Constitutional Limits on the General Public Employment SystemLímites constitucionales al régimen general de empleo público

Page | 1 Table of Contents A) PROCEDURAL MATTERS (CUESTIONES DE TRAMITE):

I. Preliminary matter (De previo).- (opinion by Justice Castillo Víquez)

II.On the admissibility (admisibilidad) of the optional constitutional consultations (consultas facultativas de constitucionalidad) submitted.-

• 1)On the admissibility of the optional consultations submitted by the members of the Legislative Assembly (art.96.b of the Ley de la Jurisdicción Constitucional).- Separate reasons of Justice Rueda Leal regarding the admissibility of the consultation in expediente n.° 21-011713-0007-CO.

Separate note of Justice Garro Vargas regarding the admissibility of the consultation processed in expediente n°21-011713-0007-CO Separate reasons of Justice Hernández López regarding the admissibility of the second consultation, expediente n°21-11915-007-CO Separate reasons of Justice Garro Vargas regarding the admissibility of the consultation processed in expediente n°21-011915-0007-CO Separate note of Justice Picado Brenes regarding the consultation submitted through expediente n°21-011915-0007-CO (item 2 of the Por Tanto) Dissenting opinion (voto salvado) of Justice Castillo Víquez regarding expediente n°21-012118-0007-CO Dissenting opinion of Justice Rueda Leal regarding the consultation submitted in expediente n.° 21-012118-0007-CO.

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

• 2)On the admissibility of the optional consultation submitted by the President of the Corte Suprema de Justicia (art.96.c of the Ley de la Jurisdicción Constitucional).- (opinion by Justice Castillo Víquez) Dissenting opinion of Justices Garro Vargas and Picado Brenes, who would admit the consultation (opinion by the latter) Note of Justice Rueda Leal regarding the consultation submitted by the Corte Suprema de Justicia in expediente n.° 21-012714-0007-CO.

Note of Justice Garro Vargas regarding the admissibility of the legislative consultation submitted by the Corte Suprema de Justicia

III. On the denial of the submissions filed on 22, 25, 28, 29 de junio y 05, 13, 15 y 20 de julio del 2021.-

IV. On the time limit for deciding this consultation.-

• B)ON THE MATTERS SUBMITTED FOR CONSULTATION

V. On the subject matter of the consultation.-

VI. On the alleged PROCEDURAL DEFECTS (vicios de PROCEDIMIENTO).-

• 1)Chronology of the legislative procedure for the bill entitled “FRAMEWORK LAW ON PUBLIC EMPLOYMENT,” which is being processed under expediente legislativo n° 21.336.- 2) On the case law of this Chamber regarding substantial procedural defects and the rejection of motions.- 3) On the matters submitted for consultation.- 4) Conclusions

VII. On the alleged SUBSTANTIVE DEFECTS (vicios de FONDO) and, in general, on the bill submitted for consultation.-

VIII. General recital (Considerando general).- (opinion by Justice Castillo Víquez)

Individual observations of Justice Garro Vargas regarding this general recital Individual observations of Justice Picado Brenes regarding this general recital

IX. On the consultation concerning a violation of judicial independence (independencia judicial).-

• 1)Matters submitted for consultation
• 2)Case-law background concerning the constitutional principle of separation of powers (Principio Constitucional de separación de poderes) and the constitutional principle of judicial independence
• 3)On the examination of the provisions submitted for consultation On Article 2.a (scope of coverage [ámbito de cobertura]) with respect to the Poder Judicial (opinion by Justice Castillo Víquez) On Article 6 (governing authority [rectoría] of Mideplán), with respect to the Poder Judicial (opinion by Justice Castillo Víquez) On Article 7 (powers [competencias] of Mideplán), with respect to the Poder Judicial (opinion by Justice Castillo Víquez) On Article 9.a.- Human Resources Offices with respect to the Poder Judicial (opinion by Justice Picado Brenes) On Article 13 (job families [familias de puestos]), with respect to the Poder Judicial (opinion by Justice Castillo Víquez) On Article 14.- Recruitment and selection (Reclutamiento y selección) with respect to the Poder Judicial (opinion by Justice Picado Brenes) On Article 17.- Senior Management Personnel (Personal de Alta Dirección) with respect to the Poder Judicial (opinion by Justice Picado Brenes) On Article 18.- Probationary period and term of appointment (Plazo de prueba y plazo de nombramiento) for Senior Management with respect to the Poder Judicial (opinion by Justice Picado Brenes) On Article 21 (single dismissal regime [régimen único de despido]) and Article 22 (dismissal proceeding [proceso de despido]) with respect to the Poder Judicial (opinion by Justice Picado Brenes) On Article 49, subsections a, b, g, and h (amendment of regulations [reforma a normativa]), with respect to the Poder Judicial (opinion by Justice Picado Brenes)
• 4)Conclusion

X. On the consultation concerning a violation of the independence of the Tribunal Supremo de Elecciones.-

• 1)Matters submitted for consultation 2) Case-law background concerning the Constitutional Principle of Separation of Powers as it relates to the Tribunal Supremo de Elecciones 3) On the examination of the provisions submitted for consultation On Article 2.a (scope of coverage) with respect to the Tribunal Supremo de Elecciones (opinion by Justice Castillo Víquez) On Article 6 (governing authority of Mideplán), with respect to the Tribunal Supremo de Elecciones (opinion by Justice Castillo Víquez) On Article 7 (powers of Mideplán), with respect to the Tribunal Supremo de Elecciones (opinion by Justice Castillo Víquez) On Article 9.a.- Human Resources Offices with respect to the Tribunal Supremo de Elecciones (opinion by Justice Picado Brenes) The provision submitted for consultation establishes the following:

On subsection a) of Article 13, Job Family, with respect to the Tribunal Supremo de Elecciones (opinion by Justice Picado Brenes) On subsection f) of Article 13 (job families), with respect to the Tribunal Supremo de Elecciones (opinion by Justice Castillo Víquez) On Article 14.- Recruitment and selection with respect to the Tribunal Supremo de Elecciones (opinion by Justice Picado Brenes) On Article 17.- Senior Management Personnel with respect to the Tribunal Supremo de Elecciones (opinion by Justice Picado Brenes) On Article 18.- Probationary period and term of appointment for Senior Management personnel with respect to the Tribunal Supremo de Elecciones (opinion by Justice Picado Brenes) On Article 21 (single dismissal regime) and Article 22 (dismissal proceeding) with respect to the Tribunal Supremo de Elecciones (opinion by Justice Picado Brenes) 4) Conclusion 5) Dissenting opinions, reasons, and notes concerning the consultation as it relates to the Poder Judicial and the Tribunal Supremo de Elecciones a) Note of Justice Rueda Leal regarding the inclusion of the Poder Judicial and the Tribunal Supremo de Elecciones in Article 2, subsection a), of the bill submitted for consultation.

• b)Note of Justice Garro Vargas regarding the unconstitutionality (inconstitucionalidad) of Article 2, subsection a) c) Separate note of Justice Picado Brenes on Article 2, subsection a), of the bill, regarding the inclusion of the Poder Judicial and the Tribunal Supremo de Elecciones (item 6 of the Por Tanto) d) Note of Justice Rueda Leal regarding the application of Article 6, subsection b), of the bill submitted for consultation to the Poder Judicial and the Tribunal Supremo de Elecciones.
• e)Separate reasons of Justice Garro Vargas regarding the unconstitutionality of Article 6, subsection b), insofar as it subjects the Poder Judicial and the Tribunal Supremo de Elecciones to the governing authority of the general public employment system administered by Mideplán.
• f)Separate reasons of Justice Picado Brenes concerning Article 6 of the bill with respect to the governing authority of Mideplán (item 7 of the Por Tanto) g) Additional reasons of Justice Garro Vargas regarding the unconstitutionality of Article 7 because it affects the independence of the Poder Judicial and the Tribunal Supremo de Elecciones h) Additional reasons of Justice Picado Brenes concerning Article 7 of the bill with respect to Mideplán’s broad powers over the Poder Judicial and the Tribunal Supremo de Elecciones (item 8 of the Por Tanto) i) Separate note of Justice Garro Vargas regarding Article 12 with respect to the Poder Judicial and the Tribunal Supremo de Elecciones j) Separate note of Justice Picado Brenes concerning Article 12 of the bill with respect to the Database (Base de Datos) (item 10 of the Por Tanto) k) Separate reasons of Justice Garro Vargas regarding the unconstitutionality of Article 13 with respect to the Poder Judicial and the Tribunal Supremo de Elecciones l) Separate reasons of Justice Picado Brenes concerning Article 13 of the bill with respect to the job-family groups of the Poder Judicial and the Tribunal Supremo de Elecciones (item 11 of the Por tanto) m) Separate note of Justices Garro Vargas and Picado Brenes, authored by the latter, concerning Article 19 of the bill with respect to Transfers or Job Mobility (Traslados o la Movilidad de puestos) (item 18 of the Por Tanto) n) Separate note of Justice Picado Brenes concerning Article 31 of the bill with respect to the Job Evaluation Methodology (Metodología de Valoración del Trabajo) (item 20 of the Por Tanto) ñ) Dissenting opinion of Justices Castillo Víquez, Hernández López, and Salazar Alvarado, authored by the first, concerning Articles 49, subsection b o) Dissenting opinion of Justice Castillo Víquez and Justice Hernández López, authored by the first, concerning Articles 49, subsections g and h

XI. On the consultation concerning a violation of University Autonomy (Autonomía Universitaria).-

• 1)Matters submitted for consultation
• 2)Case-law background concerning University Autonomy
• 3)Specific analysis of the matters submitted for consultation On Article 6.- Mideplán’s power of direction (Potestad de Dirección) with respect to the Public Universities (opinion by Justice Castillo Víquez) On Article 7.- Powers of Mideplán with respect to the Public Universities (opinion by Justice Castillo Víquez) On Article 9.a.- Human Resources Office at the Public Universities (opinion by Justice Picado Brenes) On Article 13.e.- Job Family with respect to the Public Universities (opinion by Justice Castillo Víquez) On Article 14.- Recruitment and selection at the Public Universities (opinion by Justice Picado Brenes) On Article 17.- Senior Management Positions (Puestos de Alta Dirección) at the Public Universities (opinion by Justice Picado Brenes) On Article 30.- Principles governing compensation (Postulados para la compensación) at the Public Universities (opinion by Justice Castillo Víquez) On Article 30.b- Salary of Nombre01 as the salary cap at the Public Universities (opinion by Justice Castillo Víquez) On Articles 31, 32, and 34.- Job evaluation (Valoración del trabajo), grades within job families, and the global salary scale (columna salarial global) at the Public Universities (opinion by Justice Castillo Víquez) On Article 33.- Classification of job positions (Clasificación de puestos de trabajo) at the Public Universities (opinion by Justice Castillo Víquez) On Articles 35 and 36.- Unified salary regime (Régimen salarial unificado) and remuneration policy (política de remuneración) at the Public Universities (opinion by Justice Castillo Víquez) On Article 37.f).- Global salary (Salario global) applied to rectors of the Public Universities (opinion by Justice Picado Brenes)
• 4)Conclusion
• 5)Dissenting opinions, reasons, and notes concerning the consultation as it relates to the Public Universities a) Separate reasons of Justice Garro Vargas regarding the unconstitutionality of Article 6 insofar as it subjects the Public Universities to the governing authority of the general public employment system administered by Mideplán b) Separate reasons of Justice Picado Brenes concerning Article 6 of the bill with respect to the Public Universities and Mideplán’s power of direction (item 23 of the Por Tanto) c) Additional reasons of Justice Garro Vargas regarding the unconstitutionality of Article 7 because it affects the autonomy of the Public Universities d) Additional reasons of Justice Picado Brenes concerning Article 7 of the bill with respect to Mideplán’s broad powers over the Public Universities (item 24 of the Por Tanto) e) Additional reasons of Justice Garro Vargas regarding the unconstitutionality of Article 13 with respect to the Public Universities f) Additional reasons of Justice Picado Brenes concerning Article 13 of the bill as it relates to the job-family groups of the Public Universities (point 27 of the Por Tanto) g) Note of Justice Garro Vargas regarding the unconstitutionality of Article 17 as applied to the senior management personnel of the Public Universities h) Note of Justice Picado Brenes concerning Article 17 of the bill as it relates to the senior management personnel of the Public Universities (point 30 of the Por Tanto) i) Separate reasons of Justice Garro Vargas regarding the unconstitutionality of Article 30 for infringing upon the autonomy of the Public Universities j) Separate reasons of Justice Picado Brenes concerning Article 30 of the bill as it relates to the principles governing compensation with respect to the Public Universities (point 31 of the Por Tanto) k) Dissenting opinion (voto salvado) of Justices Hernández López, Garro Vargas, and Picado Brenes, authored by the last-named, concerning Article 30 subsection b) as it relates to the salary cap at the Public Universities (point 32 of the por tanto) l) Separate reasons of Justices Garro Vargas and Picado Brenes, authored by the latter, concerning Articles 31, 32, and 34 of the bill as they relate to the compensation rules at the Public Universities (point 33 of the Por Tanto) m) Separate reasons of Justices Garro Vargas and Picado Brenes, authored by the last-named, concerning Article 33 of the bill as it relates to job classification at the Public Universities (point 34 of the Por Tanto) n) Separate reasons of Justice Garro Vargas regarding the constitutionality of Articles 35 and 36 with respect to the Public Universities ñ) Additional reasons of Justice Picado Brenes concerning Articles 35 and 36 of the bill as they relate to the unified salary system and the Public Universities (point 35 of the Por Tanto)

XII. Concerning the consultation on the violation of the autonomy of the Caja Costarricense de Seguro Social.-

• 1)Matters submitted for consultation
• 2)Case-law background concerning the governing autonomy of the Caja Costarricense de Seguro Social
• 3)Specific analysis of the matters submitted for consultation Concerning Article 2.b.- Scope of coverage with respect to the CCSS (authored by Justice Picado Brenes) Concerning Article 6.- Mideplán’s power of direction with respect to the CCSS (authored by Justice Castillo Víquez) Concerning Article 7.- Mideplán’s powers with respect to the CCSS (authored by Justice Castillo Víquez) Concerning Article 9.- Human Resources Office at the CCSS (authored by Justice Picado Brenes) Concerning Article 13.b.- Job family with respect to the CCSS (authored by Justice Castillo Víquez) Concerning Article 14.- Recruitment and selection at the CCSS (authored by Justice Picado Brenes) Concerning Article 17.- Senior management positions at the CCSS (authored by Justice Picado Brenes) Concerning Article 18.- Terms of appointment for senior management personnel at the CCSS (authored by Justice Picado Brenes)
• 4)Conclusion
• 5)Reasons and notes concerning the consultation as it relates to the CCSS a) Separate note of Justice Castillo Víquez regarding the CCSS b) Note of Justice Rueda Leal concerning the inclusion of the Caja Costarricense de Seguro Social in Article 2 subsection b) of the bill submitted for consultation c) Separate note of Justice Garro Vargas regarding Article 2 subsection b) and the inclusion of the Caja Costarricense de Seguro Social d) Separate note of Justice Picado Brenes concerning Article 2 subsection b) and the inclusion of the CCSS within a general regulatory framework for public employment (point 37 of the por tanto) e) Separate reasons of Justice Garro Vargas concerning the subjection of the Caja Costarricense de Seguro Social to Mideplán’s governance of the general public-employment system, as provided for in Article 6 f) Separate reasons of Justice Picado Brenes concerning Article 6 of the bill as it relates to Mideplán’s governance (point 38 of the por tanto) g) Additional reasons of Justice Garro Vargas regarding the unconstitutionality of Article 7 on the ground that it affects the autonomy of the Caja Costarricense de Seguro Social h) Additional reasons of Justice Picado Brenes concerning Article 7 of the bill as it relates to Mideplán’s broad powers with respect to the CCSS (point 39 of the Por Tanto) i) Additional reasons of Justice Garro Vargas regarding the unconstitutionality of Article 13 with respect to the Caja Costarricense de Seguro Social j) Additional reasons of Justice Picado Brenes concerning Article 13 of the bill as it relates to job-family groups and the CCSS (point 41 of the Por Tanto) k) Additional reasons of Justice Picado Brenes concerning Article 18 of the bill as it relates to the terms of appointment for senior management personnel at the CCSS (point 44 of the Por Tanto)

XIII. Concerning the consultation on the violation of the autonomy of the Municipalities.-

• 1)Matters submitted for consultation 2) Case-law background concerning the governing autonomy of the Municipalities 3) Specific analysis of the matters submitted for consultation Concerning Article 2.c.- Scope of coverage with respect to the Municipalities (authored by Justice Picado Brenes) Concerning Article 6.- Mideplán’s power of direction with respect to the Municipalities (authored by Justice Castillo Víquez) Concerning Article 7.- Mideplán’s powers with respect to the Municipalities (authored by Justice Castillo Víquez) Concerning Article 9.- Human Resources Office in the Municipalities (authored by Justice Brenes Picado) Concerning Article 13.- Job family with respect to the Municipalities (authored by Justice Castillo Víquez) Concerning Article 14.- Recruitment and selection in the Municipalities (authored by Justice Picado Brenes) Concerning Article 17.- Senior management positions in the Municipalities (authored by Justice Picado Brenes) Concerning Article 18.- Terms of appointment for senior management personnel in the Municipalities (authored by Justice Picado Brenes) 4) Conclusion 5) Reasons and notes concerning the consultation as it relates to the Municipalities a) Note of Justice Rueda Leal concerning the inclusion of the municipalities in Article 2 subsection c) of the bill submitted for consultation.
• b)Separate note of Justice Garro Vargas regarding the unconstitutionality of Article 2 subsection c) c) Separate note of Justice Picado Brenes concerning Article 2 subsection c) of the bill with respect to the Municipalities as it relates to Mideplán’s power of direction (point 45 of the Por Tanto) d) Additional reasons of Justice Garro Vargas regarding the unconstitutionality of Article 7 on the ground that it affects the autonomy of the Municipalities e) Additional reasons of Justice Picado Brenes concerning Article 7 of the bill as it relates to Mideplán’s broad powers with respect to the Municipalities (point 47 of the Por Tanto) f) Additional reasons of Justice Garro Vargas concerning the unconstitutionality of the second paragraph of Article 9 subsection a) and its application to the Municipalities g) Additional reasons of Justice Picado Brenes concerning Article 9 of the bill as it relates to the functions of the active administrations with respect to the Municipalities (point 48 of the Por Tanto) h) Additional reasons of Justice Garro Vargas concerning Article 13 and its application to municipal employees i) Additional reasons of Justice Picado Brenes concerning Article 13 of the bill as it relates to the job-family groups of the Municipalities (point 49 of the Por Tanto) j) Additional reasons of Justice Picado Brenes concerning Article 18 of the bill as it relates to the terms of appointment for senior management personnel in the Municipalities (point 52 of the Por Tanto)

XIV. Concerning the consultation on the violation of the autonomy of the Autonomous Institutions.-

• 1)Matters submitted for consultation 2) Conclusion

XV.Concerning the consultation on the violation of the principle of legal certainty through the institution of conscientious objection (objeción de conciencia).- (authored by Justice Picado Brenes)

• 1)Matters submitted for consultation 2) Case-law background 3) Specific analysis of the matters submitted for consultation 4) Conclusion 5) Separate reasons and interpretation Separate reasons of Justice Rueda Leal concerning subsection g) of Article 23 of the bill.

Dissenting opinion of Justice Hernández López concerning Article 23 subsection g) of the bill submitted for consultation.

XVI. Concerning the consultation on the violation of the right to collective bargaining and the right to unionize.-

• 1)Matters submitted for consultation 2) Case-law background concerning the fundamental right to collective bargaining 3) Specific analysis of the matters submitted for consultation (authored by Justice Castillo Víquez) 4) Conclusion 5) Separate reasons a) Separate reasons of Justice Rueda Leal concerning Article 43 and Transitory Provision XV of the bill.
• b)Separate reasons of Justice Garro Vargas regarding the constitutionality of Article 43 c) Separate reasons of Justice Picado Brenes concerning Article 43 of the bill as it relates to collective bargaining agreements (convenciones colectivas) (point 55 of the Por Tanto) d) Separate reasons of Justice Garro Vargas regarding the constitutionality of Transitory Provision XV e) Separate reasons of Justice Picado Brenes concerning Transitory Provision XV of the bill as it relates to the denunciation of collective bargaining agreements (point 56 of the Por Tanto)

XVII.Concerning the consultation submitted regarding the penalty of general disqualification (inhabilitación genérica).- (authored by Justice Picado Brenes)

• 1)Specific analysis of the matters submitted for consultation 2) Conclusion 3) Note Note of Justice Picado Brenes concerning Article 4 subsection a) of the bill, referring to the penalty of general disqualification (point 57 of the Por Tanto)

XVIII. Concerning the alleged violation of the right to equal pay and the global salary (salario global)

• 1)Matters submitted for consultation 2) Case-law background concerning the fundamental right to equal pay 3) Specific analysis of the matters submitted for consultation (authored by Justice Castillo Víquez) 4) Conclusion 5) Dissenting opinion and note a) Dissenting opinion concerning subsection a) of Transitory Provision XI of the bill regarding salary rules (point 58 of the por tanto), by Justices Hernández López, Garro Vargas, and Picado Brenes, authored by the last-named b) Separate note of Justice Garro Vargas concerning subsection a) of Transitory Provisions XI and XII of the bill regarding salary rules (point 58 of the por tanto) c) Separate note of Justice Picado Brenes concerning Transitory Provisions XI and XII of the bill regarding salary rules (point 58 of the por tanto) d) Separate reasons of Justice Rueda Leal concerning Transitory Provisions XI and XII submitted for consultation.

XIX. Concerning the violation of due process (single dismissal proceeding).- (authored by Justice Picado Brenes)

• 1)Matters submitted for consultation 2) Conclusion

XX.Concerning the violation of the principle of fiscal sustainability through leave entitlements.- (authored by Justice Picado Brenes)

• 1)Specific analysis of the matters submitted for consultation 2) Conclusion 3) Dissenting opinion and individual reasons Dissenting opinion of Justice Garro Vargas concerning the inability to address the consultation regarding Articles 39, 40, 41, and 42 of the bill (expediente 21-11915-007-CO) Individual reasons of Justice Picado Brenes concerning Articles 39, 40, 41, and 42 of the bill regarding new grounds for leave (point 60 of the Por Tanto)

XXI.Concerning the consultation regarding the exclusion of public enterprises operating in competitive markets and other exclusions.- (authored by Justice Picado Brenes)

• 1)Matters submitted for consultation 2) Case-law background 3) Specific analysis of the matters submitted for consultation 4) Conclusion

XXII. Conclusions

XXIII. General notes

Notes of Justice Castillo Víquez concerning points 1, 4, 6, and 45 of the Por Tanto.- Note of Justice Hernández López Note of Justice Rueda Leal.

Final note of Justice Garro Vargas.- Note of Justice Araya García General note of Justice Picado Brenes.-

XXIV. DOCUMENTATION SUBMITTED TO THE CASE FILE

Res. Nº2021-017098 SALA CONSTITUCIONAL DE LA CORTE SUPREMA DE JUSTICIA. San José, at twenty-three hours and fifteen minutes on treinta y uno de julio del dos mil veintiuno.

Optional legislative consultation on constitutionality (consulta legislativa facultativa de constitucionalidad) 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, concerning the bill entitled “PUBLIC EMPLOYMENT FRAMEWORK LAW” (“LEY MARCO DE EMPLEO PÚBLICO”), which is being processed under legislative expediente n° 21.336.

Findings of Fact (Resultando):

1. 1The consultation was received by the Office of the Clerk of the Chamber at 17 hours 31 minutes on 17 de junio de 2021. The petitioners request that the Chamber rule on the constitutionality of several provisions of the bill entitled “PUBLIC EMPLOYMENT FRAMEWORK LAW” (“LEY MARCO DE EMPLEO PÚBLICO”), which is being processed under legislative expediente n° 21.336, because the Poder Judicial, the Tribunal Supremo de Elecciones, the Universidades Públicas, the Caja Costarricense de Seguro Social, the municipalities, and 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 Constitución Política, constitutional principles, and various international conventions. They also inquire into the possible unconstitutionality of subsection g) of Article 23 of the bill in question (conscientious objection (objeción de conciencia)) due to a violation of the constitutional principles of legality and legal certainty (seguridad jurídica), reasonableness and proportionality, and international conventions.They further challenge the constitutionality of Article 43 and Transitory Provision XV (transitorio XV) due to a violation of Article 62 of the Constitución Política and Convention n° 98 concerning the Right to Organise and Collective Bargaining, of the Organización Internacional de Trabajo (OIT), among other conventions and constitutional principles. They point to a possible violation of the principles of proportionality and reasonableness arising from the disqualification sanction (sanción de inhabilitación) contained in subsection a) of Article 4 of the bill under consultation. They likewise allege the unconstitutionality of Transitory Provision XI (transitorio XI) due to a violation of constitutional Articles 33, 57, 68, and 56 and international conventions, on the grounds that it violates the constitutional principles of equal pay and non-discrimination in pay. They also raise issues concerning the constitutionality of the parliamentary procedure, claiming a violation of the right of amendment (derecho de enmienda), as well as the principles of democratic participation and reasonableness, because of the manner in which motions were consolidated in the presiding officer’s admissibility ruling, and with respect to Deputy Vega Rodríguez’s motion for reconsideration (moción de reiteración) n° 138-210, because it was not submitted to the Plenary for consideration and its subsequent vote was omitted
2. 2By a written submission filed at 19 hours on 17 de junio del 2021, Deputy Mario Castillo Méndez requests that his signature on the filed consultation be deemed withdrawn.
3. 3By a written submission filed at 9:22 hours on 18 de junio del 2021, Deputy Zoila Rosa Volio Pacheco requests that her signature on the filed consultation be deemed withdrawn.
4. 4By a ruling issued at 13:15 hours on 18 de junio del 2021, the Presidency of the Sala Constitucional states that the filed legislative consultation has been received. It also requests that the Board of Directors of the Asamblea Legislativa forward legislative expediente número 21.336 or a certified copy thereof. It further notes that the time limit established in Article 101 of the Ley de la Jurisdicción Constitucional begins to run once the requested documents have been received.
5. 5By a written submission filed at 16:47 hours on 21 de junio del 2021, Deputy Dragos Dolanescu Valenciano states that he joins in signing the filed consultation.
6. 6By a written submission filed at 09 hours on 22 de junio del 2021, Carlos Alberto Gómez Ramos, in his capacity as Secretary General of the Sindicato de la Salud y la Seguridad Social (SISSS), sets forth several arguments against the bill under consultation, stating that it contains serious violations of the Carta Magna that undermine the autonomy of the Caja Costarricense de Seguro Social, the Universidades Públicas, and the Régimen Municipal.
7. 7By a ruling issued at 11:54 hours on 25 de junio del 2021, the President of the Sala Constitucional acknowledges receipt of a certified copy of the legislative expediente and refers the consultation to the office of Justice Cruz Castro, to whom consideration of the merits of the matter was assigned in rotation.
8. 8By a written submission filed at 11:59 hours on 25 de junio del 2021, several deputies of the Asamblea Legislativa submit what they call “passive intervention in support” (“coadyuvancia pasiva”) and make representations concerning the constitutionality of the text of subsection g) of Article 23 of legislative expediente n°21.336.
9. 9On 28 de junio de 2021, Justice Fernando Cruz Castro filed a motion for recusal (gestión de inhibitoria) from consideration of this consultation.
10. 10By a written submission received at 11:41 hours on 28 de junio de 2021, the signatories, who state that they are representatives of labor, community, and civil-society organizations, file a “Request before the Sala Constitucional by the People of Costa Rica through a Popular Action; Pursuant to Article 9 of the Constitución Política” (“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”). They request the uniform interpretation of constitutional principles, as well as the application of the fundamental rights and freedoms enshrined in the Constitución Política and in the international human-rights instruments in force in Costa Rica, and ask that what they characterize as the disastrous public-employment bill be declared unconstitutional. They consider that Justices Castillo Víquez and Hernández López must refrain from hearing this proceeding and therefore request their disqualification (recusación).
11. 11By a ruling issued at 10:57 hours on 29 de junio de 2021, the Acting Presidency of the Sala Constitucional granted Justices Castillo Víquez and Hernández López a period of 48 hours to respond to the motion for their disqualification.
12. 12By a written submission filed at 17:39 hours on 29 de junio de 2021, Deputies Wálter Muñoz Céspedes and Patricia Villegas Álvarez state that their sole support for a consultation on constitutionality, under the terms established in Article 96 subsection b) of the Ley de la Jurisdicción Constitucional, concerning bill N° 21.336, is for the consultation processed under expediente N° 21-011713-000-CO.
13. 13By a written submission filed at 19:37 hours on 29 de junio de 2021, a document signed by several deputies of the Asamblea Legislativa and entitled “Submission to Assist the Court in Its Decision” (“Escrito para Mejor Resolver”) was received for the purpose of assisting in the understanding of the issues raised through optional consultations on constitutionality N° 21-011713-0007-CO and 21-011915-0007-CO within the framework of legislative expediente N° 21.336. They submit for this Court’s consideration the legal arguments that, in their view, establish the bill’s conformity with the Law of the Constitution (Derecho de la Constitución).
14. 14By a written submission filed at 9:30 hours on 30 de junio de 2021, Deputy Sylvia Patricia Villegas Álvarez clarifies that she signed the optional consultation submitted to this Court, except with respect to the arguments concerning conscientious objection.
15. 15By a written submission filed at 9:30 hours on 30 de junio de 2021, Deputy Wálter Muñoz Céspedes clarifies that he signed the optional consultation submitted to this Court, except with respect to the arguments concerning conscientious objection.
16. 16By a written submission filed at 9:32 hours on 30 de junio de 2021, Deputy Dragos Dolanescu Valenciano states that his sole support for a consultation on constitutionality, under the terms established in Article 96 subsection b) of the Ley de la Jurisdicción Constitucional, concerning bill N° 21.336, is for the consultation processed under expediente N° 21-011713-000-CO.
17. 17By a written submission filed at 10:21 hours on 30 de junio de 2021, Justice Fernando Castillo Víquez responds to the hearing granted by the ruling issued at 10:57 hours on 29 de junio de 2021. He requests that the motion seeking his disqualification be summarily dismissed or, alternatively, if admitted, that the motion be denied.
18. 18By an official communication filed at 11:17 hours on 30 de junio de 2021, Justice Nancy Hernández López responds to the ruling issued at 10:57 hours on 29 de junio de 2021. She considers that there are no grounds whatsoever for her withdrawal or disqualification in this proceeding.
19. 19By a written submission delivered at 15:41 hours on 30 de junio de 2021, Deputy Shirley Díez Mejías confirms her joinder in the optional consultation filed by her colleagues and requests a declaration that bill N° 21.336 is inconsistent with the constitutional legal order. She clarifies that the other submission she signed, concerning support for conscientious objection, must be considered in the alternative and only in the event that the bill is found to conform to the Constitución Política, so that the approved provision on conscientious objection remains unchanged.
20. 20By a written submission filed at 19:27 hours on 30 de junio de 2021, Deputy Paola Vega Rodríguez requests permission to access electronic expediente N° 21-011713-0007-CO online and provides her identity-card number for that purpose.
21. 21By a ruling issued at 13:40 hours on 01 de julio de 2021, the Acting Presidency of the Sala Constitucional denied the motions for disqualification filed against Justices Castillo Víquez and Hernández López.
22. 22By a ruling issued at 10:56 hours on 02 de julio de 2021, the Presidency of the Sala Constitucional rules on the filed motion for recusal and removes Justice Fernando Cruz Castro from consideration of this matter. It further declares that the substitute justice replacing him is authorized to hear this matter, in accordance with Article 49 of the Ley Orgánica del Poder Judicial.
23. 23By Judgment N° 2021-015105 issued at 9:15 a.m. on 2 de julio de 2021, it was ordered that legislative consultation N° 21-011915-0007-CO, filed at 08:11 a.m. on 22 de junio del 2021 by 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, be consolidated with these proceedings. They state that the bill was approved on first reading during ordinary session N° 017 of 17 de junio de 2021. They indicate that the bill submitted for consultation provides for the organization of the compensation structure (esquema de remuneraciones) in the public sector, the fundamental element of which is the implementation of the so-called “global salary” (salario global). This salary will be determined by the governing body (órgano rector), in accordance with a methodology for compensating work in the public service, consisting of a point-factor system under which scores will be assigned to positions based on analyses of the relevant risk factors.This global salary system provides that all public servants (personas servidoras públicas) will be compensated in accordance with that law, including current public servants. Transitory Provision XI (Transitorio XI) of the bill sets forth the rules governing the application of the new legislation to current officials and, in doing so, they believe that it violates Articles 11, 33, 56 and 57 of the Political Constitution. First, the Transitory Provision establishes that public servants who earn a salary lower than the salary applicable to their category under the global salary system will continue earning that salary until it equals the applicable salary. This means that newly hired public servants will be compensated under the global salary system from the beginning of their employment relationship, whereas those already working in public service will not, even though the duties, responsibilities, conditions and other characteristics of the position are identical or similar.Thus, the same salary will not be paid for a position with identical conditions. As drafted, Transitory Provision XI creates two different salary scales for the same position. The bill in question establishes a salary system that is not available to current public officials. This duplication of systems for two types of officials creates clear discrimination and injustice. The point-factor methodology must take numerous aspects into account, including required levels of knowledge and experience, the degree of discretion in decision-making, the complexity of the work, and so forth. The goal is for the salary to be commensurate with the duties and level of responsibility that the public official must assume in that specific position. They believe that all public officials should be transferred to the new employment regime (régimen laboral). Failure to do so constitutes a violation of the principle of legal certainty (principio de seguridad jurídica) and creates an internal contradiction between Transitory Provision XI and Article 1° of the law.That position was adopted by the Departamento de Servicios Técnicos in official letter AL-DEST-CJU-027-2021 of 6 de abril de 2021. That official letter warns that the bill maintains not only salary differences for identical positions but also several classes of salaries. This violates the principle of equal pay (principio de igualdad salarial), as developed by the Sala Constitucional and the Sala Segunda de la Corte Suprema de Justicia, departure from which requires objective and reasoned justifications that do not exist in this case. The only justification offered by the proponents of Transitory Provision XI refers to fiscal and public-finance considerations. The consulting deputies challenge Articles 2 and 3 of the bill, which govern its scope and exclusions, clearly specifying the institutions to which the law will apply and those that will be excluded, thereby contradicting the bill’s objective of establishing a general framework law on public employment (ley marco de empleo público).Although certain institutions have different operating dynamics and particular characteristics, they are ultimately all public institutions in which the State acts as the sole employer. Public enterprises and institutions operating in competitive markets are excluded, even though they too receive and manage public funds to a greater or lesser extent. The record contains no appropriate, reasonable and proportionate justifications for creating exclusions from the bill. Article 191 of the Constitution demonstrates that the constituent assembly intended relations between the State and public officials to be governed by a single regulation and statute, without exclusions or distinctions. The position of the Contraloría General de la República was reaffirmed in official letter N° 77695 of 28 de mayo de 2021, which drew attention to the need to establish clear parameters and limits for its actions regarding matters involving the allocation of public resources through any mechanism.They state that they challenge Articles 21 and 22 on the grounds that they may violate Articles 11, 41, 121 and 129 of the Political Constitution and the principles of the right to a defense (defensa), reasonableness, legality, due process (debido proceso), statutory reservation (reserva de ley) and legal certainty. They note that one of the bill’s essential features is the reform and modification of the procedures for dismissing public officials in public administration. A uniform dismissal procedure (proceso de despido) is necessary to establish an orderly framework and ensure constitutional consistency. Nevertheless, the procedure provided for in Article 22 of the bill violates a series of constitutional provisions and principles. The substance of that article likewise appears in Article 49(b), which refers to a series of amendments to the Civil Service Statute (estatuto del servicio civil).The amendment to Article 43 of Law N° 1581 seeks to incorporate that dismissal procedure; however, it contains serious differences, inconsistencies and contradictions that violate the principles of legal certainty and legality. Thus, there is no clarity regarding time limits, the admission of evidence, the right to a defense and other matters. This was noted by the Tribunal de Servicio Civil. The bill’s current wording creates complete confusion regarding the dismissal procedure and the scope of jurisdiction (ámbitos de competencia) of each body: the Tribunal de Servicio Civil cannot, for example, have jurisdiction to hear dismissal matters at both first and second instance. Due process is a constitutional guarantee that must be respected in every proceeding, whether administrative or judicial. The procedure established in the bill violates the standards developed by the Sala Constitucional regarding due process, first because it violates the principle of legality through the statutory gaps (vacíos normativos) and conflicts of laws (antinomias) created by the existing contradictions, and second because it fails to provide for fundamental rights.This was highlighted by the Corte Suprema de Justicia in official letter N° SP-62-2021 of 3 de junio de 2021, through which it alerted the legislature to the serious deficiencies in Articles 21 and 22 of the bill: confusion between the concepts of lapse (caducidad) and limitation (prescripción), impairment of oral proceedings (oralidad) in the process, preliminary objections (excepciones previas), and other matters. 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 and the unequivocal rules of science and technology, the elementary principles of justice, logic and expediency, and the principle of fiscal sustainability. Articles 39, 40, 41 and 42 were incorporated into the framework public employment bill on the second day allotted for motions under Article 137. These articles concern unpaid leave to reduce the working day by up to one-third, paternity leave and the extension of maternity leave by up to two additional months.These provisions were included without considering any cost study or source of funding to cover them. Nor was the opinion of the Caja Costarricense de Seguro Social considered; in connection with paid maternity leave, it must share the cost of the leave equally with the employer. This violates Article 188 of the Political Constitution because it entails a substantial expenditure of resources by both the State and the CCSS. In addition, because no technical studies or supporting grounds demonstrate the possible effects of these provisions, their potential impact on the operation of each institution and the provision of services was not considered either. The same applies to paternity leave. Article 176 of the Political Constitution provides that public administration shall be conducted in a sustainable, transparent and responsible manner; however, the inclusion of these articles demonstrates a violation of the principle of financial responsibility and infringes the administrative and financial autonomy of the CCSS.Moreover, Articles 39 and 40 contradict each other, and similar contradictions appear in other provisions of the bill, including Article 7 bis and Article 49(b) and (e). 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 governs the stewardship of public employment (rectoría del empleo público). The constituent assembly indicated that the Civil Service Statute would govern relations between the State and public servants. Although the bill seeks to standardize the public employment framework, the powers and duties granted to the authority governing this field, the Ministerio de Planificación, go further. Article 7 grants it excessively broad powers, allowing it to interfere and intervene within other branches of government and autonomous institutions by, for example, defining recruitment procedures, performance evaluations and compensation, and issuing generally applicable provisions, directives and regulations that must be complied with.This constitutes a violation of the principle of separation of powers. The Corte Suprema de Justicia addressed this issue in official letter N° SP-62-2021 of 3 de junio de 2021. Regarding procedural defects (vicios de procedimiento), they allege that several occurred during consideration of the bill, infringing principles such as the deputies’ right to introduce amendments (derecho de enmienda). Thus, once the deadline for submitting motions for reconsideration (mociones de reiteración) under Article 138 of the Reglamento de la Asamblea Legislativa had expired, the presiding officer issued a ruling on the admissibility and consolidation of those motions. However, this authority was exceeded, resulting in the improper consolidation of motions and various inconsistencies in the criteria applied for that purpose. The parameters used to declare one motion inadmissible but not another, despite their being under identical conditions, are unclear.Motions approved in committee were admitted, while others were rejected. In the Comisión permanente ordinaria de Gobierno y Administración, substantive motion 329 was approved by a significant majority of deputies; it was resubmitted as motion number 18, which was declared inadmissible, and during the process involving motions for reconsideration, a motion was approved that completely deleted the content sought and approved in committee. Por tanto, had the motion for reconsideration been admitted, as the legislators intended, that content could have been preserved in the text. Nevertheless, based on an expansive and contradictory interpretation, it was declared inadmissible, and its content could not be safeguarded.

Also, in point 28 of the decision, reiteration motions (mociones de reiteración) 198 and 272 are consolidated because they refer to the same provisions, seek to amend the final paragraph of the second paragraph, and have an evident connection with the objectives pursued by the proponents. Despite this, motion 344 seeks exactly the same content as reiteration motions 198 and 72. This constitutes a further contradiction in the admissibility decision (resolución de admisibilidad) and a violation of the principles of equality, legality, and objectivity. The improper consolidation contravenes the content of the decision and renders it null and void. Deputy Aracelly Salas Eduarte also signed legislative consultation (consulta legislativa) N°° 21-11713 0007-CO, concerning the same bill. By a document filed at 16:18 hrs. on 23 de junio, Deputy Melvin Núñez Piña joined this consultation. By a document filed at 19:37 horas on 29 de junio de 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, and María José Corrales Villalta filed a passive intervention (coadyuvancia pasiva) in connection with the consultation submitted.

1. 24By vote N° 2021-015137 at 9:15 hours on 2 de julio de 2021, it was ordered that legislative consultation N° 21-012118-0007-CO, filed at 18:47 hours on 23 de junio del 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, be consolidated with these proceedings. The consulting deputies state that the aforementioned bill was approved on first reading at ordinary session no. 17 of the Plenario Legislativo on 17 de junio de 2021. They indicate that they are requesting review of the unconstitutionality of Article 23, subsection g), on the grounds that it violates the constitutional principles of legality, legal certainty, reasonableness, and proportionality, the International Covenant on Civil and Political Rights (art. 18.3), and the American Convention on Human Rights (artículo 12.3).They state that, in 1948, Article 18 of the Universal Declaration of Human Rights recognized that everyone has freedom of thought, conscience, and religion. They assert that this provision recognizes 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 individuals’ freedom of thought, conscience, and religion, subject to the legal conditions and limitations that permit its full exercise, as stated in Article 18 thereof. They indicate that the same provision establishes that the exercise of this right may not override limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others. In turn, 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, as a safeguard for human rights, conscientious objection supported the refusal to perform military service by virtue of the freedoms of thought, conscience, and religion already recognized under the international framework arising from recognition of the right to refuse military service intended to impose apartheid. This position was reaffirmed in 1989, when the Commission on Human Rights, through resolution 1989/59, recognized the right to conscientious objection in relation to military service as a human right in accordance with the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. At the international level, human rights bodies have recognized and examined the tension between conscientious objection and the right to health, given the possibility that the exercise of this right could prevent users of the service from receiving proper healthcare and medical attention.Article 18.3 of the International Covenant on Civil and Political Rights and 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 rights or freedoms of others. Thus, it must be understood that, for an official providing services in the healthcare field, conscientious objection is permissible only when such refusal does not result in an infringement of patients’ human rights, whether the patients are men, women, or children. Specifically, regarding respect for freedom of conscience among healthcare 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 that, for this reason, there must be a clear procedure for exercising the right so as to prevent violations.In Costa Rica, the Sala Constitucional, through resolution n° 01619-2020, has already ruled on conscientious objection. The Sala is consistent in respecting human rights in the exercise of the right to conscientious objection insofar as it does not conflict with other rights. Regarding the exercise of conscientious objection in the judicial sphere, the above-cited resolution established: “IX.- Conclusion. The principle of equality and non-discrimination is an essential element of the public service of the Administration of Justice, and its users must therefore receive equal treatment in the handling, processing, adjudication, and enforcement of the various matters heard at all judicial levels. For its part, the majority of the Tribunal considers that the right to conscientious objection may be exercised in the performance of adjudicative duties—even though the present case concerns the performance of a judicial function.In these circumstances, two fundamental rights are reconciled; however, the essential content of the first—equality and non-discrimination—is not deprived of effect, since, when a judge conscientiously objects to performing a marriage ceremony, the Consejo Superior del Poder Judicial must adopt all necessary measures to ensure that the public service of the Administration of Justice is provided to same-sex couples under the same conditions and within the same response times as it is provided to heterosexual persons. Finally, it is clear that any persons appointed after same-sex marriage enters into force may not exercise the right to conscientious objection, because they voluntarily accepted that function when they applied for and accepted the position....” As follows from the analysis presented, conscientious objection is understood as a recognized right that allows individuals to refuse conduct required of them by law for reasons contrary to, or affecting, their beliefs.In light of the bill under review, the proposal in Article 23, subsection g), of the bill at issue—by broadly and without regulation allowing public officials to refuse mandatory technical instruction and training necessary for performing their positions merely by giving notice through a sworn statement (declaración jurada)—could be regarded as an abusive exercise contrary to the human rights of other citizens. An analysis of the provisions of the bill under review reveals a conflict among numerous rights, both those of officials and those of citizens receiving services from these public servants. Through resolution no. 02965- 2020 of the Sala Constitución, that constitutional body recognized the universal equality of treatment that the administration must afford users. Public services must address the demands of persons subject to the administration (administrados), without invoking reasons that could jeopardize the exercise of those rights vis-à-vis the administration on equal terms or allowing an official’s individual rights to prevail.To perform their duties honestly, efficiently, and effectively, public officials necessarily require the technical and administrative knowledge enabling them to discharge those duties. Furthermore, the State has an obligation to train officials so that government operations meet the standards for providing public services that must be guaranteed to citizens. It is important to note that the necessary training of officials cannot be understood as indoctrination or the imposition of conditions upon public servants; rather, training constitutes a necessary transfer or exchange of information that must be conveyed to officials so that they perform their duties in accordance with the conditions under which they were hired. Training is not only a right of officials in their capacity as such, but also a guarantee for citizens receiving the service, on the understanding that if an official lacks sufficient knowledge to provide the public service for which the official was hired, the official will be unable to resolve the matter or, failing that, guide the citizen receiving the service.They question how a public official can determine, before receiving training, that it violates the official’s personal beliefs or convictions. They argue that including conscientious objection in this bill could render it unconstitutional insofar as the State would allow officials to disregard the exercise of public powers (potestades públicas) that are mandatory and must be exercised by someone. They assert that the solution the Sala Constitucional has already provided on this matter, as mentioned above, is that institutional authorities must adopt plans to prevent a lapse in public service because, although the official has that right, the citizen whose matter the objecting official declines to handle may not be restricted or harmed. Furthermore, this constitutional body has also held that when officials assume a position requiring them to perform certain acts, they are obligated to perform them without a right to conscientious objection, insofar as they accepted the public position in accordance with the law in force at the time of their appointment.Thus, it must be understood that officials must perform the duties for which they were hired, fully carrying out their assigned functions and respecting the human rights inherent to individuals: political, sexual, informational, health, and educational rights. The manner in which this issue was addressed during the bill’s legislative process, together with the rejection of motions intended to clarify and delimit the exercise of conscientious objection so as to prevent violations of other fundamental rights, itself ultimately constituted a violation of fundamental rights. Refusing to receive training and instruction on matters relevant to one’s position could, for example, violate a citizen’s right to receive adequate healthcare, proper service from bodies administering justice, or unbiased and accurate information from educational institutions. Treating conscientious objection as a mere formality, without further conditions or restrictions and without any technical rigor, solely to provoke controversy and polarize Costa Rican society, is contrary to the human rights recognized by the Inter-American Court of Human Rights and conflicts with the State’s obligation—which this Asamblea Legislativa must guarantee—to safeguard the legality and legal certainty that must accompany enacted laws.In view of the arguments presented, they consider that the inclusion of conscientious objection in Article 23, subsection g), of the bill entitled “Ley Marco de Empleo Público,” legislative expediente n° 21336, as included in the text of the bill approved on first reading, could constitute a violation of constitutional principles and human rights; accordingly, the matter is submitted to this Tribunal Constitucional for a definitive determination as to whether or not it infringes the Constitución Política.

By a written submission received by this Chamber at 8:40 a.m. on June 29, 2021, legislators 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 state that they are filing a submission in support of the respondent (coadyuvancia pasiva) in the present consultation.

1. 25By vote No. 2021-015240, issued at 9:15 a.m. on July 2, 2021, it was ordered that legislative consultation No. 21-012714-0007-CO, submitted at 11:45 a.m. on July 01, 2021, by Fernando Cruz Castro, in his capacity as President of the Corte Suprema de Justicia, be consolidated with this proceeding. The consultation concerns the possible effects that the content and consequences of its provisions could have on the constitutional powers of this Court and the Poder Judicial, for which purpose the President of this body was authorized to file it. Before addressing the constitutional challenges, he states that it is appropriate to refer to a series of general considerations discussed within the Corte Suprema de Justicia in connection with the constitutional consultation (consulta constitucional) submitted by the Asamblea Legislativa regarding the bill under consultation and its effects on the organization and operation of the Poder Judicial.He notes that some of the issues addressed by this constitutional consultation concerning effects on the constitutional powers of the Corte Suprema de Justicia had already been raised before the bill was approved on first reading; nevertheless, the Asamblea Legislativa disregarded them, as it also disregarded the respective motions seeking to safeguard the constitutional powers of the Poder Judicial, which were systematically rejected. He states that the analysis presented at the time in connection with the consultation regarding the effects on and operation of the Poder Judicial constitutes an initial framework of assessment prepared by the Corte Suprema de Justicia, but it cannot be regarded as limiting or exclusive for purposes of the respective consultation, since it incorporates a series of factors assessed in the proposal submitted and in the statements made during the respective session at which the filing of this consultation was approved.In this regard, in the original analysis concerning the determination of the effects on and operation of the Poder Judicial, the Justice who authored the respective report—which was adopted by the Corte Suprema de Justicia—concluded that the bill proposes including the Poder Judicial within a general public-employment framework, without considering its legal nature, organizational structure, or the particular characteristics of the duties performed by judicial personnel in their various areas of work. In this regard, although the bill seeks to encourage joint participation in certain activities, the Ministerio de Planificación Nacional y Política Económica (Mideplán) remains the government entity—and therefore an entity external to the Poder Judicial—that holds most of the powers concerning what has been termed the “Governance of the General Public Employment System,” thereby perpetuating a clear violation of the principle of branch independence, or separation of powers.Along these lines, the bill continues to disregard the Poder Judicial’s specific compensation system as the official remuneration system for all positions included in the Manual Descriptivo de Clases del Poder Judicial, an instrument prepared by the corresponding technical body of the Corte Suprema de Justicia and approved by resolution of the Corte Plena on the basis of the provisions established in the Organic Law of the Poder Judicial (Ley Orgánica del Poder Judicial) and the Estatuto de Servicio Judicial, as well as in consideration of the institution’s own needs and particular characteristics. He states that, along these lines, the bill eliminates the powers of the Corte Suprema de Justicia in this area and openly transfers them to Mideplán, whose head is entirely subordinate to the President of the Republic. He emphasizes that both the institution’s own internal compensation system and the specific employment regulations for judicial personnel adopted by the Corte Suprema de Justicia are supported by several statutes, including Law No. 2422 of August 11, 1959, as amended, known as the “Ley de Salarios del Poder Judicial.” That statute assigns the Personnel or Human Resources Department the authority to prepare and keep the Manual de Clasificación de Puestos up to date, a power that would clearly be adversely affected by the new general framework encompassing the public sector as a whole, particularly because, since September 30, 2019, the Corte Plena had already agreed to work on a global-salary or single-salary model based on technical, financial, and legal criteria specific to the institution.He further emphasizes that, in addition to positions filled on merit through the judicial-career system, this Branch of the Republic encompasses the judicial personnel comprising the Organismo de Investigación Judicial, the Ministerio Público, the Defensa Pública, and many other bodies. These factors are important in preventing the loss of human talent and the discouragement of administrative, technical, and professional personnel from joining the institution—something that the law promotes but disregards here. The bill eliminates the involvement of the constitutional governing body of the Poder Judicial, the Corte Suprema de Justicia, in matters concerning the regulation of public employment within that Branch, since such regulation and the salary scale for its personnel would be administered by a ministry of the Executive Branch, namely Mideplán, with the resulting internal intrusion into the structure and operations exclusively reserved to this Branch of the Republic.He asks that consideration be given to the fact that the new salary scale currently being developed—technically adapted to the nature of the Poder Judicial—requires appropriate studies to define a competitive salary and the compensation components to be included in the single salary. The method for revaluing these positions also entails periodic market studies to determine how they will be revalued. Extensive constitutional case law establishes that the compensation system of the Poder Judicial falls within the sole and exclusive authority of the Corte Plena. He warns that the failure to establish a distinction at the statutory level and/or to set limits between progressive salary-related events constitutes a clear impairment of the independence of the Poder Judicial. He states that the bill continues to treat equally persons who are in different circumstances, thereby disregarding the basic substance of Article 33 of the Political Constitution (Constitución Política).By taking or suggesting the salary of the President of the Republic as its premise, the bill overlooks the fact that the President’s duties and qualifications are very different, thereby affecting the salaries of other officials appointed on the basis of suitability, as well as the desirability of holding an office carrying a level of responsibility that has not been appropriately recognized. By introducing a chapter on performance evaluation (evaluación del desempeño), the bill disregards the efforts undertaken by the Poder Judicial to create plans specifically addressing this subject. This process forms part of an evolving development that the Dirección de Gestión Humana y Distribución began in 2012, in conjunction with organizational strategic planning. This development has involved a transition from a traditional personnel-administration approach to a comprehensive competency-based talent-management model, conceptually grounded in a methodological foundation that cannot simply be standardized with the rest of the State under technical criteria inconsistent with the principles that have been promoted.The model adopted by the Dirección de Gestión Humana is based on a comprehensive approach to competency-based talent allocation, which generates inputs and outputs in the payment, selection, evaluation, and training subprocesses and rests fundamentally on the description, classification, and valuation of positions. This has been an essential objective for providing the Poder Judicial with suitable personnel and for retaining them and developing the competencies, skills, and motivation necessary to achieve the institution’s objectives. Consequently, subjecting it to a change would create an operational risk to the fulfillment of the long-term plans established by the Poder Judicial concerning the strategic issue of personnel management. He states that it must be recalled that, pursuant to Article 156 of the Political Constitution, the jurisdictional structure of the Poder Judicial is given constitutional support insofar as it concerns an activity entrusted exclusively to that Branch; furthermore, provision is made for another system, namely the Civil Service, so that the Administrative Career Law and the statutory employment relationships of other bodies and officials may eventually support that function in other areas.Reading the aforementioned Article 156 together with Article 177, also of constitutional rank, reveals a qualification of the budgetary independence granted by the constituent authority to the Poder Judicial, arising from its autonomy to exercise that jurisdictional function exclusively; accordingly, those provisions must be understood as essentially encompassing the judiciary. The foregoing means that, because personnel of this Branch of the Republic are responsible for exercising a jurisdictional function arising from a constitutional provision, they must be afforded independent treatment by virtue of that same provision. He states that another provision to be considered in addressing the issue of interference by the Ministerio de Planificación Nacional y Política Económica—and therefore by the Executive Branch—in this other Branch of the Republic is Article 153 of the Political Constitution, which provides that the administration of justice through duly established jurisdictional bodies is an exclusive function of the Poder Judicial.Given the nature of the Poder Judicial as a constitutional body, in addition to its exclusive function of deciding jurisdictional matters submitted to it and the diffusion of functions permeating the three Branches of the Republic under Article 9, the need to prevent any interference in its operations, whether through legislation or otherwise, becomes even more evident. As the entity responsible for deciding jurisdictional or judicial matters according to the different jurisdictions or areas of authority, it unquestionably handles sensitive information and data concerning users that should not be transferred into the control of external bodies, since doing so could violate the privacy rights of other persons—an issue not resolved by merely referring to Law 8968, Protección de la Persona Frente a los Datos Sensibles o Personales, in Article 12 of the bill. Likewise, including the judiciary among the eight occupational families referred to in Article 12 of the bill, specifically subsection f), would conflict with additional constitutional provisions, demonstrating that, even if approved by a qualified majority, the bill contains certain constitutional defects.Furthermore, requiring the budget to be used to pay salaries according to criteria established by the Ministerio de Planificación Nacional y Política Económica would have a harmful effect on the judiciary and on value-added taxes within the judiciary. Likewise, placing persons who administer justice in the same occupational family as the justices of the Tribunal Supremo de Elecciones disregards the differences between them, including the nature of their duties and the operational numbers of these two categories of public officials.

The stated effects, as will be explained below, have not only a direct impact on the organization and operation of the Judiciary, but, more fundamentally, the content and effects of the bill under consultation have direct consequences for the exercise of powers constitutionally assigned to that Branch and, specifically, to the Corte Suprema de Justicia. It states that the central purpose of the consultation is that the interpretation and application of the content and effects of the following articles of the bill in question could affect the exclusive constitutional powers of the Corte Suprema de Justicia with respect to the governance of the Judiciary in matters concerning the regulation, organization, direction, and control of the employment relationship of judicial personnel: i. Articles 6 and 9, by transferring those powers for exercise by the Ministerio de Planificación Nacional y Política Económica, which is subordinate to the Executive Branch.

In its content, the bill disregards the existence and inherent powers of the Corte Suprema de Justicia as the governing body of the Judiciary and instead establishes a direct relationship between Mideplán and the Dirección de Gestión Humana del Poder Judicial. It is considered that this vertical and absolute relationship—since it indicates that Mideplán will directly issue final and binding administrative acts and regulations addressed to human-resources offices, including the Dirección de Gestión Humana del Poder Judicial—could conflict with constitutional law (derecho de la Constitución), insofar as it entails overt interference by the Executive Branch in the most basic decisions concerning the administration of judges, prosecutors, and other personnel, without taking the position of the Corte Suprema de Justicia into consideration in any way. Accordingly, there would be no coordination and cooperation relationship between the Branches, but rather the imposition of Mideplán’s provisions upon the technical bodies, disregarding the existence of the competent constitutional bodies responsible for governing the Branches of the Republic and, in the case of the Judiciary, the Corte Suprema de Justicia, as established by the Constitución Política.

It warns that these provisions would effectively strip the constitutional powers of the Corte Suprema de Justicia concerning the employment management of judicial personnel of their substance and, consequently, would also strip of their substance the provisions of the Ley Orgánica del Poder Judicial that assign such powers to that collegial body. It notes that although the bill begins with the phrase “without prejudice to the principle of separation of powers established in the Constitución Política,” that phrase is rendered meaningless when it is observed that the remainder of the bill’s provisions is wholly inconsistent with it. An analysis of the provisions, as stated above, shows that the bill proposes a vertical relationship between Mideplán and the human-resources units and, in the case of the Judiciary, the Dirección de Gestión Humana, disregarding the Corte Suprema de Justicia as the governing body of that Branch when defining matters relating to public employment.

A careful reading of the scope of the bill shows that a series of definitions concerning public employment within the Judiciary are left to be specified by Mideplán through a mere administrative act. The observation that the phrase intended to safeguard the independence of the Branches was not taken into account in the remainder of the provisions when specifying Mideplán’s powers was duly raised at the time before the respective Legislative Committee, but the corresponding motion was rejected by a majority of the deputies present. It warns that the formula used by the bill attempts, in some manner, to replicate the provisions of the Ley de la Administración Financiera y Presupuestos Públicos, but, unlike that law, it is rendered meaningless when specifying how the intersubjective relationships (relaciones intersubjetivas) based on its content are to be implemented. In this regard, it notes from the respective legislative debate that, for the bill under consultation, wording similar to Article 21 of the Ley de la Administración Financiera y Presupuestos Públicos was proposed but was rejected at the time, demonstrating the lack of intent to establish merely a coordination relationship with the Judiciary for purposes of applying the bill under review, as well as the objective of establishing a relationship of direction by Mideplán.

This follows from the fact that only the provision set out below made allowance for the stated cooperation, as follows: “The Legislative and Judicial Branches, the Tribunal Supremo de Elecciones, state higher-education institutions, municipal corporations and municipal leagues through the Unión Nacional de Gobiernos Locales, and autonomous institutions shall jointly develop with Mideplán, Autoridad Presupuestaria and Dirección General de Servicio Civil the respective global salary scale (columna salarial global), based on the principle of interinstitutional coordination.” However, a comprehensive reading of the bill shows that only this provision, and only for purposes of the global salary scale, provides for respect for the principle of separation of powers, since no other article includes a proviso concerning the coordination relationship that must exist between the Branches, which is a fundamental basis of judicial independence.

Notwithstanding the preceding provision, it must be noted that the final definition of the global salary scale will once again remain exclusively in the hands of Executive Branch bodies, insofar as the bill states: “Article 34—Global salary scale. Based on the job-evaluation methodology, the Ministerio de Planificación Nacional y Política Económica (Mideplán), the Secretaría Técnica de la Autoridad Presupuestaria and the Dirección General del Servicio Civil shall jointly prepare a global salary scale. The scale shall proceed sequentially from the lowest to the highest score.” Thus, despite establishing a provision that, in principle, creates a cooperative relationship regarding the global salary scale, it is noted that whatever the Judiciary may state is in no way binding upon the bodies of the Ministerio de la Presidencia, the Ministerio de Hacienda, or Mideplán. Moreover, Mideplán’s relationship is with the Dirección de Gestión Humana del Poder Judicial and not with the Corte Suprema de Justicia, which would constitute a serious constitutional defect (vicio de inconstitucionalidad), since Mideplán will “coordinate” with that Directorate the definition of the Judiciary’s global salary scale (see Article 6, subsections a and b, and Article 9, subsection a, of the bill), entirely ignoring the highest governing body of that Branch.

In the specific case of the Judiciary, what is intended by the challenged article of the bill could entail a regression and an impairment of the principle of progressive realization (principio de progresividad) regarding the right of all Costa Rican persons to a Judiciary that is not subject to the risk of interference by other Branches—that is, the right to judicial independence. Consequently, any regression in judicial independence, for any reason, and the opening of an opportunity for the oversight bodies of the branches of government to be undermined in some way in their decision-making would be contrary to constitutional law. The legislature’s objective was to establish a specific statutory regime (régimen estatutario) for Judiciary personnel in order to strengthen the Judiciary’s independence without departing from a public-employment relationship. The bill in question would strip several laws of their substance and tacitly repeal the powers that the Ley Orgánica del Poder Judicial assigns to the Judiciary’s governing and directing bodies, which is contrary to the normative triad (triada normativa) inherent in judicial independence (it refers to judgment no. 2018- 19511 of this Chamber).

In addition to the foregoing, it must be considered that the creation of a unified employment regime (régimen único de empleo) and the inclusion of the Judiciary within it would create the possibility that Mideplán could interfere in the employment relationships of judicial personnel belonging to the judiciary, the Ministerio Público, and the Organismo de Investigación Judicial. The bill provides no particular treatment whatsoever for the Ministerio Público or the Organismo de Investigación Judicial; instead, it includes them within the “families,” the content of which will fall within Mideplán’s exclusive authority and be determined through a mere administrative act, thereby tacitly repealing the powers established in the Ley Orgánica del Poder Judicial, Ley Orgánica del Ministerio Público and Ley Orgánica del Organismo de Investigación Judicial. This entails a regression in the independence possessed by the Ministerio Público and the OIJ, and an overt threat that the Executive Branch will assume powers belonging to the person in charge of the Fiscalía General de la República and to the Director of the Organismo de Investigación Judicial.

In this manner, a deconcentrated body (órgano desconcentrado) subordinate to the Ministerio de la Presidencia, the Dirección General de la República, will have powers of direction over the Dirección de Gestión Humana del Poder Judicial in matters relating to competencies, psychometric testing, and the recruitment and selection processes for judicial personnel and, in particular, judges, male and female prosecutors, and agents of the Organismo de Investigación Judicial. This bill transfers constitutional powers belonging to the Judiciary’s governing body—namely, the Corte Suprema de Justicia—to a mere Executive Branch body, which is considered capable of impairing judicial independence. ii. It states that Article 13 of the bill in question violates the statutory reservation (reserva de ley) governing the Judiciary’s own regulatory matters, as provided by the Asamblea Nacional Constituyente, by leaving the regulation of employment within the Judiciary—primarily as regards defining the content of the aforementioned “families” referred to in the bill—to administrative acts and regulations issued by the Ministerio de Planificación Nacional y Política Económica, which is subordinate to the Executive Branch.

The bill’s regulation of those families is extremely limited, and it is therefore understood that such regulation will be accomplished through the exercise of regulatory authority (potestad reglamentaria), by means of regulations and even lower-ranking rules, since the distinction entails different treatment according to the type of services provided. The foregoing is contrary to the constitutional statutory reservation arising from Article 154 of the Constitución Política. This strips the Judiciary’s self-regulatory power (potestad auto normativa) of its substance and shifts the power to regulate through autonomous regulations (reglamentos autónomos) toward the adoption of regulations and, worse still, generally applicable provisions, directives, circulars, manuals, and resolutions issued by the aforementioned Ministry. iii. The interpretation and application of the content and effects of the articles of this bill could affect the exclusive constitutional powers of the Corte Suprema de Justicia with respect to the governance of the Judiciary in matters concerning the regulation, organization, direction, and control of the employment relationship of judicial personnel, by disregarding those powers and establishing a direct relationship of direction and control between the Ministerio de Planificación Nacional Política Económica, which is subordinate to the Executive Branch, and the Dirección de Recursos Humanos del Poder Judicial.

Consequently, far from providing legal certainty regarding the employment relationship of judicial personnel, the bill leaves it to the discretion of the incumbent head of Mideplán to give substantive content to the regulation of each respective job family (referring to Articles 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 of the bill). iv. Moreover, it questions the constitutionality of the bill’s classification of management positions within the Judiciary—including the members of the Superior Council, the person heading the Office of the Attorney General of the Republic, and the person heading the Judicial Investigation Agency—as “Senior Public Management” (“Alta Dirección Pública”) positions, subject to the direct interference of Mideplán (Articles 5, 17, 18, and 24).

The bill would make the Judiciary’s compensation policy subject to a proposal prepared by three Executive Branch bodies—the General Directorate of Civil Service, which reports to the Ministry of the Presidency; the Budget Authority, which reports to the Ministry of Finance; and Mideplán—and to final approval by the Council of Government. This would tacitly repeal the powers of the Supreme Court of Justice to determine the compensation of judicial personnel and would constitute direct interference by the Executive Branch in the decisions implemented in that regard within the Judiciary. The constitutional powers of the Supreme Court of Justice would be nullified, and decisions having a direct impact on the functioning of the Judiciary would be assigned to the Executive Branch. v. It states that the bill in question (Article 21) could eliminate the Judiciary’s own disciplinary system (régimen disciplinario), as well as the powers of the Supreme Court of Justice in this area and with respect to the exercise of the corresponding regulatory authority (potestad reglamentaria).

The establishment of a single administrative procedure (procedimiento administrativo) for the entire public sector tacitly repeals the provisions of the Organic Law of the Judiciary, the Organic Law of the Public Prosecution Service, and the Organic Law of the Judicial Investigation Agency concerning disciplinary proceedings (procedimiento sancionatorio), directly impairing judicial independence. vi. It considers that the bill in question violates the following constitutional standards: Articles 152, 154 and 156 of the Constitution, judgments 1993-6240 and 2018-19511 of this Chamber, and the pro persona principles, the separation of powers, harmonious coordination among the branches of government, the progressive realization of fundamental rights, and judicial independence. Some of the adverse effects that the bill under review could have, in terms of its content and its effects on the constitutional powers of the Supreme Court of Justice and the Judiciary, had already been identified when this body issued its opinion regarding the impact on the organization and functioning of the Judiciary in response to a consultation by the Legislative Assembly pursuant to Article 167 of the Constitution; nevertheless, the Legislative Branch disregarded those observations concerning constitutional defects arising from interference with the constitutional powers identified above.

It notes that a careful reading of the bill reveals that, with respect to the central issue raised in this consultation, it is vague and confusing in its delineation of powers, both technically and in terms of policy direction, as well as in its general and specific provisions governing public employment. That fact alone creates a risk of intrusion into various areas of the Judiciary, potentially extending beyond the immediate issue of public employment into the core of judicial independence. The mere fact that Mideplán could, through an administrative act (acto administrativo) or regulation, impose its own rules governing the employment of judges and prosecutors warrants an analysis of the implications of that Ministry assuming powers belonging to the constitutional body that is the Supreme Court of Justice, with the evident risk that it could become an instrument hostile to the separation of powers and a means available to a future Executive Branch seeking to undermine our democratic system in favor of authoritarian alternatives.

Judicial independence must be understood as encompassing not only judges’ independence of judgment, but also a range of manifestations in the administrative, financial, and operational spheres, both internally (ad intra) and externally (ad extra), which necessarily means that every body belonging to another branch of the Republic has powers limited to the purpose for which it exists and must not issue mere administrative acts that exceed those limits and intrude upon the Judiciary’s exercise of constitutional powers.

1. 26By submission received at 11:15 hours on 5 de julio de 2021, Enrique Egloff Gerli and Rigoberto Vega Arias, President and Vice President, respectively, of the Asociación Cámara de Industrias de Costa Rica, filed a supporting intervention (coadyuvancia) in the constitutional review proceeding (consulta de constitucionalidad) being processed under expediente N° 21-011713-000-CO. They request that the petition be dismissed with respect to the alleged procedural defects and the purported unconstitutionality 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, because those provisions comply with the law. Regarding the challenge to the other articles under review, they agree that those articles should be declared unconstitutional. They request a declaration that the petition by the Corte Plena was filed out of time.
2. 27By submission received at 11:21 hours on 7 de julio de 2021, Deputy Paola Valladares Rosado states that she withdraws her signature from Consulta Facultativa de Constitucional N° 21-12118-0007-CO.
3. 28By submission added to the electronic case file at 14:40 hours on 13 de julio de 2021, Jose Manuel Garita Herrera, in his capacity as president of the Conferencia Episcopal Nacional de Costa Rica, filed a passive supporting intervention (coadyuvancia pasiva). He argues that the entity he represents opposes the arguments made against subsection g) of article 23 of the bill under review. In this regard, he argues that moral conscience is a judgment of reason through which human beings recognize the moral character of a specific act. In everything they say and do, human beings are required to follow faithfully 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 that those freedoms include the freedom to change religion and/or beliefs; consequently, it is absurd to think that, when hiring an employee, an employer would expect that employee to be unable to change their beliefs concerning a particular issue.He cites articles 1 and 18 of the Declaración Universal de Derechos Humanos, 18 of the Pacto Internacional de Derechos Civiles y Políticos, 12 and 13 of the Convención Americana de Derechos Humanos, and sentencia N° 01619-20 and 2017-11531 of this Tribunal. He considers it improper coercion to provide that only persons who accept marriage between persons of the same sex will be hired as judges within the Poder Judicial, because such a measure compels a person to act against their own conscience under threat of dismissal. He asserts that the arguments against article 23 must be rejected because they limit and restrict freedom of thought, conscience, and expression in a disproportionate manner, depriving those freedoms of their substance and, most seriously, violating the principle that restrictions must be established by statute (principio de reserva de ley).
4. 29At 10:39 hours on 15 de julio de 2021, Mario Rojas Vílchez, Secretary General of the Confederación de Trabajadores Rerum Novarum, filed a supporting intervention in the optional constitutional review petition (consulta facultativa de constitucionalidad) concerning expediente legislativo N° 21.336. He considers it improper for the bill in question to seek to limit collective bargaining (negociación colectiva), contrary to the Constitución Política and the international conventions of the OIT. He also considers the disqualification penalty (sanción de inhabilitación) contained in article 4 subsection a) unconstitutional because it violates the principles of reasonableness and proportionality, as it would apply generally to any dismissal regardless of the reasons for it. Finally, he concludes that the proposed pay equality (igualdad salarial) is unconstitutional because it adds factors such as position, working hours, and conditions, which cannot and should not be considered.
5. 30In a written submission added at 13:50 hours on 20 de julio de 2021, Fernando Cruz Castro appears in his capacity as President of the Corte Suprema de Justicia to expand upon the considerations concerning the admissibility (admisibilidad) of the optional institutional constitutional consultation (consulta facultativa institucional de constitucionalidad) regarding bill 21.336, entitled “General Public Employment Law” (“Ley General de Empleo Público”), filed by the institution he represents, on the following grounds:1) Regarding the different nature of the constitutional consultation submitted by the Asamblea Legislativa and that submitted by the Corte Suprema de Justicia. He states that the Law on Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional) shows that the constitutional consultation conducted by the Asamblea Legislativa is different in nature from the consultation conducted by the Corte Suprema de Justicia. He indicates that the former has a procedure specifically defined by law, insofar as it was established that, in certain cases, it could be mandatory and, in others, optional; moreover, it is subject to a series of formalities specific to that Branch, intended to ensure that it arises in certain specific circumstances, but without the limitations inherent in an institutional consultation. He adds that, in accordance with the foregoing, it should be noted that the legislature contemplated a collaborative relationship between the Legislative Branch and the Judicial Branch, through the Sala Constitucional, concerning the conformity of subordinate legislation (norma infra constitucional) during preparation of the respective parliamentary act, in order to guarantee the supremacy of the Constitución Política, as evidenced by the advisory-opinion nature of the ruling issued by the constitutional-review body (órgano de control de constitucionalidad). He argues that, by contrast, in the case of an institutional consultation, the legislature’s intention was directed not so much toward safeguarding the coordination and cooperation between Branches as toward ex ante oversight of the separation of powers; accordingly, the legislature established this mechanism so that the Poder Judicial could submit a consultation if it considered that its constitutional jurisdiction (competencia constitucional) might be impaired. This distinction is reflected even in the rules governing each type of consultation, as may be seen in the attached table. He states that the foregoing is explained by the very nature of a legislative consultation, since it is conducted when a group of members of the constitutional body responsible for approving the bill decides to submit the consultation so that the Sala Constitucional may review it as part of the process by which that body develops the bill, with the questions raised being converted into a consultation. He argues that, in this regard, the potential impairment is not subject to a specific limitation as to its subject matter, because ex ante constitutional protection is undertaken with respect to the applicable legal system itself, viewed as a whole, irrespective of whether affected interests or rights exist, and on the basis of assessments concerning not only impairment of jurisdiction but also conflict with constitutional law (derecho de la Constitución), in both procedural matters or legislative procedure and matters of substance. He contends that, by contrast, an institutional consultation serves a different purpose and is subject to limited institutional or organizational standing (legitimación institucional u orgánica), or numerus clausus, with no possibility of interpretation extending it to other State bodies; it will always be optional, and standing to submit it derives from the status of the applicants as constitutional or essential State bodies possessing a series of powers and duties expressly vested in them by the Constitution on an exclusive and exclusionary basis, in addition to enjoying functional independence. The matter submitted must therefore concern only the constitutional powers expressly vested in those bodies on an exclusive and exclusionary basis, because if the consultation exceeds that sphere, it will be inadmissible and the Sala Constitucional would not even be required to answer it. This enables such constitutional bodies to endeavor to safeguard constitutional supremacy with respect to their exclusive and exclusionary constitutional powers and duties, thereby preventing the emergence of any constitutional jurisdictional disputes.2) The ruling on admissibility in the sole precedent involving a previous institutional consultation in which the issue was assessed: he states that various media outlets have expressed the opinion that the Sala Constitucional’s ruling on the admissibility of previously submitted legislative consultations should be applied; however, he considers that argument unfounded because the applicable decision is the sole precedent in which the Sala Constitucional assessed the admissibility of an institutional consultation, namely judgment number 2007-009469, issued at 10 hours on 3 de julio de 2007, which admitted for consideration an institutional consultation submitted by the Defensoría de los Habitantes, stating that the people, as sovereign, must abide by the Constitución Política and that, when a referendum exists, the Chamber does not lose its jurisdiction to conduct the corresponding constitutional review, as provided in article 10 of the Constitution. That jurisdiction cannot be interpreted restrictively in view of the principle of constitutional supremacy; the Chamber therefore found it appropriate to process the constitutional consultations submitted because, where there is a legal vacuum (vacío legal), it must be interpreted in favor of allowing review, so as to prevent the people from going to the polls without clarity concerning the constitutional issues. He states that the ruling on the admissibility of a legislative consultation is not applicable to the consultation before the Sala Constitucional submitted by the Corte Suprema de Justicia, because the two arise from different legal natures and procedures. He contends that, in the case of the Asamblea Legislativa, notice was given of the filing and processing of the consultation submitted by the legislators, whereas no such notice was given in the case of the Corte Suprema de Justicia. Consequently, it cannot reasonably be interpreted that the latter constitutional body’s ability to file the consultation may be restricted by the receipt of a legislative case file (expediente legislativo), notice of which is given only to the Legislative Branch and therefore can have legal effects only for that Branch, not for the other Branches that were not notified and thus have no formal knowledge of the respective request for the legislative case file.3) Regarding the primacy of constitutional law when determining the admissibility of the consultation: he contends that it must be emphasized that the primacy of constitutional law is a fundamental point of reference for ruling on the consultation submitted by the Corte Suprema de Justicia. He argues that, as stated in the constitutional consultation, given the significance of the matter submitted, the Chamber must apply the principles of interpretation most favorable to the person (pro homine), informality of procedural requirements (informalidad de las formas), interpretation favoring access to proceedings (pro actione), and interpretation favoring a judgment on the merits (pro sentencia), in protection of the highest values of the democratic and republican system, and determine on the merits whether the bill impairs the exclusive and exclusionary constitutional powers of the Corte Suprema de Justicia and the Poder Judicial. He argues that, in this regard, the supremacy of constitutional law necessarily entails consideration on the merits of any question of constitutionality before a bill is finally approved, whenever the legal system so permits, in furtherance of the legislature’s objective of ensuring in advance the conformity and quality of subordinate legislation and allowing collaboration in the preparation of the parliamentary act to guarantee its conformity with constitutional law. He states that, given the preventive or precautionary nature of this form of constitutional review (control de constitucionalidad), the adjudicator must apply a criterion favoring access to proceedings so that, if a novel but legally regulated institutional constitutional consultation is submitted, the possibility of preventing legislation that might be defective because of its departure from constitutional law from entering the legal system is not sacrificed. He argues that the content of the submitted consultation demonstrates that its purpose is to safeguard the constitutional conformity and quality of the Public Employment Law (Ley de Empleo Público) as part of the subordinate legal system (ordenamiento jurídico infra-constitucional), with the preventive aim of ensuring that this body of law does not enter the legal system in manifest violation of the constitutional powers of the Poder Judicial. He indicates that, because a priori constitutional review is a non-contentious constitutional proceeding (proceso constitucional no contencioso) in which there is no dispute or conflict of interests, denying the opportunity to process the submitted request and issue a ruling on the merits would only harm the democratic republican system, insofar as it would limit review of the rule’s constitutional conformity when there are no third parties who might assert rights or legitimate interests affected by the constitutional review conducted by the Sala Constitucional. He states that considering the merits of an institutional constitutional consultation such as the one submitted helps provide greater legal certainty (seguridad jurídica) for the legal relationships that may arise from the body of law being challenged and helps prevent subsequent conflicts of interest that could arise from unconstitutional provisions, liability of the State, and the burden of subsequent contentious constitutional proceedings that would be brought before the Sala Constitucional; it also enables the ex ante review wisely provided for by the legislature to be conducted. He considers that the submitted consultation transcends a mere interest in constitutional jurisdiction, insofar as such jurisdiction is a means of protecting future individual legal situations (situaciones jurídicas subjetivas), preventing and remedying violations of fundamental rights, and, above all, safeguarding the constitutional structure and logic established by the Asamblea Nacional Constituyente in the year 1949. He concludes by requesting that a ruling be issued accordingly.
6. 31By means of a document filed with the Secretariat of the Sala at 18:34 hours on 20 de julio de 2021, legislator Laura Guido Pérez and legislators Víctor Morales Mora, Luis Ramón Carranza, Nielsen Pérez, and Mario Castillo Méndez entered an appearance to state that they were addressing the various optional consultations on constitutionality (consultas facultativas de constitucionalidad) filed in connection with the “Ley Marco de Empleo Público” bill being processed under legislative expediente No. 21.336, for the purpose of clarifying and presenting arguments in favor of the bill. 1) Inadmissibility of the Optional Consultation on Constitutionality filed by the Corte Suprema de Justicia, expediente 21-012714-0007-CO and consolidated with expediente 21-011713-0007-CO: they consider that the consultation submitted by the Corte Suprema de Justicia pursuant to subsection 3 of article 96 of the Ley de la Jurisdicción Constitucional is inadmissible because it was filed out of time according to the Sala Constitucional’s own case law: a) the Plenary of the Asamblea Legislativa completed its consideration of all substantive, renewal, and reconsideration motions filed regarding the “Ley Marco de Empleo Público” bill, expediente 21.336, at ordinary session number 7 of 24 de mayo de 2021; b) the updated text of the bill was submitted to the Corte Suprema de Justicia for consultation through official letter AL-DSDI-OFI-2021 of 25 de mayo de 2021; c) by official letter No. SP-62-2021 of 3 de junio de 2021, the Corte Suprema de Justicia responded to the consultation submitted by the Asamblea Legislativa concerning the “Ley Marco de Empleo Público” bill, stating that, for its consideration and the appropriate purposes, it was transcribing the resolution adopted by the Corte Plena at ordinary session No. 22-2021 of 2 de junio de 2021; d) the “Ley Marco de Empleo Público” bill, expediente 21.336, was voted upon and approved on first reading on 17 de junio de 2021, as recorded in the minutes of ordinary session number 17 of the Plenary; the Presidency set 24 de junio de 2021 as the date for its second reading; e) the first-reading vote on the bill was widely publicized by the Asamblea Legislativa and by print, radio, and television media throughout the national territory; f) the first submission filed with the Sala Constitucional for the purpose of consulting on the constitutionality of the “Ley Marco de Empleo Público” bill was received on 17 de junio de 2021 at 17:31 hours; g) by interlocutory order (resolución interlocutoria) issued at 13:15 hours on 18 de junio de 2021, the Sala Constitucional acknowledged receipt of the aforementioned optional consultation and requested that the Asamblea Legislativa transmit legislative expediente number 21.336; h) by means of an unnumbered official letter dated 24 de junio de 2021, the Directorate of the Asamblea Legislativa transmitted legislative expediente number 21.336, corresponding to the “Ley Marco de Empleo Público” bill, which was received by the Sala Constitucional on 25 de junio de 2021 at 11:34 hours; i) by interlocutory order issued at 11:54 hours on 25 de junio de 2021, the Sala Constitucional acknowledged receipt of the requested certified copy of the legislative expediente, and the consultation was assigned to the chambers of Magistrate Fernando Cruz Castro, to whom consideration of the merits fell by rotation; j) the Optional Consultation on Constitutionality brought by the Corte Suprema de Justicia was filed with the Sala Constitucional at 11:45 hours on 1 de julio de 2021, in accordance with the first recital (resultando) of the Sala Constitucional’s interlocutory order issued at 9:15 hours on 2 de julio de 2021.They note that the Corte Suprema de Justicia’s written Optional Consultation was filed after the legislative expediente had been transmitted by the Asamblea Legislativa, even though the Corte Plena and its Presidency had been duly informed of the proceedings, the procedural stage, and the updated text of the “Ley Marco de Empleo Público” bill, expediente 21.336. They add that official letter SP-62-2021 of 3 de junio de 2021, transmitted by the Corte Suprema de Justicia, demonstrates a high degree of knowledge, as well as the fact that the male and female magistrates clearly understood their objections and the potential constitutional defects contained in the bill under discussion; that is, the Corte Plena had both the opportunity and a reasonable and prudent period within which to diligently file an optional consultation on constitutionality. In that regard, they emphasize that more than 3 weeks elapsed between the Corte Plena’s consideration, by consultation, of the bill’s updated text and the Sala Constitucional’s own receipt of the legislative expediente.They state that, in cases involving article 96 of the Ley de la Jurisdicción Constitucional, the case law of the Sala Constitucional has established that the various written consultations on a bill’s constitutionality must be filed, and may only be supplemented, before the legislative expediente is received by the Sala Constitucional (see judgments 2016-015712, 2018-019511, 2019-009220 and 2020-009185). They assert that, based on those precedents, the deadline for filing the various optional consultations on constitutionality constitutes a settled rule in the Sala Constitucional’s case law, which they consider appropriate and consistent with the Ley de la Jurisdicción Constitucional for the following reasons: a) the ability to file an optional consultation on constitutionality may constitute an important tool for legislative debate, but if it is not subject to limits, it may be used to obstruct legislative debate and prevent the expression of the will of parliamentary majorities, thereby violating the democratic principle.Accordingly, the one-month time limit established in article 101 of the Ley de la Jurisdicción Constitucional and the deadline for filing optional consultations on constitutionality are important to prevent this mechanism from being used for “Parliamentary Filibustering”; such abuse may be committed both by male and female legislators of the Asamblea Legislativa and by the other bodies authorized to file an optional consultation, namely the Defensoría de los Habitantes, the Corte Suprema de Justicia, or the Contraloría General de la República. They contend that the absence of this limit could mean, in this case or in the future, that the staggered filing of such submissions over time could serve to suspend indefinitely the vote on a bill at second reading or its enactment. b) The deadline established by the Sala Constitucional is consistent with the procedural nature of an optional consultation on constitutionality inasmuch as it is a highly expedited proceeding (proceso sumarísimo), is not binding as to the merits, and does not preclude the possibility that the challenged provisions may subsequently be contested through constitutional-review procedures, as established in articles 96 and 101 of the Ley de la Jurisdicción Constitucional.Therefore, declaring an optional consultation inadmissible because it was filed out of time does not constitute a denial of the right of access to justice for legislators or the other bodies, nor does it prevent the filing of an action of unconstitutionality (acción de inconstitucionalidad), which is a proceeding that does allow for considered and detailed analysis. They state that this demonstrates that the proceeding places particular emphasis on the mandatory nature of the one-month time limit with respect to the number of parties that may resort to it and even to the arguments presented in the various submissions. c) Article 101 of the Ley de la Jurisdicción Constitucional does not distinguish between optional and mandatory consultations (consultas preceptivas), nor does it distinguish among those authorized to file a consultation on constitutionality; therefore, the one-month time limit prescribed by the provision is the same in all cases.Accordingly, it would be inconsistent with the law for the rules and deadlines governing the filing of consultations on constitutionality to be applied differently depending on who files them. They state that, in view of the foregoing, they consider that the Optional Consultation on Constitutionality filed by the Corte Suprema de Justicia must be declared inadmissible because it was filed on 1 de julio de 2021, after the legislative expediente for the “Ley Marco de Empleo Público” bill had already been delivered by the Asamblea Legislativa and received by the Sala Constitucional. They point out that the Corte Suprema de Justicia had the opportunity and the reasonable period of more than 3 weeks to decide upon and timely file its consultation on constitutionality, in accordance with the parameters established by the Law and the case law of the Sala Constitucional; consequently, if it failed to comply with the statutory deadlines, this was due to a lack of foresight on the part of the Corte Plena and its authorities.They note that the Corte Suprema de Justicia cannot excuse itself on the ground that its response periods or deadlines are flexible because it is a collegiate body, since that pretext would be fallacious, given that the presiding officer of any collegiate body governed by public law may convene extraordinary sessions when matters subject to mandatory deadlines must be decided or for any other reason of force majeure. They add that, aside from the fact that it cannot plead ignorance of the law, the Corte cannot seek privileged procedural treatment from the Sala, because the Ley de la Jurisdicción Constitucional contains no provision whatsoever in that regard. They conclude by requesting that the arguments set forth above be considered and that the Optional Consultation on Constitutionality filed by the Corte Suprema de Justicia be declared inadmissible.
7. 32In these proceedings, the provisions of article 100 of the Ley de la Jurisdicción Constitucional have been observed, and this decision is issued within the period established by article 101 ibidem.

Drafted by Magistrate Picado Brenes, except for those recitals in which Magistrate Castillo Víquez is expressly identified as the drafter; and,

Whereas:

• A)PROCEDURAL MATTERS:

I. Preliminary matter.- (drafted by Magistrate Castillo Víquez)

We, the undersigned authors of this advisory opinion (opinión consultiva), place on record that, in this case, there are justified reasons not to raise any recusal (inhibitoria), even though the bill under consultation affects us. First, this is a law of general application affecting all public employees, except those who work for public enterprises operating under a competitive regime; thus, it affects us both in our capacity as permanent and alternate justices and as persons who teach at public universities. Second, because the provisions contained in the bill affect both permanent and alternate justices—the latter because they are paid a salary for substitutions beginning on the first day—it is logical to assume from the outset that all of us have grounds for recusal. Therefore, pursuant to section 29 of the Ley Orgánica del Poder Judicial, the Court must be constituted by the same permanent and alternate justices who originally comprised it.

In other words, it makes no sense for all of us to recuse ourselves, a procedure that could take three to five months, only to return to the same starting point, particularly because, in this case, Article 101 of the Ley de la Jurisdicción Constitucional establishes a period of one month to decide the optional constitutional consultation (consulta de constitucionalidad facultativa), beginning upon receipt or consolidation of the legislative case files, except where there are grounds for interruption. It is also logical to assume that most permanent and alternate justices have close relatives—children, siblings, brothers- or sisters-in-law, etc.—and would therefore also have grounds for recusal, which would once again mean that the Court would be left almost entirely without members. Furthermore, at session N°22-2021 of the Corte Suprema de Justicia, held on 02 de junio de 2021, sole article, alternate justices José Paulino Hernández Gutiérrez, Mauricio Chacón Jiménez, and Ronald Salazar Murillo participated in the discussion of the bill under consultation.

Likewise, at session N°27-2021 of 30 de junio de 2021 of that body, Article I, alternate justices Lucila Monge Pizarro, José Paulino Hernández Gutiérrez, Mauricio Chacón Jiménez, Alejandro Delgado Faith, and Hubert Fernández Argüello participated in the session at which it was agreed to submit an optional constitutional consultation to the Sala Constitucional. They therefore have already expressed an opinion and, consequently, could not and should not sit on the Court that will decide the consolidated constitutional consultations. Finally, and no less importantly, it must be borne in mind that the fact that some alternate justices are practicing attorneys does not undermine the foregoing, for the simple reason that they are public officials and, when they serve as justices, the provisions under consultation also affect them, since they receive a salary beginning on the first day of substitution.

Accordingly, all permanent justices should hear this matter; the only recusal submitted and accepted was that of permanent justice Fernando Cruz Castro, because, in his capacity as President of the Corte Suprema de Justicia, he had already expressed an opinion regarding the bill under consultation. Moreover, it should be noted that this same justice, representing the entire Corte Suprema de Justicia, independently submitted an optional consultation. He therefore cannot serve simultaneously as a party and as a judge in this case. Alternate justice Ana María Picado Brenes was appointed to replace Justice Cruz Castro.

II. Admissibility (admisibilidad) of the optional constitutional consultations submitted.-

In accordance with the Ley de la Jurisdicción Constitucional, this Constitutional Court may exercise prior advisory review (opinión consultiva previa) over legislative bills. Among the different types of constitutional consultation (consulta de constitucionalidad) is the optional consultation provided for in subsection b) of Article 96 of that law, which may be submitted by members of the Asamblea Legislativa subject to the requirements stated below. There is also the optional consultation provided for in subsection c) of Article 96 of that law, which may be submitted by the Corte Suprema de Justicia regarding matters related to its constitutional jurisdiction (competencia constitucional). In this case, there are three optional consultations submitted by legislators and one consultation submitted by the President of the Corte Suprema de Justicia. The four consultations were consolidated (acumuladas) into this case file by rulings (resoluciones) numbers 2021-15105, 2021-15137, and 2021-15240, dated 02 de julio del 2021. The admissibility of each of these submissions will be examined separately.

• 1)Admissibility of the optional consultations submitted by the legislators (art.96.b of the Ley de la Jurisdicción Constitucional).- Through three separate briefs, legislators of the Asamblea Legislativa submitted three optional legislative consultations (consultas facultativas legislativas) to the Sala Constitucional. The admissibility of each consultation is examined individually.
• a)Optional consultation, case file n°21-011713-0007-CO:

On 17 de junio del 2021, a brief signed by 15 legislators (of which 14 signatures remained valid) submitted the first optional constitutional consultation, which was assigned case file number 21-011713-0007-CO. This consultation, submitted under art.96.b) of the Ley de la Jurisdicción Constitucional, must satisfy two requirements to be admissible: it must be submitted by no fewer than ten legislators, and it must be submitted after the bill under consultation has been approved on first reading (primer debate), or earlier if the Asamblea Legislativa is subject to a constitutional or procedural deadline for voting on it. Given that the first reading took place during ordinary session n°17 of 17 de junio del 2021 and that this consultation was submitted during the afternoon of that day, and given that 14 legislators ultimately signed the consultation, it fully satisfies the aforementioned requirements.

It should be noted that the initial brief was signed by 15 legislators. Subsequently, before the legislative case file was received (on 25 de junio, the date that this Chamber has treated as the deadline for briefs of this kind, pursuant to voto n°2018-019511 and 2014-012887), on 17 and 18 de junio, two legislators requested that their signatures be deemed withdrawn—legislator Mario Castillo Méndez and legislator Zoila Rosa Volio Pacheco—and those withdrawals are deemed valid. Thereafter, on 21 de junio, a new legislator, Dragos Dolanescu Valenciano, requested—also before the legislative case file was received—that his signature be added to the consultation, and that addition is deemed valid. At that point, there were a total of 14 valid signatures. It must be taken into account that the signature of legislator Aracelly Salas Eduarte appears on both this consultation and the second one; because it cannot be deemed admitted for both consultations—under the case law (jurisprudencia) of this Chamber—it is admitted as valid only for this first consultation.

The partial withdrawals of signatures submitted on 30 de junio by three legislators—Sylvia Patricia Villegas, Walter Muñoz, and Shirley Díaz Mejías—are not admitted because, regardless of when they are made, partial withdrawals of signatures are inadmissible before this Chamber. When a person signs a consultation, that person signs it in its entirety; accordingly, neither a partial signature nor a partial withdrawal is permitted, whether before or after receipt of the legislative case file.

Therefore, this consultation is deemed admitted with the signatures of 14 legislators, a number satisfying the aforementioned requirement that it be submitted by a minimum of 10 legislators.

• b)Optional consultation, case file n°21-011915-0007-CO:

The second optional consultation submitted by legislators was received by this Chamber at 08:11 hours on 22 de junio del 2021. The filing brief (escrito de interposición) bears the signatures of 10 legislators, all 10 of which remained valid. It was processed under case file n°21-011915-0007-CO and consolidated into this case file by ruling number 2021-015105 at 9:15 hours on 2 de julio de 2021. The following facts are observed: the consultation was initially submitted by 10 legislators. Because one of the legislators, Aracelly Salas Eduarte, also signed the first consultation, n°21-011713-0007-CO, this Chamber deems the first signature valid and, therefore, deems her signature not to have been submitted in this second consultation, leaving nine valid signatures. Subsequently, however, one legislator, Melvin Núñez Piña, joined this consultation through a brief submitted on 23 de junio, before the legislative case file was received. Accordingly, this consultation is deemed submitted with the signatures of 10 legislators, a number satisfying the aforementioned requirement that it be submitted by a minimum of 10 legislators.

• c)Optional consultation, case file n°21-012118-0007-CO:

The third optional consultation submitted by legislators was received by this Chamber at 18:47 hours on 23 de junio del 2021, bearing the signatures of 10 legislators. It was processed under case file n°21-012118-0007-CO and consolidated into this case file by ruling number 2021-015137 at 9:15 hours on 2 de julio de 2021. Therefore, the minimum number of 10 legislators is satisfied. That number is unchanged by the fact that one legislator, Zoila Rosa Volio, signed the first consultation, because her signature was deemed withdrawn from that first consultation by a brief dated 18 de junio, before the legislative case file was received; accordingly, nothing prevented her signature from being admitted for this consultation. Moreover, because another legislator, Paola Valladares, requested withdrawal of her signature on 07 de julio, after the legislative case file had been submitted, her withdrawal cannot be admitted, and this consultation therefore retains the signatures of 10 legislators.

Accordingly, the first two consultations are unanimously deemed admissible, and the third consultation is deemed admissible by majority vote. This is because the three submitted consultations satisfy both aforementioned requirements. All were submitted by at least 10 legislators, and all were submitted after the bill was approved on first reading. Moreover, regarding the sequence requirement (requisito de orden) established by this Chamber in such cases, all were submitted before the legislative case file was submitted to this Chamber—that is, before 25 de junio del 2021. In conclusion, the three foregoing consultations are deemed admitted.

Separate reasoning (razones diferentes) of Justice Rueda Leal regarding the admissibility of the consultation in case file n.° 21-011713-0007-CO.

I note that, in judgment (sentencia) n.° 2014-012887 at 14:30 hours on 8 de agosto de 2014, together with Justices Cruz Castro and Salazar Alvarado, I expressed the following view:

“XV.- Note by Justices Cruz Castro, Rueda Leal, and Salazar Alvarado regarding the withdrawal of signatures (authored by Justice Rueda Leal).- A situation that arose 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 does not concern an issue challenged in or having a major impact on this legislative consultation proceeding, it has nonetheless become clearly apparent and, in our view, must be addressed. It is necessary to examine what occurred in this case file to fully understand the signatories’ observation.

The first constitutional review consultation (consulta de constitucionalidad) was filed on 22 de abril de 2014 by Nombre02, 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 legislators).

On 28 de abril de 2014, Rodolfo Sotomayor Aguilar withdrew his signature; Carlos Góngora Fuentes and José Joaquín Porras Contreras did the same on 29 de abril de 2014 through separate filings. That same day, María Eugenia Venegas Renauld and Damaris Quintana Porras added their signatures to the consultation through separate written submissions.

As for the second consultation, it was filed on 29 de abril de 2014 by Nombre03, 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 legislators). That same day, Fabio Molina Rojas, María Ocampo Baltodano and Víctor Hugo Víquez Chaverri withdrew their signatures and, a few hours later, added them again. Subsequently, on 2 de junio de 2014, by then former legislators, María Ocampo Baltodano and Víctor Hugo Víquez Chaverri withdrew their signatures from the consultation.

The Chamber has addressed the procedural good faith (buena fe procesal) that must prevail in optional consultation proceedings (procedimientos de consulta facultativa):

“… In this regard, this jurisdiction is of the view that, on the first occasion on which legislators file an optional legislative consultation (consulta legislativa facultativa), they must identify each and every constitutional defect—both procedural and substantive—that they believe to be present in the bill. Otherwise, the optional legislative consultation would be used as a means of improperly prolonging the legislative procedure, thereby distorting its purposes. The need to raise all possible constitutional defects in a single consultation also derives from the procedural loyalty and good faith that must prevail when using any mechanism provided by the legal system to subject particular conduct to judicial review. Considerations of legislative procedural economy also compel this new position, because legislators could otherwise file as many optional legislative consultations regarding a bill that has undergone no essential or substantial amendments as they deemed necessary, giving rise to an endless chain of consultations.

It must be borne in mind, as prescribed by section 101, paragraph 2°, of the Ley de la Jurisdicción Constitucional, that the opinion issued by the Constitutional Chamber in the consultation ‘In any event, does not preclude the possibility that the challenged provision or provisions may subsequently be contested through constitutional review mechanisms.’ Consequently, from now on, this Chamber will consider a new legislative consultation only where, after the bill has been returned to the legislative process—once, of course, the first such consultation has been heard by this judicial body—it has undergone substantial modifications or amendments.” (Judgment number 2011-14965, issued at 9:34 hours on 2 de noviembre de 2011) Allowing consultations for constitutional review to be freely withdrawn creates opportunities for situations in which, contrary to procedural good faith, legislators’ signatures are withdrawn or added according to each legislator’s or political party’s parliamentary strategy, rather than, as should be the case, out of a sincere interest in safeguarding the constitutionality of the bill.

In our opinion, defects of this kind lead to a corruption of the optional constitutional review consultation mechanism (consulta facultativa de constitucionalidad), insofar as they subject it to the fluctuations and vicissitudes of politics. In other words, using the optional parliamentary consultation (consulta parlamentaria facultativa) for purposes of legislative tactics contributes to the judicialization of politics, whereas judicial independence and the separation of powers require that the Judiciary and, as part of it, the Constitutional Chamber protect themselves from that phenomenon to the greatest extent possible.

Moreover, we, the undersigned, emphasize that, with respect to constitutional challenges (acciones de inconstitucionalidad), it has been established that “there is no provision authorizing the withdrawal of a constitutional challenge” (judgments numbers 2013-008946, issued at 14:30 hours on 3 de julio de 2013; 2013-004620, at 14:30 hours thirty on 10 de abril de 2013; and 2013-005095, issued at 14:30 hours on 17 de abril de 2013). By virtue of the foregoing, and placing particular emphasis on the need to protect the Constitutional Chamber from political contingencies, we consider that legislative consultations filed in compliance with the requirement of section 96(b) of the Ley de la Jurisdicción Constitucional must be processed as appropriate, disregarding any requests to withdraw signatures that may subsequently be filed.” (Emphasis not in the original).

In the sub examine, I find that this consultation was originally filed by 15 legislators, including legislator Mario Castillo Méndez and legislator Zoila Rosa Volio Pacheco. Subsequently, on 17 y 18 de junio, they requested the withdrawal of their signatures from this consultation. Applying the case law quoted above, I consider the withdrawal of those signatures inadmissible and therefore conclude that they must be included in the total number of signatures.

Separate note by Justice Garro Vargas concerning the admissibility of the consultation processed under expediente n°21-011713-0007-CO I have considered it necessary to set forth this separate note to clarify my position regarding the statements made by the legislators who sought a “partial withdrawal” of the legislative consultation concerning expediente n.°21-011713-0007-CO.

Because it was established that this expression of intent was submitted after receipt of the complete certified copy of the legislative record—from which point onward the Chamber rejects the possibility of withdrawing signatures—I consider it unnecessary for this Court to rule on whether such a withdrawal is admissible in itself. Nevertheless, I agree with the majority of the Chamber that partial withdrawals (that is, withdrawals concerning the content) are not permitted in legislative consultations submitted to the Constitutional Chamber.

Separate reasons of Justice Hernández López regarding the admissibility of the second consultation, expediente n°21-11915-007-CO Since judgment 2014-012887, I have consistently maintained that legislators’ repeated signatures on different consultations filed within the applicable time limit (that is, before receipt of the record) are admissible insofar as those consultations raise new issues not originally presented in the previous consultation. From my perspective, the participation of the same legislator in different consultations is not restricted by law, and therefore the Chamber cannot, through interpretation, obstruct the exercise of that authority granted to members of the Legislative Branch. I consider that the Chamber must not distinguish where the law does not distinguish, much less through a restrictive interpretation that limits the exercise of this power.

Separate reasons of Justice Garro Vargas concerning the admissibility of the consultation processed under expediente n°21-011915-0007-CO In this particular case, and upon further consideration, I depart from the Chamber’s majority position because I believe that a legislator may sign a new optional constitutional review consultation even if that legislator has signed another consultation concerning the same bill. This is subject to the understanding that the signature on the previous consultation is deemed not to have been affixed. In other words, an expression of intent by which a subsequent legislative consultation is signed entails treating the previous signature as withdrawn. All of this may be done only before receipt of the complete certified copy of the legislative record, after which the withdrawal or addition of signatures becomes inadmissible.

This interpretation seeks to satisfy the requirements imposed by the Chamber, in the sense that a legislator may not simultaneously sign more than one legislative consultation, while also safeguarding that legislator’s most recent expression of intent.

