al 60% del PIB, de lo contrario no existirá la posibilidad del traslado. Adicionalmente, de acuerdo con el planteamiento que establece el transitorio XI, pareciera no incluirse el supuesto de aquellas instituciones públicas que ya han implementado, con base en sus propias regulaciones, esquemas de salario único o global y que operan actualmente bajo tales reglas, de forma total o parcial. En tal caso, no se observa claridad en cuanto a cuál sería el proceder en esas instituciones, dentro de las cuales se cuenta este Órgano Contralor, por lo que se sugiere precisar en esos casos las reglas bajo las cuales habría de aplicarse la norma”. (Lo destacado no corresponde al original).

De la anterior cita conviene destacar que se afirma que la migración hacia el esquema de compensación diseñado por el legislador requiere de estudios, por cuanto “cualquier medida aplicada tendrá un efecto multiplicador cuyo costo económico será indispensable conocer y analizar”. Asimismo, la CGR enfatizó que para la aprobación del transitorio propuesto —o cualquier otra medida transitoria, agregaría yo? se requiere de la “información adecuada que permita sopesar las implicaciones de este mecanismo a fin de asegurar que se proponga una transición viable tanto jurídica como económicamente”. En mi criterio, una transición jurídica viable implica, justamente, reconocer las normas de orden constitucional que sustentan los reconocimientos salariales de los servidores públicos y, además, los criterios económicos que razonablemente respalden la respectiva determinación.

Ante los cuestionamientos planteados, el legislador optó por otra propuesta de norma transitoria, que es la que acá se consulta. La redacción quedó de la siguiente manera:

“a) Quienes devenguen un salario compuesto menor al que le correspondería a su categoría bajo la modalidad de salario global, continuarán devengando su salario en la forma en que lo venían haciendo y podrá incrementarse por el pago por concepto de anualidad, que en derecho les corresponda y una vez que su salario compuesto iguale el monto que les correspondería bajo el esquema de salario global, se trasladarán de manera automática a este régimen salarial, el mes siguiente” (lo destacado no corresponde al original).

De la lectura de la propuesta parlamentaria se desprende que el mecanismo ideado es aquel en el que los servidores que tengan un salario compuesto menor al definido para su columna salarial mantendrán dicho salario inferior al que recibirán los servidores nuevos que ingresen al régimen de empleo público bajo las reglas del salario global. La posibilidad de que se iguale sólo se dará cuando por el incremento de las anualidades el salario compuesto llegue al mismo monto que el salario global.

Desde mi perspectiva la norma consultada es abiertamente irrazonable y contraria a los principios que rigen el derecho laboral y concretamente el de igualdad salarial que está contemplado en la Constitución Política. Esta ordena en el art. 57: “El salario será siempre igual en idénticas condiciones de eficiencia”. Y en el art. 68 constitucional señala: “No podrá hacerse discriminación respecto al salario, ventajas o condiciones de trabajo entre costarricenses y extranjeros, o respecto de algún grupo de trabajadores”. Por lo demás, el Código de Trabajo, que rige supletoriamente en esta materia, recoge dicho principio al establecer en el art. 167: “Para fijar el importe del salario en cada clase de trabajo se tendrán en cuenta la cantidad y calidad del mismo. A trabajo igual, desempeñado en puesto, jornada y condiciones de eficiencia iguales, corresponde salario igual”. Sobre dicho principio, la Sala Constitucional ha referido, por ejemplo, en la sentencia n.°2010-004659, lo siguiente:

“II.- Sobre el principio de igualdad en general y el principio de igualdad salarial. La igualdad, como lo ha reiterado este Tribunal, debe entenderse en función de las circunstancias que concurren en cada supuesto concreto en el que se invoca, de tal forma que la aplicación universal de la ley, no prohíbe que se contemplen soluciones distintas ante situaciones también diversas:

‘La jurisprudencia constitucional a través de varios pronunciamientos ha logrado decantar el contenido del principio de igualdad establecido en el artículo 33 de la Constitución señalando que por medio de él, se prohíbe hacer diferencias entre dos o más personas que se encuentren en una misma situación jurídica o en condiciones idénticas, sin que pueda pretenderse un trato igual cuando las condiciones o circunstancias son desiguales y se posibilita un trato diferente a situaciones y categorías personales diferentes. Esa fórmula tan sencilla fue reconocida desde hace muchos años por la Corte Constitucional, a la fecha la Corte Suprema de Justicia, que tenía a su cargo el conocimiento de los recursos de inconstitucionalidad antes de la creación de esta Sala especializada. Pero la exigencia de igualdad no legítima cualquier desigualdad para autorizar un trato diferenciado; para determinar si realmente se justifica una discriminación, hay que analizar si el motivo que la produce es razonable, es decir, si atendiendo a las circunstancias particulares del caso se justifica un tratamiento diverso.’ (Sentencia nº 1372-92, de las catorce horas y cincuenta minutos del veintiséis de mayo de mil novecientos noventa y dos).

El principio de igualdad salarial, que se desprende de los artículos 33, 57 y 68 de la Constitución Política, debe entenderse como el derecho a recibir igual remuneración por igual tarea realizada o, como lo dispone el propio artículo 57, “El salario será siempre igual para trabajo igual en idénticas condiciones de eficiencia”. Es decir, la igualdad salarial se encuentra contemplada bajo la premisa de que a una misma categoría corresponde un mismo salario. Así lo dispone el párrafo primero del artículo 68 de la Constitución Política que establece: “No podrá hacerse discriminación respecto al salario, ventajas o condiciones de trabajo entre costarricenses y extranjeros, o respecto de algún tipo de trabajadores”. Sin embargo, ello no implica que las diferencias de trato entre categorías de trabajadores sea inconstitucional. Al respecto, este Tribunal ya ha señalado:

‘Así, como tesis de principio podemos sostener que mientras la discriminación no atente contra la dignidad humana o mientras la creación de categorías que otorguen a las personas un trato diferente sea razonable, la igualdad jurídica es respetada. Deben recibir igual tratamiento quienes en igual situación se encuentran. Como la regla no es absoluta, ha de entenderse como mandato de tratar igual a todos los que se sean parte de una determinada categoría. Tradúcese así el problema en que las categorías no deben ser arbitrarias y en que tampoco deben serlo los criterios para reformar parte o ser excluido de ellas.’ Sentencia N.00138-93 de las 15: 55 horas del 12 de enero de 1993”.

El mecanismo propuesto entonces es contrario al principio constitucional de igualdad salarial, puesto que dos servidores que realizan mismas funciones y se encuentran dentro de la misma familia y categorización de puestos diseñada técnicamente estarían recibiendo salarios disímiles sin un fundamento constitucional razonable. Esto, por lo demás, es contrario al origen y motivación del proyecto de ley que, según se consignó, es perseguir la equidad salarial. En efecto, en el caso concreto, si se trata de funcionarios que están adscritos ya a un régimen de empleo público, eso significa que han sido sometidos a un proceso de elección por idoneidad comprobada y a un constante proceso de evaluación de resultados, por lo que parece irrazonable que vayan a recibir un salario menor del que le corresponde conforme a la valoración técnica de su columna salarial. Este mecanismo va en contra de la lógica del pago de salario que contempla dentro de sí el reconocimiento de la experiencia y de la capacitación, y devalúa estos aspectos tan importantes para garantizar la eficiencia en el servicio público.

Recuérdese que el principio de igualdad se quebranta cuando una determinación está desprovista de una justificación objetiva y razonable. En el caso concreto, el diseño elegido para los funcionarios que tienen un salario compuesto menor al que se determina para su categoría salarial carece de esa justificación. Ciertamente, se ha dicho que es posible que el poder público otorgue tratamientos diferenciados a situaciones distintas (como se podría pensar que es este caso ?funcionarios con salario compuesto y funcionarios con salario global—), pero esa distinción debería estar fundada en una base objetiva, razonable y proporcionada. En el caso bajo examen no se advierte cuál esa base que justifique la distinción salarial. Es irrazonable que, pese a existir una decisión técnica que cualifica un puesto de trabajo, se castigue salarialmente al empleado más capacitado y con experiencia en el puesto, es decir, al que ha demostrado mayor mérito. Esto, claro está, partiendo del hecho de que ya la Administración ha venido implementando la evaluación de rendimiento y resultados. Pero, aunque no fuese así, aunque no haya realizado tal evaluación, nada hace presumir que los funcionarios actuales tienen menos experiencia que los nuevos, ni hay elementos para que el legislador tenga como cierto que estos, por el hecho de ser nuevos, están más capacitados que aquellos.

En consecuencia, no sería justo que el salario a los actuales trabajadores cuyo monto sea inferior al salario global que se asigne a su nueva clase, permanezca así por tiempo indefinido. Esto por cuanto sólo pueda ser incrementado por concepto de anualidades. Primero porque justamente no corregiría el objetivo principal del proyecto de ley que es proscribir la inequidad existente (salario-trabajo); pero también porque permitir que el personal nuevo que sea contratado para esa misma clase o categoría, bajo el salario global establecido, por un monto mayor al que tiene el salario compuesto, generaría una desigualdad de derecho con los actuales servidores, que incluso tengan mayor experiencia y trayectoria, lo cual sería inconstitucional por infracción al principio constitucional de igualdad salarial y al de razonabilidad. Es claro que es discriminatorio e irrazonable que valores esenciales en la remuneración como lo son la experiencia, la capacitación y los resultados demostrados (el mérito) queden devaluados, invisibilizados o no reconocidos. Del mismo modo, sería irrazonable que, por ejemplo, dentro de una misma organización los mandos medios ganen más que mandos altos justamente por el diseño en que está concebido el transitorio en cuestión. Esto igualmente supondría una discriminación porque no es razonable que ganen igual, y mucho menos lo sería si gana menos, dos funcionarios con cargas de responsabilidad distintas.

De la lectura de las recomendaciones de la CGR se desprende que se habían pensado diversas salidas para afrontar este tránsito a ese esquema de remuneración. La transición voluntaria fue objetada porque iría en contra del propósito de proyecto de ley y de la delicada situación de las finanzas públicas. Pero la CGR sí recomendó la necesidad de que se justificara actuarialmente la medida, lo que no consta que se haya cumplido en el caso concreto. Es decir, partiendo de la exposición de motivos y de la situación fiscal en la que nos encontramos, y a la luz del principio constitucional de razonabilidad, es necesario la justificación técnica de la decisión. De manera que la ausencia de una justificación técnica de la decisión adoptada es un elemento adicional que redunda en la inconstitucionalidad de la medida transitoria propuesta.

Asimismo, la falta de un plazo específico para equiparar los salarios es otro elemento por el cual es posible argumentar que la disposición lesiona el principio de razonabilidad y, concomitantemente, el principio de seguridad jurídica. Resulta contrario a toda lógica que un funcionario con experiencia y evaluaciones de desempeño satisfactorias, desde el punto de vista salarial, esté por debajo de los funcionarios nuevos que carecen de esa ansiada experiencia y capacitación en el puesto. Si hay una reforma general salarial que va en beneficio de un determinado puesto laboral, debe beneficiarlos a todos so pena de desconocer justamente el principio de equidad salarial propuesto como germen de esta iniciativa parlamentaria.

La seguridad jurídica se traduce en que las situaciones jurídicas no se mantengan en un estado precario, en menoscabo del orden público y la paz social. En aplicación del principio de seguridad jurídica el Estado está obligado a proveer un marco normativo para que las personas sepan a qué atenerse en sus relaciones con la administración. En el caso concreto la decisión está desprovista de cualquier razonabilidad y seguridad jurídica, pues se desconoce (hay incerteza) por cuánto tiempo podría estar el funcionario, que realiza idénticas funciones y con mayor experiencia, recibiendo un salario menor que aquel funcionario nuevo que ingresa a laborar bajo el esquema del salario global. Es decir, se trata de una medida indeterminada en el tiempo.

Finalmente corresponde recordar que el principio constitucional de razonabilidad de las normas: que estén dotadas de legitimidad, idoneidad, necesidad y proporcionalidad en sentido estricto. En el caso concreto parece romperse la idoneidad y la proporcionalidad de la medida, pues podrían existir otros mecanismos mejor justificados para realizar el tránsito a este esquema salarial que estén debidamente sustentados en estudios actuariales, tal y como lo propone la CGR, y que no desconozcan los principios constitucionales del pago de los salarios.

• c)Nota separada de la magistrada Picado Brenes sobre el Transitorio XI y XII del proyecto sobre las reglas del salario (punto 58 del por tanto) Por mayoría, la Sala ha señalado que los Transitorios XI y XII del proyecto de Ley Marco de Empleo Público que se refieren a las reglas del salario, no resultan inconstitucionales. En este punto debo hacer la aclaración de que la Sala, para llegar a esa conclusión, hizo el análisis de estos transitorios únicamente en relación con los principios de igualdad y no discriminación y el principio de equilibrio financiero y presupuestario. Por su parte, en lo referente al principio de legalidad que fue mencionado por los consultantes, el Tribunal manifestó que éstos no hicieron una argumentación adecuada desde la óptica del Derecho de la Constitución por lo que no se emitió ningún criterio al respecto.

Transitorio XI y XII: de su lectura se desprende que permiten que personas ocupen iguales puestos en iguales condiciones pero estarían recibiendo un salario diferente. Ciertamente, a la luz de estos transitorios, coexistirían regímenes salariales diferentes para personas que, si bien realizan las mismas funciones, están ubicadas en categorías salariales diferentes, teniéndose una diferenciación salarial entre personas que se ubican en tres supuestos diferentes pero que realizan las mismas funciones.

Aun cuando la Sala omite hacer referencia a otros artículos del proyecto relacionados con la remuneración salarial -ubicados en el Capítulo VIII relativo a la Gestión de Compensación que incluye los numerales 30 a 37-, resulta indispensable tomar en cuenta algunos de ellos para explicar mejor nuestra posición, como por ejemplo los numerales 30 a), 34 y 35:

Art.30.a y 34: de la lectura de ambos numerales se observa que existirá un mismo salario, el que será siempre igual para igual trabajo en idénticas condiciones de eficiencia, puesto, jornada y condiciones, independientemente de la institución pública para la que labore la persona servidora pública. Esto significa entonces que será un salario igual para funcionarios de distintas instituciones, sin importar por ejemplo si el trabajador abogado se desempeña como Juez en el Poder Judicial, o como Juez en un Tribunal Administrativo, o como asesor en una institución pública, o en el Parlamento o en un ministerio. A su vez, según el artículo 34 del proyecto, se crea una sola columna salarial para los grados en cada una de las familias laborales. Siendo que cada grado de cada familia albergaría, en condición de igualdad, trabajadores con funciones tan disímiles como sería empleados de las ciencias de la salud, funciones policiales (del Ministerio de Seguridad igual que del Organismo de Investigación Judicial), administradores de justicia, entre otros, es más que evidente que a la luz del proyecto, en el caso propuesto de un abogado, solo interesará que se trata de un profesional en derecho y por ese solo hecho, se le dará un tratamiento igual independientemente del lugar donde ese abogado se desempeñe. En la práctica ello significa que se verían las funciones de un profesional en derecho como una amalgama de labores, que se pueden colocar en uno u otro sitio, pero sin tomarse en cuenta que deberán ser diferentes según la institución en la que se labore. Claramente estas normas, al aplicarse a todo el Aparato Estatal por igual, sin distinción, y bajo ese marco de acción planteado por el proyecto en el que todos los abogados, por ejemplo, por serlo deben ganar igual, comprendería una violación al principio a la igualdad salarial. Art. 35: obsérvese que este numeral dispone que el régimen salarial será unificado, estará basado en la columna salarial global y se aplicará a todo el sector público por lo que todas las instituciones serán incluidas. Con sustento en ese régimen salarial unificado, también se vulnera el derecho a la igualdad salarial, porque no se está tomando en cuenta ninguno de los elementos integrantes del salario para determinarlo, sino que es simplemente la igualdad por la igualdad misma. Es indispensable recordar que cada empleado se interesa en invertir trabajo, dedicación y esfuerzo personal, conocimientos y habilidades, si recibe la retribución adecuada y, a nivel de las organizaciones, la eficacia con la que se maneja la remuneración constituye una diferencia significativa para aumentar o reducir la competitividad ya sea organizacional o la de los empleados. La elaboración de un plan de remuneración requiere cuidado pues provoca un fuerte impacto en las personas y en el desempeño de la organización por sus efectos y consecuencias, por lo tanto, para esa fijación es imprescindible que se tomen en cuenta y se analicen las diferentes funciones de la persona trabajadora y no hacerlo solo por el hecho de que es abogado, usando nuevamente esta profesión como ejemplo. El numeral 35 olvida por completo que la política salarial constituye un aspecto particular y específico de la gestión del talento humano que es propia y consustancial a la organización, por lo tanto esa dejará de existir para convertirse en una política salarial centralizada que exige igual salario para iguales funciones sin atender a la especificidad de cada institución, y mucho menos a su cultura organizacional, su ambiente laboral, los valores compartidos, los niveles de rotación, entre otros aspectos que son muy específicos de cada institución y que son muy importantes a tomar en cuenta a la hora de establecer una política salarial. Último párrafo del Transitorio XI y Transitorio XII: al excluir a todas las personas servidoras públicas de incrementos salariales por concepto de costo de vida, lo cual se trataría de un congelamiento sin límite en el tiempo y sin justificación, se viola el derecho al salario y del principio de dignidad en el trabajo.

Se denota que lo establecido en el proyecto consultado, en estas normas, va más allá de lo recomendado por la OCDE al respecto, quien recomendó migrar gradualmente hacia un esquema de salario único, pero para los nuevos funcionarios, y en un plazo de 35 años. En todo caso, también es menester recordar que la OCDE no obliga al país a nada, simplemente emite recomendaciones que el país deberá analizar, valorar y determinar si puede aplicar o no.

Así las cosas, con sustento en lo dicho, a partir del contenido de los Transitorios XI y XII bajo estudio, se tendría que tres tipos de trabajadores, en las mismas condiciones de empleo, podrían estar recibiendo salarios distintos. Ello sin contar con el congelamiento de los incrementos salariales, sin límite de tiempo, que va en contra de la dignidad humana.

Procedo de seguido a analizar una serie de factores se debieron tomar en cuenta para luego concluir sobre la constitucionalidad de los Transitorios XI y XII del proyecto de Ley Marco de Empleo Público que se refieren a las reglas del salario.

Aspectos a valorar en relación con los salarios:

• a)Sobre el derecho al salario y su contenido esencial: El artículo 57 de la Constitución Política establece que “Todo trabajador tendrá derecho a un salario mínimo, de fijación periódica, por jornada normal, que le procure bienestar y existencia digna. El salario será siempre igual para trabajo igual en idénticas condiciones de eficiencia (…)”.

En reiterada jurisprudencia, este Tribunal ha expresado que el salario es un derecho de rango constitucional del trabajador y una obligación para el patrono. Al respecto, en la sentencia No. 6074-95 de las 13:21 horas del 14 de octubre de 1994, se indicó en lo que interesa:

“En este sentido es importante señalar que el salario, como remuneración debida al trabajador en virtud de un contrato de trabajo, por la labor que haya efectuado o deba efectuar o por los servicios que haya prestado o deba prestar, es una obligación del empleador que por la utilidad que representa para el trabajador y por su propia naturaleza, debe pagarse a intervalos regulares. No puede entenderse que un intervalo regular sea mayor de tres meses tomando en cuenta la necesidad del trabajador de solventar los gastos que genera el diario vivir. Por su parte la Constitución, en su artículo 57, garantiza el salario de fijación periódica por jornada normal, como derecho fundamental de todo trabajador que debe hacer frente a las necesidades que como todo ser humano tiene y a los deberes de subsistencia de su familia”.

Como se puede observar, esta compensación o retribución económica, establecida como una obligación de cumplimiento del patrono, que recibe un trabajador por la labor realizada, busca garantizar su manutención y la de su familia, de allí que se proteja este derecho a fin de evitar abusos que menoscaben su dignidad humana. Esta vinculación del derecho al salario con la dignidad humana se encuentra no solo en la Constitución Política, sino también en instrumentos de Derecho Internacional. Así, el artículo 23.3 de la Declaración Universal de Derechos Humanos establece:

“3. Toda persona que trabaja tiene derecho a una remuneración equitativa y satisfactoria, que le asegure, así como a su familia, una existencia conforme a la dignidad humana y que será completada, en caso necesario, por cualesquiera otros medios de protección social”.

Por su parte, el artículo 45.b de la Carta de la Organización de los Estados Americanos, en el cual se señala que:

“El trabajo es un derecho y un deber social, otorga dignidad a quien lo realiza y debe prestarse en condiciones que, incluyendo un régimen de salarios justos, aseguren la vida, la salud y un nivel económico decoroso para el trabajador y su familia, tanto en sus años de trabajo como en su vejez, o cuando cualquier circunstancia lo prive de la posibilidad de trabajar”.

Por su parte, el artículo XIV de la Declaración Americana de los Derechos y Deberes del Hombre, dispone:

“Artículo XIV: “Toda persona tiene derecho al trabajo en condiciones dignas y a seguir libremente su vocación, en cuanto lo permitan las oportunidades existentes de empleo. Toda persona que trabaja tiene derecho de recibir una remuneración que, en relación con su capacidad y destreza le asegure un nivel de vida conveniente para sí misma y su familia”.

De lo anterior se puede concluir que la dignidad humana es el criterio rector en el desarrollo del contenido esencial del derecho al salario y sus límites, pues lo que se busca es que el trabajador cuente con un nivel de vida adecuado, de acuerdo con sus necesidades elementales, y tomando en cuenta la actividad que desempeña, la categoría de tarea, el grado de especialización, la cualidad del trabajo, entre otros aspectos.