In support of the foregoing, I believe the following must be considered: legislators are permitted to withdraw their signatures or join a consultation already filed, provided they do so before receipt of the complete certified copy of the legislative record. On the other hand, as the Chamber is now ruling, the partial withdrawal of a consultation already filed is not permitted. It is therefore logical to recognize their ability to sign a subsequent consultation that may be more closely aligned with their convictions and interests. In that case, the legislator is understood to have implicitly withdrawn their signature from the consultation previously filed.

What is not admissible—and on this point I agree with the majority of the Chamber—is simultaneous participation. That is, a subsequent consultation may not be signed while the signature on the consultation filed earlier is retained and counted.

The interpretation I propose complies with the legislature’s rationale in imposing a minimum requirement of ten signatures for the admissibility of an optional constitutional review consultation; at the same time, it respects the legislator’s intent or autonomy by recognizing their most recent formal expression of intent as valid. In this regard, I consider it appropriate to recall what this Court has stated on previous occasions:

“The Court, recognizing the right of legislators to submit consultations, has extensively exercised its jurisdiction by responding to the optional legislative consultations submitted to it, but that right must be exercised in the terms established by the law governing the Jurisdiction, in an orderly and reasoned manner; allowing indiscriminate access could distort the proceeding and turn it into an abuse of that right, since logic would then require the conclusion that as many consultations may be filed as there are possible combinations of ten legislators” (see advisory opinion n.°2000-03220, a standard subsequently reiterated in 2014-12887, 2016-9874 and 2018-019511).

Consequently, legislators may legitimately sign only one optional constitutional review consultation, not several; if this situation arises, only their last signature is deemed effective because it constitutes their most recent expression of intent. They would be understood to have tacitly withdrawn from the first legislative consultation. These changes, I emphasize, are valid only if completed before this Constitutional Chamber receives the complete certified copy of the legislative record.

Separate note by Justice Picado Brenes concerning the admissibility of the consultation filed through expediente n°21-011915-0007-CO (point 2 of the Por Tanto) Regarding the second optional consultation submitted by members of the Legislative Assembly, received by this Chamber at 08:11 hours on 22 de junio del 2021, it is noted that Deputy Melvin Núñez Piña joined this consultation by a written submission filed on 23 de junio. In other words, he joined before the legislative record reached the Chamber. In this regard, I consider Deputy Melvin Núñez’s joinder to be admissible, precisely because it was submitted before the legislative record arrived. Had the joinder been submitted after 25 de junio—the date on which the legislative record was received by the Chamber—it could not have been admitted.

Dissenting opinion of Justice Castillo Víquez regarding expediente n°21-012118-0007-CO Consistent with my voting position (see, among others, advisory opinion (opinión consultiva) n.° 2014-012887), I declare the third constitutional consultation (consulta de constitucionalidad) unanswerable, given that a deputy withdrew her signature from the consultation on 7 de julio of the current year and, consequently, the consultation is left with only nine signatures. Therefore, I take the position 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; this constitutes supervening inadmissibility (inadmisibilidad sobreviniente). The foregoing does not mean that I will refrain from participating in the discussion and vote on conscientious objection (objeción de conciencia), since this issue is raised in the first optional constitutional consultation (consulta de constitucionalidad facultativa), which was admitted.

Dissenting opinion of Justice Rueda Leal regarding the consultation filed in expediente n.° 21-012118-0007-CO.

As I stated in my separate reasons addressing the admissibility of expediente n.° 21-011713-0007-CO, I consider the withdrawal of deputies’ signatures in legislative consultations (consultas legislativas) to be procedurally improper. For this reason, I reiterate that I reject Deputy Zoila Rosa Volio Pacheco’s withdrawal of her signature from consultation n.° 21-011713-0007-CO. Because her signature must be added to that consultation, it cannot then be deemed valid for expediente n.° 21-012118-0007-CO, which means that the latter is left with only nine signatures (including that of Deputy Paola Valladares, whose withdrawal I likewise reject). That number is insufficient to satisfy the admissibility requirement established by section 96 subsection b) of the Ley de la Jurisdicción Constitucional, which requires the signatures of 10 deputies. Accordingly, I declare this consultation unanswerable.

Note by Justice Salazar Alvarado regarding the admissibility of the Legislative Consultation.

In Judgment N° 2014-012887 of 14:30 hours on 8 de agosto de 2014, together with Justices Cruz Castro and Rueda Leal, I joined the following note regarding the withdrawal of signatures during a legislative-consultation proceeding:

“XV.- Note by Justices Cruz Castro, Rueda Leal, and Salazar Alvarado regarding the withdrawal of signatures (Drafted by Justice Rueda Leal).- “A situation that arose during the processing of this case has drawn the attention of the undersigned Justices. As a result, we have deemed it necessary to include this note because, although the matter was neither challenged nor of major significance in this legislative-consultation proceeding, it has nevertheless become clearly apparent and, in our view, must be addressed. It is necessary to examine what occurred in this case to fully understand the signatories’ observation.

“The first constitutional consultation was filed on 22 de abril de 2014 by Nombre02, 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 28 de abril de 2014, Rodolfo Sotomayor Aguilar withdrew his signature; Carlos Góngora Fuentes and José Joaquín Porras Contreras did the same on 29 de abril de 2014 through separate submissions. On that same day, María Eugenia Venegas Renauld and Damaris Quintana Porras added their signatures to the consultation in separate written submissions.

“As for the second consultation, it was filed on 29 de abril de 2014 by Nombre03, 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). On that same day, Fabio Molina Rojas, María Ocampo Baltodano, and Víctor Hugo Víquez Chaverri withdrew their signatures and, a few hours later, added them again. Subsequently, on 2 de junio de 2014, when they were already former deputies, María Ocampo Baltodano and Víctor Hugo Víquez Chaverri withdrew their signatures from the consultation.

“The Chamber has addressed the procedural good faith (buena fe procesal) that must govern optional-consultation proceedings:

“… In that regard, this jurisdiction takes the view that, on the first occasion on which the Deputies file an optional legislative consultation (consulta legislativa facultativa), they must identify each and every constitutional defect—both procedural and substantive—that they believe to be present in the bill. Otherwise, the optional legislative consultation would be used as an instrument to unduly prolong the legislative procedure, thereby distorting its purposes. The need to raise all potential constitutional defects in a single consultation also stems from the procedural loyalty and good faith (lealtad y buena fe procesales) that must govern the use of any mechanism provided by the legal system to subject particular conduct to judicial review (fiscalización jurisdiccional). Considerations of legislative procedural economy (economía procedimental legislativa) also support this new position, because deputies could otherwise file as many optional legislative consultations concerning a bill that has undergone no essential or substantial amendments as they deemed necessary, giving rise to an endless chain of consultations.

Consideration must be given to the fact that, as prescribed by section 101, paragraph 2°, of the Ley de la Jurisdicción Constitucional, the opinion issued by the Constitutional Chamber in the consultation, ‘In any event, does not preclude the possibility that the challenged provision or provisions may subsequently be contested through constitutional-review procedures.’ Consequently, henceforth, this Chamber will answer a new legislative consultation only when, after the bill has been returned to the legislative process—once, of course, the first such consultation has been decided by this judicial body—substantial modifications or amendments have been made to it.” (Judgment number 2011-14965 of 9:34 hours on 2 de noviembre de 2011).

“Allowing consultations on constitutionality to be freely withdrawn opens the door to situations in which, contrary to procedural good faith, deputies’ signatures are withdrawn or added according to the parliamentary strategy of each legislator or political party, rather than, as should be the case, out of a sincere interest in safeguarding the bill’s constitutionality. In our opinion, defects of this kind lead to a perversion of the optional constitutional-consultation mechanism, insofar as they subject it to the shifts and vicissitudes of politics. In other words, using optional parliamentary consultation (consulta parlamentaria facultativa) for purposes of legislative tactics contributes to the judicialization of politics (judicialización de la política), whereas judicial independence and the separation of powers require the Judiciary and, as part of it, the Constitutional Chamber to be protected from this phenomenon to the greatest extent possible.

“Moreover, the undersigned emphasize that, with respect to constitutional challenges (acciones de inconstitucionalidad), it has been established that ‘there is no provision authorizing the withdrawal of a constitutional challenge’ (judgments numbers 2013-008946 of 14:30 hours on 3 de julio de 2013, 2013-004620 at 14:30 hours thirty on 10 de abril de 2013, and 2013-005095 of 14:30 hours on 17 de abril de 2013). In view of the foregoing, and with particular emphasis on the need to protect the Constitutional Chamber from political influences, we consider that legislative consultations filed in compliance with the requirement of article 96 subsection b) of the Ley de la Jurisdicción Constitucional must be processed as appropriate, disregarding any subsequent applications to withdraw signatures.” Later, in Judgment N° 2016-004651 of 12:40 hours on 6 de abril de 2016, I included another note clarifying the scope of my position on the issue, in the following terms:

“Although, in Judgment N° 2014-12887, of 14:30 hours, on 8 de agosto de 2014, I joined a note with Justices Cruz Castro and Rueda Leal regarding the withdrawal of signatures from a legislative consultation on constitutionality, in the case under review, in which the petitioner withdraws the present constitutional challenge, I agree with the majority opinion, which deems the challenge withdrawn because it had not yet been admitted for consideration when the claimant filed the withdrawal, having obtained a judgment of acquittal in his favor; hence the—essential—difference from the note joined in that consultation. Therefore, it goes without saying that, in the undersigned’s view, it is procedurally permissible to withdraw a constitutional challenge so long as it has not been admitted for consideration, as occurred here.” It follows from the cited notes that, both in optional legislative consultations on constitutionality and in constitutional-challenge proceedings, the undersigned considers the withdrawal of signatures or the withdrawal of the proceeding—as applicable—to be valid, provided that it occurs before the Chamber receives the certified copy of the legislative record (in an optional legislative consultation) or before the matter has been admitted for consideration (in a constitutional challenge).

In the same vein, in a legislative consultation on constitutionality, a signature may validly be withdrawn before the Chamber receives the certified copy of the legislative record—the point at which the one-month period for issuing a decision begins—and any deputy who, before this Court receives that certified copy of the legislative record, requests to be recognized as a signatory to the consultation must likewise be validly deemed a consulting party (consultante).

In legislative consultation (consulta legislativa) N° 21-11713-0007-CO, the record shows that it was initially submitted by a total of fifteen deputies, of whom Deputy Mario Castillo Méndez withdrew his signature on 17 de junio, and Deputy Zoila Rosa Volio Pacheco retracted hers on 18 de junio; in turn, Deputy Dragos Dolanescu Valenciano requested that he be deemed a signatory to the consultation on 21de junio pasado. All of the foregoing—the withdrawal and submission of signatures—occurred before legislative file (expediente legislativo) N° 21.336 was received. In this regard, there is no impediment to either deputy withdrawing his or her signature from the optional consultation (consulta facultativa) that they submitted at the appropriate procedural stage, as explained above. Nor do I find any impediment to deeming Deputy Dolanescu Valenciano a signatory to the consultation. Those applications were filed before the legislative file was received on 25 de junio pasado.

Subsequently, as explained below, Deputy Aracelly Salas Eduarte signed a second legislative consultation (N° 21-11915-0007-CO, which affects only her participation in this legislative consultation). That said, the consultation before us remains validly signed by fourteen deputies. Finally, I agree that a request to withdraw partially from any issue raised in the consultation (conscientious objection (objeción de conciencia)) must be denied if submitted after the file has been received, as occurred with the statements made by Deputy Sylvia Patricia Villegas Álvarez and Deputy Walter Muñoz Céspedes in applications dated 30 de junio pasado.

Regarding legislative consultation N° 21-11915-0007-CO, it was submitted by ten deputies. Although Deputy Aracelly Salas Eduarte had also signed legislative consultation N° 21-11713-0007-CO, it is important to maintain the consulting party’s obligation to identify each and every constitutional defect (vicio constitucional)—both procedural and substantive—that they consider to be present in the bill. The aim is to prevent the optional legislative consultation from being used to prolong the legislative procedure, thereby defeating its purpose. In this regard, the reasons given in the notes transcribed above must be reiterated. Accordingly, in the undersigned’s view, Deputy Salas Eduarte’s signature would be admissible for the first consultation, but not for the second. Consequently, I consider the latter admissible with the ten signatures, including that of Deputy Melvin Núñez Piña when he submitted it on 23 de junio; that is, before 25 de junio, when the legislative file was received by the Chamber.

Finally, regarding legislative consultation N° 21-12118-0007-CO, I agree with the majority of the Chamber that the withdrawal of Deputy Paola Valladares Rosado’s signature cannot be accepted, because the request was submitted on 7 de julio pasado, when the legislative file had plainly already been provided to the Constitutional Chamber on 25 de junio pasado. In other words, the request to withdraw her signature is inadmissible under the settled standard set forth above. As for the issue of Deputy Zoila Rosa Volio Pacheco’s signature appearing again (in both the first and this final legislative consultation), I consider it admissible, because it is sufficient to note that the request to exclude her from the first consultation was submitted on 18 de junio and that her subsequent decision to support the final legislative consultation is valid because it occurred before the legislative file was received. It should be noted that this final legislative consultation was received on 23 de junio, after the withdrawal request (18 de junio) and before the legislative file was received on 25.

For all the foregoing reasons, they should properly be deemed consulting parties (consultantes), except for Deputy Castillo Méndez, in accordance with the reasoning stated above.

• 2)Admissibility of the optional consultation submitted by the President of the Corte Suprema de Justicia (art.96.c of the Ley de la Jurisdicción Constitucional).- (drafted by Justice Castillo Víquez) By majority vote, the special optional constitutional consultation (consulta de constitucionalidad facultativa especial) submitted by the Corte Suprema de Justicia is declared incapable of being answered, for the reasons explained below. First, it must be borne in mind that the Constitutional Chamber has a one-month period established by law within which to answer an admitted consultation. Accordingly, and to prevent the advisory-opinion proceeding (trámite de la opinión consultiva) from becoming an obstacle to Parliament’s exercise of legislative authority, this Court must establish a starting point for that period in order to determine with certainty the final day on which the consultation may be answered.

For that reason, the Constitutional Chamber has established that the period begins upon receipt of the legislative file or upon consolidation (acumulación); after either of those events, no new consultations may be admitted, whether submitted by deputies or by other bodies external to Parliament. Second, it is clear that the Corte Suprema de Justicia is aware of this Court’s position—which has been consistently reiterated in its case law—and, particularly because both the original and final versions of the bill were submitted to this branch of government for constitutional consultation pursuant to numeral 167 of the Constitution, it is clear that the Corte Suprema de Justicia had sufficient time to submit the consultation before the legislative file was received or the consultations were consolidated. Finally, if the starting date of the period defined by the Chamber were postponed because external bodies submitted new special optional constitutional consultations, the period could be extended by as much as five months.

This would not only violate numeral 101 of the Ley de la Jurisdicción Constitucional, but would also constitute undue interference with the bill’s progress through the parliamentary procedure, compounded by the fact that political circumstances and timing in the Asamblea Legislativa are changing and volatile and could therefore, in many cases, derail the agreements reached in the Asamblea Legislativa. Accordingly, for the reasons stated above, the consultation submitted by the Corte Suprema de Justicia cannot be answered because it was filed out of time.

Dissenting opinion (voto salvado) of Justices Garro Vargas and Picado Brenes, who would admit the consultation (drafted by the latter) This consultation submitted by the Corte Suprema de Justicia is made pursuant to art.96.c) of the Ley de la Jurisdicción Constitucional. Under that provision, it must meet the following requirements to be admissible: it must concern a legislative bill (subject matter); it must be submitted by the body authorized to do so (party); it must be submitted after the bill has been approved on first reading (timing); it must be set forth in a reasoned written submission specifying the matters challenged (form); and the matters submitted for consultation must relate to aspects connected with its constitutional jurisdiction. In this case, the consultation submitted by the Corte Suprema de Justicia fully satisfies all the foregoing requirements: the consultation concerns the bill entitled “FRAMEWORK LAW ON PUBLIC EMPLOYMENT,” which is being processed under legislative expediente n° 21.336; it was submitted by the Presidente de la Corte Suprema de Justicia pursuant to Article I of the resolution adopted at Corte Plena session number 27-2021 of 30 de junio del 2021.

Moreover, it was submitted after the bill had been approved on first reading (which occurred on 17 de junio del 2021) and in a reasoned written submission. Likewise, the matters submitted for consultation concern aspects of the bill related to the constitutional jurisdiction of the Corte Suprema de Justicia. It is important to examine more deeply the significance of this type of consultation for constitutional law (Derecho de la Constitución). Through prior constitutional review (control previo de constitucionalidad), the legislature has enabled several bodies—relevant to our democratic system—to submit consultations and thereby prevent bills that are constitutionally defective in substance or form from becoming part of the positive legal order (ordenamiento positivo). Thus, in addition to the members of the Legislative Assembly, the legislature authorized the following bodies to submit consultations through which the Sala would exercise prior review: the Corte Suprema de Justicia, the Tribunal Supremo de Elecciones, the Contraloría General de la República, and the Defensoría de los Habitantes.

In the specific case of the Corte Suprema de Justicia, it is understood that a consultation may concern bills or motions incorporated into them when, in their processing, content, or effects, the principles or rules relating to its respective constitutional jurisdiction are deemed to have been improperly disregarded, interpreted, or applied. It should be noted that this grants one of the Branches of the Republic the opportunity to prevent the approval of a bill that it considers contrary to its constitutional powers. As Alexander Hamilton (one of the founding fathers of the United States) stated at the time in his essay The Federalist No. 78, and as legal scholarship now recognizes, the Judiciary 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.” Accordingly, this is one of the few powers that the legislature has granted the Judiciary to ensure respect for its constitutional powers before a provision is enacted as a law of the Republic.

There is, however, a relevant point that must be emphasized. A situation had arisen in practice: several groups of legislators submitted multiple legislative consultations (consultas legislativas) concerning the same bill at different times, extending almost ad infinitum the one-month period available to the Sala Constitucional to issue its ruling. Thus, in view of the absence of legislation regulating the maximum period available to legislators to submit consultations and the point from which the one-month period for ruling on a consultation began to run, this Sala determined, through constitutional case law (jurisprudencia constitucional), that it would regulate the situation and established that the period for answering the consultation began to run after the date on which the certified copy of the legislative expediente was deemed received; consequently, no new optional consultations (consultas facultativas) could be deemed admissible thereafter.

It should be noted, however, that this restriction applied only to consultations submitted by legislators (art.96.b), since nearly all the consultations submitted throughout the more than 30-year history of this Sala Constitucional had been submitted by legislators. It should also be noted that the one-month period available to this Sala to rule on a consultation has been deemed to begin upon receipt of the legislative expediente, but also upon consolidation (acumulación) (see ruling n°2017-009690) or upon receipt of a request for evidence to assist in adjudication (prueba para mejor resolver) (see ruling n°2014-003969). Therefore, the time at which the Sala deems the legislative expediente received cannot be treated as the sole criterion for beginning to calculate the one-month period, nor can it be applied as a restriction or limitations period (plazo de caducidad) governing the admissibility of other types of consultations submitted pursuant to other subsections of art.96 of the Ley de la Jurisdicción Constitucional.

First, the date on which the legislative expediente is deemed received was established by case law as a restriction on the receipt of new legislative consultations due to the practical situation described above involving legislators; it is therefore inapplicable to other circumstances unrelated to legislative consultations submitted by legislators. It should be noted that the date on which the one-month period for issuing a ruling begins is one matter, whereas the expiration of the power to submit new consultations is another. The one-month period may begin when the legislative expediente is received, but it may also begin, in other cases, on the date of the Sala’s decision on consolidation or on the date evidence ordered to assist in adjudication is received. It is true that, through case law, this Sala has specified the point from which its one-month period for ruling on a consultation begins to run; however, as noted, it did so in response to the particular situation that had arisen with consultations submitted by legislators. For example, this approach was followed when the following was stated in ruling n°2007-009469:

“…this Sala must state that the application included at folio 841 of the expediente, through which the consulting legislators seek to expand the arguments of the consultation to include other matters not raised in their initial submission, is inadmissible. This is so not only because there is no statutory provision authorizing them to make such an expansion, but also because it would be impossible for this Court to comply with the one-month period available to it for issuing a ruling if new arguments or matters requiring a response could be submitted at any time. It should be noted that the consulting parties are not appearing in connection with supervening matters that arose after the initial document was submitted; instead, they seek to have the Sala assess new arguments that they did not submit initially, which is improper for the reasons stated.” Second, the maximum period within which another Branch of the Republic, such as the Judiciary, may exercise its statutory authority to submit an optional constitutional consultation (consulta facultativa de constitucionalidad) on its own behalf cannot be made dependent on an act of the Presidente de la Asamblea Legislativa (the date on which a copy of the legislative expediente is sent to the Sala Constitucional).

It should be noted that if such an argument were accepted, one Branch of the Republic (Asamblea Legislativa) could very easily prevent another (Poder Judicial) from seeking this prior constitutional review, and the statutory authority granted to the Judiciary would be rendered ineffective in practice. This would occur in the possible event that, when a legislative consultation is submitted on a particular date, the Asamblea Legislativa submits a certified copy of the legislative expediente in that same act. Furthermore, this minority is mindful of what could occur in practice regarding the time required to draft a consultation, since several days may elapse between the bill’s approval on first reading and the time when the Comisión de Redacción makes it available to the public, making immediate access to the text as approved difficult and thereby delaying any consultation that another authorized body might wish to submit, since that body must have before it the text exactly as approved in order to do so.

Moreover, it should be noted that the order issued by the Presidencia de la Sala Constitucional when it deems a consultation received is served only on the Asamblea Legislativa, not on the other bodies authorized by the Ley de la Jurisdicción Constitucional to submit consultations on their own behalf. Thus, those other bodies receive no formal notice that the submitted consultation has been received. Third, because this is a consultation for which the authorized party is a body with a complex composition, namely the Corte Suprema de Justicia, it is understandable that the decision to seek consultation from the Sala Constitucional requires internal procedures, ranging from discussion in Corte Plena to approval of the corresponding resolution, drafting, signature, and submission of the consultation. This entire sequence of acts requires time, and the Corte cannot be rushed into completing it before the legislative expediente is transmitted.

It should be noted that the only maximum period established by the legislature requires the consultation to be submitted before final approval of the bill in question, as provided in the final paragraph of art.98 of the Ley de la Jurisdicción Constitucional (“In all other circumstances, the consultation must be submitted before final approval.”). This Sala cannot now act contrary to that statutory provision by denying the admissibility of the consultation submitted by the Corte. Fourth, this case shows that the consultation was indeed submitted on 01 de julio del 2021, after the bill had been approved on first reading (on 17 de junio del 2021) and before its final approval. Moreover, because it was consolidated by order 2021-015240 of 02 de julio del 2021, on the same day that the other consultations submitted by the legislators were consolidated, the “one-month” period available to the Sala to issue its ruling runs from the date of those consolidation orders.

Therefore, admitting this consultation from the Corte Suprema de Justicia does not alter in any way the beginning of the one-month period for ruling, which is 02 de julio del 2021. In other words, the Corte’s consultation in this case does not delay the period available to this Sala to issue its ruling. It is not valid for this Sala to agree that the beginning of the one-month period runs from 02 de julio del 2021 rather than from the date on which the expediente was received, while nevertheless retaining the latter date as a restriction on the submission of the consultation made by the Corte Suprema de Justicia. Fifth, consistent with the precedent decided in ruling n°2016-018351 at 11:15 hours on 14 de diciembre del 2016, the optional consultation submitted by the Defensoría de los Habitantes (submitted on 14 de noviembre del 2016) was deemed admissible even after the date on which the legislative expediente was received (provided on 04 de noviembre del 2016).

The present situation should be no different with respect to admitting the consultation of the Corte Suprema de Justicia even after the legislative expediente had been received. Sixth, in this field and where there is a statutory gap (vacío legal), an interpretation favoring the availability of review must prevail, rather than an excessively formalistic or restrictive interpretation, in keeping with the principle of constitutional supremacy (principio de supremacía constitucional). As this Sala stated in an earlier case involving a statutory lacuna (laguna legal) concerning the admissibility of legislative consultations:

“In view of the regulatory gap (laguna normativa) concerning the admissibility of the consultation (…), this Constitutional Court, in furtherance of the principles of constitutional supremacy (supremacía constitucional) enshrined in Articles 10 of the Political Constitution and 1 of the Law on Constitutional Jurisdiction, of the direct and immediate effect of the Constitution, according to which legislative development of constitutional principles, values, and provisions is unnecessary, of the stronger binding force of fundamental rights, of the completeness of the legal system, and of legal certainty (seguridad jurídica), elects to admit them so that they may be answered with respect to the matters to be determined below. Constitutional jurisdiction must reflect the open and flexible texture of Constitutional Law, and its interpretation must be substantive rather than formal. In this regard, Article 14 of the Law on Constitutional Jurisdiction provides that ‘(…) In the absence of an express provision, the principles of Constitutional Law shall apply, as shall the general principles of Public and Procedural Law (…)’.

It is clear that (…) This jurisdiction could not be interpreted restrictively, taking into consideration the principle of constitutional supremacy. Accordingly, this Court deemed it appropriate to proceed with the constitutional consultations (consultas de constitucionalidad) submitted, because, given the existence of the legal vacuum, it must be interpreted in favor of the possibility of review…” (see voto n°2007-009469).

In conclusion, in accordance with the foregoing case law favoring flexibility in admissibility and with the arguments presented, we respectfully dissent (salvar el voto), because we consider that this consultation submitted by the Corte Suprema de Justicia must also be deemed admitted. In this regard, because we consider this consultation admissible, we must rule on the questions presented pursuant to Article 99 governing this jurisdiction.

• a)The consultation is answered, and Articles 13, 32, 33, 34, and 36 of the bill are deemed unconstitutional insofar as they concern the Poder Judicial.

Regarding Article 13 of the Ley Marco de Empleo Público bill: The Corte Suprema de Justicia considers that Article 13 of the bill grants Mideplán the authority to supply the substance of the regulations specific to the job families (familias) created by the bill through a mere administrative act (acto administrativo), notwithstanding that regulation of the operation of the Poder Judicial is subject to statutory reservation (reserva de ley). Therefore, because this provision does not determine how those “families” or their specific regulations are to be given substance, it could be contrary to Constitutional Law for Mideplán to do so through an administrative act. It is asserted that the regulation of those families in Article 13 of the bill is very limited, and it is therefore understood that it will be carried out through the exercise of regulatory authority (potestad reglamentaria), by means of regulations and even through lower-ranking rules, since the distinction among families entails specialized treatment depending on the type of services provided, which is contrary to Article 154 of the Political Constitution.

The consultation indicates that the possibility of defining the various employment relationships within the Poder Judicial is transferred to regulations contained in lower-ranking rules issued by Mideplán, thereby stripping the Poder Judicial’s self-regulatory authority (potestad auto normativa) of its substance and transferring the possibility of regulation through autonomous regulations (reglamentos autónomos) to the adoption of other types of regulations and, worse still, generally applicable provisions, directives, circulars, manuals, and resolutions issued by Mideplán. It is considered that the foregoing could jeopardize the rationale of the cited constitutional provision as it relates to judicial independence, since Mideplán will have full authority to determine the regulations specific to each family by means of a mere regulation or, even more seriously, an administrative act, without respecting the fact that regulation of the Poder Judicial’s organization and operation is subject to statutory reservation.

It is noted that the statutory reservation established in Article 154 of the Constitution is broad because it seeks to safeguard judicial independence and, consequently, matters related to the operation of the Poder Judicial cannot be left to a mere administrative act by Mideplán.

In this regard, after the corresponding analysis of the arguments presented in the Poder Judicial’s consultation concerning Article 13, it is concluded that this provision does indeed conflict with the Constitution. Upon reviewing the bill as a whole and what can be anticipated from the specific application of that provision, it is clear that if the substance of the phrase “job families,” as well as the regulations that would make it applicable, will be issued through the exercise of regulatory authority, by means of regulations and even through lower-ranking rules, such as generally applicable provisions, directives, circulars, manuals, and resolutions, all issued by Mideplán, which will be the governing body for public employment matters.

In this regard, the Sala Constitucional has stated very clearly that the independence of the Poder Judicial is reflected, in economic matters and in the security of tenure (inamovilidad) of its personnel, as well as functionally, in the genuine ability to make its decisions according to its own criteria rather than as a result of pressure from particular groups, institutions, or individuals (see judgment number 2000-5493). It should be recalled that the independence of the Poder Judicial refers to the existence of a set of safeguards intended to prevent it from being controlled by other government bodies, such as the Executive and Legislative Branches. Estado de la Justicia states: “The greater the influence of those other actors over the selection of personnel and the cases to be handled, administrative decisions, jurisdiction, and enforcement of the law, the less independent the Poder Judicial is” (Informe Estado de la Justicia 1, 2015, page 92).

In this regard, the system for the administration of justice is autonomous insofar as it depends on itself rather than on other branches; externally, that independence means the absence of outside pressures or influences that render the institution vulnerable as a result of threats to the availability of resources enabling it to perform its work autonomously, the employment stability and promotion opportunities of its officials, their integrity and assets, and its infrastructure capacity to meet citizens’ demands.

It is likewise relevant to recall that, in advisory opinion (opinión consultiva) n°2018-019511, which addressed the legislative consultation concerning the "Ley de Fortalecimiento de las Finanzas Publicas" bill (expediente legislativo nro. 20.580), this Sala concluded—after interpreting the substance of the bill—that, specifically, the provisions of Sections 46, 47, and 49 concerning the “governance of public employment matters 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 Poder Judicial; this interpretation was made in consideration of the principle of independence of the Poder Judicial. Moreover, based on the preceding advisory opinion, the Sala has endorsed the existence, appropriateness, and necessity of a special public-employment regime for employees of the Poder Judicial.

Consequently, Article 13 of the Ley Marco de Empleo Público bill is unconstitutional because the broad powers granted to Mideplán would allow it, through sub-statutory rules (normativa infralegal), to develop the substance of the job families that would apply within the Poder Judicial, which infringes the principle of judicial independence.

Regarding Article 32 of the Ley Marco de Empleo Público bill: Article 32 of the bill provides that each job family shall consist of a series of grades, each representing a group of positions with a similar profile, and that Mideplán shall define both the number of grades required within each job family and their characteristics; those grades shall consist of a range of compensation points. In this regard, the consultation submitted by the Corte Suprema de Justicia asserts that this provision likewise grants Mideplán extremely broad powers to supply the substance of the families and define their characteristics, leaving that determination subject to Mideplán’s judgment and interpretation; it considers that the deliberate gap in the regulation of the families benefits the mere administrative act through which Mideplán will regulate them. The consultation considers that the foregoing is provided to the detriment of the independence enjoyed by the Poder Judicial in regulating all matters concerning the management of its human resources, as well as to the detriment of legal certainty concerning the employment relationships of judicial employees.

In this regard, it is concluded that the Corte Suprema de Justicia is correct in considering that this provision also violates Constitutional Law because, once again, its substance leaves it to the discretion of the incumbent head of Mideplán to issue the corresponding regulations governing the grades of the job families, as well as to establish the groups of Poder Judicial positions having similar profiles, their characteristics, the methodology for evaluating jobs, and the evaluation itself, which will determine the compensation points for each grade and the salary progression associated with the points to be paid to the employee, based on a satisfactory evaluation of professional performance, also conducted by Mideplán. Consequently, it is more than evident that powers that were formerly inherent, exclusive, and solely reserved to the Poder Judicial will now belong to an Executive Branch body, with the resulting infringement of the principle of judicial independence that this entails. Moreover, it is true that employees will be subjected to constant uncertainty regarding these matters, ultimately resulting in a violation of the principle of legal certainty to their detriment.

The substance of Article 32 under review shows that, once again, constitutional powers vested in the governing body of the Poder Judicial, namely the Corte Suprema de Justicia, would be transferred to an Executive Branch body. This would undoubtedly impair judicial independence and would also create an imbalance in the relationship among the branches of government to the detriment of the Poder Judicial, because Mideplán would have broad powers that openly interfere with the operation of the Poder Judicial, thereby violating the principle of separation of powers, under which one Branch of the Republic may not interfere with or impose itself upon another Branch in the exercise of the latter’s own functions and powers. Consequently, Article 32 of the Ley Marco de Empleo Público bill is unconstitutional.

Regarding Article 33 of the draft Ley Marco de Empleo Público: The Supreme Court of Justice considers Article 33 of the draft legislation under review unconstitutional because, once again, it grants broad powers to Mideplán, which, under this provision, will be responsible for classifying positions into occupational families (familias laborales) and grades, since all public service positions must have a detailed position manual prepared by that Executive Branch body. 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 an occupational family and a grade within that family. The consultation considers that allowing the various employment relationships within the Judicial Branch to be defined by regulations issued by Mideplán through lower-ranking legal provisions would violate the statutory reservation (reserva de ley) in this area and would therefore deprive the Judicial Branch’s self-regulatory authority (potestad auto normativa) of its substance, thereby harming judicial independence, since Mideplán would have full authority to establish the regulations applicable to each family by means of a simple regulation or administrative act (acto administrativo).

The consultation warns of the seriousness of this situation, particularly with regard to prosecutors, because they would be incorporated into a common family without distinguishing or taking into account their specific characteristics and the particular features of their positions, all at Mideplán’s discretion, but to the detriment of the independence of the Judicial Branch, because it creates the possibility of overt interference in its operations, which could readily be carried out through a simple administrative act by the person in charge of Mideplán. The consultation considers that a risk exists because a number of Judicial Branch offices—such as judges, prosecutors, public defenders, and members of the Consejo Superior—that should be shielded from interference by the other Branches of the Republic in the interests of legal certainty (seguridad jurídica), judicial independence, and the protection of civil liberties would, under this draft legislation, now be subject to Mideplán’s control; this is considered to represent a risk that it could become an instrument hostile to the separation of powers and a tool in the hands of a future Executive Branch seeking to use it to steer the democratic system toward authoritarian alternatives.

In this regard, we consider the objection raised by the Supreme Court of Justice in the consultation under review to be well-founded because Article 33 of the draft Ley Marco de Empleo Público does indeed also grant broad powers to Mideplán with respect to the authority to classify positions into occupational families and grades. A reading of Article 33 of the draft legislation readily shows that it would violate the separation of powers, the statutory reservation constitutionally established in favor of the Judicial Branch, and judicial independence, because—once again—it grants Mideplán authority over human talent management (gestión del talento humano) that has always belonged to the governing body of the Judicial Branch and that could now even be exercised through simple administrative acts having direct effects on the organization and operation of the Judicial Branch. Given the extensive powers that would be granted to Mideplán, the Judicial Branch would retain only limited residual powers, which would be insignificant in light of everything that would be transferred to that Executive Branch body, as can be seen in the draft law submitted for consultation.

Mideplán would be left with broad powers that it could exercise unilaterally and in a top-down manner, in open violation of the independence of the branches of government, because constitutional powers are being taken away from the Supreme Court of Justice in favor of an Executive Branch body whose head, moreover, may be freely appointed and removed by the President of the Republic. Accordingly, Article 33 infringes Constitutional Law (Derecho de la Constitución), and it is so declared.

Regarding Article 34 of the draft Ley Marco de Empleo Público: Article 34 of the draft legislation under review establishes the global salary scale (columna salarial global), which will be prepared by Mideplán, the Secretaría Técnica de la Autoridad Presupuestaria, and the Dirección General del Servicio Civil. In this regard, the Supreme Court of Justice’s consultation recalls that the Judicial Branch has constitutionally assigned powers relating to its governance function, as recognized by the Constitutional Chamber itself in judgment nº 2017-009551, which stated that Articles 153 and 154 of the Constitution contain essential powers—that is, explicit and implicit authorizations granted to the Judicial Branch in connection with its governance function—including authority over the organization of Judicial Branch personnel; this governance function makes the Supreme Court of Justice the primary interpreter of the rules applicable to its personnel, because those rules concern its organization and operation, and it is impermissible to dictate to it, through a simple administrative act, how it must regulate its public employment relationship, as the draft law submitted for consultation, and Article 33 in particular, seeks to do.

The consultation further argues that although this provision initially establishes a cooperative relationship for preparing the global salary scale, anything stated by the Judicial Branch would in no way bind the bodies of the Ministerio de la Presidencia, the Ministerio de Hacienda, or Mideplán. In addition, it provides that Mideplán’s relationship will be with the Dirección de Gestión Humana del Poder Judicial rather than with the Supreme Court of Justice, resulting in a serious constitutional defect (vicio de inconstitucionalidad), since Mideplán will “coordinate” with that Directorate in defining the Judicial Branch’s global salary scale while entirely disregarding the highest governing body of the Judicial Branch, namely the Corte Plena. They therefore consider that this article causes regression and infringes the principle of progressivity (principio de progresividad) as it applies to everyone’s right to a Judicial Branch that is not exposed to the risk of interference by other branches—that is, the right to judicial independence.

Regarding this article, we consider it necessary to state that the Constitutional Chamber was very clear in advisory opinion (opinión consultiva) nº 2018-019511 when it held that “Mideplán’s governing authority over public employment” and “the mandatory nature of the technical and methodological guidelines of the Dirección General del (sic) Servicio Civil,” which were included in the draft “Ley de Fortalecimiento de las Finanzas Publicas” (expediente legislativo nº 20.580), did not apply to the Judicial Branch; that interpretation was reached in consideration of the principle of Judicial Branch independence. Nevertheless, in the draft legislation under review, it is evident that the legislature disregarded that criterion and has instead now submitted to this Court provisions that plainly infringe the principles of separation of powers and judicial independence, because through provisions such as this Article 34 it seeks to have Mideplán, together with the Secretaría Técnica de la Autoridad Presupuestaria and the Dirección General de Servicio Civil, prepare the global salary scale applicable to Judicial Branch employees, in absolute contradiction of Article 152 of the Constitution, which provides that “the Judicial Branch is exercised by the Supreme Court of Justice,” and Articles 9 and 154, which establish, respectively, the principle of separation of powers and the principle of independence of that Branch of the Republic.

It should be recalled that the Chamber has expressly stated that it is improper for an external body to assume governing authority or impose criteria upon the Judicial Branch in these matters and, to the contrary, has emphasized that the functional independence and autonomy expressly granted to the Judicial Branch in the constitutional text itself (Articles 9, 152 et seq., and 177), as embodied and guaranteed in its own organic laws (normas orgánicas), vest the senior authorities of the Judicial Branch with the power and responsibility to decide—without undue interference—on various matters, including those currently regulated by the draft Ley Marco de Empleo Público submitted for consultation (see judgments n°2019-25268 and 550-91).

It must likewise be stated that this Court was very clear in advisory opinion nº 2018-019511 when it noted that the independence of the Judicial Branch is one of the cardinal foundations of the Costa Rican rule of law (Estado de Derecho) and that, pursuant to Articles 9, 154, and 156 of the Political Constitution, an extensive regulatory framework specifically designed to govern the Judicial Branch has been created, including 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, among others, which are intended to regulate this Branch and ensure that its independence from the other Branches of the Republic is guaranteed. That decision likewise stated that decision-making on employment matters, whether general or specific:

“… is already governed by the aforementioned regulatory framework of the Judicial Branch, making it impossible for an external body to assume ‘governing authority’ or impose criteria upon that Branch. Moreover, that regulatory framework is designed to ensure the efficiency of the judicial function and protect judicial officers (servidores judiciales) from external interference.” The Chamber has thus recognized that the Judicial Branch is essential 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 operation of a robust system for the administration of justice and without recent efforts to modernize it.” (see vote n°2018-005758). Therefore, “if the Judicial Branch is not accorded the importance necessary for its proper operation within the social and democratic rule of law (Estado social y democrático de Derecho), its weakening leads to undemocratic forms of government, as demonstrated by the fact that one of the first functions brought under the control of authoritarian or totalitarian governments is the judicial function; hence the importance of every democratic system having a robust Judicial Branch.” (see vote n°2017-09551).

Article 34 of the draft legislation, as currently worded, would harm the Judicial Branch and its independence—the key to the strength of that Branch—as well as the principle of separation of powers; more seriously still, it would weaken the Judicial Branch to the detriment of democracy.

Moreover, it must be stated that, with regard to public employment (empleo público), the Poder Judicial is clearly subject to the fundamental principles of the public-employment regime (régimen de empleo público) established in Article 191 of the Constitution, also in accordance with Article 11 of the Constitución Política, since it is likewise subject to the corresponding procedures for performance evaluation (evaluación de resultados) and accountability (rendición de cuentas). Additionally, the Sala has deemed it valid and justified for the Poder Judicial to have its own regulatory framework (marco normativo) specifically, particularly, and distinctly governing employment relationships between that Branch and its public servants, as well as the evaluation of their performance. As stated supra, it has been recognized that this regulatory framework—which includes, among others, 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 ensure the efficiency of the judicial function and the independence of the Poder Judicial.

Indeed, it has been established as a jurisprudential criterion (criterio jurisprudencial) that these are special rules that take precedence over general provisions and cannot be repealed, at least not tacitly, by a subsequent rule of a general nature. Consequently, Article 34 of the proposed Ley Marco de Empleo Público infringes the Law of the Constitution (Derecho de la Constitución), and it is so declared.

Regarding Article 36 of the proposed Ley Marco de Empleo Público: The consultation states that the bill makes the compensation policy of the Poder Judicial subject to a determination by the Dirección General de Servicio Civil, Mideplán, and the Autoridad Presupuestaria del Ministerio de Hacienda, as well as to the corresponding approval of the Consejo de Gobierno. They consider that this provision creates authority for those three bodies, subject to the corresponding approval of the Consejo de Gobierno, while disregarding the constitutional powers of the governing body of the Poder Judicial, namely the Corte Suprema de Justicia. This results in a tacit repeal (derogatoria tácita) of the powers of the Corte Suprema de Justicia to determine the compensation of judicial public servants and constitutes overt interference by the Poder Ejecutivo in decisions implemented in this regard within the Poder Judicial, nullifying the constitutional powers of the Corte Suprema de Justicia and assigning to the Poder Ejecutivo decisions that have a direct impact on the operation of the Poder Judicial.

It is further argued that the vertical and absolute relationship with the Consejo de Gobierno, based on the actions of bodies belonging to the Poder Ejecutivo, violates the relationship of coordination and cooperation that must exist among the Branches of the Republic and establishes a relationship of direction that entails a constitutional defect (vicio de inconstitucionalidad), insofar as it constitutes overt interference by the Poder Ejecutivo in the most basic decisions concerning the compensation of judicial staff, prosecutors, and others, without in any way considering the views of the Corte Suprema de Justicia or the Consejo Superior del Poder Judicial. The consultation notes that, under the system of checks and balances (sistema de frenos y contrapesos) governed by the Constitución Política in accordance with a democratic State, only a law passed by a vote of 38 legislators may override the opinion of the Corte, and that the operation of the Corte may not be determined through a mere interpretation by the Poder Ejecutivo. The consultation also notes that the Corte Suprema de Justicia has exclusive authority over the governance of the Poder Judicial with respect to setting the salaries of its personnel.

In connection with Article 36, it should be recalled that the Sala Constitucional, in judgment number n°550-91, stated that, in light of the principle of judicial independence (principio de independencia judicial), it is fully justified in the specific case of the Poder Judicial for it to have special, separate, and distinct rules governing its employees’ compensation, subject to the fundamental constitutional principles set forth in Articles 191 and 192 concerning demonstrated suitability (idoneidad comprobada):

“(…) in the case of the Branches, their own constitutional independence, guaranteed generally by Article 9° of the Constitution and, in the cases of the Poder Judicial and the Tribunal Supremo de Elecciones, by Articles 99 et seq., 152 et seq., and 177 thereof, as well as by their own organic rules, imposes upon their senior authorities the power and responsibility to determine the compensation, representation expenses, and other benefits inherent in the positions of their own members and subordinates, naturally within their available budgets, regardless, of course, of whether the amounts involved coincide with those of the legislators.” From this perspective, therefore, it is for the Poder Judicial to establish everything relating to the compensation of its employees, such that any interference in this area by another Branch of the Republic with respect to the Poder Judicial would infringe not only its independence but also the separation of powers (separación de poderes). In judgment n°03575-1996, the Sala Constitucional was very clear in holding the following with regard to public employment:

“… it may be concluded that the State body competent in this area is each Branch of the Republic, since they—the Ejecutivo, Legislativo, Judicial, and Tribunal Supremo de Elecciones—are best equipped to determine their needs and understand their particular circumstances.” The foregoing quotation is undoubtedly correct, for who is better equipped than each Branch of the Republic to determine its current or anticipated staffing needs, the areas in which personnel are required, the conditions under which hiring may take place, the requirements to be imposed, and the appropriate compensation to be paid, among other matters that, in the case of the Poder Judicial, are specific to its nature and the functions it is responsible for performing. From this perspective, it is therefore impermissible for an external entity belonging to the Poder Ejecutivo, such as Mideplán, to determine the compensation policy for employees of the Poder Judicial when it does not even have full and timely knowledge of the characteristics of those employees, the institution’s needs, or the type of compensation to which they are entitled in view of the hazardous nature of their duties, the responsibility involved in performing them, the urgency of their actions, and other considerations that the Poder Judicial is responsible for recognizing and validating.

Allowing an external body belonging to the Poder Ejecutivo to determine the compensation policy for employees of the Poder Judicial without that body having knowledge of the institution’s needs entails a violation not only of the principle of independence of the Poder Judicial but also of the separation of powers.

At this point, it is important to highlight what the Sala Constitucional stated in judgment nº 2017-009551 regarding the importance of the Poder Judicial in the rule of law (Estado de Derecho) and the independent exercise of its administrative function:

“Today, the Poder Judicial is not an ‘empty’ or ‘devalued’ Branch (as it was considered at the inception of the modern State); indeed, one of the clear objectives of dictators is to diminish its independence, undermine its financial independence, or pack the courts with ‘ideologically oriented’ judges (court-packing, which fortunately did not occur in the United States despite a broad partisan majority in Congress aligned with President F. D. Roosevelt, but which prompted grim criticism from within his own ranks). If the Poder Judicial is not accorded the importance necessary for its proper operation in a social and democratic State governed by the rule of law, its weakening leads to antidemocratic forms of government. Evidence of this is that one of the first functions controlled by authoritarian or totalitarian governments is the judicial function, hence the importance of every democratic system having a robust Poder Judicial.” (…) “Both legislative and judicial functions require an administrative support structure to accomplish their essential or primary function, including the administrative function that helps channel all their activity; this logically extends to the human resources or personnel of the Branches of the Republic, since behind the fundamental function lies the administrative management of personnel, public officials, and public servants, etc.” Nor can it be overlooked that, in advisory opinion (opinión consultiva) n°2018-019511, this Tribunal stated that the special rules governing the Poder Judicial are intended to guarantee its independence from the other Branches, and that a systematic constitutional interpretation (interpretación sistemática constitucional) precludes indirect regulation of the judicial service through directives or guidelines issued by other bodies:

“… The rules comprising this framework include 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 amendment by the Ley de Carrera Judicial), etc. The rules listed supra are clearly intended specifically to govern the Poder Judicial while ensuring that its independence from the other Branches of the Republic is guaranteed.” (…) “Moreover, this regulatory framework is designed to ensure the efficiency of the judicial function and protect judicial public servants from external interference, as Article 1 of the Estatuto de Servicio Judicial states: ‘Article 1º.- This Estatuto and its regulations shall govern relations between the Poder Judicial and its public servants for the purpose of ensuring the efficiency of the judicial function and protecting those public servants.’ Note that this provision establishes that employment relationships between the Poder Judicial and its public servants are governed by the Estatuto and its regulations.

The systematic interpretation required by that provision precludes indirect regulation of the judicial service through directives or guidelines issued by other bodies. This is confirmed by the fact that the issuance of the regulations referred to in the provision is, in turn, within the exclusive authority of the Corte, as the Estatuto itself states: ‘Article 5º.- Before issuing internal workplace regulations, whether general in nature for all judicial public servants or applicable only to a group thereof, the Corte shall make the corresponding draft known to those public servants through the most appropriate means so that they may submit their observations in writing within a period of fifteen days. The Corte shall take those observations into account in deciding as appropriate, and the regulations it issues shall become binding without further formalities eight days after their publication in the “Boletín Judicial”.’ An additional guarantee of the independence of the Poder Judicial in employment matters is that the Head of the Departamento de Personal reports to the Presidente de la Corte, thereby excluding interference by external bodies: ‘Article 6º.- The Departamento de Personal del Poder Judicial shall operate under the direction of a Head who shall report directly to the Presidente de la Corte and shall be appointed by the Corte Plena.’” Accordingly, it is more than evident that Article 36 of the proposed Ley Marco de Empleo Público under review is unconstitutional because it infringes the principles of separation of powers (separación de poderes) and judicial independence (independencia judicial), since its content indicates that the salaries of Judicial Branch employees would be determined by directives or guidelines issued by bodies outside the Judicial Branch, specifically the Executive Branch, with the resulting interference by one Branch of the Republic in the Judicial Branch.

In conclusion, we consider Articles 13, 32, 33, 34 and 36 of the proposed Ley Marco de Empleo Público unconstitutional insofar as they apply to the Judicial Branch. This is because, as stated supra, all those articles grant Mideplán powers that interfere with the independence of the Judicial Branch and with the principle of separation of powers. It must once again be borne in mind that no body of the Executive Branch, and therefore no body external to the Corte Suprema de Justicia, may issue directives or orders concerning public employment (empleo público).

• b)The consultation is answered by reference to the opinion expressed in the por tanto of this expediente regarding Articles 6, 7, 9, 13.f, 17, 18 and 21 of the proposed legislation.

Regarding this issue, just as this Court unanimously stated when analyzing each of Articles 6, 7, 9, 13.f, 17, 18 and 21 of the proposed Ley Marco de Empleo Público in relation to the Judicial Branch, this minority considers them unconstitutional for the same reasons stated there and therefore refers to each specific point in the general judgment and to the corresponding qualifications set forth in the separate opinions recorded in each section. In general terms, it is worth noting that, under these articles of the proposed legislation under review, they are deemed unconstitutional because they affect the independence of the Judicial Branch by subjecting it to Mideplán’s directive and regulatory authority (potestad de dirección y reglamentaria), as well as to verification of whether it fulfills the purpose of performance evaluation (evaluación del desempeño), without excluding it from such directive authority.

It must be emphasized that the directive and regulatory authority attributed to the Executive Branch in this proposed legislation is incompatible with the principle of separation of powers or functions, since the Executive Branch is not responsible for directing the Judicial Branch’s activities by establishing goals and objectives. Performance evaluation must remain reserved to each Branch of Government, since this matter is inherent in the exercise of its constitutional powers. Consequently, imposing such an obligation on the Human Resources Department of the Judicial Branch would entail a violation of the principle of separation of powers and judicial independence, in accordance with the scope that constitutional case law has given these fundamental principles of Costa Rican democracy. It should be recalled that the principle of division of powers, or, as it has more recently come to be known, the principle of separation of functions (principio de separación de funciones), is enshrined in Article 9 of the Constitución Política and constitutes “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 rules for the direct benefit of the country’s inhabitants.” (judgment n°2006-013708).

This principle enables each Branch of Government to perform its function independently of the others (judgment n°6829-1993), not merely as a principle of internal application for the proper functioning of the rule of law (Estado de Derecho), but also because judicial independence, in its external dimension, ensures a set of safeguards intended to prevent the Judicial Branch from being controlled by other governmental bodies. The absence of external pressure or influence allows it to perform its work autonomously in responding to citizens’ demands. In its internal dimension, moreover, judicial independence is more than a safeguard for judges, since it also constitutes “a safeguard for private parties (parties to the proceeding), in the sense that their cases will be decided in strict adherence to the Constitution and the laws” (judgment n°5795-1998). Thus, “what is at issue is the right of citizens to have independent judges” (judgment n°2001-006632).

The independence of the Judicial Branch is reflected economically and in the security of tenure (inamovilidad) of its personnel, as well as functionally, through the genuine ability to make decisions according to its own criteria and not as a result of pressure from particular groups, institutions or persons (see judgment n°2000-005493). It is therefore fully justified for the Judicial Branch, in its specific case, to have special, separate and differentiated regulations, albeit subject to the fundamental constitutional principles set forth in Articles 191 and 192 (see judgment n°1991-550), rather than to the general provisions, directives and regulations of a body belonging to another Branch of the Republic, as this proposed legislation would require. It must be borne in mind that the special regulations governing the Judicial Branch “preclude indirect regulation of the judicial service through directives or guidelines issued by other bodies.” (advisory opinion n°2018-019511); and that “the constitutional powers to organize, plan or schedule, for example, the administrative function of personnel management” (judgment n°2017-009551) are an essential part of the Judicial Branch’s administrative function, which contributes to the effective performance of its judicial function, because “both legislative and judicial functions require an administrative support structure to achieve their essential or primary function, namely, the administrative function that helps channel all their activities; this function logically extends to the human resources or personnel of the Branches of the Republic, since behind the fundamental function lies the administration of personnel, agents and public servants, etc.” (judgment n°2017-009551).

Finally, it should be noted that, in decision n°2018-019511, which addressed the legislative consultation concerning the proposed “Ley de Fortalecimiento de las Finanzas Publicas” (expediente legislativo nro. 20.580), this Chamber concluded—after interpreting the content of the proposed legislation—that, specifically, the provisions of Sections 46, 47 and 49 concerning “Mideplán’s governing authority over public employment matters” and “the mandatory nature of the technical and methodological guidelines issued by the Dirección General del (sic) Servicio Civil” did not apply to the Judicial Branch; that interpretation was reached in consideration of the principle of independence of the Judicial Branch. Furthermore, it is invalid for certain Judicial Branch officials to be included in a category under the Estatuto de Servicio Civil, since this affects the independence of the Judicial Branch, given that judicial governance (gobierno judicial) is exercised exclusively by the Corte Suprema de Justicia with respect to its constitutional powers.

Under Article 154 of the Constitution, the Judicial Branch is subject solely to the Constitution and the law, not to provisions issued by the Executive Branch, and positions of great importance within the Judicial Branch must be particularly protected from interference by other Branches of the Republic. It must likewise be taken into account that the Judicial Branch requires personnel stability, which is necessary for the proper and impartial performance of official duties and is incompatible with subordination to the provisions issued in that regard by Mideplán.

In addition to the foregoing, it must be stated that the exercise of disciplinary authority (potestad disciplinaria) over Judicial Branch personnel is an essential component of judicial independence, and that Branch already has internal regulations governing the exercise of disciplinary authority. Accordingly, the provisions of the proposed legislation under review relating to that matter would not apply within the Judicial Branch, as this Chamber stated in voto n°2009-004849. Thus, consistent with the principle of judicial independence, the entity vested with disciplinary jurisdiction (competencia disciplinaria) shall exclusively be the Judicial Branch itself.

• c)The consultation is declared inadmissible for consideration (inevacuable) for lack of supporting grounds with respect to Articles 1, 5.a, 11, 12, 14, 16, 23, 24, 26, 28, 30, 31, 35, 46, transitorio II, transitorio IV, IX and X.

The consultation submitted by the Corte Suprema de Justicia refers 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 proposed Ley Marco de Empleo Público, as provisions regarding which it was considered necessary to submit a formal consultation to this Court.

Notwithstanding the foregoing, this minority considers that the arguments raised concerning those provisions entirely lack the legal substantiation required by Article 99 of the Ley de la Jurisdicción Constitucional for the admission of this type of procedural action (acción procesal). In addition to failing to provide a clear explanation of the arguments supporting the view that those articles and transitional provisions might conflict with the Constitution, the consultation also makes no express reference to the constitutional principles allegedly infringed by the provisions under review or to the reasons underlying the concerns that led the Corte Suprema de Justicia to submit a consultation concerning those provisions. In this regard, it should be recalled that the Chamber’s case law has emphatically stated that the consultation must be reasoned, clearly identifying what is being challenged and the reasons for the doubts or objections concerning the proposed legislation.

In light of these considerations, having determined in the present case that these requirements were not satisfied, we consider the constitutional consultation (consulta de constitucionalidad) concerning the proposed “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in expediente legislativo n° 21.336, inadmissible for consideration as regards 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 proposed Ley Marco de Empleo Público, due to the lack of supporting grounds for the matters submitted for consultation.

In conclusion, regarding the merits of the matters submitted for consultation by the Corte Suprema de Justicia, we consider that: a) Articles 13, 32, 33, 34 and 36 of the proposed legislation are unconstitutional insofar as they concern the Judicial Branch; b) Reference must be made to the opinion expressed in the por tanto of this expediente regarding Articles 6, 7, 9, 13.f, 17, 18 and 21 of the proposed legislation; c) The consultation is inadmissible for consideration for lack of supporting grounds with respect to 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 concerning the consultation submitted by the Corte Suprema de Justicia in expediente n.° 21-012714-0007-CO.

In the case at hand, I concur with the majority’s view, since I consider that an interpretation of the rules governing legislative consultation (consulta legislativa) requires limiting the period within which such a consultation may be filed. Regarding this issue, I note that, in judgment n.° 2016-18351 at 11:15 hours on 14 de diciembre de 2016, the Sala rejected a motion to intervene as a supporting party (gestión de coadyuvancia) filed by the Defensora de los Habitantes and, on its own initiative, proceeded to process it as a new optional consultation (consulta facultativa), which was then consolidated with the original consultation. That intervention by the Defensora de los Habitantes occurred after the legislative record (expediente legislativo) in the case had been submitted. With respect to that precedent, I clarify that I was not a member of the Tribunal on that occasion and, therefore, did not endorse that position.

In any event, I consider that the reasoning developed in this decision must prevail, because it enables the Sala to issue its decision within a reasonable period, thereby avoiding indirect interference in the legislative procedure. Furthermore, I reject the possibility that the Sala may, on its own initiative, convert an intervention as a supporting party (coadyuvancia) into a new consultation, because no provision authorizes such a course of action and, moreover, it disregards the formal requirements governing constitutional-review proceedings (procesos de control de constitucionalidad). It should be noted that the Ley de la Jurisdicción Constitucional does permit the conversion of a writ of habeas corpus (recurso de habeas corpus) into a writ of amparo (recurso de amparo) (artículo 28), because such proceedings seek to protect fundamental rights and, for that reason, their processing is based on procedural informality (informalismo).

By contrast, the constitutional consultation proceeding (proceso de consulta de constitucionalidad) has a different purpose, which—as its name indicates—is for the Sala to review the constitutionality of a bill and other matters under the terms of section 96 of the aforementioned Law. The decision issued in such proceedings may affect the validity of the legal system (ordenamiento jurídico), so their processing is subject to strict formal requirements, which warrants denying both the aforementioned intervention and its conversion on the Sala’s own initiative.

Note by Justice Garro Vargas regarding the admissibility of the legislative consultation submitted by the Corte Suprema de Justicia In addition to the matters addressed in the dissenting opinion (voto salvado) jointly signed with Justice Picado Brenes, I deemed it appropriate to add a separate note to complete my thoughts concerning the admissibility of the constitutional consultation submitted by the Corte Suprema de Justicia.

First, as I stated in the note to advisory opinion (opinión consultiva) n.°2020-013837, under our regulatory framework, the lawmaking process is subject to constitutional review, exercised through the Sala Constitucional. This system of review may be a priori or a posteriori. In both cases, subject to their specific regulations, this Tribunal is obligated to examine—if the matter is submitted for its consideration—the proposed legislation and the legislative procedure in order to compare them with the rules, principles, and values comprising Constitutional Law (Derecho de la Constitución). In a priori constitutional review, the Sala Constitucional is responsible for overseeing and “hearing consultations concerning proposed constitutional amendments, the approval of international conventions or treaties, and other bills, as provided by law.” All of the foregoing constitutes an expression of the principle of constitutional supremacy (principio de la supremacía constitucional), enshrined in art. 10 subsection b) of the Constitución Política and in arts. 96 et seq. of the Ley de la Jurisdicción Constitucional (LJC).

This form of constitutional review, equally robust and valid as a posteriori review, has an objective or abstract purpose, as well as a preventive and precautionary one. Its purpose is to prevent bills containing a constitutional defect (vicio de constitucionalidad) from becoming part of the legal system. Indeed, the purpose of constitutional consultations is none other than to uphold the “supremacy of constitutional rules 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” (art. 1° of the LJC).

Once the importance of this type of proceeding has been acknowledged, it is necessary to distinguish between a priori constitutional consultations that are mandatory legislative consultations (consultas legislativas preceptivas)—concerning proposed constitutional amendments or the approval of international conventions or treaties—and optional consultations—concerning any other bill. In the latter case, other constitutional bodies or statutory bodies (órganos de configuración legal) that possess institutional or organic standing (legitimación institucional u orgánica) may participate in constitutional review by submitting consultations concerning “bills or specific motions incorporated into them, in the processing, content, or effects of which they consider that the principles or rules relating to their respective constitutional jurisdiction have been improperly disregarded, interpreted, or applied” (art. 96 subsection c) of the LJC).

This is a highly exceptional remedy—since there are practically no precedents for its use in the history of the Sala Constitucional—intended to allow these constitutional bodies, which are vital to the structure of the rule of law (Estado de Derecho), to have standing to safeguard precisely the essential powers and authority granted to them exclusively and to the exclusion of all others. It must be emphasized that recognition of this standing derives from the defense of their respective constitutional jurisdiction, and thus it is an instrument inspired by the principle of separation of functions (principio de separación de funciones) itself, derived from constitutional art. 9, which must be interpreted together with the provisions recognizing the governmental and judicial-administration functions of the Corte Suprema de Justicia (constitutional arts. 152, 153 and 156), those setting forth the powers of the Tribunal Supremo de Elecciones concerning the organization, direction, and supervision of acts relating to suffrage (art. 99 ibid.), and those concerning the oversight and supervision of the Public Treasury (Hacienda Pública) in the case of the Contraloría General de la República (CGR) (art. 183 ibid.).

Now, regarding the requirements for filing such consultations, it must be emphasized that the LJC makes no distinction and, in its art. 98, provides that a consultation must be submitted “after [the bills] have been approved in the first debate and before they are approved in the third,” while its art. 101 likewise directs, for all consultations, that the Sala shall resolve it within one month following its receipt. In other words, the requirements are the same for all the circumstances examined, and none of those time limits or requirements depends on the others. It is therefore inadmissible for this Tribunal to make a distinction where the law makes none, as would occur if it were asserted that this is a common time limit (plazo común). Accordingly, if it is considered that a statutory omission (omisión normativa) exists because no provision addresses cases in which several consultations—optional legislative consultations and organic consultations (consultas orgánicas)—are submitted simultaneously, that gap cannot be filled to the detriment of the prerogatives granted to the aforementioned bodies to defend their respective constitutional jurisdictions and, concomitantly, to the detriment of the prerogative entrusted to this Tribunal to safeguard the supremacy of constitutional rules and principles.

Likewise, I consider that the interpretation of and limits on the admission of this type of consultation cannot be so stringent as to constrain a branch of the Republic, a body holding equivalent rank, or a constitutional body such as the CGR. Therefore, given the factual circumstances under review, I do not agree with the approach employed whereby, to fill the gap, recourse was had to an interpretation of limits and requirements established for optional legislative consultations, which was then extrapolated to organic consultations, which are so exceptional in the work of this Sala Constitucional.

In this case, the majority states that “the Sala Constitucional has established the receipt of the legislative record or consolidation as the starting point of the time limit; from those points onward, no new consultations may be admitted, whether submitted by deputies or by other bodies external to Parliament.” That assertion is imprecise, because the Sala has imposed that time limit or cut-off on the Asamblea Legislativa itself, the body responsible for forwarding the certified copy of the legislative record, but not on other bodies of the Republic, which should not be subjected to a limit devised for Parliament. As is well known, because of a longstanding and familiar practice of submitting several legislative consultations concerning certain bills, this Sala established that limit to restrict the continuous submission of multiple consultations that could hinder both parliamentary proceedings and the consultative jurisdiction (competencia consultiva) entrusted to this Tribunal.

Again, although this is “settled case law (jurisprudencia reiterada),” as the majority of the Sala observes, it is a line of precedent applied to legislators and not to other bodies legally empowered to submit legislative constitutional consultations in defense of their constitutional jurisdictions. The situation would be different if one or more organic consultations had been submitted. In that event, it would indeed be possible to state, through statutory gap-filling (integración normativa), that once an organic consultation is submitted, the one-month time limit governs all other bodies; moreover, this would be an entirely atypical situation, since multiple organic constitutional consultations have never been filed.

Nor do I agree that this constitutes “undue interference in the course of the bill (iter del proyecto de ley),” insofar as this is a power granted by the legislature itself to other branches of the Republic and to other authorities in order to refine the constitutionality of a particular bill with respect to their respective constitutional jurisdictions.

Furthermore, the fact that the bill had previously been submitted to the Corte Suprema de Justicia for consultation does not mean that it could not undergo amendments during the legislative process (iter legislativo) that would justify waiting an appropriate amount of time before submitting a formal consultation concerning the final text. Moreover, such a consultation cannot be approved unilaterally by the President of that Court but requires a formal decision by the governing body of the Poder Judicial, namely, the Corte Suprema de Justicia (see arts. 156 and 167 of the Constitución Política).

Finally, as noted in our dissenting opinion (voto salvado), admitting this legislative consultation (consulta legislativa) for consideration would not have afforded any anomalous benefit to the Corte Suprema de Justicia, precisely because the time limit applicable to the Chamber was the one resulting from the consolidation (acumulación) of the other legislative consultations. It should be noted that this institutional consultation (consulta orgánica) was filed on 1° de julio de 2021, and the decision ordering consolidation of the legislators’ legislative consultations is dated 2 de julio de 2021 (see decisions numbers 2021-015137 and 2021-015105). Therefore, the parliamentary processing of the bill under review would not have been prejudiced in any way had this legislative consultation been admitted, and the Chamber would accordingly have remained subject to the one-month period for issuing its response following consolidation of the consultations that it did deem admissible. In other words, if the Chamber itself has one month to issue this advisory opinion (opinión consultiva), this could in no way have hindered the parliamentary procedure, since the Court’s consultation was filed before the consolidation and, therefore, before the extension of the period for resolving the constitutional questions raised.

Consequently, I reiterate my view that this institutional consultation on constitutionality (consulta orgánica de constitucionalidad) is admissible.

III. Regarding the denial of the submissions filed on 22, 25, 28, 29 de junio and 05, 13, 15 and 20 de julio del 2021.-

Several submissions have been filed in this legislative consultation proceeding (expediente de consulta legislativa): On 22 de junio del 2021, the Secretario General del Sindicato de la Salud y la Seguridad Social made several statements opposing the bill under review. On 25 de junio del 2021, several legislators filed what they termed “passive third-party intervention” (“coadyuvancia pasiva”) and addressed the constitutionality of the bill under review. On 28 de junio del 2021, several representatives of labor-union and community organizations and civil society requested that the bill under review be declared unconstitutional. On 29 de junio del 2021, several legislators made statements regarding the bill’s conformity with the Constitution. On 05 de julio del 2021, representatives of the Asociación Cámara de Industrias de Costa Rica filed what they termed a “third-party intervention” (“coadyuvancia”) and requested that the consultation filed be dismissed.

Subsequently, on 13 and 15 de julio del 2021, the president of the Conferencia Episcopal Nacional de Costa Rica and the Secretario General de la Confederación de Trabajadores Rerum Novarum, respectively, filed what they termed passive third-party interventions and addressed the issue of conscientious objection (objeción de conciencia). Finally, on 20 de julio del 2021, several legislators appeared to argue that the Optional Consultation on Constitutionality (Consulta Facultativa de Constitucionalidad) filed by the Corte Suprema de Justicia was inadmissible. With regard to all these applications, which contain statements both supporting and opposing the bill under review, it must be noted that active or passive supporting intervention (intervención adhesiva activa o pasiva) is not provided for in legislative consultation mechanisms, in which there may merely be opposing legal opinions concerning a bill’s constitutional regularity (regularidad constitucional).

Such intervention is available in amparo proceedings (procesos de amparo) or constitutional challenges (acciones de inconstitucionalidad)—Articles 34 and 83 of the Ley de la Jurisdicción Constitucional. As this Chamber has held in previous cases, because an optional consultation on the constitutionality of a bill is a proceeding in which third-party interventions are not permitted, either in support of or opposition to the bill under review, all these submissions must be denied processing (see in this regard decisions n°2019-020596, n°2008-15760, n°2007-009469, n°2005-009618, n°2004-1603, among others).

IV. Regarding the time limit for deciding this consultation.-

In optional consultations on constitutionality, and pursuant to Article 101 of the Ley de la Jurisdicción Constitucional, the Sala Constitucional responds to the consultation within the following month. It has been held that the starting date for calculating this one-month period is, in principle, the date on which the legislative record (expediente legislativo) is received. In this case, the certified copy of the legislative record under review was deemed received by a Chamber decision issued at 11:54 on 25 de junio del 2021. However, because three consultations were subsequently consolidated by decisions dated 02 de julio del 2021, the one-month period began to run from that latter date. Accordingly, the time limit for this Chamber to issue its decision would expire on 02 de agosto del 2021.

• B)MATTERS UNDER REVIEW

V. Regarding the subject matter of the consultation.-

Based on the three admissible consultations filed, the consultation concerns the bill entitled "LEY MARCO DE EMPLEO PÚBLICO", which is being processed under legislative file n° 21.336, with respect to both procedural and substantive matters. In summary, the following matters are submitted for consultation:

Regarding the alleged PROCEDURAL defects:

• 1)Substantial procedural defects (violation of the right to amend and democratic participation): The petitioners state that the Presiding Officer committed substantial procedural defects by violating the right to amend and democratic participation for the following reasons:

By issuing the Decision on the Admissibility of Motions for Reconsideration (Resolución de admisibilidad de Mociones de Reiteración) concerning the Ley Marco de Empleo Público bill, file 21.336; By ruling inadmissible motions that restated substantive motions (mociones de fondo) that had been approved in Committee, while admitting others; By consolidating motions on the ground that they were identical, similar, or reasonably equivalent, while failing to consolidate other motions that were indeed so, without a valid objective criterion for proceeding in that manner; and, By failing to present a duly admitted motion to the Plenary.

Regarding the alleged SUBSTANTIVE defects:

• 2)Violation of judicial independence: The petitioners ask about the constitutionality of several articles on the ground that they violate Articles 9, 154, and 156 of the Constitución Política, Article 10 of the Declaración Universal de Derechos Humanos, Article 14 of the Pacto Internacional de Derechos Civiles y Políticos, and Article 8 of the Convención Americana de Derechos Humanos. This is because the provisions under review seek to subject the Poder Judicial, in matters of public employment, to the provisions issued by the Ministerio de Planificación Nacional y Política Económica (Mideplán) and the Dirección General del Servicio Civil.
• 3)Violation arising from the inclusion of the Tribunal Supremo de Elecciones: The petitioners ask about the constitutionality of Article 2.a and other provisions on the ground that they violate Articles 9 and 99 of the Constitución Política by requiring the TSE to apply and implement the generally applicable provisions, directives, and regulations issued by Mideplán (Articles 6, 7.d, 9, 13.b, 14, 17, and 18), in violation of its independence, thereby permitting interference by the Poder Ejecutivo in a matter constitutionally barred to it and constituting a regression in the rule of law (Estado de Derecho).
• 4)Violation of University Autonomy: The petitioners ask about the constitutionality of Article 6 and other provisions on the ground that they violate the principle of university autonomy enshrined in Articles 84, 85, and 87 of the Constitución Política. They consider university autonomy to be violated by subjecting the employment regime applicable to teaching and research personnel at higher-education institutions to development plans, salary systems, performance evaluations, directives, orders, instructions, and circulars issued by Mideplán and, in some cases, by the Dirección General del Servicio Civil and the Autoridad Presupuestaria.
• 5)Violation arising from the inclusion of the Caja Costarricense de Seguro Social: The petitioners ask about the constitutionality of Article 2.b and other provisions on the ground that they violate the autonomy of the CCSS and Articles 73, 188, 11, 33, and 140.18 of the Constitución Política. They consider it unconstitutional to subject the CCSS to the directives, guidelines, and regulations issued by Mideplán on matters related to public employment, namely: workforce planning, work organization, employment management, performance management, compensation management, and labor-relations management, as well as the set of provisions of the bill described below.
• 6)Violation of Municipal Autonomy: The petitioners ask about the constitutionality of Article 2.c and other provisions on the ground that they violate the autonomy of the Municipalities. This is because it is unconstitutional to require Municipal Corporations to apply and implement the generally applicable provisions, directives, and regulations issued by Mideplán on matters related to workforce planning, work organization, employment management, performance management or performance evaluation, compensation management, and labor-relations management, as well as to subject human-resources offices to the General Public Employment System (Sistema General de Empleo Público), among other requirements.
• 7)Violation of the autonomy of Autonomous Institutions: The petitioners ask about the constitutionality of Article 2.b and other provisions on the ground that they violate the autonomy of autonomous institutions.
• 8)Violation of the principles of legal certainty, equality, proportionality, and reasonableness (conscientious objection): The petitioners ask about the constitutionality of Article 23.g insofar as it includes conscientious objection, because they consider that it infringes the ability of public officials to invoke conscientious objection in order to decline education and training that the State has deemed mandatory. They consider it unconstitutional because it violates the principles of legality and legal certainty, proportionality, and reasonableness by failing to regulate the conditions, parameters, and restrictions necessary to prevent violations of fundamental human rights encompassed within treaty law (Derecho Convencional) and fully recognized by our legal system. In that regard, they consider that conscientious objection may not be invoked to promote inequality, mistreatment, and discrimination from a position of authority, for example.
• 9)Violation of the right to unionize and bargain collectively: The petitioners ask about the constitutionality of Article 43 and transitory provision XV of the bill because collective bargaining (negociación colectiva) concerning salaries and other matters is prohibited, which would encompass practically everything subject to negotiation, thereby depriving of substance the possibility of any agreement intended to improve workers’ employment conditions, contrary to the provisions of Article 62 of the Constitución Política; the Convenio sobre el derecho de sindicación y de negociación colectiva, 1949, N° 98 of the Organización Internacional del Trabajo (OIT), Articles 4 and 6; the Convención Americana de Derechos Humanos, Pacto de San José de Costa Rica, Article 2; the Pacto Internacional de los Derechos Económicos, Sociales y Culturales, Articles 2 and 8; the Protocolo Adicional a la Convención Americana sobre Derechos Humanos en Materia de Derechos Económicos, Sociales y Culturales de San Salvador, Article 5; numeral 7 of the Constitución Política; and Article 690 of the Código de Trabajo. All of this also violates the principle of progressivity (principio de progresividad).
• 10)Violation of the principles of reasonableness and proportionality (general disqualification sanction): The petitioners ask about the constitutionality of Article 4.a of the bill because it includes a general disqualification sanction (sanción de inhabilitación general), contrary to the principles of reasonableness and proportionality. They state that this is a generic and automatic sanction that would apply to any type of dismissal, regardless of whether it involved serious or minor misconduct, without the sanctioning body assessing the seriousness of the conduct and without any balancing of the rights that would be affected.
• 11)Violation of the right to remuneration and the principle of equality (global salary (salario global)): They inquire into the constitutionality of Transitory Provisions XI and XII, which include rules for the application of the “global salary,” on the grounds that this violates the right to remuneration (art.57), the principle of nondiscrimination 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 (irrenunciabilidad de los derechos) (art.74). In addition, art.23 and 28 of the Universal Declaration of Human Rights, art.14 of the American Declaration of the Rights and Duties of Man, art.6 of the International Covenant on Economic, Social and Cultural Rights, and art.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 (ley 5851), ILO Convention 95 concerning the Protection of Wages (ley 2561). ILO Convention 100 concerning Equal Remuneration for Men and Women Workers (ley 2561). Art.1 of Convention N°111 concerning Discrimination in Respect of Employment and Occupation, ILO (Ley 2848). This is because the transitory provision allows three different salaries to coexist for persons performing identical duties under identical conditions, while seeking to treat equally those who are not in equal or legally identical circumstances.

• 12)Violation of due process (debido proceso) (single dismissal proceeding (proceso único de despido)): The inquiry concerns Articles 21 and 22 of the bill, insofar as they establish a special administrative proceeding (procedimiento administrativo especial) for dismissal, because the petitioners consider that there is no clarity regarding time limits, the admission of evidence, the right of defense, among other matters. All of this violates the constitutional principle of due process and legal certainty (seguridad jurídica).
• 13)Violation of the principle of fiscal sustainability due to the availability of leave: The inquiry concerns Articles 39, 40, 41, and 42 of the bill, insofar as they establish the possibility of unpaid leave to reduce working hours, paternity leave, and an extension of maternity leave. The petitioners consider that all of this is done without any study of costs or sources of funding. Nor was the opinion of the CCSS on the matter obtained, even though this directly affects its finances.
• 14)Violation arising from the exclusion of public enterprises operating in competitive markets: It is stated that, although public enterprises operating in competitive markets—principally in telecommunications and insurance—must seek to increase their competitiveness, excluding them from the principles of transparency, service excellence, and citizen participation lacks objective and substantiated grounds for their exclusion from public employment. In addition, the Benemérito Cuerpo de Bomberos is excluded on the assertion that it is governed by private law (Derecho Privado), although others, such as Recope and the Instituto Nacional de Aprendizaje, were not excluded.

Each of the foregoing defects is examined separately below. Only the specific matters challenged by the petitioners will be reviewed, and not general aspects of the constitutionality of the provisions under review, as provided by Article 99 of the law governing this jurisdiction. In this regard, it must be clear that, as to those provisions of the bill at issue on which this Chamber does not rule—whether because they were not submitted for review or because the petitioners provided insufficient grounds—this does not indicate that they are or are not constitutional; it must therefore be understood that they were not analyzed by this Chamber and that no opinion has been expressed regarding their constitutionality. It is further clarified that the text before this Chamber for purposes of examining each provision submitted for review is the “Final Draft” dated 23 de junio del 2021.

VI. Regarding the alleged PROCEDURAL defects.-

The petitioners consider that the Presidency committed substantial procedural defects (vicios sustanciales del procedimiento) by violating the right of amendment (derecho de enmienda) and democratic participation, for the following reasons: by issuing the ruling on the admissibility of renewal motions (mociones de reiteración) concerning the bill at issue; by declaring inadmissible motions that renewed substantive motions (mociones de fondo) that had been approved in Committee, while admitting others; by consolidating motions because it considered them identical, similar, or reasonably equivalent, while failing to consolidate others that were in fact so, without a valid objective criterion for proceeding in that manner; and, lastly, by failing to bring a duly admitted motion before the Plenary. To examine these procedural defects, the chronology followed by the bill submitted for review will first be set forth (1), this Chamber’s case law regarding substantial procedural defects and motions will then be considered (2), and finally the issues submitted for review concerning formal defects will be examined (3).

• 1)Chronology of the legislative procedure for the bill entitled “LEY MARCO DE EMPLEO PÚBLICO,” processed under legislative expediente n° 21.336.- Based on the various volumes of the legislative expediente, the bill submitted for review followed, in summary, the procedure set forth below:
• 1)On 08 de abril de 2019, the Ministro de la Presidencia submitted the bill entitled “LEY MARCO DE EMPLEO PÚBLICO,” expediente N° 21.336, to the Secretaría de la Asamblea Legislativa (see folio 1, Tomo 1 of the legislative expediente).
• 2)On 29 de abril de 2019, the Departamento de Archivo, Investigación y Trámite forwarded the legislative expediente to the Imprenta Nacional for publication in the Diario Oficial (see folio 110, Tomo 1 of the legislative expediente).
• 3)On 30 de mayo de 2019, the Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa received the bill for study.
• 4)By official letter N° AL-DEST-CO-069-2019 dated 6 de junio de 2019, the Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa sent the Comisión Permanente Ordinaria de Gobierno y Administración the list of mandatory consultations (consultas obligatorias) relating to expediente N° 21.336 (see folio 118, Tomo 1 of the legislative expediente).
• 5)By official letter N° TSE-1388-2019 dated 2 de julio de 2019, the President of the Tribunal Supremo de Elecciones issued an opinion on bill N° 21.336, as requested by the Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa (see folio 450, Tomo 2 of the legislative expediente).
• 6)By official letter N° SP-146-2019 dated 3 de julio de 2019, the Corte Suprema de Justicia responded to the request for an opinion from the Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa regarding bill N° 21.336 (see folio 496, Tomo 2 of the legislative expediente).
• 7)By official letter N° SJD-885-2019 dated 5 de julio de 2019, the Junta Directiva de la Caja Costarricense de Seguro Social sent the Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa the requested opinion concerning bill N° 21.336 (see folio 592, Tomo 2 of the legislative expediente).
• 8)By official letter N° DJ-1110 dated 30 de agosto de 2019, the Contraloría General de la República sent the Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa the requested opinion concerning bill N° 21.336 (see folio 1541, Tomo 6 of the legislative expediente). (See folio 5802, Tomo 20, opinion on the substitute text (texto sustitutivo)).
• 9)By official letter N° OJ-132-2019 dated 12 de noviembre de 2019, the Procuraduría General de la República sent the Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa the requested opinion concerning bill N° 21.336 (see folio 1975, Tomo 7 of the legislative expediente and folio 3133, Tomo 11). (See folio 5672, Tomo 19, opinion on the substitute text).
• 10)On 3 de marzo de 2020, the Departamento de Servicios Técnicos de la Asamblea Legislativa sent the Comisión Permanente Ordinaria de Gobierno y Administración the legal report concerning legislative expediente N° 21.336, “LEY MARCO DE EMPLEO PÚBLICO” (see folio 1993, Tomo 7 of the legislative expediente).
• 11)By official letters Mideplán-DM-OF-0663-2020 and DM-620-2020, both dated 18 de mayo de 2020, the Ministerios de la Presidencia y de Planificación Nacional y Política Económica sent the Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa the substitute text of the bill entitled “LEY MARCO DE EMPLEO PÚBLICO,” legislative expediente N° 21.336 (see folio 2069, Tomo 7 of the legislative expediente).
• 12)On 16 de junio de 2020, the Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa approved a substantive motion proposing a substitute text for expediente N° 21.336, “LEY MARCO DE EMPLEO PÚBLICO” (see folios 2142 and 2255, Tomo 8 of the legislative expediente).
• 13)At ordinary session N° 03 dated 16 de junio de 2020, the Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa approved a motion to submit the substitute text of bill N° 21.336 for consultation with the public institutions and organizations identified in the minutes (see folio 2256, Tomo 8 of the legislative expediente).
• 14)On 03 de noviembre de 2020, the Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa approved another substantive motion proposing a substitute text for expediente N° 21.336, “LEY MARCO DE EMPLEO PÚBLICO” (see folios 4472 and 4589, Tomo 15 of the legislative expediente).
• 15)On 04 de noviembre de 2020, the Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa issued report N° AL-CJU-066-2020, entitled Consultation Report “Public Access to Sessions” (Informe de Consulta “Publicidad de las Sesiones”) (see folio 4643, Tomo 16 of the legislative expediente).
• 16)According to minutes N° 21 dated 4 de noviembre de 2020, the Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa approved another substitute text (see folios 4648 and 4768 of Tomo 16).
• 17)At ordinary session N° 22 dated 10 de noviembre de 2020, the Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa approved a motion ordering publication of the text of expediente N° 21.336, “Ley Marco de Empleo Público.” It likewise ordered that the mandatory consultations with the institutions and organizations be conducted (see folios 4859 through 4862, Tomo 16 of the legislative expediente).
• 18)On 10 de noviembre de 2020, the Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa issued Consultation Report N° AL-CJU-068-2020, entitled “Application of the Principle of Formal Regularity of Procedure to Correct Essential and Nonessential Defects in Legislative Proceedings” (Informe de Consulta “Aplicación del Principio de Corrección Formal del Procedimiento para Corregir Vicios Esenciales y no Esenciales en el Trámite Legislativo”) (see folio 4870, Tomo 16 of the legislative expediente).
• 19)On 10 de noviembre de 2020, the Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa issued the affirmative minority report (dictamen de minoría afirmativo) (folio 5263 et seq., Tomo 18 of the legislative expediente) and the affirmative majority report (dictamen de mayoría afirmativo) (affirmative) (folios 5432 et seq., Tomo 18 of the legislative expediente).
• 20)By official letter N° AL-DEST-CO-346-2020 dated 12 de noviembre de 2020, the Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa provided the Comisión Permanente Ordinaria de Gobierno y Administración with the list of institutions that were required to be consulted regarding bill N° 21.336 (see folio 5187, Tomo 17 of the legislative expediente).
• 21)On 18 de noviembre de 2020, the Comisión Permanente de Gobierno y Administración submitted bill N° 21.336, “Ley Marco de Empleo Público,” to the Directorio Legislativo (see folio 5567, Tomo 18 of the legislative expediente).
• 22)At ordinary session No. 28 of the Plenary held on 21 de enero de 2021, substantive debate (discusión por el fondo) began during the first-debate proceedings (trámite del primer debate) on expediente N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (see folio 6851, Volume 25 of the legislative record).
• 23)On 4 de febrero de 2021, the Comisión Permanente Ordinaria de Gobierno y Administración of the Asamblea Legislativa submitted to the Secretaría del Directorio the first report on motions under Rule 137 (mociones vía 137) concerning expediente N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (see folio 6910, Volume 25 of the legislative record).
• 24)At plenary session No. 38 of 18 de febrero de 2021, 474 substantive motions (mociones de fondo) were submitted and referred to the Reporting Committee (Comisión Dictaminadora) (see folios 7574 and 7576, Volume 28 of the legislative record).
• 25)On 10 de marzo de 2021, the Comisión Permanente Ordinaria de Gobierno y Administración of the Asamblea Legislativa submitted to the Secretaría del Directorio the second report on motions under Rule 137 concerning expediente N° 21.336 “LEY MARCO DE EMPLEO PÚBLICO” (see folio 7661, Volume 28 of the legislative record).
• 26)At ordinary session No. 50 of the Legislative Plenary, held on 16 de marzo de 2021, the Presidency asked the members of the Asamblea Legislativa whether they would submit motions for reconsideration (mociones de reiteración) (art. 138 of the Rules of Procedure), which several members confirmed that they would (see folio 8895, Volume 35 of the legislative record).
• 27)At ordinary session No. 51 of the Legislative Plenary, held on 18 de marzo de 2021, the Presidency issued a ruling on the admissibility of the motions for reconsideration (see folios 8997 to 9004, Volume 35 of the legislative record).
• 28)At extraordinary session No. 83 of the Plenary held on 22 de marzo de 2021, the procedural motion appealing (moción de orden de apelación) the Presidency’s ruling on the admissibility of the motions for reconsideration was considered and rejected. Consideration of the motions for reconsideration also began (see folio 9341 to 9351, Volume 36 of the legislative record).
• 29)At extraordinary session No. 84 of the Plenary held on 23 de marzo de 2021, consideration of the motions for reconsideration continued (see folio 9554 and 9731, Volume 38 of the legislative record).
• 30)At extraordinary session No. 85 of the Plenary held on 24 de marzo de 2021, consideration of the motions for reconsideration continued (see folios 10046 and 10126, Volume 40 of the legislative record).
• 31)At ordinary session No. 052 of the Plenary held on 5 de abril de 2021, the submission of review motions (mociones de revisión) was announced, and consideration of the motions for reconsideration continued (see folios 10329 and 10361, Volume 41 of the legislative record).
• 32)At extraordinary session No. 86 of the Plenary held on 06 de abril de 2021, consideration of the motions for reconsideration continued (see folios 10446, Volume 41, and folio 10497, Volume 42 of the legislative record).
• 33)At extraordinary session No. 87 of the Plenary held on 06 de abril de 2021, consideration of the motions for reconsideration continued (see folios 10616, Volume 42, and 10670, Volume 43 of the legislative record).
• 34)On 6 de abril de 2021, the Departamento de Estudios, Referencias y Servicios Técnicos of the Asamblea Legislativa issued the “Report on the Text under Discussion in the Plenary concerning Expediente N° 21336 Ley Marco de Empleo Público: Relatedness, Constitutional Aspects, and Procedural Aspects” (“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 record).
• 35)At extraordinary session No. 88 of the Plenary held on 07 de abril de 2021, consideration of the motions for reconsideration continued (see folios 10996, Volume 44, and 11264, Volume 45 of the legislative record).
• 36)At extraordinary session No. 89 of the Plenary held on 07 de abril de 2021, consideration of the motions for reconsideration continued (see folio 11204, Volume 45, and folio 11250, Volume 46 of the legislative record).
• 37)At extraordinary session No. 90 of the Plenary held on 08 de abril de 2021, consideration of the motions for reconsideration continued (see folios 11345 and 11375, Volume 46 of the legislative record).
• 38)At extraordinary session No. 91 of the Plenary held on 08 de abril de 2021, consideration of the motions for reconsideration continued (see folios 11476 and 11532, Volume 47 of the legislative record).
• 39)At extraordinary session No. 92 of the Plenary held on 12 de abril de 2021, consideration of the motions for reconsideration continued (see folios 11648, Volume 47, and 11699, Volume 48 of the legislative record).
• 40)At extraordinary session No. 93 of the Plenary held on 12 de abril de 2021, consideration of the motions for reconsideration and review motions continued (see folios 12062 and 12212, Volume 50 of the legislative record).
• 41)At extraordinary session No. 94 of the Plenary held on 13 de abril de 2021, consideration of the review motions continued (see folios 12359 and 12412, Volume 51 of the legislative record).
• 42)At extraordinary session No. 95 of the Plenary held on 13 de abril de 2021, consideration of the review motions continued (see folios 12521, Volume 51, and 12583, Volume 52 of the legislative record).
• 43)At extraordinary session No. 96 of the Plenary held on 14 de abril de 2021, consideration of the review motions continued (see folios 12761 and 12813, Volume 53 of the legislative record).
• 44)At extraordinary session No. 97 of the Plenary held on 14 de abril de 2021, consideration of the review motions continued (see folios 12920 and 12981, Volume 54 of the legislative record).
• 45)At ordinary session No. 053 of the Plenary held on 15 de abril de 2021, review motions and procedural motions (mociones de orden) were considered, and substantive debate on bill No. 21336 continued (see folios 13071 and 13090, Volume 54 of the legislative record).
• 46)At extraordinary session No. 99 of the Plenary held on 20 de abril de 2021, consideration of the review motions continued (see folios 13133 and 13207, Volume 55 of the legislative record).
• 47)At extraordinary session No. 101 of the Plenary held on 21 de abril de 2021, consideration of the review motions continued (see folios 13346 and 13389, Volume 56 of the legislative record).
• 48)At ordinary session No. 06 of the Plenary held on 18 de mayo de 2021, a procedural motion to postpone (moción de orden de posposición) was submitted and approved (see folio 13498, Volume 57 of the legislative record).
• 49)At extraordinary session No. 002 of the Plenary held on 19 de mayo de 2021, a procedural motion authorizing an extraordinary session to be held on 20 de mayo de 2021 was submitted and approved (see folios 13506 and 13508, Volume 57 of the legislative record).
• 50)At extraordinary session No. 003 of the Plenary held on 20 de mayo de 2021, consideration of the review motions continued (see folios 13514 and 13611, Volume 57 of the legislative record).
• 51)At ordinary session No. 07 of the Plenary held on 24 de mayo de 2021, consideration of all substantive motions and review motions concerning expediente N° 21.336 was completed. Finally, the Secretaría del Directorio was instructed to conduct the mandatory consultations (consultas obligatorias) and arrange for publication of the bill (see folios 13770, 13773, and 13852, Volume 58 of the legislative record).
• 52)On 25 de mayo de 2021, the 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 record).
• 53)By official letter No. AL-DSDI-OFI-0053-2021 dated 25 de mayo de 2021, the following public authorities were asked to provide their opinions on the updated text of expediente N° 21.336: 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, Supplement No. 105, dated 26 de mayo de 2021 (see folio 13951, Volume 58 of the legislative record).
• 55)By official letter dated 28 de mayo de 2021, the Contraloría General de la República responded to the request for an opinion concerning 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 dated 2 de junio de 2021, the Instituto Tecnológico de Cartago provided the requested opinion concerning 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 dated 2 de junio de 2021, the Consejo Nacional Rectores provided the requested opinion concerning 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 dated 03 de junio de 2021, the Corte Suprema de Justicia responded to the request for an opinion concerning 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 dated 03 de junio de 2021, the Universidad Nacional responded to the request for an opinion concerning the updated text of bill No. 21.336 (see folio 14566, Volume 61 of the legislative record).
• 60)By official letter TSE-1226-2021 dated 03 de junio de 2021, the Tribunal Supremo de Elecciones responded to the request for an opinion concerning 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 dated 04 de junio de 2021, the Universidad Estatal a Distancia responded to the request for an opinion concerning the updated text of bill No. 21.336 (see folio 14631, Volume 62 of the legislative record).
• 62)At ordinary session No. 14 of the Plenary held on 10 de junio de 2021, a motion to alter the order of business (moción de alteración del orden del día) was approved so that expediente N° 21.336 would occupy first place ahead of bills in second debate until its final vote (see folios 14751 and 14754, Volume 63 of the legislative record).
• 63)At ordinary session No. 15 of the Plenary held on 14 de junio de 2021, a procedural motion to postpone was approved. Substantive debate on bill No. 21.336 continued at first debate (see folio 14794, Volume 63 of the legislative record).
• 64)At ordinary session No. 16 of the Plenary held on 15 de junio de 2021, a procedural motion to postpone was approved. Substantive debate on bill No. 21.336 continued at first debate (see folios 14849 and 14851, Volume 63 of the legislative record).
• 65)At ordinary session No. 17 of the Plenary held on 17 de junio de 2021, a procedural motion to postpone was approved. The first-debate proceedings on bill No. 21.336 continued and concluded, and the bill was approved by 32 votes in favor and 15 against (see folios 14922, 14926y 14947, Volume 64 of the legislative record).
• 66)On 17 de junio de 2021, optional constitutional consultation (consulta facultativa de constitucionalidad) No. 21-011713-0007-CO, concerning expediente N° 21.336 “Ley Marco del Empleo Público,” was received by the Secretaría de la Sala Constitucional (see folio 14965, Volume 64 of the legislative record).

That said, the specific constitutional objections raised in this regard are as follows:

-Violation of the right of amendment (derecho de enmienda), arising from the declaration that motions for reconsideration (mociones de reiteración) 18, 231 and 250 were inadmissible because they concerned substantive motions (mociones de fondo) that, although approved by the reporting committee (comisión dictaminadora), were subsequently modified: The deputies contend, for example, that motion 138-231 was declared inadmissible even though, in her appeal, its sponsor informed the Presidency that, although the reiterated substantive motion had been approved, another motion was subsequently approved that rendered the earlier one ineffective. The deputy who sponsored motion 138-18 made the same argument; however, the Presidency did admit motion 138-345, which reiterated motion 122-137, which had also been approved by the Comisión de Gobierno y Administración at extraordinary session n° 02 of January 26, 2021. That deputy was able to defend the motion, and it was again approved at extraordinary session n° 93 of the Plenary (Plenario).

-They contend that the decision ordering the partial consolidation (acumulación) of the motions for reconsideration exceeded the provisions of Articles 27 and 138 of the Reglamento Legislativo and violated the rights of democratic participation and amendment, as well as the principle of reasonableness: The deputies contend that motions that did coincide were not consolidated, including: motions for reconsideration 184 and 251, which reiterate substantive motion 102; motions for reconsideration 194 and 270, which reiterate substantive motion 355; motions 138-195 and 138-271, which reiterate substantive motion 310; motions 138-130 and 138-273, which reiterate substantive motion 433; and motion 344, which should have been consolidated with motions for reconsideration 198 and 272. They consider the consolidation under subsection 4 of motion 138-154 improper, because that motion sought to amend Article 2 and add Article 3, whereas the others proposed only the addition of Article 3. They add that, at the conclusion of the consideration of the motions for reconsideration, the President brought motion 138-154 before the body, gave the floor to its sponsor to defend it, and submitted it to the Plenary for a vote, thereby unilaterally modifying the decision.

-Violation of deputy Paola Vega Rodríguez’s rights of amendment and democratic participation: They argue that, although motion for reconsideration 138-210 was admitted—because the challenged decision does not state that it was inadmissible or that it was consolidated with other motions—the Presidency did not bring it before the Plenary, and its subsequent vote was therefore omitted. They state that motion 138-210 should have been considered after motion 138-207 (since motions 13-208 and 138-209 were withdrawn by their sponsors) at extraordinary session n° 88, held on April 7, 2021.

• 2)Regarding the case law of this Chamber concerning substantial procedural defects (vicios sustanciales del procedimiento) and the rejection of motions.- The issue of substantial defects in parliamentary procedure has been examined by this Chamber on several occasions. Constitutional case law has generally held that the Asamblea Legislativa may exercise its power of internal regulation freely and autonomously, provided, of course, that it does not contravene constitutional provisions, principles, or values. Parliament’s authority to enact rules governing its own internal affairs (interna corporis) is not only provided for in Article 121, subsection 22, of the Constitución Política, but is also inherent in the democratic system and specific to the Asamblea Legislativa as a constitutional branch of government, pursuant to Title IX of the Carta Fundamental. This authority is intrinsic to the Asamblea Legislativa, which exercises it with complete independence from the other bodies of the State by virtue of the principle established in Article 9 of the Carta Fundamental.

However, like all powers, its exercise is subject to limitations, namely compliance with the Law of the Constitution (Derecho de la Constitución), meaning the body of constitutional values, principles, and rules. In recognition of that interna corporis, this Chamber has held that its role in matters of legislative procedure is limited to declaring those substantial defects that violate the constitutional principles and values applicable to the matter; otherwise, it would interfere with Parliament’s autonomous rule-making and functional capacity (interna corporis), distorting its role as guardian of constitutional supremacy and turning it into a kind of ad hoc senate. Thus, intervention by this Constitutional Jurisdiction would be legitimate only in the face of clear or gross violations of the constitutional principles governing parliamentary law (derecho parlamentario). Accordingly, defects reviewable by the Chamber are those involving the violation of a “substantial” requirement or procedure provided for in the Constitution or, as applicable, established in the Reglamento de la Asamblea Legislativa.

Consistent with the foregoing, the Chamber should intervene in matters of legislative procedure only when those powers are exercised with a clear abuse of power that results in the nullification of a right rather than its harmonization with the other constitutional principles of parliamentary law. More specifically, regarding deputies’ right of amendment, this Chamber has stated that deputies’ participation in the Comisiones Permanentes Ordinarias is governed by Articles 123 and 124 of the Reglamento de la Asamblea Legislativa, which recognize the right of any deputy to submit written motions “that he or she considers appropriate as an amendment to each bill,” and that substantive motions may be processed from the date the bill is published until it has been voted upon by the corresponding Committee. Substantive motions are proposals by deputies intended to modify the substance of a bill.

In other words, each deputy’s contribution to the lawmaking process is exercised through a written proposal intended to improve, clarify, modify, delete, or add to the normative propositions contained in subsections, articles, sections, chapters, or titles of a bill. This entails the ability to influence and determine the content ultimately approved by the Asamblea Legislativa and constitutes the exercise of a right held by all members of that branch of government: the right of amendment, which in turn defines one of the essential aspects of legislative activity and of our democratic system. Like every right, it is subject to limits, including respect for the principle of subject-matter connection (principio de conexidad), which in turn guarantees the right of legislative initiative and proper public notice of the proposal. Specifically regarding the rejection of motions, this Chamber has ruled as follows:

-The right to introduce motions (facultad de mocionar), which the Reglamento de la Asamblea Legislativa grants to all deputies, is intended to ensure that all groups represented therein have an opportunity to participate, allowing them to fully exercise their role as lawmakers, whether they are aligned with the “government” or the “opposition” in relation to the majority’s position, because they are representatives of the people (Article 105 of the Constitution). The only permissible limits on this right are those expressly set forth in the Constitución Política or in the Reglamento de la Asamblea Legislativa, provided that, in the latter case, they do not excessively restrict every deputy’s right to introduce motions by impairing the essential core of that authority (see judgment n°2000-003220).

-In the interest of streamlining discussion and debate, the Presidency of the Committee may, even on its own initiative, group motions that are closely connected, identical in content, reasonably equivalent, or reiterations of other motions that remain pending or have already been decided, and may also reject motions that do not comply with the applicable requirements. If the decision lacks a statement of reasons (motivación), the Deputy may file the appropriate appeal so that the defect may be remedied (see judgments numbers 2007-002901 and 2007-009699).

-The President’s authority to reject motions must be construed narrowly and applies only to issues of form, timeliness, or clear inadmissibility (improcedencia) (see judgment n°2005-007428).

-A substantial defect in the legislative procedure that infringes the rights of amendment and participation arises when admitted motions are not submitted to a vote (see judgment n°2008-004569).

In conclusion, it follows from all the foregoing that the only permissible limits on the right of all deputies of the Asamblea Legislativa to introduce motions are those expressly set forth in the Constitución Política or in the Reglamento de la Asamblea Legislativa, provided that they do not excessively restrict or impair the essential core of that authority (the deputy’s right of amendment). The President of the Asamblea Legislativa may therefore consolidate motions through a reasoned decision (resolución motivada).

• 3)Regarding the matters submitted for consultation.- Based on the foregoing case law, the procedural defects raised in the consultation will now be examined. Specifically, the following three issues are raised concerning the Presidency’s decision on the admissibility of motions for reconsideration, adopted at ordinary session n°51 of March 18, 2021:

-Declaring motions for reconsideration inadmissible because they concerned substantive motions already approved in Committee.

-Consolidating certain motions for reconsideration on the ground that they were identical, while failing to consolidate others that were also identical.

-Failing to bring an admitted motion before the Plenary.

In this regard, the following is evident from the legislative record (expediente legislativo):

Indeed, at ordinary plenary session n° 51 of March 18, 2021, the President of the Asamblea Legislativa issued a decision on the admissibility of motions for reconsideration in which he addressed three points (see folios 8997 through 9017, Volume 35 of the legislative record), although this analysis concerns only the first two, which are relevant to this examination”:

Motions for reconsideration identified as numbers 18, 231 and 250 were deemed inadmissible because they corresponded to substantive motions that had been approved by the reporting committee.

The discussion of several motions for reconsideration was grouped together because they were considered “identical, similar, or reasonably equivalent.” They would be discussed in a single proceeding but voted on individually.

-Regarding the motions for reconsideration (mociones de reiteración) declared inadmissible on the grounds that they were deemed approved in Committee: Upon review of the legislative record (expediente legislativo), it is confirmed that appeals were filed against the rejection of motion 138-231 by Deputy Vega Rodríguez and motion 138-18 by Deputy Abarca Mora, as well as a general appeal by Deputy Welmer Ramos (the deputy who introduced motion 138-250). The foregoing is relevant because the Chamber has determined that procedural defects (vicios de procedimiento) must be raised at the appropriate time in order for them subsequently to be challenged through a constitutional consultation (consulta de constitucionalidad). In view of the appeals filed regarding these motions, they must be examined. There would certainly be arbitrariness and a resulting material defect (vicio sustancial) if it were shown that motions 138-18, 138-231 and 138-250 were approved in Committee, but that another motion subsequently approved in Committee “superseded them,” and the opportunity to resubmit them was then denied.