En cuanto al régimen jurídico aplicable, la legislación nacional estableció un sistema de fijación salarial especial para los servidores cubiertos por el régimen estatutario, lo que implica que las disposiciones sobre salarios mínimos que contiene tanto el Código de Trabajo, como la Ley de Salarios Mínimos (Nº 832 de 4 de noviembre de 1949), no son aplicables a todos los servidores y empleados públicos pero tampoco podría ser de aplicación general a los empleados del sector privado y por ello, este Tribunal ha reconocido que el régimen de empleo público y su fijación salarial difiere del establecido para el sector privado, pues responden a criterios diferentes. Así pues, en la sentencia No. 2021-07445 de las 9:15 horas del 15 de abril de 2021, la Sala indicó en lo que interesa:

“a) Sobre el régimen de empleo público y privado. En reiteradas ocasiones, este Tribunal se ha pronunciado sobre el régimen estatutario y su diferencia con el sector privado en este sentido:

“III.- Sobre el régimen estatutario. Nuestros constituyentes originales consignaron en la Constitución Política de 1949, que debía existir un régimen laboral administrativo que regulara las relaciones entre los servidores públicos y el Estado, a fin de proteger a los primeros de destituciones arbitrarias (estabilidad en el empleo) y de profesionalizar la función pública (búsqueda de la eficiencia en el servicio y de la idoneidad del funcionario). El objeto de tal cometido fue procurar que la Administración Pública contara con factores organizativos que le permitieran satisfacer el derecho de los ciudadanos al buen funcionamiento de los servicios públicos. Para ello, el procedimiento para seleccionar y nombrar a un servidor en la Administración Pública, debe cumplir con los principios fundamentales que prevén los artículos 191 y 192 constitucionales, con lo que se procura personal idóneo para ocupar un puesto público, con el propósito de garantizar la eficiencia y efectividad en la función pública. El régimen de servicio civil no se erige entonces como un privilegio corporativo, sino como una garantía de la imparcialidad institucional. Para ello, el marco normativo que regula la función pública, debe garantizar la selección del personal con base en criterios de mérito y capacidad, así como en un justo equilibrio entre derechos y responsabilidades de los empleados públicos. También, dicha legislación debe prever instrumentos que a las diferentes administraciones les faciliten la planificación, ordenación y utilización más eficiente de su personal. De ahí que la relación laboral de empleo público esté sujeta a ciertas especificidades y principios, como los de mérito y capacidad en el acceso, y también a determinadas normas de derecho público, como el régimen de incompatibilidades, que garanticen objetividad e imparcialidad en la prestación del servicio público… Expuesto lo anterior, resulta claro y evidente, que , a partir del año 1949, el ordenamiento jurídico que regula la relación de empleo entre la administración pública y sus servidores en nuestro país, se rige por el derecho público, principio que se reitera en el artículo 112 de la Ley General de la Administración Pública (ver al efecto, la sentencia n.° 1995-3125 de las 16:24 horas del 14 de junio de 1995). Este régimen implica, necesariamente - como se indicó en el precedente supracitado - que esa relación, por su propia naturaleza, se basa en principios generales propios, no solo distintos a los del derecho laboral (privado), sino incluso muchas veces contrapuestos a estos… Menos aún, cuando tales disposiciones laborales podrían ser impuestas al Estado en su condición de patrono, por órganos externos a este en los que confluyen intereses ajenos, y a veces contrarios a los fines de la administración pública. De acuerdo con lo señalado por la Sala en la sentencia n.° 2003-10615, la redacción finalmente dada al artículo 191, junto con el proceso de profunda descentralización que experimentó el Estado costarricense a partir de 1949, conllevaron a que actualmente resulte válida la existencia de diversas relaciones estatutarias en la Administración, en atención a la independencia funcional y autonomía administrativa que el ordenamiento asegura a varias instituciones públicas. Sin embargo, “lo que no resulta legítimo –según se dijo- es que las relaciones entre cada Administración-patrono y sus funcionarios se rijan por reglas concertadas (contractuales) entre ambas partes, como válidamente ocurre en las relaciones de empleo privado.” La Sala ha reconocido que existen dos grandes categorías de empleados que prestan sus servicios al Estado: los que tienen la condición de "funcionario público", "servidor público", o de "empleado público", y los que laboran para empresas o servicios económicos del Estado, encargados de gestiones sometidas al derecho común. Los primeros han sido definidos, como aquellos que en el desempeño de sus funciones realizan la gestión pública del Estado, a los que en -consecuencia- les es aplicable el régimen de empleo público, con todos los principios y características que derivan de lo dispuesto en los numerales 191 y 192 de la Constitución Política; y mientras que los segundos son aquellos obreros, trabajadores y empleados que si bien laboran para el Estado, no tienen la condición de funcionarios o servidores públicos por no participar en la gestión pública de la administración, toda vez que son contratados por empresas públicas o de servicios económicos del Estado encargados de gestiones sometidas al derecho común conforme al ejercicio de su capacidad de derecho privado, en virtud de lo cual su régimen de empleo se rige con las normas del derecho común, esto es, la legislación ordinaria laboral (ver sentencia n.° 2006-14416).

Corolario de lo anterior, la relación de empleo público que aplica a los servidores públicos, es una relación especial de derecho público o estatutaria, que por tal naturaleza jurídica tiene limitaciones en cuanto a la aplicación del derecho laboral común. Asimismo, su regulación está sometida a los ordinales 11, 191 y 192 de la Constitución Política…”. (Sentencia n.° 2018-231 de las 11:00 horas del 10 de enero de 2018). (El énfasis no es del original).

En materia de salarios del sector público, en sentencia n.° 1998-3089 precisó la Sala:

“…La política de salarios derivada de las relaciones de servicio -entre la Administración y sus servidores (art. 112 LGAP), como régimen estatal de empleo público, uniforme y universal, es, por supuesto, parte integrante de la política de gobierno (SSC N.° 2294 de las 14:48 horas del 19 de agosto, 1992). La Corte Plena, en funciones de Tribunal Constitucional, al analizar esta materia, entre otras, señaló:

"Las metas (típica "materia de gobierno") que se fije el Estado en la remuneración de sus servidores constituye toda una política salarial que tiene que ver no solo con la retribución del esfuerzo de la persona individualmente considerada, sino también con sus consecuencias sobre los demás aspectos de la economía, ya que puede introducir factores de distorsión en lo económico debido a la intranquilidad social. Por "directriz" debe entenderse el "conjunto de instrumentos o normas generales para la ejecución de alguna cosa", o sea de pautas u orientaciones que sirven de marco conceptual para la toma de decisiones. De manera que lo relativo a la fijación de salarios como política general en el Sector Público no puede decirse que es materia principal, exclusiva o predominantemente "administrativa", sino que más es bien de "gobierno", y en que la sujeción de un ente descentralizado a la Ley no solo es posible sino también necesaria y conveniente". (Sesión Extraordinaria N.° 42 de las 13:30 horas del 14 de junio, 1994).” (El énfasis no es del original).

Es decir, no solo se trata de dos regímenes de empleo diferentes, sino que, además, la función pública se retribuye conforme otros principios que la rigen. Ahora bien, independientemente de que existen diferentes estatutos en la administración pública, cuya validez ha avalado este Tribunal (ver la sentencia supracitada n.° 2018-231 de las 11:00 horas del 10 de enero de 2018), en lo concerniente al Estatuto de Servicio Civil, punto de interés en esta acción, dada la remisión a la que hace el ordinal 8 impugnado respecto del Régimen de Sueldos, se señala lo siguiente:

“Artículo 48.-Los sueldos de los funcionarios y empleados protegidos por esta ley, se regirán de acuerdo con las siguientes reglas:

• a)Ningún empleado o funcionario devengará un sueldo inferior al mínimo que corresponda al desempeño del cargo que ocupe.
• b)Los salarios de los servidores del Poder Ejecutivo serán determinados por una Ley de Salarios que fijará las sumas mínimas, intermedias y máximas correspondientes a cada categoría de empleos.
• c)Para la fijación de sueldos se tomarán en cuenta las condiciones fiscales, las modalidades de cada clase de trabajo, el costo de la vida en las distintas regiones, los salarios que prevalezcan en las empresas privadas para puestos análogos y los demás factores que estipula el Código de Trabajo.
• d)Dentro de las cifras mínimas y máximas de que habla el inciso b), los Jefes respectivos podrán acordar aumentos de sueldos, atendiendo a factores como la eficiencia, la antigüedad, la conducta, las aptitudes y demás cualidades que resulten de la calificación periódica de sus servidores, todo esto con sujeción a lo que al efecto disponga la Ley de Salarios. Los Jefes de las diversas secciones del personal administrativo, deberán obtener, de previo a tales aumentos, la venia del supervisor jerárquico; aumentos que estarán sujetos a lo dispuesto en el inciso e) de este mismo artículo; y e) Queda prohibido a la Tesorería Nacional extender giros a favor de empleados o funcionarios, por sumas distintas a las mínimas fijadas en el Presupuesto o Ley de Salarios; y en el caso del inciso anterior, el aumento no se hará efectivo sino cuando esté incluido en la Ley de Presupuesto Ordinario, o en un presupuesto extraordinario. La Dirección General de Servicio Civil, informará a la Tesorería Nacional de los aumentos de los sueldos de los servidores públicos.” (El énfasis no es del original).

Es decir, de acuerdo con esa disposición, los salarios mínimos, medios y máximos de los funcionarios públicos regulados por el Estatuto de Servicio Civil, son fijados conforme la Ley de Salarios de la Administración Pública, para cuyos efectos de deberán tomar en cuenta las condiciones fiscales, las modalidades de cada clase de trabajo, el costo de la vida en las distintas regiones, los salarios que prevalezcan en las empresas privadas para puestos análogos y los demás factores que estipula el Código de Trabajo. Según el artículo 1º de Ley de Salarios de la Administración Pública dispone, que tal cuerpo normativo se dicta con el propósito de garantizar la eficiencia de la Administración Pública y constituye el sistema oficial de retribución para todas las clases de puestos clasificados en el Manual Descriptivo de Puestos, conforme lo dispone el Capítulo X del Estatuto de Servicio Civil. Para tales efectos, el numeral 2 de tal ley señala que por Manual Descriptivo de Puestos se entenderá el conjunto de especificaciones que indican los deberes y atribuciones de las clases del Servicio Civil y los requisitos mínimos exigidos a quienes hayan de desempeñarlos. En consecuencia, se trata de salarios fijados por una estructura organizacional compleja del sector público, lo que no necesariamente corresponde a las características de aquella existente en el sector privado en la que las partes gozan de libertad de contratación. Por otra parte, en el ordinal se regulan escalas salariales con una categoría base de aumento anual que luego se irá modificando de acuerdo con otros rubros, en caso de que procedan, como zonaje, dedicación exclusiva, anualidad, disponibilidad y otros incentivos que recientemente fueron modificados con la Ley de Fortalecimiento de las Finanzas Públicas. De esta manera, el régimen de empleo público y su fijación difiere del establecido para el sector privado, como lo ha reconocido este Tribunal:

“XI.- En opinión de esta Sala, entonces, los artículos 191 y 192 de la Constitución Política, fundamentan la existencia, de principio, de un régimen de empleo regido por el Derecho Público, dentro del sector público, como ha quedado claro del debate en la Asamblea Nacional Constituyente y recoge incipientemente la Ley General de la Administración Pública. Este régimen de empleo público implica, necesariamente, consecuencias derivadas de la naturaleza de esa relación, con principios generales propios, ya no solamente distintos a los del derecho laboral (privado), sino muchas veces contrapuestos a éstos, obviamente, la declaración contenida en esta sentencia abarca la relación de empleo que se da entre la administración (o mejor, administraciones) pública y sus servidores, más en aquellos sectores en que haya una regulación (racional) que remita a un régimen privado diferente de empleo, la solución debe ser diferente ...” Se ha agregado el énfasis, ver sentencia n.° 2002-6513 de las 14:57 horas del 3 de julio de 2002.

Recientemente, en la sentencia supracitada n.° 2020-13316, la Mayoría de esta Sala indicó:

“…Y tampoco, como se dirá luego, existe una prescripción obligatoria entre el salario de los funcionarios públicos, con el salario del sector privado, toda vez que, en el primero se acuerda por la Comisión de Negociación de Salarios del Sector Público mediante reglas del Derecho Público; y, el Consejo Nacional de Salarios Mínimos, en forma distinta, con principios jurídicos diferentes. Incluso, el salario base que se utiliza en el sector público, no necesariamente es igual al salario mínimo, aunque podrían serlo o incluso superarse, ello no supone un encadenamiento vinculante sobre el presupuesto público con lo que se decida a nivel privado…”. (Se ha agregado el énfasis).

Conforme lo expuesto y lo señalado por la Procuraduría General de la República en el dictamen n.º C-064-1992, el salario de la empresa privada va acorde con su prosperidad económica respetando el salario mínimo; por su parte, en la Administración Pública guarda relación con el presupuesto que es un límite para la acción de los poderes y se está sujeto al principio de legalidad.” De lo anterior se concluye que, en materia de empleo y salario, el sector público y privado tienen cada uno, su propio régimen jurídico: en el sector privado, prevalece una relación contractual, en tanto, en el sector público, domina la relación estatutaria de conformidad con lo dispuesto en los artículo 191 y 192 de la Constitución Política. En atención a las particulares características de la relación de servicio entre la administración y sus servidores, las condiciones salariales de los empleados públicos se fija de conformidad con las leyes y principios que regulan el empleo público, distinto a los criterios que imperan en una relación de derecho meramente privado, como se indicó.

Partiendo de lo anterior, la jurisprudencia de la Sala ha definido el contenido esencial del derecho al salario que aplica para el sector público, de la siguiente manera:

• 1)Salario mínimo: “Esta disposición, tal como lo ha indicado este Tribunal, encuentra asidero justamente en el Principio del Estado Social de Derecho, que comprende nuestra Constitución Política, conforme al cual el Constituyente dispuso fijar un piso salarial mínimo que proteja al trabajador y garantice no solo el estímulo de la producción, sino también la adecuada distribución de la riqueza (numeral 50), todo lo anterior con fundamento en el Principio Cristiano de Justicia Social, contemplado en el ordinal 74 de la misma Constitución” (ver sentencia No. 2021-7445 de las 9:15 horas del 15 de abril de 2021).
• 2)Remuneración periódica: “Este Tribunal Constitucional ha señalado que si el trabajo se concibe como un derecho del individuo, cuyo ejercicio beneficia a la sociedad y en cuanto al funcionario le garantiza una remuneración periódica, no podría aceptarse que el Estado reciba una prestación sin cancelarle el correspondiente salario o que se le entregue tardíamente” (ver sentencia No. 2006-008385 de las 17:34 horas del 13 de junio de 2006).
• 3)No incluye pluses: “(…) los diferendos en torno al pago de pluses salariales no inciden en el contenido esencial del derecho al salario, desde la perspectiva constitucional (artículo 57 de la Constitución Política), por lo que son conflictos que deben dilucidarse en sede de legalidad” (ver sentencia No. 2017-0000170 de las 9:05 horas del 11 de enero de 2017).
• 4)Igualdad: “El artículo 33 de la Constitución Política refiere que “Toda persona es igual ante la ley y no podrá practicarse discriminación alguna contraria a la dignidad humana”. Asimismo, el artículo 57 señala en lo que interesa que: “...El salario será siempre igual para trabajo igual en idénticas condiciones de eficiencia.” … Ahora, según ha resuelto esta Sala reiteradamente, el principio de igualdad no tiene un carácter absoluto, pues no concede propiamente un derecho a ser equiparado a cualquier individuo sin distinción de circunstancias, sino más bien a exigir que la ley no haga diferencias entre dos o más personas que se encuentren en una misma situación jurídica o en condiciones idénticas, y no puede pretenderse un trato igual cuando las circunstancias o condiciones son desiguales” (ver sentencia No. 2005-03496 de las 14:49 horas del 30 de marzo de 2005).

Por otra parte, debe tomarse en cuenta lo dispuesto en el artículo 178 del Código de Trabajo:

“Los salarios mínimos que se fijen conforme a la ley regirán desde la fecha de vigencia del Decreto respectivo para todos los trabajadores, con excepción de los que sirven al Estado, sus Instituciones y Corporaciones Municipales y cuya remuneración esté específicamente determinada en el correspondiente presupuesto público. Sin embargo, aquél y éstas harán anualmente, al elaborar sus respectivos presupuestos ordinarios, las rectificaciones necesarias a efecto de que ninguno de sus trabajadores devengue salario inferior al mínimo que le corresponda” (el destacado no corresponde al original).

Debe aclararse que el anterior artículo se aplica al sistema que prevé la Ley para la fijación de los salarios mínimos, y no en relación con el principio reconocido universalmente del derecho al salario mínimo adoptado expresamente en favor de los servidores públicos en la parte final del artículo 178 mencionado. De este modo, en el sector público, la definición de los salarios mínimos se encuentra regulada principalmente en el Estatuto de Servicio Civil y en la Ley de Salarios de la Administración Pública, sin perjuicio de las demás disposiciones afines de otros cuerpos normativos.

De esta forma, el artículo 48 del Estatuto de Servicio Civil establece:

“Artículo 48.-Los sueldos de los funcionarios y empleados protegidos por esta ley, se regirán de acuerdo con las siguientes reglas:

• a)Ningún empleado o funcionario devengará un sueldo inferior al mínimo que corresponda al desempeño del cargo que ocupe.
• b)Los salarios de los servidores del Poder Ejecutivo serán determinados por una Ley de Salarios que fijará las sumas mínimas, intermedias y máximas correspondientes a cada categoría de empleos.
• c)Para la fijación de sueldos se tomarán en cuenta las condiciones fiscales, las modalidades de cada clase de trabajo, el costo de la vida en las distintas regiones, los salarios que prevalezcan en las empresas privadas para puestos análogos y los demás factores que estipula el Código de Trabajo.
• d)Dentro de las cifras mínimas y máximas de que habla el inciso b), los Jefes respectivos podrán acordar aumentos de sueldos, atendiendo a factores como la eficiencia, la antigüedad, la conducta, las aptitudes y demás cualidades que resulten de la calificación periódica de sus servidores, todo esto con sujeción a lo que al efecto disponga la Ley de Salarios. Los Jefes de las diversas secciones del personal administrativo, deberán obtener, de previo a tales aumentos, la venia del supervisor jerárquico; aumentos que estarán sujetos a lo dispuesto en el inciso e) de este mismo artículo; y e) Queda prohibido a la Tesorería Nacional extender giros a favor de empleados o funcionarios, por sumas distintas a las mínimas fijadas en el Presupuesto o Ley de Salarios; y en el caso del inciso anterior, el aumento no se hará efectivo sino cuando esté incluido en la Ley de Presupuesto Ordinario, o en un presupuesto extraordinario. La Dirección General de Servicio Civil, informará a la Tesorería Nacional de los aumentos de los sueldos de los servidores públicos.” Por su parte, el artículo 8 de la Ley de Salarios de la Administración Pública dispone:

“ARTICULO 8º.- Se entenderá que todo salario cubre el pago mensual de la respectiva jornada de trabajo. Si se conviniere en que el servidor público trabaje menos tiempo del señalado en el horario oficial, devengará el sueldo proporcional a la jornada que en tal caso hubiere autorizado el Ministro. Ningún servidor regular devengará un sueldo inferior al mínimo de la respectiva categoría.” Como se indicó, los salarios mínimos buscan propiciar que los servidores públicos y sus familias lleven una vida digna; sin embargo, esta base salarial no garantiza, por sí misma, que los niveles establecidos cumplan realmente esa condición. Ante esta situación, la Ley prevé el aumento de salarios conforme al decreto sobre salarios mínimos que el Poder Ejecutivo dicta cada seis meses y el reconocimiento de pluses salariales como cumplimiento de convenios colectivos de trabajo, que buscan ajustar el salario con el costo de la vida. Al respecto, en la sentencia No. 2009-014280 de las 15:11 horas 9 de septiembre de 2009, este Tribunal señaló:

“Este Tribunal entiende en efecto -con apego a la jurisprudencia citada- que un esquema de aumentos que contemple dentro de sus condiciones el reajuste por costo de vida no hace sino equilibrar los salarios de los trabajadores precisamente respecto de lo que significa su capacidad para obtener el sustento para ellos y sus familias.” Entonces, si el trabajo se concibe como un derecho del individuo cuyo ejercicio beneficia a la sociedad, y el Estado como empleador en una relación estatutaria tiene la obligación de pagar de manera periódica el salario, que es un derecho constitucionalmente protegido (ver sentencia N° 2009-008062 de las 21:35 horas del 13 de mayo de 2009), no sería posible aceptar que ese salario, se fije en los términos en que lo pretende hacer el proyecto de Ley bajo estudio. La misma Sala ha señalado que debe haber acceso a un salario determinado por medio de una política nacional que debe asegurar una vida digna y familiar; remuneración que debe ser fijada mediante los mecanismos establecidos en la normativa internacional (Convenios de la 0IT números 26, 95, y 131, entre otros instrumentos), así como por el párrafo segundo, del artículo 57, Constitucional, con el propósito de evitar salarios ruinosos e indecorosos para las personas (ver sentencia nº 2019-016791). En este orden de ideas, debe empezar por hacerse referencia al Convenio N° 131 del Organización Internacional del Trabajo, ratificado por Costa Rica, a partir del cual se establece que si bien, el salario mínimo fue implementado como un instrumento de política salarial cuya función es evitar el fenómeno de la pobreza, pero a la vez debe de garantizar la satisfacción de las necesidades de los trabajadores y sus familias, y ofrecer una protección social con lo que puede llegar a considerarse como mínimos permisibles, los que se determinan mediante estudios técnicos, con la participación de los actores sociales (ver sentencia nº 2020-013316). Igualmente interesa resaltar lo dicho en el artículo 3 de ese convenio, según el cual, para determinar el nivel de los salarios mi´nimos, deben tomarse en cuenta las necesidades de los trabajadores y de sus familias habida cuenta del nivel general de salarios en el pai´s, del costo de vida, de las prestaciones de seguridad social y del nivel de vida relativo de otros grupos sociales; así como los factores econo´micos, incluidos los requerimientos del desarrollo econo´mico, los niveles de productividad y la conveniencia de alcanzar y mantener un alto nivel de empleo.

• b)Sobre la gestión de compensación salarial: Obsérvese que el artículo 30 del proyecto de ley establece que los salarios de las personas servidoras públicas se regirán de acuerdo a los postulados ahí establecidos: a trabajo igual salario igual; el Presidente de la República tendrá el salario más alto; la fijación de salarios se hará a través de una metodología de remuneración; cada familia de puestos tendrá una columna de salario global que indicará el puesto y la remuneración; los ajustes o modificaciones de la columna salarial se harán con sustento en criterios técnicos y; los salarios se ajustarán según las reglas de la Ley de Salarios de la Administración Pública.

En primer lugar debe recordarse que este Tribunal ha señalado que los salarios del Estado, deben responder a criterios técnicos y no podrían por ende ser inferiores a los establecidos por el Decreto Ejecutivo de salarios mínimos para el resto de los trabajadores (ver sentencia nº 2019-016791); no obstante lo anterior, en ninguna parte del articulado del proyecto de Ley bajo estudio se establece que la fijación del “nuevo” salario de los servidores públicos, se va a sustentar en criterios o en estudios técnicos que así lo justifiquen, ni siquiera se hace mención a ello en el artículo 5 que define al salario global como la remuneración o monto único que percibirá una persona servidora pública por la prestación de sus servicios, de conformidad con los postulados que establece el proyecto. No obstante lo anterior, obsérvese que según lo dispone el artículo 30, los ajustes o modificaciones de la columna salarial se harán con sustento en criterios técnicos, lo cual pareciera un sin sentido porque en realidad deberían de existir esos estudios desde el inicio de la fijación salarial, no solo para los ajustes o modificaciones. No puede perderse de vista, como también lo ha manifestado este Tribunal, que la fijación de un método de cálculo para establecer el salario, así sea el mínimo, es muy importante, toda vez que tiene repercusiones en el trabajador que recibiría el salario y para el patrono, en cuanto a la observancia de los montos establecidos y esto puede constituir un nivel de presión social que además tendría un efecto en los índices de pobreza de la población, por lo tanto no se trata de un tema irrelevante, manifestando la Sala además que, en su sentido práctico, se refiere a un problema de política salarial (de empleadores públicos y privados), el cual debe ser de observación general por todos los respectivos patronos, pero, claro está, existe un problema de suficiencia que no puede estar asociado a cada trabajador, considerado individualmente o en relación con sus necesidades personales o familiares, sino que se debe aspirar a una media salarial que deberán estimar los representantes del Estado, empleadores y trabajadores con la retribución justa por el trabajo en el contexto nacional, con ayuda de los mecanismos económicos y sociales, para procurar una existencia digna y familiar a los trabajadores, debiendo reiterarse, como ocurre con muchos de los derechos económicos, sociales y culturales, que no pueden definirse respecto de soluciones concretas, ni de un individuo, ni sus necesidades concretas, sino de la colectividad, establecida integralmente por estudios técnicos desde una justa media o promedio (ver al respecto las sentencias nº 2019-016791 y 2020-013316, entre otras).

En ese sentido, al observarse lo que significa el salario global y lo que implica el contenido de los artículos 30 a 37 del proyecto de Ley Marco de Empleo Público, salta a la vista que se está dando un cambio metodológico en lo relativo al ajuste en la fijación de los salarios, para lo que se requeriría de estudios técnicos rigurosos determinados por órganos especializados, los cuales se extrañan en la propuesta. Desde esta perspectiva, la falta de sustento técnico de ese “salario global” resulta ser un tema de gran relevancia ya que no se puede olvidar que será el Poder Ejecutivo el que tendrá la competencia para emitir las directrices relativas a la remuneración de los servidores públicos.

• c)Salario global como remuneración estática: a partir de lo que se desprende del proyecto, es más que evidente que este “salario global” que se está creando en el proyecto de Ley Marco de Empleo Público, terminará siendo un salario estático, que probablemente al inicio de su aplicación podría ser competitivo para algunos puestos, pero que, al cabo de los años y al tomar en cuenta aspectos económicos y financieros del país, se va a convertir en un salario estático, sin posibilidad alguna de incrementos bajo ningún concepto, a pesar del aumento de la inflación del país y del costo de vida. Obsérvese que el artículo 5 del proyecto define al salario global como la remuneración o monto único que percibirá una persona servidora pública por la prestación de sus servicios, de conformidad con los postulados establecidos en la presente ley.
• d)Participación de sectores sociales representativos de trabajadores: Otro aspecto que se echa de menos en el proyecto en relación con la gestión de la compensación salarial tutelada en los artículos 30 a 37 es lo relativo a la participación de los representantes de los trabajadores del sector público. Obsérvese que, aplicando lo dispuesto en el Convenio 131 de la OIT -que aunque se refiere al establecimiento de salarios mínimos bien puede servir como marco general para este análisis-, el artículo 4.2 establece que “para el establecimiento, aplicación y modificación de dichos mecanismos se consulte exhaustivamente con las organizaciones representativas de empleadores y de trabajadores interesados, y a falta de ellos, busca que se permita con los representantes de los empleadores y de los trabajadores interesados”. En consecuencia, si el Estado, para regular el salario mínimo, debe asegurarse de establecer el sistema de consulta exhaustiva como un mecanismo que permita el diálogo entre los sectores productivos y de trabajadores del país, resultaba pertinente haberlo hecho en el caso del salario global que se pretende establecer como un “tema novedoso” en el país, máxime cuando se toma en cuenta lo dicho: que en algún momento se convertirá en salario mínimo, que se trata de un salario que será estático -salario mínimo estático - y que no se sustenta en criterios técnicos. Tómese en cuenta que la fijación del salario mínimo, a como está concebido en el Convenio N° 131 de la OIT, es el resultado de conversaciones, no de imposiciones -al menos tal y como ha sido desarrollado en el país- toda vez que el artículo 4.3(a) del mencionado Convenio, abre la posibilidad para que los interlocutores sociales estén en igualdad de condiciones, con lo cual, es claro que el ambiente que la normativa procura es uno que genere las condiciones de equilibrio, tan necesarias en este tipo de negociaciones (ver sentencia nº 2020-013316), pero que se echan de menos en el proyecto bajo estudio e) La negociación colectiva en materia salarial: No puede dejarse de lado el artículo 43 del proyecto de Ley bajo estudio. ]Tal como señalé en el apartado en que se analiza esa norma, desde mi perspectiva el proyecto consultado permite la negociación en materia salarial pero sujeto a una serie de reglas. Es importante llegar a ejercer el derecho de consensuar mejoras salariales, en algún momento a mediano o largo plazo, pues de no hacerlo los salarios de los servidores públicos dejarán de ser competitivos y eso ocasionará serias fugas de funcionarios, no solo del Estado sino, peor aún, del país, con las graves consecuencias que ello implica. Un ejemplo de esto perfectamente se podrá ver en el caso de profesionales en ciencias de la salud, quienes son muy valorados en el extranjero y que, con este proyecto Marco de Empleo Público, se olvida por completo la existencia de normativa específica como la Ley de Incentivos a los Profesionales en Ciencias Médicas, entre otras. Recuérdese que esta Sala ha señalado que el salario es la remuneración debida al trabajador en virtud de un contrato de trabajo, por la labor que haya efectuado o deba efectuar o por los servicios que haya prestado o deba prestar (sentencia nº 6074-95), con lo cual ese salario debe estar acorde al trabajo realizado, pero también le deberá permitir al trabajador tener una vida digna (artículo 57 constitucional) y poder hacer frente a las necesidades que tiene como ser humano y a los deberes de subsistencia de su familia (ver sentencia nº 6074-95). Evidentemente, debe tenerse la posibilidad de consensuar mejoras salariales, pues el salario previsto en el proyecto podría ser estático lo que no le permitirá evolucionar, de ahí que no se lograría alcanzar el objetivo constitucional de propiciar una vida digna.
• f)Sobre el principio de equilibrio financiero o presupuestario: La Ley de la Jurisdicción Constitucional le impone a este Tribunal Constitucional el rol de protector de derechos humanos y de derechos fundamentales, de ahí que debe poner especial atención de no decantarse por proteger un principio de rango legal y de carácter netamente económico político, por encima de derechos sociales que son propios de su ámbito de tutela.

Interesa citar el documento elaborado por el Comisario para los Derechos Humanos del Consejo de Europa en 2013 visible en www.commissioner.coe.int, según el cual, el Consejo de Derechos Humanos de la ONU afirmo´ en su peri´odo extraordinario de sesiones en 2009 que “las crisis econo´micas y financieras mundiales no disminuyen la responsabilidad de las autoridades nacionales y de la comunidad internacional en la realizacio´n de los derechos humanos”. Por su parte, menciona que en 2009, el Comite´ Europeo de Derechos Sociales declaro´ que “la crisis econo´mica no debe tener como consecuencia la reduccio´n de la proteccio´n de los derechos reconocidos por la Carta [Social Europea]. Por lo tanto, los gobiernos esta´n obligados a adoptar todas las medidas necesarias para asegurar que los derechos de la Carta este´n garantizados de manera efectiva en aquellos peri´odos en que los beneficiarios necesitan mayor proteccio´n”. Igualmente señala que en 2012, “el Consejo de Derechos Humanos acogio´ con satisfaccio´n una nueva serie de principios rectores sobre la deuda externa y los derechos humanos, que estipula que los gobiernos tienen la obligacio´n de garantizar la primaci´a de los derechos humanos cuando toman decisiones sobre obtencio´n y concesio´n de pre´stamos”. En consecuencia, concluye ese Comisario que “los Estados son quienes principalmente tienen que probar que las medidas de austeridad propuestas esta´n en consonancia con sus obligaciones de derechos humanos”.

Obsérvese a su vez, que según se relata en ese documento, la jurisprudencia reciente de Letonia, Portugal y Lituania “ilustra la superioridad normativa de los principios de derechos humanos consagrados constitucionalmente sobre cualquier medida presupuestaria no justificada. En Letonia, el Tribunal Constitucional ratifico´ que las provisiones sobre pre´stamos internacionales estipuladas en los acuerdos con el FMI / BCE / CE no podi´an servir como argumento para restringir obligaciones de derechos humanos constitucionalmente garantizadas y consistentes en garantizar una seguridad social adecuada. Tanto las consecuencias sociales que suponen los recortes en las pensiones como otras alternativas menos restrictivas teni´an que haber sido tomadas en cuenta a la hora de concluir tales acuerdos. En Portugal, el Tribunal Constitucional declaro´ inconstitucionales las reducidas asignaciones presupuestarias para los derechos sociales y ordeno´ su restitucio´n. El Tribunal Constitucional de Lituania, por su parte, ha marcado criterios estrictos y especi´ficos que debera´n tenerse en cuenta cuando se evalúe, en el transcurso de una crisis econo´mica, en que´ casos los derechos sociales pueden ser limitados”.

Todo lo anterior implica que, el sano manejo de las finanzas públicas del que habla la Sala en la sentencia nº 2018-019511, y el equilibrio entre los derechos prestacionales y la solvencia económica estatal, no deben ser un pretexto para reducir los derechos fundamentales y humanos de una población; sino que, por el contrario, deberían ser el motor para obligar a quienes corresponda, a exigir responsabilidades de los descalabros financieros. Un Tribunal Constitucional o un Tribunal de Derechos Fundamentales como lo es la Sala Constitucional, debe ser un intérprete de la Constitución y, como tal, deberá hacer prevalecer por encima de esas decisiones, los derechos fundamentales y humanos que está obligado a resguardar, más allá de cualquier interés de carácter presupuestario o financiero del Estado. Entonces, si hay crisis porque hay un inadecuado uso del principio de equilibrio presupuestario, que es de rango legal y económico -no de rango constitucional porque el artículo 176 de la Constitución Política no dice que lo sea-, se deben adoptar las medidas para determinar quiénes son los responsables y dictar las medidas necesarias para superar dicho problema.

Sobre los Transitorios XI y XII relativos a las reglas del salario:

El Transitorio XI del proyecto de Ley Marco de Empleo Público: su aplicación implicará situaciones discriminatorias y desiguales pues, mientras se logra el ajuste que se pretende entre empleados viejos y empleados nuevos, o entre empleados que ganan más y empleados que ganan menos, se producirá un desequilibrio totalmente contradictorio con el mismo proyecto de Ley que pretende “que a trabajo igual, salario igual”. Esa situación de desajuste, que podría tardar años en corregirse -porque tampoco se observan estudios técnicos que digan cuánto tiempo tardará-, va a generar vulneraciones a derechos fundamentales toda vez que será imposible evitar -y el proyecto no lo prevé- situaciones en que una persona que trabaja tanto como otra, gane menos, o lo que es lo mismo, “por trabajo igual, salario desigual”. Ello hace que el transitorio sea inconstitucional.

Por otra parte, el Transitorio XII señala que las personas servidoras públicas estarán excluidas de incrementos salariales mientras se mantengan las condiciones indicadas en el inciso d) del artículo 11 de la Ley 9635 de Fortalecimiento de las Finanzas Públicas. Si se parte de que el objetivo de esa Ley fue mejorar las finanzas públicas, también es lo cierto que en un país como Costa Rica, con los niveles de descalabro financiero que se han visto en los últimos años, ligados a serios problemas de mala administración de los fondos públicos, corrupción, entre otros, se puede concluir que el objetivo de esa Ley difícilmente se va a lograr y, por ende, los funcionarios públicos no tendrán derecho a ningún incremento en el costo de vida, con lo cual, como ya se dijo, el salario global terminará siendo un salario mínimo estático global, acarreando los consecuentes perjuicios para los trabajadores del sector público que verán reducidos sus ingresos considerablemente frente al alto costo de vida del país, la inflación, entre otros factores de carácter económico que, sin duda alguna, ocurrirán en el país.

• d)Razones diferentes del magistrado Rueda Leal, en cuanto a los transitorios XI y XII consultados.

Hay dos motivos que me llevan a avalar la constitucionalidad del transitorio XI. El primero es que no existe una igualdad pura entre todos los sujetos que serían objeto -directa o indirectamente- de tales normas. En efecto, el simple hecho de iniciar la relación laboral en momentos diferentes -durante la vigencia de normas jurídicas diferentes- puede conllevar un tratamiento jurídico distinto. Las limitaciones en esta materia se encuentran en el respeto a los derechos adquiridos y las situaciones jurídicas consolidadas, limitaciones que -en mi criterio y como expuse, por ejemplo, en la sentencia n.° 2018-19030 de las 17:15 horas de 14 de noviembre de 2018- tampoco son absolutas. El segundo se deriva de ponderación subyacente. En mi criterio, se trata de una norma transitoria -temporal, por definición- que, contrario a lo alegado, más bien pretende la igualdad salarial de todos los servidores públicos, visto que su finalidad es precisamente la homogenización salarial de las personas que iniciaron su relación laboral en distintos momentos y bajo diferente normativa. Esta transición paulatina se hace necesaria a la luz del principio del equilibrio presupuestario. Con respecto al transitorio XII, observo que se trata de una disposición sobre la potencial exclusión de incrementos salariales, “…siempre y cuando se mantengan las condiciones indicadas en el inciso d) del artículo 11 de la Ley 9635, Fortalecimiento de las Finanzas Públicas, de 3 de diciembre de 2018.” Así, la norma, como tal, remite a una interpretación de legalidad que se sustrae de las competencias de la Sala en este tipo de procesos.

XIX.- Sobre la violación al debido proceso (proceso único de despido).- (redacta la magistrada Picado Brenes) 1) Aspectos consultados Señalan los consultantes que, tanto el procedimiento de despido regulado en el artículo 21 del proyecto de ley bajo estudio, como la fase recursiva contra despido que está prevista en el artículo 22 siguiente, lesionan una serie de normas y principios constitucionales relativos al debido proceso, e indican que el contenido de estos numerales se relaciona con el artículo 49 inciso b) -del mismo proyecto de Ley- que refiere a una serie de reformas que se proponen en relación con el Estatuto de Servicio Civil. Argumentan que, en la reforma que se pretende hacer al artículo 43 del Estatuto de Servicio Civil, se busca incorporar este procedimiento de despido; sin embargo, aducen que se encuentran serias diferencias, incongruencias y contradicciones entre ambos textos. Estas contradicciones y antinomias que se generan en un mismo texto, consideran los consultantes que son violatorias de los principios de seguridad jurídica y legalidad y añaden que no existe claridad en cuanto a plazos, recepción de pruebas, derecho de defensa, entre otros, mencionando que esto fue puesto de manifiesto por el Tribunal de Servicio Civil. Consideran que el procedimiento de despido es clave en el desarrollo de las relaciones de empleo público en las instituciones públicas, por ello estiman que la claridad en el proceso es fundamental para su aplicación pues, sin un procedimiento detallado que respete las garantías constitucionales, se estaría ante una eventual nulidad e inaplicabilidad, además de que se coloca en un estado de indefensión a los funcionarios y propicia una situación sumamente perjudicial a la administración, que no podrá proceder con el despido de un funcionario, así existan las causales, por no haber un proceso que respete la legalidad y el debido proceso. Insisten los consultantes en que el debido proceso es una garantía constitucional que se debe de respetar en cualquier procedimiento tanto administrativo como judicial, permitiendo cumplir con el derecho de defensa y las garantías procesales correspondientes, y recuerdan que dentro de los componentes esenciales del debido proceso se encuentran el derecho de audiencia, el principio probatorio y de legalidad, la doble instancia, entre otros, los cuales, estiman los consultantes, se están vulnerando en el texto del proyecto de ley. Alegan que tanto la Corte Suprema de Justicia como la Contraloría General de la República pusieron en evidencia las faltas, así como las falencias que contiene el proyecto en cuanto al procedimiento de despido de los funcionarios.

En concreto, los diputados alegan que algunas de las inconsistencias y contradicciones que se encuentran en lo relativo al procedimiento de despido, son las siguientes:

Sanción automática de inhabilitación: indican que, en el literal a) del artículo 4 se estipula el principio de Estado como Patrono único y se señala que en virtud de dicho principio las sanciones que generen el despido sin responsabilidad patronal del funcionario en una institución, de conformidad con el ordenamiento jurídico vigente, impedirán a cualquier otra entidad u órgano que forme parte del Estado contratarlo por un plazo que va de seis meses a dos años; no obstante, argumentan que no se señala la forma en que se determinará el plazo del impedimento establecido, ni el órgano competente para establecer dicho plazo. Al respecto, debe señalarse que este aspecto ya fue examinado en esta sentencia en un considerando anterior (considerando XVII), por ello se remite a lo allí indicado.

Causal de despido inmediato (dos calificaciones inferiores a 70%): indican que, en el primer párrafo del artículo 21, se establece como causal de despido inmediato el hecho de obtener dos calificaciones inferiores a 70% en la evaluación de desempeño, una vez queden en firme dichas calificaciones. Manifiestan que, además, en los párrafos segundo y tercero se establece la obligación de las instituciones de aplicar un plan remedial después de la primera calificación. Indican los consultantes que, en los tres primeros párrafos de este artículo 21, no se establecen normas procesales, sino más bien causales de despido, por lo que en realidad -en su criterio- deben de incluirse en el artículo anterior, referente al cese de empleo público. Advierten que el párrafo tercero de este artículo 21 repite la misma disposición establecida en el párrafo segundo, generando confusión, ambigüedad y posibles interpretaciones, lo que conlleva que no haya claridad en cuanto a la norma. Además, señalan que si bien ambos párrafos se refieren a la elaboración de planes remediales producto de la evaluación de desempeño, en el segundo párrafo se establece que este plan deberá ser pactado con la persona servidora pública mientras que, en el tercero, no establece esa condición. Asimismo consideran que existe una contradicción entre si debe generarse el plan remedial con la asesoría de recursos humanos o no. Al respecto, en criterio de este Tribunal, debe indicarse que, en efecto, parece que existe una confusión, en tanto que el párrafo segundo y tercero parecen replicarse, con algunas diferencias. Ahora bien, a pesar de que ello puede tratarse de una posible mala técnica legislativa, lo cierto del caso es que, para este Tribunal, ello no supone su inconstitucionalidad y, por ende, se rechaza el argumento planteado por los consultantes en cuanto a este extremo.

Plazo de 15 días o de 10 días: Indican que, en los incisos b) y c) de este artículo 21, se otorga un plazo de 15 días para que el servidor accionado se oponga al traslado de cargos; no obstante, aducen que, de manera contraria, en el inciso g) de este mismo artículo, se indica que dicho plazo es de 10 días, lo cual consideran que es una evidente contradicción en los plazos señalados para el traslado de cargos que conlleva una violación al principio de seguridad jurídica. Al respecto, para la Sala aunque se observa una posible contradicción así como una posible mala técnica legislativa, ello no supone que el texto consultado sea inconstitucional, debiendo rechazarse los argumentos planteados en este punto en concreto.