However, in the case of motions 138-231 and 138-250, the application initiating the consultation does not clearly identify the other motion that superseded them or the procedural stage at which this occurred. In total, 777 substantive motions (mociones de fondo) were considered, and 352 motions for reconsideration were filed. This would require the Chamber to review every substantive motion approved after the substantive motion referred to in motions for reconsideration 138-231 and 138-250 had been approved, in order to identify, based on its content, the alleged motion that subsequently rendered them ineffective—a review that this Chamber plainly may not undertake. This Court has repeatedly held that the application initiating the proceeding (libelo de interposición) must identify not only the articles of the bill whose constitutionality is challenged or submitted for consultation, but must also state clearly and sufficiently the reasons why a provision of the bill may be unconstitutional; otherwise, the consultation is inadmissible (see, in this regard, judgments numbers 1995-5399-95, 1995-5544, 1999-7085, 2001-11643 and 2012-9253). Regarding motion 138-18, the petitioners substantiate the defect by quoting the following statement made by Deputy Abarca Mora when filing his appeal:

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

In other words, admission is sought for a motion for reconsideration concerning a motion already approved in Committee, to ensure that it will not subsequently be modified. However, although the argument was substantiated in this case, this Chamber cannot find a procedural defect based on an uncertain assumption, namely, that motions that might supersede it will ultimately be approved. The proper course in such cases would be for the deputy concerned, during consideration of the motion for reconsideration concerning the motion that might supersede it, to defend the approved text so that the latter motion for reconsideration is rejected. And if the Plenary nevertheless decides otherwise, that would constitute the majority decision. It should be noted that it has not been shown to be a parliamentary practice (costumbre parlamentaria) to admit motions for reconsideration based on the fear that another motion might replace the original motion. Moreover, as recorded on page 11458 of the legislative record, Deputy Abarca himself voted in favor of the motion that he says affected his own.

-Regarding the improper consolidation (indebida acumulación) of motions for reconsideration: Only the possible defect arising from the improper consolidation of motion 138-154 is examined, because it is an issue directly related to the deputies’ right of amendment (derecho de enmienda). The other arguments—that other motions should have been consolidated but were not—concern a decision by the Presidency that instead favors the right of amendment and therefore cannot be regarded as a material defect; accordingly, their examination is not appropriate in these proceedings. That said, the record shows that motion for reconsideration 154 was filed by Deputy Villalta (see page 9308, Volume 36 of the legislative record). This motion was consolidated with motions 13, 138, 179, 180, 181, 246, 247, 248 and 349 by the Presidency of the Legislative Assembly, “because of an evident connection among the objectives sought by their proponents” (see page 8983, Volume 35).

The record contains the appeal against the consolidation of motion 138-154, based on the fact that it proposes to amend two articles (art.2 and art.3). As the proponent pointed out in the appeal, that motion seeks reconsideration of the substantive motion intended to amend article 2 and add article 3 to the bill, whereas the remaining consolidated motions seek only to add article 3. In this regard, it is confirmed that the President of the Assembly decided to bring it before the Plenary, stating: “this is a reinstatement that must be made because of the improper consolidation of motions. We must therefore proceed to consider motion 154, introduced by Mr. José María Villalta Flórez-Estrada//. Accordingly, motion 154 is now under discussion, and Deputy Villalta Flórez-Estrada will have the floor.” Thus, in this case, despite the initial improper consolidation, the motion was subsequently placed under discussion separately, and the deputy who introduced it was able to speak in its defense. Therefore, no procedural defect is evident in this respect, because the situation was remedied at the time, as the petitioners themselves state in their application initiating the consultation.

-Regarding the failure to place motion for reconsideration 138-210 under discussion: It is alleged that Deputy Paola Vega Rodríguez’s right of amendment and democratic participation (participación democrática) was violated because, although motion for reconsideration 138-210 was admitted—and the challenged decision does not state that it was not, nor that it was consolidated with other motions—the Presidency did not place it before the Plenary, and its subsequent vote was therefore omitted. Upon review of the decision issued by the Presidency of that body, it is established that motion 138-210 was indeed neither rejected nor consolidated; however, this Chamber’s examination of the legislative record raises doubt as to whether the proponent intended for it to be placed under discussion. The motion sought to amend subsection c) of article 13, or the equivalent article if the numbering changed, to read:

“ARTICLE 13- General Public Employment Regime c) Public servants (personas servidoras públicas) performing police duties, in accordance with article 6 of the General Police Act, N° 7410, of 26 de mayo de 1994, article 2 of the Organic Act of the Judicial Investigation Agency (OIJ), N° 5524, of 07 de mayo de 1974, and chapter IX of the Municipal Code, N° 7794, of 30 de abril de 1998.” It was established that, in volume 45, pages 11214 and 11215, that motion appears bearing a stamp reading “withdrawn” and signed by Deputy Vega, dated 7 de abril. Subsequently, upon review of extraordinary session n° 88 of the Plenary, held on 7 de abril de 2021, the President mentioned only 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. A contradiction is therefore apparent between the motion bearing the “withdrawn” stamp and Deputy Vega’s own signature and the minutes, which omit any reference to that motion as having been withdrawn.

Apart from the fact that it is beyond this Chamber’s jurisdiction to determine in this case which act has greater validity—the withdrawn stamp bearing the deputy’s signature or the entry in the minutes—there is no indication that Deputy Vega called the situation to the Plenary’s attention or made any statement concerning it. As stated above, procedural defects must be raised at the appropriate time before they may subsequently be presented through a constitutional consultation. In this case, as noted, there is no record that Deputy Vega raised the defect; on the contrary, her signature appears on the stamp marking the motion as “withdrawn.” Accordingly, the failure to discuss the motion cannot be regarded as a material procedural defect.

• 4)Conclusions 1) No material procedural defect is found regarding the argument concerning the inadmissibility of motions 138-231 and 138-250, because the application initiating this consultation did not identify the motion that modified and “superseded” them; nor is such a defect found regarding the inadmissibility of motion 138-18, because the argument was based on an uncertain event (the possibility that another motion might supersede it).
• 2)No material procedural defect is found regarding the argument concerning the improper consolidation of motion 138-154 because, although it was improperly consolidated at first, the President of the Assembly subsequently separated it and permitted it to be discussed independently.
• 3)No material procedural defect is found regarding the argument concerning the failure to discuss motion 138-210 introduced by Deputy Paola Vega, because that motion appears in the legislative record stamped as withdrawn and bearing the signature of the deputy who introduced it.

VII.Regarding the SUBSTANTIVE defects (vicios de FONDO) submitted for consultation and the bill under consultation generally.-

Regarding the bill under consultation, entitled “LEY MARCO DE EMPLEO PÚBLICO,” which is being considered under legislative expediente n° 21.336, the three optional legislative consultations (consultas facultativas legislativas) submitted by the legislators were admitted. All of them were consolidated into this principal case file. When all the substantive matters raised in the consultations are grouped together, six of them concern the scope of coverage of the bill (with respect to the inclusion of the Poder Judicial, the Tribunal Supremo de Elecciones, the Universidad Públicas, the Caja Costarricense de Seguro Social, the Municipalidades, and the Instituciones Autónomas), while the others concern matters such as conscientious objection, the right to collective bargaining, the sanction of disqualification from holding office, the global salary, and due process. Each of these matters will be analyzed separately in the following recitals (considerandos).

However, for contextual purposes, a general explanation of the bill under consultation is appropriate. Regarding the justification provided in the explanatory statement (exposición de motivos) for this bill (see base text), it states that the bill “is intended to be a cornerstone for steering public service toward a more internally consistent legal framework, aimed at reducing the distortions caused by fragmentation within a context of effectiveness and efficiency.” This is because it is considered that: “The State must regulate its relationship with public servants under general rules and principles governing all public institutions, while safeguarding the independence of the branches of government and the particular features of the public-employment subregimes, … but always seeking to serve the public interest at all times, ensuring that the public receives quality goods and services in a timely manner.” It further states that Ley N°9635, Ley de Fortalecimiento de las Finanzas Públicas, had already vested responsibility for governing public employment in the Ministerio de Planificación Nacional y Política Económica through article 46 of title III, thereby seeking to revive the intent of the constituent authority.

Finally, this explanatory statement indicates that “This Ley Marco de Empleo Público bill seeks to address collectively the recommendations issued by various national and international bodies, such as the Contraloría General de la República and the Organización para la Cooperación y el Desarrollo.” It then refers to those recommendations, noting, in the case of the OECD, the recommendation to migrate gradually toward a single-salary scheme for new officials; and, in the case of “the Contraloría General de la República, it has drawn attention to the need to review the compensation scheme, particularly those salary incentives that create disparities among identical types of positions, as occurs with seniority increments.” It also refers to “the need to link incentives to performance-evaluation mechanisms and to their continuous review.” Based on those reasons, the bill therefore seeks to create a Ley Marco de Empleo Público, consisting of 50 articles and 15 transitional provisions, which would enter into force one year after its publication. Its 10 chapters regulate matters such as:

 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 The following provisions of the bill are particularly noteworthy. The purpose of the law would be to “Regulate statutory, public-employment, and mixed-employment relationships between the Administración Pública and public servants (…) in accordance with the constitutional imperative of a single public-employment regime (…)” (art.1). Its scope of coverage would include the entire centralized and decentralized state apparatus (art.2). It would essentially exclude non-state public entities, the Cuerpo de Bomberos, and public enterprises operating in competitive markets (art.3).

Chapter II then creates a Sistema General de Empleo Público, to be governed by the Ministerio de Planificación Nacional y Política Económica (Mideplán), with art.7 establishing all of its powers in an extensive list that includes, among others, establishing public policies and national public-employment programs and plans; issuing generally applicable provisions, directives, and regulations; issuing guidelines and general principles for performance evaluation; and establishing a single, unified compensation system for the public service. Chapter IV then provides for the existence of a single general public-employment regime, comprising eight job families (art.8). It establishes general rules for the entire recruitment and selection process for new hires (art.15), as well as a single dismissal procedure (art.21). It also establishes general rules regarding performance evaluation (art.29) and salary (art.30), including a unified salary regime for the entire public service (art.35).

Finally, it establishes general rules for matters such as vacation leave (art.38) and other forms of leave, in addition to miscellaneous provisions concerning matters such as collective bargaining (art.43).

VIII. General Recital.- (drafted by Justice Castillo Víquez)

In a Constitutional State Governed by the Rule of Law (Estado Constitucional de Derecho), every subconstitutional rule must be read, interpreted, and applied in accordance with Constitutional Law (Derecho de la Constitución) (values, principles, and rules). From this perspective, the analysis of the bill under consultation will be conducted using the foregoing as its frame of reference, through a comprehensive reading that gives careful consideration to the principle of separation of powers or functions, as well as to the constitutional principles governing administrative decentralization, particularly the degrees of autonomy possessed by entities decentralized by region and service in carrying out the purposes constitutionally assigned to them.

A substantial portion of the matters raised in the consultations requires an analysis of the relationship between legislation—the exercise of legislative power—and the principle of separation of powers, the independence of those powers in exercising their exclusive and preclusive authority, university autonomy, and municipal autonomy. It must not be overlooked that there is no compartment or area exempt from legislation as regards the exclusive and preclusive authority of the Corte Suprema de Justicia, the Tribunal Supremo de Elecciones, the Universidades del Estado, and the municipalidades. Evidence supporting this statement is the existence of constitutional consultation (consulta constitucional), as governed by provisions 88, 98,167 and 190 of the Carta Fundamental. In other words, had the original constituent authority intended to exclude the branches of the State and decentralized entities from the scope of legislative power, it would not have established constitutional consultation for instances in which the Asamblea Legislativa, in the exercise of legislative power, seeks to regulate the organization and operation of those branches and entities.

In the case of the municipalidades, although it did not expressly establish constitutional consultation—for the majority of this Tribunal, it did—the fact remains that, with respect to local matters in which political autonomy applies pursuant to constitutional provisions 169 and 170, Parliament, in exercising legislative power, may regulate municipal organization and powers.

Another matter that must necessarily be addressed—starting from the fact that the Asamblea Legislativa, in exercising legislative power, has constitutional authority to regulate the organization and functions of the branches of government and decentralized entities, but not to abolish organizational or rulemaking autonomy—in the case of the universidades estatales—political autonomy—in the case of the municipalidades and the CCSS—or administrative autonomy—in the case of the instituciones autónomas—is whether, with respect to a typically administrative function—public employment—certain positions directly connected to exclusive and preclusive powers may or may not affect those powers arising from such degrees of independence. That is, it must be determined whether positions relating to authority over matters subject to exclusive exercise must be defined exclusively and preclusively by the constitutional bodies and by the entities entrusted with constitutionally assigned purposes and granted constitutionally grounded degrees of autonomy for that purpose. This means that the legislature is subject to a limitation in exercising legislative power: it may neither abolish those powers or forms of autonomy, nor affect their essential elements, nor transfer them to other entities or bodies.

It must be borne in mind that, in a centrally organized unitary State such as Costa Rica, all public entities are subject to the principle of state unity, since autonomy does not mean sovereignty but simply independence in exercising exclusive and preclusive powers. Regarding the principle of state unity, it has been stated that, irrespective of the degree of autonomy enjoyed by a decentralized entity, that entity is closely bound to the State by a series of principles and rules contained in Constitutional Law, including, by way of example, provisions 11, 48, 49, 182, 184 and 192 of the Carta Fundamental. These 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 administrative-law jurisdictions; the principles and procedures governing administrative procurement; the approval and oversight of budgets by the Contraloría General de la República and that constitutionally significant body’s oversight of the use of public funds; submission to the core principles of the civil service; and so forth.

Accordingly, it is not unconstitutional for the legislature to subject the entire Administración Pública to a public-employment framework law, provided that it strictly observes the principles of separation of powers and does not deprive of substance the degrees of autonomy that Constitutional Law grants to the universidades del Estado, the CCSS, and the municipalidades.

It cannot be overlooked that all activities relating to appointments, evaluations, the disciplinary system (régimen disciplinario), salary caps, job evaluation (valoración del trabajo), compensation management (gestión de la compensación), job classification (clasificación de puestos), salary columns (columnas salariales), etc., are typically administrative activities. Nor can it be ignored that the branches of government other than the Executive—under a subjective criterion, the Executive is the branch that by its nature performs administrative activities, Article 1 of the General Law on Public Administration—exceptionally perform administrative activities—under an objective criterion, Article 2(b) of the Code of Contentious-Administrative Procedure—as occurs in matters of public employment (empleo público). The cornerstone is determining whether there are administrative activities in this sphere that are indispensable to safeguarding the exclusive powers of the branches of government.

The answer is yes, in the sense that, although this is an administrative activity, its exercise falls to the constitutional bodies and public entities possessing third- and second-degree autonomy. This means that those bodies and entities are required to comply with the principles and tenets established in the Law, but with the particular feature that they are responsible for applying it and strictly adhering to its provisions. From a constitutional perspective, this position renders inadmissible the exercise by the Executive Branch or any of its other bodies of hierarchical, directive, or internal regulatory authority over the branches of government, the State universities, the CCSS, and the municipalities.

Under the allocation of powers established by the original constituent authority in favor of constitutional bodies—the branches of government—and public entities decentralized by region—municipal corporations—and by service—State universities and the CCSS—an arrangement reflecting the principle of separation of powers and the degrees of autonomy, it is clear that the directive authority (potestad de dirección) vested in the Executive Branch or one of its bodies—Mideplán—is incompatible with that constitutional principle and with the degrees of autonomy enjoyed by certain entities. In other words, the authority to issue directives (potestad de dictar directrices)—special mandates that govern the activity of a body or entity by setting goals and objectives, but not requiring a specific act—is unconstitutional when it affects or bears upon the exclusive powers of the other branches of government, the constitutionally assigned purposes of corporate- or institutional-based entities enjoying third-degree autonomy—organizational or regulatory autonomy—or second-degree autonomy—political autonomy—or the administrative activities necessary to exercise those powers.

Starting from this cardinal principle, it is clear that, in matters of public employment involving the personnel of the branches of government and entities decentralized by region and service, those who exercise such powers—jurisdictional, quasi-jurisdictional, or electoral—or participate in public administration relating to the constitutionally assigned purposes of those entities, as well as the administrative, professional, or technical support personnel exclusively designated by each branch and entity, may under no circumstances be subject to the directive authority of the Executive Branch or Mideplán. There is therefore a protected core, beyond the Executive Branch’s reach, whose activities cannot be directed, much less through the exercise of regulatory authority (potestad reglamentaria), which belongs exclusively to each branch of government and each public entity.

That said, the foregoing does not mean that all public officials of the branches of government and the aforementioned entities are excluded from directive authority. In the case of basic, auxiliary administrative services that do not affect exclusive powers or the administrative functions necessary for their fulfillment, each branch of government and entity must determine, within its exclusive authority, which of those services may be subject to directive authority. Accordingly, based on the principle of the independence of branches or functions and the degrees of autonomy constitutionally guaranteed to each entity, their highest bodies—Corte Plena, Consejo Superior del Poder Judicial, Tribunal Supremo de Elecciones, Consejos Universitarios, Rectorías, Junta Directiva and Presidencia Ejecutiva de la Caja Costarricense de Seguro Social, Concejo and Alcaldes Municipales—have exclusive authority to determine which basic, auxiliary, common administrative services, and services similar throughout the Public Administration, would be subject to the Executive Branch’s directive and regulatory authority.

Therefore, because the bill does not establish such a safeguard—a clear and precise provision—this Tribunal concludes, as will be explained below, that there are several constitutional defects (vicios de inconstitucionalidad) that violate judicial and electoral independence and the autonomy of the State universities, the CCSS, and the Municipalities.

In another vein, the deputies must also clearly understand that, with respect to public officials of the branches of government and entities with constitutionally assigned purposes, everything those branches and entities establish as part of their powers—constitutional or administrative—regarding the creation of the job family (familia), its grades, the job-evaluation methodology, the relevant job factors to be assigned, the minimum and maximum salary in each column, the technical bases for setting salaries, the job description manual (manual descriptivo de cada puesto), performance evaluation (evaluación del desempeño), etc., must be defined exclusively by each of them, as will be explained when analyzing the provisions challenged as unconstitutional in the admitted consultations.

No less important is the fact that matters concerning performance evaluation and the exercise of disciplinary authority (potestad disciplinaria) are reserved to each branch of government and the aforementioned entities, because those powers are inherent in the exercise of their constitutional powers or the fulfillment of their constitutionally prescribed purposes. This means that, regarding these matters, all public officials of each branch and entity are subject to the internal provisions issued by each of them.

One final matter must be addressed before turning to each grievance raised by the petitioners: judgments number 1992-1696 at 15:30 on August 23, 1992, 2018-14905 at 12:30 on September 7, 2018, and 2018-231 at 11:00 on January 10, 2018, reiterated in 2019-14347, reaffirmed that different employment systems may exist within the Public Administration, provided they are governed by the common principles of fitness and employment stability, as is the statutory system (régimen estatutario). This Tribunal has stated that the original constituent framers stipulated in the 1949 Political Constitution that there must be an administrative employment system governing relations between public servants and the State, to protect the former from arbitrary dismissal—employment stability—and to professionalize the civil service—the pursuit of efficient service and qualified officials. The purpose of this undertaking was to ensure that the Public Administration had organizational factors enabling it to satisfy citizens’ right to the proper functioning of public services.

Accordingly, it was constitutionally established that the procedure for selecting and appointing a servant in the Public Administration must comply with the fundamental principles provided for in Articles 191 and 192, which seek qualified personnel to hold public office in order to ensure efficiency and effectiveness in the civil service.

A civil service system (régimen de servicio civil) is envisioned not as a corporate privilege, but as a guarantee of institutional impartiality that regulates the civil service, ensures personnel selection based on merit and ability, and provides a fair balance between the rights and responsibilities of public employees. It has also been stated that such legislation must provide instruments enabling the different administrations to plan, organize, and use their personnel more efficiently. Hence, the public-employment relationship is subject to certain specific features and principles, such as merit and ability in access to employment, as well as certain rules of public law, such as the incompatibility regime (régimen de incompatibilidades), which ensure objectivity and impartiality in the provision of public services.

It was established that, when discussing the titles concerning Autonomous Institutions and the Civil Service, the original Constituent Assembly members sought to elevate them to constitutional status with the aspiration—on the one hand—of decentralizing Executive power with respect to the new functions entrusted to the State and insulating their operation from political and electoral influence. On the other hand, they considered the serious effects that changes of government had on Public Administration personnel in the absence of an adequate legal instrument protecting them. Those precedents highlighted the following analysis based on the records of the Constituent Assembly:

“Representative Facio stated that everyone agrees that one day Public Administration employees must be protected by an adequate Civil Service Law. They also agree that a law of this nature is highly complex and cannot be enacted overnight or all at once. It must be adapted gradually to national realities and needs. He added that they had included a special chapter on the Civil Service in the 1949 Draft, some of whose provisions they would submit to the Chamber for consideration in due course. The Draft constitutionally establishes an administrative career service so that past events do not recur in our country, when employees were removed from their positions through mere political maneuvering. However, the members of the Drafting Commission realized the difficulty of establishing the Civil Service Law in Costa Rica. They therefore resolved the matter through a transitory provision worded as follows:

“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) not exceeding ten years, it covers all public servants.” (Volume III, Records of the National Constituent Assembly No. 132, pp. 120 and 121).— That motion—to include two subsections in Article 140 of the Political Constitution—was put to a vote and resulted in a tie, so it had to be considered and voted on at the following session. The proposed second subsection was rejected.— III In accordance with the foregoing, after extensive deliberations, Article 140, subsection 1… was approved. In view of all the foregoing, final approval was given, for Article 140, subsections 1) and 2) of the Political Constitution, to Article 140.-X of the Transitory Provisions, which establishes that:

“The Civil Service Law (Ley de Servicio Civil) shall not enter into force before ocho de noviembre de mil novecientos cincuenta or after primero de junio de mil novecientos cincuenta y tres, as determined by the Asamblea Legislativa. That law may also provide for its rules to be applied gradually to the various departments of the Public Administration (Administración Pública); in any event, that law must protect all public servants (servidores públicos) included in subsection two of Article 140 no later than ocho de noviembre de mil novecientos cincuenta y nueve. Until the Ley de Servicio Civil enters into force, Nombre01 and the respective Ministro de Gobierno may freely appoint and remove all officials under their authority, including the Directors and Managers of the Autonomous Institutions (Instituciones Autónomas) and the members of Boards and official bodies whose appointments were made prior to the effective date of this Constitution, even when such appointments were for a fixed term.” V After approving the Chapter on Instituciones Autónomas, the constituents proceeded to consider the Title and Sole Chapter on the Civil Service (Servicio Civil), whose articles defined its scope of application and principles.

At that time, many public servants were removed from their positions to make room for supporters of the new government, impairing the functioning of the public administration. It was precisely to address this problem that a group of constituents advocated the creation of that legal instrument in order to provide the Administración Pública with greater administrative and operational efficiency. The first proposed article established that “A Civil Service statute (estatuto de Servicio Civil) shall govern relations between the State and public servants, for the purpose of ensuring the efficiency of services, which shall be performed according to technical criteria and by only the personnel strictly necessary.” Deputy Nombre04 summarized the purpose of the statute by stating that it was intended to govern relations between the State and its public servants. As might be expected, this prompted both support and resistance from some deputies, including Representative Esquivel, who considered its inclusion unnecessary because Article 140, subsections 1) and 2), of the Constitución Política already existed, a provision that had already been approved by the Asamblea Nacional Constituyente.

Notwithstanding the aforementioned resistance, it is clear that the issue had not been exhausted merely through the approval of those subsections, since the concept of the statutory regime (régimen estatutario) was itself expanded. Thus, during the discussion of Article 192, Deputy Nombre04 emphasized:

“It is essential to state the core provision of the Ley de Servicio Civil, namely, that no employee may be removed from his position except on grounds for dismissal (causales de despido) established by the Código de Trabajo, or in the event of a compulsory reduction in services (reducción forzosa de servicios) due to an absolute lack of funds or in order to achieve a more efficient and economical organization thereof. Both the employee and the State are protected.” The foregoing discussion emphasized that the mere mention of the Ley de Servicio Civil in the Constitución Política was insufficient; rather, it was necessary to state the fundamental principles of the public-service statute (estatuto de la función pública), the method of appointment based on demonstrated suitability (idoneidad comprobada), and the manner of removal under predetermined legislation, such as labor legislation, or in cases involving a compulsory reduction in services, whether because of a lack of funds or to achieve better organization thereof.

Nevertheless, this Chamber noted that what the Poder Ejecutivo submitted to the Asamblea Legislativa on 14 de abril de 1953, according to expediente n.º 1581, was a bill whose scope was limited solely to its own officials within its area of authority, even though the intent of the Constituent Assembly was to enact a statute for the State; this produced consequences and interpretations involving the application of rules at odds with what the Constituent Assembly intended. The following was expressly noted:

“VI… It is clear that the intent of the Constituent Assembly was to create an administrative labor regime (régimen laboral administrativo). A reading of the records of the Asamblea Nacional Constituyente reveals a distinction between the public employee (empleado público) and the private-sector worker (trabajador privado). There is no doubt that the absence of a legal regime (régimen jurídico) properly governing relations between the State and its public servants violates Article 191 of the Constitución Política, which also entails a violation of Article 11 of the Carta Magna…

VII.On the one hand, the enacted Law (Estatuto del Servicio Civil) has only partial scope, because the initiative taken by the Poder Ejecutivo in this regard was intended solely to govern relations with its own public servants, that is, within its area of authority. From this perspective, the regulation of service relationships (relaciones de servicio) between minor public entities (entes públicos menores) was excluded, since this was either not a matter in which the Executive was interested or simply not what it considered most urgent. On the other hand, the Estatuto del Servicio Civil governed only certain aspects of public servants’ relationship with the State, such as the rights and duties of public servants, their selection, classification, promotion, transfers, discipline, and dismissal regime (régimen de despido)—among the most important—which clearly relate to one of the concerns expressed in the Asamblea Nacional Constituyente, namely suitability and the efficiency of the service.

However, it did not address other equally important aspects, such as that underlying the arguments in this action, namely the regulation of the economic regime (régimen económico) governing that relationship itself and the subjection of other administrative entities to the public labor regime (régimen laboral público). This gap, however, does not authorize the use of mechanisms intended for a private relationship in a public employment relationship (relación de empleo público), which must be governed by its own distinct principles.” (The text in bold does not appear in the original).

In those precedents, the Chamber made clear that an examination of the Constituent Assembly debates reveals a mandate, rather than a mere recommendation, to apply distinct or special criteria to the employment relationship between the public administration and its public servants. For that purpose, pursuant to the aforementioned transitional provision (transitorio), the Asamblea Legislativa was required to enact, between 8 de noviembre de 1950 and 1 de junio de 1953, the Ley de Servicio Civil, whose principal feature would be its gradual application in the offices of the Administración Pública of various kinds; this requirement was not fully satisfied at the time.

As explained in the initial line of case law (línea jurisprudencial), beginning in the year 1949, the legal framework (ordenamiento jurídico) governing the employment relationship between the public administration and its public servants in our country has been governed by public law (derecho público). This regime necessarily entails that, by its very nature, the relationship is based on its own general principles, which are not only different from those of the private labor sector but are often contrary to them.

As indicated, the “legislature…, chose to regulate the service not generally, but by sectors, thus enacting the Estatuto de Servicio Civil (which applies to public servants of the Poder Ejecutivo) and subsequently other statutes governing the provision of services in the remaining branches of the State and in certain decentralized institutions.” (See judgments n.°1990-1119 of 14:00 hours on 18 de setiembre de 1990 and n.°2004-7476 of 14:04 hours on 30 de abril de 2004, among others). And this, as this Court recognized, is consistent with a systematic interpretation (interpretación sistemática) of the Constitución Política, which also recognizes the autonomy of the autonomous institutions and the degree of independence of each of the branches of the State.

In judgment n.° 1999-5966 of 10:30 hours on 30 de julio de 1999, this Court stated as follows:

“SIXTH: THE EMPLOYMENT REGIME OF THE PUBLIC SERVANTS OF THE COMMISSION CREATED BY THE LAW. The consultation states that ‘the fact that regular officials are subject to a special employment regime (régimen de empleo especial)’ violates Constitutional Article 191. Although the Chamber has already established in its case law that when the fundamental provision refers to ‘a civil service statute,’ it does not mean a single statute, since the various Branches exercising the government of the Republic (Constitutional Article 9°) may have their own statutory regime. Regarding this issue, the extensive case law of this Chamber may be consulted, particularly the grounds of judgments numbers 1148-90, of diecisiete horas del veintiuno de setiembre de mil novecientos noventa, and 1696-92, of 15 horas y treinta minutos del día veintitrés de agosto de mil novecientos noventa y dos. What does constitute a violation of the aforementioned constitutional provisions is for a body attached to the Poder Ejecutivo, irrespective of the appointments that might or must be made as a result of and in order to address an emergency, to have ‘a special employment regime’ in which the role of the Dirección General de Servicio Civil is limited to coordinating and overseeing it.

In that respect, therefore, the parties requesting the consultation are correct, and the provision, as conceived, must be eliminated. It should merely be added here that exceptional personnel-hiring mechanisms (mecanismos excepcionales de contratación de personal) could be used in an emergency, but this would be authorized as a matter of principle and would not even require a provision authorizing it.” Other statutes governing this public employment relationship have therefore been accepted; nevertheless, each of those regulatory schemes is subject to the essential limitation of compliance with the principles of suitability (principio de idoneidad) and job stability (estabilidad en la relación laboral) in the public sector, irrespective of the differentiated regime adopted, in accordance with Constitutional Articles 191 and 192. This Chamber reaffirmed that conclusion in judgments numbers 2001-5694 of 16:23 hours on 26 de junio de 2001, 2011-014624 of 15:50 hours on 26 de octubre de 2011, and 2006-17746 of 14:36 hours on 11 de diciembre de 2006.

Accordingly, the constitutional principles and rules governing the Servicio Civil extend to the public employment regime (régimen de empleo público) of administrative entities, because the intent of the Constituent Assembly was to create an administrative labor regime with its own principles, derived from the statutory nature (naturaleza estatutaria) of the relationship between public officials and the State. Although it conceived this regime in general terms, Constitutional Article 192 also contemplated the need to establish exceptions to that single regulatory scheme. This Court demonstrated as much in judgment n.° 1990-1119, stating as follows:

“…The legislature, however, chose to regulate the civil service not generally but by sectors, thus enacting the Estatuto del Servicio Civil (which applies to employees of the Executive Branch) and subsequently other statutes governing the provision of services in the other branches of government and in certain decentralized institutions. Nevertheless, although the legislature did not embrace the framers’ concept and regulated public service only partially, the fact remains that the basic principles of the system (selection based on suitability and employment stability) apply to all officials serving the State, both in the central administration and in decentralized entities. But this is true only in principle, because Article 192 of the Constitution introduces other important elements by stating at the outset, ‘subject to the exceptions established by this Constitution and the Estatuto del Servicio Civil,’ a phrase that requires the foregoing conclusions regarding the scope of application of the civil service system or statute to be qualified.

It is evident that the framers contemplated that not all public servants could be covered by the special system, since the method of selection, the particular qualifications, the duties of each position, and the relationships of trust and dependence are not the same in every case; hence, the principles derived from Article 192 apply to certain officials—the majority—but not to all. The Constitution itself identified several categories of officials subject to discretionary appointment and removal (libre escogencia y remoción), such as government ministers, members of the police force, directors of autonomous institutions, diplomatic representatives, and, in general, ‘employees and officials who hold positions of trust’ (Article 140, subsection 1), leaving it to the law (the Ley de Servicio Civil, as Article 140 states) to identify other officials who, in highly exceptional cases, could be excluded from the general system.

Article 192 reiterates this possibility of excluding certain officials. To repeat, the framers intended there to be a single law, a Statute, governing the entire public service. Nevertheless, what matters is that the ordinary legislature was left to regulate by law the detailed coverage of the special system, which it could do, as it did, through separate laws without undermining the constitutional mandate. Through legislation, the legislature has excluded several categories from the general system. In Articles 3, 4, and 5, the Estatuto de Servicio Civil identifies a significant number of officials who are not considered part of the system. Special legislation has also excluded the executive presidents of autonomous institutions, who are appointed by the Executive Branch, and, in general, a series of officials who are almost always appointed for fixed terms and whose common denominator is that their service relationship is not typically one of employment under a system of hierarchical subordination, but rather one of leadership or collaboration, involving not orders but guidelines in some cases; or else a relationship of trust that requires greater discretion in appointing and potentially removing the official, irrespective of the permanent nature of the function.

Depending on the requirements of the position, this relationship of trust may be based on purely subjective, personal considerations; but it may also arise from objective elements rooted in a shared ideology—political in the positive sense of the term—necessary for the proper administration of public affairs in accordance with plans and programs. It is clear that exceptional cases must be highly qualified and possess the special characteristics described above that justify differential treatment. This must be so because, through unjustified exceptions, the legislature could render ineffective the constitutional provision intended to ensure employment stability for public employees and rationality in recruitment as the general rule. But if the position has some special characteristic that justifies it, the exception will be valid.” (Emphasis not in the original) As may readily be inferred from what has been stated, the original framers intended to subject all public-employment relationships to a statutory administrative-law regime (régimen de Derecho administrativo—estatutario); that is, no body or entity of the Public Administration, whether central or decentralized, was exempt from this duty.

Therefore, although special statutes—specific to decentralized bodies and entities—may exist, provided that they reflect the cardinal principles enshrined in the Constitution, it is likewise true that a single statute governing the relationships between the Public Administration, both central and decentralized, and its employees is constitutionally valid. This means that constitutional law authorizes the Legislative Assembly to establish a single statute encompassing all public servants, subject to the exceptions established by the Constitution—subsections 1 and 2 of Article 140—and by that statute. Consequently, in this respect, the bill under review is not contrary to that law, provided, of course, that the exclusive and exclusionary powers vested in the branches of government and decentralized entities are neither eliminated, materially impaired, nor transferred to other bodies or entities, in accordance with the principle of separation of powers or functions and their respective degree of autonomy.

We must now analyze the grievances—the doubts or alleged constitutional defects—raised by the parties requesting the review.

Justice Garro Vargas’s individual observations regarding this general recital (considerando general) I fully agree with the following statement in the general recital endorsed by the majority:

“It is not unconstitutional for the legislature to subject the entire Public Administration to a framework law on public employment, provided that it rigorously observes the principles of separation of powers and does not deprive the degrees of autonomy granted under constitutional law to the State universities, the CCSS, and the municipalities of their substance.” Accordingly, as reflected in the notes I have entered in this decision, I believe that the legislature may indeed establish a general regulatory framework in this field containing an employment model for all public servants, setting out guidelines on compensation, performance appraisal, demonstration of suitability and accountability in the performance of duties, and so forth. In other words, that framework could embody and develop the constitutional principles of suitability, employment stability, efficiency and security of tenure (inamovilidad), evaluation of results, accountability, and responsibility for the performance of duties (all in accordance with Articles 9, 11, 191, and 192 of the Political Constitution).

Nevertheless, the bill under review, as currently formulated, presents serious conflicts with the Constitution. One concerns the scope of the governing authority (rectoría) exercised by Mideplan. That ministry of the Executive Branch is granted powers without regard for the independence of the branches of the Republic or the constitutionally recognized governmental autonomy of certain institutions.

In these individual observations, I respectfully intend to explain why I also disagree with certain arguments in the general recital concerning the conditions under which the powers of that governing authority are deemed unconstitutional.

First, that recital draws a distinction among officials based on the type of work they perform:

“The decisive issue is whether there are administrative activities in this field that are indispensable to safeguarding the exclusive and exclusionary powers of the branches of government.” This means that the Constitutional Chamber, without any basis in constitutional law, divides public officials into those whose work affects the exclusive and exclusionary powers of the relevant branch or institution with constitutionally recognized autonomy and those whose work supposedly does not. It makes that distinction in order to state that the latter could indeed be subject to such governing authority:

“[T]he power to issue guidelines (…) is unconstitutional when it affects or impinges upon the exclusive and exclusionary powers of the other branches of government, the purposes constitutionally assigned to corporate- or institution-based entities enjoying third-degree autonomy—organizational or regulatory—or second-degree autonomy—political—or the administrative activities necessary for the exercise of those powers.

Therefore, according to that recital, subjection to those guidelines would be constitutional when it does not affect such powers. It thus adds:

However, the foregoing does not mean that all personnel of the branches of government and the aforementioned entities are excluded from the power of direction. In the case of basic, auxiliary administrative services that do not affect exclusive and exclusionary powers or the administrative functions necessary for their performance, each branch of government and entity must determine, within its exclusive and exclusionary authority, which services may be subject to the power of direction. Accordingly, based on the principle of independence of branches or functions and the degrees of autonomy constitutionally guaranteed to each entity, the highest bodies thereof—Corte Plena, Consejo Superior del Poder Judicial, Tribunal Supremo de Elecciones, Consejos Universitarios, Rectorías, Junta Directiva and Presidencia Ejecutiva de la Caja Costarricense de Seguro Social, Concejo and Alcaldes Municipales—have the exclusive and exclusionary authority to determine which basic, auxiliary, common administrative services, and services similar to those throughout the Public Administration, would be subject to the Executive Branch’s powers of direction and regulation.

To summarize: First, it introduces a distinction between public servants who perform functions relating to the powers assigned to the relevant branch or institution with constitutionally recognized autonomy and those who do not. It then states that the respective highest bodies are responsible for making that distinction. This is intended to clarify which services within each branch or institution will be subject to the powers of direction and regulation exercised by Mideplan.

In this regard, it is striking, first, that in that recital the majority of the Constitutional Chamber introduces an element not contained in the bill submitted for review and presents it as a condition of constitutionality: that officials be distinguished by category and that each branch or institution possessing constitutionally granted autonomy make that distinction. In this connection, it must be recalled that this Court’s role is to identify the alleged constitutional defects raised in the request for review, not to propose or make observations concerning matters that are neither expressly challenged in the request nor addressed in the bill Second, such arguments would obviously amount to saying that what would be unconstitutional is for officials who perform duties that directly affect the powers of the branch or institution in question to be subject to the aforementioned governing authority (rectoría).

It would also be unconstitutional for the distinction between one type of official and the other to be made by the legislature or Mideplan. Furthermore, this endorses the existence of two regimes within each branch: one for those subject to the governing authority and another for those who are not. Thus, according to that general recital (considerando general), officials who do not perform work allegedly directly linked to exclusive powers could, without violating the Constitution, be subject to the aforementioned governing authority. Nevertheless, I consider that the powers granted to that governing authority, exercised by Mideplan over those other officials, are likewise unconstitutional because they interfere with the independence or autonomy of the respective organizations in question (branches of government, Tribunal Supremo de Elecciones, Caja Costarricense de Seguro Social, public universities, or municipalities).

In this regard, it must be borne in mind that independence and autonomy are organizational attributes recognized by the Constitution as belonging to the branches or institutions, as applicable. They are not characteristics of the persons 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 pursuit of its specific and exclusive purpose. It is true that within each branch or institution enjoying constitutionally recognized autonomy, there are officials who merely assist more or less directly in the exercise of the organization’s own powers; nevertheless, they perform their work as part of a unified whole with specific purposes. For example, an economist may work as a legislative adviser, as an adviser in a ministry, and so forth; the same applies to a secretary, who might work for a municipality or a branch of the Republic.

However, although the work of each may be substantively very similar to that of a colleague working at another institution, the fact remains that it is performed not in isolation, but as an integral part of the specific purposes of the branch or institution concerned.

Furthermore, it should be added that, in performing that work, the public servant (servidor) has access to information and is responsible for establishing relationships inherent to the position. This last point, which may seem trivial, is not, and the legislature has taken it very much into account by establishing prohibitions and disqualifications (impedimentos) for both current and former officials. It has taken this into account precisely because it knows that, although independence and autonomy—again—are organizational attributes and not attributes of the officials of the branches or institutions, there must be a regulatory framework (marco normativo) ensuring that the persons comprising those organizations do not, through their actions, impair the corresponding independence or autonomy, as applicable. If that is so, it likewise does not appear legally reasonable to regard it as constitutionally valid for officials within each branch or institution possessing autonomy granted by the Constitution to be subject to a ministry of the Executive Branch, as though they were not fully integrated into the organization to which they belong.

This would accomplish by such means what the Constituent Assembly sought to prevent and what the legislature has endeavored to safeguard to date: noninterference by one branch in another or in an institution with constitutionally recognized autonomy.

Thus, because it is an organizational characteristic, independence extends to the entire branch of the Republic. The same may be said of institutions endowed with governmental autonomy (autonomía de gobierno). Now, precisely because this is an organizational attribute, it is true, as the majority states:

“[T]hat ‘the exercise by the Executive Branch or any of its other bodies of hierarchical authority, powers of direction, or internal regulatory authority over the branches of the State, the State universities, the CCSS, and the municipalities is inadmissible from a constitutional perspective.’” But it must be borne in mind that this is inadmissible with respect to the organization as a whole and those who comprise it, without drawing distinctions among officials.

Thus, some activities are essential because they directly affect those powers, while others are not; but that does not mean that the latter may be regulated, controlled, or subjected to a branch other than the branch—or institution with constitutionally recognized autonomy—in which those officials work. The fact that some tasks are not “essential” does not sever the officials who perform them from their subordination to the hierarchy within that branch or institution, as applicable. In other words, the subordination of public servants to their own branch or autonomous institution makes the independence or autonomy granted by the Constitution possible and effective.

The general recital also states:

“Nor can it be overlooked that the branches of the State other than the Executive—under a subjective criterion, the Executive is the branch that by its nature performs administrative activity, Article 1.° of the Ley General de la Administración Pública—exceptionally perform administrative activity—under an objective criterion, Article 2, subsection b) of the Código Procesal Contencioso-Administrativo—as occurs in matters of public employment (empleo público).” I consider that this assertion must be qualified. In fact, the Código Procesal Contencioso Administrativo provides:

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

• a)The Central Administration.
• b)The Legislative and Judicial Branches and the Tribunal Supremo de Elecciones, when they perform administrative functions (funciones administrativas).
• c)The decentralized, institutional, and territorial Administration, and all other public-law entities (entidades de Derecho público) Thus, it is not entirely accurate to assert that the branches—other than the Executive—perform administrative functions only exceptionally. The fact is that they all perform administrative functions, but only one (the Executive Branch, at the central level) has the administrative function as its primary responsibility. That is, within the organizational distribution (branches, bodies, institutions with autonomy recognized by the Constitution, local governments, and so forth), all perform administrative functions. Moreover, they also perform rulemaking and judicial functions (although the latter in the broad sense: they administer administrative justice). Nevertheless, the Executive Branch is regarded par excellence as exercising the administrative or governmental function, the Legislative Branch the rulemaking function, and the Judicial Branch the judicial function, which, in its case, entails adjudicative justice (although it also performs administrative functions internally).

But it is clear that all three functions are exercised within each of them and are essential to the operation and achievement of the purposes of the respective branch. The same could be said of local governments, public universities, and the Caja Costarricense de Seguro Social. Thus, for present purposes, it must be emphasized that all the aforementioned branches and institutions exercise administrative functions, albeit with varying degrees of intensity and scope. Therefore, if all of them exercise administrative functions, it does not appear that they should be deprived of the function relating to the regime governing their own officials and all that it entails, which—as the general recital correctly states—is “typically administrative activity.” In light of the foregoing, I have serious reservations about the proposal contained in that recital. Even if it were said that, in principle, each branch or institution could have the authority to define which officials perform work characterized as “essential,” what becomes unconstitutional is making that distinction for the purpose of transferring that group of public servants to the authority of another branch of the Republic, because doing so would dismantle the republican model established by the Political Constitution.

Accepting that proposal would entail understanding that only the Executive Branch exercises a genuine administrative function and that this would allow the other branches, at least in matters of public employment, to relinquish—or perhaps require them to relinquish—their administration (their governance and even their regulatory authority).

Accordingly, this distinction must not deprive the independence of the branches and constitutionally recognized autonomies of their substantive effectiveness. Therefore, if the legislature were to draw that distinction, it would disregard those organizational characteristics and would thus be unconstitutional. Granting Mideplan itself the power to make that distinction is likewise absolutely inadmissible from a constitutional standpoint. Nevertheless, although it is not inherently unconstitutional to grant by law to the senior authorities (jerarcas) of the respective branches—or institutions endowed with governmental autonomy—the authority to distinguish between public servants who do perform functions affecting their own exclusive and exclusionary powers (competencias exclusivas y excluyentes) and those who allegedly do not, the fact remains that such authority does not cure the constitutional violations at the root of the bill submitted for review, particularly if the purpose of that distinction is to authorize Mideplan’s governing authority over the latter officials.

Furthermore, leaving that determination in the hands of the respective senior authorities—who are temporary by their very nature—subjects them to enormous pressure from their own subordinate public servants, because it is not difficult to imagine that many of them will believe, rightly or wrongly, that their work directly affects the ultimate purpose of the institution itself. It therefore cannot be ruled out that the exercise of this authority could exacerbate disparities and inequities, which is precisely what the bill seeks to eliminate. This is so not only because, as I have stated, it would endorse the existence of two regimes within each organization, but also because the senior authorities might not make such a distinction or might render it practically ineffective. Thus, the fact that the senior authorities have the power to make that distinction does not necessarily achieve the effect sought by the bill. Consequently, the proposal appears to violate the principles of reasonableness and legal certainty (seguridad jurídica).

The purpose underlying the establishment of a civil service statute (estatuto de servicio civil), as may be recalled from the records of the Constituent Assembly and from a reading of Articles 191 and 192 of the Political Constitution, was to prevent political interference by the respective Executive Branch in relations between the State and public servants. Nevertheless, establishing Mideplan as the governing authority of the General Public Employment System (Sistema General de Empleo Público), with express authority to issue generally applicable provisions, directives, and regulations concerning planning, work organization, employment management, performance management, compensation management, and labor relations, with authority over other branches of the Republic and institutions with constitutionally recognized autonomy, permits what the Constituent Assembly sought to prevent: such political interference. This is so because that governing authority is vested in a ministry of the Executive Branch whose head may be freely removed by the President of the Republic, and its powers have cross-cutting effects because they do not recognize the boundaries established by the independence of the branches and constitutionally established autonomies.

Specific observations by Justice Picado Brenes regarding this general recital From my perspective, public employment (empleo público) is a matter of evident significance for Costa Rican democracy, the organization of the State apparatus, and the rule of law in general. I therefore consider it appropriate to emphasize certain aspects established by the case law of this Chamber regarding public employment and the Civil Service Statute (Estatuto de Servicio Civil). Public employment in Costa Rica, as a particular statutory regime governed by public law (Derecho Público), has its constitutional foundations in Articles 191 and 192 of the Political Constitution. Before 1949, public employment in Costa Rica was essentially governed by private law (initially the Civil Code and subsequently the Labor Code). This is why the constitutional regulation of this subject adopted in 1949 is so consequential.

The debate in the National Constituent Assembly concerning those articles shows that public employment in Costa Rica is governed by a special legal framework—public law—and constitutes a true statutory regime (régimen estatutario). When discussing the titles concerning Autonomous Institutions and the Civil Service, our framers decided to elevate them to constitutional status, aspiring, on the one hand, to decentralize the Executive Branch’s power over the new functions entrusted to the State and to curb political and electoral influence over their operation. On the other hand, they considered the serious effects that changes in government had on public administration personnel in the absence of an adequate legal instrument to protect them (see ruling n°1992-001696). As this Chamber has stated on previous occasions (see ruling n°2018-00231), our original framers provided in the 1949 Political Constitution for an administrative employment regime governing relations between public servants and the State, in order to protect the former against arbitrary dismissals (employment stability) and to professionalize the public service (by seeking service efficiency and the suitability of public officials).

The purpose of this undertaking was to ensure that the Public Administration had organizational mechanisms enabling it to fulfill citizens’ right to the proper functioning of public services. The civil service regime (régimen de servicio civil) was therefore established not as a corporate privilege but as a guarantee of institutional impartiality. Regarding this subject and several of the matters submitted for consultation, it is important to determine whether the Civil Service Statute mentioned in Constitutional art.191 refers to ONE single statute and whether it encompasses all State servants (the Central Public Administration and the Decentralized Public Administration). In light of constitutional case law, I consider that the existence of a general public-employment law in Costa Rica would be consistent with the framers’ mandate. This is so provided that the law contains only general principles, general provisions, and guiding criteria, and respects the other principles safeguarded by the Constitution, such as the principle of separation of powers and the respective degrees of autonomy enjoyed by the various decentralized institutions.

Those general principles or guidelines would serve to advance the depoliticization of public employment by ensuring compliance with the principles of entry based on demonstrated suitability and continued employment based on the principle of stability, as established in Constitutional art.191 and 192. Accordingly, anything exceeding the foregoing would fall outside the constitutional framework—for example, if such a law sought to establish a governing authority over public employment under the responsibility of a body operating above the other Branches of the Republic and the decentralized Administration (territorial and functional), or if it established rules intended to regulate matters within the internal sphere of the independence of the Branches and their autonomy. In such cases, both the Executive Branch and the Legislative Branch are barred from exercising authority.

The 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), which initially stated the following:

“II.- Regarding the first issue: which officials are covered by the Civil Service Regime? A study of the records of the Constituent Assembly reveals that the deputies sought to adopt, at the constitutional level, the special public-service regime they called the civil service, which already existed in other Latin American constitutions at that time. The framers, however, avoided regulating this subject in excessive detail and instead decided to include in the Constitution only the fundamental principles that would define that regime, namely: special rules for public servants, the requirement of demonstrated suitability for appointment, and a guarantee of stability in service, all for the purpose of achieving greater efficiency in the Administration, while leaving the development of the institution to legislation. (Record No. 167, art. 3, Vol. III). Article 191 uses the term civil service ‘statute’ rather than civil service ‘regime,’ and this choice was meaningful: the position favoring a single statute—one body of law governing public service and developing the minimum guarantees established by the Constitution—prevailed over the minority view advocating dispersed regulation.

(Record No. 167, art.3, Vol. III, p.477). The legislature, however, chose to regulate the service not generally but by sector, thus enacting the Civil Service Statute (which applies to servants of the Executive Branch) and subsequently other statutes governing the provision of services in the remaining Branches of the State and in certain decentralized institutions. Nevertheless, although the legislature did not adopt the framers’ idea and regulated public service only partially, the fact remains that the regime’s fundamental principles (selection based on suitability and employment stability) cover all officials serving the State, both in the central Administration and in decentralized entities. This is only the general rule, however, because Constitutional Article 192 introduces other important elements by stating at the outset, ‘subject to the exceptions established by this Constitution and the civil service statute,’ a phrase that requires the preceding conclusions concerning the scope of the civil service regime or statute to be qualified.

The framers clearly understood that not all public servants could be covered by the special regime, because the method of selection, the special qualifications, the duties of each position, and relationships of trust and subordination are not the same in every case. The principles derived from Article 192 therefore apply to certain officials—the majority—but not to all. The Constitution itself identified several categories of officials who may be freely selected and removed, including government ministers, members of the police force, directors of autonomous institutions, diplomatic representatives, and, in general, ‘employees and officials holding positions of trust’ (art. 140 subsection 1), while leaving it to the law (the Civil Service Law, according to Article 140) to identify other officials who, in very exceptional cases, could be excluded from the general regime. Article 192 reiterates this possibility of excluding certain officials.

To repeat, the framers intended that there be a single law, a Statute, governing the entirety of public service. Nevertheless, what matters is that the ordinary legislature was entrusted, through legislation, with detailed regulation of the special regime’s coverage, which it could do, as it did, through separate laws without detriment to the constitutional mandate. By statute, the legislature has excluded several categories from the general regime. (…).” The Chamber subsequently clarified its earlier position concerning the existence of a single body of law, adopting a systematic interpretation of the Constitution in judgment number 2018-00231, in which it stated as follows:

“III.- On the statutory regime. Our original framers provided in the 1949 Political Constitution for an administrative employment regime governing relations between public servants and the State, in order to protect the former against arbitrary dismissals (employment stability) and to professionalize the public service (by seeking service efficiency and the suitability of public officials). The purpose of this undertaking was to ensure that the Public Administration had organizational mechanisms enabling it to fulfill citizens’ right 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 set forth in Constitutional Articles 191 and 192, thereby securing suitable personnel for public positions in order to guarantee efficiency and effectiveness in the public service. The civil service regime was therefore established not as a corporate privilege but as a guarantee of institutional impartiality.

(…)

VI… It is clear that the framers intended to create an administrative employment regime. The records of the National Constituent Assembly distinguish between public employees and private-sector workers. There can be no doubt that the absence of a legal regime appropriately governing relations between the State and its servants violates Article 191 of the Political Constitution, which also entails a violation of Article 11 of the Constitution…

(…) XI In the Chamber’s opinion, therefore, Articles 191 and 192 of the Political Constitution establish, as a matter of principle, the existence within the public sector of an employment regime governed by public law, as is clear from the debate in the National Constituent Assembly and as is reflected in an incipient manner in the General Law of Public Administration. This public-employment regime necessarily entails consequences arising from the nature of that relationship and has its own general principles, which are not merely distinct from those of (private) labor law but are often contrary to them…” In light of the foregoing, it is clear and evident that, beginning in 1949, the legal system governing the employment relationship (relación de empleo) between the public administration and its employees in our country has been governed by public law (derecho público), a principle reiterated in Article 112 of the Ley General de la Administración Pública (see, to that effect, judgment No. 1995-3125 issued at 16:24 hours on 14 de junio de 1995).

This system necessarily entails—as stated in the precedent cited above—that this relationship, by its very nature, is based on its own general principles, which are not only different from those of (private) labor law (derecho laboral), but are often even contrary to them. Now, as this Court has demonstrated in its case law (jurisprudencia), the “legislature,…, chose to regulate the civil service not generally, but by sectors, thus enacting the Estatuto de Servicio Civil (which applies to employees of the Executive Branch) and subsequently other statutes to regulate the provision of services in the other branches of government and in certain decentralized institutions.” (see judgments No. 1990-1119 issued at 14:00 hours on 18 de setiembre de 1990 and 2004-7476 issued at 14:04 hours on 30 de abril de 2004, among others). The foregoing is consistent with a systematic interpretation (interpretación sistemática) of the Political Constitution (Constitución Política), which also recognizes the autonomy of autonomous institutions and the degree of independence afforded to each branch of government.

The Chamber likewise clarified this in judgment No. 1999-5966 issued at 10:30 hours on 30 de julio de 1999, when deciding the optional constitutional review (consulta facultativa de constitucionalidad) of the Bill “Reforma a la Ley Nacional de Emergencias N°4374 del 14 de agosto de 1969,” stating as follows: “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 case law that when the fundamental provision refers to ‘a civil service statute,’ it does not mean a single statute, since the various Branches that exercise the government of the Republic (Article 9 of the Constitution) may each have their own statutory regime (régimen estatutario)…”.

(…) According to the Chamber’s findings in judgment No. 2003-10615, the final wording given to Article 191, together with the far-reaching decentralization process undergone by the Costa Rican State beginning in 1949, resulted in the present validity of various statutory employment relationships (relaciones estatutarias) within the Administration, in view of the functional independence and administrative autonomy that the legal system guarantees to several public institutions. However, “what is not legitimate—as stated—is for relations between each Administration-employer and its officials to be governed by mutually agreed (contractual) rules, as may validly occur in private employment relationships.” (…)

As a corollary of the foregoing, the public employment relationship applicable to public employees is a special public-law or statutory relationship which, by reason of that legal nature, is subject to limitations regarding the application of ordinary labor law. Its regulation is also subject to Articles 11, 191, and 192 of the Political Constitution. (…)” Based on the foregoing, I believe the following conclusions may be reached:

-FIRST: A single public employment regime, but not a SINGLE Statute, which must be interpreted in light of the principles of separation of powers and autonomy: The sector-by-sector regulation of public employment “is consistent with a systematic interpretation of the Political Constitution, which also recognizes the autonomy of autonomous institutions and the degree of independence afforded to each branch of government.” (see judgment n°2018-00231). Accordingly, “when the fundamental provision refers to ‘a civil service statute,’ it does not mean a single statute, since the various Branches that exercise the government of the Republic (Article 9 of the Constitution) may each have their own statutory regime…” (see judgment n°1999-005966). Therefore, “one” cannot be understood to mean a single legal instrument, but rather a single regime of principles and guarantees: “in referring to a single regime applicable to public employees, the Constitution did not restrict the concept of ‘statute’ to a single legal instrument, but instead sought to establish a uniform regime of principles and guarantees governing the protection of public employees’ labor rights, particularly with respect to their right to job security” (see judgment n°1993-06240).

What the Constituent Assembly (Constituyente) referred to, therefore, was a single public regime covering all officials serving the State—that is, a public-law regime (in which appointment on the basis of merit and continued employment with job security are guaranteed), distinct from private or contractual law. It did not, however, refer to a single body of law, because “the existence of various statutory employment relationships within the Administration is valid, in view of the functional independence and administrative autonomy that the legal system guarantees to several public institutions.” (see judgment n°2018-00231).

-SECOND: Principles of the civil service regime (only rules containing general principles) that are mandatorily applicable throughout the State: The basic principles of the civil service regime (selection based on merit and job security) cover all officials serving the State, both in the central administration and in decentralized entities. This is because the legislature chose to regulate the civil service not generally, but by sectors, thus enacting the Estatuto de Servicio Civil (which applies to employees of the Executive Branch) and subsequently other statutes to regulate the provision of services in the other branches of government and in certain decentralized institutions. One example is the enactment of the Ley de Personal de la Asamblea Legislativa n° 4556 del 29 de abril de 1970. Despite this diversity of laws, it is evident that the constitutional principles of the civil service apply to all public officials and to every existing sector.

These principles, rather than the specific provisions of the Estatuto de Servicio Civil, are mandatory for the entire State apparatus, because the Constituent Assembly sought to end the practice whereby many public employees were removed from their positions to make room for supporters of the incoming government. In other words, the Constituent Assembly sought to depoliticize the appointment and removal of public officials by establishing the two overarching principles listed in art.192 of the Constitution: merit and job security.

-THIRD: Recognition of several cases excluded by the Constituent Assembly itself: The Constituent Assembly contemplated that not all public employees could be covered by the special regime, because the method of selection, the special qualifications, the duties of each position, and relationships of trust and dependency are not the same in every case (see decision n°2018-0231). The Constitution itself and the legislature were therefore entrusted with establishing various cases excluded from the general regime, as stated in the phrase with which art.192 of the Constitution begins: “Subject to the exceptions established by this Constitution and the civil service statute.” -FOURTH: Recognition of differentiated employment regimes in several cases: In various decisions, this Chamber has recognized differentiated regimes governing, for example, judicial officials (see judgment n°2001-005694 and n°2018-019511), the Caja Costarricense de Seguro Social (see judgment n°2011-014624), and the Instituto Costarricense de Electricidad (see judgment n°2006-017746). It is therefore clear that the Constituent Assembly referred to a single public employment regime (governed by public law and based on the principles of merit and job security), but not to a single Statute or legal framework for the entire State apparatus.

-FIFTH: The only way to understand “One Statute” as applicable throughout the State is to understand it as “One regime”: The only way to interpret correctly the constitutional text when it says “One statute” is to understand it as meaning that there is a single statutory regime, with its own principles and rules distinct from private law, to safeguard merit and job security, but not to subject the entire State apparatus—disregarding the principle of separation of powers and the limits of administrative oversight (tutela administrativa)—to a series of rules originating in a single body of law. A single statutory regime that guarantees the principles of merit and job security throughout the employment regime of the entire State apparatus is very different from centralizing those rules in a single body of law that assigns all powers and authority over public employment matters to an agency of the Executive Branch. Interpreting it in that manner would be wholly contrary to the Constituent Assembly’s intention to depoliticize public employment. It is clear that the Constituent Assembly contemplated that NOT all public employees could be covered by a single body of law, much less one administered and centralized by the Executive Branch.

-SIXTH: The system of autonomous institutions established by the Constituent Assembly to prevent the concentration of power.- The 1949 Constituent Assembly established a system of separation of powers and a system of autonomous institutions as the foundation of our constitutional law (Derecho de la Constitución). All of this was embodied in various 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 (art. 84 and 85), and the autonomy of autonomous institutions (art.188). In this regard, representative Rodrigo Facio Brenes clearly stated before the Asamblea Nacional Constituyente: “(…) what the system of autonomous institutions seeks is to decentralize the State’s fundamental economic functions in such a manner that the administrative growth inherent in the modern world does not entail a corresponding expansion of the Executive’s political power.

The thesis that the President, or the Executive, must possess all powers in the final instance; the theory that the President must exercise sole hierarchical authority over the Administration—that is the statist or totalitarian [sic] theory; the theory of autonomous institutions, which seeks to multiply the heads of government entities in order to prevent the concentration of power and resources, is the democratic thesis. (…)” (Acta N°166, 13/X/1949, p.5). All of this is further complemented by a system of decentralization of power and depoliticization of public employment, which is incompatible with a single body of law centralizing authority in the Executive Branch.

Moreover, I consider it necessary to offer these two additional reflections regarding the separation of powers and the system of autonomous institutions:

-SEVENTH: The exclusion of the Branches of Government (exclusión de Poderes) applies both to the Executive Branch and to the Legislative Branch.- In the specific case of the Judicial Branch, there is an area from which the Executive Branch is barred, but also one from which the Legislative Branch is barred. I do not agree with the arguments set forth in the general recital (considerando general) of this judgment, to the effect that “there is no compartment or area excluded from the law as regards the exclusive competencies of the Supreme Court of Justice, the Supreme Electoral Tribunal, the State Universities, and the municipalities.” Quite the contrary, as regards the exclusive 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 Legislature.

The Executive Branch, through Mideplán, could never act as the highest authority (jerarca) 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. Furthermore, neither could the Legislative Branch, through the exercise of its legislative power (potestad legislativa), ever intrude into matters falling within the internal competencies of those same institutions. This follows from the scope of protection afforded by the constitutional principle of separation of powers (principio constitucional de separación de poderes) and administrative decentralization (descentralización administrativa). Thus, for example, the legislature could not enact rules instructing the Supreme Court of Justice as to which parameters it must or must not follow in the processes of selection, recruitment, evaluation, salaries, dismissal, among others.

It may establish general guidelines addressing the content of constitutional rules (fitness, employment stability, efficiency, transparency, accountability), but it may not intrude into how the Judicial Branch must operationalize all those matters, which fall within the sphere of its administrative independence (independencia administrativa). I consider the enactment of legal rules by the Legislative Branch concerning the internal competencies of the other Branches of Government to be constitutionally impermissible. In short, just as it is impermissible for the Executive Branch to exercise hierarchical, directive, or internal regulatory authority over the Branches of Government, the State Universities, the CCSS, and the municipalities, it is likewise impermissible for the Legislative Branch to enact laws containing rules that direct the other Branches of Government or decentralized entities (entes descentralizados) as to how they must exercise their competencies.

-EIGHTH: There is an area from which the Legislative and Executive Branches are excluded with respect to ANY of the competencies: With respect to any of the 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 applicable to both the Legislative Branch and the Executive Branch. I do not agree with the majority’s position of dividing the competencies of a Branch of the Republic into exclusive and non-exclusive competencies, as if the principle of separation of powers could be invoked only with respect to the former and not the latter. Clearly, no other Branch may intervene in any of the competencies assigned to a Branch of the Republic. I consider that such distinctions endanger the foundations of the rule of law (Estado de Derecho), because they suggest that, with regard to so-called “neither exclusive nor exclusionary competencies,” one Branch may interfere with another.

Nothing could be more dangerous or further removed from what the principle of separation of powers should mean. In this regard, dissecting, dismembering, dividing, or distinguishing the services provided by each Branch of the Republic into exclusive and exclusionary services, on the one hand, and ancillary administrative services (servicios administrativos auxiliares), on the other, so as to permit interference by the Branches in the latter, is an abhorrent distortion of the most basic foundations of our rule of law. It would be tantamount to accepting that one Branch may not extend “its entire arm” into another Branch, while allowing “the hand of that arm” to enter, which in this case would be precisely those ancillary administrative services. Interference is interference, whether extensive or limited, but it is interference nonetheless. 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 secured, nor the separation of Powers determined, has no Constitution. “ In this regard, we would cease to have a Constitution if any attenuation of the principle of separation of Powers were permitted. Clearly, Article 9 of our Constitution states that the Government of the Republic “is exercised by the people and three separate Branches that are independent of one another: the Legislative, the Executive, and the Judicial.” Thus, the three Branches of the Republic are separate and independent. There can be no independence if one Branch interferes with another, even when that interference concerns only the so-called “ancillary administrative services.” This would therefore be a case in which Mideplán could interfere with the “ancillary administrative services” of the Judicial Branch. As Deputy ESQUIVEL stated in the Constituent Assembly (minutes n°88), “the classical concept of the independence of the Branches constitutes a balance among the various organs of the State.

It also serves as a guarantee for citizens.” This is therefore not about defending a special jurisdictional privilege (fuero especial) of the Judicial Branch, for example, but rather about defending the genuine independence of the Branches as a guarantee for citizens, the Constitution, and the rule of law. I agree that it is not unconstitutional for the legislature to subject the entire Public Administration to a framework law on public employment (ley marco de empleo público), but only with respect to general principles and guidelines and, moreover, as the general recital states, “provided that it rigorously observes the principles of separation of powers and does not deprive of substance the degrees of autonomy granted by Constitutional Law to the State Universities, the CCSS, and the municipalities.” But this condition is rendered meaningless if it is accepted that, in matters of public employment, Mideplán (an organ of the Executive Branch) may exercise interference, competencies, decision-making authority, and hierarchical authority over the “ancillary administrative services” of the Supreme Court of Justice, the Supreme Electoral Tribunal, the State Universities, the CCSS, and the municipalities.

Even though the general recital states that each Branch of Government and each entity defines which services constitute its “ancillary administrative services,” this does not eliminate the fact that it would amount to a form of “consensual interference,” and therefore would still be “interference.” At this point, it is unclear how this could be operationalized in practice, since the Judicial Branch could perfectly well state that it has no ancillary administrative services, but rather that all its services fall within its exclusive competencies, and could thereby bar Mideplán from intervening in those services. Furthermore, it should be noted that the Judicial Branch, for example, could not perform all its functions without all its personnel, in every area and with complete independence, since every person, from the most modest position to the highest position in the hierarchy, is part of the machinery that enables the institution to perform its functions and provide its constitutionally assigned services each day.

In short, I consider that when the Constituent Assembly referred to a Civil Service Statute (Estatuto de Servicio Civil), it was referring to a general system of Public Law (régimen general de Derecho Público), with its two fundamental pillars (fitness and stability), but not to a single regulatory framework. If the legislature intended there to be a single law governing public employment, it would be limited to regulating only general aspects of Articles 191 and 192, and could not, as was attempted through the bill under consultation, intrude into matters falling within the competencies of the various Branches of Government and decentralized entities. Furthermore, for the constitutional principle of separation of Powers to be genuinely effective, each Branch of the Republic is completely barred from intruding into the competencies of another Branch, even when those competencies are deemed “ancillary administrative services.”

IX. Regarding the consultation on a violation of judicial independence.-

• 1)Matters submitted for consultation The consulting deputies consider that the following articles of the bill entitled "LEY MARCO DE EMPLEO PÚBLICO", which is being processed under legislative expediente n° 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 request consultation regarding the articles listed either in the heading of the general title or elsewhere in the text of the filing:

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

First, with respect to Articles 12 (database), 13.h (family of positions of trust), 15 (recruitment and selection principles), 19 (mobility or transfers), and 31 (work methodology), because sufficient grounds were not provided to enable this Chamber to clearly understand the matters submitted for consultation, the consultation is declared unanswerable (inevacuable) for lack of supporting grounds. The Chamber observes that, despite what the consulting deputies stated in the consultation, the fact is that they failed to provide adequate grounds and, by that omission, prevented this Court from ascertaining the precise nature of their challenge and the reasons why they may have considered that such rules could potentially raise issues of constitutionality in general or, specifically, in relation to the Judicial Branch and the Supreme Electoral Tribunal. In this regard, it is necessary to recall the provisions of Article 99 of the Ley de la Jurisdicción Constitucional, which states:

"Article 99.- Except in the case of the mandatory consultation provided for in subsection a) of Article 96, the consultation must be submitted in a reasoned brief, specifying the challenged aspects of the bill, as well as the grounds for any doubts or objections regarding its constitutionality." Against this backdrop, since the Chamber lacks sufficient information to analyze this provision, the appropriate course is, unanimously, to declare that the constitutional consultation concerning the bill entitled “LEY MARCO DE EMPLEO PÚBLICO,” being processed under legislative expediente n° 21.336, cannot be answered with respect to articles 12 (database), 13.h (family of positions of trust), 15 (recruitment and selection principles), 19 (mobility or transfers), and 31 (work methodology), due to the lack of grounds supporting the consultation as it relates to the Poder Judicial and the Tribunal Supremo de Elecciones. Accordingly, it must be understood that this Chamber refrains from issuing any ruling whatsoever on whether these provisions are constitutional.

As for the remaining provisions, the petitioners consider them unconstitutional because they seek 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 state that the bill allows an agency of the Poder Ejecutivo to interfere in the employment management of the Poder Judicial, including by issuing rulings or circulars (art.7). This would permit intrusions extending beyond purely administrative or salary-related matters. They consider the violation of the principles of separation of powers and the autonomy and independence of the Poder Judicial to be evident. They state that the bill violates the principle of separation of powers, the autonomy and independence of the Poder Judicial, and the principles of legality, legal certainty, proportionality, and reasonableness, because it seeks to regulate employment relationships between public servants and the Poder Judicial (art.2.a), subjecting it to the application of the Estatuto de Servicio Civil pursuant to the amendment to art.1 of that body of law (art.49.B); placing the Departamento de Gestión Humana of that Branch under the governing authority of Mideplán (art.6); requiring it to apply and implement the generally applicable provisions, directives, and regulations concerning workforce planning, employment management, performance management, compensation management, and labor-relations management issued by Mideplán (art.9); establishing a single public-employment regime that would include persons who administer justice (art.13); requiring the recruitment and selection of Poder Judicial personnel to follow the generally applicable provisions, directives, regulations, circulars, manuals, and rulings issued by Mideplán for each occupational family (familia de puestos) (art.14); and imposing the same requirements on senior technical-management personnel, for whom it establishes a 6-month probationary period and a 6-year appointment (art.17 y 18), with the possibility of annual extensions subject to performance evaluation.

It also subjects the bodies of the Poder Judicial whose powers are assigned under the Estatuto de Servicio Judicial and the Ley de Salarios del Poder Judicial to the requirement that they coordinate all matters concerning public employment with Mideplán in its capacity as governing authority. In addition, it establishes a single dismissal procedure even though one is already governed by special legislation (art.21 y 22).

The indicated articles will therefore be examined. First, a summary of the case law concerning judicial independence will be provided as context for the examination of each article under consultation.

• 2)Case-Law Background on the Constitutional Principle of Separation of Powers and the Constitutional Principle of Judicial Independence To understand the critical importance of judicial independence to a state governed by the rule of law such as ours, it is necessary to begin with another fundamental principle of every democratic system: the principle of separation of powers. The Declaration of the Rights of Man and of the Citizen of 1789 states the following in article 16:

“Article 16.- A society in which the guarantee of rights is not established, nor the separation of powers determined, has no Constitution.” This means that one of the two fundamental pillars for the genuine existence of a Constitution is the protection of the principle of separation of powers. According to the settled constitutional case law concerning this principle, the Government of the Republic is exercised by the people and by three distinct and mutually independent Branches: the Legislativo, the Ejecutivo, and the Judicial. This principle, enshrined in article 9 of the Constitución Política, 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 rules for the direct benefit of the country’s inhabitants.” (judgment n°2006-013708). Since judgment n°6829-1993, the theory of separation of powers has been interpreted as requiring each State Body to perform its function independently of the others (article 9 of the Constitución Política).

Although there may be no interference with or encroachment upon an assigned function, cooperation among the Branches must necessarily occur. Today, constitutional doctrine and practice maintain that it is more appropriate to speak of a separation of functions, meaning their distribution among the various State bodies. This Chamber also has extensive case law specifically concerning the independence of the Poder Judicial and the independence of judges. In general, it has held that, in democratic political systems, the principle of judicial independence—both the independence of the individual judge in particular and that of the Poder Judicial in general—is of fundamental value because the legitimacy of judges and the impartiality of judicial decisions rest upon it. It has stated that, for the proper functioning of the democratic state governed by the rule of law—understood in accordance with its premise of the primacy of law—it is essential that the judicial function be exercised without undue pressure within a genuinely independent Poder Judicial.

In Costa Rica, this principle is not only firmly grounded in the Constitution but is also recognized in numerous international instruments. From its earliest decisions, this Chamber has emphasized the importance of judicial independence by reaffirming that the administration of justice falls within the exclusive jurisdiction of the Poder Judicial (see judgment n°1991-0441 y 1994- 2358, 1996-6989, 1999-4555, 2006-7965). The Corte Interamericana de Derechos Humanos—the judicial body of the Inter-American Protection System—has held:

“(…) one of the principal objectives of the separation of public powers is to guarantee the independence of judges” (Corte IDH. Case of the Tribunal Constitucional v. Perú. Merits, Reparations, and Costs. Judgment of 31 de enero de 2001 Series C No. 71, para. 73).

It has also stated that “Such autonomous exercise must be guaranteed by the State both in its institutional dimension, that is, with respect to the Poder Judicial as a system, and in connection with its individual dimension, that is, with respect to the individual judge concerned. The purpose of this protection is to prevent the judicial system generally, and its members specifically, from being subjected to possible undue restrictions in the performance of their functions by bodies outside the Poder Judicial or even by judges who perform review or appellate functions. Additionally, the State has a duty to ensure that the judiciary presents an appearance of independence that inspires legitimacy and sufficient confidence not only in litigants but also in the citizens of a democratic society.” (Corte IDH. Case of Nombre05 et al., “Corte Primera de lo Contencioso Administrativo,” v. Venezuela. Preliminary Objection, Merits, Reparations, and Costs. Judgment of 5 de agosto de 2008. Series C No. 182, para. 55.).

Judgment n°1999-1807 explained the constitutional and treaty-based foundations of the principle of judicial independence, emphasizing both external independence—that of the Poder Judicial as a body—and internal independence—that of the judge:

“VIII.- The independence of the Poder Judicial is constitutionally guaranteed by articles 9 and 154. The American Convention on Human Rights, an international legal instrument directly applicable in our country, also addresses this subject. The American Convention on Human Rights establishes judicial independence 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 made against that person, or for the determination of that person’s civil, labor, or other rights and obligations. 2.- ...» The independence of the Judicial Body is outward-facing. The Judicial Body is independent from the other Branches of the State; the same cannot simply be said of the judge, whose independence must be analyzed in a more complex manner.

Nevertheless, when it is asserted that a Poder Judicial is independent, the same must be said of its judges, because they are the persons responsible for carrying out the function entrusted to it. The independence that should truly concern us—without diminishing the importance of the independence of the Judicial Body—is that of the judge in relation to the specific case, because it is this independence that serves as a guarantee for the citizenry under the terms of the American Convention on Human Rights. The effective independence of the Poder Judicial helps ensure that the judges who comprise it may also be independent; however, it is entirely possible for the Body as a whole to have its independence guaranteed by law while its members are not independent, for a variety of reasons” (cited in decisions n° 2006-15252, 2008-9495, 2008-16529).

Regarding the relationship between judicial independence and the principle of impartiality, decision n°1998-2378 stated: “The independence and impartiality of judges are interrelated concepts and are unquestionably constitutional principles in a political system such as ours. Independence means that a judge is subject only to the Constitution and the Law, while impartiality means that, when deciding a case, the judge will not be guided by any interest other than the correct application of the law and the just resolution of the case.” Regarding judicial independence (independencia judicial) as a guarantee for judges and a fundamental right—a guarantee for the parties to the proceedings—judgment n°1998-5795 held: “The principle of the independence of the Judiciary (Poder Judicial) derives from the provisions of Article 154 of the Political Constitution (Constitución Política), which states: ‘The Judiciary is subject only to the Constitution and the law, and the decisions it issues in matters within its jurisdiction impose no liabilities upon it other than those expressly established by legislative provisions.’ This principle encompasses both the body or institution as a whole and the judge’s adjudication of matters submitted for decision.

With respect to judges, it must also be recognized that their office is subject to dual protection, because judicial independence—as a guarantee for the parties involved in the sub judice matter—applies both externally and internally, in the sense that judges are protected from influences and interference—whether external or internal—that could sway the decision one way or another in a specific case submitted to them, so that they may rule in strict accordance with the regulations in force. In other words, judges are protected so that neither the parties participating in the proceedings, third parties, higher-ranking judges, nor ‘influential’ members of the branches of government, including the Judiciary itself, may influence their decisions; still less could a higher-ranking authority require a judge to decide a specific case in a particular manner or coerce the adjudicator into doing so.

The guarantee of judicial independence, more than a guarantee for these officials—which it indeed is—constitutes a guarantee for private persons—the parties to the proceedings—that their cases will be decided in strict accordance with the Constitution and the laws.” It follows that the definition of judicial independence includes the following two types:

• External judicial independence (independencia judicial externa): refers to the existence of a set of safeguards intended to prevent a court from being controlled by other government bodies, such as the Executive and Legislative Branches. It concerns the Judiciary’s relationship with other participants in the political system. In this respect, the system for the administration of justice is autonomous insofar as it depends upon itself rather than upon other branches. External independence is the absence of external pressures or influences that render the institution vulnerable as a result of threats to the availability of resources that allow it to perform its work autonomously, to the job security and promotion prospects of its officials, to their personal integrity and property, and to its infrastructure capabilities for addressing the public’s demands.

• Internal judicial independence (independencia judicial interna): concerns judges’ ability to issue judgments without fear of retaliation.

“Adjudicative independence” (independencia de ejercicio)—the fact that a judge resolves a dispute free from improper interference—becomes “structural independence” (independencia estructural)—the set of formal safeguards and structural conditions that protect judges and the Judiciary from any form of intervention or control. Voto n°2001-6632 emphasized the importance and constitutional status of the principle of judicial independence, including as a right of citizens, stating: “Today, no one can diminish the transcendental role played by the independence of judges in the actual functioning of the democratic rule-of-law state. It is clearly accepted that, more than a principle, and even beyond what might be described as a privilege granted to judges, this is the right of citizens to have independent judges.” Subsequently, judgment n°2015-15726 reiterated the principle of judicial independence, including as a fundamental value of a democratic system: “III.- ON THE PRINCIPLE OF JUDICIAL INDEPENDENCE.

Within democratic political systems, the principle of the independence of judges in particular and of the Judiciary in general has fundamental value because the legitimacy of judges and the impartiality of judicial decisions rest upon it.” Judgment n° 2000-5493 may also be mentioned, in which it was stated that the independence of the Judiciary is reflected, in economic matters, in its financial autonomy and the security of tenure (inamovilidad) of its personnel and, functionally, in its actual ability to make decisions according to its own criteria and not as a result of pressure from particular groups, institutions, or individuals:

“With respect to the principle of judicial independence, we must note that this principle derives constitutionally from Article 153 of the Political Constitution, which states: ‘In addition to the functions assigned to it by this Constitution, the Judiciary shall hear civil, criminal, commercial, labor, and contentious-administrative cases, as well as any other cases established by law, regardless of their nature or the status of the persons involved; shall issue final decisions in such cases; and shall enforce the decisions it renders, with the assistance of the public force if necessary.’ In the same regard, Article 154 of the Constitution provides: ‘The Judiciary is subject only to the Constitution and the law, and the decisions it issues in matters within its jurisdiction impose no liabilities upon it other than those expressly established by legislative provisions.’ The constitutionally established legal framework governing judicial independence is supplemented by Articles 1 through 8 of the Ley Orgánica del Poder Judicial, which elaborate upon these constitutional foundations.

Reference must also be made to Articles 162 through 173 of the Ley Orgánica del Poder Judicial, which address the jurisdiction (jurisdicción) and competence (competencia) of judges. The following provisions are particularly relevant: ‘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 hold office or is temporarily suspended from performing judicial duties.’ ‘Article 165. Every judge’s competence is limited to the territory and class of matters assigned to that judge; proceedings required in cases before the judge that must be conducted in the territory of another judge may be conducted only through that other judge, unless otherwise authorized by law. A judge may hear matters not assigned to that judge’s competence only when such competence has been lawfully extended or delegated.’ Taking the foregoing legal framework into consideration, this Chamber (Sala) finds that the principle of adjudicative independence may be defined as the authority granted by the Constitution and the law whereby a judge, acting within the scope of the judge’s competence and jurisdiction, exercises the power delegated by the State to resolve a dispute brought by private persons or by the Administration itself. This principle is directly connected to the principles of unity and monopoly of jurisdiction, as well as to impartiality and competence.

Judicial independence is manifested at various levels. At the external level, it is reflected in the Judiciary’s autonomy in economic matters and the security of tenure of its personnel and, functionally, in its actual ability to make decisions according to its own criteria and not as a result of pressure from particular groups, institutions, or individuals. At the internal level, independence consists of the autonomy that lower courts must enjoy in their decisions with respect to higher-ranking courts. Furthermore, in a democratic rule-of-law state such as ours, the counterpart of independence is the accountability of judicial personnel, as well as oversight of their activities. With respect to the content and nature of internal judicial independence, the judicial apparatus presupposes that lower courts enjoy autonomy in their jurisdictional decisions with respect to higher-ranking courts. However, the existence of the remedies traditionally provided for by law—appeal, review, cassation (casación), and others—does not legally constitute a violation of this principle unless they are used improperly.” All of the foregoing is addressed in the following sources, some of which are not regulations currently in force in Costa Rica but are documents reflecting clear legal doctrine on the subject:

• Political Constitution. Art. 9 (independent), 154 (“The Judiciary 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 26 de agosto al 6 de septiembre de 1985, and endorsed by the General Assembly in its resolutions 40/32 of 29 de noviembre de 1985 and 40/146 of 13 de diciembre de 1985, in Principle 11.

• “European Charter on the Statute for Judges,” adopted in Strasbourg between 8 y el 10 de julio de 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, Islas Canarias, España, on 23, 24 y 25 de mayo de 2001, in Article 32 (“Art. 32. Remuneration. Judges must receive sufficient remuneration that is irreducible and commensurate with the importance of the duties they perform and with the requirements and responsibilities involved.”) • Report N° 1 of 23 de noviembre del 2001, issued by the Consultative Council of European Judges (CCJE), when examining the independence and security of tenure of judges, with respect to judicial salaries.

• The Estatuto de Justicia y Derechos de las Personas Usuarias del Sistema Judicial, approved by the Corte Plena, whose Articles 19, 20, 21, 22, 23, and 24 refer to the independence of the Judiciary and judges. Article 49 of that Statute, like the international instruments examined, also enshrines the principle that judicial salaries may not be reduced.

Furthermore, in addition to what has been stated regarding public employment (empleo público), it should be noted that the basic principles derived from Articles 191 and 192 of the Political Constitution are not inapplicable to the Judiciary. Thus, for example, the Chamber expressly referred to the principles derived from those provisions when ruling on the appointment system within the Judiciary (voto n°2001-05694). This must necessarily be supplemented by the provisions of Article 156 of the Political Constitution, which establishes the following with respect to the Judiciary:

“ARTICLE 156.- The Corte Suprema de Justicia is the highest court of the Judiciary, and the courts, officials, and employees of the judicial branch are subordinate to it, without prejudice to the provisions of this Constitution concerning the civil service.” That said—and insofar as relevant to this request for an advisory opinion (consulta)—it should be noted that there are several precedents from the Chamber expressly recognizing that, in the specific case of the Judiciary, special, separate, and differentiated regulation is fully justified, although it remains subject to the fundamental constitutional principles established in Articles 191 and 192. First, voto n°550-1991 may be cited, which states:

“(…) in the case of the branches of government, their own constitutional independence, guaranteed generally by Article 9 of the Constitution and, in the cases of the Poder Judicial and the Tribunal Supremo de Elecciones, by Articles 99 et seq., 152 et seq., and 177 thereof, as well as by their own organic rules (normas orgánicas), confer upon their heads the authority and responsibility to determine the remuneration, representation expenses, and other benefits inherent to the offices of their own members and subordinates, naturally within their budgetary resources, regardless, of course, of whether the amounts may or may not coincide with those of the deputies.” Subsequently, in voto n°01472-1994, the Sala stated that Articles 191 and 192 of the Constitución Política do indeed establish the existence of “a public employment system (régimen de empleo) governed by Public Law within the public sector,” with “its own general principles,” and therefore “the employment relationships between the State and its public servants must be conceived as a whole, governed by general principles, provisions, and policies, without distinction—except for the exceptions expressly provided by law—based on the functional units on which those public servants depend.” However, that same decision added:

“(…) this Sala has established that the indiscriminate equalization of remuneration among members of the branches of government is not permissible, since imposing equal treatment on situations or officials who are objectively in unequal circumstances would violate the principle of equality generally and, specifically with respect to wages and working conditions, Article 57 of the Constitution, given that the requirements, limitations, prohibitions, or conditions under which executive officials or employees perform their duties are not the same as those applicable to members of the other branches or constitutional bodies. Indeed, the principle of equality before the law is not absolute, since it does not grant a right to be treated as equal to any individual, but rather the right to demand that the law make no distinctions between two or more persons who are in the same legal situation or under identical conditions; that is, equal treatment cannot be claimed when the conditions or circumstances are unequal.” Furthermore, regarding the exception of the Poder Judicial from the unified employment system and from salary policy as a government policy, in judgment n°1994-3309, the Sala stated:

“VII.- Having defined salary policy as part of government policy, it must be reiterated that when the constituent authority decentralized the Poder Ejecutivo, it sought to prevent arbitrary and technically unsound interference in the management of each of those institutions, as defined by law. However, the constituent legislator did not choose to create a salary or employment system separate from the central Poder Ejecutivo, since there is no doubt that Title XV, Sole Chapter of the Constitución Política has as its immediate antecedent the former practice of carrying out mass dismissals of state officials and employees upon each change of government. The antithesis of that practice, therefore, is a stable, professional, permanent public service system governed by an integrated and coherent body of rules, establishing a unified employment system for public servants that includes all State institutions, with the exception made by Article 156 of the Carta Magna regarding the Poder Judicial.” Meanwhile, in voto n°1996-03575, the Sala stated that the State body with jurisdiction over public employment is each branch of the Republic, since they—the Ejecutivo, Legislativo, Judicial, and Tribunal Supremo de Elecciones—are best qualified to determine their needs and understand their particular circumstances:

“(…) The cited case law demonstrates not only the existence of the Public Employment System (Régimen de Empleo Público), but also that, when implementing Articles 191 and 192 of the Constitución Política, the ordinary legislator did not do so by enacting a single law, but rather by approving several laws related to the matter at issue. An example is the Estatuto de Servicio Civil, which is partial legislation applicable solely to employees of the Poder Ejecutivo. Following this reasoning and pursuant to Article 9 of the Constitution, in connection with the principle of separation of powers, interpreted by this Sala in judgment N°6829-93 of eight thirty-three a.m. on the twenty-fourth of December of nineteen ninety-three as a separation of functions, in stating:

“II.- THE THEORY OF THE SEPARATION OF POWERS. The theory of the separation of Powers has traditionally been interpreted as requiring each State Body to perform its function independently of the others (Article 9 of the Constitución Política). Although interference with or encroachment upon an assigned function is impermissible, cooperation among the Branches must necessarily occur. At present, constitutional doctrine and practice affirm that absolute separation does not exist; moreover, nothing prevents the same function—when not a primary one—from being performed by two or all Branches, and therefore one cannot speak of a rigid distribution of powers based on function and subject matter. The State is a unity of action and power, but that unity would not exist if each Branch were an independent, isolated body with broad freedom of decision. Thus, one cannot truly speak of a division of Powers in the strict sense; State power is one, even though there are several State functions.

It is more appropriate to speak of a separation of functions, that is, their distribution among the different State bodies. This separation of functions arises from the technical issue of the division of labor: the State must perform certain functions, and these must be performed by the State body best qualified to do so…” Furthermore, and for the sake of completeness, this Sala, in judgment number 990-92 of four thirty p.m. on the fourteenth of April of nineteen ninety-two, held: “Second: The codification of the ‘democratic principle’ in Article 1 of the Constitution constitutes one of the pillars—the core, one might say—on which our republican system rests and, in its capacity as a supreme value of the Constitutional Rule of Law, it must have direct effect on the other sources of the subconstitutional legal system and, obviously, on the Reglamento. It follows that Parliament’s authority to issue the rules governing its own internal affairs (interna corporis) is not only provided for in Article 121, subsection 22, of the Constitución Política, but is also inherent in the democratic system and specific to the Asamblea Legislativa as a constitutional power, pursuant to Title IX of the Carta Fundamental…” Thus, applying the foregoing principle to the matter under consideration, namely the Public Employment System, it may be concluded that the State body with jurisdiction over this matter is each branch of the Republic, since they—the Ejecutivo, Legislativo, Judicial, and Tribunal Supremo de Elecciones—are best qualified to determine their needs and understand their particular circumstances.” The foregoing does not preclude the inclusion of the Poder Judicial within a Public Employment Law, as explained supra in the general considerando of this judgment.

Subsequently, in voto n°1999-919, this Tribunal heard the constitutional consultation concerning what was then the bill for the Ley de Administración Financiera de la República y Presupuesto Públicos, which even contained—and still contains—a provision analogous to the one introduced in the bill now under consultation, which reads:

“Article 1.- Scope of application This law governs the economic and financial system applicable to the bodies and entities that administer or hold public funds. It shall apply to:

(…)

• b)The Poderes Legislativo y Judicial, the Tribunal Supremo de Elecciones, their subdivisions and auxiliary bodies, without prejudice to the principle of separation of Powers established in the Constitución Política.

(…)

On that occasion, this Sala concluded that the principle of separation of powers was not, in fact, violated because—as could be inferred from the remainder of the bill’s provisions—the guidelines and directives issued by the Poder Ejecutivo necessarily required the approval of the heads of the bodies mentioned in the cited subsection b), which “possess constitutional functional independence from the Poder Ejecutivo.” Specifically, it stated:

“With regard to the separation of powers, this Sala considers that a careful reading of the cited provisions shows that the bill under consultation seeks to confer upon the Autoridad Presupuestaria authority to prepare, at a preliminary stage—because they subsequently require approval by the Poder Ejecutivo—the guidelines and directives that will determine how the Administration operates in budgetary matters. The Sala will address the effectiveness of those provisions later in this same considerando. As regards strictly the bodies covered by subsection b) of Article 1 of the bill, all of which are characterized by possessing constitutional functional independence from the Poder Ejecutivo, the text of Articles 21, subsection b), and 23 in fine itself provides that approval of those directives falls to the heads of those bodies, while the Autoridad Presupuestaria has only the function of proposing such guidelines.

In other words, the text itself establishes a mechanism that respects the functional independence granted to the bodies referred to in subsection b) of Article 1 in budgetary matters, since the failure of the heads of the aforementioned bodies to approve those guidelines entails no legal consequence. Accordingly, it must be concluded that the cited articles do not constitute any form of affront to the separation of powers enshrined in Article 9 of the Constitution.” Subsequently, when this Sala ruled specifically on the disciplinary system (régimen disciplinario) applicable to the Poder Judicial and on its special regulations, in voto n°1995-01265, it stated:

“(…) the claimant must bear in mind that the Poder Judicial, although it is a Branch of the State and is governed by Administrative Law, has a special system because of the function it performs; and in matters concerning public employment relationships, although the general principles are established in Administrative Law and Labor Law—as parameters—the specific matters are governed in accordance with the regulations that apply specifically to the Poder Judicial. Thus, it is governed in accordance with the Ley Orgánica del Poder Judicial, the Estatuto de Servicio Judicial, the Reglamento sobre concurso de antecedentes para nombrar funcionarios que administren justicia, the Ley Orgánica del Organismo de Investigación Judicial, the Reglamento sobre la Calificación para los Empleados del Poder Judicial, etc. As can be seen, these are special regulations that cannot be implicitly repealed by a subsequent general provision, as the claimant contends.” (reiterated in voto n°2017-003450).

There are numerous decisions of the Sala emphasizing the particular importance of properly regulating and applying the disciplinary system to safeguard judicial independence. The Sala has emphasized the close relationship between judicial independence and the system governing the appointment, removal, and discipline of judges. Thus, for example, voto n°2009-4849 provided an extensive discussion of this subject:

“(…) It is fundamental to the proper functioning of the democratic rule of law (Estado democrático de Derecho)—understood in accordance with its tenet of the primacy of law—that the judicial function (función jurisdiccional) may be exercised free from undue pressure, within a truly independent Judiciary, as the Chamber has repeatedly held:

“A) PRINCIPLE OF INDEPENDENCE (PRINCIPIO DE INDEPENDENCIA).- Article 9 of the Political Constitution establishes that the Government of the Republic is exercised by three separate and mutually independent Branches: Legislative, Executive, and Judicial. Furthermore, the third paragraph of this article provides for the existence of the Tribunal Supremo de Elecciones, with the same rank and independence as the Branches of Government. The independence of the Judiciary from the other Branches of Government must be emphasized. This independence must be present among judges, whose mission is to administer justice.

Independence is the absence of subordination to another and the non-recognition of any superior power or authority. Judicial independence (independencia del juez) is a legal concept concerning the absence of legal subordination. The guarantee of security of tenure (inamovilidad) and the system of incompatibilities (régimen de incompatibilidades) are intended to ensure the complete independence of the members of the Judiciary. (…)

Thus, independence is a guarantee inherent in the judicial function itself. Independence is attributed to the judge in that capacity, because the judge is vested with jurisdictional authority (potestad jurisdiccional). The purpose is to prevent ties and relationships that could result in a de facto restriction of the judge’s freedom.” (judgment (sentencia) #2883-96 of 17:00 on 13 de junio de 1996) Of course, the principle stated in the abstract must be given concrete effect with respect to each and every judge. In other words, the merely institutional principle defended on behalf of the Judiciary is, at the same time, the independence guaranteed to each judge in each particular case, further and above all embodied in the fundamental right of the parties to every proceeding to have an impartial adjudicator who declares the law applicable to the case submitted for decision:

“VIII.- The independence of the Judiciary is constitutionally guaranteed under Articles 9 and 154. The American Convention on Human Rights, an international instrument directly applicable in our country, also addresses the matter. The American Convention on Human Rights establishes judicial independence 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 made against that person, or for the determination of that person’s rights and obligations of a civil, labor, or any other nature.

1. 2...»

The independence of the Judicial Branch (Órgano Judicial) operates externally. The Judicial Branch is independent of the other Branches of Government, whereas the independence of an individual judge must be analyzed in a more complex manner. However, when the Judiciary is said to be independent, the same must be said of its judges, because they are responsible for carrying out the function entrusted to it. The independence that should truly matter—without diminishing the importance of the independence of the Judicial Branch—is that of the judge in relation to the specific case, because this is the independence that serves as a safeguard for the public under the terms of the American Convention on Human Rights. The effective independence of the Judiciary helps ensure that its judges can also be independent; nevertheless, the institution as a whole may have its independence legally guaranteed while its members, for many reasons, are not independent.” ( judgment #5790- 99 of 16:21 on 11 de agosto de 1999) On this subject, ruling (pronunciamiento) #5795-98 of 16:12 on 11 de agosto de 1998 may also be cited:

“The following principle derives from the provisions of Article 154 of the Political Constitution, which states:

"The Judiciary is subject only to the Constitution and the law, and the decisions it issues in matters within its jurisdiction impose upon it no liabilities other than those expressly established by legislative provisions" namely, the principle of the independence of the Judiciary, which encompasses both the body or institution as a whole and the Judge hearing matters submitted for adjudication. With respect to that official, it must also be recognized that the office carries dual protection, because judicial independence—as a guarantee for the parties involved in the matter sub judice—operates both externally and internally, in the sense that judges are protected from influences and interference—both external and internal—that could sway the decision in one direction or another in a specific case submitted for adjudication, so that they may rule in strict accordance with the applicable legal framework (normativa vigente).

In other words, judges are protected so that neither the parties participating in the proceeding, third parties, higher-court judges, nor ‘influential’ members of the Branches of Government, including the Judiciary itself, may influence their decisions. Still less could a higher judicial authority require a judge to decide a specific case in a particular manner or coerce the adjudicator into doing so. The guarantee of judicial independence, more than a guarantee for these officials—which it indeed is—constitutes a guarantee for private individuals (the parties to the proceeding), ensuring that their cases will be decided in strict accordance with the Constitution and the laws.” And decision #2001-6632 of 16:21 on 10 de julio de 2001 emphasized the importance and constitutional rank of the principle of judicial independence:

“Today, no one can diminish the crucial role played by judicial independence in the actual operation of the democratic rule of law. It is clearly accepted that, more than a principle, and going even beyond what might be characterized as a privilege granted to the Judge, what is at stake is the right of citizens to have independent judges. Yet, alongside this consideration of fundamental importance, it may be said that this remains a task which, even if not unfinished, at least demands permanent vigilance, because the genuine effort to achieve independence in this field is historically recent. Indeed, to be candid, it could be said that this right of persons (citizens, litigants, users, or whatever term may be used) has not yet been fully embraced—incorporated and applied—within legal systems. As some authors note, the formula under which a judge is to be subject ‘only’ to the law (similar to the wording of our Constitutional Article 154) was conceived entirely for the purpose of excluding intervention or interference by the sovereign (the monarch) in judicial decisions.

Of course, in seeking to shield judges from the sovereign, they were abruptly confined to the notion of a mechanical or quasi-mechanical application of the law as an expression of popular sovereignty, an issue that, fortunately, has now been entirely overcome. Therefore, in properly understanding the institutional benefits of having—yesterday, today, and always—independent judges, we must retain the concept of the ‘sovereign’ and apply it to anyone who, outside or beyond the procedural means established for reviewing judicial decisions, seeks improperly to impose criteria or methods of action upon judges. Under the modern design of the Costa Rican legal system, not even the law itself is sovereign, because the judge is not bound by just any law, but by law that is also constitutionally legitimate; ultimately, there may even be circumstances in which, above a Constitutional provision, the judge will be bound by a rule or principle contained in an international human-rights instrument in force in the country.

This is enshrined at the highest level of our legal system, and in that regard reference may be made to Article 48 of the Political Constitution. As noted, Constitutional Article 154 embodies the principle of judicial independence; moreover, notwithstanding that it does not possess the desired legal force, reference may finally be made to the Code of Judicial Ethics (Código de Ética Judicial), definitively approved by our Corte Suprema de Justicia on veintiocho de febrero del año dos mil, Article 2 of which provides, insofar as relevant:

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

The following are understood to be a priori principles necessary for the proper administration of justice:

… 2. The independence of the male or female Judge, who is subject only to the Constitution and the law—that is, to the legal system and its higher values and principles…" In accordance with the foregoing, it must be affirmed that judges have no sovereign above them in the exercise of their judicial duties and, for that very reason, are protected through prohibitions or incompatibilities against engaging in other kinds of activities, since, from that analytical perspective as well, independence becomes a guarantee of impartiality, a quality that must accompany the day-to-day exercise of jurisdiction.”

IV.Consistent with the foregoing line of case law (línea jurisprudencial), 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 de agosto al 6 de septiembre de 1985, and endorsed by the General Assembly in its resolutions 40/32 of 29 de noviembre de 1985 and 40/146 of 13 de diciembre de 1985, provide:

“Independence of the judiciary “1. The independence of the judiciary shall be guaranteed by the State and proclaimed by the Constitution or the law of the country. All governmental and other institutions shall respect and observe the independence of the judiciary.

2. Judges shall decide matters before them impartially, on the basis of the facts and in accordance with the law, without any restrictions and without improper influences, inducements, pressures, threats, or interference, whether direct or indirect, from any quarter or for any reason. (…)” This text confirms that it is with respect to judges considered in their individual capacity that the distinction between external and internal independence is especially pertinent. The former means independence from other governmental bodies or entities, as well as from pressure groups generally, while the latter concerns coercion that may be exerted from within the judicial organization itself, whether by judicial authorities at higher levels or by administrative officials who hold positions of power over judges.

V.Relationship of judicial independence to the appointment, removal, and disciplinary regime of judges. It is no coincidence that the various instruments and declarations addressing judicial independence deal with administrative matters such as the appointment of judges, their removal, and the imposition of disciplinary sanctions. Ultimately, it is in this practical and individualized dimension that their sphere of protection against pressures of every kind is at stake. A judge who may be appointed through opaque mechanisms, or whose removal or punishment may be imposed by any type of authority without sufficient justification, is a judge in a decidedly vulnerable position. The previously cited United Nations Basic Principles on the Independence of the Judiciary provide:

“Disciplinary measures, suspension, and removal from office.

“17. A charge or complaint made against a judge in the judge’s judicial and professional capacity shall be processed promptly and impartially under the 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 incapacity or conduct 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 independent review. This principle may not apply to decisions of the highest court or those of the legislature in impeachment or similar proceedings.” Likewise, the Ibero-American Statute of the Judge, adopted by the International Association of Judges, addresses the exercise of disciplinary authority (potestad sancionatoria) over judges:

“6.- DISCIPLINARY REGIME (RÉGIMEN DISCIPLINARIO).

The law shall define, as specifically as possible, the acts constituting disciplinary offenses by judges.

Jurisdiction over disciplinary matters shall rest exclusively with the Judiciary itself.

Disciplinary proceedings, which may be initiated by any person, sovereign body, or State body, shall permit the use of all means of defense and shall specifically be adversarial.

The most serious disciplinary sanctions may be imposed only by a qualified majority.” The Universal Charter of the Judge, approved at the meeting of the Central Council of the International Association of Judges in Taipei, Taiwan, on November 17, 1999, follows the same approach:

“Art.11: Administration and principles governing discipline.

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

Where this is not sufficiently ensured through other means arising from a well-established tradition, judicial administration and disciplinary action must fall within the jurisdiction of an independent body composed of a substantial and representative proportion of judges.

Disciplinary sanctions against judges may be imposed only on grounds established in advance by law and in accordance with predetermined procedural rules.” Additionally, for illustrative purposes only, it is relevant to note that the European Commission for Democracy through Law, known as the Venice Commission (the Council of Europe’s advisory body on constitutional matters), in issuing an opinion in March 2007 on the Law on Disciplinary Responsibility and Disciplinary Prosecution of Judges of Common Courts of Georgia, emphasized the necessary balance between judges’ disciplinary responsibility and safeguards for their independence, without compromising or unnecessarily restricting the latter. On that occasion, it recalled provision 5.1 of the European Charter on the Statute for Judges, which states:

“The failure by a judge to perform one of the duties expressly defined by the statute may give rise to a sanction only if imposed through a decision based on a proposal, recommendation, or agreement of a court or body composed of at least one-half judges, within the framework of adversarial proceedings in which the judge under investigation may be assisted by counsel. The scale of sanctions that may be imposed must be specified by the statute, and their application shall be subject to the principle of proportionality. (…)” Thus, the disciplinary regime could become a tool threatening the judge’s independence and, indirectly, the rule of law (Estado de Derecho). A judge may not be removed from office during the judge’s term or sanctioned except for compelling reasons—for example, an ethical violation or unfitness—and in accordance with due process safeguards (garantías del debido proceso).