Recursos: Argumentan que el inciso i) del mismo artículo 21, establece los recursos de revocatoria y de apelación en subsidio contra la resolución que ordene la amonestación oral, la advertencia escrita o la suspensión sin goce de salario, y advierten sobre la existencia, en el expediente legislativo, de una nota suscrita por el Actuario del Tribunal de Servicio Civil, en la que se indica: "Además de la evidente contradicción entre lo que se plantea en los inciso i del artículo 22 del proyecto de ley y en la reforma que se propone al inciso i) del artículo 43 del Estatuto de Servicio Civil, en los cuales se establece el recurso de apelación para las resoluciones que ordenen la amonestación oral, la advertencia escrita y la suspensión sin goce de salario, y lo que se plantea en la reforma al artículo 75 del Estatuto de Servicio Civil en el cual se dispone en el segundo párrafo que la resolución que ordene la amonestación oral, la advertencia escrita o la suspensión sin goce de salario hasta por un mes, únicamente tendrá recurso de revocatoria." Al respecto, para este Tribunal no está claro lo consultado, ni tampoco se observa que se fundamente o se desarrolle debidamente la consulta en este punto como para comprender el alcance del cuestionamiento que se quiso plantear. En ese sentido, debe tomarse en cuenta que el proyecto no contiene una reforma al artículo 75 del Estatuto de Servicio Civil; tampoco incluye una reforma al artículo 43 de ese cuerpo normativo, sino que, por el contrario, lo que se observa a partir de la lectura completa del proyecto bajo estudio, es su derogación. Por ello, no procede entrar a examinar este aspecto consultado.

Ausencia de órgano que conocerá de apelación: Manifiesta la parte consultante que el segundo párrafo del inciso i) del artículo 21 bajo estudio, delimita la potestad del Tribunal de Servicio Civil a conocer de las apelaciones interpuestas por las personas servidoras públicas que laboran en una institución cubierta por el Estatuto de Servicio Civil (Ley n°1581); no obstante, se argumenta que no se señala en este inciso, cuál será el órgano que conocerá de las apelaciones interpuestas por las personas servidoras públicas que laboran en las instituciones que no están cubiertas por dicha ley, estimando que, una vez más, se violenta el principio de seguridad jurídica. Al respecto, este Tribunal debe manifestar que el tema planteado, sobre la falta de claridad de la norma, no es de constitucionalidad. Corresponderá al operador jurídico determinar, en cada caso, cuál norma es la aplicable a la situación concreta que se esté analizando en ese momento. En consecuencia, este alegato debe ser desestimado.

Incisos contradictorios: Aducen los diputados consultantes que el artículo 21 del proyecto de Ley bajo estudio, otorga la competencia para resolver los despidos en primera instancia, a los jerarcas institucionales y señala que el proceso de instrucción y de resolución de los despidos se realiza a lo interno de cada institución. Por su parte, añaden que el artículo 22 le otorga al Tribunal de Servicio Civil el conocimiento en segunda instancia, de las apelaciones contra las resoluciones de despido; sin embargo, aducen que se “establece un inciso que contradice todo lo anterior y dice que la primera instancia de los despidos la conoce el Tribunal, y que la instrucción la realiza la Dirección General de Servicio Civil, así mismo, se exceptúa la instrucción por parte de la Dirección General de Servicio Civil, cuando los procedimientos de despido sea contra funcionarios del Ministerio de Educación Pública (docentes o administrativos), cuando dichos funcionarios hayan incurrido en las causales del artículo 66, inciso a), del Código de la Niñez y la Adolescencia, Ley No 7739, indicándose que en estos casos la instrucción se realizará a lo interno del Ministerio de Educación Pública, según lo dispuesto en el Título II, capítulo IV, artículos 59 y siguientes del Estatuto de Servicio Civil. Esta disposición no tiene sentido si en todas las disposiciones anteriores se le otorga a los Ministros y Jerarcas institucionales, la potestad de instruir y resolver los despidos en primera instancia y al Tribunal la competencia para resolver en segunda instancia”. Al respecto, se evidencia que no está claro lo consultado, ni se fundamenta o desarrolla debidamente el agravio. Igualmente, del escrito de la consulta, no se identifica cuál es el “inciso que contradice todo lo anterior”. Una lectura general del proyecto no permite ubicar una norma como la descrita por los consultantes; y, en consecuencia, al no existir una adecuada fundamentación de la consulta en cuanto a este extremo, la Sala no se puede pronunciar al respecto.

Tribunales Administrativos del Régimen de Pensiones y Jubilaciones del Magisterio Nacional y del Servicio Civil: Consideran los consultantes que debe tomarse en consideración el estudio de las competencias y órganos encargados de resolver lo relacionado con el procedimiento de despido, en relación con lo señalado en la Ley de Creación de los Tribunales Administrativos del Régimen de Pensiones y Jubilaciones del Magisterio Nacional y del Servicio Civil (Ley n°8777 del 07 de octubre de 2009), mediante la cual se crea el Tribunal Administrativo del Servicio Civil, al que se le otorga funciones para conocer los recursos en materia de despidos de los trabajadores sujetos al régimen de empleo del Estatuto de Servicio Civil, así como los demás asuntos que por ley o reglamento deban ser conocidos por este Tribunal. Argumentan los consultantes que, a pesar de lo anterior, en el proyecto de ley bajo estudio, no se hizo una integración con aquella Ley, tampoco se otorgaron o modificaron las competencias a dicho tribunal, y esta omisión podría generar un conflicto de competencias, o bien, que ese Tribunal no tenga funciones asignadas, promoviendo una duplicidad de labores o, en el peor de los casos, un órgano con personal y recursos sin funciones. Al respecto, se observa que el proyecto en consulta, además de lo dispuesto en sus artículos 21 y 22, prevé una serie de modificaciones y reformas al Estatuto de Servicio Civil y a la citada Ley de Creación de los Tribunales Administrativos del Régimen de Pensiones y Jubilaciones del Magisterio Nacional y del Servicio Civil, al punto de variar sustancialmente el procedimiento de despido existente hasta la fecha, para los funcionarios cubiertos por dicho estatuto. Ahora bien, a pesar de lo anterior, en relación con la consulta planteada en cuanto a este extremo, la Sala observa que, no consta alguna argumentación de los consultantes, debidamente fundamentada, que relacione tales cambios con problemas de constitucionalidad; en consecuencia, ante la falta de fundamentación de este aspecto, se omite pronunciamiento al respecto.

Plazos y recursos diferentes: Se argumenta que hay plazos y recursos que se tramitan de forma diferente entre lo señalado en el proyecto de ley y la Ley n°8777 (de Creación de los Tribunales Administrativos del Régimen de Pensiones y Jubilaciones del Magisterio Nacional y del Servicio Civil). Al respecto, se observa que este punto consultado no se desarrolla ni se fundamenta debidamente, por lo que esta Sala no puede entrar a conocer el cuestionamiento.

Confusión en ámbitos de competencia: Se indica que el proyecto crea una absoluta confusión respecto del procedimiento de despido y los ámbitos de competencia en cada una de las instancias; además se señala que es evidente que el Tribunal de Servicio Civil no puede ser, por un lado, el competente para conocer de los despidos en primera instancia y, por otro lado, al que le corresponda analizar estos despidos en segunda instancia. Sobre el particular, lo consultado no se desarrolla ni se fundamenta debidamente, por ello la Sala no puede entrar a conocer de este aspecto.

Confusión entre conceptos: Se indica que el debido proceso es una garantía constitucional que se debe respetar en cualquier procedimiento, sea administrativo o judicial y en criterio de los consultantes, el procedimiento contenido en el proyecto de ley (artículos 21 y 22), lesiona lo desarrollado por la Sala Constitucional en relación con el debido proceso: en primer lugar, por violación al principio de legalidad en cuanto a los vacíos normativos y las antinomias que se generan con las contradicciones existentes y, por otro lado, por no contemplar los derechos fundamentales. Señalan en la Consulta que esto fue puesto en evidencia por la Corte Suprema de Justicia por medio del oficio N° SP-62-2021 del 3 de junio de 2021, en el cual se alertó al legislador sobre las graves deficiencias que tienen los artículos 21 y 22 del proyecto: confusión entre conceptos de caducidad y prescripción, menoscabo de la oralidad en el proceso, excepciones previas y otros. Al respecto, debe señalarse que este tema consultado no se desarrolla ni se fundamenta debidamente en el memorial de la consulta, pues los consultantes se limitan a transcribir un extracto de lo indicado en el oficio N° SP-62-2021, pero no efectúan un adecuado desarrollo argumentativo de su criterio para justificar lo que pretenden consultar. Así, tampoco puede esta Sala conocer de este punto.

Debilidades: Indican los consultantes que, la Sala Constitucional, en el voto número 1739-92, establece que existe un derecho general a la legalidad y a la justicia que se deriva del numeral 41 de la Constitución Política y manifiestan que ambos derechos constituyen condiciones sine qua non sin las cuales el debido proceso no puede llegar a desarrollarse, tanto así que cuando estos dos derechos se infringen, implican por sí una violación al debido proceso. Argumentan que, en el caso bajo estudio, el procedimiento desarrollado en el proyecto de ley (artículos 21 y 22), violenta lo señalado por la Sala Constitucional en cuanto al debido proceso, en primer lugar, por la violación al principio de legalidad en cuanto a los vacíos normativos y las antinomias que se generan con las contradicciones señaladas anteriormente y, en segundo lugar, por no contemplar derechos fundamentales en este procedimiento. Señalan los consultantes que tanto la Corte Suprema de Justicia, como la Contraloría General de la República, pusieron en evidencia debilidades, en cuanto: 1) indeterminación y/o confusión entre los conceptos de caducidad y prescripción; 2) regulación orientada a la jerarquía institucional; 3) menoscabo de la oralidad en el procedimiento; 4) medios de notificación; 5) excepciones previas; 6) segunda comparecencia; 7) elenco de sanciones; y 8) ampliación de plazos recursivos. En relación con este extremo consultado, además de que es similar al punto anterior, considera este Tribunal que tampoco se ha hecho un desarrollo adecuado ni se ha fundamentado debidamente el criterio que se pretende consultar. Obsérvese que los consultantes se limitan a hacer una mera referencia a supuestas debilidades detectadas por la Contraloría General de la República, pero no las desarrollan ni argumentan. Bajo esta situación, no podría la Sala pronunciarse y por ello se rechaza la consulta en cuanto a este extremo.

Omisiones: Se indica que el proyecto de ley es omiso en realizar las derogatorias expresas de toda la normativa vigente que contradice y recuerdan que dichas derogatorias, al tratarse de un asunto tan complejo como lo es el servicio público, son reserva de ley y no pueden quedar sujetas a la libre interpretación futura y arbitraria del operador jurídico. Al respecto, en criterio de la Sala, podría ser que lo calificado por los consultantes como “omisiones”, en realidad se deba a un problema de mala técnica legislativa, lo cual no necesariamente implica, a su vez, un problema de constitucionalidad, de modo tal que corresponderá al operador jurídico determinar las eventuales derogaciones tácitas que pudieren existir al momento de aplicar la ley, si entrara en vigencia de esta forma; en consecuencia, este extremo no implica una vulneración al Derecho de la Constitución.

• 2)Conclusión Los aspectos consultados sobre los artículos 21 y 22 del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n°21.336, no contienen violaciones al principio del debido proceso constitucional, sino que la mayoría de lo consultado al respecto, se refiere a problemas de técnica legislativa que corresponderá al legislador o al operador jurídico enmendar. Además, otros de los aspectos consultados no fueron debidamente fundamentados, por lo que esta Sala omite realizar pronunciamiento de fondo sobre ello.

XX.- Sobre la violación al principio de sostenibilidad fiscal por los permisos.- (redacta la magistrada Picado Brenes) 1) Análisis concreto de los aspectos consultados Los consultantes alegan que los artículos 39, 40, 41 y 42 del Proyecto de Ley, resultan contrarios a los artículos 11, 176, 179 y 190 de la Constitución Política, al principio de razonabilidad, a las reglas unívocas de la ciencia y la técnica, a los principios elementales de justicia, lógica y conveniencia, así como también implican una violación al principio de sostenibilidad fiscal. Estos artículos versan, respectivamente, sobre un permiso no remunerado para reducir, hasta en un tercio, la jornada laboral, para incluir el permiso de paternidad, así como también para la ampliación de la licencia de maternidad hasta por dos meses adicionales.

Conforme se desprende del proyecto de Ley bajo estudio, en síntesis, los artículos cuestionados se refieren a lo siguiente:

-Artículo 39: permiso remunerado para reducir hasta en un tercio la jornada laboral, cuando se requiera cuidar a un familiar con enfermedad o discapacidad.

-Artículo 40: permiso no remunerado para reducir hasta en un tercio la jornada laboral, cuando se requiera cuidar a un familiar con enfermedad o discapacidad.

-Artículo 41: permiso de paternidad con goce de salario por un mes.

-Artículo 42: ampliación de licencia remunerada por maternidad hasta por dos meses adicionales, cuando se presente un nacimiento prematuro, niños o niñas con discapacidad severa o enfermedad crónica, y en casos de partos múltiples.

En concreto, los diputados consultantes, plantean los siguientes alegatos:

Falta de estudio de costos: Indican que, al momento de incorporar al proyecto de ley estas licencias y permisos, no se tomó en consideración ningún estudio de costos ni fuente de recursos para cubrirlos. Al respecto, no puede perderse de vista que el legislador cuenta con un amplio margen de discrecionalidad legislativa en la formación de leyes; criterio que ha sido sostenido en reiteradas ocasiones por la Sala Constitucional, señalándose que, en principio, no resulta estrictamente necesario que todas las decisiones legislativas deban contar con estudios técnicos o financieros. Así, por ejemplo, en la sentencia n° 2018-000230 de las 10:40 horas del 10 de enero de 2018, este Tribunal señaló que: “[l]a Sala rechaza que, irremediablemente, todas las decisiones del legislador deban contemplar un estudio técnico, toda vez que dicha situación anularía la discrecionalidad del órgano legislativo, sometiéndolo al criterio de terceros que carecen de representación democrática. Los estudios técnicos son necesarios, cuando existe norma expresa al respecto (verbigracia en cuestiones ambientales) o cuando la materia los exige, so pena de transformar la discrecionalidad en arbitrariedad”. Así, no todas las decisiones del legislador deben contemplar un estudio técnico toda vez que dicha situación anularía la discrecionalidad del órgano legislativo, sometiéndolo al criterio de terceros que carecen de representación democrática, manifestándose que los estudios técnicos son necesarios cuando existe norma expresa al respecto (verbigracia en cuestiones ambientales) o cuando la materia los exige, so pena de transformar la discrecionalidad en arbitrariedad (criterio reiterado, entre otras, en la sentencia n° 2019-020596 de las 19:15 horas del 25 de octubre de 2019). En esta materia, la Sala ha hecho referencia al principio de discrecionalidad o libre configuración del legislador, mencionado en la sentencia n°2003-05090 de las 14:44 horas del 11 de junio de 2003, según el cual, la Asamblea Legislativa, en el ejercicio de su función materialmente legislativa de dictar normas de carácter general y abstracto, esto es, leyes en sentido formal y material (artículo 121, inciso 1°, de la Constitución Política), goza de una amplia libertad de conformación para desarrollar el programa constitucional fijado por el Poder Constituyente; margen de maniobra en cuanto a la materia normada que se ha denominado, también, discrecionalidad legislativa, entendida como la posibilidad que tiene ese órgano -limitado solo por el Derecho de la Constitución-, ante una necesidad determinada del cuerpo social, de escoger la solución normativa o regla de Derecho que estime más justa, adecuada e idónea para satisfacerla, todo dentro del abanico o pluralidad de opciones políticas que ofrece libremente el cuerpo electoral a través del sistema de representación legislativa (criterio reiterado, entre otras, en la sentencia n° 2016-010244 de las 09:05 horas del 20 de julio de 2016 y recientemente en la sentencia 2020-015542 de las 11:40 horas del 19 de agosto de 2020). Bajo esta perspectiva, no llevan razón los consultantes al estimar que las licencias y permisos contenidos en estos artículos 39 a 41, sean inconstitucionales por el solo hecho de que, según su dicho, no estén justificados en estudios de costos o en las correspondientes fuentes de recursos que permitan cubrirlos. Por otro lado, los consultantes no brindaron elementos de juicio suficientes que permitan afirmar que las normas consultadas ocasionan per se, un aumento de costos que pondría en riesgo las finanzas del Estado, o que se carezca de fuentes de recursos para su implementación. En razón de estas circunstancias, se rechaza el argumento que se plantea en cuanto a este extremo.

No considerar el criterio de la CCSS: Indican que, no se tomó en consideración el criterio que pudiera tener la CCSS, la cual, en casos de la licencia remunerada de maternidad, al tenor de lo señalado en el artículo 95 del Código de Trabajo debe, junto con el patrono, cubrir en partes iguales lo correspondiente al pago de la licencia. Alegan los consultantes que esto constituye una violación al artículo 189 de la Constitución Política, pues podría conllevar una violación a la autonomía administrativa y financiera de la CCSS. Al respecto, en criterio de la Sala, si bien es cierto el proyecto de ley, al modificar el término de la licencia de maternidad o al crear el permiso de paternidad, eventualmente podría afectar a nivel funcional y financiero a esta institución autónoma, también es lo cierto que, el criterio de la CCSS fue solicitado. Sobre el particular, debe tenerse en cuenta que el artículo 190 de la Constitución Política establece que “Para la discusión y aprobación de proyectos relativos a una institución autónoma, la Asamblea Legislativa oirá previamente la opinión de aquélla”; por su parte, la Sala Constitucional al interpretar ese numeral ha señalado que la consulta ahí establecida, deberá hacerse cuando el proyecto de ley en cuestión, afecte las competencias esenciales de instituciones autónomas, lo que no significa que todo proyecto de ley o cualquier modificación relacionada con una institución autónoma mediante un proyecto de ley, deba ser consultado a ésta, sino, solamente, aquellos aspectos referidos a su constitución o estructura orgánica, o bien, los relativos al ámbito esencial de las competencias de las instituciones involucradas (ver sentencias nº 2020-008848 de las 9:20 horas de 13 de mayo de 2020, nº 2001-011129 de las 13:08 horas de 23 de octubre de 2001, 2014-007914 de las 9:15 horas de 6 de junio de 2014, 2012-02675 de las 11:52 horas de 24 de febrero de 2012 y 2008-004569 de las 14:30 de 26 de marzo de 2008, entre otras). Ahora bien, de la revisión del expediente legislativo N° 21.336, el Tribunal tiene por acreditado que el proyecto en cuestión sí fue debidamente consultado a las autoridades de la Caja Costarricense de Seguro Social en varias oportunidades, y se tiene que, por oficio N° SJD-885-2019 de 5 de julio de 2019, la Junta Directiva de la Caja Costarricense de Seguro Social remitió a la Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa, el criterio solicitado a dicha institución con relación al proyecto de ley N° 21.336 (ver folio 592, Tomo 2 del expediente legislativo). Posteriormente, a folio 7602 del Tomo 28, se verifica otro criterio emitido por esa institución con relación al proyecto de ley. En consecuencia, es claro que el proyecto en su totalidad fue consultado a la Caja Costarricense de Seguro Social. La última versión del proyecto de ley en cuestión, donde se incluyen las normas aquí cuestionadas, fue consultado a la CCSS en el mes de abril del 2021, sin embargo, no consta contestación alguna de parte de esta institución. Recuérdese por demás que, corresponde al legislador valorar si lo expresado en la consulta amerita realizar un cambio en el texto del proyecto de ley. A efectos del marco constitucional lo que se verifica es la realización de la consulta obligatoria a la CCSS, siendo lo que suceda luego de ella una cuestión que trasciende el Derecho de la Constitución. Así, si lo expresado por la CCSS en la respuesta a las distintas consultas que se le hicieron fue lo suficientemente motivado sobre este punto, como para suscitar que los diputados decidan realizar un cambio en el texto o no, ello no reviste carácter constitucional. Por ello, no existe motivo para considerar que en este aspecto se haya dado una violación de orden constitucional.

Omisión de considerar la afectación a los servicios que presta la CCSS: Consideran que, tampoco se tomó en cuenta la posible afectación al funcionamiento de cada institución, así como el desempeño en la prestación de servicios que realizan, las cuales deben garantizar la continuidad y calidad del servicio público. Al respecto, aun cuando los consultantes plantean este reclamo, no observa la Sala que hayan expuesto algún tipo de argumentos que evidencien inconstitucionalidad o violación a un derecho o principio constitucional. En el fondo, considera la Sala que la oposición de los consultantes radica en que no se tomaron en cuenta criterios técnicos científicos que eventualmente pudieren haber determinado afectación en el funcionamiento y desempeño de la institución; no obstante, se recuerda lo señalado supra en el sentido de que la redacción de estas normas se ampara en el principio de discrecionalidad o libre configuración del legislador y, por ende, no se observa ninguna lesión al Derecho de la Constitución, debiendo rechazarse los cuestionamientos planteados en cuanto a este extremo. No obstante lo anterior, se hace la advertencia en cuanto a que en una de las respuestas brindadas por la CCSS sobre las consultas que se le realizaron y en relación con este tema en concreto, esta institución manifestó que al proponerse en el proyecto de ley, reducirse la jornada laboral hasta en un tercio y durante máximo un año, “su aplicación podría implicar un desmejoramiento de los servicios que brinda la institución, considerando que los servicios de salud son esenciales y para revertir esta situación se debería pagar tiempos extraordinarios para cubrir el tercio de la jornada que deja el servidor público que se acoja a este artículo, lo cual generaría un aumento en el gasto” (ver folios 610 y 611 del Tomo II del Expediente Legislativo No. 21.336). Igualmente, en lo que se refiere a las licencias tuteladas en los numerales 41 y 42 del proyecto de Ley bajo estudio, se observa que la CCSS manifestó que “no se define el financiamiento que tendría la institución para hacerle frente al pago de la ampliación de la licencia por maternidad, y en cuanto al permiso con goce de salario por paternidad, ha de tenerse que la CCSS cuenta con una licencia de seis días naturales, por lo que una ampliación de este beneficio a los funcionarios, implicaría gastos adicionales para la institución, al realizar sustituciones del personal con el fin de garantizar la continuidad de los servicios” (ver folio 611 del Tomo II del Expediente Legislativo No. 21.336). Siendo responsabilidad del legislador atender o no estos cuestionamientos, no revistiendo un tema de constitucionalidad que esta Sala examine si esos criterios fueron o no considerados en las distintas instancias parlamentarias.

Ausencia de razones objetivas o de criterios técnicos para ampliar causales de licencia de maternidad: En cuanto al artículo 42 que contempla la ampliación de la licencia de maternidad, argumentan los consultantes que se trata de un numeral que contiene una serie de supuestos en que es aplicable esa ampliación (nacimiento prematuro, niños o niñas con discapacidad severa y/o enfermedades crónicas y partos múltiples); no obstante, estiman que el proyecto no contempla las razones objetivas ni los criterios técnicos o científicos que justifiquen incluir esas causales y otras no. Al respecto, nuevamente se observa que la disconformidad radica en el ejercicio de la libre configuración o discrecionalidad del legislador y, en el fondo, la oposición de los consultantes radica de nuevo en que no se tomaron en cuenta criterios técnico-científicos para definir los supuestos bajo los cuales se podría ampliar la referida licencia. Al respecto, se debe reiterar lo indicado en la sentencia n°2018-00230 mediante la cual, la Sala Constitucional rechaza que, irremediablemente, todas las decisiones del legislador deban contemplar un estudio técnico toda vez que ello, como se ha dicho, anularía la discrecionalidad del órgano legislativo, sometiéndolo al criterio de terceros que carecen de representación democrática. En este sentido, no se acredita que, en este caso, los estudios técnicos fueran necesarios, de modo que se descarta la alegada inconstitucionalidad.

Falta de estudios técnicos en cuanto al permiso de paternidad: En cuanto al permiso de paternidad del artículo 41 del proyecto que otorga un permiso con goce de salario por un mes calendario, posterior al día del nacimiento o al momento de adopción de la persona menor de edad, los consultantes reclaman que en el expediente no se señalan -nuevamente- los estudios o criterios técnicos que indiquen el costo que tendría para el Estado el otorgamiento de este permiso ni la fuente de financiamiento. Al respecto, indiscutiblemente, en este extremo la Sala observa que los argumentos de los consultantes se reiteran en relación con lo analizado supra en el punto a); en consecuencia, se remite a lo ahí indicado y se reitera que se trata de un cuestionamiento que no tiene la virtud de vulnerar el Derecho de la Constitución, por lo que se rechaza el planteamiento formulado.

Antinomia entre los artículos 39 y 40: Alegan los consultantes una supuesta antinomia entre los artículos 39 y 40 (sobre permiso remunerado y no remunerado para reducir hasta en un tercio la jornada, por máximo un año, para cuidar a un familiar con enfermedad o discapacidad). Consideran que la norma no deja claro, para su aplicación, si el permiso corresponde ser remunerado o no, al mismo tiempo que si debe ser un accidente grave o no, estimando que esto genera inseguridad jurídica y que esas contradicciones se pueden encontrar en otras normas; por ejemplo, la reforma al artículo 7 bis del Estatuto de Servicio Civil, introducida por los incisos b) y e) del artículo 49, según los cuales no se comprende si la Dirección General de Servicio Civil es un órgano del MIDEPLAN o se mantiene en el Ministerio de la Presidencia. En cuanto a este cuestionamiento, se concluye que los argumentos en que se sustenta, no se refieren a un aspecto de constitucionalidad, sino a un tema de técnica legislativa y de calidad de la labor del legislador, lo cual debe ser enmendado en el seno de la propia Asamblea Legislativa y, por ende, el reclamo se rechaza.

• 2)Conclusión La Sala no encuentra vicios de inconstitucionalidad en los aspectos cuestionados sobre los artículos 39, 40, 41 y 42 del proyecto de ley consultado, al tratarse de un tema de discrecionalidad legislativa, al haberse cumplido con la consulta obligatoria a la CCSS y al no contarse con elementos que deban determinar que el legislador debía contar de previo, en este caso, con un estudio técnico. Además, el tema de la alegada contradicción entre los artículos 39 y 40 del proyecto, por tratarse de una posible antinomia legal, no reviste interés constitucional.
• 3)Voto salvado y Razones particulares Voto Salvado de la magistrada Garro Vargas sobre la inevacuabilidad de la consulta en relación con los artículos 39, 40, 41 y 42 del proyecto de ley (expediente 21-11915-007-CO) Los legisladores consultaron la constitucionalidad de los arts. 39, 40, 41 y 42 del proyecto de ley. Alegaron que estas disposiciones fueron incluidas en el segundo día de mociones vía art. 137 del Reglamento de la Asamblea Legislativa y cuestionaron que, al momento de incorporar estas licencias, no se evaluó algún estudio de costos para cubrir su financiamiento. Afirmaron que no se tomó en cuenta el parecer que pudiera tener la Caja Costarricense de Seguro Social (CCSS) y tampoco se valoró la posible afectación al funcionamiento de las instituciones y el desempeño en la prestación de los servicios.

Los legisladores parten de la premisa de que estas licencias o permisos fueron introducidos en la parte final del trámite parlamentario. Sin embargo, de la atenta revisión del proyecto de ley original se desprende que en la exposición de motivos y en el contenido del proyecto se contemplaba la regulación de las licencias en cuestión. Dicho proyecto de ley fue publicado en el Diario Oficial La Gaceta n.°84, al Alcance n.°102 de 8 de mayo de 2019 (https://www.imprentanacional.go.cr/pub/2019/05/08/ALCA102_08_05_2019.pdf ). A tales efectos, se proponía lo siguiente:

“Art. 34- Permiso para reducir hasta en un tercio la jornada laboral, cuando se requiera cuidar a un familiar con enfermedad o discapacidad Se podrá otorgar un permiso remunerado, hasta en un tercio de la jornada, durante un periodo máximo de un año, para que la persona servidora pública pueda cuidar un familiar por consanguinidad o afinidad hasta el segundo grado, con discapacidad o por razones de enfermedad terminal o accidente.

Art. 35- Ampliación de la licencia remunerada por maternidad hasta por dos meses adicionales en casos especiales Se extenderá hasta por dos meses adicionales la licencia remunerada por maternidad establecida en el artículo 95 del Código de Trabajo, para la madre servidora pública cuando se presenten los siguientes casos: nacimiento prematuro, nacimiento de niños que presenten una discapacidad o necesidades especiales, nacimiento de niños que presenten enfermedades crónicas o partos múltiples.

Art. 36- Permiso por paternidad Los padres que tuvieren un hijo biológico o en adopción gozarán de un permiso con goce de salario por paternidad de un mes, posterior al nacimiento o al momento de concretarse la adopción.” De manera que independientemente de las variaciones que el proyecto hubiera tenido a lo largo del trámite parlamentario, lo cierto es que desde su propuesta original se contemplaba la regulación de las licencias que ahora consultan los legisladores.

Además, en esencia, cuestionan que estas licencias no cuentan con los estudios técnicos correspondientes y que el proyecto no fue consultado —solo precisan a la CCSS?. Sin embargo, sus apreciaciones no se encuentran debidamente sustentadas. En efecto, de la atenta revisión de las copias del expediente legislativo, se acredita que el proyecto de ley sí fue consultado a la CCSS y además sí fue consultado a múltiples instituciones (ver resumen del iter parlamentario que consta en la parte considerativa de esta resolución). Además, como se señaló, no se trató de disposiciones incluidas al término del conocimiento del proyecto de ley, sino que son normas que estaban contempladas desde la primera iniciativa del proyecto de ley. Finalmente, los propios legisladores no realizan una comparación de estas normas con disposiciones ya vigentes, con el fin de determinar si efectivamente implican un costo para las supuestas instituciones afectadas. Por lo que los alegatos de los legisladores no se encuentran debidamente respaldados ni tiene carácter de dudas fundadas de constitucionalidad. Se trata de meras apreciaciones generales y abstractas que no le permiten a este Tribunal realizar un cabal análisis de constitucionalidad (que incluye el examen de razonabilidad). Recuérdese, al efecto, que el art. 99 de la Ley de la Jurisdicción Constitucional señala que la consulta facultativa de constitucionalidad “deberá formularse en memorial razonado, con expresión de los aspectos cuestionados del proyecto, así como de los motivos por los cuales se tuvieren dudas u objeciones sobre su constitucionalidad”. La omisión en el cumplimiento de este requisito amerita declarar inevacuable este extremo de la consulta legislativa.

Razones particulares de la magistrada Picado Brenes sobre los artículos 39, 40, 41 y 42 del proyecto sobre nuevos supuestos de permisos (punto 60 del Por Tanto) Según se desprende de la lectura de esta sentencia, por mayoría de los integrantes de esta Sala Constitucional, se ha considerado que los artículos 39, 40, 41 y 42 del proyecto de Ley Marco de Empleo Público que se tramita en el expediente legislativo nº 21.336 y que incluye nuevos supuestos de permisos, no resultan inconstitucionales. No obstante lo anterior, estimo necesario hacer algunas precisiones adicionales que deben ser tomadas en cuenta a la hora de analizar este numeral.

En términos generales, es necesario recordar que los temas incluidos en estos artículos bajo estudio, están referidos a lo que se ha dado en llamar “Derechos Sociales”, los cuales, en un Estado Social de Derecho, han sido incorporados al texto fundamental como una serie de objetivos políticos de gran relevancia social cuya protección está dirigida a asegurar el bien común y la satisfacción de las necesidades elementales de las personas.

En la materia bajo estudio, específicamente se refieren a permisos para reducir jornadas laborales en aras de cuidar familiares por enfermedad terminal o accidente, así como también van dirigidos, bajo algunos supuestos, a otorgar licencias por paternidad, o bien, a ampliar las que ya se extienden por maternidad; aspectos de la vida humana que indudablemente tienen relación con la satisfacción de necesidades elementales.

En cuanto a este tipo de derechos y su protección constitucional, debe decirse que históricamente han nacido como mínimos que progresivamente se han extendido a una mayor cantidad de personas o circunstancias -como sería el caso bajo estudio-; tendencia que no excluye el desarrollo de coberturas propias de la seguridad social, lo cual también suele ser expansivo y conexo al objetivo de proteger, sobre todo a los empleados, de las desgracias de que puedan ser víctimas involuntarias -en caso de enfermedad o accidente de familiares-, pero también de circunstancias positivas como lo es el nacimiento o la incorporación de un nuevo miembro a la familia, lo cual indudablemente lleva aparejado el derecho de su padre y/o madre, o bien de ambos, a contar con licencias específicas para iniciar el proceso de apego en el núcleo familiar, que también ha propiciado la evolución jurisprudencial de este Tribunal para conferir mejores condiciones a los trabajadores (ver en sentido similar las sentencias número 2007-17971 de las 14:51 horas de 12 de diciembre de 2007 y número 2011-003077 de las 15:00 horas del 9 de marzo de 2011). Sobre el particular, en la sentencia número 2020-008254 de las 17:15 horas de 30 de abril de 2020, la Sala indicó, en lo que interesa, que el diálogo entre patrono y trabajadores permite una mejoría en las condiciones laborales en aras de lograr un balance entre las exigencias patronales que garanticen la productividad, un estado psicológico óptimo del trabajador e incluso plasmar los supuestos en los que dichas manifestaciones se deben acompañar normativamente con un régimen laboral más laxo, inspirados en los principios de la solidaridad humana, pero siempre, limitados por el principio de razonabilidad, teniéndose presente lo establecido en el artículo 51 de la Constitución Política en cuanto dispone la protección de la familia así como a la madre, el niño, el anciano y el enfermo desvalido. En el mismo sentido debe recordarse que la Sala ha señalado que, en materia laboral, los beneficios que se establezcan en favor de los trabajadores, encuentran sustento en los principios de solidaridad humana y justicia social que contiene el artículo 74 de la Constitución Política (ver en ese sentido la sentencia número 6934-96 de las 9:09 horas de 20 de diciembre de 1996).

Por su parte, al analizarse temas relativos a licencias con goce de salario para los trabajadores con ocasión del nacimiento o adopción de un niño o niña, así como permisos para cuidar a enfermos, este Tribunal no ha considerado que ello sea inconstitucional por cuanto atienden a principios de solidaridad humana y a la comprensión que debe reinar en las relaciones sociales y familiares entre las personas, sin que pueda dejar de citarse lo dicho en la sentencia N° 2006-17438 de las 19:36 horas de 29 de noviembre de 2006, en la que la Sala manifestó que “… partiendo de esa especial protección que otorga la Constitución a la familia, se justifica el otorgamiento de licencias a los trabajadores por el nacimiento de sus hijos …”. Del mismo modo, es oportuno señalar que este Tribunal también ha manifestado que no se puede olvidar que se trata de permisos forzados, excepcionales y de carácter especial, que contemplan un número de días que no se estima excesivo (ver en sentido similar Sentencias N° 2006-017593 de las 15 horas del 6 de diciembre de 2006 y N° 2006-017441 de las 19 horas 39 minutos del 29 de noviembre de 2006) y que “…se trata de ventajas que han venido ganando terreno dentro del ámbito de las relaciones laborales y acentuando la propiedad de otorgar al trabajador permisos sin afectar su salario, para que se hagan cargo de situaciones particulares que les afectan a ellos o a su familia…” (ver Sentencia N° 2018-008882 de las 16:30 horas del 5 de junio de 2018).

Entonces, en lo que al fondo del asunto se refiere, debe decirse que, a partir de lo anterior, se desprende que la jurisprudencia de la Sala ha sido bastante clara al estimar la viabilidad constitucional de permisos como los que se reconocen en estos numerales 39, 40, 41 y 42 del proyecto de Ley bajo estudio, los cuales se otorgan para atender esas situaciones específicas vinculadas con acontecimientos que atañen al núcleo familiar y que existe una protección constitucional a ese tipo de derechos sociales, que la Sala ha reconocido y propiciado.

Bajo esta perspectiva de interpretación, en términos generales estimo que el contenido de los artículos 39, 40, 41 y 42 resulta ser de avance en materia de protección de derechos sociales; no obstante, en aras de evitar que existan zonas oscuras que pudieren afectar al trabajador, debo decir que, en mi opinión, existen algunos flecos sueltos que requieren ser puestos en evidencia para evitar que produzcan lesiones al Derecho de la Constitución.

En primer lugar, obsérvese que el artículo 39 no contiene ninguna herramienta de protección para el trabajador en relación con su remuneración y ello, a la larga, podría implicar una disminución considerable de sus ingresos que, dejada al libre arbitrio del patrono, podría generarle a futuro serias consecuencias en su patrimonio. De igual manera, la norma tampoco regula bajo que condiciones podrá regresar el servidor a su trabajo cuando haya cesado el objetivo por el cual se acogió a ese tipo de licencia especial; circunstancia que igualmente, dejada a la libertad del patrono, podría implicar una reducción permanente de su jornada o de la situación laboral que disfrutaba antes de acogerse al permiso.

En una línea de pensamiento similar, el artículo 40 tampoco regularía esas situaciones post permiso, pues no se establece de manera clara las condiciones bajo las cuales la persona servidora pública se podría acoger a ese permiso que, aunque no remunerado, podría propiciar que el patrono decida posteriormente su despido al tomar conciencia -durante la ausencia del trabajador-, que su puesto de trabajo o su persona, resultan innecesarios. En términos similares, tampoco se deja alguna constancia en beneficio del trabajador, en relación con su remuneración, pues perfectamente el patrono podría decidir a su regreso, liquidarle y volverlo a contratar para reducir costos, o bien, modificar sus condiciones laborales en cuanto al salario, beneficios o el tipo de funciones que realizaría a partir de su reingreso al puesto de trabajo.

Tanto para la situación regulada en el artículo 39 como en el 40, al no regularse de manera clara en la norma las condiciones bajo las cuales se otorgarían esos permisos -remunerado o no remunerado-, se podría ocasionar lesiones a los derechos fundamentales de los trabajadores.

En el caso del artículo 41 del proyecto bajo estudio, no se regula de manera clara las condiciones bajo las cuales se otorgaría el permiso entratándose de la adopción de un menor de edad, pues obsérvese que la norma señala “al momento de concretarse la adopción”, pero de ahí no queda claro si ello se refiere:

• a)al momento en que se entrega la persona menor de edad a su familia adoptiva; b) al momento en que se declara al niño en estado de abandono y por ende, puede ser sujeto de adopción; c) al momento en que un juez ordena un depósito judicial de un menor en una familia sin que necesariamente el niño esté en condición de ser adoptado; d) al momento en que un juez dicta sentencia que otorga formalmente la adopción de un menor de edad a una familia adoptante.

Tómese en cuenta que todos los anteriores son momentos muy diferentes que se pueden dar -en conjunto o por separado- en el proceso de adopción de una persona menor de edad, pero que, a la vez, todos podrían derivar consecuencias diferentes que, finalmente, podrían incidir no solo en la vida del servidor público y en su estabilidad emocional así como familiar, sino también en los intereses de la Administración porque podría ser que se otorgue un permiso con goce de salario por esta razón, pero finalmente el menor de edad -por no estar declarado en abandono-, no podría ser adoptado y se ordena su reingreso al Patronato Nacional de la Infancia, de modo tal que la Administración debería de tener en cuenta esta circunstancia así como la decisión de si, en esos casos, repite lo pagado al servidor público toda vez que la adopción no culminó como se esperaba.

Por otra parte, en lo que se refiere al artículo 42 del proyecto de ley, obsérvese que, a pesar de que el párrafo primero de la norma pareciera otorgar -de manera automática y sin ningún cuestionamiento- una extensión de la licencia de maternidad hasta por 2 meses calendario adicionales en los supuestos de nacimientos de bebés que ahí se estipulan, el párrafo segundo borra todo lo anterior pues supedita aquél derecho -que parecía inmediato al cumplimiento de esos requisitos-, al criterio del profesional en medicina que atiende a la madre; criterio que puede no solo ser subjetivo sino que también tiene el poder de decidir el plazo de la ampliación, de modo tal que si un galeno considera que la madre, a pesar de haber vivido el nacimiento de su bebé en las condiciones ahí estipuladas, no requiere esa ampliación de la licencia, ello implicaría que no se le otorgue, en detrimento de sus derechos, de los de la criatura y en abierta situación de desigualdad y discriminación en relación con otras madres cuyo médico sí estimó necesaria la ampliación de la licencia.

Con vista de lo expuesto, considero que la norma podría tener vicios de inconstitucionalidad si no se toman en cuenta estos criterios que he señalado y que deberán ser analizados por el legislador.

XXI.- Sobre la consulta por exclusión de las empresas públicas en competencia y otras exclusiones.- (redacta magistrada Picado Brenes) 1) Aspectos consultados Consideran los consultantes que los artículos 2 y 3 del proyecto de ley, lesionan los artículos 33 y 191 de la Constitución Política, por cuanto el proyecto de ley no debería excluir a ninguna institución de su ámbito de aplicación. Indican que el Constituyente previó, de esta forma, que las relaciones entre el Estado y los funcionarios debía regirse por una única regulación y un único estatuto, de todos los funcionarios públicos, sin generar exclusiones ni ninguna diferenciación, por lo tanto, el crear estas exclusiones, vendría a producir que existan funcionarios públicos de diferente clase, al aplicarles, dependiendo de la institución en que laboren, una legislación u otra, por lo que se vulnera el espíritu del Constituyente en cuanto pretendió la eficiencia de la administración. Debe indicarse que el artículo 2 del proyecto de Ley bajo estudio, ya fue debidamente analizado en considerandos anteriores (ver considerandos IX, X, XII y XIII) y, por ello, en este punto en concreto, la Sala solo se pronunciará respecto del artículo 3 en que expresamente se regula lo relativo a las exclusiones; no obstante, para efectos de comprender la relación existente entre ambos numerales en los términos en que lo plantean los consultantes, es indispensable citar ambos:

“ARTÍCULO 2- Ámbito de cobertura Esta ley es aplicable a las personas servidoras públicas de las siguientes entidades y órganos bajo el principio de Estado como patrono único:

• a)Los Poderes de la República (Ejecutivo, Legislativo y Judicial), sus órganos auxiliares y adscritos, y el Tribunal Supremo de Elecciones (TSE), sin perjuicio del principio de separación de Poderes establecido en la Constitución Política.
• b)El sector público descentralizado institucional conformado por: las instituciones autónomas y sus órganos adscritos, incluyendo universidades estatales, la Caja Costarricense de Seguro Social (CCSS), instituciones semiautónomas y sus órganos adscritos, y las empresas públicas estatales.
• c)El sector público descentralizado territorial conformado por las municipalidades, las ligas de municipalidades, los concejos municipales de distrito y sus empresas.” “ARTÍCULO 3- Exclusiones Se excluyen del ámbito de aplicación de esta ley:
• a)Los entes públicos no estatales.
• b)Las empresas e instituciones públicas en competencia, salvo en lo relativo a las disposiciones sobre negociación colectiva.
• c)El Benemérito Cuerpo de Bomberos.” 2) Antecedentes Jurisprudenciales En un considerando anterior esta Sala hace un análisis jurisprudencial de lo que este Tribunal ha señalado en relación con la existencia o no de un solo régimen de empleo público. Para los efectos de este acápite, procede reiterar la línea jurisprudencial que ha sostenido sobre la posible existencia de regímenes diferenciados y sobre la excepción establecida en el ordinal 192 constitucional en el siguiente sentido:

“…El legislador, sin embargo, optó por regular el servicio no de modo general, sino por sectores, promulgando así el Estatuto del Servicio Civil (que se aplica a los servidores del Poder Ejecutivo) y posteriormente otros estatutos para regular la prestación de servicios en los restantes poderes del Estado y en algunas instituciones descentralizadas(…) Es obvio que en la mente del constituyente estaba la idea de que no todos los servidores públicos podían estar cubiertos por el régimen especial, pues la forma de escogencia, las especiales capacidades, las funciones de cada cargo, las relaciones confianza y dependencia no son iguales en todos los casos, de ahí que los principios derivados del artículo 192 son aplicables a ciertos funcionarios –la mayoría- no a todos. La Constitución misma señaló varios casos de funcionarios de libre escogencia y remoción como son los ministros de gobierno, los miembros de la fuerza pública, los directores de instituciones autónomas, representantes diplomáticos, y en general, "los empleados y funcionarios que ocupen cargos de confianza" (art. 140 inciso 1), dejando a la ley (Ley de Servicio Civil dice el artículo 140) la determinación de otros funcionarios, que en casos muy calificados, pudieran ser excluidos del régimen general. Esta posibilidad de excluir ciertos funcionarios la reitera el artículo 192. Se repite que la intención del constituyente fue la de que existiera una sola ley, un Estatuto, que regulara todo el servicio público. No obstante, lo importante es que se dejó al legislador ordinario, por medio de la ley, la regulación en detalle de la cobertura del régimen especial, lo cual podía hacer, como lo hizo, en leyes separadas, sin detrimento del mandato constitucional. Por vía de ley el legislador ha excluido varios casos del régimen común.”. (sentencia n°1990-1119). El énfasis no es del original.