Proper procedures for appointments, promotions, and disciplinary matters—which must not merely exist on paper but must also be followed in practice—are essential to protecting what has been called judges’ security of tenure (seguridad de permanencia). In the specific case of disciplinary authority, a well-structured disciplinary proceeding, due process protections, and proportionality between the sanction and the offense reduce vulnerability to abuses that undermine judicial independence.” For its part, in judgment n°2017-009551, the Chamber examined the constitutionality of subsection g) of Article 2 of the 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 Scheme, and all entities administering pension schemes created by laws or collective bargaining agreements before the effective date of this law.” In particular, the challenge concerned whether SUPEN could supervise the Judiciary’s Pension and Retirement Fund.

In that precedent, the content of the principle of separation of functions (principio de separaciones de funciones) was examined in relation to the principles of unity, coordination, and unity of the State. Ultimately, it was concluded that the legislation was constitutional because, for it to be unconstitutional, it would have to:

“interfere, in fact, with the constitutional powers to organize, plan, or schedule, for example, the administrative function of personnel management, the administration of justice, or functions related thereto, which are beyond the legislature’s reach; but that is not the case here. Moreover, the issue does not appear to concern interference caused by excessive legislative regulation of the forms and means that the Consejo Superior del Poder Judicial must use to achieve the objectives established for the fund; if that were the case, it could be challenged in court on that ground.” That same judgment underscored the importance of the Judiciary in the rule of law and of the independent exercise of its administrative function:

“Today, the Judiciary is not an ‘empty’ or ‘devalued’ branch of government (as it was regarded at the inception of the modern State); one of the clear objectives of dictators is precisely to diminish its independence, undermine its economic independence, or pack the courts with ‘ideologically oriented’ judges (court-packing, which fortunately did not occur in the United States despite a large partisan majority in Congress aligned with its President Nombre06. D. Roosevelt, amid harsh criticism from within his own ranks); if the Judiciary is not accorded the importance necessary for the proper functioning of a social and democratic State governed by the rule of law, its weakening leads to antidemocratic forms of government, as demonstrated by the fact that the judicial function is among the first functions brought under the control of authoritarian or totalitarian governments; hence the importance of every democratic system having a robust Judiciary.” (…) “both legislative and judicial functions require an administrative support structure to fulfill their essential or primary function, such as the administrative function that helps channel all their activity; logically, this extends to the human resources or personnel of the Branches of the Republic, while behind the fundamental function lies the administration of personnel, public agents and servants, etc.” Thus, in judgment n°2018-019511, which addressed the legislative consultation concerning the bill entitled “Ley de Fortalecimiento de las Finanzas Publicas” (legislative expediente nro. 20.580), this Chamber concluded—after interpreting the content of the bill—that, specifically, the provisions of sections 46, 47, and 49 concerning “Mideplán’s governing authority over public employment matters” and “the mandatory nature of the technical and methodological guidelines of the Dirección General del (sic) Servicio Civil” did not apply to the Judiciary. This interpretation was adopted in light of the principle of judicial independence. In particular, it stated:

“Reading the constitutional framework begins with recognition of the independence of the Judiciary, one of the cardinal foundations of our rule of law:

“ARTICLE 9º-The Government of the Republic is popular, representative, participatory, alternating, and responsible. It is exercised by the people and by three distinct and mutually independent Branches. The Legislative, Executive, and Judicial Branches.

None of the Branches may delegate the exercise of its own functions. (…)” “ARTICLE 154.- The Judiciary is subject only to the Constitution and the law, and the decisions it issues in matters within its jurisdiction impose no liabilities other than those expressly established by legislative provisions.” “ARTICLE 156.- The Corte Suprema de Justicia is the highest court of the Judiciary, and the courts, officials, and employees in the judicial branch are subordinate to it, without prejudice to the provisions of this Constitution concerning the civil service.” These constitutional provisions have led to the development of an extensive regulatory framework specifically designed to govern the Judiciary. The provisions within this framework include 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 amendment by the Ley de Carrera Judicial), etc.

Clearly, the aforementioned provisions are specifically intended to govern the Judiciary while ensuring its independence from the other Branches of the Republic.

The fact that the Judiciary is subject to specific regulation brings to the forefront the second point in the systematic interpretation (interpretación sistemática). In this regard, it must be determined whether specific provisions apply to the Judiciary and how they relate to the challenged articles.

Regardless of the fact that section 47 of the bill refers to ‘exceptions,’ it is evident that performance evaluation and decision-making authority in employment matters, whether general or specific, are already regulated by the aforementioned regulatory framework governing the Judiciary, thereby precluding an external body from assuming ‘governing authority’ or imposing criteria upon that Branch. Moreover, that regulatory framework is designed to ensure the efficiency of the judicial function and protect judicial personnel from external interference, as stated in Article 1 of the Estatuto de Servicio Judicial:

“Article 1.- This Statute and its regulations shall govern relations between the Poder Judicial and its employees, in order to ensure the efficiency of the judicial function and protect those employees.” It should be noted that the provision establishes that employment relations between the Poder Judicial and its employees are governed by the Statute and its regulations. The systematic interpretation required by that provision precludes indirect regulation of the judicial service through directives or guidelines issued by other bodies. This is confirmed by the fact that the adoption of the regulations referred to in the provision is, in turn, within the exclusive authority of the Corte, as stated in the Statute itself:

“Article 5.- Before issuing internal employment regulations, whether general in nature for all judicial employees or applicable only to a group of them, the Corte shall make the corresponding draft available to those employees by the most appropriate means, so that they may submit any relevant comments in writing within a period of fifteen days.

The Corte shall take those comments into account in making the appropriate determination, and the regulations it issues shall become binding without further formalities eight days after their publication in the ‘Boletín Judicial.’” A further safeguard of the independence of the Poder Judicial in employment matters is that the Head of the Personnel Department reports to the President of the Corte, thereby excluding interference by external bodies:

“Article 6.- The Personnel Department of the Poder Judicial shall operate under the direction of a Head who shall report directly to the President of the Corte and shall be appointed by the Corte Plena.” Furthermore, the detailed provisions of the Estatuto de Servicio Judicial distinguish among the various powers relating to performance evaluation (evaluación del desempeño), which confirms the existence of special legislation governing that Branch. Thus, for example, sections 8 and 10 of the Estatuto de Servicio Judicial provide:

“Article 8.- The Head of the Personnel Department shall be responsible for:

• c)Establishing the procedures and technical instruments necessary to enhance staff efficiency, including periodic performance ratings (calificación periódica de servicios), the personnel file and service record of each employee, and any forms that may be technically useful; (…)

Article 10.- Periodic performance ratings shall be conducted annually by the Head of each judicial office for the subordinate employees working therein, using special forms that the Head of the Personnel Department shall send to the various offices during the months determined by that Head. (…)” In other words, the periodic ratings of judicial personnel, such as the annual evaluation, are conducted in accordance with the procedures established by the Head of the Personnel Department of the Poder Judicial. These are special provisions applicable exclusively to the Poder Judicial that, should they enter into force, would prevail over the general provisions of the bill.

The Sala emphasizes that the bill does not repeal or amend in any way the provisions transcribed above or any other provision of the Estatuto de Servicio Judicial. This Statute governs employment matters within the Poder Judicial and constitutes a safeguard for judicial employees, consistent with the constitutional principles protecting judicial independence; its amendment or repeal could be neither tacit nor based merely on inference, as that would reflect a failure to observe the rules of statutory interpretation.

Moreover, regarding the contention that Article 49 of the bill requires the Poder Judicial to comply mandatorily with the guidelines of the Dirección General de Servicio Civil, the fact is that the relationship between that Directorate and the Poder Judicial is governed by a specific provision, as follows from the aforementioned section 8:

“(…) The Head of the Personnel Department may submit any necessary inquiries to the Dirección General de Servicio Civil and request the appropriate advice from that Directorate for the proper performance of the Head’s duties. (…)” In other words, the legal framework governing the Poder Judicial provides that the Head of its Personnel Department (now known as Gestión Humana) has the authority to consult the Dirección General de Servicio Civil and request its advice in performing the Head’s duties. As noted above, those duties include the obligation to establish the procedures and technical instruments for the periodic rating of personnel (aforementioned section 8). This special statutory provision renders the challenged provisions of bill n°20.580 inapplicable to the Poder Judicial.

Once again, it bears recalling that this is a special provision that prevails over the general provision. It should also be emphasized that the provisions of the Estatuto de Servicio Judicial would remain unchanged following the reform proposed in bill n°20.580, since the bill neither amends nor repeals that Statute.

In conclusion, given that Chapter VI of the proposed amendment to the Ley de Salarios de la Administración Pública provides for an exception applicable to the Poder Judicial, coupled with the fact that the latter is governed by special statutory provisions concerning the performance evaluation of its officials, the bill under consultation does not appear actually to affect the organization or operation of the Poder Judicial.” The same ruling stated that the special provisions governing the Poder Judicial seek to guarantee its independence from the other Branches and that a systematic constitutional interpretation precludes indirect regulation of the judicial service through directives or guidelines issued by other bodies:

“An examination of the constitutional framework begins with recognition of the independence of the Poder Judicial, one of the cardinal foundations of our rule of law: ‘ARTICLE 9.- The Government of the Republic is popular, representative, participatory, alternating, and accountable. It is exercised by the people and by three distinct and mutually independent Branches: the Legislative, the Executive, and the Judicial. None of the Branches may delegate the exercise of its own functions. (…)’ ‘ARTICLE 154.- The Poder Judicial is subject only to the Constitution and the law, and the decisions it issues in matters within its jurisdiction impose no responsibilities upon it other than those expressly established by legislative provisions.’ ‘ARTICLE 156.- The Corte Suprema de Justicia is the highest court of the Poder Judicial, and the courts, officials, and employees of the judicial branch are subordinate to it, without prejudice to the provisions of this Constitution concerning the civil service.’ These constitutional provisions have led to the development of an extensive regulatory framework specifically designed to govern the Poder Judicial.

The provisions comprising this framework include 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 amendment by the Ley de Carrera Judicial), and others. The provisions listed above are clearly intended specifically to govern the Poder Judicial while ensuring that its independence from the other Branches of the Republic is guaranteed.” (…) “Moreover, that regulatory framework is designed to ensure the efficiency of the judicial function and protect judicial employees from external interference, as stated in Article 1 of the Estatuto de Servicio Judicial: ‘Article 1.- This Statute and its regulations shall govern relations between the Poder Judicial and its employees, in order to ensure the efficiency of the judicial function and protect those employees.’ It should be noted that the provision establishes that employment relations between the Poder Judicial and its employees are governed by the Statute and its regulations.

The systematic interpretation required by that provision precludes indirect regulation of the judicial service through directives or guidelines issued by other bodies. This is confirmed by the fact that the adoption of the regulations referred to in the provision is, in turn, within the exclusive authority of the Corte, as stated in the Statute itself: ‘Article 5.- Before issuing internal employment regulations, whether general in nature for all judicial employees or applicable only to a group of them, the Corte shall make the corresponding draft available to those employees by the most appropriate means, so that they may submit any relevant comments in writing within a period of fifteen days. The Corte shall take those comments into account in making the appropriate determination, and the regulations it issues shall become binding without further formalities eight days after their publication in the “Boletín Judicial.”’ A further safeguard of the independence of the Poder Judicial in employment matters is that the Head of the Personnel Department reports to the President of the Corte, thereby excluding interference by external bodies: ‘Article 6.- The Personnel Department of the Poder Judicial shall operate under the direction of a Head who shall report directly to the President of the Corte and shall be appointed by the Corte Plena.’” (Underlining not in the original).

Regarding the special nature of the Estatuto de Servicio Judicial, its pay scale, and its relationship to judicial independence in this area, the following was stated:

“The Statute governs employment matters within the Poder Judicial and constitutes a safeguard for judicial employees, consistent with the constitutional principles protecting judicial independence; its amendment or repeal could be neither tacit nor based merely on inference, as that would reflect a failure to observe the rules of statutory interpretation.” (…) “The Sala does not fail to emphasize that the provisions of the Ley Orgánica del Poder Judicial, Ley de Salarios del Poder Judicial, and Estatuto de Servicio Judicial are unaffected by the proposed reform. Those provisions enable the Poder Judicial to exercise autonomy in changing its pay scale or adjusting base salaries.” Salary matters were specifically analyzed as follows:

“Regarding salary matters.

With respect to this issue, the aforementioned resolution states:

‘2.) In accordance with the foregoing report, it is determined that the bill does affect the organization and operation of the Poder Judicial and that there is opposition to it unless the provisions concerning the following are removed:

(…)

d.- The restrictions established in the bill concerning salaries and their respective components for male and female officials of the Poder Judicial.’ After analyzing the provisions of bill n°20.580 concerning the amendments to the Ley de Salarios de la Administración Pública, the Sala recalls that an impact on the salaries of judicial officials may affect judicial independence. As briefly stated in the aforementioned ruling n°2018-5758 of 15:40 hours on 12 de abril de 2018:

‘(…) What does form part of judicial independence is that judges enjoy a dignified level of financial security, both while in active service and after leaving active service, (…)’ It must now be emphasized that the challenged legislation is not specific to judicial officials but applies generally throughout the Administración Pública. The importance of this point lies in the fact that the Sala has consistently held that mandatory institutional consultations (such as those prescribed in sections 167 and 190 of the Constitución Política) are not required when a bill is national or general in scope:

(…)

In the case at hand, the provisions of the bill relating to salary matters are generally applicable, and this Court has no basis for finding that they will affect the financial livelihood of officials engaged in the administration of justice to such an extent that at least “a dignified level of economic sufficiency” would not be ensured.

The Chamber emphasizes that the provisions of the Ley Orgánica del Poder Judicial, Ley de Salarios del Poder Judicial, and Estatuto de Servicio Judicial are not affected by the proposed reform. Those provisions enable the autonomy of the Poder Judicial with respect to changing its salary scale or modifying base salaries. In this regard, note the statement made by the Ministra de Hacienda to Corte Plena:

“With respect to the possibility that the bill may affect the independence of the Poder Judicial by regulating the application of certain salary supplements (pluses), I would respectfully point out that the bill does not affect or eliminate the authority of the Poder Judicial to modify its salary scale or base salaries. Thus, if the Poder Judicial considers it necessary to increase the salary of any official, it has full authority and autonomy to do so. In particular, if the Poder Judicial considers that, in light of the regulation of exclusive dedication (dedicación exclusiva) or seniority increments (anualidades), it is necessary to increase the salary of any official, it may do so under its independence in salary matters.” This observation is not only shared by the Chamber but also establishes with indisputable clarity that the bill under consultation does not affect the organization or operation of the Poder Judicial in salary matters.

Based on the foregoing explanation, the Chamber finds that the challenged provisions of legislative bill 20.580 do not affect, in the sense described, the organization or operation of the Poder Judicial.” Finally, more recently, in judgment n°2019-25268, in which two decisions of Corte Plena concerning the salary increases of judges, prosecutors, and public defenders (as well as Secretarios de Sala and assistant attorneys) were challenged, the Chamber ruled:

“Likewise, this Court, in judgment number 550-91 of 18:50 hours on 15 de marzo de 1991, stated that, ‘in the case of the branches of government, their own constitutional independence, generally guaranteed by Article 9 of the Constitution and, in the cases of the Poder Judicial and the Tribunal Supremo de Elecciones, by Articles 99 et seq., 152 et seq., and 177 thereof, as well as by their own organic laws, grants their governing authorities the power and responsibility to determine the compensation, representation expenses, and other benefits inherent to the offices of their own members and subordinates, naturally within their budgetary resources, regardless, of course, of whether the amounts may or may not coincide with those of the members of the Legislative Assembly.’ It follows from the foregoing that, within the Poder Judicial, compensation, representation expenses, and other benefits inherent to the offices of its own members and subordinates must be determined within its budgetary resources, and that there are offices that will receive different levels of compensation, which does not violate the principle of equality (principio de igualdad).

Likewise, the challenged decisions do not violate the principles of reasonableness (razonabilidad) or proportionality (proporcionalidad), or other principles such as legality (legalidad) and legitimate expectations (confianza legítima), because those decisions were approved by Corte Plena, that is, by the body legally authorized to address such matters. This was done in the exercise of the constitutional and statutory powers vested in it. In this regard, it must be recalled that Article 9 of the Constitución Política states that ‘the Government of the Republic is popular, representative, participatory, alternative, and responsible. It is exercised by the people and by three separate and mutually independent Branches: the Legislative, the Executive, and the Judicial.’ Likewise, Article 152 of the Constitución Política provides that ‘the Poder Judicial is exercised by the Corte Suprema de Justicia and by the other courts established by law.’ Similarly, Article 154 of the same constitutional text establishes that ‘the Poder Judicial is subject only to the Constitution and the law, and the decisions it issues in matters within its jurisdiction impose no responsibilities other than those expressly prescribed by statutory provisions.’ Following the framework established by the Carta Magna, Article 2 of the Ley Orgánica del Poder Judicial states that ‘the Poder Judicial is subject only to the Constitución Política and the law.

The decisions it issues in matters within its jurisdiction impose no responsibilities other than those expressly prescribed by statutory provisions. Nevertheless, the superior authority of the Corte shall prevail over its performance to ensure that the administration of justice is prompt and effective.’ Likewise, Article 59 of that same law states that ‘the Corte Suprema de Justicia shall: (…) 3.- Approve the proposed budget of the Poder Judicial, which, once enacted by the Asamblea Legislativa, it may implement through the Consejo.’ Along the same lines, Article 8 of the Estatuto de Servicio Civil provides that ‘the Jefe del Departamento de Personal shall: a) Analyze, classify, and evaluate the positions within the Poder Judicial covered by this law and assign them the corresponding category within the salary scale of the Ley de Salarios, all subject to subsequent approval by Corte Plena.’ Likewise, Article 62 of that body of law establishes that ‘the Departamento de Personal shall conduct the studies necessary to determine the possible amount of the benefits to be granted to judicial employees in accordance with the Ley de Salarios, so that Corte Plena may make the necessary appropriations in each year’s budget.’ In summary, the challenged decisions do not violate the principles of reasonableness, proportionality, legality, or legitimate expectations, because those decisions were approved by Corte Plena, that is, by the body legally authorized to address such matters.

This was done in the exercise of the constitutional and statutory powers vested in it.” Thus, based on the precedents transcribed above, it may be concluded that this Chamber has recognized that the Poder Judicial is essential 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 operation of a robust system for the administration of justice and without the recent efforts to modernize it.” (see judgment n°2018-005758). Accordingly, “if the Poder Judicial is not accorded the importance required for its proper operation within the social and democratic State governed by the rule of law (Estado social y democrático de Derecho), its weakening leads to undemocratic forms of government; evidence of this is that one of the first functions that authoritarian or totalitarian governments seek to control is the judicial function, hence the importance of every democratic system having a robust Poder Judicial.” (see judgment n°2017-09551).

The principle of judicial independence (independencia judicial) is precisely essential to this robustness. With regard to public employment (empleo público), the Poder Judicial is clearly subject to the fundamental principles of the public-employment regime (régimen de empleo público) under art.191. Moreover, in accordance with Article 11 of the Constitución Política, it is clear that the Poder Judicial is subject to the corresponding procedure for performance evaluation (evaluación de resultados) and accountability (rendición de cuentas). Nevertheless, the Chamber has deemed it valid and justified for the Poder Judicial to have its own regulatory framework, specifically, particularly, and separately governing employment relationships between that Branch and its employees, as well as the evaluation of their performance. Furthermore, it has been stated that this regulatory framework (comprising, among others, 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 Poder Judicial.

Indeed, it has been established as a judicial precedent that these are special provisions that take precedence over general provisions and cannot be implicitly repealed by a subsequent provision of a general nature. Likewise, the Chamber has expressly referred to the impropriety of an external body assuming governing authority or imposing criteria on the Poder Judicial in these matters. On the contrary, it has emphasized that the functional independence and autonomy expressly recognized for the Poder Judicial in the constitutional text itself (Articles 9, 152 et seq., and 177), and embodied and guaranteed in its own organic laws, vest the governing authorities of the Poder Judicial with the power and responsibility to decide—without undue interference—the various matters regulated in the bill under consultation.

Finally, regarding comparative law (Derecho Comparado), it is appropriate to mention Article 64 of the French Constitution of 1958, which states that Nombre01 is principally responsible for guaranteeing the independence of the judicial authority and that an organic law (Ley Orgánica) specific to the Poder Judicial shall govern the legal status of judges. 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.” (Unofficial translation: “Article 64. Nombre01 guarantees the independence of the judicial authority. For this purpose, Nombre01 is assisted by the Conseil supérieur de la magistrature. An organic law shall govern the legal status of judges. Judges of the bench enjoy security of tenure (inamovibles).”) Nevertheless, the holdings in the various precedents cited above—to the effect that this Chamber has deemed it valid and justified for the Poder Judicial to have its own regulatory framework specifically, particularly, and separately governing employment relationships between that Branch and its employees—do not preclude recognition that the Asamblea Legislativa is empowered by the constitutional legal order (Derecho de la Constitución), in accordance with the intent of the original constituent assembly, as discussed in recital VIII (considerando VIII) of this judgment, to establish a single statute encompassing all public employees, including officials of the Poder Judicial, provided that such legislation, by its content or effects, does not eliminate or materially impair the exclusive powers vested in the Poder Judicial, nor entail transferring those powers to other bodies or entities, in violation of the principle of separation of powers or functions (separación de poderes o funciones) and, most particularly, the principle of judicial independence, as will be analyzed below with respect to the various provisions under consultation.

• 3)Examination of the Provisions under Consultation Regarding Article 2.a (scope of coverage), as it relates to the Poder Judicial (Opinion authored by Magistrado Castillo Víquez) The following provision is submitted for consultation:

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

• a)The Branches of the Republic (Executive, Legislative, and Judicial), their auxiliary and affiliated bodies, and the Tribunal Supremo de Elecciones (TSE), without prejudice to the principle of separation of powers established in the Constitución Política.

(…)” In light of this situation, and returning to what was stated above, namely, that it is plausible to subject all branches of the State to a single public employment statute (estatuto de empleo público), such that subjecting the Judicial Branch to this law is not unconstitutional, it is nevertheless unconstitutional insofar as it fails to exclude officials who perform jurisdictional functions (funciones jurisdiccionales)—judges—or quasi-jurisdictional functions (funciones para-jurisdiccionales)—prosecutors, public defenders, and professionals and specialized personnel of the Organismo de Investigación Judicial, etc.—and officials at the managerial or senior political leadership level (alta dirección política), as the bill calls them; likewise, officials of the Tribunal Supremo de Elecciones who perform electoral functions (función electoral)—legal advisers, department directors, professionals, etc.—and those who hold senior political leadership positions, as well as such administrative, professional, and technical personnel as may be defined exclusively and conclusively by the head of the respective branch, because in these cases they cannot be subjected to guidelines, provisions, circulars, or manuals issued by Mideplán.

This means that the Judicial Branch would be subject to those powers granted to Mideplán by the law when dealing with all other officials—those defined exclusively and conclusively by each head of the Judicial Branch and the Tribunal Supremo de Elecciones—who form part of the administrative, auxiliary, or support staff. It could be argued, contrary to what we are asserting, that section 49 of the bill under review, in subsection (g), which adds Article 85 to Law No. 5155, Estatuto Judicial, of January 10, 1973, provides that the powers assigned by the bill to the bodies of the Judicial Branch shall be exercised in coordination with Mideplán with respect to the matters addressed by the bill; and that subsection (h), which adds Article 17 to Law No. 2422, Ley de Salarios del Poder Judicial, of August 11, 1959, similarly provides that the powers assigned by the bill to the bodies of the Judicial Branch shall also be exercised in coordination with the aforementioned ministry.

It could also be argued that subsection (a) of Article 2 establishes that the bill’s scope of application (ámbito de cobertura) is without prejudice to the principle of separation of powers (principio de separación de Poderes) established in the Constitución Política, and that the Judicial Branch shall act through institutional coordination with MIDEPLAN; accordingly, it would not be true that the former is subject to the guidelines, provisions, circulars, and manuals issued by the latter concerning the relevant matters. However, this objection is unfounded because of the lack of precision in the legislation proposed for enactment, since in a matter of such importance the law must be clear and precise, a quality that is lacking in many instances. It is therefore appropriate to conclude that constitutional defects (vicios de inconstitucionalidad) do exist. It should be noted that section 3 of the bill under review, which governs the exclusion of entities from these provisions, contains no safeguard in favor of the Judicial Branch or the Tribunal Supremo de Elecciones.

Regarding Article 6 (Mideplán’s governing authority), with respect to the Judicial Branch (opinion authored by Justice Castillo Víquez) The following provision is submitted for review:

“ARTICLE 6—Creation of the General Public Employment System The Ministry of National Planning and Economic Policy (Mideplán) shall serve as the governing authority (rectoría) of the General Public Employment System. That system shall consist of the following:

• a)The Ministry of National Planning and Economic Policy (Mideplán).
• b)The Human Resources Management offices, departments, areas, directorates, units, or equivalent bodies of the entities and agencies falling within the scope of this law. (…)” Article 6, subsection (b), of the bill under review is unconstitutional because it subjects the Judicial Branch and the Tribunal Supremo de Elecciones to the executive branch’s power of direction (potestad de dirección), contrary to the principles of judicial and electoral independence (independencia judicial y electoral). Consequently, the Human Resources Management offices, departments, areas, directorates, and units of these branches cannot be subject to that power, except with respect to persons providing basic administrative and auxiliary services that do not affect exclusive and conclusive powers or the administrative functions necessary for the exercise thereof, as defined exclusively by the heads of the Judicial Branch and the Tribunal Supremo de Elecciones.

Regarding Article 7 (powers of Mideplán), with respect to the Judicial Branch (opinion authored by Justice Castillo Víquez) The following provision is submitted for review:

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

• a)To establish, direct, and coordinate the issuance of public policies and national public employment programs and plans, pursuant to Law 5525, Ley de Planificación Nacional, of May 2, 1974.
• b)To establish mechanisms for discussion, participation, and consensus-building with municipal corporations through the Unión de Gobiernos Locales and with state higher-education institutions in matters of public employment.
• c)To issue generally applicable provisions (disposiciones de alcance general), guidelines, and regulations aimed at standardizing, simplifying, and ensuring consistency in public employment, as prescribed by 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)To advise the entities and agencies falling within the scope of this law on the proper implementation of public policies, generally applicable provisions, guidelines, and regulations issued under the framework of political governing authority over public employment and pursuant 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.
• e)To administer and keep the integrated public employment platform up to date.
• f)To publish public employment opportunities through the virtual platform to which the entities and agencies falling within the scope of this law shall provide information.
• g)To issue general guidelines and principles for performance evaluation (evaluación del desempeño).
• h)To administer and implement research, innovation, and public employment proposal-development activities.
• i)To direct and coordinate the exercise of inherent public employment powers 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 agencies responsible for public employment matters.
• j)To collect, analyze, and disseminate public employment information concerning the entities and agencies for the improvement and modernization thereof. For this purpose, it shall establish a system of indicators, using coordination criteria to standardize the collection and dissemination of data.
• k)To prepare a coherent and comprehensive strategy for learning and development throughout the public service, establishing how long-term capacity will be developed to attain higher standards of leadership and professional competence and providing guidance to public institutions on how to plan and implement activities under the strategy.
• l)To coordinate with the Procuraduría de la Ética Pública in issuing generally applicable provisions, guidelines, and regulations for instructing public servants regarding the duties, responsibilities, and functions of their positions, as well as the ethical duties governing public service, as appropriate under 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)To establish a single, unified system of remuneration for public service in accordance with this law, specifying the salaries and benefits of all public officials.
• n)To conduct human-resources assessments of the entities and agencies included within its scope in order to properly resize existing workforces and develop general criteria identifying the sectors whose activities, because of their institutional strategic value and connection with core operations, should be reserved exclusively for performance by public servants. It shall also analyze criteria that may provide guidance in identifying services that could be outsourced and the conditions under which they would be provided.
• o)To forecast global trends in the future of public employment in order to inform its planning.
• p)To analyze the efficiency and effectiveness of evaluation mechanisms in order to determine whether they fulfill their purpose.
• q)To evaluate the general public employment system in terms of efficiency, effectiveness, economy, simplicity, and quality.” Article 7, subsections (d), (g), and (p), are unconstitutional because they impair the independence of the Judicial Branch and the Tribunal Supremo de Elecciones by subjecting them to Mideplán’s power of direction and regulatory authority (potestad reglamentaria), as well as to verification of whether the purpose of performance evaluation has been fulfilled, without excluding them from the power of direction. It must be emphasized that the principle of separation of powers or functions is incompatible with the executive branch’s power of direction and regulation, since the executive branch cannot direct their activities by establishing targets and objectives. Performance evaluation is reserved to each branch of the State because this matter is inherent in the exercise of its constitutional powers. This means that, with respect to this issue, all officials of each branch would be subject to the internal provisions issued by that branch.

Regarding Article 9(a)—Human Resources Offices with respect to the Judicial Branch (opinion authored by Justice Picado Brenes) The following article is submitted for review:

“ARTICLE 9—Functions of Active Administrations (administraciones activas) a) The human-resources management offices, departments, areas, directorates, units, or equivalent bodies of the institutions included in Article 2 of this law shall continue to perform their functions in accordance with the applicable regulatory provisions of each public agency.

They shall also apply and implement the generally applicable provisions, guidelines, 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) transmits to the respective institution, pursuant 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)The offices, departments, areas, directorates, units, or equivalent bodies responsible for human resources management shall be responsible for preparing and administering knowledge, competency, and psychometric tests for staff recruitment and selection processes and for conducting internal and external competitive examinations based on examinations and merit. Such examinations shall always meet at least the standards established by the General Directorate of Civil Service for each position, according to its area of competence, and the guidelines issued pursuant to Article 46 of Ley 2166, Public Administration Salaries Law, of 9 de octubre de 1957.

In addition, they shall include such competitive examinations in the Public Administration’s public employment offering and verify that public servants receive proper induction concerning the duties, responsibilities, and functions of the position, as well as the general ethical duties of public service and those specific to the institution and position.

• c)The institutional human resources management offices of ministries and attached institutions or bodies falling within the scope of the Civil Service Statute are technical units of the General Directorate of Civil Service, which, for all purposes, shall coordinate the preparation of staff recruitment and selection tests with such offices and perform its advisory, training, and technical-support functions.” As may be observed, Article 9 under review establishes certain functions for all human resources offices, departments, areas, directorates, or units of all institutions included in the bill, including the Judicial Branch’s Human Resources Management Department. Accordingly, with specific regard to the inquiry concerning the Judicial Branch, the second paragraph of subsection a) requires the Human Resources Management Department of that Branch of the Republic to apply and implement the generally applicable provisions, directives, and regulations concerning planning, work organization, employment management, performance management, compensation management, and labor-relations management that Mideplán sends to it.

This would mean that a body of the Executive Branch, namely Mideplán, would require the Judicial Branch to apply and implement its provisions, directives, and regulations in matters falling within 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 imposed on the Judicial Branch’s Human Resources Management Department clearly violates the principle of separation of powers and judicial independence, in accordance with the scope that constitutional case law has attributed to these fundamental principles of our democracy. It should be recalled that the principle of division of powers, or, as it has more recently been called, 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 rules for the direct benefit of the country’s inhabitants.” (judgment n°2006-013708).

This makes it possible for each Branch of Government to exercise its function independently of the others (judgment n°6829-1993), and it operates not only as a principle of internal application for the proper functioning of the Rule of Law, but also because judicial independence, in its external dimension, ensures a set of guarantees intended to prevent a Court from being controlled by other governmental bodies; it entails the absence of external pressures or influences that would make the institution vulnerable as a result of threats to the availability of resources allowing it to perform its work autonomously, to the job security and promotion opportunities of its officials, to their integrity and property, and to its infrastructure capacity to address citizens’ demands. In its internal dimension, on the other hand, judicial independence is more than a guarantee for judges, since it also constitutes “a guarantee for private parties (parties to the proceedings), in the sense that their cases will be decided in strict accordance with the Constitution and the laws” (judgment n°5795-1998); “what is at issue is the right of citizens to have independent judges” (judgment n°2001-006632).

The independence of the Judicial Branch is reflected, in economic matters and in the security of tenure (inamovilidad) of its personnel, as well as functionally, in its genuine ability to make decisions according to its own criteria and not as a result of pressures from particular groups, institutions, or individuals (see judgment n°2000-005493). It is therefore fully justified for the Judicial Branch, in its specific case, to have special, separate, and differentiated regulations, although subject to the fundamental constitutional principles set forth in Articles 191 and 192 (see judgment n°1991-550), but not to the general provisions, directives, and regulations of a body belonging to another Branch of the Republic, as the provision of the bill under review sought to require. Indeed, the special rules governing the Judicial Branch “preclude indirect regulation of the judicial service through directives or guidelines originating from other bodies.” (judgment n°2018-019511).

This is because, “…with respect to the Public Employment Regime, it may be concluded that the government body with authority in this matter is each Branch of the Republic, since these—the Executive, Legislative, and Judicial Branches and the Tribunal Supremo de Elecciones—are best positioned to determine their needs and understand their particular circumstances.” (judgment n°03575-1996). “The constitutional powers to organize, plan, or program, for example, the administrative function of personnel management” (judgment n°2017-009551) are an essential part of the Judicial Branch’s administrative function that contributes to the effective performance of its judicial function, since “both legislative and judicial functions require an administrative support structure to accomplish their essential or primary function, namely the administrative function that helps channel all their activity; logically, this encompasses the human resources or personnel of the Branches of the Republic, since behind the fundamental function lies the administrative management of personnel, agents, public servants, etc.” (judgment n°2017-009551).

Finally, it should be noted that in judgment n°2018-019511, which addressed the legislative consultation concerning the bill entitled “Ley de Fortalecimiento de las Finanzas Publicas” (legislative expediente nro. 20.580), this Chamber concluded—after interpreting the contents of the bill—that, specifically, the provisions of sections 46, 47, and 49 relating to “Mideplán’s governing authority 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. That interpretation was made in consideration of the principle of independence of the Judicial Branch. In this regard, and in light of all the foregoing, the second paragraph of subsection a) of Article 9 is unconstitutional insofar as it applies to the Judicial Branch.

Regarding Article 13 (position families), with respect to the Judicial Branch (Opinion authored by Justice Castillo Víquez) The following provision is submitted for review:

“ARTICLE 13—General public employment regime There shall be a single general public employment regime, which shall in turn comprise the following eight position families (familias de puestos), applicable to the bodies and entities of the Public Administration according to the functions performed by their personnel:

• a)Public servants falling within the scope of Title I and Title IV of the Civil Service Statute, as well as those working in the institutions identified in Article 2 of this Law who are not included in the remaining position families.
• b)Public servants performing health-science functions.
• c)Public servants performing police functions.
• d)Teaching personnel covered by Titles II and IV of the Civil Service Statute.
• e)Teaching and academic personnel in technical and higher education.
• f)Persons who administer justice and the justices of the Tribunal Supremo de Elecciones (TSE).
• g)Public servants performing foreign-service functions.
• h)Public servants holding positions of trust (cargos de confianza).

The creation of public-employment position families is a matter reserved to statute (reserva de ley) and shall be justified by technical and legal criteria consistent with efficient and effective public administration.

In all the categories described above, the senior public administration, through occupational health offices or departments, shall ensure that each public entity has, as established by Article 300 of the Labor Code and its regulations, an assessment of its working conditions, an occupational health program, and, where working conditions are harmful to health, the corresponding safety protocols to safeguard life. Such protocols shall be validated internally and receive the corresponding approval of the Occupational Health Council, for which purpose it shall be provided with the necessary human resources. That office shall report directly and administratively to the head of the entity.

Subsection f) of Article 13 is unconstitutional because it does not exclude officials performing quasi-judicial functions (funciones para-jurisdiccionales)—prosecutors, public defenders, and professional and specialized personnel of the Organismo de Investigación Judicial, among others—or officials at the managerial or senior policy-making level; nor does it exclude officials of the Tribunal Supremo de Elecciones who perform electoral functions—legal advisers, department directors, professionals, and others—or those holding senior policy-making positions. Furthermore, it does not exclude all professional, technical, and administrative support officials whom the highest bodies of the aforementioned Branches of Government determine, exclusively and to the exclusion of all others, to be indispensable or integral to the exercise of their constitutional powers. This is particularly significant because, under subsection a) of that same Article, all such officials would be included in a category under the Civil Service Statute, thereby undermining the independence of both the Judicial Branch and the Tribunal Supremo de Elecciones, given that judicial and electoral governance is exercised by the Corte Suprema de Justicia and the Tribunal Supremo de Elecciones, exclusively and to the exclusion of all others, in matters concerning their constitutional powers. Finally, it must be borne in mind that the establishment of each position family, as explained supra, falls exclusively and solely to each Branch of Government.

Regarding Article 14—Recruitment and selection with respect to the Judicial Branch (Opinion authored by Justice Picado Brenes) The petitioners challenge the constitutionality of Article 14 of the bill under review, insofar as, in their view, it could violate the principles of separation of powers (separación de poderes), autonomy (autonomía), and independence of the Judiciary (independencia del Poder Judicial), because it subjects the Judiciary to provisions issued by a body of the Executive Branch concerning employment management (gestión de empleo), which encompasses the recruitment and selection (reclutamiento y selección) of its personnel. Article 14 in question provides as follows:

“ARTICLE 14—Recruitment and selection The recruitment and selection of newly hired public servants (personas servidoras públicas de nuevo ingreso) shall be conducted on the basis of their demonstrated suitability (idoneidad comprobada), for which purpose the Ministerio de Planificación Nacional y Política Económica (Mideplán), in strict compliance with Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, shall issue provisions of general application (disposiciones de alcance general), directives (directrices), and regulations (reglamentos), according to the respective job family (familia de puestos).

No applicant who falls within any of the following circumstances may be selected in recruitment and selection processes:

• a)Being related by blood or affinity, in the direct or collateral line, up to and including the third degree (parentesco de consanguinidad o de afinidad en línea directa o colateral, hasta tercer grado inclusive), to the immediate supervisor or to that supervisor’s immediate superiors in the respective unit.
• b)Being listed in the registry of ineligible persons (registro de personas inelegibles) of the integrated public employment platform (plataforma integrada de empleo público).” As already indicated above, the Judiciary, as a branch of the Republic, must not only be independent of the other branches, as provided by Article 9 of the Constitution, but must also guarantee judicial independence, as established by Article 154 of the Constitución Política, as an assurance to individuals that their cases will be decided in strict accordance with the Constitution and the laws. Accordingly, it is essential that this branch of the Republic determine all matters relating to the recruitment and selection of its personnel, without any external interference. This Court specifically reiterated as much in judgment n.° 2018-19511, stating, insofar as relevant, the following:

“…These constitutional provisions have given rise to the development of an extensive regulatory framework (marco normativo), specifically designed to govern the Poder Judicial. The rules within this framework include 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 amendment by the Ley de Carrera Judicial), etc.

Clearly, the rules listed above are intended specifically to govern the Poder Judicial, ensuring that its independence from the other branches of the Republic is guaranteed.

The fact that the Poder Judicial is subject to its own particular regulatory regime brings to the fore the second point in the systematic interpretation (interpretación sistemática) analysis. In this regard, it must be determined whether particular rules exist for the Poder Judicial and their relationship to the challenged provisions must be examined.

Regardless of the fact that Article 47 of the bill speaks of ‘exceptions’ (salvedades), it can be seen that performance evaluations (evaluación del desempeño) and decision-making authority in employment matters, whether general or specific, are already governed by the aforementioned regulatory framework of the Poder Judicial, thereby precluding an external body from assuming ‘governance’ (rectoría) over or imposing criteria upon that branch. Moreover, that regulatory framework is designed to ensure the efficiency of the judicial function and to protect judicial personnel from external interference, as indicated by Article 1 of the Estatuto de Servicio Judicial:” With specific regard to Article 1° of the Estatuto de Servicio Judicial, the Chamber stated in that judgment: “Note that the provision establishes that employment relationships (relaciones de empleo) between the Poder Judicial and its personnel are governed by the Estatuto and its regulations.

The systematic interpretation required by that provision precludes the indirect regulation of the judicial service through directives or guidelines issued by other bodies. This is confirmed because the issuance of the regulations referred to in the provision is, in turn, within the exclusive jurisdiction of the Corte.” It further adds: “An additional safeguard for the independence of the Poder Judicial in employment matters is that the Head of the Departamento de Personal reports to the Presidente de la Corte, thereby excluding interference by external bodies.” In this case, this Court considers that the bill challenged herein affects the powers inherent to this branch of the Republic because, rather than merely establishing general principles or guidelines concerning public employment (empleo público) that respect the principle of separation of functions (separación de funciones), Article 14 under review clearly states that the Ministerio de Planificación Nacional y Política Económica (Mideplán) shall issue, according to the respective job family, the provisions of general application, directives, and regulations governing the recruitment and selection of newly hired public servants.

This is because, pursuant to Articles 13 and 2 of the same bill, the provisions of Article 14 would apply to the Poder Judicial. Accordingly, regardless of the fact that the aforementioned Article 2 limits the scope of coverage by stating that it is “without prejudice to the principle of separation of branches of government established in the Constitución Política,” Article 14 would apply to the Poder Judicial; in that regard, such a provision is deemed unconstitutional because it authorizes a body of the Executive Branch to directly issue provisions of general application, directives and regulations, circulars, manuals, and decisions concerning public employment matters that deprive the powers granted to the Corte Suprema de Justicia by the original and amending constituent authorities (Constituyente original y derivado) of their substance. This is all the more so because a regulatory framework governing those matters already exists for the Poder Judicial, as required by Article 192 of the Constitution.

For the foregoing reasons, the provision under review exceeds any framework for cooperation that might establish a general public employment policy, because it is inappropriate for an agency of the Executive Branch—Mideplán—to dictate, on a mandatory basis, to another branch, in this case the Poder Judicial, the guidelines or criteria for the selection and recruitment of its personnel. This constitutes clear external interference and an intrusion by the Executive Branch into matters that fall within the exclusive jurisdiction of the Poder Judicial. Consequently, this Court considers that Article 14 under review contains a constitutional defect (vicio de inconstitucionalidad), because it violates the principle of independence of functions guaranteed to the Poder Judicial by Articles 9 and 154 of the Constitución Política.

Regarding Article 17.—Senior Management Personnel in relation to the Poder Judicial (opinion authored by Justice Picado Brenes) The following article is submitted for review:

“ARTICLE 17—Senior public management personnel (personal de la alta dirección pública) The Ministerio de Planificación Nacional y Política Económica (Mideplán) shall issue provisions of general application, directives, and regulations concerning senior public management personnel that are consistent with Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, in order to provide the Administración Pública with personnel profiles demonstrating integrity and proven capacity for management, innovation, and leadership, with a view to improving the provision of public goods and services. (…)” The petitioners allege a violation of the principle of separation of functions and the independence of the Poder Judicial because this provision establishes that, in the case of senior management positions (puestos de alta dirección), Mideplán shall issue the relevant provisions of general application, directives, and regulations.

Consistent with the manner in which this Chamber has been deciding these matters, interference by this Ministry, which is a body of the Executive Branch, through the issuance to the Poder Judicial of provisions of general application, directives, and regulations concerning senior management positions violates the principles of separation of powers and judicial independence. Furthermore, all matters concerning senior management positions (puestos de alta gerencia) within the Poder Judicial are already governed by the special rules applicable to that branch of the Republic. There are several precedents from the Chamber expressly recognizing that it is fully justified for the Poder Judicial, in particular, to have its own separate and distinct regulatory regime—albeit one subject to the fundamental constitutional principles established in Articles 191 and 192. First, judgment n°2019-25268 (reiterating the holding of judgment n°550-1991) may be cited; it states:

“(…) in the case of the branches of government, their own constitutional independence, guaranteed generally by Article 9° of the Constitution and, in the cases of the Poder Judicial and the Tribunal Supremo de Elecciones, by Articles 99 et seq., 152 et seq., and 177 thereof, as well as by their own organic rules, imposes upon their highest authorities the power and responsibility to determine the compensation, representation expenses, and other benefits inherent to the offices of their own members and subordinates, naturally within their available budgetary resources, regardless, of course, of whether the amounts involved coincide with those of the members of the Legislative Assembly.” Article 154 of the Constitution itself subjects the Poder Judicial solely to the Constitution and the law, but not to provisions of the Executive Branch. It should be noted that these are positions of great importance, since they would include, at a minimum, the members of the Consejo Superior del Poder Judicial and the heads of the Defensa Pública, Ministerio Público, and Organismo de Investigación Judicial.

These positions are highly significant, must be particularly protected from interference by other branches of the Republic, and require the personnel stability necessary for the proper and impartial performance of their duties, which is incompatible with subordination to the provisions issued in this regard by Mideplán, as established by the provision in question. The Poder Judicial itself has jurisdiction over this matter, as this Chamber has previously stated: “…with regard to the Public Employment Regime (Régimen del Empleo Público), it may be concluded that the state body with jurisdiction over this matter is each branch of the Republic, since they—the Ejecutivo, Legislativo, Judicial, and Tribunal Supremo de Elecciones—are best equipped to determine their needs and understand their particular circumstances.” (judgment n°03575-1996). It should be noted that, in judgment n°2018-019511, which adjudicated the legislative consultation (consulta legislativa) concerning the bill entitled “Ley de Fortalecimiento de las Finanzas Publicas” (expediente legislativo nro. 20.580), this Chamber concluded—after interpreting the content of the bill—that, specifically, the provisions of Articles 46, 47, and 49 concerning the “governance of public employment matters 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 Poder Judicial.

That interpretation was made in consideration of the principle of independence of the Poder Judicial. Accordingly, Article 17 under review is deemed to contain a constitutional defect, on the terms stated above.

Regarding Article 18.—Probationary Period and Appointment Term for Senior Management in relation to the Poder Judicial (opinion authored by Justice Picado Brenes) In relation to this provision, the requesting parties again point to the violation of the principle of separation of powers (principio de separación de funciones) and the independence of the Poder Judicial, insofar as it provides that, for senior technical management positions (puestos de alta dirección técnica), appointments shall be for 6 years, with a probationary period (período de prueba) of 6 months, renewable annually subject to performance evaluation (evaluación de desempeño), which, they state, affects a matter that falls within the Poder Judicial’s own regulatory authority. Article 18 under review provides as follows:

“ARTICLE 18—Appointment and probationary period for senior public management Every public servant (persona servidora pública) appointed to a senior public management position (puesto de alta dirección pública) shall be subject to a six-month probationary period, and the 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 the preceding sections, it must be reiterated that the regulation of matters relating to the appointment and selection of personnel, as is also the case with senior technical management positions, the probationary period, and the duration or conditions for renewing appointments are regulations inherent and germane to the organizational and administrative autonomy (autonomía organizacional y administrativa) of the Poder Judicial, since these are strategic positions of great importance to its administration, whose definition must be entrusted to that institution in accordance with its constitutional purposes.

It should be noted that, with respect to the Poder Judicial, those positions would include, at a minimum, the members of the Consejo Superior del Poder Judicial and the heads of the Defensa Pública, Ministerio Público, and Organismo de Investigación Judicial. These are highly important positions that must be particularly protected from interference by other Powers of the Republic and that require the personnel stability necessary for the proper and impartial performance of their duties, which is incompatible with an appointment whose renewal must be reviewed annually, as provided by the rule at issue. A provision of that nature would be unworkable for this Power of the Republic in the case of positions of such importance, whose appointment requires different competitive selection procedures (concursos) and careful verification of credentials (atestados) before selection. Thus, far from benefiting the administration of justice, it would create such instability that it would impair the sound governance of the Poder Judicial.

Accordingly, requiring the periodicity and renewal established by this Article 18 in the case of the Poder Judicial not only violates the principle of independence because it conflicts with the special regulations already applicable to the Poder Judicial, but is also unreasonable and disproportionate, since the means chosen by the legislature would not be the most appropriate for achieving the intended purpose—assessing personnel suitability (idoneidad)—given that the Poder Judicial already has an extensive regulatory framework specifically designed to govern it. That framework is intended not only to regulate the Poder Judicial specifically, while ensuring its independence from the other Powers of the Republic, but also to safeguard the principle of suitability that must prevail in the selection of its officials. Consequently, far from advancing that constitutional principle, the provision under review would unreasonably and disproportionately disrupt the organization of positions that are fundamental to the Poder Judicial’s administration of justice, even placing at risk the impartiality in the performance of duties that must prevail in those positions because of the continual pressure associated with the annual renewal of their appointments.

It should also be noted that, as with Article 14 under review and the provisions of Article 2 of this bill, Article 18 establishes no exception regarding the application of this provision to the Poder Judicial, although it does so in this instance for public universities by stating that, in their case, the terms and periods established in their organic statutes and regulations shall be respected. The Poder Judicial is therefore not excluded from its application. Accordingly, Article 18 under review is deemed to contain a constitutional defect (vicio de inconstitucionalidad), on the grounds set forth above.

Regarding Article 21 (single dismissal regime) and Article 22 (dismissal proceedings) as they relate to the Poder Judicial (drafted by Justice Picado Brenes) The articles under review provide as follows:

“ARTICLE 21—Dismissal procedure Obtaining two consecutive performance evaluations below a score of seventy percent (70%) that have become final, once the procedure for challenging the score has been exhausted and provided that the public servant’s responsibility for that deficient evaluation has been established, shall constitute grounds for immediate dismissal (causal de despido inmediato) applicable to every public servant. That score must be duly justified by the immediate supervisor who assigns it and by the hierarchical authority that upholds it if it has been challenged.

The entities and bodies covered shall implement remedial plans (planes remediales) agreed upon with the public servant and with guidance from human resources, enabling them to determine the reasons why public servants receive a score below seventy percent (70%) and to take action to improve their performance. If, despite implementation of the remedial plan, the public servant fails to improve their performance and consecutively receives another score below seventy percent (70%), grounds for immediate dismissal shall be established.

The entities and bodies covered shall implement remedial plans enabling them to determine the reasons why public servants receive a score below seventy percent (70%) and to take action to improve their performance. If, despite implementation of the remedial plan, the public servant fails to improve their performance and consecutively receives another score below seventy percent (70%), grounds for immediate dismissal shall be established.

Every dismissal for cause (despido justificado) shall be deemed to entail no liability for the Public Administration and shall result in the public servant’s loss of all rights granted by this law and by the regulations applicable to each job family, except for the corresponding prorated employment benefits and those acquired under the pension systems in force, provided that the following rules are observed:

• a)A single special administrative dismissal procedure (procedimiento administrativo especial de despido), guaranteeing due process (debido proceso) and its principles, shall apply in all offices and agencies falling within the scope of this law and must be concluded by a final administrative act (acto final) within two months of its commencement. In cases where it is required, the preliminary investigation (investigación preliminar) shall not commence the procedure indicated in the preceding paragraph; nevertheless, on pain of the matter becoming time-barred (prescripción), the investigation must begin no later than one month after the highest-ranking authority (jerarca) learns, either on its own initiative or through a complaint, of the possible commission of misconduct by one of its public servants. The same one-month limitation period shall apply if, after the aforementioned preliminary investigation has begun, it remains inactive through the fault of the Administration.

For purposes of the two-month period indicated in the first paragraph of this subsection, the ordinary dismissal proceeding (procedimiento ordinario de despido) shall commence when the institution’s highest-ranking authority decides to initiate that proceeding by appointing the body conducting the proceeding (órgano director del proceso).

• b)Upon receiving a complaint or report, or upon being informed of alleged misconduct that, in the institution’s highest-ranking authority’s judgment, warrants the initiation of dismissal proceedings, that authority shall appoint a body to conduct the proceeding, which shall set out the charges in writing and serve them on the public servant, granting a period of fifteen days for the presentation of all evidence offered at an oral and private hearing. Notice shall be served personally through the official’s institutional email, by certified mail, or by publication on a single occasion in the official gazette La Gaceta when it is shown that the alleged offender cannot otherwise be located. Within the stated period, the public servant must submit a written response to the charges (descargos) and may offer any evidence considered appropriate in support of the defense, whether documentary, testimonial, or of any other kind, as well as any defenses or incidental motions (excepciones o incidentes) considered appropriate.
• c)If, upon expiration of the period established in the preceding subsection, the public servant has not filed an objection, or has expressly stated agreement with the charges brought, the institution’s highest-ranking authority shall issue the dismissal decision without further proceedings, unless the public servant proves that notice was not received from the body conducting the proceeding or that good cause prevented the filing of an objection.
• d)If the charge or charges brought against the employee or public servant entail criminal liability, or when necessary to ensure the successful completion of the administrative disciplinary dismissal proceeding (procedimiento administrativo disciplinario de despido) or to safeguard the decorum of the Public Administration, the institution’s highest-ranking authority may, by reasoned decision (resolución motivada), order the public servant’s provisional suspension (suspensión provisional) from performing the duties of the position. If criminal proceedings are instituted against the public servant, such suspension may be ordered at any time as a consequence of a detention order, pretrial detention, or a final judgment imposing a custodial sentence.
• e)If the interested party files an objection within the statutory period, the body conducting the proceeding shall rule on any preliminary defenses (excepciones previas) that have been raised and shall convene an oral and private hearing before the Administration, at which all relevant evidence and arguments of the parties shall be admitted and heard. Visual inspections and expert examinations may also be conducted before the hearing. A second hearing may be convened only when it was impossible at the first hearing to prepare the case file for a final decision and the outstanding proceedings so require.
• f)If the public servant incurs new grounds for dismissal during the evidentiary phase (período de instrucción), the charges shall be consolidated into the pending case file, and the matter shall proceed in accordance with this chapter.
• g)Once the evidence has been heard, the preliminary defenses submitted within the ten-day period granted for objecting to the service of charges (traslado de cargos) have been resolved, and the parties have submitted their closing arguments, or the period for doing so has expired, the case file shall be deemed fully prepared, and the corresponding report shall be forwarded to the institution’s highest-ranking authority for issuance of a final decision.
• h)The institution’s highest-ranking authority shall order the public servant’s dismissal or, if the charge is found to lack merit, shall so declare and order the case file closed. Nevertheless, if the authority finds that the misconduct occurred but that its seriousness does not warrant dismissal, it shall order an oral reprimand (amonestación oral), a written warning (advertencia escrita), or suspension without pay (suspensión sin goce de salario) for up to one month, depending on the seriousness of the misconduct.
• i)The ordinary remedies of reconsideration with a subsidiary appeal (revocatoria con apelación en subsidio), where the latter is available, may be filed against a decision ordering an oral reprimand, written warning, or suspension without pay for up to one month, within five days counted from the day following notice of that decision. Both remedies may be filed jointly or separately before the body issuing the decision, which shall rule on the motion for reconsideration.

In the case of public servants (personas servidoras públicas) who work at an institution covered by Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953, the appeal (recurso de apelación) shall be decided by the Tribunal de Servicio Civil. The head of the institution shall refer to the Tribunal de Servicio Civil, for appellate review, the record of the corresponding administrative proceeding (procedimiento administrativo), containing the disciplinary decision and the decision on the motion for reconsideration (recurso de revocatoria), together with a statement of the legal and factual grounds supporting both decisions.

• j)Cases not provided for in this procedure shall, insofar as this does not conflict with the text and procedural principles contained herein, be resolved by supplementary application, in the following order, of: Ley 6227, Ley General de la Administración Pública; the rules of public law; the general principles of public law; Código de Trabajo; Código Procesal Civil; the principles and laws of ordinary law; equity; and local customs and 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 (debido proceso) contained in the Constitución Política; if no relevant institutional regulations exist, Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, the rules of public law, the general principles of public law, Código de Trabajo, and Código Procesal Civil shall apply supplementarily.

ARTICLE 22—Appeals Stage An unextendable period of five business days, counted from notice of the dismissal decision issued by the head of the institution, shall be available to file a motion for reconsideration and/or, in the alternative, an appeal, when the latter is admissible. These shall be decided in accordance with the following provisions:

• a)If the decision is not challenged before the aforementioned five-day period expires, it shall become final and shall exhaust administrative remedies (vía administrativa).
• b)If only a motion for reconsideration was filed, the decision of the head of the institution shall be final, shall become conclusive, and shall exhaust administrative remedies.
• c)If both ordinary remedies (recursos ordinarios) are filed simultaneously, the appeal shall be processed after the motion for reconsideration has been denied.
• d)In the case of public servants who work at an institution covered by Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953, the appeal shall be granted with both suspensive and devolutive effect (en ambos efectos) before the Tribunal de Servicio Civil. The head of the institution shall refer to the Tribunal de Servicio Civil, for appellate review, the record of the administrative dismissal proceeding, containing the decision dismissing the public servant, as well as the decision on the motion for reconsideration, together with a statement of the legal and factual grounds supporting both decisions.

If only the appeal was filed, the head of the institution shall refer to the Tribunal de Servicio Civil, for appellate review, the record of the administrative dismissal proceeding containing the decision dismissing the public servant, together with a statement of the legal and factual grounds supporting that decision.

The decision adopted on appeal by the Tribunal del Servicio Civil shall be final, shall become conclusive, and shall exhaust administrative remedies. That ruling shall be binding on the head of the institution.

Once the dismissal has been authorized by a final decision, the head of the institution shall have a one-month limitation period (plazo de caducidad), counted from notice of that decision, within which to carry it out. No additional resolution is required for the head of the institution to implement the dismissal; it is sufficient to notify the public servant of the termination of her status as an official, based on the final decision issued.

If the Tribunal de Servicio Civil reverses the judgment issued by the head of the institution, it shall issue a new ruling in the same act and determine whether the employee must be reinstated in the position, with full enjoyment of the employee’s rights and payment of back pay (salarios caídos).

If the Tribunal de Servicio Civil finds that misconduct occurred but that its seriousness does not warrant dismissal, it may order an oral reprimand, a written warning, or 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 Constitución Política; if no relevant institutional regulations exist, Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, the rules of public law, the general principles of public law, Código de Trabajo, and Código Procesal Civil shall apply supplementarily.” The legislators inquire about Articles 21 and 22 of the bill, concerning the disciplinary and sanctions regime applicable to the Poder Judicial. They state that Article 21 establishes a new ground for immediate dismissal when a public servant receives two consecutive performance evaluations below 70%. They indicate that the Poder Judicial has special laws governing the sanctions regime applicable to its servants. They add that the new grounds established relate more to administrative matters than to jurisdictional matters, resulting in an objectionable and dangerous intrusion upon our Social State under the Rule of Law and judicial independence.

They consider that the new ground for immediate dismissal consisting of receiving two consecutive performance ratings below 70%, contained in Article 21, as well as the two new serious-offense grounds created through the amendment to Article 48 of Ley de Salarios de la Administración Pública, which is 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 Poder Judicial and its auxiliary bodies, while also permitting Mideplan to interfere in matters falling within the exclusive jurisdiction of that Branch of the Republic, as provided in Articles 9, 154 and 156 of the Constitución Política and the extensive international legislation cited. Next, regarding the single dismissal procedure in relation to the Poder Judicial, they state that there will be one special dismissal procedure within the scope of application of this proposed law (Article 21).

With respect to the appeals regime, the Tribunal de Servicio Civil is granted authority to decide all appeals filed against decisions imposing any type of disciplinary sanction (Article 21:i) and Article 22). They consider that this also violates the independence and autonomy of the Poder Judicial, since it has its own regulations which, because of the specialized nature of its functions, contain specific provisions concerning authority, time limits, offenses, sanctions, and remedies, as established by Articles 174 through 215 of its Ley Orgánica.

In this regard, this Chamber finds that:

-The creation of a new ground for dismissal based on failure to pass the performance evaluation on two consecutive occasions (under the first paragraph of Article 21 of the bill) is not unconstitutional, provided that the Poder Judicial and the Tribunal Supremo de Elecciones apply it in accordance with their internal regulations. The establishment of this new ground for dismissal for cause does not violate the Law of the Constitution, particularly if it is understood that this new ground would be applied pursuant to the internal provisions of the Poder Judicial, in which Mideplán would have no involvement.

-Articles 21 and 22 of the bill under review are indeed unconstitutional as applied to the Poder Judicial—and to the TSE, as discussed below—because the exercise of disciplinary authority (potestad disciplinaria) over servants of the Poder Judicial is an essential component of judicial independence. Accordingly, none of the provisions established in those articles regarding procedure and the appeals stage may be applied to the Poder Judicial, which already has internal regulations governing the exercise of disciplinary authority. As this Chamber stated in Voto n°2009-004849, any procedure for adopting disciplinary measures, suspension, or removal from office must be resolved in accordance with the established standards of judicial conduct. Thus, consistent with the principle of judicial independence, the entity having disciplinary jurisdiction shall be exclusively the Poder Judicial itself.

Regarding Article 49, subsections a, b, g, and h (amendment of regulations), in relation to the Poder Judicial (Justice Picado Brenes writing) The article under review provides as follows:

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

• A)Articles 12 and 48 of Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957, are amended. The text shall read as follows:

Article 12—The seniority incentive (incentivo por anualidad) shall be recognized in the month immediately following the anniversary of the entry or reentry of a public servant who works under the composite-salary system (salario compuesto), in accordance with the following rules:

• a)If the servant is transferred to a position in the same or a lower category than the position currently held, there shall be no interruption in the calculation of time for the salary increase.
• b)If the servant is promoted, the servant shall begin receiving the minimum seniority increments for the new category; under no circumstances shall previously recognized incentives be revalued.
• c)For permanent or interim public servants, time served at other public-sector entities shall be counted for purposes of recognizing the seniority incentive.

Article 48—Performance Evaluation Criteria At the beginning of the year, each head of a Public Administration unit shall assign and allocate all officials among the unit’s processes, projects, products, and services, establishing delivery deadlines and the estimated time required for completion. Each hierarchical superior shall be responsible for monitoring this annual work plan; failure to do so shall be considered serious misconduct (falta grave) in accordance with the applicable regulations.

For regular and frequent monitoring of the activities in the work plan, each administration shall establish a computer system for that purpose, to be populated by each official with the daily activities associated with those processes, projects, and products, and with information regarding compliance with deadlines and time estimates. Each official, including all management personnel, shall be responsible for updating and keeping current the information necessary to evaluate the official’s performance, in accordance with the processes, projects, products, and services specifically assigned, their delivery deadlines, and the estimated time required for completion, in the computer system made available by the administration. Failure to do so shall be considered serious misconduct in accordance with the applicable regulations.

The seniority incentive shall be granted through performance evaluation only to public servants who work under the composite-salary system and who have obtained a minimum rating of “very good” or its numerical equivalent under the defined scale, in accordance with the following rules:

• a)Eighty percent (80%) of the annual rating shall be based on compliance with the annual targets established for each public employee, in accordance with the provisions of this chapter.
• b)Twenty percent (20%) shall be the responsibility of the immediate supervisor or superior and shall be assessed according to satisfactory performance consistent with the competencies required for the position.
• B)Subsection l) is added to Article 13, and Articles 1 and 7 bis of Ley 1581, Estatuto de Servicio Civil, of 30 de mayo de 1953, are amended. The texts shall read as follows:

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

[…]

• l)To exhaust administrative remedies (agotar la vía administrativa) in matters falling within the jurisdiction of the Dirección General de Servicio Civil.

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

Article 7 bis- The Dirección General de Servicio Civil is granted instrumental legal personality (personalidad jurídica instrumental) solely for the purposes of managing its own budget, fulfilling its objectives in accordance with Ley 1581, Estatuto de Servicio Civil, of 30 de mayo de 1953, and other related laws, and administering its assets.

• C)Article 704 of Ley 2, Código de Trabajo, of 27 de agosto de 1943, is amended. The text shall read as follows:

(…)

• D)Articles 7, 8, 9 and 10 of Ley 8777, Creación de los Tribunales Administrativos del Régimen de Pensiones y Jubilaciones del Magisterio Nacional y del Servicio Civil, of 7 de octubre de 2009, are amended. The texts shall read as follows:

(…)

• E)Articles 7 bis and 35 of Ley 1581, Estatuto de Servicio Civil, of 30 de mayo de 1953, are amended. The texts shall read as follows:

(…)

• F)Subsection 5) of Article 112 of Ley 6227, Ley General de la Administración Pública, of 2 de mayo de 1978, is amended. The text shall read as follows:

(…)

• G)Article 85 is added to Ley 5155, Estatuto de Servicio Judicial, of 10 de enero de 1973. The text shall read as follows:

Article 85.- The powers established by this law for the bodies of the Judicial Branch shall be exercised in coordination with the Ministerio de Planificación Nacional y Política Económica (Mideplán), with respect to the matters addressed by the Ley General de Empleo Público.

• H)Article 17 is added to Ley 2422, Ley de Salarios del Poder Judicial, of 11 de agosto de 1959. The text shall read as follows:

Article 17.- The powers established by this law for the bodies of the Judicial Branch shall be exercised in coordination with the Ministerio de Planificación Nacional y Política Económica (Mideplán), with respect to the matters addressed by the Ley General de Empleo Público.

• I)Article 11 of Ley 6877, Ley de Creación del Servicio Nacional de Aguas, Riego y Avenamiento (Senara), of 18 de julio de 1983, is amended. The text shall read as follows:

(…)

• J)Subsection f) of Article 11 of Ley 7800, Creación del Instituto Costarricense del Deporte y la Recreación y del Régimen Jurídico de la Educación Física, el Deporte y la Recreación, of 30 de abril de 1998, is amended. The text shall read as follows:

(…)

• K)Subsection k) of Article 42 of Ley 9694, Ley del Sistema de Estadística Nacional, of 4 de junio de 2019, is amended. The text shall read as follows:

(…)

• L)Subsection ch) of Article 11 of Ley 4716, Ley de Organización y Funcionamiento del Instituto de Fomento y Asesoría Municipal (IFAM), of 9 de febrero de 1971, is amended. The text shall read as follows:

(…)

• M)Subsection I) of Article 17 of Ley 2726, Ley Constitutiva del Instituto Costarricense de Acueductos y Alcantarillados, of 14 de abril de 1961, is amended. The text shall read as follows:

(…)

• N)Subsection ñ) of Article 53 of Ley 7593, Ley de la Autoridad Reguladora de los Servicios Públicos (Aresep), of 9 de agosto de 1996, is amended. The text shall read as follows:

(…)

• Ñ)Subsection t) of Article 28 of Ley 7558, Ley Orgánica del Banco Central de Costa Rica, of 3 de noviembre de 1995, is amended. The text shall read as follows: (…)

The petitioners consider that Article 49 of the bill under review is unconstitutional. In particular, they present arguments against subsections a), b), g), and h). With respect to subsection a), they refer to the new grounds for dismissal for just cause, which, according to the petitioners, concern ratings below 70% and failure to enter information into the database. This Chamber already ruled on the first ground in the preceding recital (considerando), and, as to the second ground concerning the entry of information into the database, it should be noted that the challenge is not clearly substantiated; this Chamber therefore declines to issue a ruling.

Subsection b) is challenged on the ground that it would subject the Judicial Branch to the Estatuto de Servicio Civil. In this regard, this Chamber observes that the article in question adds to and amends certain articles of the Estatuto de Servicio Civil, particularly Article 1, as shown below:

Estatuto de Servicio Civil (current version) Estatuto de Servicio Civil (proposed amendment) Article 1º.- This Statute and its regulations shall govern relations between the Executive Branch and its employees, for the purpose of ensuring the efficiency of the Public Administration and protecting those employees.

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

Thus, under the bill being reviewed, the Estatuto de Servicio Civil would govern relations not only within the Executive Branch but also throughout the State generally, including the Judicial Branch. This would not be unconstitutional per se, provided, of course, that the Judicial Branch’s subjection thereto is understood to be limited to the general principles of public employment and that this does not entail the repeal of the Judicial Branch’s special rules governing these matters, since, in matters concerning the public employment of its officials, those special rules would prevail over the Estatuto de Servicio Civil. Furthermore, the Dirección General de Servicio Civil could have no jurisdiction over matters pertaining to the Judicial Branch. Under this interpretation, Article 49, subsection b), is not unconstitutional, provided that it is construed as indicated.

However, subsections g) and h) of Article 49 are unconstitutional because they violate the independence of the Judicial Branch. This is because those subsections sought to make corresponding additions to the Estatuto de Servicio Judicial and the Ley de Salarios del Poder Judicial in order to introduce Mideplán’s involvement in the powers established under that special legislation, stating that Judicial Branch bodies must exercise the powers established by those laws in coordination with that ministry. This clearly violates the constitutional principle of judicial independence, because it would require the competent Judicial Branch authorities to coordinate the exercise of their powers concerning the public employment of judicial officials with a body of the Executive Branch. The Corte Plena, the President of the Corte Suprema de Justicia, the Consejo de Personal, the Consejo de la Judicatura, and the Departamento de Personal would thus be required to coordinate with Mideplán before taking action on public-employment matters addressed in the bill, namely: workforce planning, work organization, employment management, performance management, compensation management, and labor-relations management.

In matters falling within the exclusive jurisdiction of the Judicial Branch, such as the internal management of its personnel, any form of mandatory coordination with another State body is precluded. Although this concerns coordination rather than direction, the fact remains that, in this area, which belongs to the internal sphere of judicial independence, even coordination would be impermissible in the exercise of the Judicial Branch’s exclusive powers. “Judicial independence is manifested on various levels: externally, it is reflected in the Judicial Branch’s autonomy in economic matters and in the security of tenure of its personnel; functionally, it is reflected in the genuine ability to make decisions according to its own criteria and not as a result of pressure from particular groups, institutions, or individuals.” (judgment n°2000-005493). Moreover, it must be recalled that Article 154 of the Constitution provides: “The Judicial Branch is subject only to the Constitution and the law…”; it is not subject, even at the level of coordination, to any body of another branch of the Republic.

It should be noted that even “the constitutional powers to direct, plan, or schedule, for example, the administrative function of personnel management” (judgment n°2017-009551) lie beyond the legislature’s reach; all the more so would they lie beyond the reach of another branch of the Republic. This is because even “indirect regulation of the judicial service through directives or guidelines originating from other authorities” is prohibited. (judgment n°2018-019511). Consequently, this Court considers that subsections g and h of Article 49 are constitutionally defective because they infringe the principle of independence of functions guaranteed to the Judicial Branch by Articles 9 and 154 of the Political Constitution.

• 4)Conclusion -With respect to Articles 12 (database), 13.h (family members in positions of trust), 15 (recruitment and selection principles), 19 (mobility or transfers), and 31 (work methodology), because insufficient grounds have been provided to enable this Chamber to clearly understand the issues submitted for review, the request for review is declared inadmissible for lack of substantiation.

-In the terms indicated and in accordance with the case law of this Chamber, the following articles of the “LEY MARCO DE EMPLEO PÚBLICO” bill, which is being processed under legislative expediente n° 21.336, are unconstitutional.

Having analyzed all the matters raised concerning 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, and 49 (subsections b, g, and h), of the bill entitled “LEY MARCO DE EMPLEO PÚBLICO,” legislative expediente n° 21.336, this Chamber finds that those provisions are contrary to constitutional law (Derecho de la Constitución), because they violate the principle of separation of powers (principio de separación de funciones), the principle of judicial independence (principio de independencia judicial), the special employment regime (régimen particular de empleo) of the Poder Judicial, and the constitutional administrative powers of the Corte Suprema de Justicia. The economic, personal, functional, organizational, and institutional independence of both the Poder Judicial itself and judges and officers of the court is essential in a constitutional state governed by the rule of law (Estado Constitucional de Derecho).

Under this principle, each branch is independent of the others, and every state body must be able to perform its function independently of the others (art.9° Constitucional). They may interact with one another, but there may never be subordination or mandatory coordination in matters falling within the sole and exclusive jurisdiction of the Poder Judicial. The fact is that a comprehensive reading of the bill leads to the conclusion that the principle of separation of powers is not adequately guaranteed, not only because of the subordination to Mideplán (Articles 6, 7, and 9, for example), but also because of the imposition of certain matters that fall within the sole and exclusive jurisdiction of the Poder Judicial (Articles 14, 17, 18, 21, and 22, for example). Furthermore, this entails not only a violation of the principles of separation of powers and judicial independence, but also of the entire democratic system and organization of governmental power established by the Constituent Assembly in our state governed by the rule of law.

“A further guarantee of the independence of the Poder Judicial in employment matters is that the Head of the Personnel Department reports to the President of the Corte, thereby excluding interference by external bodies.” (voto n°2018-019511).

Finally, this Chamber notes from the legislative record that the Corte Suprema de Justicia issued an unfavorable opinion on the bill in response to the consultation submitted to it by the Asamblea Legislativa, stating the following in oficio n°SP-62-2021 del 03 de junio del 2021:

“As stated, although the new text of the bill … the underlying objection remains to including the Poder Judicial within a regulatory framework that entails clear interference by the Poder Ejecutivo in matters that—constitutionally and legally—belong to this other institution. (…) the regulatory basis of the previous text is retained, and the intent remains to regulate a public-employment regime (régimen de empleo público) that does not take into account the distinguishing features of the entities and bodies brought within its scope. Thus, the Poder Judicial remains included in the bill, with the consequences that this entails for its internal structure and operations, as noted in the previous reports.” (emphasis not in the original) (The individual opinions of the justices concerning this section, because they were prepared jointly with the Tribunal Supremo de Elecciones, are included at the end of the following section.)

X. Regarding the alleged violation of the independence of the Tribunal Supremo de Elecciones.-

• 1)Matters Raised The consulting members of the Asamblea Legislativa consider that the following articles of the “LEY MARCO DE EMPLEO PÚBLICO” bill, being processed under legislative expediente n° 21.336, violate the principle of separation of powers. Specifically, they raise questions concerning the following articles, identified either in the heading of the general title or elsewhere in the text of the filing:

 2.a (scope of application),  6.b (governance authority of Mideplan),  7 (powers of Mideplan),  9.a (Human Resources offices),  12 (database),  13 (job families),  14 (recruitment and selection),  15 (recruitment and selection principles),  17 (Senior Management personnel),  18 (probationary period and term of appointment),  19 (mobility or transfers),  21 (single dismissal regime),  22 (dismissal procedure),  31 (work methodology), First, with regard to Articles 12 (database), 13.h (family of positions of trust), 15 (recruitment and selection principles), 19 (mobility or transfers), and 31 (work methodology), because sufficient grounds have not been provided to enable this Chamber to clearly understand the matters raised, the consultation is declared unanswerable for lack of supporting grounds.

With regard to the remaining articles, the consulting parties consider that Articles 2.a, 6, 7, 9, 13, 14, 17, 18, 21, and 22 of the “LEY MARCO DE EMPLEO PÚBLICO” bill, being processed under legislative expediente n° 21.336, violate the independence of the TSE and therefore Articles 9 and 99 of the Constitution. They consider them unconstitutional because they require the TSE to apply and implement the generally applicable provisions (disposiciones de alcance general), directives, and regulations issued by Mideplán, in violation of its independence, thereby allowing interference by the Poder Ejecutivo in a matter constitutionally barred to it and constituting a regression of the rule of law. They state that art.9 of the Constitution guarantees the independence of the TSE by placing it on the same level as the other branches of government, not only with regard to acts relating to suffrage but also with regard to the functions established by the Constitution itself and other laws.

Thus, they note the existence of matters that compromise the statutory and constitutional powers of the TSE: art.13.a.Nombre06, which establishes a single public-employment regime for TSE employees and Magistrates; the obligation to conduct recruitment and selection processes in accordance with the generally applicable provisions, directives, and regulations issued by Mideplán (art.14); subordination to Mideplán in the recruitment and selection of senior technical management personnel; the requirement of a 6-month probationary period and a 6-year term of appointment (art.17 and 18); and a single special administrative dismissal procedure. In addition to its inclusion in art.2.a, the obligation to apply and implement the generally applicable provisions, directives, and regulations issued by Mideplán violates the independence of the TSE (arts. 9 and 99) and subjects it to interference by the Poder Ejecutivo in a matter constitutionally barred to that branch, compounded by the regression this entails for the rule of law.

Accordingly, the Court proceeds to examine the specified articles. Before doing so, it provides a summary of the case law concerning the independence of the TSE, which will serve as context for the examination of each article raised.

• 2)Case-Law Background on the Constitutional Principle of Separation of Powers as It Relates to the Tribunal Supremo de Elecciones With respect to the Tribunal Supremo de Elecciones (TSE), it should be noted that there is also extensive case law concerning the basis, justification, and importance of its independence. In voto n°3194-1992, the Chamber held:

“In electoral matters, the 1949 Constitution attached particular importance to the need to separate everything relating to suffrage, primarily from the sphere of the political branches of government. To that end, it established a series of principles and adopted mechanisms of an eminently formal nature to guarantee the independence of suffrage, principally by granting full autonomy to the body responsible for organizing, directing, and overseeing it. Originally under Article 99 of the Constitution, and subsequently also under Article 9—through the amendment introduced by ley 5704 de 5 de junio de 1975—the Tribunal Supremo de Elecciones was entrusted not only with the organization, direction, and supervision of acts relating to suffrage, but was also granted the status and independence of a branch of government.” Meanwhile, voto n°00495-1998 added that “although (the TSE) is not a branch of government in the strict sense, it does perform a fundamental function in the Costa Rican state—namely, responsibility for electoral matters—and, by constitutional provision—the second paragraph of Article 9 transcribed above—it is granted the status and independence of a branch of government.” For its part, in voto n°2000-06326, this Chamber explained:

“III.- THE LEGAL-CONSTITUTIONAL NATURE OF THE TRIBUNAL SUPREMO DE ELECCIONES. In view of the electoral problems that prompted the 1948 revolution, the members of the 1949 Asamblea Nacional Constituyente took particular care to safeguard electoral matters, separating everything relating to suffrage primarily from the sphere of the branches of government, particularly the Poder Ejecutivo and the Asamblea Legislativa, while not excluding the Judicial branch. They established a series of basic principles governing the exercise of suffrage:

‘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 citizens ex officio in the Registro Civil and provide them with an identity card for the exercise of suffrage; Effective guarantees of freedom, order, integrity, and impartiality by government authorities; Guarantees that the voting system facilitates citizens’ exercise of that right; Identification of voters by means of an identity card bearing a photograph or another suitable technical means prescribed by law for that purpose; Guarantees of representation for minorities; Guarantees of political pluralism; Guarantees for the selection of political-party officials and candidates in accordance with democratic principles and without discrimination (artículo 95 de la Constitución Política); and they adopted mechanisms of an eminently formal nature to guarantee the independence of suffrage, granting full autonomy to the body responsible for organizing, directing, and supervising it (the Tribunal Supremo de Elecciones), originally under the terms of Article 89 of the Constitución Política and subsequently under Article 9 (added by Ley número 5704, de 5 de junio de 1975), pursuant to which this Tribunal was entrusted not only with jurisdiction over electoral matters—as noted above—but was also granted the status and independence of a branch of government.

It is therefore clear that the Tribunal Supremo de Elecciones is a constitutional body specializing in electoral matters which, by constitutional mandate, enjoys the same independence as the branches of government in the exercise of its powers; that is, it has full autonomy to organize, direct, and supervise electoral processes and all acts relating to suffrage, with the independence and status of a branch of government. This has previously been described in constitutional case law as follows:

‘As a constitutional body specializing in electoral matters, with the status and independence of the branches of government, the Tribunal may be vested—within its specific sphere—with any of the functions of the State, and in fact it has been vested with all three [assigned to it], being responsible for “the organization, direction, and supervision of acts relating to suffrage, as well as the other functions assigned to it by the Constitution and the laws”’ (sentencia número 0980-91, de las 13:30 horas del 24 de mayo de 1991).

In this regard, and given its importance, mention must be made of the interpretive authority that constitutional case law recognized in this constitutional tribunal, obviously in matters within its own jurisdiction—electoral matters—in the following terms:

“[...] the powers under Articles 97, second paragraph, and 121, subsection 1), still exclude even the Asamblea Legislativa, and Article 102 further reinforces this with unparalleled breadth, particularly by granting it powers as extensive as that of ‘exclusively and bindingly interpreting the constitutional and statutory provisions concerning electoral matters’ subsection 3)” (judgment number 0980-91, cited supra).

By virtue of this special jurisdiction (competencia especial), and of the prerogatives and powers (potestades) of the Tribunal Supremo de Elecciones, this Sala Constitucional concluded that the electoral sphere is “a special constitutional domain to which the same rules applicable to the other Public Branches are not suited” (judgment number 3194-92, issued at 16:00 on 27 de octubre de 1992). By way of example, reference must be made to the regulatory authority (competencia reglamentaria) that constitutional case law (jurisprudencia constitucional) has recognized solely in relation to matters within its jurisdiction, namely, electoral activity (actividad electoral):

(…)

IV. THE SCOPE OF JURISDICTION OF THE TRIBUNAL SUPREMO DE ELECCIONES

ELECTORAL MATTERS (MATERIA ELECTORAL) IN LIGHT OF CONSTITUTIONAL CASE LAW. On repeated occasions, this Sala has addressed the special jurisdiction of the Tribunal Supremo de Elecciones, which is defined by the Constitution itself—Articles 9 and 99 of the Constitución Política—as electoral matters; in this regard, judgments numbers 0980-91, 2150-92, 3194-92, 2430-94, 2456-96, 0034-98, 0466-98, 0563-98 and 0969-98 may be consulted. All these decisions recognize its exclusive jurisdiction (competencia exclusiva) over electoral matters, and it is only when that body declines jurisdiction that the Sala Constitucional has held that it may hear such matters, provided that it is alleged that the challenged acts infringe fundamental rights (derechos fundamentales):

(…) Accordingly, it has stated that electoral activity encompasses organizing, directing, and overseeing all acts relating to the national election process (judgment number 0653-98), which is carried out through activities such as the following, by way of example and without this constituting an exhaustive list: regulating the rules governing political-party financing (deuda política), as well as the oversight exercised by the Tribunal Supremo de Elecciones in this area (0980-91, 3666-93, 0515-94, 0428-98); reviewing bylaws governing the right to elect and be elected in political parties’ internal processes (judgment number 3294-92); constituting the Consejo Municipal, declaring the election results, and subsequently replacing municipal councilors and district representatives who lose their credentials (judgment number 2430-94); processing electoral litigation proceedings (proceso contencioso electoral) concerning the revocation or annulment of municipal councilors’ credentials (judgment number 0034-98); closing commercial establishments that sell liquor and are located in downtown San José as a consequence of the public rallies held by political parties (judgment number 0466-98); and determining, by the Tribunal Supremo de Elecciones, where the formal ceremony will be held on election day for the initial tally of the national election results (0563-98).” Regarding specifically the public employment regime (régimen de empleo público) applicable to the TSE, there are no specific precedents on that matter. Nevertheless, reference may again be made to ruling n° 550-1991, which held:

“(…) in the case of the branches of government, their own constitutional independence, guaranteed generally by Article 9° of the Constitution and, in the case of the Poder Judicial and the Tribunal Supremo de Elecciones, by Articles 99 et seq., 152 et seq., and 177 thereof, as well as by their own organic rules (normas orgánicas), vests their senior authorities with the power and responsibility to set the remuneration, representation expenses, and other benefits inherent to the positions of their own members and subordinates, naturally within their available budgets, irrespective, of course, of whether the amounts may or may not coincide with those of the deputies.” Ruling n° 2005-14298 (which heard a challenge to the term of appointment of the Oficial Mayor del Registro Civil) may also be cited. In that ruling, the Sala decided the challenge expressly on the basis of Articles 191 and 192 of the Constitución Política. It reiterated that although the Constitution refers to a civil service statute (estatuto de servicio civil), the fact remains that:

“(…) The secondary legislature (legislador derivado), however, chose to regulate the service not generally but by sector, thus enacting the Estatuto de Servicio Civil (which applies to employees of the Poder Ejecutivo) and, subsequently, other statutes to regulate the provision of services in the remaining branches of the State and in certain decentralized institutions. Nevertheless, although the legislature did not adopt the framers’ concept and regulated public service only partially, the fact remains that the regime’s fundamental principles (selection based on merit and fitness, and employment stability) cover all officials serving the State, both in the central administration and in decentralized entities. (…) It bears repeating that the original constituent assembly’s intention was that there be a single law, a Statute, regulating all public employment. What is important, however, is that detailed regulation of the special regime’s scope was delegated to the secondary legislature, which could accomplish this, as it did, through 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 employment stability and demonstrated fitness under the public employment regime must be safeguarded with greater vigilance, because the framers’ intention in creating this Branch was to eliminate entirely the possibility that electoral officials might become involved in any political activity, thereby ensuring an independent Electoral Body.” It follows from all the foregoing that the Tribunal Supremo de Elecciones, as the constitutional body responsible for organizing, directing, and overseeing the independence of suffrage, was granted the status and independence inherent to a branch of the State. It therefore enjoys full independence in carrying out its constitutional duties. Because of the electoral problems that led to the revolution of 1948, the members of the Asamblea Nacional Constituyente de 1949 took special care regarding electoral matters, removing everything relating to suffrage, principally from the sphere of the Branches of the State, and safeguarding the electoral function (función electoral) through various principles and guarantees, foremost among them the autonomy of the electoral function.

The foregoing makes clear that the Tribunal Supremo de Elecciones is a constitutional body specializing in electoral matters that, by constitutional provision, enjoys the same independence as the Branches of the State in exercising its powers; that is, it has full autonomy to organize, direct, and oversee electoral processes and all acts relating to suffrage, with the independence and status inherent to a branch of the State. Accordingly, this Sala Constitucional concluded that “the electoral sphere is a special constitutional domain to which the same rules applicable to the other Public Branches are not suited” (judgment n°2000-06326). Although the constitutional principles governing public employment—fitness and stability—also apply to it, the TSE is understood to have its own organic or special rules granting its senior authorities exclusive jurisdiction to set the remuneration, representation expenses, and other benefits inherent to the positions of its own members and subordinates.

Finally, as stated supra regarding the Poder Judicial, the foregoing does not prevent the Legislature from enacting a Ley General de Empleo Público that includes the TSE, provided that the principles of separation of powers or functions and electoral independence are respected.

• 3)Review of the Articles Submitted for Consultation Regarding Article 2.a (scope of coverage), with respect to the Tribunal Supremo de Elecciones (Drafted by Justice Castillo Víquez) The provision submitted for consultation states as follows:

“ARTICLE 2- Scope of coverage This law applies to public servants (personas servidoras públicas) of the following entities and bodies under the principle of the State as sole employer (Estado como patrono único):

• b)The Branches of the Republic (Executive, Legislative, and Judicial), their auxiliary and affiliated bodies, and the Tribunal Supremo de Elecciones (TSE), without prejudice to the principle of separation of powers established in the Constitución Política.

(…)” As was stated with respect to the Poder Judicial, given this situation and returning to the discussion supra—namely, that it is plausible to subject all branches of the State to a single public employment statute, such that subjecting the Poder Judicial and the Tribunal Supremo de Elecciones to this law is not unconstitutional—it is nevertheless unconstitutional because it does not exclude officials who perform adjudicative functions (funciones jurisdiccionales)—judges—or quasi-adjudicative functions (funciones para-jurisdiccionales)—prosecutors, public defenders, and the professionals and specialized personnel of the Organismo de Investigación Judicial, etc.—and officials at the managerial or senior political leadership level, as the bill calls them, as well as officials of the Tribunal Supremo de Elecciones who perform electoral functions—legal clerks, department directors, professionals, etc.—and those holding senior political leadership positions, together with the administrative, professional, and technical personnel exclusively and conclusively designated by each senior authority of the respective branch, because in these cases such personnel cannot be subjected to guidelines, provisions, circulars, or manuals issued by Mideplán.

This means that the Poder Judicial and the Tribunal Supremo de Elecciones would be subject to the powers granted to Mideplán by the law when dealing with all other officials—those exclusively and conclusively designated by each senior authority of the Poder Judicial and the Tribunal Supremo de Elecciones—who form part of the administrative, auxiliary, or support staff.

Regarding Article 6 (Mideplán’s governing authority), with respect to the Tribunal Supremo de Elecciones (Drafted by Justice Castillo Víquez) The following provision is submitted for consultation:

“ARTICLE 6- Creation of the General Public Employment System The Ministry of National Planning and Economic Policy (Ministerio de Planificación Nacional y Política Económica, Mideplán) shall serve as the governing authority (rectoría) of the General Public Employment System. Said system shall consist of the following:

• a)The Ministerio de Planificación Nacional y Política Económica (Mideplán).
• b)The Human Resources Management offices, departments, divisions, directorates, units, or equivalent organizational bodies of the entities and bodies within the scope of this law. (…)” As indicated in the same regard for the Poder Judicial, Article 6(b) of the bill under consultation is unconstitutional, since it subjects the Poder Judicial and the Tribunal Supremo de Elecciones to the executive direction authority (potestad de dirección) of the Poder Ejecutivo, which is contrary to the principles of judicial and electoral independence (independencia judicial y electoral). Accordingly, the human resources management offices, departments, areas, directorates, and units of these branches may not be subject to that authority, except with respect to persons providing basic auxiliary administrative services that do not affect their exclusive and preclusive powers (competencias exclusivas y excluyentes) or the administrative functions necessary for exercising them, as defined exclusively by the highest authorities (jerarcas) of the Poder Judicial and the Tribunal Supremo de Elecciones.

Regarding Article 7 (Powers of Mideplán), with respect to the Tribunal Supremo de Elecciones (Opinion drafted by Justice Castillo Víquez) The following provision is under consultation:

“ARTICLE 7—Powers of Mideplán The Ministerio de Planificación Nacional y Política Económica (Mideplan) shall have the following powers:

• a)To establish, direct, and coordinate the issuance of public policies, programs, and national public-employment plans, in accordance with Ley 5525, Ley de Planificación Nacional, de 2 de mayo de 1974.
• b)To establish mechanisms for discussion, participation, and consensus-building with municipal corporations through the Unión de Gobiernos Locales and state university higher-education institutions regarding public employment.
• c)To issue generally applicable provisions (disposiciones de alcance general), directives (directrices), and regulations (reglamentos) aimed at standardizing, simplifying, and ensuring the coherence of public employment, as prescribed by Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, and Article 46 of Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• d)To advise the entities and bodies falling within the scope of this law regarding the proper implementation of public policies, generally applicable provisions, directives, and regulations issued within the framework of policy governance (rectoría política) over public employment and Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, and Article 46 of Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• e)To administer and keep the integrated public-employment platform up to date.
• f)To publish public-employment opportunities through the virtual platform to which the entities and bodies falling within the scope of this law shall contribute information.
• g)To issue general guidelines and principles for performance evaluation (evaluación del desempeño).
• h)To administer and implement research, innovation, and public-employment proposal-development activities.
• i)To direct and coordinate, with the Ministerio de Hacienda, the Ministerio de Trabajo y Seguridad Social, the Autoridad Presupuestaria, the Dirección General de Servicio Civil, and other technical agencies dealing with public employment, the exercise of the inherent powers relating to public employment.
• j)To collect, analyze, and disseminate public-employment information from the entities and bodies for their improvement and modernization. For this purpose, it shall establish a system of indicators by setting coordination criteria to standardize 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 will be developed to achieve higher management and professional-competency standards and providing guidance to public institutions on how to plan and implement activities within the strategy.
• l)To coordinate with the Procuraduría de la Ética Pública in issuing generally applicable provisions, directives, and regulations for instructing public servants (personas servidoras públicas) regarding the duties, responsibilities, and functions of their positions, as well as the ethical duties governing public service, as appropriate under Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, and Article 46 of Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.
• m)To establish a single, unified public-service remuneration system (sistema único y unificado de remuneración de la función pública) in accordance with this law, specifying the salary and benefits of all public officials.
• n)To conduct human-resources assessments of the entities and bodies covered by this law in order to appropriately resize existing staffing levels and develop general criteria identifying the sectors whose activities, because of their institutional strategic value and connection to substantive activities, should be reserved exclusively for public servants. It shall also analyze criteria that provide guidance for identifying services that could be outsourced and the conditions under which they may be provided.
• o)To forecast global trends concerning the future of public employment in order to inform its planning.
• p)To analyze the efficiency and effectiveness of evaluation mechanisms in order to determine whether they fulfill their purpose.
• q)To evaluate the general public-employment system in terms of efficiency, effectiveness, economy, simplicity, and quality.” As with the Poder Judicial, Article 7(d), (g), and (p) are unconstitutional because they impair the independence of the Poder Judicial and the Tribunal Supremo de Elecciones by subjecting them to Mideplán’s direction and regulatory authority (potestad reglamentaria), as well as to verification of whether performance evaluation fulfills its purpose, without excluding them from its direction authority. It must be emphasized that the principle of separation of powers or functions (principio de separación de poderes o funciones) is incompatible with the direction and regulatory authority exercised by the Poder Ejecutivo, since the latter may not direct their activities by establishing goals and objectives. Performance evaluation remains reserved to each branch of the State, since this matter is inherent in the exercise of its constitutional powers. This means that, as regards this issue, all officials of each branch would be subject to the internal provisions issued by that branch.

Regarding Article 9.a.—Human Resources Offices with respect to the Tribunal Supremo de Elecciones (Opinion drafted by Justice Picado Brenes) The provision under consultation establishes the following:

“ARTICLE 9—Functions of the active administrations (administraciones activas) a) The human resources management offices, departments, areas, directorates, units, or equivalently named entities of the institutions included in Article 2 of this law shall continue performing their functions in accordance with the applicable regulatory provisions of each public agency.

They shall also apply and implement the generally applicable provisions, directives, and regulations concerning planning, work organization, employment management, performance management, compensation management, and labor-relations management that the Ministerio de Planificación Nacional y Política Económica (Mideplán) forwards to the respective institution, pursuant to Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, and Article 46 of Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

• b)The human resources management offices, departments, areas, directorates, units, or equivalently named entities shall be responsible for preparing and administering knowledge, competency, and psychometric tests for staff recruitment and selection processes and for conducting internal and external competitive examinations based on qualifications and merit (concursos por oposición y méritos). Such examinations must always meet at least the standards established by the Dirección General del de Servicio Civil for each position within its jurisdiction, as well as the guidelines issued pursuant to Article 46 of Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

They shall also include those competitive examinations in the Administración Pública’s public-employment opportunities and verify that public servants receive proper orientation regarding the duties, responsibilities, and functions of their positions, as well as the general ethical duties of public service and those specific to the institution and position.

• c)The institutional human resources management offices of ministries and affiliated institutions or bodies falling within the scope of application of the Estatuto de Servicio Civil are technical units of the Dirección General de Servicio Civil. For all purposes, the latter shall coordinate the preparation of staff recruitment and selection tests with those offices and perform its advisory, training, and technical-support functions.” As may be observed, the consulted Article 9 establishes certain duties for all human resources offices, departments, areas, directorates, or units of all institutions included in the bill, including the TSE Human Resources Office. Accordingly, with specific regard to the consultation concerning the TSE, the second paragraph of subsection (a) requires Human Resources to apply and implement the generally applicable provisions, guidelines, and regulations forwarded to it by Mideplán concerning planning, work organization, employment management, performance management, compensation management, and labor-relations management.

This would mean that an Executive Branch body, namely Mideplán, would compel the TSE to apply and implement its provisions, guidelines, and regulations in matters falling within 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 imposed on the TSE Human Resources Office clearly violates 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 has more recently come to be known, the principle of separation of functions, is enshrined in Article 9 of the Constitución Política and constitutes “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 rules for the direct benefit of the country’s inhabitants.” (judgment n°2006-013708), and that the TSE holds the status and independence of a branch of the Republic (judgment n°3194-1992).

This means that each branch of the State may exercise its function independently of the others (judgment n°6829-1993). Thus, by virtue of its status as a branch of the State, the TSE has its own organizational and managerial powers (judgment n°2000-06326); moreover, it has “its own organic rules, which confer upon its senior authorities the power and responsibility to establish the remuneration, representation expenses, and other benefits inherent to the positions of its own members and subordinates…” (judgment n°550-1991). This is because, “…with regard to the Public Employment System, it may be concluded that the competent state body in this matter is each branch of the Republic, given that these—the Executive, Legislative, Judicial, and Tribunal Supremo de Elecciones—are best equipped to determine their needs and understand their particular circumstances.” (judgment n°03575-1996). For all the foregoing reasons, the first paragraph of the consulted Article 9 is deemed to violate the principle of separation of powers, specifically with respect to the TSE.

Regarding subsection (a) of Article 13, Position Families (familias de puestos) with respect to the Tribunal Supremo de Elecciones (Opinion authored by Justice Picado Brenes) Subsection (a) of Article 13 of the bill shall now be examined with respect to its application to the TSE, because this was expressly submitted for consultation by the legislators. It should be recalled that, in matters involving optional constitutional consultations (consultas facultativas de constitucionalidad), this Chamber rules solely on the issues submitted for consultation.

As may be observed, Article 13 of the bill establishes a single public employment system (régimen de empleo público), comprising eight position families. Subsection (a) includes “persons serving in the institutions specified in Article 2 of this law who are not included in the remaining position families.” In the case of the TSE, the justices are included as one position family (under subsection (f)), while all other TSE officials are included within this first position family (subsection (a)) or within the family of positions of trust (puestos de confianza) (subsection (h)). It should be recalled that subsection (h) is not under review in this consultation; therefore, no specific ruling is issued concerning that particular provision. However, because only the justices have been placed in a separate family, all other officials who do not hold positions of trust and who occupy administrative support, professional, or technical positions would be placed in the same family as the other officials included within the Estatuto de Servicio Civil.

This is clearly unconstitutional for the following reasons: First, the TSE’s personnel are being divided even though all of them contribute to the performance of the electoral function (función electoral). Only the justices would fall within the group specified in subsection (f), while all other officials, who likewise contribute to the performance of this function that is so important to Costa Rican democracy, would be placed in another position-family group. Second, all TSE officials who contribute to the electoral function, whether directly or in a supporting capacity, must enjoy complete independence of judgment. Including a substantial portion of these officials together with others who belong to the other branches of the Republic and to other institutions creates a situation that jeopardizes that independence of judgment. This is particularly so considering that, for that position-family group, Mideplán (an Executive Branch body) would issue the guidelines governing recruitment, selection, evaluation, compensation, and other processes.

In other words, nearly all TSE officials would be entirely subject to Mideplán’s directives, which violates the independence of the branches of government, as stated supra. A provision of this nature is clearly contrary to Constitutional Law (Derecho de la Constitución). As a body holding the status of a branch of the State, the TSE must enjoy complete independence in the performance of its functions, which includes independence in managing its personnel. In this case, even greater care is required than for other Civil Service personnel, because “the constituent assembly’s intent in creating this Branch was to eliminate entirely the possibility that electoral officials might become involved in any political activity, in order to guarantee an independent Electoral Body.” (judgment n°2005-14298). This would not be possible if all TSE personnel were included within the same position-family group as the remaining Civil Service officials.

It should be noted that these TSE officials are assigned functions of such importance to electoral activity as: organizing, directing, and overseeing all acts related to the national-election process; regulating the rules governing political-party financing (deuda política), as well as exercising oversight in this area; overseeing bylaws governing the right to elect and be elected in political parties’ internal processes; constituting the Concejo Municipal; declaring election results and subsequent replacements resulting from the loss of credentials by municipal council members and district representatives; processing electoral litigation proceedings (proceso contencioso electoral) concerning the revocation or annulment of municipal council members’ credentials; closing commercial establishments that sell liquor and are located in downtown San José as a consequence of public rallies held by political parties; and determining where the solemn ceremony will be held on election day for the initial counting of national-election results; among many others.

All of this requires a guarantee of independence in the management of these personnel, who cannot be grouped within the same position family as the remaining Civil Service public servants. It must be borne in mind that, upon becoming part of the Civil Service, TSE officials would be subject to the same rules applicable to Executive Branch officials who are members of the Civil Service, including transfers or mobility (Article 12), among others. This aggravates the situation and undermines the paramount requirement that the electoral function remain independent and free from interference by the other branches. Accordingly, Article 13, subsection (a), is found to be unconstitutional with respect to the Tribunal Supremo de Elecciones, because nearly all officials of that body would be transferred to the Civil Service, except for its justices and employees serving in positions of trust. This Chamber therefore considers Article 13, subsection (a), unconstitutional with respect to the TSE—the only body regarding which this subsection was submitted for consultation—because nearly all officials of that body would be transferred to the Civil Service.

Regarding subsection (f) of Article 13 (position families), with respect to the Tribunal Supremo de Elecciones (Opinion authored by Justice Castillo Víquez) The following provision is submitted for consultation:

“ARTICLE 13—General Public Employment System There shall be a single general public employment system, which shall, in turn, comprise the following eight position families applicable to the bodies and entities of the Public Administration, according to the functions performed by their personnel:

• a)Public servants falling within the scope of Title I and Title IV of the Estatuto de Servicio Civil, as well as those serving in the institutions specified in Article 2 of this law who are not included in the remaining position families.
• b)Public servants who perform health-science functions.
• c)Public servants who perform police functions.
• d)Teaching personnel covered by Title II and Title IV of the Estatuto del Servicio Civil.
• e)Teaching and academic personnel in technical and higher education.
• f)Persons who administer justice and the justices of the Tribunal Supremo de Elecciones (TSE).
• g)Public servants who perform foreign-service functions.
• h)Public servants serving in positions of trust.

The creation of public-employment position families is reserved to legislation (reserva de ley) and must be justified by technical and legal criteria consistent with efficient and effective public administration.

In all the categories described above, the senior public administration, through occupational-health offices or departments, shall ensure that each public entity has, as established by Article 300 of the Código de Trabajo and its regulations, an assessment of its working conditions, an occupational-health program, and, where working conditions are detrimental to personnel health, the corresponding safety protocols to safeguard their lives; such protocols shall be validated internally and receive the corresponding approval of the Consejo de Salud Ocupacional, for which purpose the necessary human resources shall be provided. That office shall report directly and administratively to the senior authority.

In the same sense as indicated for the Poder Judicial, subsection f) of Article 13 is unconstitutional because it does not exclude officials who perform quasi-judicial functions (funciones para-jurisdiccionales)—prosecutors, public defenders, and professional and specialized personnel of the Organismo de Investigación Judicial, etc.—or officials at the managerial or senior policy-making level, just as it does not exclude officials of the Tribunal Supremo de Elecciones who perform electoral functions—legal advisers, department directors, professionals, etc.—and those who hold senior policy-making positions. Furthermore, it does not exclude all professional and technical administrative support officials whom the highest bodies of the aforementioned branches of government define, exclusively and to the exclusion of all others, as indispensable or inherent to the exercise of their constitutional powers.

This is especially so because, pursuant to subsection a) of that same article, all such officials would be included in a category under the Civil Service Statute (Estatuto de Servicio Civil), which affects the independence of both the Poder Judicial and the Tribunal Supremo de Elecciones, given that judicial and electoral governance is exercised by the Corte Suprema de Justicia and the Tribunal Supremo de Elecciones, exclusively and to the exclusion of all others, with respect to their constitutional powers. Finally, it must be borne in mind that establishing the job family (familia de puestos), as explained above, falls exclusively and solely to each branch of government.