Debido a que una de las entidades excluidas del proyecto de ley consultado es el Instituto Nacional de Seguros, resulta oportuno mencionar lo que esta Sala dijo en la sentencia n°2013-16637 sobre el empleo en dicha institución:

“Sobre esta norma en particular, la Sala ha señalado en reiterados pronunciamientos, que el Instituto Nacional de Seguros, como empresa pública del Estado que es, tiene la potestad de darse su propia organización interna, en virtud de ello, no está sujeto a lo dispuesto en el artículo 192 constitucional y por ello sus trabajadores no están adscritos al Régimen Estatutario del Servicio Civil ni al principio de la estabilidad en el empleo público. En sentencia No. 2008-11920 de las 15:11 horas del 30 de julio de 2008, reiterada recientemente en la No. 2012-4942 de las 15:39 horas del 18 de abril de 2012, este Tribunal resolvió los mismos alegatos planteados por la accionante desestimando las razones de inconstitucionalidad dadas, con las siguientes consideraciones:

“III.- Alega el accionante que de conformidad con el artículo 62 de la Constitución Política, las convenciones colectivas tienen rango y fuerza de ley, por lo que de conformidad con el principio de supremacía constitucional, su valor es inferior al de cualquier norma o principio constitucional. El artículo 7 constitucional otorga valor superior a la ley a los tratados internacionales de la O.I.T. Por su parte, el artículo 192 contiene varios principios constitucionales que deben regir la relación laboral, entre los cuales están la idoneidad y la estabilidad en el empleo; en relación con estos dos elementos, como corolario se dispone la remoción por las causales de despido justificado dispuesta por la legislación laboral y la reducción forzosa de servicios (reestructuración) sea por falta de fondos o en procura de lograr una mejor organización de dichos servicios. De ahí se desprende que por mandato constitucional la única forma para que un funcionario público sea removido de su cargo o nombramiento, es a través de causales de “despido justificado”, de conformidad con la legislación laboral del país. El accionante incurre en un error en su análisis, pues afirma que el régimen establecido a partir del artículo 191 de la Constitución Política, concretamente las condiciones indicadas en el artículo 192 constitucional para los servidores públicos -remoción por causales previstas en la legislación o por reducción forzosa de servicios-, deben ser aplicadas al Instituto Nacional de Seguros. El artículo 192 constitucional está contenido en el Título XV “El Servicio Civil”, Capítulo Único, el cual regula la relación entre el Estado y los servidores públicos con el propósito de garantizar la eficiencia de la administración. Sin embargo, y como bien lo dice el accionante, el I.N.S es una institución autónoma que goza de autonomía administrativa, lo que le otorga potestad para realizar sus competencias y atribuciones, constitucional o legalmente conferidas, las cuales presuponen la potestad de auto-administrar o disponer de sus recursos (humanos, materiales, financieros). Su condición de institución autónoma está reconocida expresamente en el artículo 189 de la Constitución Política; puede darse su propia organización interna y determinar el contenido de ésta. En razón de lo expuesto, ni el artículo 192, ni ninguno de los contenidos en el Título XV, son de aplicación al Instituto Nacional de Seguros, pues este no forma parte de los órganos que conforman la Administración Pública. Precisamente esa condición de institución autónoma ubica al I.N.S. y a sus empleados, en una situación jurídica totalmente distinta de la que tiene el Poder Ejecutivo, sus órganos y servidores públicos, quienes no están protegidos por el Estatuto del Servicio Civil y por tanto no gozan de las ventajas de esa legislación laboral, entre ellas el régimen de estabilidad de empleo. En la sentencia 2004-5960, la Sala determinó que el I.N.S. es una empresa pública-ente de derecho público, definiendo ésta como aquella que asume la forma de un ente público para desplegar un giro total o parcialmente empresarial (industria, comercio de bienes y servicios, etc.) Los servidores del I.N.S. están sometidos a un régimen privado de empleo, lo cual significa que la institución tiene la posibilidad de dirigir sus relaciones laborales según convenga a su organización, al interés público y al logro de sus objetivos. Este Tribunal ha señalado que el I.N.S. es una empresa cuya actividad es similar a la que realiza cualquier particular en cuanto vende un determinado producto. Al no realizar “gestión pública”, puede celebrar convenciones colectivas de trabajo (sentencia 4453-2000). […]

IV.- Conclusión. La potestad de auto-organización del I.N.S. deriva del artículo 189 de la Constitución Política. Se trata de una empresa pública-ente de derecho público, cuyos servidores no están cubiertos por el régimen del Servicio Civil, sino por el derecho laboral privado; por tal razón, puede suscribir convenciones colectivas. Partiendo de tales supuestos, el contenido del artículo 160 es válido desde el punto de vista constitucional, por lo que procede el rechazo por el fondo de la acción.” Igualmente oportuno resulta citar lo señalado por esta Sala en cuanto a las discusiones sobre el personal del Instituto Costarricense de Electricidad, y con mayor claridad luego de aprobada la reforma a las Telecomunicaciones, realizada en el año 2008:

“Por su parte, la autoridad recurrida alega que la Ley Nº 8660 de Fortalecimiento y Modernización de las Entidades Públicas del Sector Telecomunicaciones otorgó al ICE plena autonomía para administrar sus recursos humanos y disponer de ellos. En mérito de ello, el accionado refiere que los empleados del ICE -salvo ciertas excepciones, entre las cuales no está la tutelada- no son funcionarios públicos, por lo que les resulta aplicable el derecho laboral común. Consiguientemente, el ICE no estaba compelido a instruir un procedimiento disciplinario previo al despido de la amparada.

A efectos de resolver el sub examine y determinar si efectivamente se vulneraron los derechos fundamentales de la accionante al debido proceso y al trabajo, resulta ineludible remitirse al marco normativo que regula las relaciones laborales de los funcionarios del ICE.

Primeramente, la Ley Nº 8660 de Fortalecimiento y Modernización de las Entidades Públicas del Sector Telecomunicaciones (publicada en la Gaceta Nº 156 del 13 de agosto de 2008) estipula:

“ARTÍCULO 32.- Estatuto de personal. El ICE tendrá plena autonomía para administrar sus recursos humanos y disponer de ellos, de conformidad con la legislación laboral, el Estatuto de personal y cualquier otro instrumento negociado por el ICE con sus trabajadores. En materia de responsabilidad, sus servidores responderán conforme al Derecho público.

Se ratifican la vigencia del Estatuto de personal y la facultad del Consejo Directivo del ICE para dictar las normas y políticas que regulen las condiciones laborales, la creación de plazas, los esquemas de remuneración, las obligaciones y los derechos de los funcionarios y trabajadores del ICE. (…)

ARTÍCULO 33.- Derechos laborales y situaciones jurídicas consolidadas Ratifícanse la vigencia, la plena validez y la eficacia de los derechos laborales, las situaciones jurídicas consolidadas y los beneficios socioeconómicos que tienen y han venido recibiendo los trabajadores del ICE, conforme a su Estatuto de personal; los de Radiográfica Costarricense Sociedad Anónima (Racsa), de acuerdo con su Reglamento de trabajo, y los de la Compañía Nacional de Fuerza y Luz (CNFL), según la convención colectiva, los que se mantendrán vigentes con la promulgación de esta Ley.” (énfasis agregado) En cuanto a antecedentes históricos de dichos numerales, cabe mencionar la moción Nº 277-69 contenida en el acta legislativa Nº69. Dicha moción -rechazada finalmente- procuraba eliminar el actual artículo 33 toda vez que se consideraba sobreabundante ratificar la vigencia del Estatuto de Personal del ICE. En este sentido, la Diputada Zamora Chaves explicó “no hay nada en esta ley, por lo menos yo no lo he encontrado, que derogue el Estatuto de Personal; entonces, si no lo deroga, para qué ratificar nada; o sea, sigue vigente (…)” Por su parte, el Presidente de la Comisión replicó manifestando que “solo adicionaría que en realidad con las diferentes presiones y necesidades que se reciben de los diferentes grupos, en este tema en particular, fue una preocupación manifestada por los Sindicatos del ICE, que se hicieran expresiones de ratificación, esos enunciados de ratificación de la Ley existente, y como está existente y no se ha derogado, pues tampoco hace daño en razón a darles tranquilidad, manifestar que ahí están y que quedan ratificadas en esta Ley”.

Al tenor de lo anterior, si bien el ICE tiene plena autonomía para administrar su recurso humano, no menos cierto es que eso solo lo puede hacer conforme a la legislación laboral, el Estatuto de Personal y cualquier otro instrumento negociado por el ICE con sus trabajadores. Ergo, el Estatuto de Personal, vigente por disposición expresa de ley, se constituye como marco jurídico de referencia obligatoria a efectos de regular la administración del recurso humano, incluyendo los procedimientos de despido.” (Sentencia n°2015-7499).

En relación con el Cuerpo Benemérito de Bomberos y su personal, este Tribunal se ha pronunciado en el siguiente sentido:

“II. SOBRE EL CASO CONCRETO.- En la especie, el petente acusa que la parte recurrida dispuso despedirlo, sin indicarle las razones que motivaron el acto y en consecuencia, solicita la intervención de este Tribunal a fin de restituirlo en su puesto, toda vez que – a su juicio- dicho despido fue injustificado, en abierta lesión a sus derechos de defensa y debido proceso. Sobre el particular, es abundante la jurisprudencia de este Tribunal que establece dada la naturaleza de la parte recurrida, es posible poner término al contrato laboral sin que medie justa causa. Al respecto, mediante sentencia 2016005950 de las 9:05 horas del 4 de mayo de 2016, esta Sala resolvió:

“El artículo 1° de la Ley 8228 de 19 de marzo del 2002, “Ley del Benemérito Cuerpo de Bomberos de Costa Rica”, establece que el Cuerpo de Bomberos es un órgano desconcentrado del Instituto Nacional de Seguros. Al respecto, debe señalarse que, según lo ha establecido la jurisprudencia de este Tribunal (ver sentencias N° 2008-11920 y N° 2010-9158 referidas al INS, así como sentencias N° 00-7730, 01-244 y 01-12953 respecto de otras empresas públicas), el marco jurídico general es — en principio — el Derecho Privado, el cual es también el régimen jurídico particular de sus relaciones de empleo, donde rige la libertad de despido, si bien es aplicable el Derecho Público a los miembros del Consejo Directivo, conforme lo establece la propia normativa (artículo 26 del reglamento de la Ley del Cuerpo de Bomberos). En un asunto similar de un trabajador del INS, esta Sala resolvió:“… es posible concluir que, el Instituto Nacional de Seguros tiene la facultad, con base en el numeral 160 de cita, de poner término al contrato laboral con responsabilidad patronal, sin que medie justa causa, en el momento que lo estime necesario, sin incurrir con ello en lesión laboral alguna o bien generar un conflicto con la normativa vigente. Este Tribunal en casos similares al presente, ha considerado que se trata de relaciones laborales regidas por el derecho privado y estudiado el artículo de cita, se determina que lo ahí estipulado resulta procedente y no se halla roce alguno con los derechos fundamentales de los trabajadores de esa institución” (sentencia N° 2010-9158; véase en el mismo sentido la N° 2014-1686).”-énfasis añadido- Precedente que resulta aplicable en el caso concreto, toda vez que la Sala no encuentra motivos para variar su criterio, por lo que, cualquier controversia en cuanto al cese del amparado, deberá resolverse en la vía ordinaria correspondiente. Ergo, el recurso deviene en inadmisible.” (Sentencia n°2016-12794) 3) Análisis concreto de lo consultado Sobre el particular, en primer lugar debe decirse que, aún cuando los diputados consultantes son del criterio de que este proyecto de Ley no debería plantear las exclusiones que se hacen en ese numeral 3, esta Sala recuerda que, conforme al propio texto del artículo 192 constitucional, la doctrina nacional y lo dispuesto en los artículos 3, 111 y 112 de la Ley General de la Administración Pública, existe un grupo de trabajadores del Estado que, por la naturaleza de sus funciones o bien por el tipo de centro de trabajo en el que se desempeñan, se regulan por el régimen laboral privado, y por tanto, resultan incompatibles para ser regulados por una ley de empleo público. En segundo lugar, al observarse el ordenamiento jurídico costarricense de manera integral, lo cierto del caso es que éste permite que hayan excepciones como las que se plantean en el artículo 3 bajo estudio, con lo cual se tiene que jurídicamente sí es posible exceptuar de un régimen de empleo público a determinadas instituciones, siendo precisamente el fundamento de ello lo establecido por el Constituyente en el artículo 192 constitucional, al disponer al inicio “con las excepciones que esta Constitución y el estatuto de servicio civil determinen”; frase que, según indicó este Tribunal, “obliga a matizar las conclusiones anteriores respecto al ámbito de aplicación del régimen o estatuto de servicio civil”. Sobre el particular, la Sala ha sostenido la posible existencia de regímenes diferenciados a partir de la excepción establecida en el ordinal 192 constitucional. Tal como se indica en los votos n°2010-010713 (que se ratifica en SCV 2014-001686, 2014-002686, 2016-017418, 2016-018847, 2016-005950):

“… dado que el Instituto Nacional de Seguros actúa en ejercicio de su capacidad de derecho privado, los principios generales de la estabilidad en el empleo no le son aplicables a sus funcionarios – salvo a quienes ocupan puestos gerenciales o de fiscalización superior – razón por la cual pueden ser removidos de sus puestos sin justa causa, con responsabilidad patronal, es decir, sin alegarse en su contra la comisión de alguna falta y con el pago de la indemnización que proceda. (Subrayado no corresponde al original).

Así las cosas, y conforme lo ha reiterado este Tribunal, el propio Constituyente previó que no todos los servidores del Estado podían estar cubiertos por el régimen especial, pues la forma de escogencia, las especiales capacidades, las funciones de cada cargo, las relaciones de confianza y dependencia no son iguales en todos los casos, de ahí que los principios derivados del artículo 192 son aplicables a la mayoría de los trabajadores del Estado, pero no a todos. Desde esta perspectiva, contrario a lo afirmado por los consultantes, sí es posible establecer excepciones al ámbito de aplicación del régimen o estatuto de servicio civil; exclusión que no puede ser arbitraria y que tiene que estar debidamente justificada. Ahora bien, se observa que los consultantes cuestionan esta disposición -artículo 3 del proyecto bajo estudio- señalando, únicamente, que el mero criterio de competitividad no es suficiente para darles un trato diferenciado, pues se trata igualmente de funcionarios públicos que manejan fondos públicos y, como ellos mismos reconocen, se trata de empresas e instituciones públicas que están bajo el régimen de competencia; es decir, no están en igualdad de condiciones que las demás instituciones del Estado conforme se desprende de los artículos 3, 111 y 112 de la Ley General de la Administración Pública, cuando se refieren a los trabajadores de este tipo de empresas estatales, se rigen por el Derecho privado. Para comprender los alcances de las exclusiones del artículo 3 de cita, debe hacerse la diferenciación conceptual entre lo que dispone su inciso a) que son los entes públicos no estatales, y lo que abarca el inciso b) que se refiere a las empresas e instituciones públicas en competencia, siendo éstas respecto de las cuales los diputados consultantes plantean su cuestionamiento pues, como se señaló supra, estiman que el mero criterio de competitividad no es suficiente para darles un trato diferenciado ya que igual son funcionarios públicos que manejan fondos públicos. Los que en primer lugar están excluidos según el citado artículo 3 del proyecto bajo estudio, son los entes públicos no estatales. Estos entes tienen una naturaleza jurídica diferente del resto de instituciones del Estado. Según la doctrina se han concebido como organismos de base corporativa, constituidos a partir de un convenio o de una ley, que agrupa intereses privados, pero que son relevantes para el Estado, los cuales se financian con el aporte de sus agremiados y con contribuciones parafiscales, otros aportes directos, y en menor medida, del Estado. Por ello, su régimen jurídico es predominantemente privado, aunque están sujetos al bloque de legalidad administrativo en lo que respecta al ejercicio de las potestades de imperio que ejerce por delegación legal. En consecuencia, los entes públicos no estatales, técnicamente no pertenecen al Estado, sino que excepcionalmente ejercen función administrativa, por la cual emiten actos administrativos y son considerados parte de la Administración Pública. Fuera de esas potestades de imperio, se relacionan con otros sujetos sobre la base del principio de la autonomía de la voluntad que se rige por el derecho privado; de ahí que, sus relaciones de trabajo se han considerado de derecho privado, y por ello también resultan razonablemente exceptuados del régimen de empleo público pretendido por la Asamblea Legislativa. Tal sería el ejemplo de los colegios profesionales, definidos como entes públicos no estatales, y cuyos trabajadores se rigen por el derecho privado.

En segundo lugar, se ubica a las empresas e instituciones públicas en competencia y dentro de estas se pueden citar como ejemplos el Instituto Nacional de Seguros y el Instituto Costarricense de Electricidad, en materia de telecomunicaciones. En cuanto al primero, el INS, debe decirse que tanto en su actuación, como la relación laboral que mantiene con sus empleados, prevalece la aplicación del derecho privado, conforme la jurisprudencia supra citada. Lo anterior se justifica en tanto, para la Sala Constitucional, el Instituto Nacional de Seguros, como empresa pública tiene la potestad de darse su propia organización interna ya que no está sujeto a lo dispuesto en el artículo 192 constitucional y por ello sus trabajadores no están adscritos al Régimen Estatutario del Servicio Civil ni al principio de la estabilidad en el empleo público. Ha dicho este Tribunal sobre el particular, lo siguiente:

“(…) el I.N.S es una institución autónoma que goza de autonomía administrativa, lo que le otorga potestad para realizar sus competencias y atribuciones, constitucional o legalmente conferidas, las cuales presuponen la potestad de auto-administrar o disponer de sus recursos (humanos, materiales, financieros). Su condición de institución autónoma está reconocida expresamente en el artículo 189 de la Constitución Política; puede darse su propia organización interna y determinar el contenido de ésta. En razón de lo expuesto, ni el artículo 192, ni ninguno de los contenidos en el Título XV, son de aplicación al Instituto Nacional de Seguros, pues este no forma parte de los órganos que conforman la Administración Pública. Precisamente esa condición de institución autónoma ubica al I.N.S. y a sus empleados, en una situación jurídica totalmente distinta de la que tiene el Poder Ejecutivo, sus órganos y servidores públicos, quienes no están protegidos por el Estatuto del Servicio Civil y por tanto no gozan de las ventajas de esa legislación laboral, entre ellas el régimen de estabilidad de empleo. En la sentencia 2004-5960, la Sala determinó que el I.N.S. es una empresa pública-ente de derecho público, definiendo ésta como aquella que asume la forma de un ente público para desplegar un giro total o parcialmente empresarial (industria, comercio de bienes y servicios, etc.) Los servidores del I.N.S. están sometidos a un régimen privado de empleo, lo cual significa que la institución tiene la posibilidad de dirigir sus relaciones laborales según convenga a su organización, al interés público y al logro de sus objetivos. Este Tribunal ha señalado que el I.N.S. es una empresa cuya actividad es similar a la que realiza cualquier particular en cuanto vende un determinado producto. Al no realizar “gestión pública”, puede celebrar convenciones colectivas de trabajo (sentencia 4453-2000) (ver sentencias n°2013-16637 de las 9:20 horas de 13 de diciembre de 2013, n° 2008-11920 de las 15:11 horas del 30 de julio de 2008, reiterada en la n° 2012-4942 de las 15:39 horas del 18 de abril de 2012).