Regarding Article 14.—Recruitment and Selection with Respect to the Tribunal Supremo de Elecciones (Drafted by Justice Picado Brenes) As with the Poder Judicial, the parties requesting the opinion state that the principle of independence and the autonomy of the Tribunal Supremo de Elecciones are infringed by also seeking to subject it to provisions issued by a body of the Poder Ejecutivo concerning the recruitment and selection of its personnel. Article 14 at issue provides as follows:

“ARTICLE 14—Recruitment and Selection The recruitment and selection of newly hired public servants shall be carried out on the basis of their demonstrated suitability (idoneidad comprobada). For this purpose, the Ministerio de Planificación Nacional y Política Económica (Mideplán), in strict compliance with Ley 6227, Ley General de la Administración Pública, of 2 de mayo de 1978, shall issue generally applicable provisions, directives, and regulations according to the respective job family.

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

• a)Being related by blood or marriage, in a direct or collateral line up to and including the third degree, to the applicant’s immediate supervisor or to that supervisor’s immediate superiors in the respective department.
• b)Being listed in the register of ineligible persons (registro de personas inelegibles) of the integrated public employment platform.” As in the consultation concerning the Poder Judicial, the parties requesting the opinion state that the principle of independence and the autonomy of the TSE are infringed by also seeking to subject it to provisions issued by a body of the Poder Ejecutivo concerning the recruitment and selection of its personnel. As has already been duly established, pursuant to Articles 2 and 13 of the same bill and under this Article 14, the Tribunal Supremo de Elecciones would also be subject to the generally applicable provisions, directives, and regulations issued by Mideplán regarding the recruitment and selection of newly hired personnel, which is unconstitutional. Article 9 of the Constitution clearly states that the TSE was created by the Constituent Assembly with the rank and independence of the branches of government and was assigned, exclusively and independently, the organization, direction, and oversight of acts relating to suffrage, as well as the other functions conferred upon it by the Constitution and the laws; this has been fully recognized in the case law of this Court (see judgments n°1992-3194, 1998-495, 2000-6326, and 2012-9139, among others).

Accordingly, any external interference by another branch in matters specific to the Tribunal Supremo de Elecciones that impairs such independence is equally invalid. The Constituent Assembly granted this body such a degree of autonomy as to ensure the proper exercise of its electoral function and of the other essential administrative functions that support and safeguard the impartiality of its principal function. On that understanding, a body of the Poder Ejecutivo—in this case, Mideplán—cannot be permitted to impose on the Tribunal Supremo de Elecciones provisions relating to the recruitment and selection of its personnel, a matter that, as noted, is inherent in the degree of autonomy and independence enjoyed by these constitutional bodies. As in other instances under this bill, even though Article 2 states that its scope applies “without prejudice to the principle of separation of powers established in the Political Constitution,” Article 14 would apply to the Tribunal Supremo de Elecciones. Consequently, that article is unconstitutional insofar as it applies to the Tribunal Supremo de Elecciones.

Regarding Article 17.—Senior Management Personnel with Respect to the Tribunal Supremo de Elecciones (Drafted by Justice Picado Brenes) The article under review provides as follows:

“ARTICLE 17—Senior Public Management Personnel The Ministerio de Planificación Nacional y Política Económica (Mideplán) shall issue generally applicable provisions, directives, and regulations concerning senior public management personnel, consistent with Ley 6227, Ley General de la Administración Pública, of 2 de mayo de 1978, in order to provide the Public Administration with individuals who possess integrity and demonstrated capacity for management, innovation, and leadership, with a view to improving the provision of public goods and services. (…)” The parties requesting the opinion contend that the principle of separation of functions and the independence of the TSE are infringed because this provision states that, with regard to senior management positions, Mideplán will issue the relevant generally applicable provisions, directives, and regulations. Consistent with this Chamber’s rulings on these matters, interference by this Ministry, which is a body of the Poder Ejecutivo, through the issuance to the TSE of generally applicable provisions, directives, and regulations concerning senior management positions violates the principle of separation of powers.

It should be noted that these are strategic positions of great importance to its proper organization, such as the Dirección Ejecutiva, the Dirección General del Registro Civil, and the Dirección General del Registro Electoral y Financiamiento de Partidos Políticos, among others. In view of this and of the impartiality required of this constitutional body, it is the TSE itself that must 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. These positions are highly significant, must be particularly protected from interference by other branches of the Republic, and require the personnel stability necessary for the proper and impartial performance of their duties, which is incompatible with subordination to the provisions issued in this regard by Mideplán, as stipulated by the provision at issue.

The TSE itself has jurisdiction over this matter, as this Chamber has previously stated: “…with respect to the Public Employment Regime (Régimen del Empleo Público), it may be concluded that the government body with jurisdiction over this matter is each branch of the Republic, since they—the Ejecutivo, Legislativo, Judicial, and Tribunal Supremo de Elecciones—are best equipped to determine their needs and understand their particular circumstances.” (judgment n°03575-1996). Accordingly, Article 17 under review is deemed unconstitutional on the grounds set forth above.

Regarding Article 18.—Probationary Period and Term of Appointment of Senior Management Personnel with Respect to the Tribunal Supremo de Elecciones (Drafted by Justice Picado Brenes) In the opinion of the parties requesting the opinion, Article 18 under review is unconstitutional because it impinges upon a matter falling within the jurisdiction of the Tribunal Supremo de Elecciones by establishing that appointments to senior technical management positions shall be for 6 years, with a probationary period (período de prueba) of 6 months, renewable annually and subject to performance evaluation (evaluación de desempeño). Article 18 under review provides as follows:

“ARTICLE 18—Appointment and Probationary Period for Senior Public Management Every public servant appointed to a senior public management position shall be on probation for a period of six months, and the 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. (…)” In this regard, the reasoning already stated in relation to the Poder Judicial applies: the regulation of matters relating to the appointment and selection of personnel, including senior technical management positions, the probationary period, and the term or conditions for extending appointments, concerns the organizational and administrative autonomy of the TSE. It is understood that senior technical management positions, as defined by the TSE itself, are strategic positions of great importance to its proper organization, such as the Dirección Ejecutiva, the Dirección General del Registro Civil, and the Dirección General del Registro Electoral y Financiamiento de Partidos Políticos, among others.

In view of this and of the impartiality required of this constitutional body, it is for that body 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, with due respect for its recognized independence, provided that it observes the principle of suitability (principio de idoneidad). In its case, for example, the appropriate term of appointment for those positions or the conditions for renewal might or might not be tied to electoral periods, or might reflect a need for greater stability in the position, such as that guaranteed by Article 192 of the Constitution. All of this must be governed by its internal regulations, rather than by generic regulations such as those proposed in this bill. Defining such conditions falls within the exclusive jurisdiction of this specialized constitutional body.

Thus, as drafted, Article 18 under review is unconstitutional because it violates the principle of independence of the TSE, which has exclusive authority to define the conditions under which its senior management positions are to be performed.

Regarding Article 21 (Single Dismissal Regime) and Article 22 (Dismissal Process) with Respect to the Tribunal Supremo de Elecciones (Drafted by Justice Picado Brenes) The articles under review provide as follows:

“ARTICLE 21—Dismissal Procedure Obtaining two consecutive final performance evaluations below a score of seventy percent (70%) shall constitute grounds for immediate dismissal (despido inmediato), applicable to every public servant (persona servidora pública), once the procedure for challenging the evaluation has been exhausted and provided that the public servant’s responsibility for such deficient evaluation has been established. Such score must be duly justified by the immediate supervisor assigning it and by the hierarchical authority confirming it, if it has been appealed.

The entities and bodies included herein shall implement remedial plans (planes remediales) agreed upon with the public servant, with advice from human resources, enabling them to determine the reasons why public servants receive a score below seventy percent (70%) and to take action to improve their performance. If, despite implementation of the remedial plan, the public servant fails to improve performance and consecutively receives another score below seventy percent (70%), grounds for immediate dismissal shall be established.

The entities and bodies included herein shall implement remedial plans enabling them to determine the reasons why public servants receive a score below seventy percent (70%) and to take action to improve their performance. If, despite implementation of the remedial plan, the public servant fails to improve performance and consecutively receives another score below seventy percent (70%), grounds for immediate dismissal shall be established.

Any dismissal for cause (despido justificado) shall be deemed to entail no liability for the Public Administration and shall cause the public servant to forfeit all rights granted under this law and the regulations applicable to each job family, except for the corresponding proportional employment entitlements and rights acquired under the pension schemes in force, provided that the following rules are observed:

• a)A single special administrative dismissal procedure (procedimiento administrativo especial de despido), guaranteeing due process (debido proceso) and its principles, shall apply in all agencies falling within the scope of this law. That procedure must be concluded by a final administrative act (acto final) within two months of its commencement. A preliminary investigation (investigación preliminar), when required, shall not commence the procedure referred to in the preceding paragraph; nevertheless, under penalty of the statute of limitations (prescripción), it must begin no later than one month after the institutional head (jerarca) becomes aware, either ex officio or through a complaint, of the possible commission of misconduct by one of the institution’s public servants. The same one-month limitations period shall apply if, after the aforementioned preliminary investigation has begun, it remains inactive through the fault of the Administration.

For purposes of the two-month period specified in the first paragraph of this subsection, the ordinary dismissal procedure (procedimiento ordinario de despido) shall commence when the institutional head decides to initiate that procedure by appointing the body directing the proceeding (órgano director del proceso).

• b)Upon receiving a grievance or complaint, or being informed of alleged misconduct that, in the institutional head’s judgment, warrants initiating a dismissal procedure, the institutional head shall appoint a body directing the proceeding, which shall formulate the charges in writing and serve them upon the public servant, granting a period of fifteen days for the taking of all evidence offered at an oral and private hearing (audiencia oral y privada). Notice shall be personally served through the official’s institutional email, by certified mail, or by publication once in the official gazette La Gaceta when it is shown that there is no means of locating the alleged offender. Within the stated period, the public servant must submit a written response to the charges (descargos) and may offer any evidence deemed appropriate in support of the defense, whether documentary, testimonial, or of any other kind, as well as any defenses or incidental motions (excepciones o incidentes) deemed appropriate.
• c)If, upon expiration of the period established in the preceding subsection, the public servant has not filed an objection, or has expressly stated agreement with the charges, the institutional head shall issue the dismissal decision without further proceedings, unless the public servant proves that notice was not received from the body directing the proceeding or that just cause prevented the filing of an objection.
• d)If the charge or charges brought against the employee or public servant entail criminal liability, or when necessary for the successful completion of the administrative disciplinary dismissal procedure (procedimiento administrativo disciplinario de despido) or to safeguard the dignity of the Public Administration, the institutional head may, by reasoned decision, order the public servant’s provisional suspension (suspensión provisional) from the performance of the position. If criminal proceedings are instituted against the public servant, such suspension may be ordered at any time as a consequence of a detention order, an order of pretrial detention, or a final judgment imposing a custodial sentence.
• e)If the interested party objects within the statutory period, the body directing the proceeding shall rule on any preliminary defenses (excepciones previas) filed and shall convene an oral and private hearing before the Administration, at which all relevant evidence and arguments of the parties shall be admitted and received. Visual and expert inspections may also be conducted before the hearing. A second hearing may be convened only when it was impossible at the first hearing to ready the case file for a final decision and the outstanding proceedings so require.
• f)If the public servant incurs new grounds for dismissal during the evidentiary phase (período de instrucción), the charges shall be consolidated into the pending case file, and the matter shall proceed in accordance with this chapter.
• g)Once the evidence has been taken, the preliminary defenses filed within the ten-day period granted to object to service of the charges have been decided, and the parties have submitted their closing arguments, or the period for doing so has expired, the case file shall be deemed fully developed and the corresponding report shall be submitted to the institutional head for issuance of a final decision.
• h)The institutional head shall order the public servant’s dismissal or shall find insufficient grounds (falta de mérito) and, in the latter case, order the case file closed. Nevertheless, if the institutional head determines that misconduct occurred but that its seriousness does not warrant dismissal, the institutional head shall order an oral reprimand, a written warning, or suspension without pay for up to one month, depending on the seriousness of the misconduct.
• i)The ordinary remedies of reconsideration (revocatoria), with a subsidiary appeal (apelación en subsidio) where the latter is available, may be filed against a decision ordering an oral reprimand, written warning, or suspension without pay for up to one month, within five days counted from the day after notice of that decision. Both remedies may be filed jointly or separately before the body issuing the decision, which shall decide the motion for reconsideration.

For public servants employed by an institution covered by Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953, the appeal shall be decided by the Tribunal de Servicio Civil. The institutional head shall transmit on appeal to the Tribunal de Servicio Civil the case file of the corresponding administrative procedure, containing the disciplinary decision and the decision on the motion for reconsideration, together with a statement of the legal and factual grounds on which both decisions are based.

• j)Matters not provided for in this procedure shall, insofar as they do not conflict with the text and procedural principles contained herein, be resolved by supplementary application, in the following order, of: Ley 6227, Ley General de la Administración Pública, the rules of public law, the general principles of public law, the Código de Trabajo, the Código Procesal Civil, the principles and laws of ordinary law, equity, and local customs and 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 Constitución Política; if no institutional regulations exist in this regard, Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, the rules of public law, the general principles of public law, the Código de Trabajo, and the Código Procesal Civil shall apply supplementarily.

ARTICLE 22—Appellate Phase (Fase recursiva) A non-extendable period of five business days, counted from notice of the dismissal decision issued by the institutional head, shall be allowed for filing a motion for reconsideration and/or a subsidiary appeal, where the latter is available. These remedies shall be decided in accordance with the following provisions:

• a)If the decision is not appealed within the aforementioned five-day period, it shall become final and the administrative remedies shall be deemed exhausted (vía administrativa agotada).
• b)If only a motion for reconsideration is filed, the institutional head’s ruling shall be definitive, the decision shall become final, and the administrative remedies shall be deemed exhausted.
• c)If both ordinary remedies are filed simultaneously, the appeal shall be processed once the motion for reconsideration has been denied.
• d)For public servants employed by an institution covered by Ley 1581, Estatuto de Servicio Civil, de 30 de mayo de 1953, the appeal shall be granted with both suspensive and devolutive effects (en ambos efectos) before the Tribunal de Servicio Civil. The institutional head shall transmit on appeal to the Tribunal de Servicio Civil the case file from the administrative dismissal procedure, containing the decision dismissing the public servant and the decision on the motion for reconsideration, together with a statement of the legal and factual grounds on which both decisions are based.

If only the appeal is filed, the institutional head shall transmit on appeal to the Tribunal de Servicio Civil the case file from the administrative dismissal procedure, containing the decision dismissing the public servant, together with a statement of the legal and factual grounds on which that decision is based.

The decision adopted on appeal by the Tribunal del Servicio Civil shall be definitive, shall become final, and shall exhaust the administrative remedies. That ruling shall be binding on the institutional head.

Once dismissal has been authorized by a final decision, the institutional head shall have a one-month forfeiture period (plazo de caducidad), counted from notice of that decision, within which to carry it out. No additional decision is required for the institutional head to execute the dismissal; it shall be sufficient to notify the public servant of the termination of public-service status on the basis of the final decision issued.

If the Tribunal de Servicio Civil reverses the judgment issued by the institutional head, it shall issue a new ruling in the same decision and determine whether the employee should be reinstated to the position, with full enjoyment of the employee’s rights and payment of back pay (salarios caídos).

If the Tribunal de Servicio Civil determines that misconduct occurred but that its seriousness does not warrant dismissal, it may order an oral reprimand, a written warning, or 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 (debido proceso) contained in the Constitución Política; if no institutional regulations exist in this regard, Ley 6227, Ley General de la Administración Pública, of 2 de mayo de 1978, the rules of public law, the general principles of public law, the Código de Trabajo, and the Código Procesal Civil shall apply supplementarily.” The deputies ask about Articles 21 and 22 of the bill, concerning the disciplinary and sanctioning regime applicable to the Poder Judicial and the TSE. They indicate that Article 21 establishes a new ground for immediate dismissal when a public servant receives two consecutive performance evaluations below 70%. They add that the new grounds established pertain more to administrative matters, such that subjecting personnel to criteria unrelated to their duties for a purely administrative failure that could result in their removal constitutes an objectionable and dangerous interference with our Social State under the Rule of Law.

They consider that the new ground for immediate dismissal consisting of receiving two consecutive performance ratings below 70%, contained in Article 21, as well as the two new serious grounds created through the amendment to Article 48 of the Ley de Salarios de la Administración Pública, which is amended by Article 49:A) of the bill, violate the constitutional principles of legality, legal certainty, reasonableness, proportionality, and separation of powers. Regarding the sole dismissal procedure, they then indicate that the LEY MARCO DE EMPLEO PÚBLICO bill establishes a single special dismissal procedure (Article 21) applicable to all public servants within the scope of this proposed law. With respect to the appeals regime, the Tribunal de Servicio Civil is granted the authority to decide all appeals filed against decisions imposing any type of disciplinary sanction (Article 21:i) and Article 22). Regarding the sole procedure created in Articles 21, beginning with 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 based on failure to pass the performance evaluation on two consecutive occasions (pursuant to the first paragraph of Article 21 of the bill) is not unconstitutional insofar as it is applied by the Poder Judicial and the Tribunal Supremo de Elecciones in accordance with their internal regulations. The establishment of this new ground for dismissal for cause does not violate Constitutional Law, particularly if it is understood that this new ground would be applied pursuant to the internal provisions of the TSE, in which Mideplán would have no involvement.

-Articles 21 and 22 of the bill under consultation are indeed unconstitutional with respect to their application to the TSE—and to the Poder Judicial, as stated supra—because the exercise of disciplinary authority (potestad disciplinaria) over TSE servants is an essential component of electoral independence. Accordingly, none of the provisions established in those rules regarding procedure and the appeals stage could apply to the TSE, which already has internal regulations governing the exercise of disciplinary authority. The adoption of disciplinary measures, suspension, or removal from office must be decided in accordance with the internal rules protecting the electoral function. Thus, in keeping with the principle of separation of powers, the entity vested with disciplinary jurisdiction shall, in this case, be exclusively the TSE itself.

• 4)Conclusion -Regarding Articles 12 (database), 13.h (family members in positions of trust), 15 (recruitment and selection principles), 19 (mobility or transfers), and 31 (working methodology), because sufficient grounds have not been provided to enable this Chamber to clearly understand the matters submitted for consultation, the consultation is declared unanswerable for lack of substantiation.

-Under the terms stated and in accordance with this Chamber’s case law, the following articles of the “LEY MARCO DE EMPLEO PÚBLICO” bill, processed under legislative expediente n° 21.336, are unconstitutional.

Having analyzed all the matters submitted for consultation concerning Article 2 (subsection a), Article 6 (subsection b), Article 7 (subsections d, g, and p), Article 9 (second paragraph of subsection a), Article 13 (subsections a and f), and Articles 14, 17, 18, 21, and 22 of the bill entitled “LEY MARCO DE EMPLEO PÚBLICO,” legislative expediente n° 21.336, this Chamber finds that those provisions are contrary to Constitutional Law because they violate the principle of separation of functions. The independence of the branches of government is essential in a Constitutional State under the Rule of Law. Under that principle, each branch is independent of the others, and each State body must be able to exercise its function independently of the others (Constitutional Article 9°). They may interact, but there may never be subordination. Furthermore, this constitutes not only a violation of the principles of separation of functions, but also of the entire democratic system and organization of government established by the Constituent Assembly in our State under the Rule of Law.

In the specific case of the TSE, the same conclusions already reached regarding the Poder Judicial may be applied, as relevant. Although the fundamental principles of the public employment regime also apply to the TSE, the fact remains that, to protect its independence, it must continue to have its own regulatory framework, which specifically, individually, and distinctly governs employment relationships with its servants and the evaluation of their performance. This is necessary to duly guarantee the independence of that body so that it may properly exercise its electoral function and the other essential administrative functions supporting its primary function. It is therefore unconstitutional to allow the Poder Ejecutivo, through Mideplán, to exercise governing authority over TSE officials. This remains true even though, as in the case of the Poder Judicial, the aforementioned Article 2 states that the law would apply to the TSE “without prejudice to the principle of separation of Powers established in the Constitución Política”—a requirement already imposed by the Constitution itself.

The fact is that a comprehensive reading of the bill leads to the conclusion that this principle is not duly guaranteed, not only because of subjection to Mideplán, but also because of the imposition of certain matters falling within the exclusive jurisdiction of the TSE. The provisions of the bill neither demonstrate nor ensure the existence or proper operation of an effective cooperative/coordinating relationship between the Poder Ejecutivo and the TSE; quite to the contrary, they reveal that the general objective of the bill under consultation is to subject the TSE to the governing authority of Mideplán and the technical criteria of the Dirección General de Servicio Civil. Indeed, Mideplán is granted broad powers to issue “general provisions, directives, and regulations” to develop and regulate the various matters covered—in general terms—by the bill. Finally, the legislative record shows that the Tribunal Supremo de Elecciones issued an unfavorable opinion on the bill in response to the consultation submitted to it by the Asamblea Legislativa, stating as follows in official letter TSE-1226-2021 of 03 de junio del 2021:

“the existence of a series of aspects that would compromise the powers legally and constitutionally entrusted to this Tribunal is noted. (…) In our view, providing for the inclusion of electoral personnel personnel within a sub-regime of public servants generally, and thereby subordinating the Tribunal to a body of the Poder Ejecutivo that would exercise governing authority over public employment and its various aspects, would seriously undermine the design conceived by the Constituent Assembly and the independence granted to this Tribunal, with the status of a Branch of the State, under Constitutional Article 9, for the purpose of preventing any influence by the Executive over the conduct of electoral processes. (…) Conclusion. Based on the foregoing, and considering that the initiative as currently proposed would violate the principle of separation of powers and diminish the independence constitutionally granted to electoral bodies, this Tribunal objects to the bill under consultation, under the terms and with the consequences set forth in Constitutional Article 97; this constitutional violation could be cured only by introducing the changes suggested in this resolution.

FINAL RESOLUTION”.” 5) Dissenting opinions, reasons, and notes on the consultation regarding the Poder Judicial and the Tribunal Supremo de Elecciones a) Note by Justice Rueda Leal regarding the inclusion of the Poder Judicial and the Tribunal Supremo de Elecciones in Article 2, subsection a), of the bill under consultation.

I emphasize that this provision is unconstitutional because of its effects, since it must be viewed within the systematic structure of the articles in order to understand how it affects the independence of the Poder Judicial and the Tribunal Supremo de Elecciones. Although the general doctrine established in this decision must be applied with respect to the exercise of exclusive powers by institutional authorities and the inclusion of the Poder Judicial and the Tribunal Supremo de Elecciones in a framework law on public employment, it is no less true that the distinctive legal nature of these two bodies will require the practical effects of this decision to be defined in light of specific cases. In that regard, safeguarding the independence—emphasizing that this case concerns independence rather than autonomy, as applies to other bodies—of the Poder Judicial and the Tribunal Supremo de Elecciones was a concern of the Constituent Assembly, the importance of which is also reflected in extensive international treaty provisions on judicial independence. Under this framework, the Chamber maintains its role as guardian of the Constitución Política and may therefore assess, in each case, whether improper interference has occurred within the aforementioned spheres of independence.

• b)Note by Justice Garro Vargas regarding the unconstitutionality of Article 2, subsection a) Before addressing the specific constitutionality of Article 2, subsection a), of the bill under consultation, I consider it necessary to clarify certain general matters that will inform each of my separate notes or reasons in the text of this advisory opinion.

First, I must emphasize that democracy deteriorates when the Poder Judicial and, moreover, the Tribunal Supremo de Elecciones are weakened as institutions constituting essential foundations of our State under the Rule of Law. It should be recalled, in this regard, that the Poder Judicial guarantees rights—not only fundamental rights?—peace, legal certainty (necessary for human and economic development), the fight against both minor and organized crime and corruption, etc. Likewise, under the Constitución Política, the Tribunal Supremo de Elecciones is responsible for the organization, direction, and oversight of acts relating to suffrage. These are therefore institutions that clearly underpin a robust democracy and, as such, must remain free from intervention by other branches of the Republic or other institutions that would diminish the strength necessary to carry out the powers constitutionally entrusted to them.

In other jurisdictions, the erosion of the independence of these branches of government is carried out directly by the Executive Branch. In the case submitted to us for consultation, through this bill, it is the Legislative Branch itself that is giving the Executive Branch the opportunity to do so formally through provisions that make it possible for a specific ministry to issue generally applicable provisions, directives, regulations, and other administrative acts governing the management of the personnel of these institutions. To illustrate this point, it is useful to recall what the majority of this Chamber itself stated when, invoking its precedents and specifically judgment n°2017-009551, it emphasized:

“if the Judicial Branch is not accorded due importance in the social and democratic State under the rule of law for its proper functioning, its weakening leads to undemocratic forms of government, as evidenced by the fact that one of the first functions brought under the control of authoritarian or totalitarian governments is the judiciary; hence the importance of every democratic system having a robust Judicial Branch” I believe that, in light of current contingent aspects of our national reality, the pillars of the rule of law (Estado de Derecho) cannot be rendered ineffective; rather, the core and essential aspects of the constitutional design must always be safeguarded, including the principle of separation of functions and the independence of the branches of the Republic.

Among those core aspects is also the need for a civil service statute (estatuto de servicio civil) governing relations between the State and public servants, with the express purpose of ensuring efficiency in public administration. As the majority judgment correctly analyzes, this statute may be a single general statute or several specific statutes addressing the particular features of each branch of the Republic, but in all cases they must incorporate the values enshrined in the Constitución Política.

That said, from my perspective, the possibility of having a single statute for all public servants is compatible with Constitutional Law (Derecho de la Constitución), provided that such statute is understood as a body of general rules establishing standards for certain conduct, for example, in the preparation of public budgets. The sensitive issue is whether there is governing authority (rectoría) over decisions of the Judicial Branch or the Tribunal Supremo de Elecciones concerning the administration of their personnel. In the advisory opinion that rejected the claim of unconstitutionality concerning the “Ley de Administración Financiera de la República y de presupuestos Públicos,” that was precisely the crux of the decision:

“With regard to the separation of powers, this Chamber considers that a careful reading of the cited provisions shows that the bill under consultation seeks to grant the Autoridad Presupuestaria authority to prepare, at a preliminary stage—since they subsequently require approval by the Executive Branch—the guidelines and directives that will determine the operation of the Administration in budgetary matters. The Chamber will address the effectiveness of such provisions later in this same recital (considerando). As regards strictly the bodies covered by Article 1(b) of the bill, all of which are characterized by constitutionally established functional independence from the Executive Branch, the text of Articles 21(b) and 23 in fine itself provides that approval of such directives falls to the heads of those bodies, while the Autoridad Presupuestaria is assigned only the function of proposing such guidelines.

In other words, the text itself establishes a mechanism that respects the functional independence granted to the bodies under Article 1(b) in budgetary matters, because the failure of the heads of the aforementioned bodies to approve those guidelines entails no legal consequence. Accordingly, it must be concluded that the cited articles do not constitute any form of affront to the separation of powers enshrined in constitutional Article 9°” (advisory opinion issued through voto n.°1999-00919).

Therefore, constitutional art. 191 must be interpreted in accordance with the design of the republican model of separation of powers; that is, it requires a statute, but not governing authority vested in a ministerial portfolio of the Executive Branch over the powers of other branches of the Republic. Thus, one thing is to enact a framework public employment law (ley marco de empleo público) that generally regulates the matters necessary to ensure administrative efficiency, as well as demonstrated suitability (idoneidad comprobada) or the conditions justifying dismissal throughout the public sector. Such regulations could even repeal aspects of the statutes currently in force, but only provided that the autonomy and independence of the branches are safeguarded. Moreover, such a general provision could coexist with the various statutes currently in force. It is quite another matter, however, to enact a law that seriously disrupts the republican design embodied in the Constitution by establishing the governing authority of a particular ministerial portfolio of the Executive Branch over the internal governing authorities of each branch of the Republic.

Consequently, I reiterate that it would not be illegitimate to include the Judicial Branch or the Tribunal Supremo de Elecciones within a general regulatory framework intended to establish broad lines of regulation, but not under governing authority vested in the Executive Branch. As reflected in the majority opinion, art. 2(a) of the bill under consultation seeks to include the Judicial Branch and the Tribunal Supremo de Elecciones within the scope of the Ley Marco de Empleo Público. Nevertheless, I have considered it necessary to enter this separate note to state that, in accordance with the general considerations set forth supra, in my view that provision is not in itself unconstitutional insofar as it includes the Judicial Branch and the Tribunal Supremo de Elecciones within a public-employment regulatory framework, provided that such regulatory framework is understood as one establishing general principles and rules.

Indeed, legislative precedents may be cited that, while respecting this design, establish general rules whose implementation is reserved to internal bodies—for example, the Ley General de Administración Pública or the Ley General de Contratación Administrativa. However, because this bill does not possess those characteristics, this article is unconstitutional by connection (inconstitucional por conexidad) with the remainder of its 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 them to those branches. In other words, what those provisions establish, in connection with this art. 2(a), deprives the principle of separation of powers of its substance, even though the wording of this subsection attempts to safeguard that principle. Furthermore, the rationale of the law as a whole is embodied not only in its articles but also in its explanatory statement (exposición de motivos), which has interpretive value. Thus, for that art. 2(a) to be considered not unconstitutional “in itself,” it would have to be viewed separately from what that explanatory statement says in relation to those provisions.

It should also be emphasized that, in this particular case, the intended interference with the powers of the Judicial Branch is being pursued despite the warnings issued by the Chamber in advisory opinion n.°2018-019511, which addressed the legislative consultation concerning the “Ley de Fortalecimiento de las Finanzas Publicas” bill (expediente legislativo n.°20.580). In that consultation, the Chamber emphasized the incompatibility of “governing authority” exercised by the Executive Branch with the powers and special regulations already governing the Judicial Branch.

Thus, although the bill under consultation provides that it will apply to the Judicial Branch and the Tribunal Supremo de Elecciones “without prejudice to the principle of separation of Powers established in the Constitución Política,” a comprehensive reading of the bill supports the conclusion that this principle is not adequately guaranteed. When art. 2(a) of the bill is examined in connection with the remainder of its provisions, and specifically with the provisions seeking to amend the Estatuto de Servicio Judicial and the Ley de Salario del Poder Judicial, as well as art. 30 of that bill, an ostensible coordination relationship can be seen, but it is no more than an appearance. In other words, examination of art. 2(a) together with the remaining provisions of the bill shows that its very purpose is to establish governing authority by the Ministerio de Planificación Nacional y Política Económica (Mideplan) over the other branches of the Republic mentioned here, and there is no certainty as to how this purported coordination will operate because most of the provisions grant decision-making power to Mideplan itself.

Finally, I must clarify that I do not share the majority’s view insofar as it distinguishes between officials who perform essential duties pertaining to the specifically assigned jurisdiction and those who do not participate directly in such work by virtue of an administrative decision that could likewise prove unconstitutional, as I have already explained supra. There will be essential administrative functions that support the primary function of administering justice and of organizing, directing, and overseeing acts relating to suffrage; therefore, I do not agree with the distinction as drawn by the majority.

• c)Separate note by Justice Picado Brenes regarding Article 2(a) of the bill insofar as it includes the Judicial Branch and the Tribunal Supremo de Elecciones (point 6 of the Por Tanto) Unanimously, the Chamber answers the consultation by indicating that Article 2(a) of the Ley Marco de Empleo Público bill is not unconstitutional in itself insofar as it includes the Judicial Branch and the Tribunal Supremo de Elecciones within a general regulatory framework for public employment, but that it is unconstitutional in its effects because some of its provisions deprive the principle of separation of powers of its substance. Nevertheless, I must make certain clarifications on the basis of which I conclude that the bill submitted for consultation should have proceeded from the fundamental premise of the separation of powers and respect for constitutional autonomies (autonomías constitucionales).

It should be noted that, according to the explanatory statement accompanying the base text of the Ley Marco de Empleo Público bill, as stated by its sponsors, the bill “is intended to serve as a cornerstone for steering public service toward a more internally consistent legal framework, aimed at reducing the distortions caused by fragmentation within a context of effectiveness and efficiency.” In the view of the bill’s proponents, “The State must regulate its relationship with public servants under general rules and principles governing all public institutions, safeguarding the independence of the branches and the particular features of the public-employment subregimes, … while always seeking to satisfy the public interest and ensuring that citizens receive goods and services of appropriate quality and in a timely manner.” They further state that this bill “seeks to address collectively the recommendations issued by various national and international bodies, such as the Contraloría General de la República and the Organización para la Cooperación y el Desarrollo.” It follows from the foregoing that the project’s objective is to establish a uniform legal framework (ordenamiento jurídico) for public employment (empleo público), so that—in the view of those proposing the project—it will be less fragmented and, consequently, produce fewer distortions, on the premise that this would be achieved by issuing general rules and principles governing all public institutions, all for the purpose of serving the public interest and providing citizens with quality, timely, effective, and efficient goods and services.

However, notwithstanding how simple it might appear to achieve the proposed objective by issuing “general rules and principles governing all public institutions,” the fact is that the explanatory statement itself reveals the first obstacle that makes it unattainable, when it states that this must be done “while safeguarding the separation of powers and the particular features of the public-employment sub-regimes (subregímenes de empleo público).” It would appear that the legislature has failed to consider that the constitutional design of the Costa Rican State makes it impossible to apply a uniform public-employment system in the manner contemplated by this bill, or perhaps it has overlooked the fact that the scope of the separation of powers protected under article 9 of the Political Constitution, together with the independence granted therein to the Tribunal Supremo de Elecciones, would preclude the existence of a centralized body within the Executive Branch that issues directives, guidelines, and regulations concerning public employment without violating the Law of the Constitution (Derecho de la Constitución).

From this perspective, therefore, and taking the Political Constitution as the cornerstone of Costa Rican democracy, respect for the separation of powers, the independence of the Tribunal Supremo de Elecciones protected under constitutional article 9, and the employment sub-regimes existing in the country is incompatible with unified regulations governing public-employment relationships across all public institutions, regulating matters exclusive to each institution under the governing authority (rectoría) of the Executive Branch (Mideplán), on the terms set forth in this project. It would be different if, through this project, the legislature had intended solely to issue general public-employment guidelines to implement constitutional article 192 and thereby strengthen the existing statutory system (sistema estatutario); clearly, however, the project has not been framed in those terms.

The foregoing may be taken to an even more serious level because, when it is observed that the Ley de Fortalecimiento de las Finanzas Públicas N°9635 vested the governing authority over public employment in the Ministerio de Planificación Nacional y Política Económica, it may be presumed that, as of that moment, the principle of separation of powers had become somewhat unclear to the legislature; this issue carried over into the project under review, in which the operational focus of that governing authority is materialized by providing in article 2 subsection a) that its scope of action includes the 3 branches of government as well as the Tribunal Supremo de Elecciones. This makes it evident that, under the Ley Marco de Empleo Público bill, a body of the Executive Branch—Mideplán—will take the lead in this field and, consequently, will establish, direct, and coordinate the issuance of public policies, programs, and national public-employment plans. Accordingly, this demonstrates, as a matter of principle, that notwithstanding the separation of powers, a body of the Executive Branch will lead this field and, above all, will impose its authority upon the other branches and the TSE in this area, in clear and absolute disregard of that principle.

An initial general reading of the project under consultation reveals that the proposed model is one in which a body of the Executive Branch imposes its authority upon the other branches and the TSE in this field. Despite the unequivocal nature of that decision, I must state that, in my view, the legislature has overlooked the fact that the structure of the Costa Rican State is not designed for the “unification” sought by the project, and has been even less mindful that, ultimately, what it appears likely to produce is greater fragmentation among the sectors and institutions that may be included, those that must be included, and those that must be excluded. The project under review fails to recognize that it is impermissible for a substatutory rule (norma infra legal) to contradict—at this level—the principle of separation of powers and all that it entails because, as has been stated, under this bill a body within the Executive Branch will be responsible for regulating all matters concerning public employment, thereby automatically disregarding the autonomy and independence enjoyed by each Branch of the Republic and the Tribunal Supremo de Elecciones in managing their human resources according to their institutional needs.

It should be noted that article 2 of the project under consultation establishes the scope of coverage of the Ley Marco de Empleo Público and states that it will apply to the public servants (personas servidoras públicas) of the entities and bodies specified therein, under the principle of the State as a single employer (Estado como patrono único), and includes, in subsection a), the Branches of the Republic (Legislative, Executive, and Judicial), their auxiliary and affiliated bodies, and the Tribunal Supremo de Elecciones. Thus, as I have already stated supra, if article 9 of the Political Constitution establishes the principle of separation of powers, and the project intends for a body of the Executive Branch to dictate and impose public-employment regulations above the other branches—specifically the Judicial Branch—and the TSE, requiring them to submit thereto, there can be no doubt: the principle of separation of powers protected under constitutional article 9 will be violated, as will, consequently, the independence of each Branch of the Republic and the TSE to determine its own organization and administration, including the management of its human resources.

Article 2 subsection a) of the project under review is contrary to the Law of the Constitution because it violates the principle of separation of functions (principio de separación de funciones), the principle of judicial independence (principio de independencia judicial), the specific employment systems of the Judicial Branch and the Tribunal Supremo de Elecciones, and the constitutional administrative powers granted to the Corte Suprema de Justicia.

While it is true that the entire State apparatus is subject to the principles of the public-service system (régimen de servicio público) derived from constitutional article 191 and that, for this reason, a general statutory public-employment system already exists in the country, it is also true that this constitutional principle is general in nature and does not place any Branch of the Republic above another, as the project under review does. Its sole objective is to unify—in a single body of law—all public-employment regulations, centralizing in a body of the Executive Branch (Mideplán) the entire governing authority of the public-employment system created therein, such that this body will be responsible for regulating all matters relating to personnel recruitment and selection (art.14), mobility in public employment (art.19), termination and dismissal proceedings or the disciplinary system (régimen disciplinario) (art.20, 21 and 22), training activities (art.23), performance evaluation (art.27), and the compensation system (régimen salarial) (chapter VIII), among others.

This will be imposed upon the entire Judicial Branch and the Tribunal Supremo de Elecciones, despite the autonomy and independence enjoyed by both to organize this matter internally and in accordance with their respective institutional needs. By contrast, it should be noted that article 191 establishes a general framework for action and, when read in conjunction with constitutional article 192, it becomes apparent that the constituent authority did not intend to undermine the independence of any constitutional body, but rather to establish that relations between the State and its employees were to be governed by the principle of demonstrated suitability (principio de idoneidad comprobada), and that they could be removed only on grounds of justified dismissal or compulsory reduction of services, subject in all such matters to the exceptions established by the Political Constitution itself and by law.

Thus, it is correct that the constituent authority intended there to be a unified human-resource management system for the entire State apparatus, founded upon the principle of demonstrated suitability in order to guarantee administrative efficiency; however, it cannot be inferred from this—as the legislature has done with this Ley Marco de Empleo Público bill—that such unified system had to be the one proposed therein—to eliminate the existing statutory system—much less on the terms set forth, since article 2 subsection a) itself reveals a clear violation of the Law of the Constitution which, as stated, contravenes the principle of separation of powers under constitutional article 9, specifically to the detriment of the autonomy and independence of the Judicial Branch and the Tribunal Supremo de Elecciones. At this point, I reiterate my position that it would have been different if, through this project, the legislature had intended only to issue general public-employment guidelines to implement constitutional article 192 and thereby strengthen the existing statutory system; clearly, however, the project under review has not been framed in those terms.

With regard to the Judicial Branch, it must be stated that various provisions of the project under review affect the exercise of the jurisdictional function (función jurisdiccional) belonging to the Judicial Branch and the essential administrative functions supporting that primary function, since Mideplán is granted governing authority over public employment (art.6), broad powers to issue “general provisions, directives, and regulations” (art.7.c and 7.l), to issue “general guidelines and principles for performance evaluation” (art.7.g), and to establish “a single, unified compensation system for the public service” (art.7.m). All of the foregoing is contrary to the Chamber’s line of precedent, pursuant to which, with respect to employment relationships with its employees, performance evaluation, and salaries, it is improper for an external authority to assume governing authority over or unilaterally impose criteria upon the Judicial Branch.

It should be recalled that this Court has endorsed the existence, propriety, and necessity of a specific public-employment system for employees of the Judicial Branch (see judgment n°2018-019511). Consistent with the foregoing, the creation of a Ministerio del Empleo Público as a body of the Executive Branch, vested with such broad powers that it may issue orders to the Judicial Branch in this field, also clearly violates the exclusive powers of the Corte Suprema de Justicia set forth in constitutional article 156 (“The Corte Suprema de Justicia is the highest court of the Judicial Branch, and the courts, officials, and employees in the judicial branch are subordinate to it, without prejudice to the provisions of this Constitution concerning the civil service.”); this is compounded by this Court’s holding that the special regulations of the Judicial Branch governing these matters may not be “implicitly repealed by a subsequent general rule” (see judgments n°01265-1995 and 2017-003450).

A reading of the Public Employment Framework Bill (Proyecto de Ley Marco de Empleo Público) demonstrates that Mideplán, despite being an organ of the Poder Ejecutivo, would assume a series of constitutional powers of the Corte Suprema de Justicia related to the governance function of the Poder Judicial. Such powers would be particularly burdensome regarding the relationships of direction and hierarchy involving officials subordinate to the Judicatura, the Ministerio Público, and the Organismo de Investigación Judicial. It should be recalled that judicial independence (independencia judicial) refers not only to the adjudicator’s independence of judgment, but also to a series of manifestations in the administrative, financial, and operational spheres, which necessarily entail that no organ belonging to another Branch of the Republic may interfere with the Poder Judicial. Indeed, an examination of the provisions under consultation shows that the “General Public Employment System” (“Sistema General de Empleo Público”)—which places the Ministerio de Planificación Nacional y Política Económica (Mideplán) in charge as its governing authority (ente rector)—encroaches upon the administration and human-talent management of the Poder Judicial, since the Bill establishes that Mideplán will issue specific orders to the Poder Judicial regarding the organization and management of its human resources.

This would encompass everything from how staffing 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 competitive selection procedures (concursos internos y externos) must be conducted, to how its evaluation processes must be carried out, how its internal salary policy must be designed, and how the disciplinary regime (régimen disciplinario) must be regulated and applied, for example. On this subject, the Sala Constitucional has stated that “A further guarantee of the independence of the Poder Judicial in employment matters is that the Head of the Personnel Department is accountable to the President of the Corte, thereby excluding interference by external bodies.” (see judgment n°2018-019511); this situation is entirely disregarded in this Bill, since a reading thereof indicates that the Head of the Personnel Department of the Poder Judicial would become subordinate to an external body, namely Mideplán.

It follows from the Bill under review that this governing authority (rectoría) goes beyond regulating an activity and becomes the direction and subordination of the recipient, which will be required to observe and comply with specific directives and regulations on the matter issued by Mideplán. In light of the foregoing, it should be noted that the broad powers granted to Mideplán directly result in the displacement of the powers and authority of the organs of the Poder Judicial, disregarding the special rules governing the service of employees of the Poder Judicial, including rules having the force of law. It must be emphasized that Judicial Independence is a fundamental guarantee of the rule of law (Estado de Derecho), under which the Poder Judicial is independent from the other Branches in establishing its own internal organization and operations; it is also the ability to self-manage, with financial autonomy, the personnel, material resources, and instruments relating to the Administration of Justice.

It refers both to the judicial function (función jurisdiccional) and to the administrative function that supports that judicial function—in other words, to the entire Poder Judicial, from the most modest position to the highest level of the hierarchy. Consequently, this judicial independence means, in particular, that the Poder Ejecutivo is prohibited from intervening in the decisions of the organ responsible for the administration of justice, whether such decisions are organizational, administrative, or auxiliary in nature, let alone decisions pertaining directly to the administration of justice, because all of them are matters exclusively within the purview of the Poder Judicial. It must not be forgotten that the economic, personal, functional, organizational, and institutional independence of both the Poder Judicial itself and judges and judicial officers is essential in a Constitutional State under the Rule of Law (Estado Constitucional de Derecho).

Under that principle, each Branch is independent of the others, and each organ of the State must be able to perform its function independently of the others (art.9° Constitucional); although they may interact, one may never be subordinate to another.

Accordingly, any provision that subjects the Poder Judicial to orders, supervision, or directives from the Poder Ejecutivo is unconstitutional. This violates not only the principles of separation of functions and judicial independence, but also the entire democratic system and organization of governmental power created by the Constituent Assembly (Constituyente) in the Costa Rican rule-of-law State. This is so because the Bill under consultation seeks hyper-centralization—contrary to the decentralization process established by the Constituent Assembly—which also overrides the principle of separation of powers, particularly judicial independence.

For its part, with regard to the Tribunal Supremo de Elecciones, it cannot be overlooked that Articles 9 and 99 of the Constitución Política clearly establish that it “enjoys independence in the performance of its mandate.” There is also extensive case law concerning the basis, justification, and significance of that independence; accordingly, Article 2(a) would likewise be unconstitutional because it infringes upon that independence. In judgment n°3194-1992, the Sala held:

“In the case of electoral matters, the 1949 Constitution placed special importance on the need to separate everything relating to suffrage, principally from the sphere of the political branches of the State. To that end, 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 responsible for organizing, directing, and overseeing it. Originally in Article 99 of the Constitution, and subsequently also in Article 9°—through the amendment introduced by law 5704 of 5 de junio de 1975—the Tribunal Supremo de Elecciones was not only entrusted with the organization, direction, and oversight of acts relating to suffrage, but was also granted the rank and independence inherent to a Branch of the State.” It should also be noted that judgment n°00495-1998 added:

“although (the TSE) is not a Branch of the State in the strict sense, it does perform a fundamental function within the Costa Rican State—namely, handling electoral matters—and, by constitutional provision—quoted second paragraph of Article 9—it is granted the rank and independence of a Branch of the State.” It should be noted that, regarding the independence of the Tribunal Supremo de Elecciones, the Sala has also stated:

“(…) nevertheless, it is evident that the organizational and directive powers conferred by the Constitution itself upon the Tribunal Supremo de Elecciones fully justify recognizing those same powers with respect to electoral matters (…)” (see judgment number 0980-91).

Now, specifically with respect to the public employment regime (régimen de empleo público) applicable to the TSE, the Sala Constitucional has also stated:

“(…) in the case of the Branches, their own constitutional independence, guaranteed generally by Article 9° of the Constitution and, in the cases of the Poder Judicial and the Tribunal Supremo de Elecciones, by Articles 99 et seq., 152 et seq., and 177 thereof, as well as by their own organic rules (normas orgánicas), confers upon their senior authorities the power and responsibility to establish the remuneration, representation expenses, and other benefits inherent to the positions of their own members and subordinates, naturally within their available budgets, irrespective, of course, of whether the amounts coincide with those received by the legislators” (see judgment n° 550-1991).

Similarly, it stated in judgment n° 2005-14298 that:

“(…) In a Tribunal such as this one, where electoral matters constitute its essence, the constitutional principles of the public employment regime concerning stability and proven suitability (idoneidad comprobada) must be safeguarded with greater vigilance, because the intention of the Constituent Assembly in creating this Branch was to eliminate entirely the possibility that electoral officials might become involved in any political activity, in order to guarantee an independent Electoral Body.” Consequently, there is sufficient justification—not only under Articles 9 and 99 of the Constitución Política and constitutional case law—to conclude that Article 2(a) of the Public Employment Framework Bill is also unconstitutional insofar as it includes the Tribunal Supremo de Elecciones within its scope. As the Sala has stated, the constitutional principles of stability and proven suitability under the public employment regime, as they relate to the TSE, must be safeguarded with greater vigilance, because the intention of the Constituent Assembly in creating this Branch—the TSE—was to eliminate entirely the possibility that electoral officials might become involved in any political activity, in order to guarantee an independent Electoral Body. Clearly, the Bill under review would violate the independence of the electoral body that the Constituent Assembly sought to safeguard at all costs.

Based on the reasons stated, I consider that Article 2(a) of the Public Employment Framework Bill being processed under legislative expediente nº 21.336 is unconstitutional insofar as it concerns the Poder Judicial and the Tribunal Supremo de Elecciones.

• d)Note by Justice Rueda Leal concerning the application of paragraph 6(b) of the Bill under consultation to the Poder Judicial and the Tribunal Supremo de Elecciones.

From my perspective, the unconstitutionality identified with respect to this provision is also connected to that observed in the analysis of subparagraphs (g) and (h) of Article 49 regarding human-resources management departments and their relationship with paragraphs 30 et seq. I consider coordination among different government bodies to be both possible and desirable. However, the legal assessment of such coordination will depend on its substance with regard to subject matters, persons, respect for fundamental rights, allocation of powers, and other considerations. In this regard, it is insufficient to label an inter-organ or intersubjective relationship (relación interorgánica o intersubjetiva) as “cooperation” and assume that it is constitutional; rather, the terms of such cooperation and compliance with constitutional provisions must be examined.

• e)Justice Garro Vargas’s separate reasoning regarding the unconstitutionality of Article 6(b), insofar as it subjects the Poder Judicial and the Tribunal Supremo de Elecciones to the governing authority of the general public employment system under Mideplán.

Like the majority, but based on my own considerations, I find that Article 6(b) of the bill is unconstitutional insofar as it places the General Public Employment System under the governing authority (rectoría) of Mideplan and provides for the inclusion within that system of the human resources offices of the Poder Judicial and the Tribunal Supremo de Elecciones. In other words, under this provision, those offices would be subject to the governing authority of Mideplan rather than that of their respective governing bodies. The establishment of this governing authority, which strips those branches of the power to direct and oversee their human resources offices, is unconstitutional because it deprives the principle of separation of powers (principio de separación de poderes) of its substance. This provision must necessarily be examined in conjunction with Article 9, paragraph 2, of the bill, which specifically establishes that the human resources offices must apply and implement the generally applicable provisions, directives, and regulations concerning planning, work organization, employment management, performance management, compensation management, and labor-relations management that Mideplan transmits to the respective institution.

It must be emphasized that, under the Constitución Política itself, the governing body of the Poder Judicial is the Corte Suprema de Justicia, and Article 156 expressly states that “the courts, officials, and employees in the judicial branch are subordinate to it.” It is therefore unconstitutional to establish a General Public Employment System governed by a ministry of the Poder Ejecutivo—Mideplan—and to transfer the human resources management offices to that system under the body of administrative rules, directives, and decisions issued by Mideplan itself (see Article 6(d) and (e)), in open disregard of the constitutional provision requiring that officials and employees of the judicial branch be subordinate to the Corte Suprema de Justicia. It can be seen that the Corte Suprema or, as applicable, the Magistrates of the Tribunal Supremo de Elecciones disappear from the equation concerning the administration of personnel who perform functions intrinsically essential to the body, as well as all administrative support personnel necessary to carry out the respective assigned functions.

The design of the provision also disregards what this Constitutional Chamber (Sala Constitucional) previously stated in advisory opinion (opinión consultiva) n.°2018-019511, which held that the direct relationship between the Departamento de Personal and the Presidencia de la Corte is a safeguard of the constitutional principle of independence among the branches of government. In the decision (voto) in question, this Chamber expressly stated the following:

“Regardless of the fact that Article 47 of the bill refers to ‘exceptions,’ it is apparent that performance evaluation and decision-making authority in labor matters, whether general or specific, are already regulated by the aforementioned regulatory framework of the Poder Judicial, making it impossible for an external body to assume ‘governing authority’ or impose criteria on that Branch. Moreover, that regulatory framework is designed to ensure the efficiency of the judicial function and to protect judicial employees from external interference, as Article 1 of the Estatuto de Servicio Judicial states:

“Article 1.- This Statute and its regulations shall govern relations between the Poder Judicial and its employees, for the purpose of ensuring the efficiency of the judicial function and protecting those employees.” It should be noted that the provision establishes that employment relationships between the Poder Judicial and its employees are governed by the Statute and its regulations. The systematic interpretation (interpretación sistemática) required by that provision precludes the indirect regulation of judicial service through directives or guidelines issued by other bodies. This is confirmed because the issuance of the regulations referred to in the provision is, in turn, within the exclusive jurisdiction of the Corte, as the Statute itself states:

“Article 5.- Before issuing internal workplace regulations, whether general in nature for all judicial employees or applicable only to a group of them, the Corte shall make the respective draft available to those employees by the most appropriate means so that they may submit their comments in writing within a period of fifteen days.

The Corte shall take those comments into account in reaching the appropriate decision, and the regulations it issues shall become mandatory without further proceedings eight days after their publication in the "Boletín Judicial".” A further safeguard of the independence of the Poder Judicial in employment matters is that the Head of the Departamento de Personal reports to the Presidente de la Corte, thereby excluding interference by external bodies:

“Article 6.- The Departamento de Personal of the Poder Judicial shall operate under the direction of a Head who shall report directly to the Presidente de la Corte and shall be appointed by the Corte Plena.” Furthermore, the detailed provisions of the Estatuto de Servicio Judicial distinguish among the different areas of authority concerning performance evaluation, which confirms the existence of special regulations for that Branch” (emphasis not in the original).

Consequently, the arrangement established in the provision under review is unconstitutional precisely because it allows the human resources office of the Poder Judicial to become subordinate to Mideplan, which entails permitting external bodies to interfere with the independence of the Poder Judicial and the Tribunal Supremo de Elecciones. Moreover, it should be noted that the functions of the Corte Suprema de Justicia and the Magistrates of that Tribunal, as senior authorities, are curtailed.

• f)Separate reasons of Magistrate Picado Brenes concerning Article 6 of the bill with respect to the governing authority of Mideplán (point 7 of the Por Tanto) I agree with the Chamber’s unanimous conclusion that Article 6 of the Ley Marco de Empleo Público bill is unconstitutional, specifically with respect to subsection (b), insofar as it subjects the Poder Judicial and the Tribunal Supremo de Elecciones to the Poder Ejecutivo’s power of direction (potestad de dirección). Nevertheless, I consider it necessary to present additional reasons supporting my decision. The starting point must be that the bill under review proposes to incorporate the Poder Judicial into a general public-employment regulatory framework intended to apply broadly throughout virtually the entire public sector. In the specific case of the Poder Judicial, however, that inclusion is being undertaken without regard to its legal nature, organizational structure, distinctive characteristics, or the specific nature of the functions performed by that Branch of the Republic and by each and every judicial employee within the institutional framework they comprise.

A general reading of the bill makes it abundantly clear that the Poder Ejecutivo, through Mideplán, would assume complete governing authority and governance over the general public employment system being created. This is done without regard to the principle of separation of powers and in complete disregard of the entire human talent management system that the Poder Judicial has created in the exercise of its full powers—a system in which much of the regulatory framework governing and protecting it was enacted by the legislature and was not the product of internal or arbitrary decisions by that Branch of the Republic. At this point, it must be brought to the fore that this bill gives rise to a serious contradiction: although specific regulations governing the Poder Judicial in this area had already been enacted, the bill now simply renders them ineffective and replaces them with generally applicable provisions, without any technical basis justifying the modification of a special rule by a general one.

It must not be overlooked that Article 153 of the Constitución Política establishes that the administration of justice is an exclusive function of the Poder Judicial as a constitutional body; Article 9 of the Constitution, in turn, establishes the principle of separation of the Branches of the Republic. It must be reiterated that a combined interpretation of those provisions shows that the Poder Judicial—as an independent body created by the Constitution—must not be subjected to any interference by another Branch of the Republic that would prevent, restrict, or affect the exercise of its exclusive function, namely, the administration of justice. However, a reading of the Ley Marco de Empleo Público bill, and specifically Article 6 under review, makes it more than evident that the bill’s purpose is not merely to create a general public employment system, but to allow the Poder Ejecutivo—acting through Mideplán—to intrude completely into the Poder Judicial in all matters relating to human talent management.

It should be observed that Article 6 provides for the creation of the aforementioned general public employment system under the authority of the Ministerio de Planificación Nacional y Política Económica (Mideplán) and includes “The offices, departments, areas, directorates, units, or equivalent Human Resources Management bodies of the entities and bodies falling within the scope of this law.” Because the Poder Judicial was included within the scope of the Law—Article 2(a)—it is more than obvious that Article 6 would also include the Departamento de Gestión Humana of the Poder Judicial and would consequently incorporate all matters within that Department’s purview relating to the management of personnel working in the Poder Judicial. At this point, I wish to clarify that, in my view, the intrusion into the Poder Judicial contemplated by Mideplán would not exclude any official. Rather, the intent is for the new system to apply to all personnel working in the Poder Judicial, understood as a whole and comprising the entire administration-of-justice sector, the Defensa Pública, the Fiscalía General, the Organismo de Investigación Judicial, the administrative sector, and any other department or unit included in the organizational structure of this Branch of the Republic, whether at the judicial, support, or administrative level.

From this perspective, I therefore disagree with the majority of this Chamber that judicial employees may validly be divided into two groups: those who may be included in the public employment management system and those who may not be included in it. For the majority of the members of this Chamber, the latter would be officials who perform adjudicative functions—judges—or quasi-adjudicative functions—prosecutors, public defenders, and professional and specialized personnel of the Organismo de Investigación Judicial, among others—as well as managerial-level or senior policy-management officials, as the bill refers to them. I consider that all personnel of the Poder Judicial must be protected from even the slightest interference by any other Branch. Judicial employees do not work for fragmented sectors of the public administration; they have a single, sole employer—the Poder Judicial. Moreover, their objectives as employees are directed toward achieving a common purpose, which is the same purpose pursued by the Poder Judicial as a whole.

For this reason, in my view, it is neither valid to include the Poder Judicial within the scope of the Ley Marco de Empleo Público nor, much less, permissible to attempt to divide its employees into sectors, since the ultimate purpose of their work is to fulfill the objectives of the Poder Judicial as a whole.

Moreover, note that Article 6 of the Framework Law on Public Employment bill (proyecto de Ley Marco de Empleo Público) disregards the powers vested in the Corte Suprema de Justicia regarding human resources management (gestión del recurso humano), in its capacity as the governing body of the Poder Judicial, so that those powers may instead be exercised by Mideplán. By virtue of that authority, Mideplán—not the Corte Suprema de Justicia—would issue the administrative acts (actos administrativos) and regulations (reglamentos) directed at the Dirección de Gestión Humana del Poder Judicial, and this would unquestionably conflict with the Law of the Constitution (Derecho de la Constitución) in relation to Article 156, insofar as the Poder Ejecutivo would be interfering, on its own initiative, in personnel administration decisions that fall solely and exclusively within the authority of the Corte Suprema de Justicia because, pursuant to Article 156 of the Constitution, it is the highest court of the Poder Judicial, and the courts, officials, and employees are subordinate to it.

Furthermore, under Article 6 of the Framework Law on Public Employment bill, there would be no relationship of coordination and cooperation between the Poder Judicial and the Poder Ejecutivo—Mideplán—regarding public employment (empleo público), but rather an imposition of the decisions, provisions, directives, regulations, etc. issued by Mideplán in that area, disregarding the existence of constitutional bodies vested with that authority, such as the Corte Suprema de Justicia (Article 156 of the Constitution).

In addition, Article 6 under review would effectively strip the constitutional powers of the Corte Suprema de Justicia concerning management of the employment of judicial personnel of their substance, as well as all existing internal regulations of the Poder Judicial that entrust such management to it.

Finally, as regards the Poder Judicial, I must emphasize that although Article 2(a) of the Framework Law on Public Employment bill includes it within the bill’s scope, and although the final phrase of that subsection expressly provides “without prejudice to the principle of separation of powers (principio de separación de Poderes) established in the Constitución Política,” the fact is that merely stating that principle means nothing because provisions such as Article 6 under review are stripping it of its substance and causing a clear violation of the separation of powers, since Mideplán’s intended intrusion into the Poder Judicial concerning human talent management (gestión del talento humano) is absolute and wholly contrary to that separation.

Moreover, as regards the Tribunal Supremo de Elecciones, essentially the same may be said, since Article 2(a) included it within the scope of the Framework Law on Public Employment bill and, therefore, the following Article 6 would apply to it, such that “The Human Resources Management offices, departments, areas, directorates, units, or equivalent organizational units” of that Tribunal would likewise be subject to the decisions and provisions issued by Mideplán concerning public employment. Clearly, as with the Poder Judicial, the inclusion of this Tribunal in that general public employment system (sistema general de empleo público) infringes the independence granted to it by Article 99 of the Constitución Política. It should be recalled that the Tribunal Supremo de Elecciones is a constitutional body specializing in electoral matters, with the same rank and independence as the other Branches (judicial, legislative, and executive), and that it is responsible for organizing, directing, and overseeing acts relating to voting, as well as the other functions assigned to it by the Constitution and the Law; by reason of those functions, it enjoys full independence and autonomy to establish its own internal organization, which unquestionably entails the ability to manage the human resources it requires to fulfill them.

Consequently, it is contrary to the Law of the Constitution for a body of the Poder Ejecutivo, such as Mideplán, to dictate how this Tribunal must act in relation to its human resources, since it has full autonomy to manage them itself. Once again, on this point, I consider that the bill under review seeks to include all personnel working for the Tribunal Supremo de Elecciones and, once again, I do not share the majority opinion of this Chamber insofar as it excludes from the general public employment system some of its employees, namely, officials of that Tribunal who perform electoral functions—staff attorneys, department directors, professional personnel, etc.—and those holding senior political management positions, as well as the administrative, professional, and technical personnel exclusively and definitively designated by the head of the respective Branch, because in these cases they cannot be subjected to directives, provisions, circulars, or manuals issued by Mideplán.

In my opinion, and as I have already stated regarding the Poder Judicial, it is likewise impossible to create two groups of officials within the Tribunal Supremo de Elecciones, such that some are included in the public employment system while others are excluded. Once again, I reaffirm my position that each and every TSE employee is an indispensable part of the entire institutional machinery, from the most modest position to the highest in the hierarchy; through their different duties, they all fulfill a single objective: the one constitutionally assigned to the TSE. Fragmenting the employment regime (régimen de los trabajadores) would undoubtedly violate the principle of equality and non-discrimination (principio de igualdad y no discriminación), because officials working toward the same objective would be governed by different public employment systems.

• g)Additional reasons given by Justice Garro Vargas concerning the unconstitutionality of Article 7 for affecting the independence of the Poder Judicial and the Tribunal Supremo de Elecciones With respect to Article 7, the majority of the Chamber confines itself to answering the constitutional inquiry (consulta de constitucionalidad) in relation to the subsections expressly mentioned and supported by the consulting legislators, namely subsections (d), (g), and (p), because they affect the independence of the Poder Judicial and the Tribunal Supremo de Elecciones.

However, having deemed the constitutional inquiry submitted by the Corte Suprema de Justicia admissible, and pursuant to Article 101, first paragraph, of the LJC, I do not consider myself limited to ruling exclusively on the cited subsections, but rather may address Article 7 under review as a whole. Therefore, just as the majority of the Chamber does with respect to other institutions, I consider Article 7 unconstitutional insofar as its provisions subject the Poder Judicial and the Tribunal Supremo de Elecciones to Mideplan’s authority to direct and regulate, while disregarding any relationship with the Corte Suprema de Justicia or the full bench of Justices of the Tribunal Supremo de Elecciones, the bodies to which officials and employees in the judicial and electoral branches, respectively, are subordinate.

I have already stated that I consider the intended placement of governing authority (rectoría) over the Poder Judicial and the Tribunal Supremo de Elecciones in the hands of the Poder Ejecutivo to be unconstitutional. Article 7 makes clear all the powers intended to be conferred on that body in its capacity as governing authority, for example: in subsection (a), the power to establish, direct, and coordinate the issuance of public policies, programs, and national public employment plans; in subsection (c), the power to “issue generally applicable provisions, directives, and regulations aimed at the standardization, simplification, and coherence of public employment,” which is supplemented by subsection (d), providing the power to “advise the entities and bodies included within the scope of this law regarding the proper implementation of public policies, generally applicable provisions, directives, and regulations issued within the framework of policy governance over public employment”; subsection (g) states that Mideplan is responsible for “issuing general guidelines and principles for performance evaluation,” and subsection (l) provides that it is responsible for “coordinating with the Procuraduría de la Ética Pública to issue generally applicable provisions, directives, and regulations for instructing public servants regarding the duties, responsibilities, and functions of their positions, as well as the ethical duties governing public service.” All of the foregoing demonstrates that both the Poder Judicial and the Tribunal Supremo de Elecciones would be subject to Mideplan’s authority to direct and regulate.

Likewise, notwithstanding the independence enjoyed by those Branches in regulating matters concerning their salaries, subsection (m) provides that this ministry of the Poder Ejecutivo is responsible for establishing “a single, unified compensation system for public service,” thereby defining a single salary system for persons exercising judicial and electoral functions and subjecting them to decisions of the Poder Ejecutivo. As I explained above, I consider this a dangerous mechanism that undermines the operational stability of the institutions that form the foundation of Costa Rican democracy. Moreover, as I have stated, I do not object to the enactment of general statutory rules concerning salaries and other conditions of public servants that bind all Branches.

• h)Additional reasons given by Justice Picado Brenes concerning Article 7 of the bill with respect to Mideplán’s broad powers over the Poder Judicial and the Tribunal Supremo de Elecciones (point 8 of the Por Tanto) As has been noted, both the Poder Judicial and the Tribunal Supremo de Elecciones enjoy constitutionally granted independence in exercising their powers and fulfilling their purposes. Pursuant to the constitutional principle of separation of powers, it is well established that no other Branch of the Republic may interfere with the powers of another; consequently, the Poder Ejecutivo, acting through Mideplán, could not impose on either the Poder Judicial or the Tribunal Supremo de Elecciones any of the powers conferred on that body under Article 7 of the Framework Law on Public Employment bill. Note that this provision establishes the following powers of Mideplán:
• a)To establish, direct, and coordinate the issuance of public policies, programs, and national public employment plans.
• b)To establish mechanisms for discussion, participation, and consensus-building with municipal corporations concerning public employment.
• c)To issue generally applicable provisions, directives, and regulations aimed at the standardization, simplification, and coherence of public employment.
• d)To advise the entities and bodies included within its scope regarding the proper implementation of public policies, generally applicable provisions, directives, and regulations issued within the framework of policy governance over public employment.
• e)To administer and keep the integrated public employment platform up to date.
• f)To publish public employment vacancies through the online platform populated by the entities and bodies included within its scope.
• g)To issue general guidelines and principles for performance evaluation (evaluación del desempeño).
• h)To administer and implement research, innovation, and public employment proposal-development activities.
• i)Direct and coordinate the exercise of the inherent powers regarding public employment (empleo público) 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 specializing in public employment.
• j)Collect, analyze, and disseminate information on public employment from entities and bodies in order to improve and modernize them.
• k)Prepare a coherent and comprehensive strategy for learning and development throughout the public service, l) Coordinate with the Office of the Public Ethics Prosecutor to issue generally applicable provisions, guidelines, and regulations for instructing public servants (personas servidoras públicas) on the duties, responsibilities, and functions of their positions, as well as the ethical duties governing the public service.
• m)Establish a single, unified public-service compensation system.
• n)Conduct human-resources assessments (diagnósticos en materia de recursos humanos) of the entities and bodies included, in order to achieve an appropriate resizing of existing staffing levels and to develop general criteria delimiting the sectors whose activities, because of their institutional strategic value and their connection to substantive activities, should be reserved exclusively for performance by public servants. In addition, analyze criteria that may provide guidance in delimiting which services could be outsourced and the conditions under which they would be provided.
• o)Forecast global trends regarding the future of public employment in order to inform its planning.
• p)Analyze the efficiency and effectiveness of evaluation mechanisms in order to determine whether they fulfill their purpose.
• q)Evaluate the general public-employment system in terms of efficiency, effectiveness, economy, simplicity, and quality.

From the foregoing, it is more than evident that, in matters of public employment and under the terms in which section 7 is drafted, Mideplán will have the jurisdiction and authority to establish anything it deems appropriate, above any hierarchy or Branch of Government. In this specific case, the attempt to apply that section internally within the Judiciary and the Supreme Electoral Tribunal would entail violating Constitutional Law (Derecho de la Constitución) and, specifically, the principle of separation of powers, since the Executive Branch may not direct their public-employment activities, much less establish goals or objectives for them in the manner set forth in the cited Article 7. In that regard, and as I have previously maintained, it would not be valid for Mideplán to tell the Judiciary or the Supreme Electoral Tribunal how the provisions issued by that Executive Branch body concerning public employment should be properly implemented (subsection d); nor could it issue guidelines for evaluating the performance of employees of the Judiciary and the Supreme Electoral Tribunal (subsection g); still less could Mideplán evaluate employment matters in terms of efficiency, effectiveness, economy, simplicity, and quality with respect to the employees of the Judiciary or the Supreme Electoral Tribunal.

All those powers and responsibilities belong to the Supreme Electoral Tribunal and the Judiciary and are inherent to each of them. For that reason, any interference that Mideplán might seek to exercise in the human-talent management (gestión del talento humano) of either institution under Article 7 of the draft Public Employment Framework Law would be unconstitutional.

• i)Separate opinion of Justice Garro Vargas regarding Article 12 with respect to the Judiciary and the Supreme Electoral Tribunal In the matter at hand (sub lite), I have agreed with the majority of this Chamber when it states that the constitutional concerns regarding Article 12 of the bill and its application to both the Judiciary and the Supreme Electoral Tribunal were not properly substantiated. Therefore, that issue must be declared unable to be addressed (inevacuable). Nevertheless, I reserve the right to warn that, if it were established that the integrated public-employment platform and its operation entail regulations affecting the independence of the other Branches of Government, the provision could be unconstitutional. In other words, if improper interference were demonstrated, it would be unconstitutional.
• j)Separate opinion of Justice Picado Brenes regarding Article 12 of the bill as it concerns the Database (Point 10 of the Por Tanto) I agree with the unanimous position that the consultation submitted regarding Article 12 of the bill under review must be declared unable to be addressed; nevertheless, given the significance of what this article provides with respect to the Judiciary and the Supreme Electoral Tribunal, I believe it is necessary to highlight certain elements that may be inferred from that section and that, in my opinion, must be analyzed. It should be noted that the article under review creates a new mechanism that has been termed the “integrated public-employment platform,” which will be capable of centrally collecting data and information concerning public servants’ employment profiles and will identify persons considered “ineligible for reappointment to public positions because they have been sanctioned with disqualification (inhabilitación).” This platform will be administered by the Ministry of National Planning and Economic Policy, and it follows from the section that the platform’s objective is to provide “timely and accurate evidence” for decision-making regarding public employment.

In my view, the provision raises serious issues that could conflict with the Constitution because, in addition to creating a public registry containing public servants’ sensitive data, it must also be taken into account that the data would be collected automatically and that access to its contents appears to be unrestricted, subject only to what the administration considers timely and appropriate, without even the slightest judicial involvement. It must be recalled that the collection of personal data is subject to rules safeguarding the right to the protection of such data, as well as the data owner’s right to informational self-determination (autodeterminación informativa). Although those rules may be less stringent in the public sector, there must always be a law authorizing the collection under circumstances that are reasonable and consistent with the democratic principle, and judicial involvement must always be available when necessary.

In this specific case, the bill does not provide adequate justification for why it is necessary to create that registry; nor does it provide whether public servants will be able to authorize their inclusion in it; it does not determine which of their data will be recorded there; and still less does it establish the procedure through which individuals will have access to their information, obtain its correction, or learn the purposes for which it will be used in each specific case. Furthermore, it does not establish the level of protection that will be afforded to such data, since it merely states that they will be administered by Mideplán. This issue is highly significant, because it must not be forgotten that data stored in public registries are subject to restricted access. The bill should therefore provide, at a minimum, the essential conditions governing access to that registry, particularly considering that it may contain sensitive information.

In addition to the foregoing, given the seriousness of the matter, in my view, even though Article 12 provides that the integrated public-employment platform must comply with Ley 8968 on the Protection of Individuals with Regard to the Processing of Their Personal Data, the bill fails to address matters concerning the conduct of the persons who will enter information into those databases, as well as the possible sanctions that might apply if the information to which they have access is misused. This is because each public agency will have designated personnel, and across all the institutions, many individuals could have some form of contact with or ability to manipulate that information. In this area, it must not be forgotten that the registry may contain sensitive information and may also include data whose indiscriminate disclosure could seriously affect public institutions. This is particularly true with respect to the Judiciary and the Supreme Electoral Tribunal, whose employees must enjoy special institutional protection because of the nature of their duties, as may be the case for OIJ agents, prosecutors, public defenders, judges, or personnel closely connected with the electoral process, among others.

Consequently, in my view, the article could conflict with the Constitution because it fails to include matters such as those described above, which could result in serious violations of the fundamental rights of public servants who might be included in that integrated public-employment platform.

• k)Different grounds stated by Justice Garro Vargas regarding the unconstitutionality of Article 13 with respect to the Judiciary and the Supreme Electoral Tribunal Like the majority, I consider Art. 13 of the bill unconstitutional because it infringes the independence of the branches of government, with respect to both the Judicial Branch and the Tribunal Supremo de Elecciones. However, I believe that the unconstitutionality is not confined to the provisions of subsection f), as the majority declares, but extends to the article in its entirety. This is so because, if only subsection f) is declared unconstitutional, it could consequently be understood as constitutional for all other judicial officials who are not judges—but who are support personnel vital to the administration of justice (prosecutors, law clerks, professionals, judicial police officers, public defenders, etc.)—to remain within the general public employment system under the express governance of Mideplan.

Indeed, by understanding the judicial branch solely from the perspective of subsection f), that is, as referring only to judges and justices (persons who administer justice and justices of the Tribunal Supremo de Elecciones), all the particular characteristics and needs of the support personnel of those branches of the Republic are disregarded. In other words, that subsection is itself deficient, but its wording makes the others deficient as well. To explain this, one could say that it is a reality viewed from both a concave and a convex perspective. That is, from one angle, by covering only part of the judicial branch and the Tribunal Supremo de Elecciones, subsection f) disregards the reality that these institutions are composed—in addition to the justices and personnel who directly administer justice—of a broad range of support officials who are essential to the proper exercise of the constitutionally assigned powers.

But merely declaring subsection f) unconstitutional is insufficient, because declaring that subsection unconstitutional on its own could result in the remaining officials of the Judicial Branch or the Tribunal Supremo de Elecciones who are not justices or do not directly administer justice becoming subject to the governance of Mideplan. Therefore, viewed from the other angle, even though the remaining subsections were not included in the constitutional consultation (consulta de constitucionalidad), it is clear that this provision must be examined in its entirety. It should be recalled that, when responding to a constitutional consultation, the Chamber must rule on the issues and grounds submitted for consultation, but may also rule “on any others it considers relevant from a constitutional standpoint” (Art. 101, first paragraph, of the LJC). Consequently, even though only subsection f) was submitted for consultation, as a matter of pure legal and logical derivation, it is clear that, from a constitutional standpoint, the article is tainted by unconstitutionality insofar as the creation of job families (familias de puestos) disregards the particular characteristics and institutional structure of the branches of the Republic in carrying out the function of administering justice or organizing elections, because it associates that function solely with justices and persons who administer justice.

It should be noted that Art. 13 itself provides that “The creation of public-employment job families is reserved to statute and must be justified by technical and legal criteria consistent with efficient and effective public administration,” a provision that must also be examined together with Art. 32 of the bill, which directs that “Each occupational family shall consist of a series of grades, each of which represents a group of positions with a similar profile. The Ministerio de Planificación Nacional y Política Económica (Mideplán) shall define the number of grades required within each occupational family, as well as their characteristics, on the basis of an evaluation of all positions within the occupational family.” It must therefore be reiterated that, if only subsection f) is declared unconstitutional, there is a risk that the remaining personnel of the Judicial Branch and the Tribunal Supremo de Elecciones will be placed—as they in fact are—in other “job families,” whose evaluation and definition would be entrusted to a body external to those branches. This would create a dangerous loophole through which a ministry of the Executive Branch could interfere in the personnel administration of those branches, thereby infringing their independence.

• l)Different grounds of Justice Picado Brenes regarding Article 13 of the bill with respect to the job-family groups of the Judicial Branch and the Tribunal Supremo de Elecciones (point 11 of the Por tanto) The Chamber has unanimously held that Article 13, subsection f), is unconstitutional because it infringes the independence of the branches of government with respect to both the Judicial Branch and the TSE. In this regard, as far as my own view is concerned, I consider it necessary and appropriate to make several clarifications.

It should be noted that Article 13 of the Ley Marco de Empleo Público refers to the General Public Employment System and is located in Chapter IV, Organization of Work. That provision of the bill establishes that there will be a single general public employment system consisting of 8 job families, which will apply to the bodies and entities of the Public Administration according to the functions performed by the personnel of each. Those 8 job families will be as follows:

• a)Public servants falling within the scope of Title I and Title IV of the Estatuto de Servicio Civil, as well as those working in the institutions identified in Article 2 of this law who are not included in the remaining job families.
• b)Public servants performing health-science functions.
• c)Public servants performing police functions.
• d)Teaching personnel covered by Title II and Title IV of the Estatuto del Servicio Civil.
• e)Teaching and academic personnel in technical and higher education.
• f)Persons who administer justice and the justices of the Tribunal Supremo de Elecciones (TSE).
• g)Public servants performing foreign-service functions.
• h)Public servants holding positions of trust (cargos de confianza).

It should be noted that the article is drafted in generic and imprecise terms, which will cause serious problems in interpreting its scope and will also make it impossible to determine certain matters of fundamental importance. In that regard, I consider it inappropriate to group a particular category of workers into a single group or job family merely because they belong to that category, since even if they all perform the same general function—for example, serving as police officers—the particular characteristics of each will differ depending on their workplace, the objectives toward which their work is directed, and the purposes assigned to the institution to which they belong. To explain this more clearly, consider the police officers working in the general field of public safety, a subject that is currently assigned to several State bodies, such that the police forces responsible for it operate according to the specific criteria and objectives of the institution to which they belong.

Nevertheless, in seeking to unify all police forces under a single public employment system, it is unclear what would happen in practice to the diverse forces that exist in the country, namely, the penitentiary police, administrative police, migration police, municipal police, traffic police, and the police of the Organismo de Investigación Judicial, among others. It is more than evident that the operational objectives of the migration police are entirely different from those of the penitentiary police; they pursue different objectives and, therefore, human-resource management could not be uniform. In my view, this would once again violate the principle of separation of powers protected by Article 9 of the Constitución Política because, I insist, it cannot casually be provided that a body of the Executive Branch may issue directives and orders to the country’s different police forces when they belong to another Branch of the Republic, or, as in the case of the Organismo de Investigación Judicial, when it is the specialized technical police force of the Judicial Branch and its functions are entirely different from those of the Fuerza Pública or any other police force in the country.

Turning now to the specific situation of the Judicial Branch, its human-resource management would encompass at least 5 job families:

• a)Public servants of the Judicial Branch who perform health-science functions: this category would probably include workers of the Organismo de Investigación Judicial who work in the Departamento de Medicina Legal, performing highly specific functions and serving highly specific purposes in assisting with the administration of justice, as well as in certain administrative areas—for example, evaluating employees who exceed the periods of incapacity established by the CCSS. However, it is also quite possible that this category would include those who work for the Servicio Médico de Empresa, which clearly serves very different objectives.
• b)Public servants performing police functions: as stated supra, it is not valid to seek to include police officers of the Ministerio de Seguridad Pública and police officers of the Organismo de Investigación Judicial in the same job family, because their objectives, training, targets, and purposes are entirely different and, therefore, their courses of action are too incompatible to maintain that, notwithstanding their nature, the directives governing them should be uniform.
• c)Persons who administer justice and justices: the specific function of administering justice performed by judges and justices is highly specialized and is protected and safeguarded by various constitutional principles, including judicial independence and separation of powers; however, it would be inconsistent for the provision not to include other officials who, holding the rank of judge, perform functions similar to those of judges and necessary for the administration of justice, such as case-processing judges or law clerks (letrados) of the four Chambers of the Corte Suprema de Justicia. The provision therefore discriminates against a group of workers, while also appearing to exclude those who administer justice at the administrative level and who, under the current nomenclature, even hold the rank of judge, as would be the case of the members of the various administrative tribunals existing in the country or the judges of the Inspección Judicial del Poder Judicial.

The independence of the Poder Judicial does not allow any employee to be excluded from its legal regulation, because all of them are part of the machinery necessary to achieve efficient and effective administration of justice, in which not only judges and justices participate, but also the custodian who cleans the offices, the process server who informs the parties of the situation, the driver who transports the justice, the judicial police officer who transports persons deprived of liberty, the public defender who defends them, the prosecutor who brings criminal proceedings on behalf of the State, and the many other officials of the Poder Judicial who take part in this machinery and are a very important part of the entire Poder Judicial. At this point, it must be stated that these kinds of divisions between those who are and those who are not included in the public employment system will also violate the principles of equality and nondiscrimination, since it is contradictory for employees who are all working toward the same constitutionally assigned purpose of the Poder Judicial to belong to different public employment systems with differing objectives and guidelines.

The majority opinion states that those who actually exercise adjudicative authority (función jurisdiccional) must be included and that each Branch of Government will determine who constitutes such personnel; however, it must not be forgotten that, in order to issue a judgment and ensure its enforcement—the ultimate purpose of the Poder Judicial—the participation of the summons server, process server, judicial police officer, judicial technician, custodian, administrative personnel who process payroll and salaries, expert witnesses, drivers, social workers, forensic psychologists, trainers, and more than 200 categories of employees within the Poder Judicial is indispensable; all are essential to the administration of justice.

• d)Public servants holding positions of trust (cargos de confianza): within the Poder Judicial, several positions have been given this classification, including the secretaries and drivers of justices, some law clerks subject to the new system, and others. The question therefore arises as to how these persons will stand under the new system and whether they will retain any kind of right or whether, on the contrary, under the pretext of the new nomenclature, they could be dismissed on the grounds that they are trusted personnel and replaced in those positions—as a body of the Executive Branch would be entitled to do—with other persons who do not necessarily meet the requirements for working in the Poder Judicial. At this point, serious doubts arise regarding how a body of the Executive Branch might manage “positions of trust,” particularly if they were used to satisfy political interests or commitments. This concern is reasonable because the provision establishes no requirement or condition for entry into that job family (familia de puestos), and because no other provision of the bill defines what will be understood as a “position of trust,” not even section 5, which is supposedly intended to contain all definitions of the terminology used in that bill.
• e)persons working in the institutions identified in Article 2 of this law—which includes the Poder Judicial—who are not included in the remaining job families: at this point, it can be seen that, by exclusion, the remaining personnel of the Poder Judicial who did not fit within any of the seven preceding job families would be included in this one. In practice, what would simply happen is that, whenever there was uncertainty, a lack of knowledge about the nature of a position, or a lack of understanding of the duties performed by the personnel, they would be classified under this item, with the serious consequence that such diverse persons and positions could be grouped under the same framework that it would be impossible to subject them to a unified system governing public employment. Consider, for example, a high-caliber researcher with a highly specific professional profile, perhaps engaged in work involving a certain degree of confidentiality within the Poder Judicial, whose duties do not fall within any of the other seven families created by section 13 and who, because the nature of the work is unclear due to its secrecy, would have to be included in this family; at the same time, that researcher would share this classification with an unskilled laborer who is likewise not covered by the other job families and would also be included here.

This would undoubtedly create highly disparate situations that could not possibly be unified under a single set of rules and guidelines, as the bill under consideration seeks to do. In a context such as the one described, it would be entirely inappropriate for a body of the Executive Branch—Mideplán—to seek to impose similar human-resources management rules on such different public servants, thereby causing not only violations of the principles of equality and nondiscrimination, but also serious infringements—in this case against the Poder Judicial—of its independence and autonomy in managing its human resources.

Furthermore, note that Article 13 establishes that each of these eight job families must have an assessment of working conditions, an occupational health program (programa de salud ocupacional), and safety protocols to safeguard workers’ lives. In this regard, it is necessary to be realistic: the matter is already quite complex and even inadequately regulated in many public workplaces, despite each institution having authority to manage it in accordance with its characteristics and objectives. One must therefore imagine how it would operate under this Ley Marco de Empleo Público, where the guidelines would not be specific to the small group of workers at each institution but would instead have to be broad in scope because they would have to encompass all institutions within the law’s coverage. This would undoubtedly create a resource crisis in addressing all matters relating to occupational health and safety (salud y seguridad ocupacional), as well as conflicts between institutions that provide better protections than others, claims by workers, and, of course, violations of various constitutional principles because, once again, this issue is directly related to human talent management (gestión del talento humano) and must address the purposes and powers of each institution rather than general criteria imposed by a body of the Executive Branch.

In this respect, occupational health and safety guidelines for employees of the Poder Judicial could never be the same as those issued for a Ministry or another institution whose functions are more administrative in nature; even within the Poder Judicial, such measures could never be the same in the Medicatura Forense del Organismo de Investigación Judicial as those applicable to the Departamento Financiero Contable. Thus, if different guidelines can be developed within a single institution, this is all the more true when the entire Costa Rican State is concerned. At least within each institution, there is certainty that every effort will be made in light of the institution’s objectives and purposes and with due regard for workers’ rights, but this would not necessarily occur when the needs of all public servants must be addressed with limited resources. The situation would be even more serious when personnel are transferred from one institution to another—because it must not be forgotten that the bill provides for the possibility of moving employees—and a person is moved from an environment that respects occupational health standards to another that does not meet those standards.

All of the foregoing is equally applicable to the Tribunal Supremo de Elecciones, and Article 13 is therefore also unconstitutional with respect to that body, since all its officials would become part of the general public employment system and be included in one of these eight job families, notwithstanding the guarantee of independence granted to that Tribunal by the Constitución Política in its Articles 9 and 99. This conclusion rests on the fact that governance of the judiciary and governance of the electoral body are exercised, respectively, by the Corte Suprema de Justicia and the Tribunal Supremo de Elecciones, exclusively and to the exclusion of all others with respect to their constitutional powers. Accordingly, if job families are to be established, doing so falls exclusively to each Branch of Government; consequently, it must be within the sole authority of the Tribunal Supremo de Elecciones and the Poder Judicial.

• m)Separate opinion of Justices Garro Vargas and Picado Brenes, drafted by the latter, regarding Article 19 of the bill insofar as it concerns Transfers or Position Mobility (point 18 of the Por Tanto) Although I agree with the unanimous view that the consultation concerning Article 19 of the bill under consideration is incapable of being answered (consulta inevacuable), I also believe that, given the significance of the provisions of this article for the Poder Judicial and the Tribunal Supremo de Elecciones, it is important to make several observations in this regard. Even though the parties submitting the consultation did not adequately explain why they believe that Article 19 of the bill under consideration could infringe Constitutional Law (Derecho de la Constitución), the fact remains that, in my view, the provision is drafted in quite broad terms, which could create serious constitutional problems for the following reasons.

First, I must point out that because the bill seeks to consolidate all regulations governing public employment (empleo público) into a single body of law, centralizing governance authority (rectoría) over the system in a single body of the Poder Ejecutivo, including matters relating to mobility (movilidad), there is a risk that the specific characteristics of each worker or of the different areas of work comprising the Administración Pública will be lost. As rules are generalized, specialization is lost, and this may also undermine the merit principle (principio de idoneidad) protected by Articles 191 and 192 of the Constitución Política. This could be exacerbated because Article 19 under consideration allows transfers (traslados) within and between entities and bodies included in the public-employment regime (régimen de empleo público); consequently, it would be difficult for a person specializing in a particular field to perform properly and competently if transferred to another department whose requirements do not match that person’s knowledge and experience.

Second, I must state that the wording of the provision would permit indiscriminate transfers on the grounds that they serve the public interest (interés público) or an institutional need (necesidad institucional), thereby placing the Administración at risk of losing efficiency and effectiveness in its operations and, more seriously, potentially causing substantial harm to the individual subject to administrative action (administrado). Third, the provision establishes no limits or restrictions; consequently, the application of such mobility would be left to the unfettered discretion of unspecified officials, and this could unquestionably encourage the use of subjective criteria in making personnel transfers that, ultimately, rather than furthering the public interest and institutional needs, could allow other kinds of interests to intrude into the various public institutions. It must not be forgotten that the body having governance authority over this matter belongs to the Poder Ejecutivo, with all the political implications inherently associated with it.

In the specific case of the Poder Judicial, I believe that allowing a body of the Poder Ejecutivo, such as Mideplán, to interfere in decision-making concerning mobility in public employment would have a dangerous impact on the exercise of the adjudicative function (función jurisdiccional) vested in the Poder Judicial, as well as on the essential administrative duties supporting that primary function. Nor may it be overlooked that, ultimately, given the function entrusted to the Poder Judicial, the resulting impact would extend to every employment rank within the institution. In my view, it would be unthinkable for Article 19 to be applied, under subjective criteria disguised as public interest or institutional need, in an attempt to transfer a Judge of the Republic to perform other duties for which the judge was not appointed and for which the judge lacks the requisite competence. Similarly, it would be unimaginable to transfer an experienced police officer to perform administrative or desk duties in a public agency wholly unrelated to police work.

It should be noted that, regarding mobility, Mideplán would be granted governance authority with broad powers to issue “general provisions, directives, and regulations,” which is considered contrary to the line of precedent (línea jurisprudencial) maintained by the Sala regarding the impropriety of an external body assuming governance authority over, or unilaterally imposing criteria upon, the Poder Judicial in matters concerning its employment relationships with its personnel, given that the Sala has endorsed the existence, appropriateness, and necessity of a special public-employment regime for the personnel of the Poder Judicial (see voto n°2018-019511). In my opinion, assigning public-employment powers to a body of the Poder Ejecutivo—a body of the Poder Ejecutivo vested with powers so broad that it could issue orders to the Poder Judicial in this area—also plainly violates, as has been noted, the exclusive and preclusive powers (competencias exclusivas y excluyentes) of the Corte Suprema de Justicia set forth in Article 156 of the Constitution (“The Corte Suprema de Justicia is the highest court of the Poder Judicial, and the courts, officials, and employees of the judicial branch are subordinate to it, without prejudice to the provisions of this Constitution concerning the civil service.”).

This confirms that Mideplán, a body of the Poder Ejecutivo, would assume a series of constitutional powers belonging to the Corte Suprema de Justicia and relating to its governance of the Poder Judicial. Following this line of reasoning, I believe that Article 19 under consideration could raise serious constitutional conflicts and violate the principles of independence and autonomy of the Poder Judicial, as well as the separation of powers. It should be recalled that judicial independence (independencia judicial) refers not only to the independence of judgment of the adjudicator but also to a series of manifestations in the administrative, financial, and operational spheres, which necessarily mean that no body belonging to another Branch of the Republic may interfere in the Poder Judicial. Indeed, a comprehensive examination of the bill submitted for consultation shows that the “General Public Employment System” (Sistema General de Empleo Público), which designates the Ministerio de Planificación Nacional y Política Económica (Mideplán) as its governing body (ente rector), encroaches upon the administration of the human resources of the Poder Judicial.

The economic, personal, functional, organizational, and institutional independence of both the Poder Judicial itself and judges and officers of the court is essential in a Constitutional State governed by the rule of law (Estado Constitucional de Derecho). Under this principle, each branch is independent of the others, and every State body must be able to perform its function independently of the others (Art. 9° of the Constitution); although they may interact, there may never be subordination. Moreover, this entails not only a violation of the principles of separation of functions and judicial independence, but also an infringement of the entire democratic system and structure of governmental power established by the Constituent Assembly (Constituyente) in our State governed by the rule of law, because the bill submitted for consultation—as a whole—seeks extreme centralization, contrary to the decentralization process established by the Constituent Assembly, and additionally violates the principle of separation of powers, particularly judicial independence.

I likewise believe that the foregoing applies fully to the Tribunal Supremo de Elecciones because, pursuant to Article 99 of the Constitución Política, it enjoys independence in the performance of its mandate; this independence also encompasses the economic, personal, functional, organizational, and institutional spheres. It would therefore be unconstitutional to seek to subject that Tribunal to a “General Public Employment System” that designates the Ministerio de Planificación Nacional y Política Económica (Mideplán) as its governing body and grants it powers placing it above the Tribunal Supremo de Elecciones itself in matters involving human-resources administration. Consistent with this position, rules exist that prevent a person who served as a judge from practicing law immediately after retirement, or a person from one Branch of the Republic from working in another. Their precise purpose is to prevent influence peddling (tráfico de influencias) or improper relationships.

Extreme situations could arise, such as the transfer of any employee of the Poder Ejecutivo to the Tribunal Supremo de Elecciones to perform electoral work, or equally concerning situations such as the transfer of a police officer from the Ministerio de Seguridad or a Municipalidad to the Organismo de Investigación Judicial.

• n)Separate opinion (nota separada) of Justice Picado Brenes concerning Article 31 of the bill with respect to the Job Evaluation Methodology (Metodología de Valoración del Trabajo) (item 20 of the Por Tanto) Although I agree with the unanimous view that the consultation concerning Article 31 of the bill under consideration is incapable of being answered, I nevertheless believe that, given the significance of the provisions of this article for the Poder Judicial and the Tribunal Supremo de Elecciones, Article 31 must be carefully examined, since it imposes important obligations on public servants (servidores públicos) that will serve as the basis for evaluating their work. Accordingly, for the article to be applicable, many factors must be taken into account to ensure that it does not result in violations of workers’ fundamental rights (derechos fundamentales).

Given that the overarching objective of the bill is to subject the entire State apparatus to a single system regulating public employment and to centralize all governance authority over it in a body of the Poder Ejecutivo (Mideplán), this will inevitably entail generalizing a series of guidelines, principles, methodologies, and procedures so that this single system may be applied uniformly to all sectors included in the proposal. This general approach carries a series of implications for the Administración and the State, beginning with the subjection of all departments and bodies to the decisions adopted by the Poder Ejecutivo through Mideplán—in my view, in clear violation of the principle of separation of powers, as I have previously maintained.

As regards the Poder Judicial, although the bill submitted for consultation provides that it shall apply to the Poder Judicial “without prejudice to the principle of separation of Branches established in the Constitución Política”—a requirement already imposed by the Constitution itself—the fact remains that a comprehensive reading of the bill leads to the conclusion that compliance with that principle is not firmly guaranteed. On the contrary, the provisions of the bill have the general objective of subjecting all Branches of the Republic—including the Poder Judicial—to the governance authority of Mideplán and the technical criteria of the Dirección General de Servicio Civil; it is therefore more than evident that this principle is completely undermined by the bill’s provisions as a whole.

In the specific case of Article 31 under review, it is observed that this body will specify the job-evaluation methodology (metodología de valoración del trabajo) for the public service, which would be implemented through a point-factor system under which scores will be assigned to jobs based on an analysis of the relevant job factors, all at Mideplán’s discretion. In the particular case of the Judicial Branch, this would mean that an external entity would unilaterally impose human-resources criteria, including the assessment to be made of staff work, with a direct and substantial impact on the exercise of the Judicial Branch’s jurisdictional function (función jurisdiccional) and on the essential administrative functions supporting that primary function. This would occur without taking into consideration that the Constitutional Chamber itself has stated “that performance evaluation and decision-making authority in labor matters, whether general or specific, are already governed by the aforementioned regulatory framework of the Judicial Branch, making it impossible for an external entity to assume ‘governing authority’ or impose criteria on that Branch.

Furthermore, that regulatory framework is designed to ensure the efficiency of the judicial function and protect judicial personnel from external interference (…) (see judgment nº 2018-019511 of 21:45 hours on 23 de noviembre de 2018),” and that the Chamber has also held that the Judicial Branch’s special regulations on these matters cannot be “tacitly repealed by a subsequent general rule” (rulings n°01265-1995 and 2017-003450). Now, as has been stated, if the Judicial Branch is a mechanism composed of multiple interconnected parts, all of which are important and necessary, the effect of this provision would extend to the entire Judicial Branch and not only to those who administer justice, perform auxiliary functions, or carry out administrative duties. I must again indicate that dividing personnel into categories in these terms would also violate the principle of equality and non-discrimination (principio de igualdad y no discriminación).

The foregoing also raises the question of how a body of the Executive Branch, entirely external to the Judicial Branch and lacking advanced knowledge of the jurisdictional function, could define the relevant and specific job factors required of Judicial Branch personnel in areas as diverse as forensic practice, the administration of justice, auxiliary police functions, the work performed by the Unidad Canina, and the duties of the Ministerio Público, among the many other complex activities carried out within the Judicial Branch and its auxiliary bodies. These activities possess their own particular specificity, which does not exist in any other Branch of the Republic and cannot exist elsewhere, because there is only one Judicial Branch in a State governed by the rule of law (Estado de Derecho). Thus, in my view, how could that executive body determine with absolute certainty which of the aspects governed by the cited Article 31 should be given greater or lesser weight for inclusion in an evaluation of the work of judicial personnel?

Likewise, in my opinion, the answer would necessarily entail that this body—Mideplán—interfere with powers vested exclusively in the Supreme Court of Justice, as set forth in Article 156 of the Constitution (“The Supreme Court of Justice is the highest court of the Judicial Branch, and the courts, officials, and employees in the judicial field are subordinate to it, without prejudice to the provisions of this Constitution concerning the civil service.”); in other words, it would constitute a clear violation of the principle of separation of powers (principio de separación de Poderes) and the principle of judicial independence (principio de independencia judicial), both protected by the Political Constitution. It should be recalled once again that judicial independence refers not only to the adjudicator’s independence of judgment, but also to a series of safeguards in the administrative, financial, and operational spheres, which necessarily mean that no body belonging to another Branch of the Republic may interfere with the Judicial Branch.

Certainly, this “General Public Employment System,” which places the Ministry of National Planning and Economic Policy (Mideplán) at its head as governing body (ente rector), encroaches upon the Judicial Branch’s administration and management of human talent and allows Mideplán to issue specific orders to the Judicial Branch concerning the organization of its employment management: from how knowledge, competency, and psychometric tests for personnel selection are designed and the criteria used in them, to the precise manner in which internal and external competitive selection processes (concursos internos y externos) must be conducted and, as relevant to this Article 31, how its job-evaluation and assessment processes must be carried out. In doing so, its provisions disregard the special rules—including rules having the force of law—governing the service of Judicial Branch employees within the institution.

In another vein, although some of the items contemplated in Article 31 of the bill under review might be useful for classifying certain jobs within the Judicial Branch—such as required knowledge and experience, the degree of discretion in decision-making, availability, and the complexity of the work, among others—it is also true that many of them could not be taken into account because of the specific nature of the functions performed within the Judicial Branch. Conversely, there are other fundamentally relevant aspects that should be considered but are not included in Article 31. This is so precisely because, as stated above, the objective of applying a single public-employment system necessarily entails undermining the particular nature of the jurisdictional function, its related duties, the duties of judicial auxiliaries, administrative duties, and, in general, all work carried out in the various departments of that Branch of the Republic.

Another aspect that must be analyzed in connection with Article 31 is the fact that the provision’s broadly worded language would allow subjective criteria to intrude when assigning relative weight to each of the factors identified therein, since it does not include objective parameters for establishing a job-evaluation methodology more closely aligned with the principles of demonstrated suitability (idoneidad comprobada) protected under Articles 191 and 192 of the Political Constitution and consistent with the specific nature of the work performed within the Judicial Branch.

I conclude that, in light of this situation, any provision subjecting the Judicial Branch to orders, supervision, or directives from the Executive Branch is unconstitutional because it violates the principles of separation of functions and judicial independence, as well as the democratic system and the organization of governmental power established by the Constituent Assembly in our State governed by the rule of law.

• ñ)Dissenting opinion (Voto salvado) of Justices Castillo Víquez, Hernández López, and Salazar Alvarado, drafted by the first-named Justice, concerning Article 49, subsection b From our perspective, we respectfully dissent because subsection b) of Article 49 of the bill bears no relationship whatsoever to the constitutional powers of the Judicial Branch. It concerns a matter belonging to the internal operations of a Public Administration body—determining who exhausts administrative remedies (agota la vía administrativa), granting it instrumental or budgetary legal personality (personalidad jurídica instrumental o presupuestaria), and conferring upon it statutory authority to ensure efficiency—and therefore the proper course is to dissent on the grounds explained above.
• o)Dissenting opinion of Justice Castillo Víquez and Justice Hernández López, drafted by the first-named Justice, concerning Article 49, subsections g and h With customary respect, we dissent and declare that subsections g) and h) of Article 49 of the bill under consultation are not unconstitutional, for the elementary reason that coordination authority (potestad de coordinación) does not entail the exercise of directive authority (potestad de dirección), much less hierarchical authority (potestad jerárquica), and consequently the independence of the Judicial Branch remains intact. It must be borne in mind that coordination is a legal-administrative function (función jurídico-administrativa) to which the Public Administration resorts when a matter exceeds the authority of a single body or entity and concerns several of them; when the complexity of the matter requires the joint efforts of several bodies or entities; or when such action is necessary to make effective, efficient, and sound use of public funds, among other circumstances.

It therefore becomes necessary to combine efforts, resources, and commitments, among other things, to provide a comprehensive and sustainable solution to a particular problem or successfully address a challenge that the Public Administration must tackle without delay in order to objectively satisfy the public interest. In all these and other circumstances, it cannot be maintained that coordination work or functions violate the principle of judicial independence.

XI. Regarding the consultation concerning violation of University Autonomy.-

• 1)Matters submitted for consultation The consulting legislators consider that the following articles of the bill entitled “FRAMEWORK LAW ON PUBLIC EMPLOYMENT,” which is being processed under legislative expediente n° 21.336, violate university autonomy (autonomía universitaria). Specifically, they request review of the following articles, as identified either in the heading of the general title or elsewhere in the text of the filing:

 6 (governing authority of Mideplan),  7 (powers of Mideplan),  9.a (Human Resources offices),  11 (employment planning),  13 (job families),  14 (recruitment and selection),  15 and 16 (recruitment and selection principles and job postings),  17 (Senior Management personnel),  30 (compensation-management principles)  31 (job evaluation)  32 (grades within job families)  33 (job classification)  34 (global salary scale)  35 (unified salary regime)  36 (compensation policy)  37.f) (global salary of rectors) In this regard, the first point to be made is that, concerning Articles 11 (employment planning), 15 (recruitment and selection principles), and 16 (job offers), the petitioners do not provide sufficient grounds to enable this Chamber to clearly understand the matters submitted for consultation; consequently, the consultation is declared inadmissible for review with respect to those articles.

A detailed reading of this argument advanced by the petitioners leads to the conclusion that it does not constitute a constitutional challenge being submitted to the Chamber, but rather a kind of complaint that lacks proper substantiation of the reasons why the legislators believe that it might conflict in some way with Constitutional Law. It should be noted that this is merely a statement asserting that those articles of the bill could contravene university autonomy, without indicating the grounds or reasons why this might or might not be the case and without identifying the constitutional principles or provisions that could potentially be infringed. In other words, it contains no clear reasoning setting forth the arguments that, in the petitioners’ view, would render the provision unconstitutional. Accordingly, it fails to satisfy the requirement established in Article 99 of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional), under which the consultation must be submitted in a reasoned petition specifying the challenged aspects of the bill and the grounds for the constitutional doubts or objections.

Therefore, the constitutional consultation concerning the bill entitled “FRAMEWORK LAW ON PUBLIC EMPLOYMENT,” under consideration in legislative file n°21.336, is declared inadmissible for review with respect to Articles 11 (employment planning), 15 (recruitment and selection principles), and 16 (job offers), for lack of adequate constitutional grounds.