En sentido similar se pronunció la Sala respecto al Instituto Costarricense de Electricidad, en la sentencia anteriormente citada (n° 2015-7499).

Finalmente, en atención al contenido del artículo 3, se ubica al Benemérito Cuerpo de Bomberos, el cual, según la ley que lo creó n°8228, es un órgano de desconcentración máxima adscrito al Instituto Nacional de Seguros (INS), con domicilio en San José y competencia en todo el territorio nacional, para cumplir las funciones y las competencias que, en forma exclusiva, las leyes y los reglamentos le otorgan. Se le confirió personería jurídica instrumental incluso para la contratación y todo lo relativo a su personal:

“Artículo 2.- Personería jurídica El Cuerpo de Bomberos contará con personería jurídica instrumental que utilizará en los actos y contratos que adopte para cumplir los acuerdos de su consejo directivo y desempeñar las funciones que la ley indica, en materia de administración presupuestaria, de contratación administrativa, de recursos humanos, capacitación, coordinación interinstitucional, manejo de emergencias y otras competencias técnicas específicas...” “Artículo 7.- Organización El Cuerpo de Bomberos funcionará bajo la dirección superior de un Consejo Directivo del Benemérito Cuerpo de Bomberos de Costa Rica, referido en adelante como Consejo Directivo, el cual estará integrado por cinco miembros de reconocida solvencia moral, quienes elegirán de su seno, anualmente, un presidente. Tres miembros serán designados por la Junta Directiva del Instituto Nacional de Seguros y los dos restantes serán elegidos por los funcionarios del Cuerpo de Bomberos, de conformidad con el Reglamento de esta Ley. Durarán en sus cargos cinco años y podrán ser reelegidos.

La administración y representación del Cuerpo de Bomberos, recaerá en la persona del director general del Cuerpo de Bomberos, quien asumirá las funciones gerenciales de ese órgano.

El Cuerpo de Bomberos contará con las dependencias operativas, técnicas y administrativas necesarias para el fiel cumplimiento de sus cometidos públicos y dispondrá de los funcionarios necesarios para cumplir los objetivos propios de su gestión; mediante esta Ley, queda autorizado para crear puestos y habilitar las plazas vacantes.” Interesa destacar que a este artículo 7, se le adicionó el 7 bis, el cual se incorporó por la Ley 8653, Ley Reguladora del Mercado de Seguros, según dispone:

“Artículo 7 bis.- Organización, funciones, funcionamiento y dietas del Consejo Directivo A los miembros del Consejo Directivo les serán aplicables, en lo que razonablemente corresponda, y con excepción de las normas propias de la actividad aseguradora, los requisitos, las incompatibilidades y causas de cese dispuestos para los miembros de la Junta Directiva del Instituto Nacional de Seguros; además, podrán ser removidos libremente de sus puestos por la Junta Directiva del Instituto Nacional de Seguros, por mayoría de cinco de sus miembros…

La organización y el funcionamiento del Consejo Directivo se regirá, en lo aplicable, por el capítulo referente a los órganos colegiados de la Ley general de la Administración Pública , así como por lo estipulado en el Reglamento de la presente Ley.

Son funciones del Consejo Directivo del Cuerpo de Bomberos de Costa Rica:

• a)Definir y autorizar la organización del Cuerpo de Bomberos de Costa Rica, lo que incluye la creación de puestos, así como la definición y asignación de competencias de las dependencias funcionales, operativas, técnicas y administrativas, necesarias para el cumplimiento eficiente y eficaz de sus cometidos públicos.
• b)Emitir los reglamentos de organización y servicio necesarios para el adecuado desempeño de las funciones del Cuerpo de Bomberos.
• c)Nombrar, mediante concurso interno de atestados, de conformidad con la legislación aplicable al director general del Cuerpo de Bomberos. En caso de inopia dentro de la misma organización, se dispondrá la celebración de un concurso público.
• d)Remover al director general del Cuerpo de Bomberos, cumpliendo con el debido proceso.
• e)Nombrar y remover al auditor interno, de conformidad con el proceso señalado en la Ley general de control interno, N.º 8292, de 31 de julio de 2002, así como con la Ley orgánica de la Contraloría General de la República , N.º 7428, de 7 de setiembre de 1994.
• f)Emitir la normalización técnica y el ordenamiento, que serán de acatamiento obligatorio para las personas, físicas o jurídicas, así como para las entidades, públicas o privadas, en materia de seguridad, de protección contra incendio y de seguridad humana.
• g)Conocer y resolver en apelación los recursos interpuestos contra las resoluciones dictadas por el director general del Cuerpo de Bomberos. Las resoluciones del Consejo Directivo agotarán la vía administrativa.
• h)Aprobar el plan estratégico y el plan anual operativo.
• i)Acordar los presupuestos, sus modificaciones y su liquidación y remitir la documentación correspondiente a la Contraloría General de la República, para la aprobación final.
• j)Velar por el cumplimiento de las disposiciones de las autoridades de control o de carácter técnico que tengan competencia sobre el Cuerpo de Bomberos.
• k)Definir las tarifas que el Cuerpo de Bomberos cobrará por la prestación de los servicios especiales y sus variaciones, lo cual se establecerá en el Reglamento de esta Ley.
• l)Las demás funciones que disponga la ley.

Los miembros del Consejo Directivo devengarán dietas por sesión, cuyo monto será igual al cincuenta por ciento (50%) de las dietas percibidas por los miembros de la Junta Directiva del INS, excepto si son funcionarios de la misma Institución y las sesiones se lleven a cabo en horas laborales, caso en el cual no tendrán derecho a remuneración alguna.” En consonancia con lo anterior, es necesario señalar que el régimen de los bomberos cuenta con particularidades propias del tipo de función que realizan, y por eso el tema se ha regulado en el artículo 9 de la Ley del Benemérito Cuerpo de Bomberos nº 8228, según el cual:

“Artículo 9º—Régimen de los bomberos. Para el ejercicio del cargo, los bomberos serán funcionarios con la autoridad, las facultades y las atribuciones que les brindan la presente Ley, su Reglamento y la demás reglamentación emitida al efecto por el INS. El régimen disciplinario de los bomberos deberá corresponder con la naturaleza de sus funciones y la importancia de su cometido público.

El régimen laboral, la jornada de trabajo y el régimen de jubilación de los trabajadores integrantes del Cuerpo de Bomberos, deberán atender las condiciones especiales de la prestación de sus servicios y los derechos laborales incluidos en la legislación y la convención colectiva vigentes.

El Régimen de los Bomberos Voluntarios, Adscritos, Honorarios, el Régimen de los Brigadistas y otros de similar naturaleza, serán reglamentados por el INS.” Para comprender mejor las razones por las cuales el legislador ha decidido excluir al Benemérito Cuerpo de Bomberos de este proyecto de Ley bajo estudio, es necesario remontarse a la exposición de motivos del expediente legislativo n°13.574 que dio origen a la Ley 8228 del Benemérito Cuerpo de Bomberos, y de cuya lectura se desprende la consideración de que los incendios, los derrames de productos químicos tóxicos, las emergencias naturales, tecnológicas o antrópicas, producen pérdidas de vidas y daños patrimoniales cuantiosos, que repercuten en la economía, el desarrollo y la seguridad social del país, siendo por ello necesario dotar a los trabajadores de ese cuerpo, de condiciones laborales ajustadas al tipo de funciones que les corresponde realizar, y precisamente, por razones de conveniencia y oportunidad, la Ley actual le confiere al Cuerpo de Bomberos la potestad de determinar las dependencias operativas, técnicas y administrativas necesarias para el fiel cumplimiento de sus cometidos públicos, así como de los funcionarios necesarios para cumplir los objetivos propios de su gestión; quedando autorizado expresamente para crear puestos y habilitar las plazas vacantes. Este Tribunal considera que, dada la naturaleza del servicio que presta el Benemérito Cuerpo de Bomberos, irremediablemente vinculada a la atención de emergencias, se justifica que cuente con mayor agilidad en su tramitología, pero también con una regulación especial ajustada a sus condiciones de trabajo y a los aspectos técnicos así como de seguridad que requiere; motivos que fundamentan la consideración que tuvo el legislador para que esa institución haya sido exceptuada del régimen general de empleo público que se analiza en este proyecto de Ley. De plena aplicabilidad al caso concreto interesa recordar la consideración que hizo este Tribunal en relación con las condiciones especiales de jubilación de los miembros del Cuerpo de Bomberos que ingresaron con anterioridad al 15 de julio de 1992, al señalarse que:

“(…) Para este Tribunal Constitucional, ciertamente las condiciones de jubilación de los miembros del cuerpo de bomberos resulta desigual del resto de trabajadora (sic) del sector público, y aún del sector privado, sin embargo, tal desigualdad de trato no resulta arbitraria o discriminatoria, sino que está sustentada en una base objetiva, razonable y proporcionada, tal como se explica a continuación. En primer lugar, debe recordarse en qué consiste la labor del cuerpo de bomberos de Costa Rica, para comprender luego que, tal diferencia de trato, es un mecanismo ideado por el legislador y por la misma Administración, para favorecer la condición social de este tipo de trabajadores, encaminado a proteger intereses superiores basados en la solidaridad humana y en principios de justicia social como los contemplados en el propio artículo 74 de la Constitución Política. (…) La labor que realizan sus trabajadores es de gran importancia para la sociedad, pues en aras de atender situaciones de emergencia, ponen en riesgo su vida constantemente y están sometidos a condiciones laborales muy diferentes que la del resto”.

Finalmente, interesa señalar que, será el operador jurídico al que le corresponderá determinar las consecuencias derivadas de la interpretación conjunta que se realice de este artículo 3 con los numerales 3, 111 y 112 de la Ley General de la Administración Pública, toda vez que, la indicación de regulación por el régimen del derecho privado únicamente a las empresas públicas en competencia y no a todas, sería un tema de legalidad.

• 4)Conclusión En los términos indicados y conforme a la jurisprudencia constitucional, no se considera que el artículo 3 proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n°21.336 sea inconstitucional, por el hecho de realizar las exclusiones que allí se indican a las empresas públicas en competencia, a los entes públicos no estatales y al Benemérito Cuerpo de Bomberos.

XXII.- Conclusiones En cuanto a los vicios de procedimiento:

• 1)No se encuentra vicio de procedimiento sustancial en cuanto al argumento de la inadmisibilidad de la moción 138-231 y 138-250, ello por cuanto no se fundamentó en el escrito de esta consulta cuál fue la moción que la modificó y “le cayó encima”; y en cuanto a la inadmisibilidad de la moción 138-18, por cuanto se fundamentó en un hecho incierto (la probabilidad de que otra moción le cayera encima).
• 2)No se encuentra vicio de procedimiento sustancial en cuanto al argumento de la indebida acumulación de la moción 138-154 por cuando, aunque indebidamente acumulada al inicio luego el Presidente de la Asamblea la desacumula y permite su discusión separada.
• 3)No se encuentra vicio de procedimiento sustancial en cuanto al argumento de la falta de discusión de la moción 138-210 de la diputada Paola Vega, por cuanto la moción que se dice no se puso a discusión aparece con sello de retirada y con la firma de la diputada proponente.

En cuanto a los vicios de fondo:

• 1)Poder Judicial y Tribunal Supremo de Elecciones: Sobre los artículos 12 (base de datos), 13.h (familia en puestos de confianza), 15 (postulados de reclutamiento y selección), 19 (movilidad o traslados), y 31 (metodología de trabajo), consultados en cuanto al Poder Judicial y el Tribunal Supremo de Elecciones, dado que no se realiza la fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, se declara inevacuable la consulta por falta de fundamentación.
• 2)Poder Judicial: Analizados todos los aspectos consultados en cuanto al artículo 2 (inciso a), 6 (inciso b), 7 (incisos d, g y p), 9 (segundo párrafo del inciso a), 13 (inciso f), 14, 17, 18, 21 y 22, 49 (inciso b, g y h), del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, en lo que se refiere al Poder Judicial, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación al principio de separación de funciones, al principio de independencia judicial, al régimen particular de empleo del Poder Judicial y a las competencias constitucionales administrativas de la Corte Suprema de Justicia.
• 3)Tribunal Supremo de Elecciones: Analizados todos los aspectos consultados en cuanto al artículo 2 (inciso a), 6 (inciso b), 7 (incisos d, g y p), 9 (segundo párrafo del inciso a), 13 (inciso a y f), 14, 17, 18, 21 y 22, del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, en lo que se refiere al Tribunal Supremo de Elecciones, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación al principio de separación de funciones y de los artículos 9 y 99 Constitucionales.
• 4)Universidades Públicas: Sobre los artículos 11 (planificación del empleo), 15 (postulados de reclutamiento y selección) y 16 (oferta de empleo), consultados en cuanto a las Universidades Públicas, dado que no se realiza la fundamentación suficiente que permita a esta Sala tener claridad sobre lo consultado, se declara inevacuable la consulta por falta de fundamentación.
• 5)Universidades Públicas: Analizados todos los aspectos consultados en cuanto al artículo 6, 7, 9 (segundo párrafo del inciso a), 13 (inciso e), 14, 17, 30 (salvo el inciso b), 31, 32, 33, 34, 37 (inciso f), del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, en cuanto a las Universidades Públicas, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación a la autonomía universitaria. Siendo constitucionales los artículos 30.b, 35 y 36 del proyecto en cuestión, por las razones ya indicadas.
• 6)Caja Costarricense de Seguro Social: Analizados todos los aspectos consultados en cuanto al artículo 2 (inciso b), 6, 7 (incisos d), 9 (segundo párrafo del inciso a), 13 (inciso b), 14, 17 y 18, del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, en cuanto a la Caja Costarricense de Seguro Social, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación a la autonomía de gobierno de la CCSS, constitucionalmente protegida (art.73 constitucional) de esta institución.
• 7)Municipalidades: Analizados todos los aspectos consultados en cuanto al artículo 2 (inciso c), 6, 7, 9 (segundo párrafo del inciso a), 13, 14, 17 y 18 del proyecto de Ley denominado "LEY MARCO DE EMPLEO PÚBLICO" expediente legislativo n° 21.336, en cuanto a las Municipalidades, esta Sala constata que tales normas resultan contrarias al Derecho de la Constitución, por violación a la autonomía de gobierno de las municipalidades, consagrada constitucionalmente.
• 8)Instituciones autónomas: Se declara inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, en cuanto al artículo 2 inciso b) -específicamente en lo referido a “las instituciones autónomas y sus órganos adscritos, incluyendo instituciones semiautónomas y sus órganos adscritos” y los artículos 6, 7, 9, 13, 14, 17, 18, 21, 22, 24, 30 y 49 por falta de una adecuada fundamentación desde el punto de vista constitucional.
• 9)Objeción de conciencia: En cuanto al artículo 23 inciso g) del proyecto de “LEY MARCO DE EMPLEO PÚBLICO”, que se tramita en el expediente legislativo N° 21.336, referido a la objeción de conciencia, no se presentan vicios de inconstitucionalidad de fondo, porque garantiza adecuadamente el derecho a la objeción de conciencia.
• 10)Negociación colectiva: El artículo 43 no contiene vicios de constitucionalidad, en el tanto las nuevas obligaciones o derechos obtenidos al alcance de la negociación colectiva se ajusten a los principios de razonabilidad, proporcionalidad y legalidad presupuestaria, al amparo de la jurisprudencia constitucional, y siempre y cuando se trate de convenciones colectivas donde participen los empleados del Sector Público que válidamente puedan celebrar convenciones colectivas de acuerdo con la Constitución y la ley.
• 11)Denuncia de convención colectiva: El Transitorio XV referido a la denuncia de las convenciones colectivas, no resulta inconstitucional siempre y cuando se interprete en el mismo sentido que se indicó en el voto número 2018-019511 de las 21:45 horas del 23 de noviembre del 2018, es decir, en aplicación de la Constitución Política (artículos 62 y 74), los Convenios Internacionales de la Organización Internacional del Trabajo y la jurisprudencia de este Tribunal, deberá interpretarse que cada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente.
• 12)Inhabilitación: No resulta inconstitucional el artículo 4.a del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo N° 21.336. Siendo un tema que corresponderá al operador jurídico todo lo referido a aplicar el debido proceso al despido, valorar la relación existente entre el tipo de falta cometida y la sanción, o bien sobre la proporcionalidad y razonabilidad del acto administrativo sancionatorio, y determinar la norma concreta a aplicar cuando exista normativa especial en la institución en cuestión.
• 13)Salario y el principio de igualdad: Los Transitorios XI y XII no vulneran el principio de igualdad -igual salario a trabajo igual en idénticas condiciones de eficiencia-, ni el de legalidad y, por consiguiente, no resultan inconstitucionales.
• 14)Debido proceso: Los aspectos consultados sobre los artículos 21 y 22 del proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n°21.336, no contienen violaciones al principio del debido proceso constitucional, sino que la mayoría de lo consultado al respecto, se refiere a problemas de técnica legislativa que corresponderá al legislador o al operador jurídico enmendar.
• 15)Permisos: La Sala no encuentra vicios de inconstitucionalidad en los aspectos cuestionados sobre los artículos 39, 40, 41 y 42 del proyecto de ley consultado, al tratarse de un tema de discrecionalidad legislativa, al haberse cumplido con la consulta obligatoria a la CCSS y al no contarse con elementos que deban determinar que el legislador debía contar de previo, en este caso, con un estudio técnico. Además, el tema de la alegada contradicción entre los artículos 39 y 40 del proyecto, por tratarse de una posible antinomia legal, no reviste interés constitucional.
• 16)Exclusiones: En los términos indicados y conforme a la jurisprudencia constitucional, no se considera que el artículo 3 proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n°21.336 sea inconstitucional, por el hecho de realizar las exclusiones que allí se indican a las empresas públicas en competencia, a los entes públicos no estatales y al Benemérito Cuerpo de Bomberos.

XXIII.- Notas generales Notas del magistrado Castillo Víquez sobre los puntos 1, 4, 6 y 45 del Por Tanto.- En vista de la redacción de la opinión consultiva renunció a las notas indicadas en los puntos 1, 4, 6 y 45 del Por Tanto.

Nota de la magistrada Hernández López En la discusión del presente asunto, me había reservado la redacción de una nota separada. Sin embargo, prescindo de la misma, por cuanto se reflejan de manera integral las observaciones que tenía sobre el tema, en la redacción de la sentencia.

Nota del magistrado Rueda Leal.

Hay varios puntos que deben ser aclarados en esta nota general al proyecto consultado. El respeto a la independencia de los poderes de la República y a las autonomías constitucionalmente resguardadas parte del reconocimiento de sus respectivos mandatos constitucionales. Más que indicar cómo debe ser regulado el tema del empleo público, la Sala, en este voto, indica impedimentos o prohibiciones normativas, derivadas de las disposiciones constitucionales y la jurisprudencia de este Tribunal y lo hace precisamente en atención a tales mandatos. Por su naturaleza, la consulta legislativa de constitucionalidad no pretende agotar el análisis constitucional de un proyecto de ley, situación que se deriva del numeral 101 de la Ley de la Jurisdicción Constitucional, al decir que:

“…el dictamen no precluye la posibilidad de que posteriormente la norma o normas cuestionadas puedan ser impugnadas por las vías de control de constitucionalidad.” De igual forma, la opinión vertida por la Sala no le impide conocer sobre la protección de derechos fundamentales en situaciones relacionadas con empleo público, cuando ella estime que es parte de su competencia (artículo 7 de la Ley de la Jurisdicción Constitucional).

El caso del numeral 2 consultado es representativo de la complejidad de este proyecto. Su inconstitucionalidad no proviene de su redacción en sí misma, sino por sus efectos, pues otros artículos de ese proyecto infringen la independencia o autonomía de alguna instancia, protegida constitucionalmente, lo que genera que la inclusión efectuada en el ordinal 2 contraríe la Constitución. Considero que tal complejidad aumentará exponencialmente en caso de que la norma sea aprobada y se incorpore plenamente al ordenamiento jurídico, pues deberá conjugarse con otras normas que también regulan la materia de empleo público, pero dirigidas específicamente a alguna de esas entidades.

En otro orden de ideas, dada la extensión de esta resolución y la cantidad de precedentes citados, resultaría ocioso en todos los puntos poner una nota para dejar constancia de cada vez que yo hubiera salvado el voto, puesto razones o suscrito una nota en alguno de ellos, salvo en algún extremo que considere lleve a confusión mi posición particular.

Nota final de la magistrada Garro Vargas.- EL PLEXO NORMATIVO QUE RIGE LA SALA CONSTITUCIONAL. En anteriores notas (véanse las sentencias 2014-004630, 2015-016070, 2015-019582, 2016-018351, 2020-013316) he hecho algunas consideraciones en relación con el ejercicio del control de constitucionalidad y los instrumentos internacionales como parámetro de valoración. Al respecto, en lo conducente y en resumen, indiqué lo siguiente:

“La función de controlar la conformidad de las leyes y disposiciones generales con los tratados y convenios no está expresamente prevista en el texto constitucional sino sólo en el art. 73.d) LJC, pero no es contraria a aquél, pues permite garantizar la eficacia del art. 7 CP. Esa función de controlar dicha conformidad es una función distinta de la que ejerce la Sala en razón del art. 10 CP –el control de constitucionalidad– y de la establecida en el art. 48 CP –garantizar jurisdiccionalmente los derechos constitucionales y los de carácter fundamental establecidos en instrumentos internacionales sobre derechos humanos–.