As for the remaining articles submitted for consultation, the petitioning legislators consider them unconstitutional because they violate the principle of university autonomy (autonomía universitaria) enshrined in Articles 84, 85, and 87 of the Political Constitution. They contend that university autonomy is violated by subjecting teaching and research personnel at higher-education institutions to an employment regime (régimen de empleo), development plans, compensation systems (regímenes salariales), performance evaluations, guidelines, orders, instructions, and circulars issued by Mideplán and, in certain cases, by the General Directorate of the Civil Service (Dirección General de Servicio Civil) and the Budgetary Authority (Autoridad Presupuestaria). By establishing Mideplán as the governing body (órgano rector) (art.6) and defining its powers (art.7), that Ministry will not merely design the general guidelines for public-employment policy, but will issue specific orders for organizing 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 competitive selection procedures (concursos internos y externos) must be conducted, how each entity must carry out its evaluation processes, and how it must design its internal compensation and oversight policy; this exceeds the powers of direction and coordination.

University human-resources offices are required to bring knowledge, competency, and psychometric tests, as well as internal and external competitive examinations based on qualifications and merit (concursos por oposición y méritos), into compliance with the rules of the Dirección General de Servicio Civil. Universities will be required to appoint teaching personnel in accordance with the orders established on the matter by the Dirección General de Servicio Civil. The bill does not provide for the possibility of salary differentials based on merit, including knowledge, experience, and knowledge production as grounds for such differentials, even though these are essential for the Universities. They argue that the bill is unreasonable and disproportionate because there are no studies demonstrating the purported savings to public finances resulting from the inclusion of universities in the bill, since their budget is unrelated to the maintenance of the Central Administration’s public finances.

It is impossible to overlook the magnitude of the power that this bill grants to the Executive Branch to regulate, supervise, and influence universities’ employment relationships, which would subject critical thought to the political class.

Each of the challenged articles is analyzed separately below. First, a summary of the case law (jurisprudencia) concerning university autonomy is provided as context for the examination of each article submitted for consultation.

• 2)Case-Law Background on University Autonomy Pursuant to Constitutional Article 84 (“ARTICLE 84.- The Universidad de Costa Rica is an institution of higher culture that enjoys independence in the performance of its functions and full legal capacity to acquire rights and undertake obligations, as well as to establish its own organization and governance. The other State university-level higher-education institutions shall enjoy the same functional independence and legal capacity as the Universidad de Costa Rica. // The State shall provide them with their own assets and shall contribute to their financing.”), public universities, or state universities, enjoy a special degree of autonomy known as university autonomy. Under constitutional case law, this autonomy encompasses administrative, political, financial, and organizational autonomy. Public universities therefore possess all the administrative authority and powers necessary to carry out their mission.

They may accordingly determine their own affairs, in the sense that they are empowered to establish their plans, programs, budgets, and internal organization and to structure their own governance, all within the limits established by the Political Constitution itself and the special laws governing their organization and operation (see voto n°2012-011473). The Political Constitution provides that universities enjoy independence in the performance of their functions and full legal capacity to acquire rights and undertake obligations, as well as to establish their own organization and governance. The Chamber’s line of case law has clearly established that public universities possess the highest degree of autonomy, namely, self-organizational autonomy (autonomía autoorganizativa) or full autonomy (autonomía plena). This autonomy, which has been classified as special, is complete and therefore differs from that of the other decentralized entities (entes descentralizados) in our legal system (which are regulated primarily in another part of the Political Charter: Articles 188 and 190); it means that universities fall outside the direction and hierarchy of the Executive Branch and possess all the administrative authority and powers necessary to fulfill the special purpose legitimately entrusted to them.

They may determine their own affairs, in the sense that they are empowered to establish their own plans, programs, budgets, and internal organization and to structure their governance. Public universities also possess regulatory authority (potestad reglamentaria), both autonomous and implementing; they may structure themselves, allocate their powers within the entity’s internal sphere, devolve authority to the extent legally possible and permissible, regulate the services they provide, and freely make decisions concerning their personnel. All of these are powers arising from the administrative, political, organizational, and financial forms of autonomy vested in public universities. The principal purpose of university autonomy is to provide the entity with all the legal conditions necessary for it to independently carry out its mission of higher culture and education. (See judgments n°1992-495, n°1993-1313, n°2002-8867, and n°2008-013091.) This is apparent from the words of Constituent Assembly member Fernando Baudrit, who stated:

“What we seek is to protect the Universidad from the threat of future Congresses driven by petty political interests ... Tomorrow, if the Universidad does not adapt to the prevailing political environment, a Congress intent on eliminating it could easily do so by reducing the State subsidy. I have already said that, were we not living under the current regime, the Universidad would have disappeared or would have become a compliant dependency of the Executive Branch. A plan to that effect was already being devised in this very chamber by the last Congress. Even the names of the individuals who were to replace us in the leadership of the Universidad were being discussed. Who can assure us that a similar situation could not arise in the future? It is precisely to prevent this from occurring that it is necessary—indeed indispensable—to grant the Universidad de Costa Rica genuine administrative, academic, and economic independence.” (Acta 160, 4/X/1949, tomo III, p.395.)”.

This is closely related to universities’ academic freedom (libertad de cátedra) and to their role as crucibles—that is, settings in which widely diverse ideas merge—for the creation of thought, criticism, and knowledge. This is a fundamental function in every democratic society. Thus, the autonomy of public universities protects them from the Executive Branch and the rest of the Public Administration, as well as from legislation, by preventing the legislature from delegating to administrative authorities powers capable of imposing decisions on universities in matters within their authority, such as the regulation of courses, community engagement (acción social), research, entrance examinations, and the conferral of university degrees, among others, as this Chamber has repeatedly held in judgments n°1993-1313 and n°1996-276).

University autonomy is necessary for the institution to fulfill its objectives, which would be at risk of obstruction if interference by the Executive and Legislative Branches were permitted. This Chamber has warned that public universities are not merely educational institutions, but pursue higher purposes tied to the development of the country generally and Costa Ricans particularly. Specifically, it stated: (…) The principal purpose of university autonomy is to provide the entity with all the legal conditions necessary for it to independently carry out its mission of higher culture and education. In that regard, the Universidad is not merely an educational institution (…), for it bears the complex function, integral to its nature, of conducting and advancing scientific research; cultivating the arts and letters in their highest expression; analyzing and critiquing, with objectivity, knowledge, and a high degree of rationality, the social, cultural, political, and economic reality of its people and the world; proposing solutions to major problems; and therefore, in the case of underdeveloped or less-developed countries such as ours, promoting ideas and actions aimed at achieving development at every level—spiritual, scientific, and material—and thereby contributing to the effective realization of the fundamental values of Costa Rican identity, which may be summarized … as democracy, the Social Rule-of-Law State (Estado Social de Derecho), the essential dignity of the human being, and the ‘system of liberty,’ in addition to peace (Article 12 of the Political Constitution) and Justice (41 ibid.); in short, … the Universidad, as a center of free thought, must be and remain free from pressures or measures of any kind that tend to prevent it from fulfilling, or that threaten, its great mission (…)” (judgment n°2008-013091) In analyzing the issue of university autonomy (autonomía universitaria), the Sala Constitucional has delved into highly specific aspects that affect the realization of that autonomy, such as matters relating to the salaries of university officials.

Thus, in judgment n° 2015-10248, it addressed the issue of salaries in the following terms: “…the university autonomy enjoyed by public higher-education institutions (established at the constitutional level) extends to allowing them—through their highest governing bodies—to establish the manner in which they will determine the compensation scheme (régimen remunerativo) for their employees, ‘…while always observing the basic constitutional principles governing the entire public apparatus, such as reasonableness and proportionality, as well as the adequate safeguarding of public finances (…).’ However, in exercising its autonomy, UNED may recognize annual increments (anualidades) on a differentiated basis for persons who previously worked outside that institution, since the particular nature of university operations and administration justifies assessing differently an annual increment earned at another public entity and one earned within the university itself.

It is therefore reasonable for time served within UNED’s organizational structure to receive a larger salary supplement (plus salarial) than time worked at other public entities.” Regarding the limitations on this autonomy, first, judgments n°2016-02419 and n°2016-18087 may be cited, in which the Sala addressed the constitutional principles governing public employment (empleo público) and conducted a balancing test (juicio de ponderación) between two constitutional principles: university autonomy (Article 84, paragraph 1, of the Constitution) and the principle of a merit-based system (sistema de méritos) for entering public service through demonstrated suitability (idoneidad comprobada) (Article 192 of the Constitution). The Sala favored the latter and stated that, notwithstanding their autonomy, public universities are subject to the constitutional principles, values, provisions, and case law interpreting them:

“Full or third-degree autonomy (autonomía plena o del tercer grado), as granted to public universities in Article 84, paragraph 1, of the Constitution, also has insurmountable limits and therefore cannot under any circumstances be understood as an indeterminate legal concept (concepto jurídico indeterminado) that grants university-level higher-education institutions indeterminate and open-ended authority. Autonomy is a concept of constitutional Administrative Law (Derecho Administrativo constitucional) that must obviously be understood within the parameters of the Constitutional State under the Rule of Law (Estado Constitucional de Derecho). Certainly, as this Court has repeatedly held, such university autonomy empowers them to enact their own fundamental legal rules of organization. However, that authority may not be exceeded because it is unquestionably limited by the Law of the Constitution (Derecho de la Constitución), that is, by constitutional values, principles, provisions, and case law.

Universities certainly enjoy autonomy, but not sovereignty; sovereignty belongs solely to the State itself. It cannot be understood, at the risk of fragmenting sovereignty, that universities may constitute themselves as a kind of microstate within the Costa Rican State itself. There can be no doubt that, when exercising their autonomy, public universities are also subject to the constitutional principles, values, provisions, and case law interpreting them. Universities cannot exempt themselves from the Law of the Constitution or the constitutional order (orden constitucional). Among the insurmountable limits of university autonomy are, obviously, fundamental and human rights, which are directly and immediately applicable and which, of course, bind all public authorities, including universities. The fundamental and human rights arising from human dignity form the basis of the entire legal system; consequently, any regulation, including one issued in the exercise of full or university autonomy, must respect them and seek to ensure their effective enjoyment.

(…) Under the doctrine of neo-constitutionalism (neo constitucionalismo), prominent legal scholars (Ronald Dworkin, Robert Alexy, Martin Borowsky, etc.) have recommended that difficult cases (hard cases), in which opposing principles are involved, be resolved by applying the so-called ‘balancing test.’ Through the use of the principles of reasonableness and proportionality in the broad sense, the balancing test requires determining which principle has greater weight, consistency, and value and should therefore be given preference, without this entailing the repeal of the displaced principle, which remains in force. Indeed, some cases cannot be resolved through the classic method of subsumption (subsunción) because there is no clearly applicable rule of law. In the present matter, it is evident that two constitutional principles may be understood to confront or collide with one another (in opposing directions), namely: a) university autonomy recognized in Article 84, paragraph 1, of the Constitution; and b) the principle of a merit-based system for entering public service through demonstrated suitability, provided for in Article 192 of the Constitution.

Consequently, because the two principles operate in opposing directions, a balancing test is required to determine which has greater weight and consistency—and therefore preference—in the specific case to be decided. In our view, the principle of a merit-based system for entering public service has greater weight because it is connected to other constitutional values, principles, or, if preferred, interests, which tip the balance in its favor.” From that point onward, the idea was reinforced that state universities enjoy full autonomy but not sovereignty, which resides exclusively in the State, and therefore university regulations (normativa universitaria) must be understood to be subject to constitutional values and principles. Accordingly, some constitutional challenges (acciones de inconstitucionalidad) against regulations that may be unreasonable or disproportionate have been sustained (see vote n°2007-0055), as have challenges based on the primacy of fundamental rights over certain decisions (see vote n°2009-01675).

It has likewise been held that the entry of the Fuerza Pública onto university premises did not violate university autonomy (see votes n°2010-9339 and n°2019-03879), nor did the retention by the Contraloría General de la República of its powers of control, oversight, and auditing (competencias de control, vigilancia y fiscalización) (see vote n°2012-09215, n°2012-10665). On the other hand, the predominant position is that university autonomy is broad and extends, for example, to modifying, eliminating, and creating positions (plazas) (votes n°1999-9976 and 2002-7261), and that the power to freely allocate human, material, and financial resources forms part of the administrative autonomy (autonomía administrativa) of autonomous entities (entes autónomos) (vote n°2002-9076). Judgments concerning university autonomy specifically in the fields of education and related matters may also be mentioned (see vote n°1992-495 and 2012-9215).

There are also judgments holding that greater involvement by the Poder Ejecutivo or Poder Legislativo in matters that do not form part of the essential functions’ central core does not impair university autonomy (see votes n°94-3309, 96-276, and 2016-18087).

• 3)Specific analysis of the matter submitted for consultation Regarding Article 6.—Mideplán’s Power of Direction (Potestad de Dirección) over Public Universities (drafted by Justice Castillo Víquez) From the case law of the Sala Constitucional, it may be concluded that the Sala has consistently identified two aspects concerning universities and their autonomy: 1.—Universities are not microstates and, accordingly, must comply with the Law of the Constitution; 2.—The Poder Ejecutivo may not exercise powers of direction and regulation (potestad de dirección y reglamentación) over matters falling within the purview of universities, in accordance with their constitutionally assigned purpose—teaching, research, and social and cultural outreach—and their degree of autonomy.

With regard to public-employment matters, as explained below, the Sala has analyzed many related issues, including competitive selection processes (concursos), appointment requirements (requisitos de nombramiento), evaluations, salaries, vacations, and leave, and has established clear and precise case law. The predominant position is that university autonomy is broad and extends, for example, to modifying, eliminating, and creating positions (votes No. 9976-99 and 7261-2002), and that the power to freely allocate human, material, and financial resources forms part of the administrative autonomy of autonomous entities (vote No. 9076-2002). Nevertheless, university autonomy pertains to the field of education and related matters (vote No. 92-495 and 12-9215). This means that greater involvement by the Poder Ejecutivo or Poder Legislativo in matters that do not form part of the central core of the essential functions associated with the constitutionally assigned purposes does not impair university autonomy (votes Nos. 94-3309, 96-276, and 16-18087, the latter including a dissenting opinion (voto salvado) by Justice Rueda Leal).

Thus, the Constitución Política provides that universities enjoy independence in performing their functions and full legal capacity (plena capacidad jurídica) to acquire rights and undertake obligations, as well as to establish their own organization and governance (Article 84). However, this does not mean that they are not bound by legislative enactments concerning general matters unrelated to their constitutionally assigned purposes. Along these lines, advisory opinion (opinión consultiva) No. 2018-19511, which analyzed the consultation concerning the Ley de Fortalecimiento de las Finanzas Públicas, established the following, insofar as relevant:

“(…) the bill submitted for consultation does not violate the Constitución Política because, as already stated, it concerns a matter of the State’s general economic policy linked to national planning and development, fields in which autonomous institutions are subject to the law because they concern matters of government and whose advisability or timeliness is not for this Court to assess, as doing so would contravene the principle of judicial self-restraint (principio de autocontención del juez constitucional)….” It is no less important to bear in mind that the Constitución Política establishes a reservation of regulatory authority (reserva normativa) in favor of state universities. Indeed, in judgment n.° 1313-93, the Sala Constitucional stated the following with regard to the Ley de Creación de la Universidad Estatal a Distancia:

“The concepts set forth clearly indicate that the Constituent Assembly intended to grant state universities a general framework of autonomy, as expressed in Article 84 of the Political Constitution, as well as special treatment regarding the legislative procedure for the discussion and approval of bills on matters that, although not falling within the autonomous sphere, concern state universities, as provided in Article 88 thereof. Consider, moreover, the statements made by the constituent assembly members who proposed the motion containing the full text of the aforementioned Article 88, from which their intention may clearly be inferred: not to exclude legislation from the University’s sphere of authority, but solely and exclusively to establish that special majority when the entity issued an unfavorable opinion on the bill, provided that the matter was not considered to fall under the regime of Article 84: ‘Deputy Facio took the floor ...

Let it briefly be recalled—he said—that corporatism is an undemocratic regime that replaces the decisions of an Assembly freely elected by the people with those of corporations—corporations that are not technical institutions of the State, but rather representatives of trade groups and professional interests—corporations that are formed, manipulated, and directed by the single policy of the omnipotent State, the totalitarian State. Nothing could be further from the intention of the motion; nothing could be more removed from its purpose. What we seek, quite simply, is to reconcile the sovereign freedom of the popularly elected Assembly with the technical requirements of the modern world. Its decisions should be free, but that freedom should be exercised rationally, with the support not of corporations representing private interests, but of public institutions, which, because they are public, also represent the people and, because they are technical, better represent the people’s interests in the field of the functions entrusted to them.

Does this formally entail a certain restriction on the activity of Congress? It certainly does, but rather than constituting an abandonment of democracy, it is simply an adaptation of democracy to problems that exist today ... Dr. Jiménez de Aréchega maintains that autonomy cannot mean independence only from the Executive Branch, but also from the Legislative Branch, because if the Constitution establishes autonomy in favor of a particular body, it is because it presupposes that the relevant matters must be managed apart from politics and party struggles; to understand autonomy otherwise is to relativize it to such an extent that it would effectively disappear. The motion, however, does not ask for that much; it asks only that the Consejo Universitario be heard when university matters are involved....’—(See: Record No. 161 of the 1949 Asamblea Nacional Constituyente. Volume III, Imprenta Nacional, San José, 1956, pp. 410-414; emphasis added by this judgment).—In other words—and this is the unavoidable and indisputable conclusion of the lengthy but momentous series of quotations above—the Constituent Assembly did not remove or deny the Assembly the power to legislate with respect to matters placed within the authority of institutions of higher education, or matters directly related to them—to use the very terms of the Fundamental Law—and the only express condition it imposed in that regard was that they be heard beforehand for the discussion and approval of the corresponding bills, except with regard to the power of organization and self-government, in accordance with the independence clearly granted by constitutional Article 84.” The boldface does not appear in the original.

With regard to the limits on the Legislative Assembly’s exercise of legislative power over matters placed within the exclusive authority, to the exclusion of all others, of the State Universities, this Court adopted the following position:

“...Although it is true—as has already been established—that the Legislative Assembly may regulate matters concerning universities, it is prohibited from preventing, curtailing, or diminishing those institutions’ powers that are necessary for them to fulfill their respective purpose and that constitute their autonomy. That is, to state it in the terms of certain relevant legal scholarship, those entities initially hold and may independently and without restriction exercise all administrative and teaching powers necessary to fulfill their substantive specialization, and this may not be impaired by statute. Moreover, within the teaching model described, academic freedom (libertad de cátedra) (Article 87 of the Political Charter) also serves as a shield for that autonomy. Academic freedom may be understood as the university’s power to decide the content of the instruction it provides, without being subject to the dictates of powers external to it, or as the right of university faculty to express their ideas within the institution, thereby allowing different schools of thought to coexist (regarding legitimate limitations on freedom, see the aforementioned voto 3550-92).

Of course, under a constitutional provision (Article 85), those entities are also subject to coordination by the ‘responsible body’ identified therein and must take into account the guidelines established by the current Plan Nacional de Desarrollo.” As may readily be inferred, university autonomy (autonomía universitaria) is not synonymous with sovereignty or a form of extraterritoriality. Quite the contrary, State universities are subject to the legal system (ordenamiento jurídico), meaning that the legislature is authorized by the constitutional law (Derecho de la Constitución) to subject them to such regulations as it deems appropriate, particularly when those regulations are generally applicable. It may even be maintained, on the basis of constitutional law, that although Article 84 establishes a reservation of regulatory authority (reserva normativa) in favor of universities, thereby creating a particular legal subsystem, that reservation concerns the “organization of university services.” (See opinion No. C-086-96 of 5 de junio de 1996 of the Procuraduría General de la República).

“Accordingly, the university remains subject to all statutory regulations that apply equally to πρέπει λοιποί participants in the legal systemBEL, precisely大发电 because they are based on reasons common to all and unrelated to its functional specialization, even though they may indirectly interfere with the provision of its services and the organization of its resources. Likewise, the Procuraduría has found that, in exercising its regulatory power (potestad normativa), the university is subject to the general legal system and therefore may not contravene State provisions that, for example, grant benefits to university employees in their capacity as public servants of the Administración Pública. Along the same lines, in opinion N° C-191-98 10 de setiembre de l998, the Procuraduría concluded that the university’s regulatory power does not entail ‘immunity from general statutory rules governing public employment throughout the Administración Pública.’ The regulation of public employment is considered to fall outside the University’s own organizational sphere, as reiterated in opinion N° C-191-98 10 de setiembre de l998.” Thus, university autonomy—comprising autonomous rulemaking (potestad autonormativa) and autonomous organization (potestad autoorganizativa), including administrative and self-governingfly authority—is confined to the sphere protected by that autonomy: academicublish activity, バッグ tokens teaching and research, and Catalog bookingIBLE Mahl university both educational and teaching activities.

Specifically, it covers self-organization and self-government in the context of academic and teaching functions. State universities are therefore subject to statutory rules of general application to all participants in the legal system whenever those rules concern matters outside that protected sphere.

Likewise, they shall apply and implement the generally applicable provisions, 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) submits to the respective institution, pursuant to Ley 6227, Ley General de la Administración Pública, of 2 de mayo de 1978, and Article 46 of Ley 2166, Ley de Salarios de la Administración Pública, of 9 de octubre de 1957.

• b)The human resources management offices, departments, areas, directorates, units, or equivalent bodies shall be responsible for preparing and administering knowledge, competency, and psychometric tests for staff recruitment and selection processes, and for conducting internal and external competitive examinations based on qualifications and merit (concursos por oposición y méritos), which shall always meet at least the standards established by the Civil Service Directorate-General for each position, within its sphere of competence, and the guidelines issued pursuant to Article 46 of Ley 2166, Ley de Salarios de la Administración Pública, of 9 de octubre de 1957.

They shall also include such competitive examinations in the Public Administration’s public-employment listings and verify that public servants receive proper induction concerning the duties, responsibilities, and functions of the position, as well as the general ethical duties of public service and those specific to the institution and position.

• c)The institutional human resources management offices of ministries and affiliated institutions or bodies falling within the scope of the Civil Service Statute (Estatuto de Servicio Civil) are technical units of the Civil Service Directorate-General, which, for all purposes, shall coordinate the preparation of staff recruitment and selection tests with those offices and perform its advisory, training, and technical-support functions.” As may be observed, Article 9 under review establishes certain functions for all human resources offices, departments, areas, directorates, or units of all the institutions included in the bill, including the human resources offices of the Public Universities. Thus, specifically regarding the inquiry concerning the Public Universities, the second paragraph of subsection a) requires the various human resources offices of those universities to apply and implement the generally applicable provisions, directives, and regulations concerning planning, work organization, employment management, performance management, compensation management, and labor-relations management that Mideplán submits to them.

This would mean that an Executive Branch body such as Mideplán would require the Public Universities to apply and implement its provisions, directives, and regulations in matters falling within their exclusive purview by virtue of their full autonomy, such as planning, work organization, employment management, performance management, compensation or salary management, and labor-relations management. Such an obligation imposed on the human resources offices of the Public Universities clearly violates the full autonomy enjoyed by the State universities. It should be recalled that this Chamber has defined the scope of that autonomy by stating that it encompasses the authority to establish their plans, programs, budgets, internal organization, and governance structure (see judgment n°2008-013091). Accordingly, the Public Universities are empowered to establish their plans, programs, budgets, and internal organization and to structure their own governance, all within the limits established by the Political Constitution itself and the special laws governing their organization and operation (see judgment n°2012-011473).

This means that the Public Universities are outside the direction and hierarchy of the Executive Branch; that they possess all the administrative powers and authority necessary to carry out the special purpose lawfully entrusted to them; that they may exercise self-determination; that they possess regulatory authority, both autonomous and implementing; that they may structure themselves, allocate their powers within the institution, decentralize internally to the extent legally possible and lawful, regulate the service they provide, and make independent decisions concerning their personnel (see judgment n°2002-008867 and n°2008-13091). It is therefore fully justified to find that subjecting them to the generally applicable provisions, directives, and regulations of a body belonging to another Branch of the Republic, as the provision of the bill under review sought to do, is incompatible with their degree of autonomy. Accordingly, the second paragraph of subsection a) of Article 9 is unconstitutional insofar as it applies to the Public Universities.

Regarding Article 13.e.—Job Family (familia de puestos) with respect to the Public Universities (drafted by Justice Castillo Víquez) Regarding Article 13, subsection e), the petitioners contend that the universities’ constitutional authority to establish their own educational plans could be impaired if university personnel were subject to the control, direction, planning, and orders of the government in office. This provision is unconstitutional because that subsection does not include public servants who conduct research or perform social and cultural outreach, nor the administrative, professional, and technical personnel necessary to fulfill the purposes constitutionally assigned to the State universities, as explained in the general recital (considerando general).

Regarding Article 14.—Recruitment and Selection at the Public Universities (drafted by Justice Picado Brenes) The petitioners challenge the constitutionality of Article 14 of the bill under review because, in their view, it could infringe university autonomy insofar as it subjects the Public Universities to provisions issued by an Executive Branch body concerning employment management, which encompasses staff recruitment and selection. Article 14 provides as follows:

“ARTICLE 14—Recruitment and selection Newly hired public servants shall be recruited and selected on the basis of demonstrated suitability (idoneidad comprobada). For this purpose, the Ministry of National Planning and Economic Policy (Mideplán), in strict compliance with Ley 6227, Ley General de la Administración Pública, of 2 de mayo de 1978, shall issue the generally applicable provisions, directives, and regulations for the respective job family.

In recruitment and selection processes, an applicant may not be selected if the applicant is in any of the following circumstances:

• a)Being related by blood or affinity, in a direct or collateral line up to and including the third degree, to the immediate supervisor or to that supervisor’s immediate superiors in the respective unit.
• b)Being listed in the registry of ineligible persons maintained on the integrated public-employment platform.” As stated above, Costa Rica’s Public Universities enjoy a privileged autonomous status within the decentralized public sector because that independence extends to the administrative, political, financial, and organizational spheres (judgment n°2002-008867). Consequently, it is essential that they determine all matters relating to the recruitment and selection of their personnel without any external interference. Consider the statement in judgment n°2008-013091 that the Public Universities: “…are outside the direction and hierarchy of the Executive Branch; possess all the administrative powers and authority necessary to carry out the special purpose lawfully entrusted to them; and may exercise self-determination in the sense that they are empowered to establish their plans, programs, budgets, and internal organization and to structure their own governance.

They possess regulatory authority, both autonomous and implementing; they may structure themselves, allocate their powers within the institution, decentralize internally to the extent legally possible and lawful, regulate the service they provide, and make independent decisions concerning their personnel…” In this case, this Court finds that the bill under review intrudes upon the Public Universities’ own powers because, rather than merely establishing general public-employment principles or guidelines that respect the principle of separation of functions, Article 14 under examination clearly states that the Ministry of National Planning and Economic Policy (Mideplán) shall issue the generally applicable provisions, directives, and regulations for the respective job family that will govern the recruitment and selection of newly hired public servants. This is because, pursuant to Articles 13 and 2 of the same bill, Article 14 would apply to the Public Universities.

Accordingly, Article 14 is unconstitutional because it authorizes an Executive Branch body to issue directly generally applicable provisions, directives and regulations, circulars, manuals, and decisions concerning public employment that deprive the powers granted to the Public Universities by the Constituent Assembly of their substance. This is especially so given that a regulatory framework governing these matters already exists for each university. For the foregoing reasons, the provision under review exceeds any cooperative framework that a general public-employment policy might establish, because it is inappropriate for an Executive Branch agency—Mideplán—to dictate, on a mandatory basis, the guidelines or criteria for selecting and recruiting personnel to the Public Universities, which enjoy full autonomy. This constitutes clear external interference and intrusion by the Executive Branch into matters falling within the exclusive competence of the Public Universities. Consequently, this Court finds that Article 14 under review is constitutionally defective because it infringes the university autonomy protected by Article 84 of the Constitution.

Regarding Article 17.—Senior Management Positions at the Public Universities (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 generally applicable provisions, directives, and regulations concerning senior public management personnel (personal de la alta dirección pública) that are consistent with Ley 6227, Ley General de la Administración Pública, of 2 de mayo de 1978, in order to provide the Public Administration with personnel profiles demonstrating integrity and proven management, innovation, and leadership capabilities, with a view to improving the provision of public goods and services. (…)” The petitioners allege a violation of university autonomy (autonomía universitaria), insofar as this provision establishes that, with respect to senior management positions (puestos de alta dirección), Mideplán shall issue the generally applicable provisions, directives, and regulations governing them.

Consistent with this Chamber’s previous rulings on these matters, interference by this Ministry, which is an Executive Branch body, through the issuance of generally applicable provisions, directives, and regulations for Public Universities concerning senior management positions, violates university autonomy. All matters relating to senior management positions are already governed by the special regulations (normativa especial) of the Public Universities. It should be recalled that Public Universities are empowered to establish their own internal organization and structure their own governance, all within the limits established by the Political Constitution and the special laws governing their organization and operation (see judgment n°2012-011473). This means that Public Universities are outside the direction and hierarchy of the Executive Branch, that they possess all the administrative powers and authority necessary to fulfill the special purpose legitimately entrusted to them, and that they may regulate the service they provide and make independent decisions concerning their personnel (see judgments n°2002-008867 and n°2008-13091).

It should be noted that these are positions of great importance, since they would include, at a minimum, those who head the various Vice-Rector’s Offices and Dean’s Offices, among others. These positions are highly relevant to academic endeavors and the faithful performance of the other functions assigned to public universities; they must be particularly protected from interference by other Branches of the Republic and require the personnel stability necessary for the proper and impartial performance of their duties, which is incompatible with subordination to the provisions issued in this regard by Mideplán, as required by the provision at issue. Accordingly, Article 17 under review is deemed to contain a constitutional defect (vicio de inconstitucionalidad), on the grounds stated above.

Regarding Article 30.—Principles for compensation (compensación) at Public Universities (drafted by Justice Castillo Víquez) As for Article 30, it is unconstitutional insofar as it does not exclude officials who perform substantive duties—those inherent to university activities—and because it does not establish that, in deference to university autonomy, responsibility for constructing the salary-column family (familia de la columna salarial) and determining its characteristics rests solely and exclusively with the highest governing bodies of the university entities. Following the reasoning set forth in the advisory opinion (opinión consultiva), it is clear that this is an essential element affecting university autonomy in relation to personnel engaged in teaching, research, and social and cultural outreach, as well as officials, professionals, and technicians who perform administrative duties connected with university matters.

Consequently, from a constitutional perspective, the competent bodies construct the family and determine its characteristics independently of the directives and regulatory provisions issued in this area by Mideplán or the Executive Branch. In this regard, in judgment No. 15-10248, the Chamber addressed the setting of salaries at universities. The Court stated that universities may establish the compensation system (régimen remunerativo) for their employees. Specifically, the Court held: “…the university autonomy enjoyed by public higher education institutions (established at the constitutional level) is sufficient for them—through their highest governing bodies—to establish the manner in which they will determine their employees’ compensation system, ‘…while always observing the fundamental constitutional principles governing the entire public apparatus, such as reasonableness and proportionality, as well as the proper safeguarding of public finances (…).’” In this case, in accordance with the principles and tenets contained in the bill, which apply across the entire Public Administration.

Regarding Article 30(b)—Salary of Nombre01 as the salary cap (tope de salarios) at Public Universities (drafted by Justice Castillo Víquez) With respect to Article 30, subsection (b), of the bill under review, the Court concludes by majority vote that establishing the salary of Nombre01 as the cap for university officials is not unconstitutional. First, this is because, under Article 37 of the same bill, the salary for the position of President of the Republic must be set on the basis of technical studies, responsibilities, and job profiles; furthermore, the parameters established in Article 36 of the bill for setting salary policy (política salarial) must be taken into account. Therefore, the salary for the position of Nombre01, as technically determined by the Budgetary Authority (Autoridad Presupuestaria), will constitute the cap for the salaries of university officials. Second, the majority of the Constitutional Chamber understands that any reduction in the salary of Nombre01 intended to serve as the cap must likewise be based on technical studies, responsibilities, and job profiles; accordingly, a reduction voluntarily accepted by the person holding the position of Nombre01 for personal, political, or other reasons would not apply for purposes of the cap. Likewise, if a Nombre01 decides to waive all or part of his or her salary, such individual actions would not affect the salary cap, which has been technically established.

Finally, it must be borne in mind that, in compliance with the principle of financial or budgetary balance (principio de equilibrio financiero o presupuestario) in this case, the aforementioned cap is consistent with Constitutional Law (Derecho de la Constitución). In this regard, in advisory opinion n.° 2018-18505, we stated the following:

“On this matter, when faced with a critical condition in public finances (duly supported by technical studies) that jeopardizes the effective or proper delivery of constitutionally significant benefits, the decision by the competent authorities to define and apply appropriate measures to mitigate or resolve the problem is not only reasonable but, moreover, unavoidable.

However, it is not for the Chamber to define specifically what types of remedies must be applied or which is the most appropriate, since that forms part of the State’s economic policy, which in turn is a matter of governance. In fact, constitutional review (control de constitucionalidad) is confined to ensuring that solutions are adopted while safeguarding the fundamental rights protected by the Political Constitution and the international human-rights instruments ratified by Costa Rica, as well as the essential qualities of the country’s political system (in a democratic, free, independent, multiethnic, and multicultural republic whose Government is popular, representative, participatory, alternating, and accountable); all of this entails 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 Governed by the Rule of Law (Estado Social de Derecho) is especially important. The Chamber notes that, for a Social State Governed by the Rule of Law to endure and fulfill its constitutional and statutory purposes, sound management of public finances is necessary; that is, there must inevitably be a balance between entitlements to state-provided benefits (derechos prestacionales) and the State’s financial solvency, because the former depend on the material possibilities afforded by the latter, while the purpose of the latter is to strengthen the development of a political system based on solidarity, one in which the less advantaged sectors of society find protection for their human dignity and their right to progress. Put differently, the ‘ideal’ Social State Governed by the Rule of Law is the ‘possible’ Social State Governed by the Rule of Law, and it is precisely this possible State that is undermined when the principle of budgetary balance is violated, since, in the medium term, such a violation seriously jeopardizes or entirely prevents the procurement of the resources needed to sustain a ‘real’ Social State Governed by the Rule of Law, one that the most vulnerable can genuinely and effectively enjoy.

Ensuring, therefore, that the Constitution does not become a failed or merely paper constitution, under which constitutionally protected entitlements to state-provided benefits cannot be made effective, is a fundamental task of this Chamber, strictly within the limits of its jurisdiction.

It must be emphasized, however, that all constitutional principles, values, and provisions must be observed under all circumstances, something the constitutional jurisdiction (jurisdicción constitucional) must continually oversee. Nevertheless, when the constitutional judge conducts a balancing or optimization exercise to resolve a conflict among such principles, values, and provisions, the context surrounding that conflict cannot be disregarded.

It follows from the foregoing that failure to observe the principle of budgetary balance has been one of the causes of the current deterioration of public finances, prompting this Chamber to underscore the cross-cutting nature of that principle and emphasize its actual implementation in furtherance of the principle of the Social State Governed by the Rule of Law. We reiterate the observation of the Programa del Estado de la Nación: ‘This [referring to the structural imbalance in public finances] has imperiled the future of the social welfare state built over the second half of the twentieth century, because its funding and the efficiency of its spending are insufficient.’ Indeed, the interpretation of the general principles for deciding the matter under review (sub examine), such as the principle of budgetary balance and that of the Social State Governed by the Rule of Law, cannot be separated from the constitutionally significant parameters that may be inferred from the measures under review and the numerous technical references to the prevailing economic circumstances, which are fundamental elements for ruling out arbitrary or unreasonable action.” Regarding Articles 31, 32, and 34.—Job evaluation (valoración del trabajo), grades within job families (grados dentro de las familias de puestos), and the global salary column (columna salarial global) at Public Universities (drafted by Justice Castillo Víquez) With respect to Articles 31, 32, and 34, the petitioners state that they prevent the establishment of salary differentials based on knowledge, experience, and knowledge production, matters that are essential to universities, while Article 32 grants Mideplán the authority to define the required grades within each job family and, finally, Article 34 regulates the preparation of the global salary scale.

The Chamber concludes that they are unconstitutional insofar as they do not exclude officials who perform substantive duties inherent to university activity—that is, those who perform teaching, research, and social and cultural outreach functions, as well as those who perform the administrative, professional, and technical functions necessary to fulfill the constitutionally assigned purposes in accordance with criteria of effectiveness and efficiency—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 scale fall within the exclusive authority of the highest governing bodies of university entities. In this matter, with respect to officials who are in the job family pertaining to these entities, as established by the governing body of each university, because all these aspects are connected with the officials necessary to achieve the constitutionally established purpose, authority is exclusive; consequently, neither Mideplán nor the Executive Branch has any authority to define or prepare any of those elements.

Regarding Article 33.—Classification of Positions at Public Universities (opinion authored by Justice Castillo Víquez) With respect to Article 33, the Constitutional Chamber finds it unconstitutional insofar as it does not exclude officials who perform substantive duties inherent to university activity—that is, those who perform teaching, research, and social and cultural outreach functions, as well as those who perform the administrative, professional, and technical functions necessary to fulfill the constitutionally assigned purposes in accordance with criteria of effectiveness and efficiency—and subjects the position classification manual for those officials to analysis and evaluation by Mideplán, which, in view of university autonomy, falls within the exclusive authority of the highest governing bodies of university entities for the reasons explained above.

Regarding Articles 35 and 36.—Unified Salary System and Compensation Policy at Public Universities (opinion authored by Justice Castillo Víquez) Articles 35 and 36 are challenged by the petitioners. With respect to the former, it establishes a unified system for the entire public service, including universities, which, in the petitioners’ view, infringes their autonomy. However, that is not the case, because a global salary and a unified system are constitutionally permissible, given that what the Constitution establishes is the right to a salary—Article 56—that is, economic compensation for the service rendered. Thus, there is no fundamental right to a salary supplement or supplements, and this is therefore a matter within the legislature’s discretion; consequently, in exercising its legislative authority, the legislature may establish a particular salary structure, whether a component-based, global, or mixed salary, etc. Furthermore, the Constitutional Chamber concludes that the legislature’s establishment of a global salary in the case of universities does not affect their exclusive authority.

As for the latter, which regulates compensation policy and provides for the involvement of MIDEPLAN, the General Directorate of Civil Service, and the Budgetary Authority, the petitioners challenge its constitutionality because it makes compensation policy subject to the availability of public funds. In their view, pursuant to Article 85 of the Constitution, universities are guaranteed revenue and funding that could never be reduced by the Central Government.

This assertion is legally incorrect. In Judgment No. 2019-08620, the Chamber declared WITHOUT MERIT an action filed in connection with the “Agreement for the Special Fund for Higher Education (FEES) 2018, signed on August 29, 2017,” because the challenged instrument was an agreement, not a provision having general effects, and therefore could not be deemed the subject of an action under Article 73(a) of the Ley de la Jurisdicción Constitucional. The report submitted by the Procuraduría General de la República in that matter established that no provision sets a specific percentage for public higher education.

Likewise, in Advisory Opinion No. 2018-18505 (legislative consultation concerning Ley No. 9635), the Chamber stated:

“(...) What the aforementioned principles do require is that the prevailing aim should always and preferably be to expand the protection of human rights, including rights to public benefits, in furtherance of the Social Rule of Law; however, that objective is not detached from the socioeconomic context of a particular historical juncture or from the obligation to balance and optimize the various constitutional principles, rights, and values at stake (for example, the principle of the Social Rule of Law and that of Budgetary Balance), such that, in the context of particularly serious financial unsustainability of the State, duly demonstrated from a technical standpoint, measures may be taken to alleviate the situation, provided that they are adopted while safeguarding the fundamental rights protected by the Political Constitution and the international human-rights instruments ratified by Costa Rica, as well as the essential characteristics of the country’s political system....” (Boldface does not appear in the original).

Finally, it should be noted that defining salary policy is an authority that the legislature assigns to the Executive Branch, which is consistent with the administrative and governmental powers that the Political Constitution grants that branch with respect to its officials and other entities that do not enjoy exclusive authority or degrees of autonomy that preclude the power of direction. Therefore, the university entities are responsible for setting their compensation policy, as well as the minimum starting salary on the single salary scale and the monetary value assigned to each point on the global salary scale, taking as parameters the principles and tenets established by the challenged provision, except with respect to those officials whom the governing authorities of these entities decide to exclude from the scale because they perform basic, auxiliary administrative functions that are not connected with the constitutionally assigned purposes.

Regarding Article 37(f).—Global Salary Applied to Rectors of Public Universities (opinion authored by Justice Picado Brenes) The petitioners state that the bill under review seeks to give the government in office mechanisms to exert pressure on university budgets by limiting salaries pursuant to Article 37 of the bill in question. In this regard, this Chamber observes that subsection (f) of Article 37 of the bill establishes not only that the salary of rectors of Public Universities may not exceed that of the President of the Republic, but also that it shall be set by the Budgetary Authority on the basis of technical studies, responsibilities, and job profiles, as well as the salary caps established in the Ley de Salarios de la Administración Pública. This is plainly unconstitutional because it violates university autonomy. Under this autonomy, public universities themselves must establish the compensation system for their employees (see Judgment n°2015-010248), including the salary of rectors.

Accordingly, it is unconstitutional to provide that rectors’ salaries shall be set by the Budgetary Authority, which is a body of the Central Public Administration, rather than by the university itself. It should be recalled that public or state universities enjoy a special degree of autonomy, which may be termed university autonomy. Constitutional case law has held that such autonomy encompasses administrative, political, financial, and organizational autonomy. Therefore, public universities are not subject to the direction of the Executive Branch and possess all administrative powers and authority necessary to carry out their mission.

• 4)Conclusion —Regarding Articles 11 (employment planning), 15 (recruitment and selection principles), and 16 (job postings), because sufficient grounds have not been provided to enable this Chamber to clearly understand the matters submitted for consultation, the consultation is declared inadmissible for lack of substantiation.

—Under the terms indicated and in accordance with this Chamber’s case law, the following articles of the “LEY MARCO DE EMPLEO PÚBLICO” bill, which is being processed under legislative expediente n° 21.336, are unconstitutional.

Having analyzed all the matters submitted for consultation concerning Articles 6, 7, 9 (second paragraph of subsection (a)), 13 (subsection (e)), 14, 17, 30 (except subsection (b)), 31, 32, 33, 34, and 37 (subsection (f)) of the bill entitled “LEY MARCO DE EMPLEO PÚBLICO,” legislative expediente n° 21.336, this Chamber finds that those provisions are contrary to Constitutional Law because they violate the university autonomy of public universities. Articles 30(b), 35, and 36 of the bill in question are constitutional for the reasons already stated.

• 5)Dissenting Votes, Separate Reasons, and Notes Regarding the Consultation as It Concerns Public Universities a) Separate reasons of Justice Garro Vargas concerning the unconstitutionality of Article 6 insofar as it subjects Public Universities to the governance of the general public employment system under Mideplán In the case at hand, I am inclined to declare the provision under review unconstitutional with respect to its application to public universities, departing from the distinction drawn by the majority of the Chamber, under the terms stated therein, between officials who perform an essential function pertaining to public universities themselves and those who do not.

It should be noted that what is being challenged in this provision is the creation of a General Public Employment System, whose governance would be entrusted to Mideplan, and that this system integrates “the offices, departments, areas, directorates, and units” responsible for human-resources management at the entities and bodies falling within the scope of this law. As a preliminary matter, Art. 2(b) includes state universities within the scope of the bill. Likewise, as I indicated above, this provision must be examined together with Art. 9(a), second paragraph, of the bill, which mandates that human-resources offices apply and implement the generally applicable provisions, directives, and regulations concerning planning, organization of work, employment management, performance management, compensation management, and labor-relations management that Mideplan transmits to the respective institution.

It should now be recalled that Art. 84 of the Political Constitution provides the following with respect to public universities:

“The Universidad de Costa Rica is an institution of higher learning that enjoys independence in the performance of its functions and full legal capacity to acquire rights and undertake obligations, as well as to establish its own organization and government. The other State university-level higher education institutions shall have the same functional independence and legal capacity as the Universidad de Costa Rica.

The State shall provide them with their own assets and shall contribute to their financing.” (emphasis not in the original).

It follows with utmost clarity from the foregoing provision that public universities are endowed with constitutional independence in the performance of their functions and, more specifically, in establishing their own organization and government. Based on that premise, it would be unconstitutional for the human resources offices under the universities’ own governance, and the universities as a whole, to be subjected to Mideplan’s governing authority (rectoría), since Mideplan would be the body designated in the bill to establish public policies on public employment and issue generally applicable provisions in this area (planning, work organization, employment management, performance management, compensation management, and labor relations management). Moreover, those human resources offices govern the entire body of officials employed by the respective public higher education institutions.

I already stated supra that, from my perspective, it is possible to have common regulations establishing a general regulatory framework for public employment, bringing together and developing the principles set forth in Arts. 191 and 192 of the Constitución Política; however, in my opinion, removing the human resources offices of public universities from the scope of those universities’ capacity for self-organization (autoorganización) and self-government is unconstitutional, particularly because this would also entail the corresponding obligation to implement Mideplan’s generally applicable provisions. This is aggravated by the fact that the implementation regulations for this law will be left in its hands.

I consider it necessary to clarify that, with respect to the institutions contemplated in Art. 2 of the bill (scope of coverage), I do not believe that the branches of the Republic (subsection a) have the same degree of independence as other institutions in the decentralized sector (subsection b). Nevertheless, in this specific case, the constitutional provision governing the organization of public universities is very clear regarding their full legal capacity to establish their own organization and governments. I therefore reiterate that it is indeed unconstitutional for the human resources offices of those institutions to become part of a Public Employment System whose governing authority is entrusted to a body subordinate to the Executive Branch. Such a provision disregards the fact that each higher education institution is responsible for independently determining the best way to organize itself, subject, of course, at all times to general rules that do not disregard its autonomy.

In other words, their own governing authorities are responsible for independently implementing generally applicable provisions intended to fulfill the requirements established in Arts. 191 and 192 of the Constitución Política—or any other provision thereof?—but that governing authority and that overlap between their inherent governmental powers and other powers sought to be imposed from outside are indeed unconstitutional. The foregoing does not imply that universities enjoy sovereignty or that they stand outside the requirements inherent in the rule of law (Estado de Derecho), but rather recognizes that the original Constituent Assembly intended to grant public universities a unique status and prerogatives that neither the Sala nor the legislature may disregard in the exercise of their functions.

• b)Different reasons given by Justice Picado Brenes regarding Article 6 of the bill with respect to Public Universities and Mideplán’s power of direction (potestad de dirección) (point 23 of the Por Tanto) Although I agree with the unanimous decision on this point insofar as it finds Article 6 of the bill unconstitutional with respect to public universities, I offer different reasons for addressing the unconstitutionality of Article 6.

The State has entrusted public universities, at the higher level, with providing education so that citizens may be trained in the sciences and the arts, as well as in the practice of the various professions taught there, all for the benefit of the community. To that end, it has also endowed those educational institutions with a degree of autonomy that grants them the right to govern themselves, all within the framework established by the Constitution and the laws. That autonomy, under the terms of Article 84 of the Constitution, prevents external interference by other State entities, including the Executive Branch. In the specific case of the Ley Marco de Empleo Público bill, it can be seen that section 2(b) seeks to include State universities in the general public employment system, which could conflict with Article 84 of the Constitution because, as the Sala Constitucional stated in judgment No. 2012-011473, that article establishes a regulatory reservation (reserva normativa) in favor of universities, such that their regulatory power (poder reglamentario) allows them to regulate the organization of university services.

As is well known, the university autonomy afforded to public higher education institutions—which has constitutional rank—extends to permitting their highest-ranking bodies to establish their organization and operation and, as part thereof, to regulate all matters relating to the human talent management system required for the performance of their functions. Consequently, a State university should not be subject to all guidelines, provisions, and regulations that Mideplán may seek to issue regarding public employment; it would therefore not be feasible for State universities to be subjected to the governing authority established in Article 6 of the Ley Marco de Empleo Público bill in that area. Accordingly, in light of the full university autonomy granted to public universities under Article 84 of the Constitución Política, their degree of organizational autonomy must be respected. As stated above, this autonomy empowers them to issue their own fundamental legal rules of organization, including, of course, all matters relating to management of the personnel of those educational institutions, which must be carried out with due respect for the principle of demonstrated suitability (principio de idoneidad comprobada), which also has constitutional rank.

Consequently, seeking to apply Article 6 to State universities is unconstitutional because it conflicts with the principles and duties assigned to those educational institutions under Article 84 of the Constitution.

The bill under consultation seeks to subject Public Universities to Mideplán’s governing authority over public employment. Mideplán is granted governing authority over public employment (Art. 6). This is deemed contrary to the Sala’s line of precedent, under which it is improper for an external body to assume governing authority or unilaterally impose criteria concerning universities’ internal organization, since all of this falls within their full autonomy regarding employment relationships with their employees, performance evaluations, and salaries. It should be recalled that this Sala has defined the scope of that autonomy by stating that it is sufficient to establish their plans, programs, budgets, internal organization, and governmental structure (see vote No. 2008-013091), and to determine, on their own, their employees’ compensation system (régimen remunerativo) (see vote No. 2015-010248).

The creation of a Ministry of Public Employment—a body of the Executive Branch—with powers so broad that it may issue orders to State Universities in this area plainly violates their degree of organizational autonomy. Moreover, it is apparent that this governing authority goes beyond regulating an activity and instead amounts to actual direction and subordination through the issuance of specific guidelines and regulations on the subject. In my view, the structure of the bill as such openly affects the degree of autonomy of State universities by granting Mideplán broad powers that directly result in the displacement of powers and authority. It must be emphasized that administrative decentralization (descentralización administrativa) specifically means that the Executive Branch is prohibited from intervening in the decisions of State universities. Although they may be subject to general constitutional principles applicable to the entire public sector, they may never be placed in a position of subordination, as the bill under consideration seeks to do.

• c)Additional reasons given by Justice Garro Vargas concerning the unconstitutionality of Article 7 because it affects the autonomy of Public Universities In this case, as stated by the majority, I consider the entirety of Art. 7 unconstitutional insofar as it subjects public universities to Mideplan’s governing and regulatory powers. As already noted, that provision establishes a series of broad powers in favor of a ministry of the Executive Branch which, when applied to university-level higher education institutions, are unconstitutional because they disregard those institutions’ full legal capacity to establish their own organization and governments.

But this involves more than merely that governing authority over regulatory matters (Arts. 7 and 9), because it cannot be overlooked that the essential purpose of safeguarding the autonomy of higher education institutions is also to protect academic freedom (libertad de cátedra) as a prerequisite for the dissemination of knowledge and pluralism in a democratic society. Therefore, attempts to influence staffing levels and the selection of teaching, research, and support personnel, who provide the foundation for the exercise of academic freedom, constitute a violation of Constitutional Law (Derecho de la Constitución). In this regard, it should be noted that Art. 7(n) under review seeks to grant Mideplan the following powers regarding the human resources and research personnel of public universities:

“Conduct human resources assessments of the included entities and bodies in order to appropriately resize existing staffing levels and develop general criteria defining those sectors whose activities, because of their institutional strategic value and their connection to core operations, should be reserved exclusively for performance by public servants. In addition, analyze the criteria that may serve as guidance in defining which services could be outsourced and the conditions under which they would be provided.” As noted, these powers could eliminate the capacity for self-government and for management of the personnel necessary to carry out the functions intrinsic to those institutions. Furthermore, it must again be recalled that the implementation regulations for this law will be left in the hands of Mideplán.

• d)Additional reasons given by Justice Picado Brenes regarding Article 7 of the bill and Mideplán’s broad powers with respect to Public Universities (point 24 of the Por Tanto) As has been noted, by assigning constitutional purposes to state universities, the original constituent authority endowed them with the highest degree of autonomy—to regulate, govern, and organize themselves—in order to guarantee independence in the exercise of their powers, including matters of public employment, insofar as such employment is directed toward fulfilling those purposes in accordance with the provisions adopted by the university authorities; those purposes concern academic activity, research, and social or cultural outreach activities. From this perspective, if a state university may organize and administer itself, it logically follows that everything relating to human-resources management (gestión del talento humano) falls within its authority, since it constitutes another tool at its disposal for fulfilling its purposes.

Accordingly, it cannot be asserted that Article 7 of the proposed Public Employment Framework Law (Ley Marco de Empleo Público) applies to state universities because, it should be noted, this would create a conflict of rules between the powers assigned therein to Mideplán and the powers that public universities already possess in matters of personnel management. Thus, in my view, Mideplán cannot be placed in a governing role over public universities because, with respect to the management of their human resources, it is the public university that is responsible for establishing, directing, and coordinating the issuance of policies, programs, and plans relating to its employees, as well as for issuing the provisions, directives, regulations, and other rules governing the management of its employees in every area, their scope, the employment opportunities required for the performance of its functions, the guidelines and principles for evaluating its employees’ performance, research and innovation initiatives and proposals for improvement, the preparation of its assessments and the purposes for which they are conducted, among the many other functions relating to the management of the human resources available to public universities.

Consequently, seeking to subject state universities to Article 7 of the bill under review would conflict with Article 84 of the Constitution and would also violate the Law of the Constitution (Derecho de la Constitución).

• e)Additional reasons of Justice Garro Vargas concerning the unconstitutionality of Article 13 with respect to Public Universities As I already specified supra with respect to the Judicial Branch 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 the entirety of the article. This is because, if only subsection e) were declared unconstitutional, it could consequently be understood as constitutional for all other university employees who are not teaching and academic staff, but who are essential support staff for all university, research, and teaching work, to remain within the general public-employment regime under the express governance of Mideplan. Thus, by viewing university activity solely from the perspective of subsection e), which refers only to “teaching and academic personnel,” all the particular characteristics and needs of the support staff of university-level higher-education institutions are disregarded.

In other words, that subsection is itself deficient. Specifically, it is declared unconstitutional because it establishes a particular higher-education job family (familia de puestos), on the understanding that this affects university autonomy; yet it disregards the reality that these institutions also comprise a broad range of support employees who are essential to the proper exercise of the constitutionally assigned powers—research and social and cultural outreach, to cite a few examples—and who, because only subsection e) is declared unconstitutional, would therefore remain subject to the governance of Mideplan, contrary to Articles 84 and 87 of the Political Constitution (Constitución Política).

It must also be emphasized that Article 13 itself provides that “The creation of public-employment job families is a matter reserved to statute (reserva de ley) and must be justified by technical and legal criteria consistent with efficient and effective public administration,” a provision that must also be examined together with Article 32 of the bill, which orders that “Each occupational family shall consist 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 occupational family, as well as their characteristics, based on an evaluation of all positions within the occupational family.” Therefore, it bears repeating that declaring only subsection e) unconstitutional would create the risk that the remaining university employees would be placed in other “job families,” whose evaluation and definition would be entrusted to a body external to the universities’ self-government, thereby infringing their autonomy and creating a dangerous loophole through which the Executive Branch could interfere in the administration of their personnel.

Consequently, although only subsection e) was referred for review, as a matter of purely logical and legal consequence, it is clear that, from a constitutional perspective, the article is unconstitutional insofar as the establishment of job families disregards the particular characteristics and institutional composition of university institutions. It is a separate matter that compliance with the principles of reasonableness and proportionality must be ensured with respect to the salary policies and working conditions maintained within universities; however, doing so neither requires nor justifies infringing university autonomy, which is constitutionally grounded. It would suffice to establish a statutory framework of general rules and principles governing public employment that, while respecting that autonomy, would bind university authorities just as other laws do. Moreover, from a constitutional perspective, nothing precludes the existence of a regulatory framework in this area specifically applicable to public universities. In any event, university autonomy does not entail exemption from legislative action; rather, such action must be exercised on the basis of the existence of that autonomy.

• f)Additional reasons of Justice Picado Brenes concerning Article 13 of the bill as it relates to the groups of job families at Public Universities (point 27 of the Operative Provisions (Por Tanto)) The Chamber has unanimously held that Article 13, subsection e), of the proposed Public Employment Framework Law is unconstitutional because that subsection does not include public-university employees who perform research and social and cultural outreach. In my view, there are other reasons that also justify declaring this provision unconstitutional, which I now proceed to examine.

As I have been indicating, the Constituent assigned state universities the mission of serving as institutions of learning in which citizens are educated in the sciences and the arts, as well as prepared to practice the various professions taught there, all for the benefit of the community. To fulfill that objective, the Constituent endowed them with a special degree of autonomy known as “university autonomy” (autonomía universitaria), and, under constitutional case law, that autonomy encompasses the administrative, political, financial, and organizational spheres. Accordingly, public universities possess all the administrative authority and powers necessary to carry out their mission. Of particular relevance is Judgment No. 2016-002419, in which the Constitutional Chamber (Sala Constitucional) described it with great precision:

“(…) As provided in Article 84 of the Political Constitution, State Universities are endowed with independence in the performance of their functions and full legal capacity to acquire rights and assume obligations, as well as to establish their own organization and government. That autonomy, which has been classified as special, is complete and therefore differs from that of the other decentralized entities in our legal system (governed primarily in another part of the Political Charter: Articles 188 and 190). To begin with some of its most important aspects, it means that those Universities are outside the direction and hierarchy of the Executive Branch; that they possess all the administrative authority and powers necessary to carry out the special purpose legitimately entrusted to them; and that they may determine their own affairs, in the sense that they are empowered to establish their plans, programs, budgets, and internal organization and to structure their own government.

They have regulatory authority (both autonomous and implementing); they may structure themselves, allocate their powers internally, decentralize functions to the extent legally possible and lawful, regulate the service they provide, and freely make decisions concerning their personnel (as this Chamber previously established in Decision No.495-92). These are the administrative, political, organizational, and financial forms of autonomy enjoyed by public universities. The principal purpose of university autonomy is to provide the institution with all the legal conditions necessary to carry out independently its mission of higher culture and education... The foregoing conceptualization is not intended to exhaust all of its elements, but its essential content supports the conclusion—and this is what the Constituent is understood to have intended and enshrined in the Fundamental Law—that the university, as a center of free thought, must and is required to remain free from pressures or measures of any nature that tend to prevent it from fulfilling, or that threaten, its great mission.” Now then, as I have already stated, Article 13 of the draft Framework Law on Public Employment is worded in very general and even confusing terms, which will create serious problems of interpretation when it is applied.

I reiterate once again my view that this is yet another provision that will not be easy to apply to public servants (servidores públicos) generally, as the bill intends, and that, in practice, objectively grouping the large number of public servants existing in the country into only 8 job families (familias de puestos) will prove to be almost an impossible mission. As I have been stating, the proper and appropriate course is for each of the institutions included within the scope of the law to retain the management of its own human resources, as has been done to date, since each institution knows its personnel and is responsible for developing policies concerning its employees in accordance with its purposes and goals; otherwise, as the bill intends, the specific autonomy enjoyed by each institution included within the scope of the Law will be infringed and, specifically in the case of state universities, the university autonomy (autonomía universitaria) that, as the Constitutional Chamber itself has stated, means that they possess all the administrative powers and authority necessary to carry out the special purpose legitimately entrusted to them; that they may determine their own affairs, in the sense that they are empowered to establish their plans, programs, budgets, internal organization, and structure their own governance; that they possess regulatory authority (poder reglamentario) (autonomous and implementing); that they may structure themselves, allocate their powers within the institution’s internal sphere, decentralize functions (desconcentrarse) to the extent legally possible and lawful, regulate the service they provide, and decide freely regarding their personnel (see judgments No. 495-92 and No. 2016-002419).

Specifically, with regard to subsection e) of Article 13 of the draft Framework Law on Public Employment, it should be noted that this is one of the 8 job families that will apply in the institutions covered by that Law, according to the functions performed by their personnel, providing that it refers to:

“e) Teaching and academic personnel in technical and higher education.” It should be noted that this job family is very general, since it refers only to the teaching and academic personnel of state universities and, precisely because of the way it is worded, I consider that, if the subsection were interpreted broadly, it could readily be thought to include employees of those educational institutions who conduct research, social outreach, and cultural activities, even though the Chamber has held that they are excluded and that including them would therefore be unconstitutional. It is not for the Chamber to determine who constitutes teaching personnel or academic personnel, nor who constitutes personnel engaged in research, social outreach, and cultural activities, but it could be understood that these categories are not mutually exclusive and that teaching or academic personnel may indeed conduct research, social outreach, and cultural activities.

Now then, in my view, one of the greatest problems posed by the provision is that it seeks to place university officials into groups of job families designed by the Executive Branch—Mideplán—even though, according to constitutional case law, it is improper for an external body to assume governing authority or unilaterally impose internal organizational criteria on universities, since all of this falls within their full autonomy with respect to employment relationships with their employees and the entire management of their human talent. It must be recalled that the Constitutional Chamber itself established the implications of this autonomy, stating that it extends to establishing their plans, programs, budgets, internal organization, and governance structure (see voto n°2008-013091), and to independently determining matters concerning their human resources (see voto n°2015-010248).

Thus, if a state university may determine its own affairs—that is, if it is empowered to establish its plans, programs, budgets, internal organization, and structure its own governance, all within the limits established by the Political Constitution and the special laws governing its organization and operation (see voto n°2012-011473)—it would under no circumstances be possible for the draft Law under review to seek to cluster public university employees into different groups of job families that, in addition to infringing university autonomy, are inconsistent with the constitutional purposes and objectives assigned to those educational institutions. It should be recalled that this autonomy, which has been classified as special and complete, distinct from that of the other decentralized entities within the Costa Rican legal system (primarily governed elsewhere in the Political Charter: Articles 188 and 190), means that universities are outside the direction and hierarchical authority of the Executive Branch; that they possess all the administrative powers and authority necessary to carry out the special purpose legitimately entrusted to them; and that they may establish their plans, programs, budgets, and internal organization, structure their own governance, and, among other powers, decide freely regarding their personnel, since they enjoy administrative, political, organizational, and financial autonomy to carry out independently their mission of higher culture and education (see judgments No. 92-495 and No. 93-1313).

Consequently, I consider Article 13, subsection e), unconstitutional because I believe its application would conflict with Article 84 of the Constitution, since that article, as the Constitutional Chamber stated in judgment No. 2012-011473, establishes a regulatory reservation (reserva normativa) in favor of universities, such that their regulatory authority alone has jurisdiction to govern the organization of university services, and because those universities are outside the direction and hierarchical authority of the Executive Branch. Consequently, they could not fall within the scope of Mideplán, as the draft Framework Law on Public Employment seeks to impose, since the autonomy of public universities protects them against the Executive Branch and the rest of the Public Administration, as well as against the law itself, in order to prevent the legislature from delegating to administrative authorities—Mideplán in this bill—powers capable of imposing decisions on public universities within their sphere of authority, such as the regulation and management of university personnel, among others (see judgments No. 93-1313 and No. 96-276).

• g)Note by Justice Garro Vargas regarding the unconstitutionality of Article 17 as applied to the senior management personnel of Public Universities The undersigned Justice emphasizes that, although subsection 2 of the article under review provides that “the entities and bodies included in Article 2 of this law shall establish the administrative regulations concerning senior public management personnel,” thereby creating the appearance that the bodies themselves will establish those regulations, it cannot be overlooked that throughout the bill there is an apparent intention to establish governing authority on the part of Mideplan, which is charged with issuing generally applicable provisions, directives, and regulations concerning planning, work organization, employment management, performance management, compensation management, and labor-relations management. This would undoubtedly also bind senior public management personnel, to the detriment of the autonomy of public universities to establish their own organization and governance, and to the detriment of the fundamental principle governing the operation of these institutions, namely academic freedom (libertad de cátedra) and the resulting freedom of research.
• h)Note by Justice Picado Brenes regarding Article 17 of the bill insofar as it concerns the senior management personnel of Public Universities (point 30 of the Por Tanto) I concur with the majority’s view that Article 17 of the draft “Framework Law on Public Employment,” being processed under legislative expediente n° 21.336, is unconstitutional because it subjects the senior management personnel of public universities to the provisions issued by Mideplán; however, I consider it necessary to mention additional grounds on which I believe that the provision could also be unconstitutional.

As I have previously mentioned, under Article 84 of the Political Constitution, public universities, or state universities, enjoy a special degree of autonomy that may be called university autonomy and that, according to constitutional case law, encompasses administrative, political, financial, and organizational autonomy, such that they possess all the administrative powers and authority necessary to carry out their mission. These educational institutions may determine their own affairs; that is, they are empowered to establish their plans, programs, budgets, and internal organization and to structure their own governance, all within the limits established by the Political Constitution and the special laws governing their organization and operation (see voto n°2012-011473), because the Political Constitution provides that they enjoy independence in the performance of their functions and full legal capacity to acquire rights and undertake obligations, as well as to establish their own organization and governance.

In this regard, the Constitutional Chamber’s line of case law has clearly established that public universities possess the highest degree of autonomy, namely self-organizational autonomy (autonomía autoorganizativa), or full autonomy, which has been classified as special and complete and, for this reason, distinct from that of the other decentralized entities within the legal system (primarily governed elsewhere in the Political Charter: Articles 188 and 190). This means that public universities are outside the direction and hierarchical authority of the Executive Branch; that they possess all the administrative powers and authority necessary to carry out the special purpose legitimately entrusted to them; that they may determine their own affairs because they are empowered to establish their plans, programs, budgets, and internal organization and to structure their own governance; that they possess regulatory authority (autonomous and implementing); that they may structure themselves in order to allocate their powers within the institution’s internal sphere, decentralize functions to the extent legally possible and lawful, regulate the service they provide, and decide freely regarding their personnel.

All of these are powers arising from the administrative, political, organizational, and financial dimensions of the autonomy vested in public universities, the principal purpose of which is to provide the institution with all the legal conditions necessary to carry out independently its mission of higher culture and education (see judgments No. 92-495 and No. 93-1313). Accordingly, if one proceeds from this highest degree of university autonomy, it is more than evident that there would be a direct conflict with the content of Article 17 under review and that, consequently, it would be unconstitutional.

First, it should be noted that the provision establishes that Mideplán shall issue generally applicable provisions, directives, and regulations concerning senior technical management personnel (personal de alta dirección técnica), understood as the public servants in each of the bodies and entities who are responsible for one or more of the offices classified as management level under the general guidelines for administrative reorganizations, excluding all positions whose appointment is expressly regulated by the Political Constitution. This provides the first reason why the aforementioned Article 17 would be unconstitutional, since its content would infringe upon the university autonomy (autonomía universitaria) protected by Article 84 of the Political Constitution, pursuant to which public universities are outside the direction and hierarchy of the Executive Branch; consequently, under no circumstances could Mideplán impose its decisions upon them.

Second, it should be noted that the provision establishes that this governing authority (rectoría) of Mideplán is intended to provide the Public Administration with personnel profiles characterized by integrity and proven management, innovation, and leadership capabilities, in order to improve the provision of public goods and services. Once again, that objective would infringe upon the university autonomy protected by Article 84 of the Political Constitution, since public universities already have the power to organize, structure, and determine themselves in order to achieve similar objectives, or even to go beyond them because, by virtue of their nature and the type of service they provide in Costa Rican society, they possess all the administrative, economic, and political powers and authority necessary to carry out the special purpose legitimately entrusted to them, which is aimed at disseminating culture, research, and education among the population.

Third, if the overarching objective of the Ley de Empleo Público is to create a single, uniform public employment management system (sistema de gestión del empleo público), as stated in Article 1 of the bill under review, and Article 17 presupposes that public universities would be included within that overarching public employment system, then, once again, in light of Article 84 of the Constitution and the degree of complete autonomy enjoyed by public universities, it would be unconstitutional to require them to establish administrative regulations concerning their senior public management personnel (personal de alta dirección pública). This is because they could not be compelled to enact regulations in a particular direction or according to a specific school of thought, since this is a power vested exclusively in them, to be exercised independently and as part of their organizational autonomy (autonomía organizativa), rather than as an obligation or direction originating from a body of the Executive Branch. In view of this circumstance, the principles listed in Article 17 could not apply to state universities.

From this perspective, therefore, what is regarded as senior public management personnel within the public employment system would not necessarily correspond to what state universities might determine that term to mean, since this forms part of their full autonomy to organize, structure, and determine themselves. Furthermore, the appointment of such personnel could not be subject to the principles governed by Article 17, because those educational institutions have full autonomy to determine what those principles should be and may even, if they so choose, appoint no senior management personnel at all, or they could establish less hierarchical systems, all of which ultimately falls within their sphere of authority. Moreover, personnel whom public universities classify as senior public management, should they choose to do so, could be governed by principles different from those set forth in this provision. Likewise, it is for the state university to define matters relating to performance evaluation (evaluación del desempeño). These matters are also protected by the self-regulation, self-structuring, and self-organization enjoyed by those public educational institutions pursuant to Article 84 of the Constitution.

Consequently, it would be improper for an external body to assume governing authority over or unilaterally impose internal organizational criteria concerning the employment relationships of senior public management personnel at public universities, since all of this falls within their full autonomy. It must not be forgotten that this Chamber has already established the significance of that autonomy, holding that it extends to establishing their plans, programs, budgets, internal organization, and governance structure (see vote n°2008-013091).

Consequently, the content of Article 17 openly affects the degree of autonomy of state universities by granting broad powers to Mideplán to replace the powers and authority belonging to those universities; it also entails a violation of administrative decentralization (descentralización administrativa), which is a fundamental guarantee of the rule of law and presupposes that the authority of the Executive Branch is decentralized and that the Executive Branch is prohibited from intervening in the decisions of state universities. Although there may indeed be subjection to general constitutional principles applicable to the entire public sector—including state universities—there can never be subordination in the matters contemplated by Article 17 of the bill.

• i)Separate reasoning of Justice Garro Vargas concerning the unconstitutionality of Article 30 for infringing upon the autonomy of Public Universities I agree with the majority that Article 30 of the bill under review is unconstitutional because it infringes upon the autonomy of public universities. I must emphasize that, as I have previously stated, I believe that a general public employment framework setting forth, in general terms, the guiding principles (postulados rectores) for compensation management (gestión de la compensación) would not be unconstitutional. Nevertheless, under this bill, although compensation management appears, in principle, to allow the involvement of state higher education institutions in constructing the “overall salary structure” (columna salarial global) (Article 30, final paragraph), the fact remains that the final decision regarding how that overall salary structure is to be formed, the classification of job positions, and the remuneration policy will subsequently be established by bodies of the Executive Branch, to the detriment of university autonomy.

Therefore, irrespective of the distinction drawn by the majority, I consider that the creation of the salary-structure family and its characteristics falls within the sole and exclusive authority of the highest governing bodies of university entities, as an expression of their full legal capacity to establish their own organization.

I concede that the effects of the provisions of Article 30 are not as serious when applied to the Judiciary or the Supreme Electoral Tribunal as they are when applied to universities; the point, however, is that there is likewise no constitutional basis for applying that provision to the universities.

• j)Separate reasoning of Justice Picado Brenes regarding Article 30 of the bill, as to the guiding principles on compensation with respect to Public Universities (point 31 of the Por Tanto) Given that university autonomy is full and allows state universities to enact their own organizational legal rules under which they may govern, organize, and administer themselves, including within those areas all matters relating to human talent management (gestión del talento humano), it also logically follows that matters related to the salary compensation of university employees must be planned, developed, and implemented within the university itself, since that is where compensation levels that are appropriate and fair in relation to the work performed and the achievement of established goals can be determined on the basis of realistic criteria suited to the performance of their duties. It would therefore be invalid for an entity external to the state university, such as Mideplán, to determine the salaries of the state university’s public servants.

In that regard, only the public university would be responsible for establishing the guiding principles to be applied in this area, since it is evident that the parameters for making such a determination must reflect the specialized criteria applied within the state university, as well as the types of duties performed there. Accordingly, those knowledgeable in the relevant subject matter and working in the field itself are best positioned to establish the reasonableness and proportionality of the salaries set on the basis of the duties performed, schedules, work demands, degrees of hazardousness, employee travel, availability, location-based allowances (zonaje), and other factors to be considered when establishing salary scales and levels. I consider it impossible to apply general criteria originating from a body external to and removed from the state university’s working environment to duties as specific, technical, and specialized as those performed by university researchers and professors or academics, as well as by all the administrative and support personnel around them.

In that vein, it would be unrealistic for the institutions falling within the scope of public employment to be able to construct, jointly with Mideplán, the Budgetary Authority, and the General Directorate of Civil Service, an overall salary structure when, regardless of the extent of inter-institutional coordination, an attempt is being made to place in the same structure such disparate duties, disciplines, jobs, and individuals, with nothing more in common than their employment in the Public Administration.

Consequently, including public universities within the guiding principles governing compensation management developed in Article 30 of the Ley Marco de Empleo Público bill under review is contrary to Constitutional Law (Derecho de la Constitución), because those universities possess full autonomy to create and develop their own compensation measures, without external interference and in accordance with the specific nature of their constitutional purposes and of the employees who carry them out.

• k)Dissenting opinion (voto salvado) of Justices Hernández López, Garro Vargas, and Picado Brenes, drafted by the last-named Justice, regarding Article 30(b), as to the salary cap at Public Universities (point 32 of the Por tanto) We dissent from the majority’s opinion and consider Article 30(b) unconstitutional in its effects, since it is not valid for the salary of Nombre01 to serve as a cap on salaries at public universities, particularly when technical or other reasons justify different compensation. We consider that the bill proceeds from a mistaken premise: it assumes that the office of President of the Republic, because it is the highest office that may be held within the state hierarchy, entails greater responsibility, leading to the conclusion that it should receive the highest salary; 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 be based on subjective criteria, much less defined solely by reference to its hierarchical level, as the bill under consideration does. According to human resources experts, the following elements must be taken into account when setting the salary for a particular position: responsibility, authority, competencies or capabilities, professional education, negotiation skills, experience and, in some cases, even the applicant’s age. In recent years, some organizations have also taken soft skills into account, including the worker’s personality and ability to relate to others, leadership, communication, and other skills that tend to extend beyond technical competencies. If one adds to all this that, in the specific case of the President of the Republic, Article 131 of the Constitución Política provides that the only requirements for holding that office are being Costa Rican by birth and a citizen in good standing, belonging to the secular state, and being over 30 years of age, and that the officeholder also receives confidential-expense allowances and other benefits, it is more than evident that the criteria that might be used to set the President’s salary do not correspond to those applicable to other public servants, who are required to demonstrate suitability (idoneidad) for the position and, in professional positions, to hold a professional degree.

When the sovereign people elect the President of the Republic by popular vote, they do not necessarily choose the President on the basis of the objective elements used as parameters for setting a salary. Consequently, although it is true that the office of Nombre01 entails a high degree of responsibility for the person holding it, it is also true that the mere fact of being President of the Republic does not necessarily mean that the President’s salary should be imposed as a cap on all other public-sector salaries, since that cap lacks objective elements that would justify it. There is no technical and objective justification validating the proposition that the office of President should carry the highest salary, particularly when compared with other senior positions in the Public Administration for which the Constitución Política itself imposes more stringent professional requirements, such as Justices of the Supreme Court of Justice and the Supreme Electoral Tribunal (Articles 100 and 159), or other positions for which the Law requires an applicant to satisfy a series of requirements of greater significance than those required of the President of the Republic, such as the Attorney General of the Republic (Ley Orgánica de la Procuraduría General de la República, Article 9).

The same could be said of scientists or medical specialists. Accordingly, seeking to have the President of the Republic receive the highest salary merely by virtue of holding that office undoubtedly violates the principle of equality and non-discrimination (principio de igualdad y no discriminación). Moreover, such a salary cap is unreasonable and inconsistent, since Article 30(a) of the Ley Marco de Empleo Público bill itself provides that “the salary shall always be equal for equal work performed under identical conditions of efficiency, position, working hours, and other conditions, regardless of the public institution for which the person works.” Applying the foregoing to state universities in relation to Article 30(b), it would be unconstitutional to permit a rule under which a career university professor, belonging to an academic career system (régimen académico), with many years of teaching and research experience, publications, several undergraduate and graduate degrees, and responsibility for one or more academic units, would be required to receive compensation lower than that of Nombre01 solely because this bill so mandates and without supporting technical studies.

The foregoing would also infringe university autonomy (autonomía universitaria), which, as noted, extends to the administrative, political, financial, and organizational spheres. Furthermore, it must be stated that imposing salary caps based on a specific benchmark—such as the salary of Nombre01 in this case—seriously limits public servants’ prospects for intellectual and professional growth. On this point, the bill is contrary to the principle of equal pay (principio de igualdad salarial), which allows individuals to improve themselves and attain ambitious goals. A provision such as the one under consultation would lead to serious social and labor polarization, because public officials, particularly those at public universities, according to the consultation, would remain in their positions with static salaries and no opportunity whatsoever for advancement or growth once they had reached the salary cap set by the salary of Nombre01.

In the specific case of public universities, limiting the salaries of university personnel to the salary of the President of the Republic, particularly those of professors, academics, researchers, and persons engaged in social outreach, would also place a cap on knowledge, research, social and cultural outreach and, ultimately, the country’s development. Consequently, establishing a cap on the setting of their salaries, without taking into account the importance of the functions performed by public universities in the country and their leading role in the formation of Costa Rican democracy, is contrary to university autonomy and to the rules of science and technical expertise. In view of all the foregoing, we consider that Article 30(b) of the Ley Marco de Empleo Público bill infringes the Law of the Constitution (Derecho de la Constitución).

• l)Separate reasons of Justices Garro Vargas and Picado Brenes, drafted by the latter, concerning Articles 31, 32, and 34 of the bill, with respect to the compensation rules at Public Universities (point 33 of the Por Tanto) The principal purpose of university autonomy is to ensure all the legal conditions necessary for a state university to carry out its mission of culture and higher education independently; that mission consists not only of teaching, but also of conducting scientific research, cultivating the arts and letters, objectively and knowledgeably analyzing the country’s social, cultural, political, and economic reality, as well as that of its surroundings and the world, proposing solutions to major problems, and fostering ideas to achieve social development in every sphere. A state university, therefore, is not merely a place devoted to teaching but a center of free thought, and accordingly must be free from pressures or measures of any kind that tend to prevent it from fulfilling its mission independently and responsibly.

From this perspective, it would be wholly contrary to that university autonomy for an Executive Branch body—Mideplán in this case—to seek to impose guidelines or regulations concerning public employment matters, much less matters relating to the methodology for evaluating the work of its employees, the groups and grades of positions, and their valuation for salary-compensation purposes. Under Article 31 of the Ley Marco de Empleo Público bill, Mideplán will specify a job-evaluation methodology (metodología de valoración del trabajo) for the public service consisting of a “point-factor” system, under which positions will be assigned scores based on an analysis of relevant job factors, which Mideplán will also define. It should be noted that Mideplán assumes this task in its entirety, leaving no room for participation by the state university, despite the autonomy it enjoys and despite the fact that these positions and the matters relating to them fall within the university’s own sphere of authority, since it must not be forgotten that these are its workers employed to fulfill its purposes.

For its part, Article 32 of the bill under consideration likewise provides that Mideplán will determine the occupational families (familias laborales) of positions, as well as the grades comprising them and the characteristics of this entire framework. According to that provision, this will be done in response to an evaluation of all positions within the occupational family, with Mideplán playing a decisive role because, in addition to all the foregoing, it must issue guidelines concerning compensation points within the grades of each public employing entity, without the provision making any reference whatsoever to university autonomy, much less giving any special consideration to the specific nature of the universities’ fields of knowledge. It must be borne in mind that this general public-employment system also includes officials who perform substantive duties—those inherent to university activity—namely, those who perform teaching, research, and social and cultural outreach functions, as well as those who perform administrative, professional, and technical functions necessary for those educational institutions to fulfill their constitutionally assigned purposes in accordance with criteria of effectiveness and efficiency.

Finally, it must be considered that Article 34 of the bill under review provides that Mideplán will also prepare—together with the Secretaría Técnica de la Autoridad Presupuestaria and the Dirección General de Servicio Civil—the global salary scale (columna salarial global), without any exclusion being made for certain positions at public universities and, much less, as already stated, without even minimal reference to the full autonomy enjoyed by state universities, which allows them to manage all matters relating to human resources. Therefore, intervention by an external body such as Mideplán would infringe that autonomy.

It is more than evident that Mideplán will play an extremely active, but also virtually exclusive and exclusionary, role in this area. This, in turn, directly conflicts with university autonomy, under which all such tasks relating to human talent management in these areas fall within the sole and exclusive authority of the state university. Mideplán therefore could not seek to usurp those functions without openly conflicting with the provisions of Article 84 of the Constitution; accordingly, I consider Articles 31, 32, and 34 of the bill under consideration unconstitutional.

• m)Separate reasons of Justices Garro Vargas and Picado Brenes, drafted by the latter, concerning Article 33 of the bill, with respect to the classification of positions at Public Universities (point 34 of the Por Tanto) As already indicated, public universities enjoy full autonomy (autonomía plena), which empowers them to enact their own fundamental legal rules, encompassing administrative, political, financial, and organizational matters. Accordingly, they possess a broad range of administrative powers and authority to carry out their mission, including the power to determine their internal organization and manage all matters relating to human resources, within the limits established by the Political Constitution itself and the special laws governing their organization and operation. Consequently, it is abundantly clear that the Executive Branch and, in this case, Mideplán, could not exercise powers of direction or issue regulations regarding matters that fall within the purview of the universities, in view of the degree of autonomy they possess and the purpose constitutionally assigned to them concerning teaching, research, and social and cultural outreach.

From this perspective, Article 33 of the proposed Framework Law on Public Employment could not apply to public universities, since job classification (clasificación de puestos de trabajo) is a power protected by university autonomy (autonomía universitaria). It is therefore for each public university, as provided therein, to decide whether its personnel management will include a detailed job classification manual, which need not necessarily conform to the criteria previously established by Mideplán, because it will be prepared by each state university in accordance with the goals and work objectives it has established. Similarly, a public university cannot be subject to an obligation to provide that information to Mideplán, because the positions it decides to create will correspond to its institutional needs and purposes, not to any general interest that this body of the Executive Branch might have.

Consequently, the positions that a public university determines it requires to perform its functions and achieve its goals will be closely linked to teaching, research, and social and cultural outreach and, therefore, the description and evaluation of each position will fall within its sole and exclusive jurisdiction, without any form of external interference unrelated to the university sphere being permissible. Likewise, because the objectives of the various university positions are clearly aimed at achieving the purposes inherent to a public university, Mideplán could not seek to equate them with positions that may be assigned to another public institution of a different nature, since it would be entirely reasonable for their respective purposes not to coincide. Under this premise, seeking to have the job classification recognized in Article 33 of the proposed Law apply equally to all public institutions included in the general public employment system would disregard the fact that the original Constituent Assembly granted public universities, specifically, a unique and exclusive degree of autonomy; consequently, any law seeking to modify it would violate the Law of the Constitution (Derecho de la Constitución).

The same applies to Article 33 insofar as it includes, within its scope, university officials who perform substantive duties inherent to university autonomy, because subjecting them to its provisions would violate Article 84 of the Constitution, given that they are specialized personnel who perform teaching, research, and social and cultural outreach functions, as well as administrative, professional, and technical functions, all of which are necessary for fulfilling the functions constitutionally assigned to public universities. It must also be stated that it is abundantly clear that duties as specific and specialized as those assigned to public universities cannot be treated with the dismissive generality that the proposal under consideration seeks to impose.

• n)Justice Garro Vargas’s differing reasons regarding the constitutionality of Articles 35 and 36 with respect to Public Universities Regarding arts. 35 and 36 of the proposed law, I agree with the majority of the Chamber that these provisions are not in themselves unconstitutional. As I stated supra, it would not be unconstitutional for the legislature to regulate a public employment framework that generally establishes the governing principles guiding compensation management for all public servants. Indeed, arts. 35 and 36 provide for the transition of all public-sector institutions toward a unified salary regime (régimen salarial unificado) based on salary scales (columnas salariales), and I therefore consider that these provisions are not in themselves unconstitutional. However, in view of the constitutional framework governing public universities, I believe that the universities’ own governing authorities must define and implement their employees’ salary scales and, consequently, design the compensation policy (política de remuneración) in accordance with those scales. This is intended to ensure consistency within the system proposed for all public employment while also respecting the autonomy that the Constitution has enshrined for all university-level higher education institutions.
• ñ)Additional reasons of Justice Picado Brenes regarding Articles 35 and 36 of the proposal concerning the unified salary regime and Public Universities (point 35 of the Por Tanto) The Constitutional Chamber has unanimously concluded that the legislature’s establishment of a global salary (salario global) in the case of public universities is not unconstitutional; however, I believe that certain clarifications must be made in this regard.

-Public Universities themselves must establish their salary structure, while the unified salary policy for the public sector would operate solely as a general guideline: Although it is true that Article 56 of the Political Constitution establishes the worker’s right to receive financial compensation for services rendered, which does not entail a fundamental right to one or more salary supplements (pluses salariales), and that this is also a matter in which the legislature has broad discretion (libre configuración del legislador), it is equally true that this does not mean—in any way—that once that salary policy for the public sector has been established (as stated in the consulted art.35), university autonomy may be disregarded. Pursuant to this autonomy, the state university itself must, on the basis of certain general guidelines or parameters of the unified salary regime, specifically establish for itself the conditions, requirements, and characteristics necessary to structure its own salary policy for university employees, taking into account their duties, responsibilities, competencies, professional education, experience, etc. The public University itself must establish its unified salary regime, based on a global salary scale designed by the University itself.

This must, of course, remain within the bounds of what is possible in light of the general salary policy for the entire public sector, as regards its general guidelines and principles. This clarification is made so that the aforementioned Article 35 may be understood in its proper scope, since the proposal does not appear to safeguard university autonomy in this respect. In my view, Articles 35 and 36 must be construed in the terms set forth above, under which the University will observe the guidelines governing the salary-compensation policy established for the entire public sector, while retaining sufficient autonomy to adapt them to its needs and particular circumstances.

-The compensation policy issued pursuant to art.36 of the proposal under consultation must respect constitutional art.85: Pursuant to Constitutional Article 85, “The State shall provide the Universidad de Costa Rica, the Instituto Tecnológico de Costa Rica, the Universidad Nacional and the Universidad Estatal a Distancia with their own assets and shall create independent sources of revenue for them, apart from those generated by these institutions. In addition, it shall maintain … a special fund for financing State Higher Education…” Accordingly, such a compensation policy issued by the Executive Branch could not disregard the State’s constitutional obligation to provide public Universities with their own assets. It is further emphasized that this is a general compensation policy, since it should be noted that it is established by bodies of the Executive Branch and could never have the force of an order or directive.

-All university employees would be included within the university salary policy: As the wording of this opinion states, university entities are responsible for establishing their compensation policy, as well as the minimum starting salary on the single salary scale (columna salarial única) and the financial value assigned to each point on the global salary scale, using as parameters the principles and tenets established by the challenged provision. However, I disagree that the foregoing applies only to one category of university employees. I consider that university employees cannot be divided so that some are excluded from and others included in the salary scale to be established by the university itself, since this would create an odious distinction among individuals based on the duties they perform. All university employees are protected by university autonomy. Even though the Chamber states that “with the exception of those officials whom the heads of these entities decide to exclude from the scale because they perform basic auxiliary administrative functions that are not connected to the constitutionally assigned purposes.” ”, and although that determination is made internally by the university itself, the fact remains that each and every university employee, from the most modest position to whoever serves as Rector, provided that they belong to the administrative structure of the state university and are paid with that university’s funds, contributes through their work to the constitutional purpose for which the public university was created.

The university has been entrusted with higher education in order to educate citizens in the sciences and the arts, as well as to prepare them to practice the various professions taught there, all for the benefit of the community. Thus, at a public university, the custodian who cleans the classrooms, the administrative employee who prepares reports or collects tuition payments, the guard who watches over the buildings, the paramedic who drives the university ambulance, the teacher, and the academic all perform functions directed toward fulfilling the ultimate purpose of these educational institutions. Therefore, each and every one of them must be treated as part of the university’s operations viewed as a whole and, accordingly, compensated under the policies established by the public university pursuant to the autonomy that grants it the right of self-government, all within the framework established by the Constitution and the laws.

In this respect, separating employees from one another for purposes of compensation policy, even though all are working toward the achievement of a common goal, would entail not only a violation of university autonomy but also an infringement of the principle of equality and non-discrimination (principio de igualdad y no discriminación).

XII. Regarding the inquiry concerning a violation of the autonomy of the Caja Costarricense de Seguro Social.-

• 1)Matters submitted for consultation The consulting deputies consider that the following articles of the bill entitled “PUBLIC EMPLOYMENT FRAMEWORK LAW,” which is being processed under legislative expediente n° 21.336, violate the political autonomy (autonomía política) of the Caja Costarricense de Seguro Social (CCSS). Specifically, they request review of the following articles, identified either in the heading of the general title or elsewhere in the text of the filing:

 2.b (scope of coverage),  6 (governance by Mideplan),  7 (powers 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 matters related to public employment, namely: workforce planning, work organization, employment management, performance management, compensation management, and labor-relations management.

In this regard, before proceeding to examine the constitutionality of the challenged provisions, it is appropriate to recall the constitutional scope and limitations of the autonomy of the Caja Costarricense de Seguro Social, as established by constitutional case law.

• 2)Case-Law Background Regarding the Governing Autonomy (Autonomía de Gobierno) of the Caja Costarricense de Seguro Social On repeated occasions, as stated in judgment n°2011-14624 at 15:50 hours on 26 de octubre de 2011, this Court has held that the Caja Costarricense de Seguro Social (CCSS) enjoys administrative and governing autonomy (autonomía administrativa y de gobierno), pursuant to Article 73 of the Political Constitution, and may therefore issue provisions relating to its internal governance. The Ley Constitutiva de la Caja Costarricense de Seguro Social itself, number 17 of 22 de octubre de 1943, published in La Gaceta number 329 of 27 de octubre de 1943, provides as follows in Article 70:

“The Administrative Career Service (Carrera Administrativa) of the Caja Costarricense de Seguro Social is hereby created, for the regulation of which (sic) the Board of Directors shall establish the conditions governing the admission of employees into the service of the Institution, job-stability guarantees, their duties and rights, the manner of filling vacancies, promotions, grounds for removal, the schedule of sanctions, the procedure for adjudicating violations, and any other necessary provisions….” Furthermore, Article 14 subsection f) grants the Board of Directors of the CCSS the authority to regulate the operation of the institution, thereby conferring upon it the power to issue rules, including rules governing the employment regime (régimen de los funcionarios) for the officials required by the institution to fulfill the responsibilities assigned to it by the Political Constitution and its Ley Constitutiva; this is constitutional, as stated in that precedent:

“…In that context, the possibility that the Institution may itself establish the different types of employment relationships with its officials, whether through a statutory employment relationship (relación estatutaria) or under special arrangements, such as the Reglamento de Reclutamiento y Selección de Profesionales en Farmacia, Odontología y Trabajo Social, is not unconstitutional. The Caja Costarricense de Seguro Social may establish the rules for selecting officials who hold positions within that institution, while respecting the specific purposes of the public services provided by the Caja Costarricense de Seguro Social (Articles 73, 191, and 192 of the Political Constitution). Accordingly, Article 21 of the Ley Constitutiva provides as follows: “Article 21.- The Personnel of the Caja shall be appointed on the basis of demonstrated suitability, and promotions in rank shall be granted by considering the worker’s merit first and then length of service.” Based on the foregoing, as well as on a reading of constitutional provision 191, it is clear that the inescapable rule is precisely that public officials must be governed by a statutory employment relationship, that is, by rules imposed by the Administration in its capacity as employer, with a view to the efficient and effective provision of the public services that each administrative body is called upon to provide.

Although the Constituent Assembly may have envisioned a single statutory system, the fact remains that the wording ultimately given to Article 191, together with the process of profound decentralization experienced by the Costa Rican State beginning in mil novecientos cuarenta y nueve, makes the existence of various statutory employment relationships within the Administration valid today, in light of the functional independence and administrative autonomy that the legal system guarantees to several public institutions.” The foregoing is consistent with the autonomy granted by the Constituent Assembly to certain institutions and, in this specific case, with that conferred upon the Caja Costarricense de Seguro Social by Article 73, defined as governing autonomy, which is necessary to enable it to fulfill the special duties assigned to it without interference from the Executive Branch.

In judgment n°2011-15665 at 12:40 hours on 11 de noviembre de 2011, reiterated in 2017-4797, the following was stated, particularly in relation to the C.C.S.S.:

“…In this case, we are dealing with a decentralized entity created by the Constitution, whose degree of autonomy, also defined by the Constitution itself, is second-degree autonomy (autonomía de grado dos), which must be understood to include the powers to formulate plans or establish the entity’s purposes and goals, to establish its own internal mechanisms for functional and financial planning through budgets, and to exercise autonomous regulatory authority (potestad reglamentaria autónoma). In the specific case of the administration of the pension system entrusted to the Caja Costarricense de Seguro Social, this translates—at a minimum—into the power to define for itself, to the exclusion of any legislative authority, three fundamental aspects of pensions: the amount of contribution payments, the number of contributions workers must pay to qualify for a pension, and the retirement age. It is precisely this greater degree of autonomy enjoyed by the Caja Costarricense de Seguro Social in comparison with other autonomous institutions that explains why 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 18 de setiembre del 2001. See Article 1° of that law:

“Article 1.- Scope of Application This Law regulates the economic and financial regime (régimen económico-financiero) of the bodies and entities that administer or hold public funds. It shall apply to:

• a)The Central Administration, composed of the Executive Branch and its subordinate agencies.
• b)The Legislative and Judicial Branches, the Tribunal Supremo de Elecciones, their subordinate agencies and auxiliary bodies, without prejudice to the principle of separation of powers established in the Political Constitution.
• c)The Decentralized Administration and State-owned public enterprises.
• d)State universities, municipalities, and the Caja Costarricense de Seguro Social, solely with respect to compliance with the principles established in Title II of this Law concerning responsibilities and the provision of information required by the Ministerio de Hacienda for its studies. In all other respects, they are exempted from the scope and application of this Law (…)” This demonstrates that the Caja Costarricense de Seguro Social is invariably placed in a special category among autonomous institutions because, unlike those institutions, it was not only created by the Constitution but also enjoys a greater degree of autonomy, comparable to the degree of autonomy enjoyed by municipalities, namely governing autonomy. This entails a degree of protection from interference by the Executive Branch, as well as limitations on intervention by the Legislative Branch. Although the CCSS is certainly not beyond the reach of the law, the law may not “modify or alter” the authority and autonomy constitutionally granted to the CCSS by defining matters falling within its exclusive purview.

Because the Caja Costarricense de Seguro Social is fundamentally an autonomous institution created by the Constitution, the subject matter constitutionally placed within its jurisdiction lies beyond the reach of legislative action. In other words, with respect to the administration and governance of social insurance (seguros sociales), the legislature is subject to limitations and must respect what the Constituent Assembly established. Just as the legislature would be barred from enacting a law providing that the administration and governance of social insurance no longer belong to the Caja Costarricense de Seguro Social, it likewise may not enact a law that intrudes into matters intrinsic or pertaining to the authority of the CCSS in the administration and governance of social insurance. In this regard, see what this Chamber held in decision number 2001-010545 at 14:58 hours on 17 de octubre del 2001:

“… It is clear that the law may not interfere in matters concerning the governance of the Caja Costarricense de Seguro Social by virtue of the full autonomy (autonomía plena) enjoyed by that institution…” (Criterion reiterated in decision number 2001-011592 at 09:01 hours on 09 de noviembre del 2011).

As an additional argument, it should be emphasized that the provision defining the functions and purposes of the Caja Costarricense de Seguro Social appears in our Constitution in the chapter on social rights and guarantees, whereas the provisions concerning Autonomous Institutions appear in a different Title XIV. From a systematic and systemic interpretation (interpretación sistemática y sistémica), this difference in placement reflects that, in creating the social-security institution, the Constitution itself seeks to provide individuals with protection based on solidarity and as a priority by virtue of their inherent status; clearly, this is an institution that embodies the spirit of solidarity underlying Articles fifty and seventy-four of the Constitution. The intent is to guarantee every person that the solidarity-based State will ensure health care, a pension, disability benefits, and all other aspects of social security. This provision thus 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 may undermine that constitutional authority.” Subsequently, in judgment n°2007-18484, reiterated in 2018-6549, this Court addressed the scope of the different types of autonomy as follows:

“A) Scope of the administrative autonomy (autonomía administrativa) of autonomous institutions, and their subjection to the law in matters of governance (…). The degree of administrative autonomy—minimum or first-degree—is inherent to autonomous institutions; governing autonomy (autonomía de gobierno)—second-degree—is inherent to municipalities and to the Caja Costarricense del Seguro Social with respect to the administration of social insurance; and organizational autonomy (autonomía de organización)—full or third-degree—is inherent to State universities. A decentralized entity (ente descentralizado) created by ordinary legislation is subordinate to the content thereof, and this entails the legislative power to modify and even abolish it; however, because decentralization means that all the powers of the administrative head (jerarca administrativo) are vested in the entity, its legal personality encompasses all the administrative powers necessary to perform its mandate independently.

Thus, in Article 188, the Constitución Política guarantees every subordinate public entity (ente público menor), distinct from the State, minimum or first-degree administrative autonomy, that is, the power of self-administration (potestad de auto-administrarse), without being subject to any other public entity and without the need for a statutory provision so prescribing, in order to allocate its human, material, and financial resources as it deems most appropriate for the effective and efficient fulfillment of its assigned duties and purposes. Accordingly, the central government has several limitations regarding its interference with autonomous institutions: it may not act as the head of the decentralized entity; it may not control it by restricting the entity’s activities on grounds of expediency (razones de oportunidad); nor may it direct the management of the autonomous entity by imposing guidelines or basic programs.

However, as Article 188 of the Constitution itself states, autonomous institutions are subject to the law in matters of governance. Consistent with the foregoing, administrative autonomy is not incompatible with autonomous institutions being subject to the law; thus, the entity’s objectives, purposes, and goals are established by the legislature” (Emphasis not in the original).

As indicated in the cited case law, in addition to enjoying administrative autonomy, the CCSS also possesses political or governing autonomy. Consequently, the Poder Ejecutivo is subject to several limitations regarding its interference with the CCSS. It may not act as its head; it may not control it by restricting its activities on grounds of expediency; nor may it direct the management of that entity by imposing guidelines or basic programs. Likewise, regarding the autonomy of this particular institution, the Sala, in judgment n°1994-6256, issued an opinion reiterated in judgments 2011-15665 and 2017-4797, which states:

“III.- THE CAJA COSTARRICENSE DE SEGURO SOCIAL.- The Asamblea Nacional Constituyente, as recorded in Actas Nos. 125 and 126, approved the inclusion of the Caja Costarricense de Seguro Social, essentially following the original text of the Constitución de 1871; that is, the institution was transplanted from the Constitución de 1871, as amended in 1943, into the Constitución de 1949. However, for purposes of the consultation, the remarks made on the subject by Constituyente Volio Jiménez are illuminating. The following is transcribed from page 34 of Tomo III of the Actas de la Asamblea Nacional Constituyente: “Moreover, sooner or later, the Caja would have to assume the risk of unemployment, which would resolve the serious problem posed by severance. He insisted that weakening the Caja did not seem appropriate to him. The prudent course is to strengthen it. Hence, the most advisable course is to leave matters as they stand, granting the Caja full autonomy so as to make it independent of the Poder Ejecutivo”; and page 36 idem adds: “In that regard, the most appropriate course is to retain the wording of Article 63, which is suitable at least for the trial period.

Anything that entails limiting the resources of the Seguro Social would undoubtedly constitute an inexplicable setback.” When the article was approved, a second paragraph was included, which literally stated: “The administration and governance of social insurance shall be entrusted to an autonomous institution,” wording that was subsequently amended by Ley No. 2737 de 12 de mayo de 1961 and now reads as follows: “The administration and governance of social insurance shall be entrusted to an autonomous institution known as Caja Costarricense de Seguro Social.” In conclusion, the Constituent Assembly vested the administration and governance of social insurance in the Caja Costarricense de Seguro Social, as an autonomous institution created by the Constitución Política itself, possessing the special characteristics conferred upon it thereby and sharing the general principles arising from its status as a decentralized entity…

…Legal doctrine concurs that all forms of preventive intervention occurring before the autonomous entity issues an act are prohibited, except for prior-review functions (funciones de control previo) required for the validity of such acts (authorizations); the central government may not act as the head of the decentralized entity; it may not control it by restricting the entity’s activities on grounds of expediency; nor may it direct the management of the autonomous entity by imposing guidelines or basic programs. All these defining characteristics of decentralized entities originating in a supermajority law (ley reforzada) (Article 189 subsection 3) of the Constitución Política) are equally applicable, where relevant, to autonomous institutions created by the Constitución Política itself, except that the conditions specially and exclusively conferred on the entity by the Constitution shall prevail.” Consequently, even with respect to hiring its personnel, it possesses that power of self-administration, since fulfillment of its constitutionally assigned purposes also depends on it. As an illustration of the service’s particular characteristics and needs, for example, in judgment 2019-11130 de las 10:30 horas del 19 de junio de 2019, this Tribunal stated:

“In this regard, this Tribunal finds that the article does indeed provide that ‘for the evaluation of credentials (calificación de atestados) and allocation of points, the Comisión Técnica de Enfermería shall evaluate competitive selection processes (concursos) in accordance with (…) One point shall be awarded for each year of service or fraction exceeding six months, up to a maximum of ten points in areas outside the Meseta Central (…)’. However, this provision is not considered to violate the principle of equality (principio de igualdad) and thereby become unconstitutional; rather, this decision has a reasonable justification, namely, to encourage nursing professionals to accept positions outside the Meseta Central by offering them the incentive of receiving a higher score in future competitive selection processes for positions located in more sought-after areas. Thus, the regulations seek not only to select the most qualified candidate, but also to encourage nursing professionals to accept work in remote and less desirable locations and, in this manner, to promote the provision of nursing services, which are necessary for the proper delivery of medical services, throughout all regions of the country. This is consistent with the principles of social solidarity (principios de solidaridad social).

It is therefore clear that the Constituent Assembly granted it such autonomy, allowing it to select its personnel under the standards it requires to fulfill its purposes, while respecting the constitutional principles established in Articles 191 and 192 of the Constitution. This opinion was reiterated by the Sala in judgments numbers 03065-98, 10545-01 and 12494-11, stating:

‘…the various establishments of the Caja may, pursuant to the constitutional principle of administrative and governing autonomy (principio constitucional de autonomía de administración y gobierno), adopt the measures necessary to reorganize and improve their services, in order to best satisfy their users and the public interest, which by its nature could never cease to prevail over private interests.’” The autonomy granted to the Caja Costarricense de Seguro Social by the original constituent authority protects it from interference by the Poder Ejecutivo and the Poder Legislativo, as evidenced by Judgment 03065-98 de las 18:18 horas del 6 de mayo de 1998 (reiterated in 2001-10545), which states:

“…This demonstrates that the Caja Costarricense de Seguro Social has always been placed in a special category among autonomous institutions because, unlike them, not only was it created by the Constitution, but it also possesses a greater degree of autonomy, comparable to the degree of autonomy enjoyed by municipalities, namely, governing autonomy. This entails a degree of protection against interference by the Poder Ejecutivo, as well as limitations on intervention by the Poder Legislativo. Although the CCSS is certainly not exempt from the law, the law may not ‘modify or alter’ the authority and autonomy constitutionally granted to the CCSS by defining matters within its exclusive purview. Because the Caja Costarricense de Seguro Social is fundamentally an autonomous institution created by the Constitution, matters falling within the authority constitutionally conferred upon it are beyond the reach of legislation.