Cuando esta Sala ejerce su función de control de constitucionalidad, no corresponde que eche mano de tratados y los utilice de hecho como si integraran el parámetro de constitucionalidad. Tales instrumentos, y sólo si están debidamente ratificados, pueden erigirse en parámetro de conformidad de las normas legales e infralegales con ellos mismos, en razón de lo establecido en el art. 7 CP y 73.d) LJC. Esto es conteste con una interpretación sistemática de la Constitución y la LJC y con el respeto a la separación de poderes, principio basilar de todo Estado democrático de Derecho”. (Lo resaltado no corresponde a los votos originales).

En el caso concreto, hay una referencia expresa a los siguientes documentos: Principios básicos relativos a la independencia de la judicatura, adoptados por el Séptimo Congreso de las Naciones Unidas sobre Prevención del Delito y Tratamiento del Delincuente; la Carta Europea sobre el Estatuto de los Jueces adoptada en Estrasburgo; el “Estatuto del Juez Iberoamericano” aprobado en la VI Cumbre Iberoamericana de Presidentes de Cortes Supremas y Tribunales Supremos de Justicia, celebrada en Santa Cruz de Tenerife, Islas Canarias, España; el Informe n.°1 del 23 de noviembre del 2001 rendido por el Consejo Consultivo de Jueces Europeos (CCJE); el Estatuto de Justicia y Derechos de las Personas Usuarias del Sistema Judicial; el Convenio para la Protección de los Derechos Humanos y de las Libertades Fundamentales de 1950; la Carta de los Derechos Fundamentales de la Unión Europea (2000/C 364/01); así como la cita de varias resoluciones de tribunales internacionales. Desde mi perspectiva y el rigor con el que se debe manejar este Tribunal Constitucional, dichas referencias son meramente ilustrativas, pero no constituyen en sí mismas un parámetro normativo vinculante para realizar control de constitucionalidad.

Nota del magistrado Araya García El suscrito Magistrado, en atención a la redacción final de esta sentencia 21-17098, y tomando en consideración los argumentos y consideraciones establecidos en esta resolución, prescindo de la nota que al momento de la votación indiqué que consignaría.

Nota general de la magistrada Picado Brenes.- En vista de que ya he procedido a expresar, en las distintas notas y razones anteriores, lo correspondiente, procedo a renunciar a esta nota general.

XXIV.- DOCUMENTACIÓN APORTADA AL EXPEDIENTE.

Se previene a las partes que de haber aportado algún documento en papel, así como objetos o pruebas contenidas en algún dispositivo adicional de carácter electrónico, informático, magnético, óptico, telemático o producido por nuevas tecnologías, estos deberán ser retirados del despacho en un plazo máximo de 30 días hábiles contados a partir de la notificación de esta sentencia. De lo contrario, será destruido todo aquel material que no sea retirado dentro de este plazo, según lo dispuesto en el "Reglamento sobre Expediente Electrónico ante el Poder Judicial", aprobado por la Corte Plena en sesión N° 27-11 del 22 de agosto del 2011, artículo XXVI y publicado en el Boletín Judicial número 19 del 26 de enero del 2012, así como en el acuerdo aprobado por el Consejo Superior del Poder Judicial, en la sesión N° 43-12 celebrada el 3 de mayo del 2012, artículo LXXXI.

Por tanto:

Sobre la admisibilidad de las consultas:

• 1)Por unanimidad se admite la consulta formulada mediante expediente n°21-011713-0007-CO. Los magistrados Castillo Víquez, Salazar Alvarado y la magistrada Garro Vargas consignan notas separadas. El magistrado Rueda Leal da razones diferentes en cuanto a la admisibilidad de esta Consulta.
• 2)Por unanimidad se admite la consulta formulada mediante expediente n°21-011915-0007-CO. Las magistradas Hernández López y Garro Vargas dan razones diferentes en forma separada. El magistrado Salazar Alvarado y la magistrada Picado Brenes consignan notas separadas.
• 3)Por mayoría se admite la consulta formulada mediante expediente n°21-012118-0007-CO. El magistrado Salazar Alvarado consigna nota. Los magistrados Castillo Víquez y Rueda Leal salvan el voto y declaran inevacuable la consulta por razones separadas.
• 4)Por mayoría se declara inevacuable la consulta formulada, mediante expediente n°21-012714-0007-CO, por parte de la Corte Suprema de Justicia. Los magistrados Castillo Víquez y Rueda Leal ponen notas separadas. Las magistradas Garro Vargas y Picado Brenes salvan el voto y admiten la consulta. La magistrada Garro Vargas consigna nota.

Sobre los vicios de procedimiento alegados:

• 5)Por unanimidad, no se encuentran los vicios de procedimiento sustanciales alegados en cuanto: a) El argumento de la inadmisibilidad de las mociones de reiteración números 138-231, 138-250 y 138-18; b) El argumento de la indebida acumulación de las mociones de reiteración; c) El argumento de la falta de discusión de la moción 138-210.

Sobre los vicios de fondo alegados en cuanto al Poder Judicial y al Tribunal Supremo de Elecciones:

• 6)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 2 inciso a) no es por sí mismo inconstitucional, en cuanto incluye al Poder Judicial y al Tribunal Supremo de Elecciones en un marco regulatorio general de empleo público, pero sí lo es por sus efectos, porque algunas de sus normas -como se examina de seguido- vacían de contenido el principio de separación de poderes. Los magistrados Castillo Víquez y Rueda Leal, y las magistradas Garro Vargas y Picado Brenes ponen notas separadas.
• 7)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 6 inciso b) es inconstitucional. Se declara que es inconstitucional en cuanto somete al Poder Judicial y al Tribunal Supremo de Elecciones a la potestad de dirección del Poder Ejecutivo. El magistrado Rueda Leal pone nota. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes y la declaran inconstitucional en cuanto somete al Poder Judicial y al Tribunal Supremo de Elecciones a la rectoría del Sistema General de Empleo Público a cargo de Mideplán.
• 8)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que son inconstitucionales los incisos d), g) y, p) del artículo 7 por afectar la independencia del Poder Judicial y del Tribunal Supremo de Elecciones, en cuanto los somete a la potestad de dirección y reglamentación de Mideplán, asimismo a la verificación de si cumple o no con el cometido de la evaluación del desempeño, correspondiendo esta última función a los poderes supra citados según su normativa interna. Las magistradas Garro Vargas y Picado Brenes dan razones adicionales.
• 9)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el párrafo segundo del inciso a) del artículo 9 es inconstitucional, respecto a su aplicación al Poder Judicial y al Tribunal Supremo de Elecciones.
• 10)Por unanimidad se declara inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en cuanto al artículo 12 por falta de fundamentación de lo consultado, respecto del Poder Judicial y del Tribunal Supremo de Elecciones. Las magistradas Garro Vargas y Picado Brenes ponen notas separadas.
• 11)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 13 inciso f) es inconstitucional por lesionar la independencia de poderes, tanto respecto del Poder Judicial como del Tribunal Supremo de Elecciones. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 12)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 13 inciso a) es inconstitucional, respecto del Tribunal Supremo de Elecciones, pues todos los funcionarios de ese órgano pasarían al Servicio Civil, con excepción de sus magistrados.
• 13)Por unanimidad se declara inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en cuanto al artículo 13 inciso h), por falta de una adecuada fundamentación desde el punto de vista constitucional de lo consultado respecto del Poder Judicial y del Tribunal Supremo de Elecciones.
• 14)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el párrafo primero del artículo 14 es inconstitucional, respecto del Poder Judicial y del Tribunal Supremo de Elecciones.
• 15)Por unanimidad se declara inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en cuanto al artículo 15, por falta de fundamentación de lo consultado.
• 16)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el párrafo primero del artículo 17 resulta inconstitucional, en cuanto sujeta los cargos de alta dirección del Poder Judicial y del Tribunal Supremos de Elecciones a las disposiciones de alcance general, directrices y reglamentos que emita Mideplán.
• 17)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 18 es inconstitucional porque afecta la independencia del Poder Judicial y del Tribunal Supremo de Elecciones.
• 18)Por unanimidad se declara inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en cuanto al artículo 19, por falta de una adecuada fundamentación desde el punto de vista constitucional de lo consultado. Las magistradas Garro Vargas y Picado Brenes ponen nota.
• 19)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que los artículos 21 y 22 son inconstitucionales, por cuanto el ejercicio de la potestad disciplinaria de los servidores del Poder Judicial y los del Tribunal Supremo de Elecciones es parte esencial de la independencia judicial y electoral. No obstante, la creación de una nueva causal de despido, por no pasar la evaluación del desempeño en dos ocasiones consecutivas, no es inconstitucional en tanto la aplique el Poder Judicial y el Tribunal Supremo de Elecciones de acuerdo con su normativa interna.
• 20)Por unanimidad se declara inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en cuanto al artículo 31, por falta de una adecuada fundamentación desde el punto de vista constitucional de lo consultado. La magistrada Picado Brenes pone nota.
• 21)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 49 inciso b) no es inconstitucional, siempre que se interprete que la Dirección General de Servicio Civil carece de competencia respecto de los asuntos referidos al Poder Judicial y que no se está derogando su normativa especial en estas materias. Los magistrados Castillo Víquez, Salazar Alvarado y la magistrada Hernández López salvan el voto y declaran sin lugar el agravio porque no está referido al Poder Judicial, ni deroga su normativa especial en estas materias.
• 22)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que los incisos g) y h) del artículo 49 son inconstitucionales por violar la independencia del Poder Judicial. El magistrado Castillo Víquez y la magistrada Hernández López salvan el voto y declaran que no son inconstitucionales estos incisos.

Sobre los vicios de fondo alegados en cuanto a las universidades públicas:

• 23)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 6 es inconstitucional en cuanto somete a las universidades públicas a la potestad de dirección del Poder Ejecutivo. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 24)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 7 es inconstitucional en relación con aquellas disposiciones que someten a las universidades públicas a la potestad de dirección y reglamentación por parte de Mideplán. Las Magistradas Garro Vargas y Picado Brenes dan razones adicionales.
• 25)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el párrafo segundo del inciso a del artículo 9 es inconstitucional respecto a su aplicación a las universidades públicas.
• 26)Por unanimidad se declara inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en cuanto al artículo 11, por falta de una adecuada fundamentación desde el punto de vista constitucional de lo consultado respecto de las universidades públicas.
• 27)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO”, que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 13 inciso e) es inconstitucional, por no incluir en tal inciso a los servidores que realizan investigación, acción social y cultural de las universidades públicas. Las magistradas Garro Vargas y Picado Brenes dan razones adicionales.
• 28)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 14 es inconstitucional, porque somete el sistema de reclutamiento y selección de personal de las universidades públicas a la potestad de dirección de Mideplán.
• 29)Por unanimidad se declara inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en cuanto a los artículos 15 y 16 por falta de una debida fundamentación desde el punto de vista constitucional de lo consultado respecto de las universidades públicas.
• 30)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 17 es inconstitucional, en cuanto somete al personal de alta dirección de las universidades públicas a las disposiciones de alcance general, directrices y reglamentos que emita el Mideplán. Las magistradas Garro Vargas y Picado Brenes ponen nota.
• 31)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 30 es inconstitucional, en el tanto no excluye a los funcionarios que realizan labores sustanciales -propias de la actividad universitaria-, y porque no establece que -en atención a la autonomía universitaria- la construcción de la familia de la columna salarial y sus características corresponde en forma exclusiva y excluyente a los máximos órganos de los entes universitarios. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 32)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 30 inciso b) es constitucional. Las magistradas Hernández López, Garro Vargas y Picado Brenes salvan el voto respecto del artículo 30 inciso b) y estiman que, respecto de la autonomía universitaria, es inconstitucional por sus efectos que el salario del presidente de la República sea tope para las universidades, cuando existan razones técnicas que justifiquen otra remuneración.
• 33)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que los artículos 31, 32 y 34 son inconstitucionales, en el tanto no excluyen a los funcionarios que realizan labores sustanciales -propias de la actividad universitaria-, y porque la definición de los factores de trabajo relevante, su peso relativo, el número de grados requeridos dentro de cada familia y sus características, y la elaboración de la columna salarial corresponde en forma exclusiva y excluyente a los máximos órganos de los entes universitarios. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 34)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 33 es inconstitucional, en el tanto no excluye a los funcionarios que realizan labores sustanciales -propias de la autonomía universitaria-, y somete el manual de puestos de dichos funcionarios al análisis y evaluación de Mideplán, lo que -en atención a la autonomía universitaria- corresponde en forma exclusiva y excluyente a los máximos órganos de los entes universitarios. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 35)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que los artículos 35 y 36 son constitucionales. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes por separado.
• 36)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 37 inciso f) es inconstitucional.

Sobre los vicios de fondo alegados en cuanto a la Caja Costarricense de Seguro Social (CCSS):

• 37)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 2 inciso b) no es por sí mismo inconstitucional, en cuanto algunas de sus normas -como se examina de seguido- incluye a la CCSS en un marco regulatorio general de empleo público, pero sí es inconstitucional por sus efectos puesto que algunas de sus normas vacían de contenido su autonomía de gobierno. Los magistrados Castillo Víquez y Rueda Leal, y las magistradas Garro Vargas Picado Brenes ponen notas separadas.
• 38)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 6 es inconstitucional, en cuanto somete a la CCSS a la potestad de dirección del Poder Ejecutivo. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 39)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el inciso d) del artículo 7 es inconstitucional en relación con aquellas disposiciones que someten a la CCSS a la potestad de dirección y reglamentación por parte de Mideplán. Las magistradas Garro Vargas y Picado Brenes dan razones adicionales.
• 40)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el párrafo segundo del inciso a del artículo 9 es inconstitucional respecto a su aplicación a la CCSS.
• 41)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 13 inciso b) es inconstitucional, por no incluir a los servidores que realizan labores sustanciales y profesionales referentes a los fines constitucionales que se le asignan a la CCSS. Las magistradas Garro Vargas y Picado Brenes dan razones adicionales.
• 42)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el párrafo primero del artículo 14 es inconstitucional, porque somete el sistema de reclutamiento y selección de personal que realizan labores sustanciales y profesionales referentes a los fines constitucionales a la potestad de dirección de Mideplán.
• 43)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 17 es inconstitucional, en cuanto somete al personal de alta dirección pública de la CCSS a las disposiciones de alcance general, directrices y reglamentos que emita el Mideplán.
• 44)Por unanimidad se evacua la consulta constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 18 es inconstitucional, por afectar la autonomía política de la CCSS en cuanto a los plazos del personal de alta dirección pública. La magistrada Picado Brenes da razones adicionales.

Sobre los vicios de fondo alegados en cuanto a las municipalidades:

• 45)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que, el artículo 2 inciso c) no es por sí mismo inconstitucional, en cuanto incluye a las municipalidades en un marco regulatorio general de empleo público, pero sí lo es por sus efectos puesto que algunas de sus normas -como se examina de seguido- vacían de contenido su autonomía de gobierno. Los magistrados Castillo Víquez y Rueda Leal, y las magistradas Garro Vargas y Picado Brenes ponen notas separadas.
• 46)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 6 es inconstitucional en cuanto somete a las municipalidades a la potestad de dirección del Poder Ejecutivo.
• 47)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 7 es inconstitucional en relación con aquellas disposiciones que someten a las municipalidades a la potestad de dirección y reglamentación por parte de Mideplán. Las Magistradas Garro Vargas y Picado Brenes dan razones adicionales.
• 48)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el párrafo segundo del inciso a del artículo 9 es inconstitucional respecto a su aplicación a las municipalidades. La magistrada Garro Vargas da razones diferentes. La magistrada Picado Brenes da razones adicionales.
• 49)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de “LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 13 al no crear una familia de puestos de los empleados municipales los incluye a todos en el Servicio Civil. La magistrada Garro Vargas da razones diferentes. La magistrada Picado Brenes consigna razones adicionales.
• 50)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el párrafo primero del artículo 14 es inconstitucional, porque somete el sistema de reclutamiento y selección de personal que realizan labores sustanciales y profesionales referentes a los fines constitucionales de las municipalidades a la potestad de dirección de Mideplán.
• 51)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 17 es inconstitucional, en cuanto sujeta los cargos de alta dirección de las municipalidades a las disposiciones de alcance general, directrices y reglamentos que emita el Mideplán.
• 52)Por unanimidad se evacua la consulta constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO” que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 18 es inconstitucional, por afectar la autonomía política de las municipalidades respecto de los plazos del personal de alta dirección pública. La magistrada Picado Brenes da razones diferentes.

Sobre los vicios de fondo en cuanto a las instituciones autónomas:

• 53)Por unanimidad se declara inevacuable la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO", que se tramita en el expediente legislativo n° 21.336, en cuanto al artículo 2 inciso b) -específicamente en lo referido a “las instituciones autónomas y sus órganos adscritos, incluyendo instituciones semiautónomas y sus órganos adscritos” y los artículos 6, 7, 9, 13, 14, 17, 18, 21, 22, 24, 30 y 49 por falta de una adecuada fundamentación desde el punto de vista constitucional.

Sobre los demás vicios de fondo:

• 54)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el inciso g) del artículo 23 no es inconstitucional porque garantiza adecuadamente el derecho a la objeción de conciencia. El magistrado Rueda Leal da razones diferentes en cuanto a lo consultado sobre este tema en el expediente n°21-011713-0007-CO. La magistrada Hernández López, considera que el artículo 23 inciso g) del proyecto de Ley consultado, es constitucional, siempre y cuando se interprete que la declaración jurada a que se refiere la norma debe estar sujeta a un proceso de verificación que garantice que el funcionario público no se está sustrayendo de obligaciones propias de su relación de sujeción especial, que dejen sin efecto o sin contenido las garantías y limitaciones constitucionales y legales de la objeción de conciencia, como son la seguridad, el orden, la salud y el respeto a los derechos fundamentales de las personas, en particular de la dignidad humana y no discriminación, según el juicio de ponderación que debe hacerse en cada caso concreto, conforme se estableció en la sentencia 2020-001619 de esta Sala. Los magistrados Castillo Víquez y Rueda Leal omiten pronunciamiento en cuanto a lo consultado sobre este tema en el expediente n°21-012118-0007-CO.
• 55)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 43 no contiene vicios de constitucionalidad, en el tanto las nuevas obligaciones o derechos obtenidos al alcance de la negociación colectiva se ajusten a los principios de razonabilidad, proporcionalidad y legalidad presupuestaria, al amparo de la jurisprudencia constitucional, y siempre y cuando se trate de convenciones colectivas donde participen los empleados del Sector Público que válidamente puedan celebrar convenciones colectivas de acuerdo con la Constitución y la ley. El magistrado Rueda Leal y las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 56)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el Transitorio XV referido a la denuncia de las convenciones colectivas, no resulta inconstitucional siempre y cuando se interprete en el mismo sentido que se indicó en el voto número 2018-019511 de las 21:45 horas del 23 de noviembre del 2018, es decir, en aplicación de la Constitución Política (artículos 62 y 74), los Convenios Internacionales de la Organización Internacional del Trabajo y la jurisprudencia de este Tribunal, deberá interpretarse que cada jerarca de las entidades públicas tiene la potestad de denunciar o no la respectiva convención colectiva, conforme al ordenamiento jurídico vigente. El magistrado Rueda Leal da razones particulares respecto de este punto. Las magistradas Garro Vargas y Picado Brenes dan razones diferentes.
• 57)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el inciso a) del artículo 4 referido a la inhabilitación, no resulta inconstitucional. La magistrada Picado Brenes pone nota.
• 58)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el Transitorio XI y XII referido a las reglas del salario no resultan inconstitucionales. El magistrado Rueda Leal consigna razones diferentes. Las magistradas Hernández López, Garro Vargas y Picado Brenes salvan el voto y consideran inconstitucional el inciso a) del transitorio XI por violación al derecho de igualdad salarial. Las magistradas Garro Vargas y Picado Brenes ponen notas separadas.
• 59)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que los artículos 21 y 22 no contienen violaciones al principio del debido proceso constitucional, por ello no resultan inconstitucionales en cuanto a este tema consultado.
• 60)Por mayoría se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que los artículos 39, 40, 41 y 42, sobre nuevos supuestos de permisos, no resultan inconstitucionales. La magistrada Picado Brenes da razones particulares. La magistrada Garro Vargas salva el voto y la declara inevacuable.
• 61)Por unanimidad se evacua la consulta de constitucionalidad sobre el proyecto de "LEY MARCO DE EMPLEO PÚBLICO" que se tramita en el expediente legislativo n° 21.336, en el sentido de que el artículo 3, sobre el ámbito de exclusiones, no resulta inconstitucional.
• 62)Los magistrados Rueda Leal y Araya García, y las magistradas Hernández López, Garro Vargas y Picado Brenes consignan notas separadas.

Notifíquese a la Asamblea Legislativa y a la Corte Suprema de Justicia.- Fernando Castillo V.

Paul Rueda L. Nancy Hernández L.

Luis Fdo. Salazar A. Jorge Araya G.

Anamari Garro V. Ana María Picado B.

[1]A este respecto, el Tribunal observa que el artículo 9 no se refiere explícitamente al derecho a la objeción de conciencia. Sin embargo, considera que la oposición al servicio militar, cuando está motivada por un conflicto serio e insuperable entre la obligación de servir en el ejército y la conciencia de una persona o sus creencias religiosas u otras creencias profundas y genuinas, constituye una convicción o creencia de suficiente fuerza, seriedad, cohesión e importancia para atraer las garantías del artículo 9..." Traducción libre.

Observaciones de SALA CONSTITUCIONAL votado con boleta Clasificación elaborada por SALA CONSTITUCIONALdel Poder Judicial. Prohibida su reproducción y/o distribución en forma onerosa.