In other words, with respect to the administration and governance of social insurance, the legislature is subject to limitations and must respect what the Constituent Assembly established. Just as the legislature would be prohibited from enacting a law providing that the administration and governance of social insurance no longer belong to the Caja Costarricense de Seguro Social, it likewise may not enact a law that intrudes into matters inherent or pertaining to the CCSS’s own determinations concerning the administration and governance of social insurance…As an additional argument, it should be emphasized that the provision defining the functions and purposes of the Caja Costarricense de Seguro Social appears in the chapter on social rights and guarantees of our Carta Magna, whereas the provisions concerning Autonomous Institutions appear in a separate Title XIV; from a systematic and systemic interpretation (interpretación sistemática y sistémica), this difference in placement reflects that, in creating the social security institution, the fundamental law itself seeks to afford persons solidarity-based and priority protection by virtue of their status as such; clearly, this is an institution that embodies the spirit of solidarity underlying Articles fifty and seventy-four of the Constitution.

The intent is to guarantee every person that the solidarity-based State will ensure healthcare, a pension, disability benefits, and all matters pertaining to social security. This provision thus becomes not only a purpose or guide for State action but also a limit in itself, by ensuring that neither the Poder Ejecutivo nor the Poder Legislativo may impair that constitutional authority.” It follows from the foregoing that the Caja Costarricense de Seguro Social (CCSS), pursuant to a constitutional provision (art.73), enjoys administrative and governing autonomy. This means that, as a functionally decentralized entity, it may establish the rules for selecting its personnel, and the existence of a special regulatory framework governing its statutory employment relationship (relación estatutaria), designed to address and safeguard its degree of autonomy, is valid in this case. That degree of autonomy also allows it to administer itself (manage its human, material, and financial resources); establish its own internal organization; determine objectives, goals, and the types of means for achieving them; and issue autonomous service or operational regulations, in accordance with provisions commonly referred to as general policy.

Thus, as an autonomous institution created by the Constitution and possessing a greater degree of autonomy (administrative and governing), it is protected against interference by the Executive Branch and against limitations imposed through legislation by the Legislative Branch (which may not alter its degree of autonomy by statute). Accordingly, the Executive Branch may not act as a director of this institution or in a hierarchical relationship toward it; it may not impose guidelines, issue orders, or exercise control over the expediency of its activities.

• 3)Specific analysis of the matters submitted for consultation Regarding Article 2.b.- Scope of coverage with respect to 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, violates Articles 73 and 188 of the Constitution by subjecting that institution, which enjoys constitutionally established administrative and governing autonomy in public employment matters, to the bill. In this regard, consistent with the position upholding the constitutionality of this provision with respect to other institutions, Article 2 subsection b) is not unconstitutional in itself insofar as it includes the CCSS within a general regulatory framework for public employment; however, it is unconstitutional in its effects because some provisions of this bill deprive its governing autonomy of substantive content, as will be specifically discussed in the following sections.

It should be recalled that, pursuant to Article 3 of the Ley de la Jurisdicción Constitucional, “The Constitution shall be deemed infringed when such infringement results from comparing the text of the challenged provision or act, its effects, or its interpretation or application by public authorities, with constitutional rules and principles.” In other words, a provision may be unconstitutional not because of its literal wording, but because of the effects it produces or would produce. Returning to the discussion above, it is plausible to subject all branches and institutions of the State to a single public employment statute. However, insofar as such subjection goes beyond general principles and encroaches upon matters falling within the CCSS’s governing autonomy, it is indeed unconstitutional in its effects, because a constitutional institution with the degree of autonomy enjoyed by the CCSS cannot be subjected to guidelines, provisions, circulars, and manuals issued by Mideplán.

The CCSS’s special degree of protection, arising from its degree of autonomy, renders the CCSS’s subjection to this general public employment bill unconstitutional in its effects. “Although the CCSS is certainly not exempt from the law, the law may not ‘modify or alter’ the authority and autonomy constitutionally granted to the CCSS by defining matters that fall within its exclusive purview.” (judgment n°2011-12494). In conclusion, although the CCSS may by law be subject to general public employment regulations, insofar as those regulations violate its governing autonomy—as Articles 6, 7, 9, 13, 14, 17, and 18 of the bill, which are the provisions submitted for consultation, do in fact—the aforementioned subsection b) of Article 2 of the bill would be unconstitutional in its effects.

Regarding Article 6.- Mideplán’s power of direction (potestad de dirección) with respect to the CCSS (drafted by Justice Castillo Víquez) Article 73 of the Political Constitution assigns the administration and governance of social insurance to the CCSS. For that purpose, as can readily be inferred, matters relating thereto—the establishment of goals and objectives—as well as the setting of employee-employer contributions (cuotas obrero-patronales), logically mean, from a legal standpoint, that neither the Executive Branch nor one of its bodies—Mideplán—may exercise the power of direction—by issuing guidelines to it—or regulatory authority (potestad reglamentaria). This position is constitutionally valid with respect to public employment matters, specifically those public officials essential to fulfilling the constitutionally assigned purposes, as well as the administrative, professional, and technical personnel whom the CCSS’s highest authorities designate within the respective job family (familia de puesto), which those authorities shall have the sole and exclusive power to establish.

The foregoing means that some public employees of that entity—those who perform basic, auxiliary administrative duties—could indeed be placed under the governing authority (rectoría) of the Executive Branch or Mideplán. Taking these premises as a roadmap, the provisions submitted for consultation will be analyzed after reviewing the case law of this Court.

As this Court has repeatedly stated, including in judgment No. 2011-14624 of 15:50 hours on October 26, 2011, the CCSS enjoys administrative and governing autonomy pursuant to Article 73 of the Political Constitution and may therefore issue provisions concerning its internal governance. 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, itself provides as follows in Article 70:

“The Administrative Career Service of the Caja Costarricense de Seguro Social is hereby created, for the regulation of which (sic) the Board of Directors shall establish the conditions governing employees’ entry into the service of the Institution, guarantees of job security, their duties and rights, the manner of filling vacancies, promotions, grounds for removal, the scale of penalties, procedures for adjudicating violations, and any other necessary provisions…”.

Furthermore, Article 14 subsection f) grants the CCSS Board of Directors the authority to regulate the institution’s operations, thereby conferring upon it the power to issue rules, including rules governing the system applicable to the officials whom the institution requires in order to discharge the responsibilities assigned to it by the Political Constitution and its Ley Constitutiva; as stated in that precedent, this is not unconstitutional:

“…In that context, the Institution’s ability to establish for itself the different types of employment relationships with its officials, whether through a statutory employment relationship or under special arrangements, as in 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 may establish rules for selecting officials who hold positions within that institution, while respecting the specific purposes involved in the provision of the public service entrusted to the Caja Costarricense de Seguro Social (Articles 73, 191, and 192 of the Political Constitution). Accordingly, Article 21 of the Ley Constitutiva provides as follows: "Article 21.- The Caja’s Personnel shall be selected on the basis of demonstrated suitability, and promotions in rank shall be granted by considering the employee’s merit first and then length of service." Based on the foregoing, as well as on a reading of constitutional Article 191, it is clear that the mandatory rule is precisely that public officials must be governed by a statutory employment relationship, that is, by rules imposed by the Administration in its capacity as employer, with a view to the efficient and effective provision of the public services that each administrative body is required to offer.

Even though the Constituent Assembly contemplated a single statutory system, the fact remains that the final wording of Article 191, together with the profound decentralization process experienced by the Costa Rican State beginning in nineteen forty-nine, makes the existence of different statutory employment relationships within the Administration valid today, in light of the functional independence and administrative autonomy that the legal system guarantees to several public institutions.” (Voto. No. 12494 of 12:48 hours on November 11, 2011).

As a corollary to the foregoing, the original Constituent Assembly contemplated the enactment of a single statute governing public employment relationships; however, the legislature chose to enact different statutes which, according to this Court’s precedents, are valid provided that the principles of suitability and job security in public employment are respected. In the bill under review, the legislature has chosen to create a single statute governing service relationships throughout the Public Administration, which is likewise consistent with the Law of the Constitution. Nevertheless, with respect to certain entities, such as the CCSS, even the legislature itself may not, given the institution’s degree of autonomy, subject it to the orders, guidelines, and regulations of an Executive Branch body, as this would contravene the degree of autonomy and protection granted to that institution by the Political Constitution.

The Constituent Assembly itself established exceptions to that single regulatory framework, precisely because matters that are not alike cannot be treated as equivalent, nor may the sphere of autonomy enjoyed by certain institutions, such as the CCSS, be impaired, given that these institutions possess certain special characteristics that reasonably distinguish them from the rest of the Administration, specifically so that they may fulfill the purposes constitutionally entrusted to them.

Article 6 is unconstitutional because it does not exclude from the power of direction officials who participate in activities connected with the purposes constitutionally assigned to the CCSS, those who hold senior policymaking positions, and all administrative, professional, and technical officials designated by the highest bodies of the insuring entity. Ergo, the provision is constitutional only with respect to basic, auxiliary administrative personnel, who would fall within the job family specified in Article 13, subsection a) of the bill.

Regarding Article 7.- Mideplán’s powers with respect to the CCSS (drafted by Justice Castillo Víquez) With respect to Article 7, the same position stated regarding Article 6 is maintained; moreover, it subjects the CCSS to Mideplán’s regulatory authority in matters over which the CCSS has sole and exclusive authority to achieve the constitutional purpose assigned by the original Constituent Assembly.

Regarding Article 9.- Human Resources Office at the CCSS (drafted by Justice Picado Brenes) The provision submitted for consultation states as follows:

“ARTICLE 9- Functions of active administrative bodies (administraciones activas) a) The human resources management offices, departments, areas, directorates, units, or equivalent organizational bodies of the institutions included in Article 2 of this law shall continue performing their functions in accordance with the applicable regulatory provisions in each public agency.

Likewise, they shall apply and implement the generally applicable provisions, directives, and regulations relating to planning, work organization, employment management, performance management, compensation management, and labor relations management that the Ministerio de Planificación Nacional y Política Económica (Mideplán) forwards to the respective institution, pursuant to Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, and Article 46 of Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

• b)The human resources management offices, departments, areas, directorates, units, or equivalent bodies shall be responsible for preparing and administering knowledge, competency, and psychometric tests for personnel recruitment and selection processes and for conducting internal and external competitive examinations based on merit, which shall always meet at least the standards established by the Dirección General de Servicio Civil for each position, according to its area of competence, and the guidelines issued pursuant to Article 46 of Ley 2166, Ley de Salarios de la Administración Pública, de 9 de octubre de 1957.

In addition, they shall include those competitive examinations in the Public Administration’s public employment offering and 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 those specific to the institution and position.

• c)The institutional human resources management offices of ministries and affiliated institutions or bodies falling within the scope of the Estatuto de Servicio Civil are technical units of the Dirección General de Servicio Civil, which, for all purposes, shall coordinate the preparation of personnel recruitment and selection tests with those offices and perform its advisory, training, and technical support functions.” As can be seen, the Article 9 under review establishes certain functions for all human resources offices, departments, areas, directorates, or units of all institutions included in the bill, including the Dirección y Administración de Gestión de Personal de la CCSS. Thus, specifically with respect to the inquiry concerning the CCSS, the second paragraph of subsection a) requires that department to apply and implement the generally applicable provisions, directives, and regulations relating to planning, work organization, employment management, performance management, compensation management, and labor relations management that Mideplán forwards to it.

This would entail an Executive Branch body, such as Mideplán, requiring this institution, which enjoys political autonomy, to apply and implement its provisions, directives, and regulations in matters falling within the exclusive purview of that institution, such as planning, work organization, employment management, performance management, compensation or salary management, and labor relations management. Such an obligation imposed on the CCSS human resources directorate clearly violates its political autonomy, in accordance with the scope attributed to it by constitutional case law. It should be recalled that, specifically concerning the CCSS, this Chamber has held that: “in the case of a decentralized entity created by the Constitution, whose degree of autonomy, likewise defined by the Constitution itself, is of the second degree, such autonomy must be understood to include the powers to formulate plans or establish the entity’s purposes and goals, to establish internal mechanisms for functional and financial planning through budgets, and to exercise autonomous regulatory authority.” Accordingly, “the Caja Costarricense de Seguro Social is always placed in a special category among autonomous institutions because, unlike them, it was not only created by the Constitution but also enjoys a greater degree of autonomy, comparable to the autonomy enjoyed by municipalities, namely, governmental autonomy.

This entails a degree of protection against interference by the Executive Branch, but also limitations on intervention by the Legislative Branch.” (judgment n°2011-15665 and n°2017-004797). Among the limitations imposed on both the Executive Branch and the Legislative Branch with respect to the CCSS is that the “Caja Costarricense de Seguro Social may establish the rules for selecting officials who hold positions within that institution…” (judgment n°2011-14624). Indeed, “the central government is subject to several limitations regarding its interference with autonomous institutions: it may not act as the head of the decentralized entity; it may not control it by restricting the entity’s activities on grounds of expediency; nor may it direct the management of the autonomous entity by imposing guidelines or basic programs.” (judgment n°2007-18484 and n°2018-006549). This is because, “although the CCSS is certainly not exempt from the law, the latter may not ‘modify or alter’ the authority and autonomy constitutionally conferred upon the CCSS by defining matters that fall within its exclusive purview.

Because the Caja Costarricense de Seguro Social is fundamentally an autonomous institution created by the Constitution, the matters constitutionally placed within its authority lie beyond the reach of ordinary legislation. Put differently, in matters concerning the administration and governance of social insurance, the legislature is subject to limitations and must respect what the Constituent Assembly established.” (judgment n°2011-12494). Thus, the Executive Branch may not act as a director of, or in a hierarchical relationship toward, this institution, and may not impose guidelines upon it, issue orders to it, or exercise expediency control over its activities. Therefore, the Article 9 at issue is unconstitutional insofar as it seeks to require the CCSS human resources department to apply and implement the generally applicable provisions, directives, and regulations relating to planning, work organization, employment management, performance management, compensation management, and labor relations management that Mideplán forwards to it.

Regarding Article 13.b.—Position Family (Familia de Puestos) with respect to the CCSS (drafted by Justice Castillo Víquez) Article 13, subsection b), is unconstitutional because it does not include within that subsection the personnel who perform substantive, administrative, professional, and technical work necessary to fulfill the purposes constitutionally assigned to the CCSS, as 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 infringed by seeking to subject it to provisions issued by an Executive Branch body concerning the recruitment and selection of its personnel. The Article 14 at issue provides as follows:

“ARTICLE 14—Recruitment and selection The recruitment and selection of newly hired public servants shall be carried out on the basis of demonstrated suitability (idoneidad comprobada), for which purpose the Ministerio de Planificación Nacional y Política Económica (Mideplán), in strict compliance with Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, shall issue generally applicable provisions, directives, and regulations according to the respective position family.

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

• a)Being related by consanguinity or affinity, in the direct or collateral line up to and including the third degree, to the immediate supervisor or to that supervisor’s immediate superiors in the respective unit.
• b)Being listed in the register of ineligible persons on the integrated public employment platform.” As has already been duly established, pursuant to Articles 2 and 13 of the same bill and as provided in this Article 14, the CCSS would also be subject to the generally applicable provisions, directives, and regulations issued by Mideplán concerning the recruitment and selection of newly hired 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 them, it was not only created by the Constitution but also enjoys a greater degree of autonomy, comparable to the autonomy enjoyed by municipalities, namely, governmental autonomy. This entails a degree of protection against interference by the Executive Branch, but also limitations on intervention by the Legislative Branch.” (judgment n°2011-15665 and n°2017-004797).

Moreover, this Chamber has clearly held that the “Caja Costarricense de Seguro Social may establish the rules for selecting officials who hold positions within that institution…” (judgment n°2011-14624). In that regard, any external interference by another branch of government in matters belonging to the CCSS that infringes its autonomy is invalid. On that understanding, it is impermissible for an Executive Branch body, in this case Mideplán, to impose upon the CCSS provisions concerning its personnel recruitment and selection processes, a matter that, as noted, is inherent in the degree of autonomy enjoyed by this constitutional institution. Consequently, that Article contains a constitutional defect insofar as it applies 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 provides as follows:

“ARTICLE 17—Senior public management personnel The Ministerio de Planificación Nacional y Política Económica (Mideplán) shall issue generally applicable provisions, directives, and regulations concerning senior public management personnel that are consistent with Ley 6227, Ley General de la Administración Pública, de 2 de mayo de 1978, in order to provide the Public Administration with personnel profiles demonstrating integrity and proven managerial, innovative, and leadership capabilities, with a view to improving the provision of public goods and services. (…)” The petitioners allege an infringement of the CCSS’s governmental autonomy because this provision establishes that, with respect to senior management positions, Mideplán shall issue the relevant generally applicable provisions, directives, and regulations.

In this regard, consistent with the manner in which this Chamber has been ruling on these matters, the interference by this Ministry, which is an agency of the Executive Branch, through the issuance of generally applicable provisions, directives, and regulations governing senior management positions (puestos de alta dirección) at the CCSS, violates its autonomy of government (autonomía de gobierno). All matters relating to senior management positions are already subject to special regulation under the CCSS’s own internal rules. It should be recalled that this Chamber has held that the CCSS “may establish the rules for selecting officials who hold positions at that institution, but must respect the specific purposes involved in the provision of the public service of the Caja Costarricense de Seguro Social (Articles 73, 191, and 192 of the Political Constitution).” (judgment n°201114624). The Executive Branch “…is subject to several limitations regarding its interference with autonomous institutions; thus, it may not act as the highest authority of a decentralized entity: it may not control it by limiting the entity’s activities on grounds of expediency; nor may it direct the management of the autonomous entity by imposing guidelines or basic programs.” (judgment n°2018-6549).

It should be noted that these positions are of great importance, as they would include, at a minimum, those responsible for managing the various Management Offices and Directorates, among others. These positions are highly significant for faithfully fulfilling the purposes related to social security entrusted to the CCSS; they must be particularly protected from interference by the other Branches of the Republic and require the personnel stability necessary for the proper and impartial performance of their duties, which is incompatible with subordination to the provisions issued in this regard by Mideplán, as stipulated by the provision in question. Accordingly, Article 17 under review is considered to contain a constitutional defect (vicio de inconstitucionalidad), on the grounds set forth above.

Regarding Article 18.- Terms of Office for Senior Management Personnel at the CCSS (drafted by Justice Picado Brenes) In the opinion of the petitioners, Article 18 under review is unconstitutional because it affects a matter falling within the CCSS’s own jurisdiction by establishing that appointments to technical senior management positions (puestos de alta dirección técnica) shall be for 6 years, with a probationary period (período de prueba) of 6 months, renewable annually, subject to performance evaluation (evaluación de desempeño). Article 18 under review provides as follows:

“ARTICLE 18- Appointment and probationary period for public senior management Every public servant appointed to a public senior management position shall be on probation for a period of six months, and the 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. (…)” In this regard, the regulation of matters relating to the appointment and selection of personnel, as is also the case with technical senior management positions, the probationary period, and the term or conditions for renewing appointments, are regulations that properly pertain to the political autonomy (autonomía política) of the CCSS. It is understood that technical senior management positions, as defined by the institution itself, are strategic positions of great importance to its proper organization, such as the various Planning, Actuarial, and Personnel Management Directorates and the various Administrative, Financial, and Medical Management Offices, among others.

In view of this and of the specific purposes of this constitutional institution, it is the institution itself that is responsible for assessing the needs of the service it provides and determining the conditions under which those positions must be occupied in order to fulfill the constitutional purposes assigned to it, with due regard for its recognized degree of autonomy, provided that it complies with the merit principle (principio de idoneidad). In its case, for example, the appropriate term of appointment to those positions or the conditions for renewal could be subject to a requirement of greater stability in office, such as that guaranteed by Article 192 of the Constitution. All of this must be governed by its internal rules and not by generic rules such as those contemplated in this bill. Defining such conditions falls within the exclusive jurisdiction of this specialized constitutional institution.

Therefore, as drafted, Article 18 under review contains a constitutional defect because it violates the political autonomy of the CCSS, which has exclusive authority to define the conditions under which its senior management positions are to be performed.

• 4)Conclusion On the grounds stated and in accordance with the case law of this Chamber, the following articles of the “PUBLIC EMPLOYMENT FRAMEWORK LAW” bill, being processed under legislative file n° 21.336, are unconstitutional.

Having analyzed all the matters raised regarding Articles 2 (subparagraph b), 6, 7 (subparagraph d), 9 (second paragraph of subparagraph a), 13 (subparagraph b), 14, 17, and 18 of the bill entitled “PUBLIC EMPLOYMENT FRAMEWORK LAW,” legislative file n° 21.336, this Chamber finds that those provisions are contrary to Constitutional Law (Derecho de la Constitución) because they violate the constitutionally protected autonomy of government of the CCSS (Article 73 of the Constitution). These articles concern the following: 6 (Mideplan’s governance of the General Public Employment System); 7 (Mideplan’s broad authority, effectively making it a kind of highest-ranking authority with regulatory powers over the entire state apparatus in matters of public employment); 9 (making human resources offices subject and subordinate to Mideplan and the Dirección General de Servicio Civil); 13 (a single general public employment regime comprising eight occupational families); 14 (recruitment and selection based on regulatory provisions issued by Mideplan); and 17 and 18 (public senior management personnel subject to a single probationary term and a single appointment term).

In the case of the Caja Costarricense de Seguro Social, given its degree of autonomy, not even the Legislature itself may subject it to the orders and regulations of an Executive Branch agency, because doing so is contrary to the degree of autonomy and the guarantee conferred on this institution by the Political Constitution. All these provisions of the bill affect the CCSS’s performance of its functions. This Chamber has established the scope of this autonomy, stating that the CCSS was granted full autonomy in order to make it independent of the Executive Branch (see vote n°2011-15665). Indeed, an examination of the provisions under review shows that the “General Public Employment System,” which designates the Ministerio de Planificación Nacional y Política Económica (Mideplán) as its governing body (órgano rector), encroaches upon the CCSS’s autonomy of government. This demonstrates that such governance extends beyond regulating an activity and in reality creates a relationship of direction and subordination, involving the issuance of specific directives and regulations on the matter.

• 5)Reasons and Separate Opinions Regarding the Consultation as It Relates to the CCSS a) Separate opinion of Justice Castillo Víquez regarding the CCSS The situation is different with respect to the autonomy of the Caja Costarricense de Seguro Social because, as regards the autonomy of government guaranteed to it under Constitutional Law, the partial amendment to Article 188 of the Fundamental Charter, enacted by Law n.° 4123 of 30 May 1968—and approved during the first legislative term through Law n.° 4097 of 30 April 1968—limited that autonomy, but did not eliminate it, as will be explained below.

The original Constituent Assembly guaranteed the Caja Costarricense de Seguro Social, like the other autonomous institutions, autonomy in administrative and governmental matters. Nevertheless, during the 1960s, under the intellectual impetus of the distinguished Costa Rican Rodrigo Facio Brenes, Benemérito de la Patria, who in 1959 published a study on economic planning under a democratic system, its doctrine, foreign experiences, and certain ideas for establishing it in Costa Rica, it was concluded that the autonomy of government enjoyed by autonomous institutions had to be limited in order to subject them primarily to the National Development Plan (Plan Nacional de Desarrollo). In his view, coordination and planning between the Central Government and the autonomous institutions were necessary. For this member of the 1949 Constituent Assembly, administrative decentralization by service (descentralización administrativa por servicio) was crucial to democratic life—because it prevents the concentration of power—and to administrative efficiency—because it gives precedence to technical judgment over political considerations—and subjecting these entities to coordination and planning would leave the autonomous system intact.

Years later, the experience of the Legislature when approving the Planning Law, Law n.° 3087 of 31 January 1963, under which it could subject to economic planning only those autonomous institutions that voluntarily agreed to it, probably proved frustrating. The response was swift, and in 1965 representatives from various political parties introduced a constitutional amendment bill for the purpose of subjecting autonomous institutions to the National Development Plan. That proposal stated the following:

“If any provision of our Fundamental Charter is in need of amendment, it is Article 188. That article grants autonomous institutions independence in matters of government and administration, subject to only two limitations: the requirement of a vote of no fewer than two-thirds of all members of the Legislative Assembly for their creation, and oversight by the Contraloría General de la República regarding the financial aspects of their operations. That provision says nothing about the relationships that must exist between the Central Government and the autonomous institutions, a matter that entirely escaped the foresight of the members of the 1949 Constituent Assembly.

Sixteen years later, it is apparent that the formula devised to grant constitutional status to the system of autonomy has the following shortcomings:

1. 1By erecting a barrier against excessive growth of the power and budget of the Central Government, for the purpose of protecting freedom and integrity in the management of the Public Treasury (Hacienda Pública), it completely disregarded the other interest that every form of organization must serve: administrative efficiency. This interest requires limiting the autonomy of institutions in their relations with one another and with the State itself.
2. 2By granting independence in matters of government and administration in absolute terms, the State was weakened more than necessary because each institution was indiscriminately permitted to act according to a unilateral approach contrary to and outside the framework of national needs.

This therefore gave rise to genuine administrative feudalism.

1. 3It is unanimously recognized that the State is one, even though it may be divisible and even though it may encompass several institutions vested with authority. This unity of the State requires not only a common origin but also harmony in operation; to achieve this, it is necessary to prevent any institution from expanding in a manner that disrupts the others, or from withdrawing into its own area of specialization in total disregard of national interests.
2. 4To make the unity of the State a reality, coordination and oversight of autonomous institutions are absolutely necessary. Oversight is essential to prevent institutions from violating the law or neglecting the public interest entrusted to them for the benefit of the community; and coordination is necessary so that they make their fullest contribution to the implementation of plans involving them in conjunction with the Central Government (Poder Central) or other institutions. The traditional instruments for coordinating the State with lesser public entities (entes públicos menores) are planning and oversight. It is absolutely necessary for the State to be able to plan the activities of the institutions by setting general goals for them and to influence their conduct by exercising the appropriate controls over them.
3. 5State oversight (tutela) of institutions cannot and should not be uniform. There are many institutions and many types of institutions; their economic power and purposes vary, as do the legal means available to them to fulfill their objectives, the origins of their assets, and their organizational systems. This multifaceted institutional reality must be taken into account in the State’s exercise of its powers of direction and control (potestades de dirección y control), so that different degrees and means of control may be established among them. However, as long as there is a provision such as the current text of Article 188, which, without distinctions or qualifications, imposes a regime of complete independence on all autonomous institutions, it is absolutely impossible to implement a regime tailored to the nature of each one.
4. 6There is an urgent need to establish in Costa Rica a regime that takes into account the fundamental differences in interests and operating methods that must exist between industrial and commercial economic institutions and institutions whose welfare-oriented purpose is to advance education, health, or the protection of children. That regime must reflect the differing positions vis-à-vis the State and the community of those entities that have their own resources and transfer portions of their profits to the State, and those that subsist on subsidies granted through the National Budget and impose a heavy burden upon it. It must likewise distinguish the State’s relationships with monopolistic entities from those with entities participating in the free market, and its relationships with service institutions from those with entities that promote or oversee private activity.

For all these reasons, we believe that the reform is indispensable, not only to preserve the unity of the Costa Rican State, but also to give effect to the right of citizens to have State entities operate properly and efficiently and to have them structured as a single apparatus serving the community.” (Boldface does not appear in the original). This proposal was archived (see legislative expediente n.° 2537, archive n.° 4271).

The idea behind the rejected proposal was revived in the initiative presented by the National Liberation Party Caucus to amend several articles of the Fundamental Charter, including Article 188. “We have included the amendment to the concept of autonomy proposed last year by a group of deputies from different parties. When institutions of this type were created, the 1949 Constituent Assembly members did not foresee the need for different degrees of autonomy based on the nature of the institutions’ functions. Costa Rican experience has demonstrated the need for such gradation, but it cannot be achieved except through this constitutional amendment” (see folio 6 of legislative expediente n.° 3631). A reading of what could be reconstructed from the legislative expediente—the document containing these important amendments was lost many years ago—as well as other legislative documents to which we have had access, makes clear that the intention of the Amending Power (Poder Reformador) in adopting this amendment was to subject autonomous institutions to national planning, specifically the National Development Plan, including the Caja Costarricense de Seguro Social.

It is in this context that the remarks of Deputy Gutiérrez Gutiérrez must be interpreted when Deputy Carmona Benavides directly asked him whether it was necessary to amend Article 73 of the Political Constitution in order to subject the social-insurance entity to the constitutional amendment. Gutiérrez Gutiérrez replied that, for the purposes of the reform, amendment of Article 188 of the Constitution alone was sufficient (see legislative expediente n.° 3631). Indeed, the record of the Plenary Session of April 1, 1968, and Deputy Hine García’s remarks therein, make clear that the purpose of the amendment was “(...) to ensure that this decentralized system can be incorporated without difficulty into the national plans developed by the Planning Office, in order to ensure the orderly conduct of ‘public affairs.’ I stated on another occasion that it is inconceivable in the modern State, and unacceptable to Costa Ricans, that Costa Rica might eventually establish a system based on plans specifically designed to achieve efficiency and development, while one of the important autonomous institutions—all of them are important, although the importance of things is also relative—might eventually withdraw from those plans, thereby causing the disruptions, conflicts, and difficulties that would be expected.

Now, within this idea of the need to state clearly in the Constitution what we understand and intend Autonomous Institutions to be, it is essential to bear in mind that, above all else, we must at least preserve the concept of independence in governance matters (independencia en materia de gobierno). If we establish, as we must, that the directors of autonomous institutions are accountable for their management, that requires and follows precisely from the prior existence of independence in governance matters, because accountability arises when institutional policy has been implemented incorrectly or in a manner inconsistent with the standard of efficiency that must always govern the operation of the Public Administration.

If the governance of Autonomous Institutions is understood as nothing more than setting the policy to be implemented within the institutional and legal sphere assigned to an institution, then it follows that the concept of independence in governance matters may properly be retained. For example, the INVU is an autonomous institution whose institutional specialization and function is housing construction. Under its organic law (ley orgánica), the INVU has a mandate to fulfill, namely, to build houses; but it is inconceivable that, when a national planning effort exists, the INVU could direct its institutional efforts, so to speak, toward something else that would conflict with plans developed systematically and in accordance with what is understood to be the public interest.

Within this institutional specialization in building houses, however, the autonomous institution and its Board of Directors must have independence in implementing that policy, just as independence exists within the sphere of the Central Government among the different Ministries, with each Minister being responsible for what is carried out within that Minister’s Ministry. It is inconceivable that a Minister or a Ministry of Transportation would intrude into the sphere of a Ministry of Agriculture; likewise, it is inconceivable that a decentralized organization could intrude into areas barred to it because its organic law permits such interference, potentially causing conflict with the sphere of action of another decentralized organization. But since we are speaking at the constitutional level, it is necessary to establish properly, within the highest form of decentralization, the independence in governance matters that autonomous institutions must have, consistent with the accountability borne by the Directors responsible for that management.

Now, if such independence in governance matters exists, there must also be a constitutional obligation requiring institutions to proceed in step with the plans being implemented, in order to establish even more clearly the circumstances under which members of the Board of Directors may incur liability for having implemented a policy that conflicts with this concurrent, coordinated national effort toward an objective that is nothing other than the development and greater well-being of Costa Ricans.” (Boldface does not appear in the original).

In this legislative debate, the participation of Deputy Volio Jiménez is of the utmost importance in clarifying the purpose of the constitutional amendment with respect to autonomous institutions. In this regard, he stated the following:

“I first call attention to the fact that time is running out while we have spent, I believe, too much time on each proposed text, and we may not be able to address the most important proposed amendments during this legislative session. During the preceding week, by Friday at the close of that week, agreement had been reached on the various viewpoints and a concise wording had been proposed based on a text submitted by Deputy Villanueva Badilla.

I believe that this text reconciles the different viewpoints, because the aim is to ensure that, in governance matters, autonomous institutions are governed by law; and that is the formula proposed by Deputy Villanueva Badilla.

I believe that this text reconciles the different viewpoints, because the aim is to ensure that, in governance matters, autonomous institutions are governed by law; and the formula proposed by Deputy Villanueva Badilla, as amended in accordance with the comments made on Friday, achieves the desired purpose. The aim is not to amend the Constitution so that autonomous institutions are also administratively subject to a State planning program concerning public matters.

The sole aim, I repeat, is to achieve coordination in governance matters; DEPUTY HINE GARCÍA: Thank you, Deputy Volio. Since you have mentioned Deputy Villanueva’s motion, I would like you to clarify something for me, namely, that Deputy Villanueva Badilla’s motion also seeks to achieve the objective that concerns us, but it states simply: ‘and is subject to the law in governance matters.’ To me, this is very dangerous because, through that unqualified subjection to the law as set forth in the motion, it may become possible to eliminate independence in governance matters and to reduce autonomous institutions to empty shells devoid of activity. This could weaken the decentralized institutional system, which I believe is what we must safeguard. I would be grateful, and greatly reassured, if you would clarify the scope this formula may have when applied in practice over the years, because if autonomous institutions are subject to the law in governance matters, it could eventually be argued in the future that, through ordinary legislation, autonomous institutions may be dismantled and left as empty shells by progressively stripping them of their capacity for independent action.

DEPUTY VOLIO JIMÉNEZ: I understand, Mr. Deputy, that the motion does not mean that the legislature may destroy an institution in the future, because if that were the intention, the motion would not even refer to the issue of governance. What is sought is for the legislature to consider the need to coordinate the activities of those institutions in accordance with the country’s economic and social development.

However, since I am not the author of the motion, your question should first be answered by Deputy Villanueva Badilla; but I insist on the need for us to begin making decisions today; and if it were necessary to introduce a motion to achieve that purpose, a procedural motion (moción de orden), I would of course introduce it immediately. Nevertheless, I believe that if the Board (Directorio) decides to open debate on the motions concerning Article 188, in the order in which they were introduced, we could achieve the same end, on the understanding that there was a consensus in the Asamblea favorable to making those decisions by examining each proposed text one by one.” (Emphasis not in the original).

Accordingly, upon approval of the amendment to constitutional Article 188, there can be no doubt that the Caja Costarricense de Seguro Social was made subject to the Plan Nacional de Desarrollo under the terms defined by statute. This means that the aforementioned amendment did not entirely affect the governmental autonomy (autonomía de gobierno) that the Caja Costarricense de Seguro Social holds over social insurance (seguros sociales). It constitutes a partial limitation on the insurer’s political autonomy (autonomía política), the precise purpose of which was to lend depth to the purposes and objectives of the State as a whole, with the derivative constituent authority (constituyente derivado) addressing, through the Constitución Política, a well-founded concern by means of what we now know as the governing principles of the entire Administración Pública: the principles of unity and coordination of the State. Their force naturally derives from the effective pursuit of the common good, and they constitute the boundary of the autonomy of autonomous institutions (instituciones autónomas), together with the need for coordination, but without becoming detached from the respective powers assigned by the Constituent Authority (Constituyente), which were conceived precisely to lend the aforementioned depth.

Following that reasoning, there can be no doubt that the Asamblea Legislativa has authority, in exercising its legislative power (potestad de legislar), to regulate matters placed within the purview of autonomous institutions, including those entrusted to the Caja Costarricense de Seguro Social, provided that it does not deprive the essentially technical powers assigned to it by the original Constituent Power (Poder Constituyente originario) of their substance. The authority of Parliament to regulate the powers of autonomous institutions is clear from the debate on Article 190 in the Asamblea Nacional Constituyente. Indeed, it is worth recalling that the Fracción Social Demócrata introduced the following provision as part of the title concerning autonomous institutions: “(…) No bill concerning matters entrusted to an Autonomous Institution may be debated in the Asamblea Legislativa unless the respective Institution has issued an opinion (dictamen) thereon.

That opinion must mandatorily be included and published as one of the recitals (considerandos) of the statute that is enacted.” (A.A.C.: volume III; p. 465). Note that the provision concerning a qualified majority (mayoría calificada) for approval of a bill where the Institution has issued an adverse opinion is no longer proposed. We assume that the adverse votes in the Asamblea Nacional Constituyente in the cases of the Universidad and the Organismo Técnico encargado de determinar la unidad monetaria dissuaded the members of the Fracción Social Demócrata from introducing that initiative.

Facio Brenes explained the reasons for this provision by stating: “(…) its purpose is to require Congress, an essentially political body, to hear the voice of the autonomous institutions in matters affecting them.” (A.A.C.N.: volume III; p. 467).

The reasons why this article was not approved as proposed were:

“Representatives Nombre07, Vargas, Fernández and Esquivel expressed their disagreement. The first stated that it was not possible to continue diminishing the powers of the Asamblea Legislativa by requiring it to consult all the autonomous institutions of the State. The Asamblea establishes various committees from among its members, which have a duty to consult and properly inform themselves regarding the matters entrusted to them. If a bill related to an autonomous institution is introduced, it is logical that those bodies will be consulted. The second stated that the motion under debate introduces a new system, because if an autonomous institution does not issue the respective opinion, the Asamblea Legislativa will be unable to consider the bill. The third stated that he would not vote for any motion that diminishes the powers of the Asamblea Legislativa, the highest representation of the people in our political system, by even requiring it to include the Opinion of the Autonomous Institution among the recitals of the statute that is enacted.” (A.A.N.C.: volume III; p.473).

As a result, Representative Chacón Jinesta suggested new wording:

“for the debate and approval of bills concerning an Autonomous Institution, the Asamblea Legislativa must hear that institution’s opinion” (A.A.N.C.: volume III, p. 473).

Deputy Facio Brenes, on behalf of his colleague, decided to withdraw the motion, and Deputy Chacón Jinesta’s proposal was ultimately put to a vote.

From the foregoing debate, we may conclude that the drafters of the current Constitución Política were fully aware that matters placed within the authority of autonomous institutions could be regulated by the Asamblea Legislativa, provided that those institutions were consulted. This position is reinforced by the argument that if Parliament may regulate matters placed within the powers of the Universidades Estatales (Article 88 of the Constitución Política), or directly related to them, which possess third-degree autonomy—self-regulatory autonomy (autonomía de tercer grado–autonormativa)—then, a fortiori, it also has authority to regulate matters belonging to autonomous institutions, including those entrusted to the Caja Costarricense de Seguro Social. This idea is also present in the debate on Article 73 of the Carta Fundamental in the Asamblea Nacional Constituyente, since in record n.° 125 Deputy Facio Brenes states that those institutions “(…) although autonomous, cannot become completely detached from the State.

Otherwise, it would amount to creating new States within the State.” Deputy Ortiz Martín, for his part, stated that legislators should define the path to be followed by the Caja Costarricense de Seguro Social “(…) and it, autonomously, must operate within those statutes.” A necessary conclusion follows from what we have stated: the Poder Ejecutivo, through the Plan Nacional de Desarrollo, and the Asamblea Legislativa, in exercising its legislative power, are legally empowered, in the first case, to establish goals and objectives for the Caja Costarricense de Seguro Social and, in the second, to regulate the matters entrusted to it, provided that, in the latter case, the essential substance of the powers conferred by the original Constituent Authority is not eliminated. Applying by analogy the theory of institutional guarantee (garantía institucional), which legal scholarship has devised for another circumstance—the constitutional reservation of administrative authority (reserva constitucional de la Administración)—meaning that certain activities constituting sovereign public functions must necessarily be carried out by the Administración as regulated by the Constitución, and necessarily under a Public Law legal regime (régimen jurídico de Derecho Público), except for ancillary or instrumental activities, in the case of the Caja Costarricense de Seguro Social there are essential technical matters within its exclusive authority (competencia exclusiva y excluyente) that cannot be deprived of their substance by the legislature.

By way of example, this means that the Asamblea Legislativa cannot, by statute, require the Caja Costarricense de Seguro Social to locate a proposed hospital in a particular place, prescribe how the primary, secondary or tertiary care of the hospital system is to be provided, determine the amount of the employer-employee contribution (cuota obrero-patronal) or the State’s social-security contribution, the retirement age, the pension amount, its calculation formula, etc. In all these and other cases—subjecting Caja Costarricense de Seguro Social personnel who are indispensable for fulfilling its constitutionally assigned purpose to directive authority (potestad de dirección), as explained in the advisory opinion (opinión consultiva)—we are dealing with a matter beyond the legislature’s power of disposition or, as domestic legal scholarship has aptly stated, with constitutional content that cannot be developed by statute.

• b)Note by Justice Rueda Leal concerning the inclusion of the Caja Costarricense de Seguro Social in Article 2 subsection b) of the bill under consultation I emphasize that this provision is unconstitutional because of its effects, since it must be viewed within the systematic structure of the articles in order to understand how the autonomy of the Caja Costarricense de Seguro Social is affected. As I mention elsewhere in this decision, the precise determination of the legal consequences, should this bill become part of the legal system (ordenamiento jurídico), will be developed through case law when its practical application is analyzed. With respect to the Caja Costarricense de Seguro Social, its constitutional purpose will assume particular importance in that application, given that the institution represents a guarantee for the administration and governance of social insurance.
• c)Separate note by Justice Garro Vargas concerning Article 2 subsection b) and the inclusion of the Caja Costarricense de Seguro Social As I stated in the separate note to the constitutional challenge (acción de inconstitucionalidad) decided by judgment n.°2020-10608, Article 73, second paragraph, of the Constitución Política provides that “The administration and governance of social insurance shall be entrusted to an autonomous institution known as the Caja Costarricense de Seguro Social.” The plain language of that provision shows that the Caja Costarricense de Seguro Social (CCSS) possesses second-degree autonomy, that is, political or governmental autonomy, to fulfill the function expressly mandated by the Constituent Authority, namely, the administration and governance of social insurance. This autonomy, which extends beyond the administrative autonomy (autonomía administrativa) granted by art. 188 of the Constitución Política to the other autonomous institutions, gives it the capacity to perform its constitutional mission without being subject to another entity; that is, to direct and govern itself, establish its own objectives, and organize itself as it deems appropriate to fulfill the purpose for which it was created.

In that note, I nevertheless cautioned that although certain decisions are made within the framework of the CCSS’s institutional autonomy (autonomía institucional), they must be circumscribed by the relevant technical criteria that properly justify the decision, so that the discretion (discrecionalidad) exercised in adopting it is constrained by the principles of reasonableness and proportionality.

Specifically, with respect to the provision under review, I must reiterate that, in accordance with the general principles set forth supra, a framework law (ley marco) regulating public employment is indeed possible; however, such legislation cannot disregard the particular features of the configuration of our rule-of-law State established in the Political Constitution. In this specific case, it is challenged that Art. 2 subsection b) includes the CCSS within the scope of the provision. In my opinion, that provision is not in itself unconstitutional insofar as it includes the CCSS within a regulatory framework for public employment, provided that such regulatory framework is understood as one establishing general principles and rules. Nevertheless, because this bill does not possess those characteristics, this article is indeed unconstitutional by connection (inconstitucional por conexidad) with the remainder of its 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 an institution constitutionally vested with autonomy of governance (autonomía de gobierno).

In other words, what is established in those provisions, in conjunction with this Art. 2 subsection b), deprives the principle of autonomy of governance of its substance. Furthermore, the rationale of the law as a whole is embodied not only in its provisions but also in its explanatory statement (exposición de motivos), which has hermeneutic value. Accordingly, for that Art. 2 subsection b) to be considered not unconstitutional “in itself,” it would have to be viewed separately from what the explanatory statement says in relation to those provisions.

• d)Separate note by Justice Picado Brenes concerning Article 2 subsection b) regarding the inclusion of the CCSS within a general regulatory framework for public employment (item 37 of the Por tanto) Unanimously, the Chamber has held that Article 2 subsection b) of the Framework Public Employment Bill (proyecto de Ley Marco de Empleo Público), which is being processed under legislative expediente n° 21.336, is not in itself unconstitutional by including the CCSS within a general regulatory framework for public employment, but that it is unconstitutional in its effects because some of its provisions deprive the CCSS’s autonomy of governance of its substance. On this issue, I consider it necessary to make the following clarifications.

It should be recalled that it was the Constitutional Chamber itself that stated in judgment n° 2011-14624, among others, that the Caja Costarricense de Seguro Social (CCSS) enjoys administrative autonomy (autonomía administrativa) and autonomy of governance, pursuant to Article 73 of the Political Constitution, and may therefore issue provisions relating to its internal regime (régimen interior). In addition, account must also be taken of the fact that Article 70 of the Ley Constitutiva de la Caja Costarricense de Seguro Social itself provides that its Board of Directors shall establish the conditions governing employees’ entry into the service of the Institution, guarantees of job security (garantías de estabilidad), their duties and rights, the manner of filling vacancies, promotions, grounds for removal, the scale of penalties, the procedure for adjudicating violations, and any other necessary provisions; consequently, everything relating to public employment matters would fall within the exclusive jurisdiction (competencia absoluta) of the Caja Costarricense de Seguro Social.

It must not be overlooked that, by definition, the autonomy of governance held by the CCSS allows it, in addition to administering itself (allocating its human, material, and financial resources) and establishing its own internal organization, to determine objectives, targets, and the types of means for achieving them, as well as to issue autonomous regulations governing services or activities (reglamentos autónomos de servicio o actividad), in accordance with provisions commonly referred to as general policy. Administrative autonomy, for its part, is the legal ability of the CCSS to carry out its statutory mandate on its own, without being subject to another entity, known in legal doctrine as the capacity for self-administration (capacidad de autoadministración), which allows it—without the need for a legal provision so establishing—to allocate its human, material, and financial resources in the manner it considers most appropriate for the effective and efficient fulfillment of its assigned objectives and purposes. As can be seen, both administrative and political autonomy (autonomía política) allow the CCSS to issue the internal rules it deems necessary for managing its human resources.

Now, in view of the degree of autonomy held by the CCSS, the Executive Branch’s interference with it is restricted, such that the Executive Branch cannot act as its highest authority (jerarca), cannot control it by limiting its activities on grounds of expediency, and likewise cannot direct the management of that entity by imposing guidelines or basic programs. In this context, Article 2 subsection b) of the Framework Public Employment Bill would be unconstitutional because, if the bill’s objective is to unify the management of public servants under a general public employment system that would be directed by an Executive Branch body—Mideplán—then including the CCSS in that unified system is contrary to constitutional law (Derecho de la Constitución), because the autonomy constitutionally granted to the CCSS would completely exclude it from any system that sought to impose Executive Branch directives and orders upon it.

Furthermore, I consider it impossible to divide public employment matters so that one group of CCSS employees is included in the bill under review while 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 would also leave the group required to be subject to the public employment system exposed to constant violations of constitutional law. Undoubtedly, that group of employees subjected to such a general public employment system would face directives originating from the Executive Branch that would undermine the autonomy of the CCSS. Thus, in addition to being unconstitutional for the reasons stated, the provision would also be unconstitutional because of the effects that would subsequently arise, since, as has been repeatedly stated, a constitutional institution possessing the degree of autonomy held by the CCSS cannot be subjected to directives, provisions, circulars, and manuals issued by Mideplán.

I must likewise reiterate what I have been stating, namely that the employees of this institution cannot be divided between those who are within the public employment system and those who are not, because they are all part of the great institutional machinery known as the CCSS, and they are all rowing in the same direction: guaranteeing social insurance and health care to the population. Therefore, the fragmentation sought by the bill is not possible and, moreover, would be discriminatory and violate the principle of equality (principio de igualdad).

Consequently, I consider that Article 2 subsection b), because of the effects it would produce after becoming a Law of the Republic, is contrary to constitutional law.

• e)Justice Garro Vargas’s differing reasons concerning the subjection of the Caja Costarricense de Seguro Social to the governing authority (rectoría) of the general public employment system entrusted to Mideplán under Article 6 As I have been indicating, in my case and for my own reasons, I declare the provision under review unconstitutional insofar as it applies to the Caja Costarricense de Seguro Social (CCSS), departing from the majority of the Chamber’s distinction between officials who perform an essential function pertaining to the Caja itself and those who do not.

It should be noted that what is being challenged in this provision is the creation of a General Public Employment System, whose governing authority would be entrusted to Mideplan, and that this system integrates “the offices, departments, areas, directorates, and units” responsible for human-resource management in the entities and bodies falling within the scope of this initiative. At the outset, Art. 2 subsection b) includes the CCSS within the scope of the bill. Likewise, as I stated previously, that provision must be examined together with Art. 9 subsection a), second paragraph, of the bill, which orders human-resources offices to apply and implement the generally applicable provisions, directives, and regulations concerning planning, work organization, employment management, performance management, compensation management, and labor-relations management that Mideplan sends to the respective institution.

As I previously stated, the CCSS’s autonomy of governance in performing its functions derives from constitutional Art. 73. Based on that premise, it would be unconstitutional to subject its human-resources office to the governing authority of Mideplan, which would be the body contemplated in the bill as responsible for establishing public policies on public employment and issuing generally applicable provisions on the subject (planning, work organization, employment management, performance management, compensation management, and labor-relations management). Moreover, that human-resources office governs the entire body of CCSS officials.

I already stated supra that, from my perspective, common legislation establishing a general regulatory framework for public employment is possible, bringing together and developing the principles of arts. 191 and 192 of the Political Constitution; however, in my judgment, it is plainly unconstitutional to remove the CCSS human-resources office from the institution’s authority to establish its own organization and governance, particularly because this would be accompanied by the corresponding obligation to implement Mideplan’s generally applicable provisions. This is further aggravated by the fact that the implementation regulations for this law would remain in Mideplan’s hands.

I consider it necessary to clarify that, with respect to the institutions listed in Art. 2 of the bill (scope), I believe that the branches of the Republic (subsection a) do not have the same level of independence as other institutions in the decentralized sector (subsection b). Nevertheless, in this specific case, the constitutional provision establishing the CCSS is very clear regarding its autonomy of governance. I therefore reiterate that it is indeed unconstitutional for that institution’s human-resources office to become part of a Public Employment System whose governing authority is entrusted to an Executive Branch ministry. Such a provision disregards the fact that it is for the CCSS to determine autonomously the best way to organize itself, subject, of course, to generally applicable rules that do not disregard its autonomy. In other words, it would be for its own governing authority to implement autonomously the generally applicable provisions intended to fulfill what is established in arts. 191 and 192 of the Political Constitution—or any other provision thereof?—but that governing authority and that overlap between its own governmental powers and other powers sought to be imposed heteronomously are indeed unconstitutional.

This does not mean that the CCSS enjoys sovereignty or is exempt from the requirements inherent in the rule of law; rather, it recognizes that the original Constituent Assembly intended to grant it a unique status and prerogatives that neither the Chamber nor the legislature may disregard in the exercise of their functions. A different matter is that public debate remains open regarding the need to reconsider the institution’s structure and powers and improve its management in its various areas. But unless and until that debate affects the normative-constitutional framework, this Chamber must uphold the framework currently in force.

• f)Different reasons of Justice Picado Brenes concerning Article 6 of the bill with respect to Mideplán’s governing authority (rectoría) (point 38 of the Por tanto) As analyzed by the Chamber on this point, it is clear that, pursuant to Article 73 of the Political Constitution, neither the Executive Branch nor any of its bodies—such as Mideplán—could exercise powers of direction or regulation (potestad de dirección o reglamentaria) over the Caja Costarricense de Seguro Social, and this also includes everything pertaining to the institution’s human-resources management (gestión del recurso humano), without which it could not perform the functions entrusted to it. Accordingly, Article 6 of the Ley Marco de Empleo Público bill cannot apply to the Caja Costarricense de Seguro Social because, as stated, in matters involving human-talent management (gestión del talento humano), that institution has full autonomy to organize and administer itself.

From this perspective, it would likewise be improper for the Human Resources Department of the CCSS to become part of the General Public Employment System (Sistema General de Empleo Público) overseen by the Ministerio de Planificación Nacional y Política Económica, just as it would be invalid for a general provision to eliminate the specific rules and regulations on the matter that the CCSS has issued throughout its legal existence.

Consequently, in my view, the CCSS’s governmental autonomy (autonomía de gobierno) prevails and, therefore, no division or group of personnel under its authority could be placed under the orders of Mideplán, since, in light of Article 73 of the Constitution, that body could not assume governing authority over public employment at the CCSS under the terms contemplated by Article 6 of the Ley Marco de Empleo Público bill without first violating constitutional law (Derecho de la Constitución). Under this view, there would be absolutely no justification for subjecting some CCSS departments to Mideplán while not subjecting others, because account must be taken of the fact that what must prevail is the fulfillment of the public interest and the interests of the users of the services provided by the CCSS; to that end, the greatest possible uniformity of criteria and procedures is necessary to achieve the efficiency of the public service and meet the needs of persons who are ill.

Likewise, dividing CCSS employees or departments would violate the right of that institution’s personnel to equality and non-discrimination (derecho a la igualdad y no discriminación) because, once again, if all employees are working toward a single common goal—protecting the population’s health and social insurance—it is not possible for some to belong to one public-employment system while another group is subject to different rules.

• g)Additional reasons of Justice Garro Vargas concerning the unconstitutionality of Article 7 for affecting the autonomy of the Caja Costarricense de Seguro Social In this case, I depart from the opinion expressed by the majority because I consider Article 7 in its entirety unconstitutional insofar as it subjects the Caja Costarricense de Seguro Social (CCSS) to Mideplan’s powers of governance and regulation.

As already noted, that provision 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 establish its own administration and governance. As noted, these powers could eliminate its capacity for self-government and for managing the personnel required to perform its inherent functions.

I previously noted 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 that, to that extent, the analysis of the powers granted to Mideplan must be qualified. Nevertheless, as I have been indicating, insofar as a constitutional provision grants the CCSS governmental autonomy to establish its own administration, those powers that the bill seeks to grant Mideplan and that entail governing authority overriding the autonomy recognized for the Caja are indeed unconstitutional. Once again, an integrated examination of Article 7 in connection with Article 6(b) and (d), as well as the second paragraph of Article 9(a), reveals that the Caja would be subjected to the orders, directives, and regulations of a ministry within the Executive Branch, threatening the governmental autonomy constitutionally entrusted to it for the fulfillment of its purposes. I do not consider that design immutable; rather, I consider that it may not be modified by statute.

• h)Additional reasons of Justice Picado Brenes concerning Article 7 of the bill with respect to Mideplán’s broad powers over the CCSS (point 39 of the Por Tanto) The existence of the Caja Costarricense de Seguro Social (CCSS) is guaranteed by Article 73 of the Constitution, which grants it exclusive administration and governance of social insurance, as well as a degree of autonomy that is different from and greater than that granted to autonomous institutions. By virtue of this autonomy, it enjoys broad governmental and administrative powers that allow it to issue provisions concerning its internal governance, set its goals and objectives in accordance with its functions, establish the means and mechanisms for achieving them, and issue autonomous service or activity regulations (reglamentos autónomos de servicio o de actividad) consistent with general-policy provisions. Article 70 of the Ley Constitutiva de la Caja Costarricense de Seguro Social, in turn, provides that its Board of Directors shall establish everything relating to public employment and human-resources management, for which purpose it may issue the regulations and provisions necessary for employees to enter the Institution’s service, the guarantees of their job security, their duties and rights, the manner of filling vacancies, promotions, grounds for removal, the scale of sanctions, the procedure for adjudicating violations, and any other necessary provisions.

When those powers belonging to the CCSS generally and to its Board of Directors specifically in matters of public employment are compared with the provisions of Article 7 of the Ley Marco de Empleo Público bill, the contradiction is unmistakable. The powers that Article 7 establishes for Mideplán in that area are the same powers already held by the CCSS, which have constitutional support because they form part of the degree of governmental or political autonomy—including administrative autonomy—that characterizes that institution. It must not be overlooked that the degree of autonomy enjoyed by the CCSS simultaneously entails a degree of protection against interference by the Executive Branch, as well as limitations on intervention by the Legislative Branch and, therefore, in the case under review, by Mideplán—as a body of the Executive Branch. From this perspective, Mideplán could not establish, direct, and coordinate the issuance of public policies, programs, and public-employment plans within the CCSS, or issue generally applicable provisions, directives, and regulations intended to standardize, simplify, and ensure consistency in public employment, including that of CCSS officials.

Nor could it issue general guidelines and principles for internal performance evaluations at the CCSS; administer and implement research, innovation, and public-employment proposal-development initiatives for use by that institution; establish a single, unified public-service compensation system for CCSS employees; or conduct human-resources assessments at that institution, among the many other powers granted to Mideplán by Article 7. A careful examination of this provision readily leads to the conclusion that the powers held by the CCSS and its Board of Directors concerning personnel management would disappear completely, because all of them would become powers belonging to Mideplán. It should be recalled that the functions assigned to the CCSS are not only highly specialized because of the subject matter constitutionally entrusted to it, but that their proper performance and fulfillment are also closely related to the lives of its users and to other constitutionally protected values, such as health or the right to receive social benefits, including a pension.

Consequently, such duties must be performed 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 operational dynamics.

• i)Additional reasons of Justice Garro Vargas concerning the unconstitutionality of Article 13 with respect to the Caja Costarricense de Seguro Social Unlike the majority, I consider art. 13 of the bill unconstitutional in its entirety because it infringes upon the autonomy of the Caja Costarricense de Seguro Social (CCSS). In my view, the unconstitutionality is not confined to the provisions of subsection b), as the majority holds, but extends to the entire article. This is because, if only subsection b), which refers exclusively to “public servants who perform duties in the health sciences,” is declared unconstitutional, it could be understood to be constitutional for the remaining officials to be included within the general public employment system under the express governance (rectoría) of Mideplan. Indeed, by viewing the activities of the CCSS solely from the perspective of subsection b), all the particular characteristics and needs of that institution’s support staff are disregarded, even though its work is manifested not only in the provision of clinical care but also in the administration of social insurance.

In other words, that subsection is itself deficient. By way of explanation, it could be said that this reality is being viewed from both a concave and a convex perspective. That is, from one angle, by encompassing only part of the CCSS’s activities, subsection b) disregards the reality that this institution is also composed of a broad range of support officials who are essential to the proper exercise of its constitutionally assigned powers. However, merely declaring subsection b) unconstitutional is insufficient, since declaring that subsection unconstitutional independently could result in the remaining officials who do not perform duties directly related to the health sciences being placed under the governance of Mideplan. Therefore, viewed from the other angle, even though the remaining subsections were not submitted for review, it is clear that this provision must be examined in its entirety.

It should be recalled that, when ruling on a constitutional consultation (consulta de constitucionalidad), the Chamber must issue an opinion on the matters and grounds submitted for consultation, but it may also rule “on any others that it considers relevant from a constitutional standpoint” (art. 101 párrafo primero de la LJC). Consequently, although only subsection b) was submitted for consultation with respect to the Caja, as a matter of purely logical and legal derivation, it is clear that, from a constitutional standpoint, the article is tainted by unconstitutionality insofar as the creation of job families (familias de puestos) disregards the particular characteristics and institutional composition of the CCSS in carrying out the function of “the administration and governance of social insurance.” It should be noted that art. 13 itself provides that “The creation of public-employment job families is reserved to statute and must be justified by technical and legal criteria consistent with efficient and effective public administration,” a provision that must also be examined in conjunction with art. 32 of the bill, which orders that “Each occupational family shall consist of a series of grades, each of which represents a group of positions with a similar profile.

The Ministerio de Planificación Nacional y Política Económica (Mideplán) shall define the number of grades required within each occupational family, as well as their characteristics, based on an evaluation of all positions within the occupational family.” Accordingly, it must be reiterated that declaring only subsection b) unconstitutional creates the risk that the remaining Caja personnel will be placed in other “job families,” the evaluation and definition of which would be entrusted to a body external to the aforementioned authorities, thereby creating a dangerous loophole through which the Executive Branch could interfere in the administration of its personnel.

• j)Additional reasons of Justice Picado Brenes regarding article 13 of the bill as it relates to the groups of job families and the CCSS (point 41 of the Por Tanto) The Chamber has unanimously held that article 13 subsection b) of the Ley Marco de Empleo Público bill is unconstitutional because it fails to include CCSS employees who perform substantive and professional duties related to the constitutional purposes assigned to the institution. I consider it important to make several observations in this regard in order to clarify my position. As I have already stated, it must be borne in mind that article 13 of the Ley Marco de Empleo Público bill concerns the General Public Employment System (Sistema General de Empleo Público) that is intended to be implemented for all employees of the Public Administration; this article appears in Chapter IV, Organization of Work. That provision of the bill states that this general and unified public employment system will consist of eight job families, which will apply to the bodies and entities of the Public Administration.

Those groups of families have not necessarily been formed on the basis of affinities among trades and professions, because their members belong to the same institution, or because they share a specific purpose as a common denominator; rather, exercising its legislative discretion (libertad de configuración del legislador), the legislature has simply grouped public servants as set forth in that provision. Consequently, the article leaves a series of questions and concerns unresolved. I reiterate that, given the wording of the article, it was inappropriate to decide to combine within a single group or job family a specific category of workers merely because they belong to that category since, even if they all perform the same general function, the particular characteristics of each will differ depending on their workplace, the objectives toward which their work is directed, and the purposes assigned to the institution with which they are affiliated.

From this perspective, in the specific case of the CCSS, the Chamber has found article 13 subsection b) unconstitutional because it did not include those who perform substantive and professional duties serving the constitutional purposes assigned to that institution. Nevertheless, given the wording of the provision, it could readily be interpreted to mean that they are included, since the provision states: “b) Public servants who perform duties in the health sciences,” and that phrase could reasonably be understood to encompass all health professionals or all persons who work in the health field regardless of the duties they perform. Thus, even if they provide administrative, therapy, rehabilitation, transportation, or any other type of support services in the health sciences, they could reasonably be included within that phrase. The subsection makes no distinction based on the workplace of this category of workers and could therefore readily refer to persons who work in a hospital, in an EBAI, in the Ministerio de Salud, or as personnel providing company medical services at any public institution; they would be included merely because they perform duties in the health sciences.

I therefore consider that the problem the provision could create does not concern its drafting style or how it is interpreted, but goes far beyond that because its implications are far-reaching: applying this article in practice would entail an infringement of the CCSS’s autonomy. It should be recalled that, in light of the degree of administrative and governing autonomy enjoyed by the CCSS, the Executive Branch’s interference with that institution is restricted. It therefore may not act as the institution’s highest authority (jerarca), control it by limiting its activities on grounds of expediency, or direct the management of that entity by imposing guidelines; this unquestionably encompasses all matters relating to the institution’s human-talent management (gestión del talento humano).

In this context, article 13 subsection b) of the Ley Marco de Empleo Público bill would be unconstitutional because, if the general objective of that Law is to unify the management of public servants under a general public employment system directed by an Executive Branch body—Mideplán—then including the CCSS within that unified system is contrary to Constitutional Law (Derecho de la Constitución), because the autonomy constitutionally granted to the CCSS would entirely exclude it from any body of regulations intended to impose Executive Branch directives and orders upon it. The CCSS alone is authorized to administer and manage its human talent, which constitutes a single body because of the objective its members pursue, regardless of the area in which each official works. In that respect, employees in the administrative area are just as dedicated to health care and social insurance as all those whose work is performed specifically in the health sciences.

In my view, seeking to include some but not others in the general public employment system entails not only an infringement of the right to equality and nondiscrimination (derecho a la igualdad y no discriminación), but also the fragmentation of the institution’s objectives, which are fulfilled through the work performed by its employees. Moreover, the group of workers required to be subject to the general public employment system would face constant violations of Constitutional Law because they would be subject to directives issued by the Executive Branch that would infringe upon the autonomy of the CCSS. As I have stated, a constitutional institution possessing the degree of autonomy enjoyed by the CCSS cannot be subjected to directives, provisions, circulars, or manuals issued by Mideplán.

• k)Additional reasons of Justice Picado Brenes regarding article 18 of the bill as it relates to the terms of senior management personnel (personal de alta dirección) at the CCSS (point 44 of the Por Tanto) The Chamber unanimously considers article 18 of the “Ley Marco de Empleo Público” bill, which is being processed under expediente legislativo n° 21.336, unconstitutional because it affects the political autonomy of the CCSS with respect to the terms of senior public management personnel (personal de alta dirección pública); notwithstanding the foregoing, I must add further reasons why I consider the provision to be tainted by unconstitutionality.

As I have already stated, the starting point must be that the Caja Costarricense de Seguro Social (CCSS), by constitutional provision established in Article 73, enjoys administrative and governmental autonomy (autonomía administrativa y de gobierno), which means that, as a functionally decentralized entity (ente descentralizado funcional), it may establish the rules for selecting its personnel; thus, the existence in this case of a special regulatory framework for its statutory employment relationship (relación estatutaria), designed to address and safeguard its degree of autonomy, is valid. That degree of autonomy also allows it to administer itself (to manage its human, material, and financial resources); establish its own internal organization; determine its purposes, goals, and the types of means for achieving them; and issue autonomous service or activity regulations (reglamentos autónomos de servicio o actividad), in accordance with provisions commonly referred to as general policy.

Accordingly, as an autonomous institution created by the Constitution and possessing a greater degree of autonomy (administrative and governmental), it is protected against interference by the Executive Branch and against limitations imposed through legislation by the Legislative Branch (which may not modify its degree of autonomy by statute). Thus, the Executive Branch may not act as its director or place itself in a hierarchical relationship with this institution; nor may it impose guidelines upon it, issue orders to it, or control the timing or expediency of its activities. It is precisely for this reason that the Chamber has found that some provisions of the bill under review are unconstitutional because they deprive this institution’s degree of governmental autonomy of its substance, and one such provision, insofar as the term of senior public management personnel (personal de alta dirección pública) is concerned, is Article 18.

It should be noted that this provision regulates appointments and the probationary period (período de prueba) to which senior public management personnel will be subject and provides that this period will be 6 months, while also providing that appointments will be made for a maximum of 6 years, with the possibility of annual extensions. If the starting point for analyzing this provision is the degree of autonomy with which the Political Constitution has endowed the CCSS and, as stated, this entails that the institution may establish the rules for selecting its personnel through a special regulatory framework governing its statutory employment relationship and may also administer itself (manage its human, material, and financial resources), establish its own internal organization, determine its purposes, goals, and the types of means for achieving them, and issue autonomous service or activity regulations in accordance with general policy provisions, it is more than evident that requiring the CCSS to subject its senior public management personnel to a probationary period of 6 months, appointments for a maximum of 6 years, and possible annual extensions would be manifestly unconstitutional.

This is because the degree of autonomy enjoyed by the CCSS not only permits—and, given its nature, requires—it to regulate such matters concerning the human resources in its service, but such a requirement would also constitute interference by the Executive Branch in its constitutionally assigned powers, in clear violation of the protection it enjoys against interference by the Executive Branch and of the limitations that the legislature is required to respect, since the latter may not modify that degree of institutional autonomy by statute. Under this constitutional regulatory framework, it is more than evident that the CCSS itself may determine whether it wishes to have personnel designated as senior public management and, should it decide to do so, it has complete autonomy to establish the types of probationary periods applicable to them, their duration, and the kinds of appointments to be made, including whether they will be temporary or permanent and whether extensions of those appointments will be permitted, among many other matters inherent in managing this type of human resource.

Mideplán, as the Executive Branch body responsible for governing public employment, therefore could not impose directives upon the CCSS or issue orders to it in this area, as contemplated by the aforementioned Article 18.

Likewise, the autonomy enjoyed by the CCSS allows it to determine all policies for evaluating the performance of its officials and, therefore, it will be for the CCSS to establish the policies applicable to senior public management personnel, if, as stated, the institution decides to employ such personnel or classify certain officials under that category. Nor could Mideplán exercise any degree of interference in this area; if it did, its actions would be wholly contrary to Constitutional Law (Derecho de la Constitución).

Now, irrespective of the foregoing, it must be noted that the provision fails to establish the circumstances under which a public servant (persona servidora pública) would be unable to satisfactorily complete that probationary period.

Moreover, if Articles 191 and 192 of the Political Constitution establish that appointments within the Administration are to be made in accordance with the principle of demonstrated suitability (principio de idoneidad comprobada), it is unclear why a person holding a senior public management position—which has not been classified as a position of trust (cargo de confianza)—would be denied the opportunity to hold that position indefinitely, in direct contradiction with obtaining a position on the basis of suitability. Furthermore, depending on the institution and the type of work to be performed, an appointment for a period of 6 years might be insufficient to achieve the proposed goals and, ultimately, to attain the Administration’s final objective, which is efficiency in providing public services and utilizing human resources, particularly where specific training is required. I consider all these reasons to constitute additional grounds for finding the provision under review unconstitutional.

XIII. Regarding the Question of Violation of Municipal Autonomy.-

• 1)Matters Submitted for Review The consulting members of the Legislative Assembly consider that the following articles of the bill entitled “PUBLIC EMPLOYMENT FRAMEWORK LAW,” which is being processed under legislative file n° 21.336, violate municipal autonomy. Specifically, they request review of the following articles, identified either in the heading of the general title or elsewhere in the text of the filing:

 2.c (scope of coverage),  6 (governance by 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 consulting members consider these provisions unconstitutional because they violate the autonomy of the Municipalities. They state that it is unconstitutional to require Municipal Corporations to apply and implement the generally applicable provisions, directives, and regulations issued by Mideplán on matters related to workforce planning, work organization, employment management, performance management or performance evaluation, compensation management, and labor-relations management; to subject human resources offices to the General Public Employment System (arts. 6, 7, and 9); to create a single public employment system (art.13); and to subject personnel recruitment and selection to Mideplán (art.14), including senior technical management personnel (arts.17 and 18).

Before examining the constitutionality of the challenged provisions, it is appropriate to recall the constitutional scope and limitations of municipal autonomy, as established by constitutional case law.

• 2)Case-Law Background Regarding the Governmental Autonomy of Municipalities The first point to note is that the municipal system is a form of territorial decentralization (descentralización territorial), in accordance with the wording of the first paragraph of constitutional Article 168 (judgment n°2006-17113). The Municipalities are territorially decentralized entities (entes descentralizados), endowed with a certain degree of autonomy. This is second-degree autonomy, greater than that of autonomous institutions, because they enjoy governmental autonomy in addition to administrative autonomy. Accordingly, one of the greatest safeguards that municipalities possess vis-à-vis the Central Government is the degree of autonomy that the Constitution has assigned to them. Constitutional case law has defined it as governmental autonomy, or second-degree autonomy. Although the constitutional text is very concise regarding the scope and limitations of this degree of autonomy, constitutional case law has provided certain definitions in this respect.

It has held that the municipal autonomy set forth in Article 170 of the Political Constitution stems essentially from its representative nature as a local government (the country’s only form of territorial decentralization), responsible for administering local interests. Regarding its scope, it has been stated that this autonomy includes budgetary autonomy, the creation of taxes, and the adoption of municipalities’ own regulatory plans (planes reguladores). Municipalities may also define their development policies (plan and approve programs of action) and adopt their own budgets independently and to the exclusion of any other State institution. In exercising their autonomy, municipalities create local tax obligations and submit them for legislative approval, upon which their effectiveness depends (judgment n°2000-010136), as established by constitutional Article 121.14. Local governments may establish their own land-use planning (ordenación territorial) through regulatory plans, but those regulations are subordinate to and governed by protective environmental legislation.

Accordingly, the Chamber has consistently stated that a fundamental requirement—which clearly does not infringe the constitutional principle of municipal autonomy—is that every urban development regulatory plan must undergo an environmental impact examination or assessment (examen o evaluación de impacto ambiental) before being approved and implemented (Judgment n°2012-001315). Furthermore, with respect to the scope of their subject-matter jurisdiction (competencia material), it has been stated that, given the breadth of the concept of “local interests and services,” the territorial decentralization of the municipal system must not be understood to eliminate the powers assigned to other State bodies and entities. Specifically, it was held that the degree of municipal autonomy cannot be understood as full or unlimited autonomy, since it is always subject to certain limits:

“...that autonomy of the Municipalities granted by the Constituent Assembly in Article 170 of the Fundamental Law, although formally constituting a limit on interference by the Executive Branch, cannot be understood as full or unlimited autonomy, since it is always subject to certain limits, given that the territorial decentralization of the municipal system does not entail the elimination of the powers assigned to other State bodies and entities. Accordingly, there are local interests whose protection is entrusted to the Municipalities, alongside others whose constitutional and legal protection is assigned to other public bodies, including the Executive Branch...” (Constitutional Chamber, judgment n°2007-013577 and judgment n°2010-020958).

Thus, for example, municipal autonomy does not allow municipalities to exempt themselves from matters declared to be of national interest; otherwise, territorial autonomy would be distorted, transforming municipalities into microstates removed from the intergovernmental direction or oversight that the State may exercise through constitutional bodies (judgment (sentencia) n°2011-015736).

Municipal autonomy, which “… must be understood as the capacity of Municipalities to decide freely and under their own responsibility everything pertaining to the organization of a particular locality (the canton, in our case)” (voto n° 5445-1999), means that the local government has the power of self-regulation (autonormación) and self-administration (autoadministración); that is, municipalities may issue their own regulations governing their internal organization and the services they provide, and may independently manage and promote local interests and services without intervention by the Executive Branch. Likewise, the case law cited above has stated that no functions of any public entity may remain in place if they challenge the primacy of municipalities in matters falling within the local sphere. What is local, or how it is distinguished from what is not, may be defined by statute or through judicial interpretation.

Thus, full municipal autonomy refers strictly to “local matters,” but no antagonism may be created between local and national interests and services, since both are intended to coexist. This Court has stated that “… with respect to local matters, regulations by any other public entity are impermissible unless otherwise provided by law, which requires a well-founded reason for issuing the regulation; in other words, the municipality is not subordinate to State policy, and matters that may be connected with the local sphere may be regulated only by statute, provided that such legal rule is reasonable in light of the purposes pursued” (voto n° 5445-1999).

Regarding municipal autonomy in matters of public employment (empleo público), reference should be made to voto n° 02934-1993 of 15:27 on 22 de junio de 1993, which declared unconstitutional the challenged provisions establishing interference by the Contraloría General de la República in the internal disciplinary system (orden disciplinario interno) of local governments. On that occasion, the Sala held:

“III.- THE ALLEGED VIOLATION OF MUNICIPAL AUTONOMY.- It is argued that Article 18 of the Ley de Enriquecimiento Ilícito de los Servidores Públicos violates the principles established in Articles 170 and 184 subsection 5 of the Political Constitution (Constitución Política), because the provision infringes municipal autonomy, which must be understood as encompassing not only administration but also governance.

VI.The fourth paragraph in particular, as well as the fifth, are those challenged in the action. Although the latter is not challenged in the action, it was challenged at the oral hearing held. The provision states:

“ To fulfill the purpose of this law, whenever the Contraloría deems it necessary, it may interchange the auditors of the different public entities for such period as it determines, or it may temporarily replace them in order to assign them to investigative work within the Contraloría or at such location as it designates.” In the opinion of the Sala, and pursuant to Article 89 of the Ley de la Jurisdicción Constitucional, this provision is manifestly unconstitutional by reason of relatedness (conexidad), because it conflicts with Municipal Autonomy as set forth in Article 170 of the Political Constitution. Municipal autonomy, which derives from the Political Constitution itself, arises essentially from the representative character of local government—the country’s sole form of territorial decentralization (descentralización territorial)—which is responsible for administering local interests; municipalities may therefore independently define their development policies by planning and adopting action programs, to the exclusion of any other State institution, a power that also entails the authority to adopt their own budgets.

This political autonomy includes, of course, the power to issue the corporation’s internal organizational regulations, as well as regulations governing the provision of municipal public services. Accordingly, local legal scholarship has stated that “this constitutes a true decentralization of the political function in local matters.” Within this very general conception of municipal autonomy, the provision under review is contrary to its principles because, properly understood, it means nothing less than that the Municipal Auditor ceases to be an official of the Municipality and becomes hierarchically subordinate to the Contraloría General de la República, which may freely assign the Auditor without regard to the opinion of the Municipality itself. It is therefore evident that, in the opinion of the Sala, the paragraph transcribed above is unconstitutional and must consequently be annulled and removed from the legal system (ordenamiento jurídico).

It would not be unconstitutional, however, if all auditors of public entities were officials of and subordinate to the Contraloría General de la República, exercising ex ante oversight (control a priori) by delegation, as has sometimes been suggested; that concept, however, is not at issue in this action.

VII. The paragraph establishing the following must now be analyzed

“The dismissal of the auditor of each ministry, public entity, and private-law public enterprise shall require the approval of the Contraloría General de la República.” Municipal autonomy does not preclude legality review (control de legalidad), which legal scholarship unanimously recognizes as compatible with such autonomy when manifested through authorizations and approvals—ex ante and ex post oversight (control a posteriori), respectively, as requirements for the validity and effectiveness of acts. The most authoritative Costa Rican legal scholarship has stated on this point: “We do not regard legality reviews involving powers to suspend, annul, and replace fully regulated municipal administrative acts, when conducted by the Contraloría General de la República, as incompatible with municipal autonomy; rather, we consider them advisable, because they are supported by the logic of that type of review and by the desirability of curbing administrative abuses before resorting to judicial proceedings, which are inherently slow and ineffective.” In other words, the oversight exercised by the Contraloría General de la República, which likewise has a constitutional basis under Articles 183 and 184, does not conflict with municipal autonomy because its primary function is to review the legality of the financial administration of the State and municipal public sectors.

It follows that, insofar as local governments are concerned, such oversight is founded on an express constitutional provision (Article 184 subsection 2). This review is limited to verifying compliance with the applicable legal requirements, without considering questions of expediency or timeliness. Accordingly, the Sala finds that the mere approval of the dismissal of a municipal auditor, as a measure intended to verify compliance with the rules of due process (debido proceso), is neither unreasonable nor disproportionate and is not capable of violating the administrative integrity of the Municipalities. As an aspect of the exercise of oversight powers, the Sala does not find that the Contraloría General de la República is supplanting municipal powers. On the contrary, the law establishes a procedure for verifying the legality of the actions taken, which, in our opinion, does not conflict with Article 170 of the Political Constitution.

Because this legal provision requires no further implementing measures before it may be applied to specific cases, compliance with it is mandatory even in the absence of regulations, subject to the declaration of unconstitutionality now being made.” Similarly, voto n° 1691-94 of 10:48 on 8 de abril de 1994 held that the municipal executive—now the mayor—is responsible for the disciplinary system of Local Governments with respect to the officials and employees under that executive’s authority and is therefore the person who issues the decision on the merits in dismissal matters. These principles were reiterated in voto n° 5445-1999 of 14:30 on 14 de julio de 1999, which has since been cited in numerous judgments of this Sala. In that decision, the Constitutional Court addressed the administrative oversight relationship (tutela administrativa) between municipalities and other State institutions through agreed forms of voluntary coordination—which permits legality review and State supervisory powers, as well as the issuance of general directives and guidelines—and also addressed the disciplinary function, the assignment of duties to municipal employees, and the determination of the Mayor’s salary, based on the following considerations:

“I.- GENERAL CONCEPTS REGARDING THE MUNICIPAL SYSTEM. In summary, municipalities or local governments may be described as territorial entities of a corporate, public, non-State nature, endowed with independence in matters of governance and operation. This means, for example, that municipal autonomy encompasses taxation matters, which require legislative authorization for their validity, the taking out of loans, and the preparation and allocation of their own revenues and expenditures, together with general powers..

II. MUNICIPAL AUTONOMY (AUTONOMÍA MUNICIPAL)

General Principles. Grammatically, it is commonly said that the term “autonomy” may be defined as “the authority that municipalities, provinces, regions, or other entities within the State may enjoy to govern the particular interests of their internal life through their own rules and governing bodies.” From a legal and doctrinal standpoint, this autonomy must be understood as the capacity of Municipalities to decide freely and under their own responsibility everything concerning the organization of a particular locality (the canton (cantón), in our case). Thus, one sector of legal scholarship has stated that this autonomy entails the free election of their own authorities; the free administration of matters within their jurisdiction; the creation, collection, and investment of their own revenues; and, specifically, that it encompasses political, regulatory, taxation, and administrative autonomy, defined in very general terms as follows: political autonomy (autonomía política): that which gives rise to self-government, entailing the election of their authorities through democratic and representative mechanisms, as provided in Article 169 of our Political Constitution; regulatory autonomy (autonomía normativa): by virtue of which municipalities have the authority to enact their own body of rules in matters within their jurisdiction, an authority that in our country refers solely to the regulatory power governing the corporation’s internal organization and the services it provides (autonomous organizational and service regulations (reglamentos autónomos de organización y de servicio)); taxation autonomy (autonomía tributaria): also known as taxing authority (potestad impositiva), referring to the fact that the initiative to create, modify, abolish, or exempt municipal taxes rests with these entities, subject, when applicable, to the approval established in Article 121, subsection 13 of the Political Constitution; and administrative autonomy (autonomía administrativa): the authority that entails not only self-regulation but also self-administration and, therefore, freedom from the State in adopting the entity’s fundamental decisions.

Costa Rican legal scholarship, for its part, has stated 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 merely granted municipalities the capacity to administer and promote local interests and services, but have expressly provided that such municipal administration is and must be autonomous, autonomy being defined as freedom from the other State entities in adopting their fundamental decisions. This autonomy is directly related to the electoral and representative nature of their Government (Council and Mayor), whose members are elected every four years, and means the municipality’s capacity to establish its policies for action and investment independently, particularly from the Executive Branch and the governing political party. It is the capacity to establish local-government plans and programs and is therefore linked to the municipality’s authority to adopt its own budget, as an expression of the policies previously defined by the Council; that capacity, in turn, is political.

(…)

A. RELATIONS BETWEEN MUNICIPALITIES, OTHER STATE INSTITUTIONS, AND SOCIETY.

X. THE DUTY TO COORDINATE WITH STATE INSTITUTIONS

Municipalities may share their powers (competencias) with the Public Administration in general, a relationship that must operate under the terms defined by law (Article 5 of the former Municipal Code and Article 7 of the new Code), which establishes a duty of “coordination” between municipalities and the public institutions concurrently exercising their powers, in order to avoid duplication of efforts and contradictions, particularly because only voluntary coordination is compatible with municipal autonomy, as an expression thereof. In other words, the municipality is called upon to enter into cooperative relationships with other public entities, and vice versa, given that, in many cases, they have concurrent or overlapping interests concerning a specific matter. (…) Because neither decentralized institutions nor the State itself stand in a hierarchical relationship to municipalities, specific conduct cannot be imposed upon them.

This gives rise to the indispensable interinstitutional “concerted action” (concierto), in the strict sense, whereby autonomous and independent centers of action agree upon a preventive and comprehensive framework in which each performs a role with a view to a mission entrusted to the others. Accordingly, relations between municipalities and other public entities may take place only on an equal footing, resulting in mutually agreed forms of coordination and excluding any mandatory arrangement detrimental to their autonomy that would subject corporate entities (entes corporativos) to a coordination framework without or against their consent; this does, however, allow the necessary subordination of those entities to the State and in the State’s interest (through the State’s “administrative oversight” (tutela administrativa), specifically its function of reviewing legality, including powers of general supervision over the entire sector).

(…) This duty of coordination between State institutions and municipalities is implicit in the Political Constitution itself; (…)

“E. MUNICIPAL DISCIPLINARY SYSTEM (RÉGIMEN DISCIPLINARIO MUNICIPAL).

XXXVII. THE MUNICIPAL DISCIPLINARY SYSTEM AND THE OFFICIAL RESPONSIBLE FOR ITS MANAGEMENT

(…) Because the disciplinary system entails a relationship of subordination between a public employee and the institution for which the employee works, it is evident that the institution itself is directly responsible for managing and applying that system, without interference from other administrative agencies. The municipal disciplinary system is no exception, insofar as the Municipal Executive—now the Mayor—is responsible for exercising disciplinary authority (función disciplinaria) over local-government officials and employees who do not report directly to the Council, pursuant to Articles 141, 142, 148, 150, and 154 of the former Municipal Code and Article 17, subsection k), of the current Municipal Code. Accordingly, municipal personnel are appointed and managed by that official, except for those who report directly to the Council (the auditor or accountant and the Secretary of the Council—subsection f) of Article 13 of Municipal Code number 7794), as stated in Judgment number 1691-94, issued at diez horas cuarenta y ocho minutos del ocho de febrero de mil novecientos noventa y cuatro. Likewise, Judgment number 1355-96, issued at doce horas dieciocho minutos del veintidós de marzo de mil novecientos noventa y seis, stated the following regarding the Municipal Executive

XXXIX. DEFINITION OF THE DUTIES OF MUNICIPAL EMPLOYEES

The preceding Recitals (Considerandos) indicated that organizational authority (competencia organizativa) over municipal departments is an expression of the administrative autonomy enjoyed by municipal corporations. In this regard, because the Municipal Mayor—formerly the Municipal Executive—is the general administrator of local departments, the Mayor is responsible for assigning duties to municipal employees, as provided in Article 142 of the former Municipal Code:

XL.- SETTING OF SALARIES. Article 76 of the Municipal Code is challenged insofar as it categorizes municipalities according to their budgets and assigns 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 salary increases in relation to municipal budgets; this is alleged to violate municipal autonomy and the principle of reasonableness (principio de razonabilidad). Indeed, in accordance with everything previously stated in this judgment, this provision is wholly unconstitutional and openly violates the municipalities’ administrative autonomy established in Article 170 of the Constitution, insofar as setting the salary of their Mayor (formerly the Executive) is a matter inherent to their own government and administration. The determination thereof must therefore rest with their authorities, in accordance with the duties entrusted to the Mayor, and in all cases must be proportionate to the municipality’s budget, as established in Article 20 of Municipal Code number 7794.

Accordingly, the phrase in the third paragraph of Article 76 stating “The Contraloría General de la República and the Instituto de Fomento y Asesoría Municipal shall annually set the salaries of municipal executives on the basis of the amount of the municipal budgets referred to in this Article”; is unconstitutional.(…)”.

The judicial precedent (criterio jurisprudencial) established in the judgment partially quoted above has subsequently been reiterated and applied in resolving numerous matters involving municipal autonomy, taxing authority, municipal police, environmental matters, waste management, municipal property, and other subjects (see judgments numbers 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, among many others. Regarding taxing authority and business licenses (patentes), see judgments numbers 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 and ° 2005-02910 de las 15:59 horas del 15 de marzo de 2005.

Regarding municipal fees (tasas municipales) and municipal police, see judgments numbers 2001-01613 de las 14:54 horas del 27 de febrero de 2001 and 2001-01614 de las 14:55 del 27 de febrero de 2001. Regarding municipal powers in environmental matters, see judgments numbers n° 2015-016362 de las 09:30 horas del 21 de octubre de 2015 and 2016-004621 de las 16:20 horas del 5 de abril de 2016. Regarding municipal powers over waste management, see judgment n° 13577-2007 de las 14:40 horas del 19 de septiembre de 2007). Among these judgments, judgment n° 2007-13577 de las 14:40 horas del 19 de septiembre de 2007 is particularly noteworthy because it makes clear that, notwithstanding the autonomy municipalities possess, they cannot exempt themselves from the necessary coordination and alignment they must maintain with other State institutions in order to implement the country’s national development plan. Specifically, the Court stated on that occasion:

“Now then, that autonomy of the Municipalities granted by the Constituent Assembly in Article 170 of the Fundamental Law, although it formally constitutes a limit on interference by the Executive Branch, cannot be understood as full or unlimited autonomy, since it is always subject to certain limits, because the territorial decentralization (descentralización territorial) of the municipal regime does not entail the elimination of the powers assigned to other State bodies and entities. Accordingly, there are local interests whose protection falls to the Municipalities and, alongside them, other interests coexist whose constitutional and legal protection is entrusted to other public bodies, including the Executive Branch. For this reason, this Chamber has recognized that when a problem extends beyond the territorial jurisdiction to which local governments are confined, powers may be exercised by national State institutions, since the actions of the former are integrated within the general guidelines established under the national development plan, without this constituting a violation of their autonomy.” With regard to the Legislature’s powers to develop the mayor’s legal and functional framework, the Chamber has stated that this is governed by the principles of expediency and suitability (principios de oportunidad y conveniencia), whose limits lie in the reasonableness of the legislative act. In this regard, judgment no. 2008-007685, issued at 14:48 hours on May 7, 2008, held as follows:

“II.- The case law of this Chamber on municipal autonomy (autonomía municipal). The claim of the Municipal Mayor of Aguirre must be resolved within the case-law framework developed by this Constitutional Chamber concerning municipal autonomy, which has been understood as the capacity of municipalities to decide freely, and under their own responsibility, everything related to the organization of a particular locality.

(…) As is evident from the foregoing case-law quotation, regulatory autonomy (autonomía normativa) entails the municipality’s capacity to enact its own regulatory framework—understood as autonomous organizational and service regulations (reglamentos autónomos de organización y de servicio)—but subject to the provisions established by law.

III.- (…), the Constituent Assembly delegated to the ordinary Legislature the development of the Municipal Mayor’s legal and functional framework; accordingly, the law may restrict or strengthen the position of the Deputy Mayors as assistants to the Mayor in the performance of the Mayor’s duties. Pursuant to the constitutional provision, such legislative development is governed by the Legislature’s principles of expediency and suitability, whose only limits lie in the reasonableness of the legislative act. (Emphasis not in the original.)

Finally, it is important to highlight, as a case-law precedent, judgment no. 11406-2017, issued at 10:17 hours on July 19, 2017, in which several provisions of the Water Law were challenged because they established that the water inspector was an official appointed by MINAE, while the municipality was responsible for bearing the cost of the inspector’s salary. In that regard, the following was held:

“Thus, following this line of argument, we may state that the position of cantonal water inspector is supported by the view maintained in this judgment that water is not a matter of local interest falling within municipal autonomy, since it is not merely local—but rather of national interest—nor can it be subjected to territoriality criteria. Therefore, this inspector acts within the framework of coordination among public institutions in environmental matters, as an official subordinate to MINAE, the body having governing authority over water resources, while maintaining a close relationship with the municipalities, since the inspector is paid by them through a specific fee (canon) provided for in the regulations. In this regard, it cannot be asserted that this position infringes municipal autonomy because, as noted, in matters of a national nature, such as water, that autonomy is not full or unlimited, since it is always subject to certain limits, such as when constitutional principles and rights—including the right to water—are involved.

Nor can it be alleged that it infringes the Municipality’s budgetary authority, since, as just indicated, the regulations provide for a specific fee to finance it. Accordingly, this Court considers that neither the mayor bringing the action nor the Office of the Attorney General of the Republic is correct regarding possible supervening unconstitutionality (inconstitucionalidad sobreviniente), because the position of cantonal water inspector does not infringe the municipal autonomy enshrined in the Political Constitution and is therefore consistent with Constitutional Law (Derecho de la Constitución). In view of the foregoing, the action must be dismissed.” In conclusion, local governments constitute “a genuine decentralization of political authority in local matters.” The degree of autonomy enjoyed by municipalities—namely, administrative and governmental autonomy (autonomía administrativa y de gobierno)—allows them to administer themselves (to manage their human, material, and financial resources), exercise their statutory powers independently, and establish their own internal organization.

Moreover, governmental autonomy means that they may establish their purposes, goals, and means and may also issue autonomous service regulations. They may likewise define their development policies (plan and approve action programs), create taxes—which must be authorized by law—and establish their own land-use planning (ordenación territorial) through zoning plans (planes reguladores). Nevertheless, they remain subject to the limitation that they cannot exempt themselves from matters declared to be of national interest.

• 3)Specific Analysis of the Matters Submitted for Consultation Regarding Article 2.c.- Scope of Application with Respect to the Municipalities (drafted by Justice Picado Brenes) Those requesting the consultation contend that subsection c) of Article 2 of the bill under review, insofar as it includes municipalities within its scope of application, infringes the governmental autonomy of these local governments. In this regard, consistent with the conclusion that this provision is not unconstitutional per se as applied to other institutions, Article 2(c) is not in itself unconstitutional insofar as it includes municipalities within a general public-employment regulatory framework; however, it is unconstitutional in its effects because some provisions of this bill deprive their governmental autonomy of substance, as will be specifically explained in the following sections. Returning to the discussion above, it is plausible to subject all State branches and institutions to a single public-employment statute.

However, insofar as such subjection goes beyond general principles and encroaches upon matters falling within the municipalities’ governmental autonomy, it is unconstitutional in its effects, because local governments cannot be subjected to guidelines, provisions, circulars, or manuals issued by Mideplán, nor may obligations falling within the scope of their degree of autonomy be imposed by law. It should be recalled that Municipalities are territorially decentralized entities that have been granted a certain degree of autonomy. Thus, one of the greatest safeguards enjoyed by municipalities vis-à-vis the Central Government is the degree of autonomy assigned to them by the Constitution—namely, political or governmental autonomy, or second-degree autonomy. Regarding its scope, it has been stated that such autonomy includes budgetary autonomy, the creation of taxes, and the adoption of their own zoning plans.

Municipalities may also independently define their development policies (plan and approve action programs), to the exclusion of any other State institution, a power that also entails the authority to adopt their own budgets. Although the degree of municipal autonomy cannot be understood as full or unlimited autonomy, since it is always subject to certain limits, municipalities nevertheless enjoy special protection arising from their political autonomy, which makes subjecting them 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.

Regarding Article 6.- Mideplán’s Power of Direction over the Municipalities (drafted by Justice Castillo Víquez) Articles 169 and 170 of the Political Constitution assign municipalities responsibility for safeguarding local interests and services and grant them political autonomy for that purpose. For such purposes, as may readily be inferred, matters relating thereto—the establishment of goals and purposes—logically entail, from a legal standpoint, that neither the Executive Branch nor one of its bodies—Mideplán—may exercise the power of direction (potestad de dirección), by issuing directives to them, or regulatory authority (potestad reglamentaria). This position is constitutionally valid with respect to public employment, specifically those officials essential to fulfilling the constitutionally assigned purposes, as well as the administrative, professional, and technical personnel whom the highest authorities of the Municipal Corporations designate on an exclusive basis. This means that certain public employees of those corporations—those who perform basic, auxiliary administrative duties—could fall under the governing authority of the Executive Branch or Mideplán. Taking these premises as a road map, and after reviewing this Court’s case law, the provisions submitted for consultation will be analyzed.

Under Articles 191 and 192 of the Political Constitution, including municipalities within the Framework Public Employment Law bill is not unconstitutional. On the contrary, the Constituent Assembly permits either several statutes or a single statute to govern relations between the State and public servants. This is so provided that the legislation recognizes the sphere of autonomy enjoyed by local governments, as established by Article 170 of the Constitution and developed by this Constitutional Chamber in the case law cited above.

Municipal autonomy, which “(…) must be understood as the capacity of Municipalities to decide freely and under their own responsibility everything relating to the organization of a particular locality (the canton, in our case)” (judgment No. 5445-1999), means that local government has powers of self-regulation and self-administration (potestad de autonormación y autoadministración). This means that municipalities may issue their own regulations governing their internal organization and the services they provide, and have the capacity to manage and promote local interests and services independently of the Executive Branch. Nevertheless, this regulatory autonomy is subject to the provisions established by law.

Likewise, the case law cited above has held that no functions of any public entity may continue to exist that challenge the primacy of the municipalities when the matter falls within the local sphere. What is local, or its distinction from what is not local, may be defined by law or through judicial interpretation. Thus, full municipal autonomy (autonomía municipal) refers strictly to “the local sphere,” but no antagonism may be created between local and national interests and services, since both are meant to coexist. This Court has stated that “… with respect to the local sphere, regulations issued by any other public entity are impermissible unless otherwise provided by law, which entails a well-founded reason for issuing the regulation; in other words, the municipality is not coordinated with State policy, and only by means of a law may a matter that may be connected with the local sphere be regulated, provided that such legal rule is reasonable in light of the objectives pursued” (voto No. 5445-1999).

With regard to Article 6, it is unconstitutional because officials who participate in administrative functions connected with the constitutionally assigned purposes, those who hold senior political leadership positions, and all administrative, professional, and technical personnel designated by the highest governing bodies of municipal corporations are not excluded from the power of direction (potestad de dirección). Therefore, the provision is constitutional only insofar as it concerns basic auxiliary administrative personnel, who would fall within the job family (familia de puestos) pursuant to Article 13(a) of the bill.

Regarding Article 7.- Powers of Mideplán with Respect to the Municipalities (drafted by Justice Castillo Víquez) With regard to Article 7, the same position expressed concerning Article 6 is maintained; furthermore, it subjects matters to Mideplán’s regulatory authority (potestad de reglamentación) where the municipalities have exclusive authority to accomplish the constitutional purpose assigned by the original constituent authority.

Regarding Article 9.- Human Resources Office in the Municipalities (drafted by Justice Brenes Picado) The provision under review establishes the following:

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

They shall also apply and implement the generally applicable provisions, directives, and regulations concerning 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, pursuant to Ley 6227, Ley General de la Administración Pública, of 2 de mayo de 1978, and Article 46 of Ley 2166, Ley de Salarios de la Administración Pública, of 9 de octubre de 1957.

• b)The offices, departments, areas, directorates, units, or equivalent human resources management bodies shall be responsible for preparing and administering knowledge, competency, and psychometric tests for recruitment and personnel-selection processes, and for conducting internal and external competitive examinations based on merit, which shall always meet at least the standards established by the Dirección General del de Servicio Civil for each position, within its area of authority, and the guidelines issued pursuant to Article 46 of Ley 2166, Ley de Salarios de la Administración Pública, of 9 de octubre de 1957.

They shall also incorporate such competitive examinations into the Administración Pública’s public employment offerings and verify that public servants receive proper induction concerning the duties, responsibilities, and functions of their positions, as well as the general ethical duties of public service and those specific to the institution and position.

• c)The institutional human resources management offices of ministries and attached institutions or bodies falling within the scope of the Estatuto de Servicio Civil are technical units of the Dirección General de Servicio Civil, which, for all purposes, shall coordinate the preparation of recruitment and personnel-selection tests with those offices and perform its advisory, training, and technical-support functions.” As can be seen, Article 9 under review establishes certain functions for all human resources offices, departments, areas, directorates, or units of all institutions included in the bill, including the human resources offices of every municipality. Accordingly, as specifically concerns the consultation regarding local governments, the second paragraph of subsection (a) requires all human resources departments to apply and implement the generally applicable provisions, directives, and regulations concerning planning, work organization, employment management, performance management, compensation management, and labor relations management that Mideplán sends to them.

This would mean that an Executive Branch body such as Mideplán would impose on these politically autonomous local entities the application and implementation of its provisions, directives, and regulations in matters falling within the 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 imposed on municipal human resources departments clearly violates their political autonomy, in accordance with the scope attributed to it by constitutional case law. It should be recalled that municipal autonomy, enshrined in Article 170 of the Constitución Política, essentially arises from its representative nature as a local government—the country’s only form of territorial decentralization—charged with administering local interests. Local governments have the power of self-regulation (potestad de autonormación) and self-administration (autoadministración), meaning that they may issue their own regulations governing their internal organization and the services they provide, and have the capacity to manage and promote local interests and services independently of the Executive Branch.

It is therefore clear that the Executive Branch may not act as a director of, or in a hierarchical relationship with, the municipalities, and may not impose guidelines on them, issue orders to them, or control the timing or expediency of their activities. Article 9 at issue is therefore unconstitutional insofar as it seeks to require local-government human resources departments to apply and implement the generally applicable provisions, directives, and regulations concerning planning, work organization, employment management, performance management, compensation management, and labor relations management that Mideplán sends to them.

Regarding Article 13.- Job Family with Respect to the Municipalities (drafted by Justice Castillo Víquez) Article 13 is unconstitutional because it fails to establish a job family for municipal employees and consequently includes all of them within the Servicio Civil. It cannot be overlooked that the Código Municipal, from Article 124 through Article 161 inclusive, contains Title V, which comprehensively regulates the relationship between municipal employees and local public administrations; furthermore, Article 50 of the bill, which sets forth the express repeals (derogatorias expresas), does not even refer to the provisions contained in that Code, nor are the corresponding amendments made in Article 49 of the bill under review.

Regarding Article 14.- Recruitment and Selection in the Municipalities (drafted by Justice Picado Brenes) The requesting parties state that the political autonomy of the Municipalities is infringed by the attempt to subject them to provisions issued by an Executive Branch body regarding the recruitment and selection of their personnel. Article 14 at issue provides as follows:

“ARTICLE 14- Recruitment and selection The recruitment and selection of newly hired public servants shall be based on their proven suitability (idoneidad comprobada), for which purpose the Ministerio de Planificación Nacional y Política Económica (Mideplán), in strict compliance with Ley 6227, Ley General de la Administración Pública, of 2 de mayo de 1978, shall issue generally applicable provisions, directives, and regulations according to the respective job family.

In recruitment and selection processes, an applicant who falls within any of the following circumstances may not be selected:

• a)Being related by blood or affinity, in the direct or collateral line up to and including the third degree, to the immediate supervisor or to that supervisor’s immediate superiors in the respective agency.
• b)Being listed in the register of ineligible persons on the integrated public employment platform.” As has already been duly established, pursuant to Articles 2 and 13 of the bill and as provided in this Article 14, all Municipalities would be subject to the generally applicable provisions, directives, and regulations issued by Mideplán regarding the recruitment and selection of newly hired personnel, which is unconstitutional. This Chamber has stated that municipal autonomy “entails the free election of its own authorities; the free administration of matters within its jurisdiction; the creation, collection, and investment of its own revenues; and, specifically, encompasses political, regulatory, taxation, and administrative autonomy.” (voto n° 5445-1999). Therefore, “relations between municipalities and other public entities may take place only on an equal footing, resulting in agreed forms of coordination and excluding any mandatory arrangement detrimental to their autonomy that would allow corporate entities to be subjected to a coordination scheme without or against their consent; this does, however, permit the necessary subordination of these entities to the State and in the State’s interest (through the State’s ‘administrative oversight’ (tutela administrativa), specifically through its function of reviewing legality, with general supervisory powers over the entire sector).” In other words, State coordination and administrative oversight are permissible with respect to legality review (control de legalidad), but it is not permissible for an Executive Branch body such as Mideplán to issue generally applicable provisions, directives, and regulations to the Municipalities governing their recruitment and selection processes.

In this regard, any external interference by another branch of government in matters specific to local governments that infringes their autonomy is invalid. On that understanding, an Executive Branch body—in this case Mideplán—cannot be permitted to impose on the Municipalities provisions relating to their personnel recruitment and selection processes, a matter that, as noted, is inherent in the degree of autonomy enjoyed by these local governments. Consequently, this Article contains a constitutional defect (vicio de inconstitucionalidad) insofar as it applies to the Municipalities.

Regarding Article 17.- Senior Management Positions in Municipalities (opinion authored by Justice Picado Brenes) The provision under review establishes the following:

“ARTICLE 17- Senior public management personnel The Ministerio de Planificación Nacional y Política Económica (Mideplán) shall issue generally applicable provisions, directives, and regulations concerning senior public management personnel that are consistent with Ley 6227, Ley General de la Administración Pública, of 2 de mayo de 1978, in order to provide the Public Administration with personnel profiles demonstrating integrity and proven management, innovation, and leadership capabilities, with a view to improving the provision of public goods and services. (…)” The petitioners contend that governmental autonomy (autonomía de gobierno) of the Municipalities is infringed because this provision establishes that, in the case of senior management positions, Mideplán shall issue the relevant generally applicable provisions, directives, and regulations. With respect to this consultation, consistent with the manner in which this Chamber has been deciding these matters, the interference of this Ministry, which is a body of the Executive Branch, through the issuance of generally applicable provisions, directives, and regulations governing senior management positions in the municipalities, violates their governmental autonomy.

It should be recalled that this Chamber has stated that “municipalities are representative governments with jurisdiction over a specific territory (canton), their own legal personality, and public powers vis-à-vis their residents (inhabitants of the canton); they operate in a decentralized manner with respect to the Government of the Republic and enjoy constitutionally guaranteed and reinforced autonomy, manifested in political matters through the determination of their own objectives and the regulatory and administrative means for fulfilling all types of public services to promote the common good in their community.” (judgment n°5445-1999). It should be noted that positions of this type are highly important to the faithful administration of local interests and services; they must be particularly protected from interference by the Executive Branch and require the personnel stability necessary for the proper performance of the position, which is incompatible with subordination to the provisions issued in this regard by Mideplán, as prescribed by the provision at issue. Accordingly, Article 17 under review is considered constitutionally defective, on the grounds stated above.

Regarding Article 18.- Terms of Senior Management Personnel in Municipalities (opinion authored by Justice Picado Brenes) In the petitioners’ view, provision 18 is unconstitutional because it affects a matter falling within the municipalities’ own jurisdiction by establishing that appointments to senior technical management positions shall be for 6 years, with a probationary period (período de prueba) of 6 months, renewable annually and subject to performance evaluation (evaluación de desempeño). Article 18 under review provides as follows:

“ARTICLE 18- Appointment and probationary period for senior public management Every public servant appointed to a senior public management position shall be on probation for a period of six months, and the 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. (…)” In this regard, the regulation of matters concerning the appointment and selection of personnel—including senior technical management positions, the probationary period, the term, or the conditions for extending appointments—falls within and pertains to the political autonomy (autonomía política) of local governments. Senior technical management positions, as defined by the municipalities themselves, are understood to be strategic positions of great importance to their proper organization and attention to local interests and services.

Therefore, in accordance with the municipalities’ own purposes, it is for them to assess the needs of the services they provide and determine the conditions under which those positions must be filled in order to fulfill the constitutional purposes assigned to them, with due regard for the degree of autonomy recognized, provided that the principle of suitability (principio de idoneidad) is observed. Where applicable, for example, the advisability of the appointment term for those positions or the conditions for renewal could be subject to a requirement of greater job stability, such as that guaranteed by constitutional provision 192. All of this must be governed by their internal regulations, rather than by generic legislation such as that proposed in this bill. Defining such conditions falls within the exclusive jurisdiction of local governments. Thus, as drafted, Article 18 under review is constitutionally defective because it violates the political autonomy of the municipalities, which have exclusive authority to define the conditions under which their senior management positions are to be performed.

• 4)Conclusion Having analyzed all the matters submitted for review concerning 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 expediente n° 21.336, this Chamber finds that those provisions are contrary to the Law of the Constitution (Derecho de la Constitución) because they violate the constitutionally enshrined governmental autonomy of the municipalities.

Those provisions subject the Municipalities to a relationship of direction and subordination to a body 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 concern the following matters: 6 (Mideplán’s governance of the General Public Employment System); 7 (Mideplán’s broad powers, turning it into a kind of superior authority with regulatory powers over the entire state apparatus in matters of public employment); 9 (the subjection and subordination of human resources offices to Mideplán and the Dirección General de Servicio Civil); 13 (a single general public employment system comprising eight job families); 14 (recruitment and selection based on Mideplán’s regulatory provisions); and 17 and 18 (senior public management personnel subject to a single probationary period and a single appointment term). All of this clearly violates the autonomy of the municipalities because those provisions establish a kind of governing and hierarchical relationship with Mideplán. Moreover, this autonomy even provides protection against the Legislature, which may not intrude into matters inherent to municipal autonomy (autonomía municipal).

• 5)Reasons and Separate Opinions Regarding the Consultation as It Concerns the Municipalities a) Separate opinion of Justice Rueda Leal concerning the inclusion of municipalities in Article 2, subsection c), of the bill under review.

I emphasize that this provision is unconstitutional because of its effects, since it must be viewed within the systematic structure of the articles in order to understand how the autonomy of local governments is affected. As I note in other parts of this decision, the specific determination of the legal consequences, should this bill ultimately be incorporated into the legal system, will be developed through case law when its practical application is analyzed. With respect to the municipalities, local interests will assume particular importance in such application.

• b)Separate opinion of Justice Garro Vargas concerning the unconstitutionality of Article 2, subsection c) In this specific case, the Chamber has unanimously declared that Article 2, subsection c), under review is unconstitutional because it seeks to include municipalities within the scope of the public employment framework bill.

In this regard, I wish to emphasize that, under the constitutional provisions, it is clear that municipal corporations are territorially decentralized entities endowed with administrative and governmental autonomy. The municipal autonomy set forth in Article 170 of the Constitución Política originates in their representative character as local governments—the country’s sole form of territorial decentralization—responsible for administering the local interests and services of each canton. It is appropriate to quote verbatim the provisions of Articles 168, 169, and 170 of the Constitución Política governing the municipal system:

“Art.168.- For purposes of the Public Administration, the national territory is divided into provinces; these into cantons, and the cantons into districts. The law may establish special divisions.

The Asamblea Legislativa may decree, in accordance with the procedures for a partial amendment to this Constitution, the creation of new provinces, provided that the corresponding bill has first been approved in a plebiscite that the Assembly shall order to be held in the province or provinces subject to division.

The creation of new cantons requires approval by the Asamblea Legislativa by a vote of no fewer than two-thirds of all its members.

Art. 169.- The administration of local interests and services in each canton shall be entrusted to the Gobierno Municipal, composed of a deliberative body made up of popularly elected municipal council members and an executive official designated by law.

Art. 170.- Municipal corporations are autonomous. In the Ordinary Budget of the Republic, all municipalities in the country shall be allocated an amount no less than ten percent (10%) of the ordinary revenues estimated for the corresponding fiscal year.

The law shall determine the powers to be transferred from the Executive Branch to municipal corporations and the distribution of the indicated resources.” Those provisions must also be examined in conjunction with Articles 121, subsection 13 (which provides that the Asamblea Legislativa is responsible for authorizing municipal taxes), and 175, which requires municipalities to adopt their ordinary or extraordinary budgets—subject, however, to oversight by the Contraloría General de la República—important indications of the budgetary and financial autonomy (autonomía presupuestaria y financiera) of the Gobierno Municipal in fulfilling its responsibility to oversee the administration of local interests and services. Nor may one overlook Article 149, subsection 5, of the Constitución Política, which places municipalities at a level similar to that of other branches of the Republic by imposing responsibility on the Executive Branch when it obstructs the functions entrusted to local governments. That provision states as follows:

“Art. 149. The Presidente de la República and the Ministro de Gobierno who participated in the acts specified below shall also be jointly liable: (…)

• 5)When they prevent or obstruct the functions inherent to the Poder Judicial, restrict the freedom with which the Courts must adjudicate the cases submitted for their decision, or in any way obstruct the functions corresponding to electoral bodies or the Municipalities; (…)

This constitutional regulatory framework is also reflected in Article 2 of the Código Municipal, which states that a municipality is a state legal entity with its own assets and full legal personality and capacity to execute all types of acts and contracts necessary to fulfill its purposes, and Article 4 provides as follows:

“Article 4.- The municipality possesses the political, administrative, and financial autonomy conferred upon it by the Constitución Política. Its powers include the following:

• a)Issue autonomous organizational and service regulations (reglamentos autónomos de organización y de servicio), as well as any other provision authorized by the legal system.
• b)Approve and execute their budgets.
• c)Administer and provide municipal public services, as well as oversee their supervision and control.

(The preceding subsection was amended by Article 2 of Law No. 9542, “Ley de Fortalecimiento de la Policía Municipal,” of April 23, 2018)

• d)Approve municipal rates, prices, and contributions, as well as propose draft municipal tax rates.
• e)Collect and administer, in their capacity as tax administrations (administración tributaria), municipal taxes and other municipal revenues (…)”.

Starting from the constitutional framework described above, which recognizes broad autonomy for municipal governments, and in accordance with the general principles set forth supra, I reiterate that a framework law governing public employment (empleo público) is indeed permissible. However, such legislation cannot disregard the particular structure of our rule-of-law state (Estado de Derecho) established in the Political Constitution. Specifically, the objection is that Art. 2, subsection c), includes municipalities within the scope of the legislation. In my view, that provision is not in itself unconstitutional insofar as it includes municipal corporations within a public-employment regulatory framework, provided that framework is understood as one establishing general principles and rules (which, of course, does not mean that they must be ambiguous). Nevertheless, because this bill does not have those characteristics, this article is unconstitutional by connection (inconstitucionalidad por conexidad) with the remainder 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 the bill to local governments, which were expressly vested by the Constitution with governmental autonomy (autonomía de gobierno).

In other words, the provisions of those rules, in connection with Art. 2, subsection c), deprive governmental autonomy, which is inherent to local governments, of its substance. Moreover, the rationale of the law as a whole is reflected not only in its articles but also in its statement of reasons (exposición de motivos), which has interpretive value (valor hermenéutico). Accordingly, for Art. 2, subsection b), to be deemed not “in itself” unconstitutional, it would have to be viewed separately from what that statement of reasons says in relation to those provisions.

• c)Separate opinion (nota separada) of Justice Picado Brenes regarding Article 2, subsection c), of the bill as it pertains to the Municipalities and Mideplán’s power of direction (potestad de dirección) (item 45 of the Por Tanto) The Constitutional Chamber unanimously held that Article 2, subsection c), of the Ley Marco de Empleo Público bill is not in itself unconstitutional insofar as it includes municipalities within a general public-employment regulatory framework, but that it is unconstitutional in its effects because, in the Chamber’s view, some of its provisions deprive their governmental autonomy of its substance. Certain clarifications regarding this specific issue are essential, and I must begin by recalling that Articles 169 and 170 of the Political Constitution grant municipalities authority to administer local interests and services and that, in implementation of those provisions, they enjoy political autonomy (autonomía política) to determine their organization and form of administration in order to fulfill that mandate.

This degree of political or governmental autonomy allows them to establish their own goals and objectives, as well as the mechanisms for achieving them, including all matters relating to public employment. It must be borne in mind that the degree of municipal autonomy (autonomía municipal) does not permit Mideplán, as an agency of the Executive Branch, to impose directives, provisions, or regulations concerning public employment upon them; doing so would infringe that constitutionally granted autonomy. It should be noted that, under the terms in which the bill is drafted, Mideplán will have full jurisdiction and authority to establish whatever it deems appropriate, above any hierarchy or Branch of the Republic. Therefore, as regards the municipalities, this will conflict with Articles 169 and 170 of the Constitution, from which it follows that municipalities possess full governmental and administrative autonomy (autonomía administrativa), both in public-employment matters and in any other matter concerning the promotion and protection of local interests.

In light of those constitutional provisions, Mideplán could not impose itself upon municipalities in public-employment matters without creating a conflict with Constitutional Law (Derecho de la Constitución).

In my view, the municipalities’ power of self-regulation and self-administration (potestad de auto regularse y de auto administrarse), derived from Articles 169 and 170 of the Constitution, means that they may issue their own regulations governing their internal organization and the services they provide, and that they have the capacity to manage and promote local interests and services independently of the Executive Branch. This includes the power to organize and administer the human resources through which they will fulfill their goals and purposes. Consequently, all human-resource management (gestión del recurso humano) must fall within municipal jurisdiction because it will ultimately benefit the municipal corporation; the contrary approach, as contemplated by the bill under review, constitutes an infringement of Constitutional Law.

• d)Additional reasons of Justice Garro Vargas concerning the unconstitutionality of Article 7 on the ground that it affects the autonomy of the Municipalities In this case, I depart from the majority opinion because I consider Art. 7 in its entirety to be unconstitutional insofar as it subjects the municipalities to Mideplan’s governing and regulatory authority (potestad de rectoría y de reglamentación).

As already noted, that provision grants a series of broad powers to a ministry of the Executive Branch which, when applied to municipal corporations, are unconstitutional because they disregard the latter’s autonomy to establish their own administration and government. As noted, these powers could eliminate their capacity for self-government and for managing the personnel necessary to perform their inherent functions.

I previously observed 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 that, accordingly, the analysis of the powers granted to Mideplan must be nuanced. Nevertheless, as I have been explaining, insofar as the Constitution grants municipal corporations governmental autonomy to establish their own administration, any powers sought to be granted to Mideplan that entail governing authority over the autonomy recognized for municipal governments are indeed unconstitutional. Once again, if Art. 7 is examined as a whole in connection with Art. 6, subsections b) and d), as well as Art. 9, subsection a), second paragraph, it is apparent that the municipalities are subjected to the orders, directives, and regulations of a ministry of the Executive Branch, thereby infringing the governmental autonomy constitutionally entrusted to them for the fulfillment of their purposes. I further reiterate that a public-employment regime (régimen de empleo público) may be extended by law to municipalities, but only if it does not entail subordination to the Executive Branch. In this regard, it must be kept clearly in mind that the municipal system (régimen municipal) constitutes a level of government distinct from the central government.

• e)Additional reasons of Justice Picado Brenes regarding Article 7 of the bill and Mideplán’s broad powers with respect to the Municipalities (item 47 of the Por Tanto) As has been stated, Articles 169 and 170 of the Political Constitution grant municipalities authority to administer local interests and services and, in implementation of those provisions, they enjoy political autonomy to determine their organization and form of administration in order to fulfill that mandate. This degree of political or governmental autonomy allows them to establish their own goals and objectives, as well as the mechanisms for achieving them. It would therefore be unconstitutional for MIDEPLAN, as an agency of the Executive Branch, to impose directives, provisions, or regulations concerning public employment upon them, as contemplated by Article 7 of the bill under review.

Article 7 provides that MIDEPLAN will have full jurisdiction and authority to establish whatever it deems appropriate. Therefore, as regards the municipalities, this will conflict with Articles 169 and 170 of the Constitution, from which it follows that municipalities possess full governmental and administrative autonomy, both in public-employment matters and in any other matter concerning the promotion and protection of local interests. In light of those constitutional provisions, MIDEPLAN could not place itself above the municipalities in public-employment matters without creating a conflict with Constitutional Law. In this regard, consistently with the foregoing, Article 6 is troubling because a comprehensive reading of the bill indicates that the municipalities would be included in the General Public Employment System (Sistema General de Empleo Público) established therein, and Mideplán would therefore exercise the power of direction—issuing directives to them—or regulatory authority (potestad reglamentaria); this violates the degree of autonomy granted to the Municipalities by the Constitution.

I consider that, although the State, through its competent constitutional bodies, such as the Legislative Assembly and the Executive Branch, may establish a general policy concerning priorities—as public employment might be—based on the needs facing the country at a particular time, it is also true that, under the Costa Rican democratic system and the Political Constitution, each municipality is responsible within its jurisdiction for safeguarding local interests and services, to the exclusion of any interference incompatible with the concept of local matters as established in Articles 169 and 170 of the Constitution. Accordingly, precisely out of respect for their political autonomy, matters relating to municipal human-resource management must fall within their jurisdiction, without intervention by the Executive Branch, in this case MIDEPLAN.

In my view, the power of municipalities to regulate and administer themselves, derived from Articles 169 and 170 of the Constitution, means that they may issue their own regulations governing their internal organization and the services they provide, as well as independently of the Executive Branch manage and promote local interests and services, all of which includes 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 to be determined by municipal corporations, while their attention and fulfillment are to be carried out by persons who serve in accordance with guidelines, regulations, and provisions originating from a centralized entity that is not necessarily aligned with the fulfillment of those local goals and purposes. In the same vein, and still regarding human-resource management (gestión del recurso humano), I consider it illogical for some municipal functions to address local interests and services because they were designed internally by the municipality, while others, because they originate from MIDEPLAN, are aimed at achieving different objectives.

There must unquestionably be consistency and balance between municipal objectives and those other objectives governing human-talent management (gestión del talento humano); therefore, in my view, matters relating to municipal employees must fall within municipal jurisdiction because, ultimately, this will benefit the municipal corporation. At this point, then, I must make a clarification that would also apply to Article 6 of the draft Framework Law on Public Employment, because I consider it unacceptable to divide municipal human resources into two sectors: those who would be included in the general public-employment system (sistema general de empleo público) and those who would be excluded; or, as the majority of the Chamber does when it finds that there are:

• a)officials essential to fulfilling the constitutionally assigned purposes, as well as administrative, professional, and technical personnel whom the highest authorities of the Municipal Corporations define, exclusively and to the exclusion of all others; and b) public employees of those corporations who perform basic, auxiliary administrative functions and who could indeed be placed under the governing authority (rectoría) of the Executive Branch or Mideplán.

In my view, all personnel working in the municipalities, from the most modest position to the highest-ranking office, are absolutely essential to the performance of the local public function (función pública local) constitutionally assigned to these municipal corporations. This is so because, for example, without the work performed by garbage collectors or custodians, the Municipal Council or the Mayor could not achieve the proposed goals for the benefit of local interests. It is absolutely essential to view municipal personnel as a whole serving a single purpose: the management of local interests and services.

Regarding human-talent management and in accordance with new theories of Personnel Administration, the paradigm has changed because employees can no longer continue to be regarded simply as workers within an organization; they are providers of indispensable knowledge, skills, and capabilities and, above all, of another important contribution: intelligence, which enables better-informed decisions and helps achieve the overall objectives. Workers are human beings endowed with personality and possess knowledge, abilities, skills, and capabilities that are indispensable to the proper management of organizational resources. They are likewise intelligent activators of organizational resources and a source of self-generated momentum that energizes the organization, rather than passive, inert, and static agents. In addition, these persons invest effort, dedication, responsibility, commitment, and risk, among other things, in the organization, in the hope of receiving returns on these investments, such as salaries, professional growth, career advancement, and other benefits, as well as the satisfaction of knowing that their contribution strengthens the organization.

Applying this theory of human-talent management to municipalities—although it could also apply to the Judiciary, the TSE, autonomous institutions, or a state university—justifies considering employees—municipal employees in this case—as a whole that energizes municipal activity and as persons who provide indispensable knowledge, skills, capabilities, and intelligence, enabling them to make rational decisions for the benefit of the entire municipality and to give meaning and direction to the overall objectives of the entire municipal corporation. It is therefore invalid to divide them into those who: a) are essential to fulfilling the constitutionally assigned purposes, as well as administrative, professional, and technical personnel whom the highest authorities of the Municipal Corporations define, exclusively and to the exclusion of all others; and b) are public employees who perform basic, auxiliary administrative functions and who could indeed be placed under the governing authority of the Executive Branch or Mideplán. It is more than evident that both groups work and act as parts of a mechanism in which everyone works toward achieving a single objective: satisfying local interests and services.

Moreover, it should be noted that the purposes of municipal corporations differ greatly from those that served as the basis for drafting this Article 7; consequently, what is intended to regulate a body of the Executive Branch is not necessarily compatible with what should guide a municipality or an autonomous institution. Given objectives and goals as dissimilar as those of the different institutions brought within the scope of this draft Law, it is impossible to have a magic formula that applies equally to all of them, as this Article 7 seeks to do. Consequently, when it must be applied, conflicts with Constitutional Law (Derecho de la Constitución) will inevitably arise.

• f)Additional reasons stated by Justice Garro Vargas concerning 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 Article 9(a), second paragraph, of the draft law unconstitutional, I must state that, although I recorded different reasons, I now concur with the reasoning that it is unconstitutional to require the human-resources offices of municipal corporations to be incorporated into the General Public Employment System under the express governing authority of Mideplan (Article 6(b) of the draft). This is aggravated by the fact that those offices are required to apply and implement all generally applicable provisions, guidelines, and regulations concerning planning, work organization, employment management, performance management, compensation management, and labor-relations management that Mideplan sends them for such purposes. This openly disregards the administrative and governmental autonomy (autonomía administrativa y de gobierno) held by municipal corporations by virtue of the aforementioned constitutional provisions.
• g)Additional reasons stated by Justice Picado Brenes concerning Article 9 of the draft as it relates to the functions of the operating administrations (administraciones activas) with respect to the Municipalities (point 48 of the Por Tanto) The Chamber has unanimously held that the second paragraph of Article 9(a) is unconstitutional as applied to the municipalities. Apart from the grounds examined by this Court in relation to that provision, other compelling reasons justify that declaration.

It should be recalled that, pursuant to Articles 168 and 169 of the Political Constitution, the municipal system is a form of territorial decentralization (descentralización territorial) (judgment n°2006-17113). Moreover, as I have already stated, in light of Article 170 of the Constitution, the Municipalities are territorially decentralized entities that have been granted what is known as second-degree autonomy (autonomía de segundo grado), which is broader than that of autonomous institutions because, in addition to administrative autonomy, they enjoy governmental autonomy. Thus, one of the greatest safeguards that municipalities possess vis-à-vis the Central Government—the Executive Branch—is the degree of autonomy that the Constitution has assigned to them and that constitutional case law has defined as governmental autonomy, or second-degree autonomy.

Regarding public employment (empleo público), the Municipalities possess regulatory and administrative autonomy (autonomía normativa y administrativa), enabling them to issue their own body of rules—through internal regulations—in matters within their jurisdiction. This allows them to regulate internally the organization of the municipality and the services it provides, but they also have jurisdiction to administer themselves and enjoy freedom from the State in adopting the entity’s fundamental decisions (see judgments nº 002934-1993, 001691-1994, and 005445-1999, among others). The Chamber has stated that, when enacting the Municipal Code, the legislature understood that assigning functions to municipal employees is an expression of the administrative autonomy of local corporations and therefore provided that duties were to be assigned in the Descriptive Job Manual (Manual Descriptivo de Puestos) (Articles 128 and 129 of the Municipal Code).

It has also held that the municipalities’ disciplinary system (régimen disciplinario) is to be administered internally by the local corporations themselves (see judgment nº 005445-1999). Municipal regulatory autonomy therefore entails the municipalities’ capacity to issue their own body of regulations, understood as autonomous organizational and service regulations (reglamentos autónomos de organización y de servicio), subject to the provisions of the Law (see judgment nº 2002-003493). Consequently, it is more than evident that, regarding public employment, municipal corporations have full jurisdiction and autonomy to establish the policies and rules necessary for their proper operation. Based on the foregoing, an analysis of the second paragraph of Article 9(a) of the draft Public Employment Law shows that it would be impossible to subject the Municipalities to the requirements contained therein because, by virtue of their administrative and governmental autonomy, they enjoy freedom from the State—including the Executive Branch—to issue the rules they require to manage their human resources.

It should be noted that the provision under review states that the Municipalities’ human-resources departments must apply and implement the generally applicable provisions, guidelines, and regulations concerning planning, work organization, employment management, performance management, compensation management, and labor-relations management that Mideplán sends them pursuant to the General Law on Public Administration and the Public Administration Salary Law. The provision plainly overlooks the fact that a body of the Executive Branch such as Mideplán could not impose generally applicable provisions, guidelines, or regulations concerning public-employment management upon a municipal corporation, because—as stated above—this falls within a sensitive area inherent in municipal autonomy (autonomía municipal).

Such a claim would not only violate the provisions of Article 170 of the Constitution, but could also result in an evident disregard for the worldview of each municipality and the specific functions assigned to them—considered individually—since it must be recalled that each local government (gobierno local) has highly particular conditions and characteristics, defined by population centers and population density, geography, culture and customs, predominant ethnic groups, territory, among many other aspects that enjoy constitutional protection.

In my view, the creation of a single public employment system (sistema único de empleo público) intended to be imposed on municipal corporations (corporaciones municipales) in this area would also undermine the country’s territorial division—which has constitutional status—since that division was not decided on the basis of arbitrary or merely subjective criteria, but rather has an entire historical, cultural, and socioeconomic background that, in turn, made it possible to divide the country into these small local governments, whose form of administration and governance could not derive from a single centralized opinion. It must be borne in mind that municipalities are not merely groups of people and territories united by a common objective; rather, they encompass a series of historical, ethnic, cultural, social, and economic elements, and it is on the basis of these factors that they determine their needs, prioritize them, and organize themselves to satisfy their local interests, which unquestionably also shapes the characteristics and requirements to be met by their human resources.

In that regard, general guidelines could not be applied to all municipalities, because each one has entirely different needs and priorities. Thus, a municipal official who performs certain duties in a municipality located in the Greater Metropolitan Area would probably be unable to perform them with the same proficiency in the municipality of a rural, agricultural, or coastal area, because the conditions and characteristics—both those of the individual and those of the municipality—are entirely different.

Consistent with the foregoing, it is evident that the provision under review would also create additional obligations for municipal corporations and their officials, which they would be required to fulfill, while at the same time subjecting them, if they failed to comply or did not do so as required by the centralized body, to potential liabilities that could be unnecessary and avoidable, given that these new responsibilities should not apply generally to all municipalities because, in light of what was stated above, the needs, priorities, or projects of a municipality in a metropolitan area could be very different from those identified in a municipality in an agricultural, rural, or coastal area, or one with a large Indigenous population.

• h)Additional reasons of Justice Garro Vargas regarding Article 13 and its application to municipal employees The Article 13 submitted for review establishes that there shall be a single general public employment regime (régimen general de empleo público), comprising eight position families (familias de puestos). Within those position families, it is not possible to identify any category in which municipal officials could be included. However, the fact that there is no specific family does not mean that municipal autonomy (autonomía municipal) remains unharmed, precisely because municipal officials are placed in a generic category as though they were Executive Branch employees; no distinctions are recognized for them, and they are left with an “interchangeable” status or one permitting their possible transfer to the Central Government. It must be recalled that the bill also seeks to introduce the possibility of mobility within public employment, based on the understanding of the State as a single employer (patrono único).

Failing to recognize the specific nature of municipal employees’ duties in furtherance of the constitutional function of administering local interests and services is likewise unconstitutional, because it entails disregarding the particular characteristics of local governments by treating their officials as equivalent to Central Government officials, who clearly have a different nature. Likewise, they are included in a “generic” family without a prior decision by the municipal government itself, which, in the exercise of its governmental autonomy (autonomía de gobierno), should decide which administrative structure is best suited to represent its residents and ensure the proper provision of local services.

• i)Additional reasons of Justice Picado Brenes concerning Article 13 of the bill with respect to the groups of municipal position families (point 49 of the Por Tanto) Article 13 of the Framework Public Employment Law bill (proyecto de Ley Marco de Empleo Público) explains that there shall be a single general public employment regime comprising 8 position families, which would apply within the bodies and entities of the Public Administration according to the functions performed by the personnel of each one. Among those 8 position families, none is specifically designated for municipal public servants. As regards municipalities, Articles 169 and 170 of the Political Constitution establish that, in matters of public employment as well as in any other matter intended to serve local interests, these corporations possess full governmental and administrative autonomy (autonomía administrativa).

In view of the provisions of those constitutional articles, Mideplán could not impose its authority on municipalities in matters of public employment without creating a conflict with Constitutional Law (Derecho de la Constitución), specifically with the autonomy granted to them under those articles. I maintain that all human-talent management (gestión del talento humano) must fall within municipal jurisdiction because each of these corporations has the authority to regulate and administer itself. This means that they may issue their own regulations governing their internal organization and the services they provide; they may manage and advance local interests and services in complete independence from the Executive Branch; and, to achieve all these objectives, they have the authority to organize and administer their personnel. It must also be recalled that municipalities are governed by specific legislation—Código Municipal—that regulates the relationship between municipal public servants and local public administrations; this legislation acknowledges and respects the autonomy granted to them by the Political Constitution.

• j)Additional reasons of Justice Picado Brenes concerning Article 18 of the bill with respect to the terms of senior management personnel in the municipalities (point 52 of the Por Tanto) With respect to Article 18 of the Public Employment Law bill submitted for review, it was unanimously determined to be unconstitutional because it affects the political autonomy (autonomía política) of municipalities regarding the terms of senior public management personnel (personal de alta dirección pública). I must add that, in my view, other grounds also lead to the conclusion that this article conflicts with Constitutional Law. As I have already indicated above, the analysis of this article must begin with the degree of autonomy characteristic of municipal corporations, which, from an administrative standpoint, enables them to organize themselves, obtain and manage human resources, structure themselves internally, and establish their personnel-management policies and the objectives or goals to be achieved in that area, among other powers.

Consequently, if Article 18 compels them to disregard such powers in order to be subject to its provisions, this would plainly infringe the constitutionally guaranteed autonomy of municipalities. The issue goes considerably further, however, because, precisely by virtue of those powers, municipal corporations would not even be required to hire personnel classified as “senior public management,” to classify human resources under that designation, or to use the definition that the bill assigns to this type of official in Article 5. Likewise, if they decided to employ personnel under that designation and/or with the characteristics established in the bill, municipalities would have full autonomy to establish selection and recruitment procedures, required qualifications, employment conditions, probationary periods (períodos de prueba), and many other aspects inherent to human-talent management.

Consequently, they would have jurisdiction to establish probationary periods shorter than, equal to, or longer than those governed by the provision under review, as well as to provide that this type of personnel would be appointed for an indefinite term or for periods different from those governed by Article 18. From this perspective, Mideplán could have no authority to interfere with municipal corporations by requiring them to apply conditions such as those set forth in that article.

It must again be emphasized that each municipality in the country has conditions, characteristics, projects, needs, priorities, and goals that are entirely different from those of the others, and the imposition of uniform, general directives by a centralized body such as Mideplán would undermine not only the country’s territorial division, but also the particular characteristics of the population and the local interests served by each municipal corporation, both of which are protected by the Political Constitution.

It is evident that, in drafting this provision, the legislature failed to take these considerations into account; if the provision were applied in the manner contemplated by the bill, it would infringe Constitutional Law.

XIV. Regarding the consultation concerning violation of the autonomy of Autonomous Institutions.-

• 1)Matters submitted for review The parties requesting review (consultantes) consider both Article 2(b) of the Framework Public Employment Law bill being processed under legislative expediente nº 21.336, insofar as it includes autonomous institutions within the scope of that law, and Articles 6, 7, 9, 13, 14, 17, 18, 21, 22, 24, 30, and 49 to be unconstitutional because they encroach upon the administrative autonomy enshrined in Article 188 of the Constitution by subjecting those institutions to the provisions, directives, regulations, circulars, manuals, and other instruments issued by the Ministerio de Planificación Nacional y Política Económica on matters related to workforce planning, employment management, productivity, performance, compensation, and labor relations.

Upon reviewing the consultation, it has been established that the assertions made by the parties requesting review regarding those articles lack adequate substantiation and do not clearly state the grounds or reasoning underlying the concern presented to the Chamber. Indeed, it does not appear that a constitutional consultation (consulta de constitucionalidad), strictly speaking, was submitted; instead, there is merely a statement concerning the conflict they believe could arise between the powers being granted to MIDEPLAN and the autonomy of autonomous institutions. Nor is there any justification of the reasons why they believe those articles would violate Article 188 of the Political Constitution. In this regard, it must be borne in mind that Article 99 of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional) very clearly establishes that a consultation must state the challenged aspects of the bill and the reasons for the constitutional doubts or objections, and that all of this must be reasoned and duly substantiated. This requirement has not been met in the present case and, therefore, the consultation cannot be answered in the terms sought by the parties requesting review.

• 2)Conclusion Consequently, it is unanimously declared that the constitutional consultation (consulta de constitucionalidad) concerning the bill entitled “LEY MARCO DE EMPLEO PÚBLICO,” being processed under legislative expediente n° 21.336, cannot be answered with respect to Article 2, subsection b)—specifically as regards “autonomous institutions and their affiliated bodies, including semi-autonomous institutions and their affiliated bodies”—and Articles 6, 7, 9, 13, 14, 17, 18, 21, 22, 24, 30 and 49, due to a lack of adequate constitutional grounds.

XV.Regarding the consultation concerning violation of the principle of legal certainty through the concept of conscientious objection (Objeción de Conciencia).- (drafted by Justice Picado Brenes)

• 1)Matters submitted for consultation In the Optional Legislative Consultation (Consulta Legislativa Facultativa) processed under expediente N° 21-011713-0007-CO, filed by several deputies, arguments are presented to the effect that Article 23, subsection g), of the bill entitled “LEY MARCO DE EMPLEO PÚBLICO,” being processed under legislative expediente N° 21.336, violates the principles of legality and legal certainty, proportionality, and reasonableness. This provision establishes the possibility of conscientious objection in education and training processes, as stated verbatim below:

“ARTICLE 23- Governing principles guiding education and training 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 infringed, for purposes of education and training programs determined to be mandatory for all public servants. (…)” The petitioners argue that this provision is unconstitutional because allowing public officials to invoke conscientious objection in order to avoid education and training deemed mandatory by the State infringes the principles of legality and legal certainty, proportionality, and reasonableness. In their view, this is because the provision does not regulate the conditions, parameters, and restrictions that must govern such circumstances and that could prevent violations of fundamental human rights protected under treaty law (Derecho Convencional), as well as other rights fully recognized by the Costa Rican legal system (ordenamiento jurídico costarricense).

They state that, through a simple affidavit, public officials may assert a right to conscientious objection when, in their judgment, the content of education and training programs infringes their religious, ethical, or moral convictions. They consider this to be an entirely broad provision that will allow anyone, on the basis of wholly subjective criteria, to refuse training on matters central to the Public Administration. In that regard, they consider that conscientious objection cannot be invoked to promote inequality, mistreatment, and discrimination from a position of authority, for example.

In the Optional Legislative Consultation processed under expediente N° 21-012118-0007-CO, filed by other deputies, they question the constitutionality of Article 23, subsection g), because they consider that it permits 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 (artículo 12.3). They state that, in 1948, Article 18 of the Universal Declaration of Human Rights recognized that everyone has freedom of thought, conscience, and religion, thereby recognizing the individual or collective capacity to express one’s beliefs or religion freely. They add that the International Covenant on Civil and Political Rights, adopted in 1966, in Article 18, protects and recognizes individuals’ freedom of thought, conscience, and religion, subject to the legal conditions and limitations that permit its full exercise; that provision, in turn, establishes that the exercise of this right may not override limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others.

They further 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, as a safeguard for human rights, conscientious objection supported refusal to perform military service by virtue of the freedom of thought, conscience, and religion already included in the international framework arising from recognition of the right to refuse military service for the purpose of imposing Apartheid; this position was reaffirmed in 1989, when the Commission on Human Rights, through Resolution 1989/59, recognized the right to conscientious objection in relation to military service as a human right, in accordance with the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The petitioners argue that, at the international level, human rights bodies have recognized and analyzed the conflict between conscientious objection and the right to health, given the possibility that exercising the former right could prevent users of the service from receiving proper healthcare and medical treatment.

They state that Article 18.3 of the International Covenant on Civil and Political Rights and Article 12.3 of the American Convention on Human Rights establish that freedom to manifest one’s religion and beliefs is subject only to limitations prescribed by law and necessary to protect public safety, order, health, or morals, or the rights or freedoms of others. Thus, they state that, for an official providing services in the healthcare field, conscientious objection may be exercised only when such refusal does not entail an infringement of patients’ human rights (whether they are men, women, or children). They add that, specifically regarding respect for the freedom of conscience of healthcare 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, which is why a clear procedure for exercising that right must exist in order to prevent violations.

They recall that, in Costa Rica, the Sala Constitucional, through Resolution No. 2020-001619, has ruled on conscientious objection and has consistently upheld respect for human rights in the exercise of the right to conscientious objection, insofar as it does not conflict with other rights. They argue that conscientious objection is understood as a recognized right that allows individuals to refuse conduct required of them by law on the basis of reasons that are contrary to them or that affect their beliefs. The petitioners contend that, in light of the bill under consultation, the proposal in Article 23, subsection g), insofar as it openly and without regulation allows public officials to refuse mandatory technical education and training necessary for performing the office they hold merely by giving notice through an affidavit, could be considered an abusive exercise contrary to the human rights of other citizens.

The petitioners state that, upon analyzing the provisions of the bill under consultation, in their view, a range of rights come into conflict, both those of the officials and those of the citizens who receive services from these public officials. They indicate that, in Resolution No. 2020-002965 of the Sala Constitucional, that body recognized the equality and universality of the treatment that the Administration must afford users, such that public officials necessarily require the technical and administrative knowledge that enables them to perform their duties with integrity, efficiency, and effectiveness. They further argue that the State has an obligation to train officials so that State operations conform to the standards governing the provision of public services that must be guaranteed to citizens. They state that the necessary training of officials cannot be understood as indoctrination or the imposition of conditions upon public servants, but rather as the necessary transfer or exchange of information that must be provided to officials so that they perform their duties in accordance with the conditions under which they were hired.

The petitioners question how a public official can determine, before receiving training, that it violates the official’s personal beliefs or convictions. They assert that the solution the Sala Constitucional has given to this issue is that institutional authorities must adopt plans to prevent any failure to provide public services because, although the official does have that right, a citizen may not be restricted or prejudiced in connection with a procedure that the objecting official declines to handle. They further state that the Sala Constitucional has held that when officials accept an office in which they must perform certain acts, they are required to perform them without a right to conscientious objection, insofar as they accepted the public office in accordance with the law in force at the time of their appointment. They consider that the approach taken to this issue during the processing of the bill, together with the rejection of motions intended to clarify and delimit the exercise of conscientious objection so that other fundamental rights would not be affected, ultimately itself constituted a violation of fundamental rights.

They consider that treating conscientious objection as a mere formality, without further conditions or restrictions and without any technical rigor, solely to provoke controversy and polarize Costa Rican society, is contrary to the human rights recognized by the Inter-American Court of Human Rights, given that this conflicts with the State’s obligation—which the Asamblea Legislativa must guarantee—to safeguard the legality and legal certainty that must accompany enacted laws. They consider that the inclusion of conscientious objection in Article 23, subsection g), of the bill entitled “Ley Marco de Empleo Público,” legislative expediente n°21.336, could constitute a violation of constitutional principles and human rights under the terms stated.

• 2)Judicial Precedents (Antecedentes Jurisprudenciales) This Constitutional Court has ruled on conscientious objection and, in that regard, has recognized its applicability in various fields. Among its earliest rulings, it recognized freedom of conscience as an individual subjective public right (derecho público subjetivo individual), enforceable by the governed person (administrado) against the State; in that regard, judgment n°1993-3173 of 14:57 hours on 06 de julio de 1993 stated:

“VII.- Religious freedom (libertad religiosa), in its generic sense, encompasses a complex set of rights. In this regard, it refers first to the individual sphere, that is, freedom of conscience (libertad de conciencia), which must be regarded as an individual subjective public right (derecho público subjetivo individual), assertable against the State in order to require it to refrain from interference and to provide protection against attacks by other persons or entities. It consists of the legally guaranteed possibility for individuals to conform their religious conduct and way of life to the dictates of their own convictions, without being compelled to do anything contrary to them. Second, it refers to the social sphere, freedom of worship (libertad de culto), which is embodied in the right to practice one’s adopted beliefs outwardly. It also includes freedom of proselytism or advocacy, freedom to establish congregations or foundations, freedom of education, the right of assembly and association, and the rights of religious communities, among others.

VIII.Freedom of worship, as an outward manifestation of religious freedom, encompasses the right to maintain places of worship and to practice one’s faith both within enclosed premises and outdoors, always subject to the limitations established by the legal system, whether by constitutional or statutory provisions. In this regard, the constitutional text itself permits the free exercise in the Republic of religions other than the Catholic religion, provided that they “are not contrary to 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 provision cannot be interpreted restrictively. On the contrary, the State is understood to have a general obligation to cooperate with the different religious denominations professed by the country’s inhabitants and, specifically, with the Catholic Church. This constitutional obligation consists of enabling religious education in public educational institutions and providing the conditions necessary for its development, rather than specifically providing financial assistance. In this manner, the supreme law regards the fulfillment of religious needs as a matter of general interest, notwithstanding the existence of persons who do not share them. Moreover, it must be interpreted not as an indication that the Constitution favors a particular religious denomination, but as an acknowledgment of a sociological reality: the express reference to the denomination that is indisputably the most deeply rooted and widespread in our country. This does not in any way imply discrimination by public authorities against other denominations or against citizens who profess no religion.”

Following the same line of case law, judgment n°1996-5492, issued at 16:54 hours on 16 de octubre de 1996, stated the following regarding the exercise of conscientious objection (objeción de conciencia) in education:

“(…) it is clear that the interpretation by the respondent officials of the final paragraph of Article 210 of the Education Code, which was communicated to the appellant by a note dated 13 de marzo de 1996, to the effect that he was required to teach Religious Education classes—also citing in support thereof Article 3 of the Fundamental Law of Education and Executive Decree number 10850-E of veintidós de octubre de mil novecientos setenta y nueve—violates the protected party’s religious freedom, enshrined in Articles 75, 28, 29 and 33 of the Political Constitution and regarded in this Court’s case law, in the individual sphere, as an individual subjective public right that may be asserted against the State when it is deemed threatened, as in the case before us, given that the petitioner does not practice the Catholic religion. He may therefore require the State itself to provide the protection necessary to ensure respect, in the individual sphere, for his innermost beliefs.

Such respect and protection have not been afforded in this case because, as is evident from its wording, the note that the appellant received from the respondent officials fails to respect his religious convictions, since it compels him to perform an activity contrary to those individual convictions. Accordingly, the provision contained in Article 210 of the Education Code must be understood to mean that a teacher must be willing, in accordance with his or her religious convictions, to provide that instruction. This involves not only respect for the teacher’s freedom of conscience and worship, but also the protection of students who would otherwise be exposed to deficient or even inappropriate religious education. Accordingly, the appeal must be granted.” Likewise, in the sphere of freedom of conscience in education, the Constitutional Chamber recognizes the international protection of freedom of conscience. In judgment N°1999-03914, issued at 16:27 hours on 20 de mayo de 1999, it stated, insofar as relevant:

“IX.- Article 75 of the Constitution provides that the State must contribute to the “maintenance” of the Catholic religion; this constitutional provision cannot be interpreted restrictively. On the contrary, the State is understood to have a general obligation to cooperate with the different religious denominations professed by the country’s inhabitants and, specifically, with the Catholic Church. This constitutional obligation consists of enabling religious education in public educational institutions and providing the conditions necessary for its development, rather than specifically providing financial assistance. In this manner, the supreme law regards the fulfillment of religious needs as a matter of general interest, notwithstanding the existence of persons who do not share them. Moreover, it must be interpreted not as an indication that the Constitution favors a particular religious denomination, but as an acknowledgment of a sociological reality: the express reference to the denomination that is indisputably the most deeply rooted and widespread in our country. This does not in any way imply discrimination by public authorities against other denominations or against citizens who profess no religion.” Furthermore, Article 14 of the Convention on the Rights of the Child provides:

“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 parents and, where applicable, legal representatives to provide direction to the child in the exercise of that right in a manner consistent with the child’s evolving capacities. 3. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, morality or health, or the fundamental rights and freedoms of others.” It follows from the foregoing that the protected child has the right not to be compelled to engage in acts of worship or to receive religious instruction contrary to her personal convictions. Because one of the protected party’s religious beliefs concerns Nombre08’s command not to use images or idols with religious connotations, the requirement that she wear a badge bearing the image of Nombre09 constitutes an imposition contrary to her convictions and the religious faith she practices.

Because failure to wear the institution’s badge at Centro Educativo Las Mercedes is punishable under the terms set forth in Article 76 of the Regulations for the Assessment of Learning, the protected party has been compelled to display the image of Nombre09 on her school uniform, a situation that violates the freedom of religion and worship guaranteed by 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 Fundamental Law of Education.” The Constitutional Chamber’s protection of conscientious objection as a guarantee of the right to freedom of worship was reiterated in judgment N° 2001-10491, issued at 15:57 hours on 16 de octubre de 2001, which stated:

“IV.- Now then, the denial of the request submitted by the protected party was based on three principal grounds: that the note requesting the aforementioned exemption was not signed by the minor’s legal representative; that it had been submitted after the beginning of the school year, when it should have been submitted at the outset; and that the subject was mandatory for all students. None of these three arguments has any legal basis whatsoever. Article 210 of the Education Code clearly states that ‘Attendance at religion classes shall be considered mandatory for all children whose parents do not request in writing that the principal of the school or secondary school exempt them from receiving such instruction.’ It follows that the requirement to submit the aforementioned letter at the beginning of the school year is simply an abusive maneuver by the respondent Principal to the detriment of the student, since it imposes limitations on freedom of worship that the law does not establish.

It is also apparent from the cited provision that the mandatory nature to which it refers is subject solely to the condition that the student’s parents do not request the exemption in writing. In the case at hand, such a request was indeed made, as is evident from pages 10 and 32 of the case file, which contain the note to that effect sent by the protected party’s father to the Principal of the Liceo. Lastly, it is likewise untrue that the aforementioned letter lacks the signature of the person responsible for the protected minor, since it can clearly be seen that one of the two signatures appearing thereunder was placed beneath the subheading ‘PARENT OR GUARDIAN,’ and it should not be disregarded merely because the signature is illegible. Under these circumstances, the respondent Principal’s conduct violates the principles of reasonableness and proportionality (principios de razonabilidad y proporcionalidad) underlying the legal system, because it imposes limitations on freedom of worship that neither the Political Constitution nor the law requires, thereby depriving the aforementioned freedom of worship, established in constitutional Article 75 and developed in the aforementioned Article 210, of its substance.

The appeal must therefore be granted.” In another precedent, the Constitutional Chamber protected a student at the Universidad de Costa Rica whose conscientious objection to attending classes or taking examinations on Saturdays because of her religion had not been respected. That precedent was later also applied in the employment context. In this regard, decision n°2002-03018, issued at 11:12 hours on 22 de marzo de 2002, stated:

“III.- Now, based on the guidelines set forth in the preceding considerando, the right to religious freedom (libertad religiosa) has been violated in the case under review with respect to the sphere of cooperative relations that the State must maintain with the various faiths pursuant to Article 45 (sic) of the Political Constitution (Constitución Política). Indeed, the refusal of the Universidad de Costa Rica to administer a make-up examination to the appellant, even though her religion restricts her participation in educational activities on Saturdays, affects her right to engage in the acts of worship specific to her beliefs; as stated in the preceding considerando, this is one of the elements of religious freedom. This Sala finds the university authorities’ refusal to administer a special or make-up examination unreasonable, given that administering such an examination to the appellant would not only leave the proper functioning of the respondent university unaffected, but is also a customary practice recognized by the entire student body and faculty.

Accordingly, the specific case demonstrates that the Universidad de Costa Rica has failed to respect the duty of cooperation and the duty of public authorities not to interfere externally with the appellant’s religious practices. 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 engaging in activities that constitute acts, manifestations, or expressions of her religious beliefs. Consequently, the Rector of the Universidad de Costa Rica is ordered to grant the appellant’s request so that she is not required to take examinations on Saturdays, since doing so is contrary to her religious faith and ultimately limits and restricts her freedom of worship (libertad de culto), protected under Article 75 of the Political Constitution. Accordingly, the proper course is to grant the application for amparo (recurso de amparo), as is hereby done.” In judgment n°2002-08557 issued at 15:37 hours on 03 de septiembre de 2002, students’ right, in the exercise of the right contained in Article 75 of the Constitution, to refuse, on grounds of conscientious objection (objeción de conciencia), to receive religious instruction was recognized. In this regard, it was stated:

“Freedom of belief (libertad de creencias), recognized by Article 75 of the Constitution, is a broad category encompassing not only religious freedom or the freedom to practice one’s religion, but also the right to develop and cultivate individual convictions without interference by the State. Religious freedom forms part of the broader freedom of belief that arose in human history with the Peace of Westphalia, as a recognition of tolerance by the Church. The principal effect of this recognition is that no one may be disadvantaged or favored because of their beliefs. This principle also rests on respect for equality before the law. The right to practice one’s religion freely is the freedom to practice a religious belief. This means freedom of outward religious expression—not freedom of belief in the private sphere, since that lies beyond the reach of the law—provided that it does not affect public order, morality, or safety (Article 28 of the Constitution).

It also entails the right of religious association in communities of that kind. Thus, another immediate consequence of religious freedom is the right of believers and adherents to associate in religious or public-benefit communities. Freedom of belief is incompatible with any attempt by teachers—or by the State generally—to influence the religious formation of children, or of the population generally, unless the interested person, or the parents acting on behalf of their children, consents to or requests that type of instruction. Accordingly, expelling from schools students who refuse, on grounds of conscientious objection, to comply with the obligation to receive religious formation or instruction of a particular kind is incompatible with constitutional law (Derecho de la Constitución).

IV.Article 77 of the Political Constitution recognizes the right to public education (derecho a la educación pública), which shall be organized as a comprehensive process coordinated throughout its various stages, from preschool through university education. In addition, Article 75 of the Constitution establishes freedom of belief, the principle pursuant to which Article 210 of the Education Code (Código de Educación) was drafted. In pertinent part, it provides: ‘Every grade or section of the Republic’s primary schools, without exception, shall receive two class hours of religious instruction each week. Attendance at religious classes shall be considered mandatory for all children whose parents do not submit a written request to the school Principal that they be exempted from receiving such instruction.’ Conscientious objection is thus regulated for students who, because of their beliefs, refuse to receive the religious instruction provided by the State.

In the case before us, it has been duly established that, by a memorandum dated 25 de setiembre del 2001, the Principal of Colegio Nocturno de Siquírres, (…), granted the request of the protected parties’ parents that they be exempted from the obligation to attend ‘Etica Cristiana’ classes (folio 2). Nevertheless, (…), Principal of Colegio Nocturno de Siquirres, prevented the protected parties from continuing their third year of secondary education because they had not passed the subject ‘Etica Cristiana’ during the 2001 academic year (folios 2, 3, 4, 22, 23, 24). The Sala finds that the exclusion of the protected parties (…) from the educational system constitutes a flagrant violation of the right to education and religious freedom; the amparo is therefore well-founded in all respects. Consequently, the Principal of Colegio Nocturno de Siquirres is ordered to reinstate the protected parties (…) immediately as regular third-year secondary students and to take the measures necessary to enable them to catch up with the current progress of the subjects they are taking.”

In judgment n°2003-03018 issued at 14:48 hours on 22 de abril de 2003, this Court protected a student who did not sing the national anthem or salute the flag, finding that such acts of veneration were contrary to his religious beliefs. In this regard, it stated:

“V.- It is true that the right to conform one’s conduct to one’s own convictions cannot be unlimited, since such conduct must not harm public morality or public order, or cause harm to third parties. None of those circumstances, however, is present in this case. Not singing the National Anthem does not threaten public morality or public order, nor does it harm any third party. The text of Article 32 of the Internal Student Regulations (Reglamento Interno Estudiantil) must conform to the Political Constitution, which takes precedence over 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 contends that the parents never asked the school to exempt the child from singing the National Anthem. This argument cannot be accepted, since the grade reports at folios 68 to 70 show that the student did not attend religious instruction. It is clear that the school knew the protected party’s religious creed. If the Principal expected a formal request, he was mistaken. The exercise of a fundamental right (derecho fundamental) cannot be made subject to a formality. The person most directly concerned in this matter—the holder of the right, namely the minor—had already informed the school of his decision.”

In judgment n°2005-05573 issued at 16:07 hours on 10 de mayo de 2005, the Sala protected the right of a student at the Universidad de Costa Rica not to take examinations on Saturdays because, according to her creed, that day must be devoted exclusively to religious observance. In this regard, it ruled:

“II.- Subject matter of the application. The appellant considers that her religious freedom has been violated because she is enrolled in the Open Education Program (Programa de Educación Abierta) of the Ministerio de Educación Pública, which seeks to require her to take examinations on Saturdays, a day that, according to her creed, must be devoted exclusively to religious observance; this is contrary to her religious freedom and freedom of worship.

III. Merits. In a matter similar to the one under consideration, this Court ruled

‘I.- The appellant’s complaint concerns the right to religious freedom recognized in Article 75 of the Political Constitution. In summary, the appellant contends that requiring her, through the Universidad de Costa Rica, to take examinations on Saturdays—a day that, according to her creed, must be devoted exclusively to religious observance—is contrary to her religious freedom and freedom of worship.

II.In defining the scope of the fundamental right to religious freedom, we may say that it is, strictly speaking, the freedom to determine one’s own ideology, religion, or belief. The freedom under consideration therefore includes: a) the right to profess a religion or no religion at all; b) the right to engage in the acts of worship specific to a belief; and c) the right to conduct oneself in society in accordance with one’s own convictions. Article 75 of the Political Constitution also guarantees the religious freedom and freedom of worship of individuals and communities, subject, in their manifestations, only to such limitations as are necessary to maintain public order protected by law. The content of the right to religious freedom is not exhausted by protection against external interference in a sphere of individual or collective liberty that permits citizens to act in accordance with their professed creed; religious freedom also has an external dimension, reflected in the ability to engage, free from all coercion by public authorities, in activities that constitute manifestations or expressions of religion. On this matter, in judgment number 3173-93 issued at catorce horas cincuenta y siete minutos on siete de junio de mil novecientos noventa y tres, this Sala ruled:

“…VII.- In its generic conception, religious freedom encompasses a complex set of rights and powers. First, it concerns the individual sphere—that is, freedom of conscience (libertad de conciencia)—which must be regarded as an individual subjective public right (derecho público subjetivo individual) asserted against the State in order to require it to refrain from interference and to provide protection against attacks by other persons or entities. It consists of the legally guaranteed ability of a person to conform their religious conduct and way of life to the dictates of their own convictions, without being compelled to do anything contrary to them. Second, it concerns the social sphere—freedom of worship—which is reflected in the right to practice outwardly the belief one has embraced…”’ In judgment n°2012-10456 issued at 05:27 hours on 01 de agosto de 2012, the Sala Constitucional decided an amparo proceeding (proceso de amparo) against the Ministerio de Educación Pública concerning the Programa de Educación para la Afectividad y Sexualidad, making clear that the Ministerio de Educación must respect parents’ religious and philosophical convictions in the education of their children; that is, the Sala recognized the right to conscientious objection in the education of minors regarding matters of sexuality. In pertinent part, the Sala stated:

“VI.- ON THE RIGHT TO EDUCATION AND THE STATE’S OBLIGATIONS REGARDING SEX EDUCATION. International Human Rights Law recognizes the right to education, in general, for all persons, whether or not they are minors, as this Court has held in its consistent case law—including judgment number 1791-2004, de las nueve horas dos minutos del veinte de febrero del dos mil cuatro. With regard to the subject matter of this amparo proceeding (amparo), the right to education imposes a series of obligations on the State regarding sex education and health. In this respect, the Convention on the Elimination of All Forms of Discrimination against Women provides:

“Article 10: States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure that they have equal rights with men in the field of education and, in particular, to ensure, on a basis of equality between men and women:

(…)

• h)Access to specific educational information to help ensure the health and well-being of families.” For its part, the Ibero-American Convention on the Rights of Young People includes young people’s right to sex education as part of the right to education, providing as follows:

“Article 23: 1. States Parties recognize that the right to education also encompasses the right to sex education as a source of personal development, emotional development, and communicative expression, as well as information concerning reproduction and its consequences. 2. Sex education shall be provided at all levels of education and shall promote responsible conduct in the exercise of sexuality, aimed at 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 of the family in the sex education of young people. 4. States Parties shall adopt and implement sex education policies, establishing plans and programs that ensure access to 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 injury or abuse, neglect or negligent treatment, maltreatment, or exploitation, including sexual abuse, while the child is in the care of parents, a legal representative, or any other person who has care of the child.” The aforementioned international obligations regarding sex education and health have been incorporated into our legal system, particularly in the Código de la Niñez y la Adolescencia, which provides as follows:

“Article 44.- Powers of the Ministerio de Salud.

The Ministerio de Salud shall ensure the effective enjoyment by minors of the right to the highest attainable standard of health, access to services for the prevention and treatment of illness, and health rehabilitation. For this purpose, the Ministerio de Salud shall have the following powers:

(…)

• c)To guarantee the creation and development of comprehensive care and education programs for minors, including programs concerning sexual and reproductive health; (…)
• g)To guarantee comprehensive treatment programs for adolescent girls concerning prenatal, perinatal, postnatal, and psychological care.” “Article 55.- Obligations of education authorities.

The principals, legal representatives, or administrators of preschool, maternal, or basic general education institutions, or of any other public or private organization providing care to minors, shall be required to:

(…)

• c)Implement the preventive, sexual, and reproductive health education programs developed by the competent ministry.” “Article 58.- National policies.

In designing national education policies, the State shall:

(…)

• f)Promote the inclusion in educational programs of subjects related to sex education, reproduction, adolescent pregnancy, drugs, gender-based violence, sexually transmitted diseases, AIDS, and other serious illnesses.” As follows from the provisions transcribed above, both internationally and under the domestic regulations through which those provisions have been implemented, the Costa Rican State has an obligation to implement sex education policies for minors. This Court finds that the “Educación para la afectividad y la sexualidad integral” curriculum developed by the Ministerio de Educación directly fulfills that treaty-based and statutory obligation. However, this obligation does not, in turn, authorize the State—at least not in a constitutional state governed by the rule of law (estado constitucional de derecho)—to infringe the rights to freedom, freedom of conscience, and freedom of religion of a segment of the population, which are also established in international human rights instruments. Measures must therefore be taken to harmonize the coexistence of both rights, as detailed below.

VII. ON THE CLAIM THAT THE CONSTITUTIONAL RIGHT OF PARENTS REGARDING THE EDUCATION OF THEIR CHILDREN HAS BEEN INFRINGED

In this case, this Court’s jurisdiction is not directed toward determining the specific content of the sex-education guides to be used in the national education system; under Article 81 of the Constitución Política, that matter falls within the authority of the Consejo Superior de Educación. Rather, the Chamber’s jurisdiction concerns the protection of litigants’ fundamental rights, particularly those arising under the highest-ranking legal provisions recognizing parents’ right to have their children educated in a manner consistent with their moral or religious beliefs. In this regard, it is important to cite the relevant international human rights instruments, beginning with the Universal Declaration of Human Rights, Article 26, paragraph 3, which 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 provides in Article 13, paragraph 3), as follows:

“Article13 (…)

3. The States Parties to the present Covenant undertake to respect the liberty of parents and, where applicable, legal guardians to choose for their children or wards schools other than those established by public authorities, provided that such schools conform to such minimum educational standards as may be prescribed or approved by the State, and to ensure that their children or wards receive religious or moral education consistent with their own convictions.” Likewise, the International Covenant on Civil and Political Rights provides in Article 18, paragraph 4, as follows:

“Article 18.- (…)

4. The States Parties to the present Covenant undertake to respect the liberty of parents and, where applicable, legal guardians to ensure that their children receive religious and moral education consistent with their own convictions.” This concept is repeated in Article 12, paragraph 4), of the American Convention on Human Rights, which provides:

“Article 12.- Freedom of Conscience and Religion (…)

4. Parents, and where applicable guardians, have the right to ensure that their children or wards receive religious and moral education consistent with their own convictions.” Finally, among the international provisions applicable to this case, mention must be made of the Convention on the Rights of the Child, which establishes in Article 12 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 parents and, where applicable, legal representatives to provide direction to the child in the exercise of that right in a manner consistent with the child’s evolving capacities. 3) Freedom to manifest one’s religion shall be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, morals, or health, or the rights and freedoms of others.” The foregoing provisions likewise establish a State obligation specifically concerning the State’s educational activities, such that officially provided education may not simply impose State authority in disregard of the essential content of the rights enshrined in the instruments just cited.

VIII.This issue, in turn, has also been developed in the case law of the European Court of Human Rights. That Court has decided cases involving conscientious objection (objeción de conciencia) in the educational sphere based on Article 2 of the First Additional Protocol to the European Convention on Human Rights, which imposes upon the State the duty to respect parents’ religious and philosophical convictions in the education of their children. Noteworthy is the first approach to the issue, adopted in the judgment in Kjeldsen, Busk Madsen and Nombre10 v. Denmark, which specifically examined a dispute involving parents who objected to their children receiving a compulsory course on integrated sex education. The Court held that the aim pursued by the Danish government through the new law was legitimate, as it sought to reduce the number of unwanted pregnancies outside marriage, abortions, and venereal diseases.

It also clarified that Article 2 of the aforementioned Protocol did not prevent States from imparting, through teaching or education, knowledge or information of a directly or indirectly religious or philosophical nature. It did not allow parents to object to subjects of this kind, since institutionalized education would risk becoming impracticable, although it did impose upon the State a duty to ensure that such knowledge, when included in a curriculum, was conveyed in an objective, critical, and pluralistic manner, thereby prohibiting the pursuit of an aim of indoctrination, which could indeed affect the parents’ religious and philosophical convictions. In this case, the dissenting opinion of Judge Nombre11 is particularly relevant, as it became—over time—the Court’s majority position in subsequent cases. According to that Judge, detailed sex education provided too early by the State under its monopoly in the field of education deprives parents of their primary right to ensure that their children are educated in accordance with their own religious convictions.

He also stated that everything concerning children’s conscience—their moral orientation—is, according to Christian doctrine, a matter for their parents, and therefore the State cannot interpose itself between parents and children against the parents’ wishes. He asks whether, under Article 2 of the Protocol, parents may object to compulsory sex education in a public school, even where such education does not constitute an attempt at indoctrination. To answer that question, he distinguishes between the facts of human sexuality, which form part of biology, and sexual conduct, including contraception and contraceptive methods. According to that Judge, the latter do fall within the moral sphere and the realm of conscience, and therefore their instruction is the responsibility of parents, not the State; that parental right may not be violated, disregarded, or disparaged by the State. Accordingly, even when information concerning sexual conduct is objective in nature, it infringes the rights of parents insofar as it intrudes upon the conscience of their minor children, since they may receive an education contrary to their parents’ religious convictions.

The doctrine established in that dissenting opinion was subsequently followed by the aforementioned Court in the judgments Nombre12 and Nombre13 v. Turkey. In the latter judgment, the Court concluded that the State is required to respect parents’ religious and philosophical convictions throughout the public education curriculum. This duty of the State applies both to the content of instruction and to the manner in which it is delivered, and, in that context, parents may require the State to respect their religious and philosophical convictions.

IX.The Supreme Court of Justice of the United States of America has also ruled on the connection between education and freedom of conscience (libertad de conciencia). In this regard, in Nombre14 v. Nombre15 (1972), the Court held, with respect to the education provided to children of the Amish faith, that “(…) the essence of everything that has been said and written on this subject is that interests of the highest order and those other interests that cannot otherwise be served may counterbalance the legitimate claim to the free exercise of religion. We may therefore accept that, no matter how strong the State’s interest in universal compulsory education may be, it is by no means absolute, nor does it permit the exclusion or subordination of all other interests. Enforcement of the state law requiring compulsory school attendance... would gravely endanger, if not destroy, the respondents’ free exercise of their faith.” Thus, religious freedom was deemed to prevail over the State’s interest in compulsory education for the minor children of the Amish.

X. CONSIDERATIONS REGARDING THE SPECIFIC CASE

In this case, there is sufficient evidence to conclude that the “Educación para la afectividad y la sexualidad integral” curriculum does not refer solely to facts concerning human sexuality, but also encompasses sexual conduct. It is sufficient to note that the document setting it forth states the following:

“In Costa Rica, until now, sexuality education has largely been approached as an informational process focused on its biological dimension. This curriculum, within the framework of the current general policy approved by the Consejo Superior de Educación in 2001, entitled Política Educación Integral de La expresión de la Sexualidad Humana (Agreement under article three of minutes 2001-12-06, amended in section No.6 by agreement 02-08-04), incorporates that dimension as an indispensable component of sexuality education, but adds a formative and affective dimension, which is emphasized.” (Boldface does not appear in the original.) It later states that the content and strategies of this program seek to “(…) bring about changes in attitude that strengthen respect for and advancement of the human person,” that is, the students’ manner of acting and their behavior toward sexuality, which logically entails instilling in them values, knowledge, conceptions, competencies, and skills regarding the phenomenon of sexuality.

Evidence of what we have stated is that, when defining education for affectivity and comprehensive sexuality, it “(…) proceeds from the premise that the purpose of sexuality is bonding, in its affective, bodily, ethical, and spiritual dimensions, with support for and promotion of emotional maturity.” Spiritual is understood as that which relates to values, ethical standards, and the meaning of life.” Now, if our society formally recognizes pluralism, democracy, and respect for freedom of thought and belief as its objectives, it is to be expected that numerous views and perspectives on a wide variety of ideological and moral issues—including individuals’ sexual conduct, which is often closely related to their religious or philosophical beliefs—will emerge, flourish, or decline within it; 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, the validity of the State imposing a particular view of sexual conduct may therefore be questioned, in the sense of asking which of all such views should be favored: that of the Consejo Superior de Educación or that of the Minister of Educación Pública?

That of the Defensora de los Habitantes or that of the teachers who teach the subject? Should the view associated with a particular religious practice be imposed, or should the standards of agnostics, atheists, or those without moral principles instead be disseminated? Clearly, it is impossible for the content of this type of program to satisfy everyone—that is, to accord with the religious and philosophical beliefs of all parents and their children. The State’s authority to provide the content it considers most appropriate is therefore recognized; however, given that this type of instruction becomes part of the students’ moral formation and affects their hierarchy of values, beliefs, and conscience, parents who consider that the content of the sexuality guides adversely affects the religious and philosophical beliefs they desire for their children are not required to endure an intrusion by the State into a sphere that Constitutional Law and International Human Rights Law reserve for the parent-child relationship. In this regard, it is pertinent to recall what the Colombian Constitutional Court stated in judgment T 662/99:

“(…) it cannot be asserted that the views of one of the students, or that student’s moral or religious conduct, legitimize conduct by the institution aimed at disregarding fundamental constitutional rights, particularly within the sphere reserved for freedom of conscience. So long as this involves merely the profession of the student’s ideas or practices consistent with the free exercise of that freedom, and provided that the student’s conduct does not harm the school community, the individual conscience must remain free from external impositions.” A democratic society is a tolerant society and, consequently, requires both respect for the beliefs of all persons who form part of society and respect for the right to put those beliefs into practice, regardless of what others may think of them, as well as the right to reject any intrusion into the realm of conscience. Accordingly, this Court understands that the appropriate way to reconcile the rights at issue in this case entails the need to establish a mechanism for those parents who consider that implementation of the “Educación para la afectividad y la sexualidad integral” curriculum substantially affects their fundamental right to exert an effective influence over matters affecting their children’s moral or religious education, in accordance with the formulation contained in the positive-law provisions already discussed.-

XI.This Court nevertheless considers it important to establish certain general principles concerning the mechanism for opting out of the “Educación para la afectividad y la sexualidad integral” curriculum, which is recognized herein as part of the valid exercise of a fundamental right.- As indicated, the Chamber understands the importance of sex education and shares the concerns regarding the public-health and developmental problems attributed to the lack of sex education.- This, together with the obligations imposed upon the State by international law, makes the exemption from the State’s educational obligation and from its responsibility in this respect. For parents to opt their children out of participation in the “Educación para la afectividad y la sexualidad integral” curriculum, the Ministerio de Educación Pública must establish a prompt and straightforward mechanism through which the minor’s representatives may submit the corresponding objection, in order to guarantee respect for their fundamental rights concerning their children’s education. By way of example, a simple written communication from a parent to the Director of the Centro Educativo, indicating that the parent’s children will not receive that educational content, could suffice.”

In the employment context, through judgment N° 2015-008155, issued at 10:05 hours on 05 de junio de 2015, the Chamber decided a constitutional rights action (proceso de amparo) concerning the dismissal of a public official who did not work on Saturdays because he belonged to the Iglesia Adventista del Séptimo Día. In this regard, it ruled:

“The petitioner (recurrente) complains that, although the traffic authorities knew that he belonged to the Iglesia Adventista del Séptimo Día and that Saturday was therefore a day of rest, the Delegado de Tránsito de Cartago changed his schedule to include Saturdays. He further alleges that, on the following eleventh of May, he was verbally informed that the report recommending his dismissal for not working on Saturdays had already been forwarded.

II.Proven facts (Hechos probados). For purposes of deciding this matter, the following facts are deemed duly established, either because they have been substantiated or because the respondent failed to address them as ordered in the initial ruling:

a. On 10 de mayo de 2013, the petitioner submitted to the Office of the Ministerio de Obras Públicas y Transportes a letter attesting that he was an active member of the religious organization Adventista del Séptimo Día (see statutory report (Informe de ley)).

b. On 07 de abril de 2015, the Delegado de Tránsito de Cartago verbally informed the petitioner that his schedule had been changed because of staffing needs (see statutory report).

c. On 14 de abril de 2015, the petitioner filed a request with the Departamento de Relaciones Laborales del Ministerio de Obras Públicas y Transportes stating that, because of his religious beliefs, he did not agree to work on Saturdays. (See statutory report.)

d. On 15 de abril de 2015, by official communication (oficio) DRL-088-2015, the Departamento de Relaciones Laborales del MOPT informed the petitioner that the department lacked jurisdiction to decide his request. (See statutory report.)

e. On 21 de abril, through oficio DTC-2015-0240, the petitioner was notified of the schedule change.

f. On 24 de abril de 2015, the Consejo de Personal del MOPT asked the Director Jurídico to issue a legal opinion concerning the petitioner’s request (see statutory report).

g. On 14 de mayo de 2015, through oficio 20152143, the Dirección Jurídica del Ministerio de Obras Públicas y Transportes stated: ‘It is our legal opinion that the Administration must respect the constitutional right of those public officials who profess a religious faith whose observance takes place on Saturdays (…)’ (see statutory report).

h. On 19 de mayo de 2015, oficio DGTP-0704-2015 was issued, instructing Mariano Alfaro Mora (Jefe de la Policía de Tránsito de Cartago) to modify the petitioner’s schedule (see statutory report).

i. On 20 de mayo de 2015, the petitioner’s supervisor stated through oficio DTC 2015-0310: ‘I hereby inform you that I will immediately change the public official’s work rotation, in accordance with the opinion issued by… the Asesoría Jurídica… and also with the Agreement of the Consejo de Personal (…)’ (see statutory report).

j. The Dirección General de Tránsito del Ministerio de Obras Públicas y Transportes has not initiated any proceedings to dismiss the petitioner (see statutory report).

III. Unproven facts (Hechos no probados). None relevant to the resolution of this matter

IV- Merits (Sobre el fondo). According to the report submitted by the respondent authority—which is deemed to have been given under oath, subject to the consequences, including criminal penalties, established in article 44 of the Law governing this Jurisdiction—and the evidence submitted for the resolution of the matter, although the respondent authorities state that they resolved the request filed by the petitioner on 8 de abril del 2015 concerning the schedule change issued by the Jefatura de Tránsito de Cartago, it is also true that the respondent authority notified the petitioner of its decision regarding the request submitted by the petitioner (14 de abril de 2015) on 20 de de mayo del presente año, after notification of the ruling admitting this constitutional rights action for consideration (18/05/2015). As for the dismissal alleged by the petitioner, the submitted report establishes that no proceedings have been initiated. In this context, the appropriate course is to grant the action solely for purposes of compensation.” In judgment N°2015-011897, issued at 11:41 hours on 31 de julio de 2015, the Sala Constitucional protected the rights of a Fuerza Pública officer who practices Judaism, a religion in which Shabbat, “Saturday,” is a day of rest. In this regard, it stated:

“IV.- Specific case.- In this particular case, it has been duly established that the petitioner, [NOMBRE001], is an active member of the Asociación Toras Jai VeAhavas Jesed, whose activities are religious in nature, according to a certification issued by Rabino Rinjos Dov Fishman on 17 de febrero del 2015. He is also an officer of the Ministerio de Seguridad Pública and is assigned to the Delegación Policial de Alajuelita. The protected party (tutelado) alleges a violation of his freedom of religion—enshrined in article 75 of the Constitución Política—because, on 9 de diciembre de 2014, he submitted a written petition (libelo) to his superiors requesting, based on his religious beliefs, a 5 x 2 work rotation. He practices Judaism, and Shabbat, ‘Saturday,’ is a day of utmost importance as a fundamental part of his religious beliefs and worship practices because it is a day of rest. Accordingly, adherents refrain from activities unrelated to the worship and adoration proper to that day.

Nevertheless, he asserts that this request—as well as subsequent ones—was denied by his superiors for various administrative reasons. For their part, the Jefe de la Delegación Policial de Alajuelita and the Director Jurídico del Ministerio de Seguridad Pública state in their report that the Ministry does not oppose the religious beliefs of Mr. [NOMBRE001] or his right to freedom of worship. They argue, however, that the entire operation of a Delegación Policial is at stake, that its operation is established in advance and requires the organization of all available personnel, and that changing one public official’s rotation disrupts that operation because the personnel available when the delegation’s daily work plans were prepared are no longer available in the same numbers. They also state that oficio N°0249-2015-D10 of 14 de abril del 2015 responded to the communication of 11 de abril and explained to the petitioner that he could not be assigned the 5 x 2 rotation because the duties permitting that rotation were already being performed within the Delegación Policial, while the protected party held the position of Agente de Comunicaciones, in Análisis Ocupacional, clase 2.

In this regard, it is appropriate to clarify that members of the State’s police forces, like any person, enjoy fundamental rights. Although it has been recognized that they may be subject to certain employment-related restrictions because of the duties they perform, such restrictions are permissible only when a duly substantiated collective interest is at stake; otherwise, the action would be unlawful. Taking the foregoing into account, and after analyzing the evidence placed in the record, the challenged authority’s decision is deemed contrary to law. Given that a large majority of the country’s population is Catholic, a minority is Protestant, and an even smaller percentage within that minority observes Saturday for religious reasons, it is reasonable to conclude that few members of the Fuerza Pública profess those religious beliefs. Therefore, allowing those officers to comply with that precept does not in any way seriously impair the public service entrusted to them.

Accordingly, before adopting the decision challenged in this constitutional rights action (recurso de amparo), the respondents were required to seek the least burdensome solution for the protected party so as not to infringe the provisions of article 75 of the Constitución Política. Nevertheless, the respondents did not proceed in that manner, because the measure adopted infringed the protected party’s freedom of religion and was not proportionate to the purpose for which it was adopted. As previously stated, allowing the protected party to observe his day of rest would not have seriously harmed the public interest. In other words, of two possible solutions, the one imposing the greater burden on the fundamental right was selected, thereby violating that right. Moreover, the measure ordered by the respondent authority is neither proportionate nor just in itself; consequently, there is no alternative but to grant the constitutional rights action.

The action is therefore well-founded because the violation of constitutional article 75 has been established, and the respondent officials are ordered to recognize immediately that Saturday is Mr. [NOMBRE001]’s day of worship and adoration and shall always be treated as his day of rest.” In judgment N°2017-000228, issued at 09:15 hours on 13 de enero de 2017, the Sala Constitucional likewise protected the rights of a Universidad de Costa Rica student so that tests or assessments would not be administered to him on Saturdays, stating:

“…in the case before us, it is pertinent to bear in mind that freedom of religion, enshrined in article 75 of the Constitución Política, encompasses a complex array of powers within its general meaning. First, it concerns the individual dimension—that is, freedom of conscience—which must be regarded as an individual subjective public right (derecho público subjetivo individual) asserted against the State in order to require it to refrain from interference and to provide protection against attacks by other persons or entities. It consists of the legally guaranteed ability of individuals to conform their religious conduct and way of life to the dictates of their own convictions, without being compelled to act contrary to them. Second, it concerns the social dimension, freedom of worship, which is expressed through the right to practice one’s adopted belief outwardly. Like any fundamental right, however, the exercise of freedom of religion or worship is not unlimited, because the Constitución Política itself provides in article 75 that it may not conflict with universal morality or public morals.

Likewise, international treaties such as the Pacto Internacional de Derechos Civiles y Políticos provide in article 18 that ‘freedom to manifest one’s religion or beliefs shall be subject only to such limitations prescribed by law as are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.’ It follows from the foregoing that any manifestation of freedom of religion is permissible provided that it is not contrary to society’s morality and public morals or does not seriously harm the public interest; if either of those circumstances arises, the right in question may be restricted.” With regard to conscientious objection (objeción de conciencia) in the employment context, the Sala Constitucional recently ruled on the case brought by a judge of the Juzgado Notarial del Poder Judicial after the challenged authorities denied the exercise of conscientious objection in connection with applications submitted by same-sex persons. In this regard, judgment N°2020-001619, issued at 12:30 hours on 24 de enero de 2020, stated:

“IV.- On the right to conscientious objection (objeción de conciencia). Both legal scholarship and the most authoritative case law of the courts entrusted with safeguarding fundamental rights have conceptualized conscientious objection as the fundamental right of every person to refuse to fulfill a duty established by the legal system (ordenamiento jurídico) because the relevant rule is incompatible with that person’s beliefs or convictions, which are based, as a matter of principle, on religious, moral, or ideological convictions. This right is held to be 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 distinguishing feature of a pluralistic society, to the extent that its nonrecognition or reduction to a minimum—severely impairing its essential content so as to make it unrecognizable or impracticable—not only denotes a violation thereof, but also constitutes a troubling sign that the society in such a situation seeks to impose a single vision and an exclusive and exclusionary way of thinking on subjects and issues concerning which a diversity of opinions should prevail, in accordance with provision 28 of the Fundamental Charter and Articles 12 and 13 of the American Convention on Human Rights, as well as provision 6 thereof, which expressly establishes military service and, in countries where exemption for reasons of conscience is recognized, such national service as the law may provide in lieu thereof.

Like the aforementioned Convention, the European Convention for the Protection of Human Rights and Fundamental Freedoms expressly refers to conscientious objection in the same terms in Article 4.3.b. For its part, the Charter of Fundamental Rights of the European Union, when addressing freedom of thought, conscience, and religion in provision 10, subsection 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 ECHR) has ruled on the fundamental right to conscientious objection. With respect to compulsory military service, in Nombre16 v. Greece, in the year 2000, the ECHR concluded that the aforementioned State had violated the prohibition against discrimination (Article 14 of the Convention) in conjunction with the right to freedom of thought, conscience, and exclusion (Article 9 of the Convention), finding that the applicant’s exclusion from the profession of certified public accountant was disproportionate to the goal of ensuring the appropriate punishment of persons who refuse to serve the country—the applicant was a witness of Nombre17 who had been sentenced to four years’ imprisonment for refusing to enlist in the army—especially because he had already served the sentence.

Six years passed before the ECHR, in Nombre18 v. Turkey 2006, imposed limits on the States Parties to the Convention by prohibiting the infliction of inhuman and degrading treatment (Article 3 of the Convention) on an objector. The plaintiff was a Turkish citizen who refused to perform military service because of his pacifist beliefs and had been sentenced to imprisonment nine times. Of great importance in this review of case law is Nombre19 v. Armenia of 2011, in which the Grand Chamber of the ECHR held that although Article 9 of the Convention does not expressly refer to the right to conscientious objection, it is an autonomous right arising from freedom of conscience and therefore must be protected—like any other freedom under the Convention—from arbitrary interference by the State. Accordingly, a restriction on that right must pass the test of reasonableness and proportionality (test de razonabilidad y proporcionalidad), since every action by the State must strictly comply with the limits defined by that test; that is, it must be a proportionate measure serving a legitimate aim and necessary in a democratic society.

It is also important to note that the ECHR cautioned that this rule does not apply generally, but must always be assessed in light of the particular circumstances of each case. This criterion was reiterated in Nombre20 v. Turkey (2011), Nombre21 v. Turkey (2012), Nombre22 v. Turkey (2012), Feti Demitras v. Turkey (2012), and Nombre23 v. Turkey (2014). The Court has also ruled on conscientious objection once in a case involving pharmaceutical products and in another involving property rights. In Nombre24 and Nombre25 v. France (2001), the Court held that because the sale of contraceptive products was legal and, in that case, occurred pursuant to a medical prescription, the applicants could not give priority to their religious beliefs and impose them on others to justify their refusal to sell such products. In Nombre26 v. Germany (2012), in which German law required the claimant to tolerate hunting on his property and he asserted conscientious objection based on his pacifist beliefs, the Court ruled in his favor because requiring him to tolerate armed men and hunting dogs on his land constituted interference with his property.

The ECHR reiterated its position in Nombre27 and Nombre28, to the effect that imposing hunting on landowners who oppose it on the basis of ethical beliefs places a disproportionate burden on them, incompatible with Article 1 of Protocol 1. With respect to conscientious objection concerning the use of religious symbols, the ECHR has ruled in several cases on its impact in different spheres, specifically in public spaces, educational settings, and the workplace. In this regard, there are four significant cases: Nombre29 v. Switzerland (2001), Nombre30 v. Turkey (2004), Nombre31 v. France (2008), and Nombre32 v. France (2008). An analysis of these cases shows that the ECHR has consistently supported the States’ margin of appreciation (margen de apreciación), permitting restrictions on the use of religious symbols, particularly the Islamic veil. A very interesting case was Nombre33 and Others v. United Kingdom (2013), in which the ECHR granted relief to the first applicant for violation of freedom of conscience and religion, but not to the other three.

Of particular interest is the case of Nombre34, who was a notary responsible for registering marriages, births, and deaths and who, as a result of a change in the law, was required to register unions between persons of the same sex. The ECHR reiterated its position that freedom of religion encompasses the freedom to manifest one’s beliefs privately, but also entails practicing them in community with others and in public. Such manifestations may take the form of worship, teaching, practice, and observance. Because a person’s manifestation of religious beliefs may have an impact on others, any restrictions must be prescribed by law, necessary in a democratic society, and directed toward a legitimate aim. In turn, to qualify as a manifestation within the meaning of Article 9 of the Convention, the act in question must be closely connected with the religion or belief. In this case, it is important to highlight the dissenting opinions of Judges Nombre35 and De Gaetano concerning applicant Nombre34, because they present conscientious objection as a right that facilitates harmonious interaction with other fundamental rights that may come into tension with it.

In the view of both judges, the ECHR erred in finding no violation of the notary’s rights to freedom of conscience and religion, as well as her right to nondiscrimination, when she refused, because of her Christian convictions, to register marriages between persons of the same sex. They emphasize the importance to an individual of moral judgment or judgment of conscience, which is protected by the right to conscientious objection and differs from the specific content of freedom of religion. They conclude that the ECHR majority erred because the third applicant’s beliefs had no 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, either openly or covertly; therefore, the fact that she lost her job was wholly disproportionate.

(…)

VI.Conscientious objection and the exercise of the judicial function (función jurisdiccional). A highly controversial issue is whether a judge, in exercising the judicial function—that is, in exercising the authority vested in a branch of State power—may exercise the right to conscientious objection. It is clear that, by their very nature and broad scope, there are certain circumstances in which the right to conscientious objection is not available. Legal scholarship has maintained that conscientious objection is unavailable to a criminal judge who claims that his conscience does not permit him to impose punishment. The same may be said of a family-law judge who objects to divorce. In all these circumstances—bearing in mind, moreover, that when the judge accepted the position, he voluntarily assumed all its duties—we would consequently be violating an elementary rule of good faith if he later sought to exercise the right to conscientious objection.

Nevertheless, there are other cases in which conscientious objection is permissible in the exercise of the judicial function. Indeed, in the year 1987, the Italian Constitutional Court had the opportunity to hear a case in which a judge objected to providing substitute consent for a minor to obtain an abortion. In that case, the aforementioned court rejected the issue on the ground that it was insufficiently substantiated, causing perplexity and criticism and prompting intense debate, since a measure of scholarly consensus emerged that the constitutional question (cuestión de constitucionalidad) could have been resolved through an expansive interpretation of Article 51 of the Italian Code of Civil Procedure, which permits a judge to recuse himself (abstención) from a case when he invokes “serious reasons of propriety,” thereby allowing the case to be transferred to another judge who does not raise a conscientious objection.

As may be seen from the foregoing, some maintain that judges may exercise the right to conscientious objection through the ground for disqualification (causal de recusación); nevertheless, because this is an autonomous fundamental right and, in this case, a right-duty (derecho-deber), it must be exercised strictly in a personal capacity, since it is for the objector, on the basis of his beliefs or convictions, to determine whether they prevent him from resolving the legal dispute before him. The position of the Colombian Constitutional Court is different. In tutela judgment (sentencia de Tutela) n. ° 388/09 del 28 de mayo del 2009, it adopted an absolute, maximalist position, holding that judicial authorities may not hide behind the right to conscientious objection in order to refuse to process or decide a matter submitted to them. This position deprives the right to conscientious objection of its essential content, since, in the view of that Court, male and female judges do not enjoy this fundamental right.

We shall see that it is indeed possible to guarantee the public service of the Administration of Justice under conditions of equality and nondiscrimination while recognizing the right to conscientious objection in the exercise of the judicial function, as an important sector of legal scholarship has correctly maintained.

VII.Regarding the specific case. That said, in all these matters, a fundamental premise and a historical constant must be borne in mind: 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) is subject to limits and restrictions, and in cases where it conflicts with another fundamental right, recourse must be had to the principle of practical concordance (concordancia práctica); therefore, a balancing test (juicio de ponderación) must be conducted between the rights in conflict, as will be discussed below. In the case at bar (sub judice), the appellant states that the challenged act infringes his right to conscientious objection, since the Consejo Superior del Poder Judicial does not take his religious convictions into consideration and compels him to act against them by requiring him to perform a marriage between persons of the same sex.

The situation is radically different when merely procedural acts are involved, for example, the registration of a marriage, as occurred in the above-mentioned case of Nombre33 and Others v. United Kingdom, where the right to conscientious objection cannot be exercised. As may be seen, the case at bar does not concern a strictly adjudicative function—one that resolves a legal dispute with the force of res judicata (cosa juzgada)—but rather a function of a judicial nature, that is, non-adjudicative functions established by law. In this situation, the first point to note is that this fundamental right is inherent in the adjudicating person. Second, when the objecting person asserts the impediment, several criteria of the utmost importance must be followed. First, that person must establish the existence of the grounds of conscience and their direct relationship to the legal duty being challenged.

Second, the situation must have arisen subsequently, since this fundamental right cannot be exercised when the adjudicating person voluntarily accepted the position and the legal duty now being challenged was among that person’s functions. Finally, when the exercise of the fundamental right to conscientious objection is accepted, the Poder Judicial has a legal duty to replace that person within a mandatory time limit (plazo perentorio), so that the system in place provides users of Administración de Justicia services with service under conditions of effectiveness, efficiency, and equality; that is, so that their situation is resolved in accordance with the fundamental right to effective judicial protection (tutela judicial efectiva), or prompt and complete justice, without discrimination of any kind. It might be argued that the fundamental right to conscientious objection cannot be exercised when doing so entails discrimination; however, that position rests on an absolute view and, consequently, deprives a fundamental right of its essential content (contenido esencial).

In this regard, it must be made clear that no reasonable person would disagree with the assertion that judicial office must be exercised independently, impartially, and without discrimination of any kind. From this perspective, it is inadmissible for a Judge to give preferential treatment to some persons and discriminatory treatment to others on grounds of politics, race, religion, sexual preference, etc. In the exercise of judicial office, as in the exercise of the administrative function, impartiality is the guiding principle and, consequently, the Poder Judicial has a duty to treat heterosexual and homosexual persons equally with respect to attention, processing, response time, adjudication and enforcement of matters, etc. It is therefore inadmissible for an adjudicator or administrative official to refuse to process a person’s matter because that person has a worldview or lifestyle with which the official disagrees; in such cases, there is no room for exercising the fundamental right to conscientious objection—for example, refusing to perform a registration act, conduct a trial, enforce a ruling, etc. The situation is radically different when the person is required to perform an act that openly conflicts with that person’s deepest religious, moral, or ideological convictions—as is the performance of a marriage ceremony.

In that situation, to guarantee the exercise of the two fundamental rights in conflict, recourse must be had to the principle of practical concordance. As German legal scholarship has correctly maintained, when fundamental rights conflict, the principle of practical concordance must be applied so that one right is not sacrificed for the benefit of the other to such an extent that its essential content is emptied. In situations of this kind, the legal decision-maker (operador jurídico) is first called upon to interpret and apply the fundamental rights in a manner that permits the greatest degree of exercise by both persons. Where there is a manifest incompatibility, the balancing test requires that, when one right must yield to the other, the restriction on the exercise of the right that is curtailed be strictly necessary to make the exercise of the other possible. Finally, it must always be borne in mind that the balancing test is specific to the particular case, meaning, quite simply, that in another situation the balancing test may well favor the fundamental right that was sacrificed in the previous case.

With the foregoing as its frame of reference, the Sala considers the different variables in the present matter. On the one hand, it might be thought that the essential content of the fundamental right to conscientious objection must be sacrificed because it has no place whatsoever in a case involving discrimination. Put differently, judges are required to make that sacrifice: they must set aside their deepest convictions—in this case, religious convictions—and proceed to perform the marriage. Under that line of reasoning, if the Judge did not perform the marriage, this would constitute a discriminatory act. In this regard, the first point to bear in mind is that the principle of equality and nondiscrimination is not violated when there is an objective and reasonable justification. On this matter, the Sala Constitucional has repeatedly stated the following:

“The principle of equality, set forth in Article 33 of the Constitución Política, does not mean that equal treatment must be afforded in every case regardless of any potentially distinguishing elements of legal relevance that may exist; in other words, not every inequality necessarily constitutes discrimination. As the Sala has stated, equality is violated only when the inequality lacks an objective and reasonable justification. Furthermore, the justification for the act deemed unequal must be evaluated in relation to its purpose and effects, such that there must necessarily be a reasonable relationship of proportionality between the means employed and the purpose itself. In other words, equality must be understood in light of the circumstances present in each specific case in which it is invoked, so that the universal application of the law does not prohibit different solutions from being provided for different situations, as differing treatment. All of the foregoing means that equality before the law cannot imply substantive equality or actual and effective economic equality” (see judgments n. ° 1770-94 and 1045-94).

The majority of the Tribunal considers that the fact that a Judge raises a conscientious objection concerning an issue of the utmost importance from a religious perspective does not mean that the Judge is discriminating against a particular person; rather, there is an objective and reasonable justification. What occurs is that the Judge holds a view of a social and religious institution that differs from that of the prospective spouses and, consequently, compelling the Judge to perform the marriage ceremony wounds the Judge’s deepest religious convictions and deprives the Judge’s fundamental right of its essential content. Second, it is a publicly and commonly known fact that, in a country where there are several notarial judges, the Administración de Justicia can readily accept a conscientious objection—which, as stated above, must satisfy all the requirements for the exercise of this fundamental right—and assign judges who do not object to perform marriages between persons of the same sex.

Indeed, a State that guarantees all persons’ fundamental rights can establish a system ensuring that judges willing to provide the service to persons of the same sex are always available, under conditions equal to those afforded to other users of the service. Viewed in this manner, there is no discriminatory act, since there will always be male and female judges who will perform the marriage ceremony, thereby satisfying the rights of the prospective spouses. Nor can it be overlooked that Costa Rica is a State with an open notarial system, under which different persons may go to a notary of their free choice to marry, provided that the notary has not raised a conscientious objection pursuant to provision 3 of the Lineamientos para el Ejercicio y Control del Servicio Notarial (see La Gaceta n.° 23 of 5 de febrero del 2020). Finally, and no less importantly, the right to conscientious objection would apply to judges appointed before same-sex marriage entered into force—because performing marriages between persons of the same sex was not among their functions—whereas it is clear that those appointed subsequently have voluntarily agreed to perform marriage ceremonies for both heterosexual and homosexual persons.

Consistent with the position adopted by the majority of the Tribunal, it is important to recall the words of Judge Neil Gorsuch: that the role of secular officials is not to judge people’s religious beliefs, but only to protect their free exercise. He made this statement in the famous case Nombre36. Cakeshop. L td., v. Colorado Civil Rights Commission ET AL. —SEVEN VOTES IN FAVOR AND TWO AGAINST PROTECTING FREEDOM OF CONSCIENCE—in which, in the summer of 2012, a same-sex couple asked a Colorado baker to make them a wedding cake. The owner, whose surname was Nombre37, refused the special order, which would have involved creating and selling them a wedding cake for a same-sex couple. The record shows that he offered them other products from his store. At the time of the request, there was no law recognizing same-sex marriage, so the wedding would take place in a State where it was legal, and they would hold the celebration in Denver.

Nombre37 described himself as a professional baker and a devout Christian whose primary purpose in life was to obey the teachings of Nombre38; he therefore sought to honor Nombre08 through his work at his Masterpiece Cakeshop store. Specifically, one of his religious beliefs was that Nombre08 intended 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 a celebration contrary to his most deeply held beliefs. The mother of one of the young men called Nombre37 the following day seeking further explanation, and he responded in similar terms, adding that creating a cake would involve celebrating something contrary to the teachings of the Bible and would also, in his view, signify his personal approval of the ceremony and the relationship the couple would be entering into.

VIII.Based on the foregoing, the majority of the Court considers that, in a pluralistic society, the Law of the Constitution—values, principles, and rules—must allow people to hold differing views regarding political, economic, social, and cultural phenomena; otherwise, society would become authoritarian or totalitarian, with thought being homogenized or standardized. In this regard, Human Rights Courts are not called upon to impose a single way of thinking; rather, through a balancing test (juicio de ponderación) and the application of the principles of reasonableness and proportionality (principios de razonabilidad y de proporcionalidad), they must permit the fullest exercise of the fundamental rights (derechos fundamentales) in conflict, so that they may coexist respectfully. It must be borne in mind that, in cases involving conflicting fundamental rights, the Constitutional Court is not an advocate of any particular ideology or worldview, because when it acts in that manner, it abandons its mission and, consequently, paradoxically ends up violating the fundamental rights of the person whom it is required to protect. Thus, in view of the foregoing, the proper course is to grant the petition (acoger el recurso), with the consequences set forth in the operative portion (parte dispositiva).

IX.Conclusion. The principle of equality and non-discrimination (principio de igualdad y no discriminación) is an essential element of the public service of the Administration of Justice, and its users must therefore receive equal treatment in the handling, processing, adjudication, and enforcement of the various matters heard at all judicial levels. For its part, the majority of the Court considers that the right to conscientious objection (derecho a la objeción de conciencia) may be exercised in the adjudicative function (función jurisdiccional)—although the present case concerns the exercise of a judicial function. In such cases, two fundamental rights are reconciled; however, the essential content of the first—equality and non-discrimination—is not deprived of effect, because when a judge raises a conscientious objection to performing a marriage ceremony, the Superior Council of the Judiciary must adopt all necessary measures to ensure that the public service of the Administration of Justice is provided to same-sex couples under the same conditions and within the same response times as those afforded to heterosexual persons. Finally, it is clear that all persons appointed after same-sex marriage entered into force may not exercise the right to conscientious objection, because they voluntarily accepted that function by applying for and accepting the position.”

On conscientious objection. In a general sense, conscientious objection refers to a long-established legal institution (instituto) that has existed in society since ancient times and consists of the possibility of departing from a legal duty or mandate when it conflicts with or runs counter to the objector’s convictions, without liability being imposed upon the objector. In other words, it could be regarded as a form of resistance to a legal provision, insofar as that resistance is based on an apparent conflict between a person’s moral, religious, or justice-based obligations and compliance with legal provisions. Conscientious objection is understood as an outward manifestation (concreción ad extra) of the right to freedom of conscience (derecho a la libertad de conciencia), which operates as a limit on public authorities so that they do not interfere with personal convictions. As noted in the preceding section, from the earliest decisions of this Constitutional Court it was understood that “…freedom of conscience, which must be regarded as an individual subjective public right (derecho público subjetivo individual), may be asserted against the State to require it to refrain from interference and to provide protection against attacks by other persons or entities.

It consists of the legally guaranteed possibility for individuals to conform their religious conduct and way of life to the dictates of their own convictions, without being compelled to do anything contrary to them. Second, at the social level, it refers to freedom of worship (libertad de culto), which translates into the right to practice outwardly the belief one has adopted. It also encompasses freedom of proselytism or advocacy, freedom to establish or join congregations, freedom of education, the right of assembly and association, and the rights of religious communities, etc.” (see judgment N°3173-93 of 14: 57 hours on 6 de julio de 1993, doctrine reiterated in judgments N°5492-96 of 16:54 hours on 16 de octubre de 1996, N°2001-10491 of 15:57 hours on 16 de octubre de 2001, N°2002-03018 of 11:12 hours on 22 de marzo de 2002, N°2002-08557 of 15:37 hours on 03 de septiembre de 2002, N°2003-03018 of 14:48 hours on 22 de abril de 2003, N°2004-008763 of 12:15 hours on 13 de agosto del 2004, 2012-10456 of 05:27 hours on 01 de agosto de 2012, and N°2014-004575 of 14:30 hours on 2 de abril de 2014, among others).

It may be concluded from the foregoing that freedom of conscience is a fundamental right that must be guaranteed by a State that respects religious freedom and by a broad, pluralistic democratic society that affords ample respect to the diversity of opinions, beliefs, and moral convictions. Likewise, freedom of thought and conscience are fundamental elements shaping the identity of believers and their conception of life, as well as that of atheists, agnostics, skeptics, and indifferent persons. Conscientious objection must be distinguished from related concepts such as civil disobedience (desobediencia civil), because the objector’s intention is not to obstruct society’s compliance with a legislative provision, but to secure respect for the objector’s own conscience. The distinction lies primarily in the purpose of the action. The principal objective of civil disobedience is to modify a legal provision or public policy, as exemplified by the civil-rights movement for persons of African descent undertaken by Nombre39 to end racial segregation and discrimination in the United States of America.

Conscientious objection must also be distinguished from conscientious evasion (evasión de conciencia); as John Rawls explains (A Theory of Justice, 1975), the distinction concerns the public nature of the act rather than its purpose. In this regard, conscientious objection is expressed publicly, because the objector must communicate the refusal to the objector’s superiors in order to obtain an exemption. By contrast, conscientious evasion is characterized by its essentially secret nature; for example, a person who departs from normative tenets in order to undertake discreetly an action regarded as a moral duty, such as someone who takes justice into their own hands in defense of their convictions. Initially, conscientious objection was conceived as a legal institution allowing objectors to refrain from participating in military service without being held liable for desertion. Thus, conscientious objection 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 to military service is not a right in itself, since it is not directly mentioned in United Nations international instruments; rather, it is characterized as a derivative right or a manifestation of those rights because, as stated above, it derives from an interpretation of the right to freedom of thought, conscience, and religion. It is clear that the progressive and expansive development of conscientious objection has broadened its scope in two respects: first, regarding subjective claims, by allowing conscientious objectors to invoke not only their religious beliefs but also other types of convictions, generally ethical, moral, and philosophical; and second, regarding its field of application, because this mechanism may now be invoked not only in relation to compulsory military service but also in education, healthcare, and employment. The legal-philosophical justification (justificación iusfilosófica) for conscientious objection may, of course, 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 those of John Rawls and Ronald Dworkin, which were influenced by Kantian morality insofar as they exalt the principle of individual autonomy as the principle justifying the exercise of conscientious objection.

On the recognition of conscientious objection in employment and education under the case law of the Constitutional Chamber. As indicated in the first section of this recital (considerando), this Constitutional Court’s recognition of conscientious objection originated in 1993 (see judgment N°3173-93 of 14:57 hours on 06 de julio de 1993), in relation to education; from that date to the present, students’ right to conscientious objection in education has been recognized as a mechanism derived from freedom of conscience and freedom of worship, stating that “…It consists of the legally guaranteed possibility for individuals to conform their religious conduct and way of life to the dictates of their own convictions, without being compelled to do anything contrary to them. Second, at the social level, it refers to freedom of worship, which translates into the right to practice outwardly the belief one has adopted.

It also encompasses freedom of proselytism or advocacy, freedom to establish or join congregations, freedom of education, the right of assembly and association, and the rights of religious communities, etc.”. This interpretation is also found in other jurisdictions. For example, in Spain, beginning with judgment 15/1982 of 23 de abril de 1982, the Spanish Constitutional Court recognized conscientious objection through its interpretation of article 30.2 of the Constitution, which expressly provides for conscientious objection to military service, read together with article 16.1. The Court attributed broad content to it, consisting not only of believing or ceasing to believe whatever one deems appropriate, but also of the possibility of conducting oneself in one’s personal and social life in accordance with one’s own convictions, whatever they may be, expressly stating:

“…both legal scholarship and comparative law affirm the connection between conscientious objection and freedom of conscience. According to legal scholarship, conscientious objection constitutes a specific manifestation of freedom of conscience, which entails not only the right to form one’s own conscience freely, but also to act in accordance with its dictates. In the Basic Law of Bonn, the right to conscientious objection is recognized in the same article as freedom of conscience; likewise, Resolution 337, of 1967, of the Consultative Assembly of the Council of Europe expressly states that recognition of conscientious objection follows logically from the individual’s fundamental rights guaranteed under art. 9 of the European Convention on Human Rights, which requires Member States to respect individual freedom of conscience and religion.

And, since freedom of conscience is a specific manifestation of ideological freedom, which our Constitution recognizes in art. 16, it may be asserted that conscientious objection (objeción de conciencia) is a right explicitly and implicitly recognized in the Spanish constitutional legal order, and the fact that art. 30.2 uses the expression “the Law shall regulate” does not detract in any way from the foregoing argument, since this means nothing more than that interpositio legislatoris is necessary, not to recognize the right but, as the words themselves indicate, to “regulate” it in terms that permit its full applicability and effectiveness.” Likewise, the Constitutional Chamber has extended the applicability of conscientious objection to the employment sphere in order to resolve situations in which employees or public officials wish to refrain from fulfilling obligations. Specifically, in its conception of conscientious objection in the employment sphere, the Constitutional Chamber stated that “… conscientious objection has been conceptualized as the fundamental right of every person to refuse to fulfill a duty established in the legal order because the applicable rule is incompatible with that person’s beliefs or convictions, which, as a general principle, are based on religious, moral, or ideological convictions.

This right is held to be a logical and necessary derivation of freedom of conscience and constitutes one of its external manifestations.” (see judgment N°2020-001619 of 12:30 hours on 24 de enero de 2020). In the cited precedent, the Court assessed whether a judge, in exercising the judicial function, could invoke conscientious objection and noted that “…the majority of the Court considers that, in a pluralistic society, it is necessary for Constitutional Law—its values, principles, and rules—to authorize individuals to hold differing views regarding political, economic, social, and cultural phenomena, since otherwise society would become authoritarian or totalitarian, with thought being homogenized or standardized. In this regard, Human Rights Courts are not called upon to impose a single way of thinking; rather, through a balancing test (juicio de ponderación) and the application of the principles of reasonableness and proportionality, they must permit the fullest exercise of the fundamental rights in conflict, so that those rights may coexist respectfully.

It must be borne in mind that, in cases involving a conflict between fundamental rights, the Constitutional Court does not advocate a particular ideology or worldview, because when it does so, it abandons its mission and, consequently, paradoxically ends up violating the fundamental rights of the person it is required to protect.” In that judgment, the Constitutional Chamber ultimately emphasized that the Administration of Justice is governed by the principle of equality and non-discrimination as an essential element of public service, serving as a guarantee that members of the public will receive equal treatment in the handling, processing, adjudication, and enforcement of the various matters heard at all judicial levels. It likewise determined that the right to conscientious objection may be exercised in the adjudicative function (función jurisdiccional), although the case before it concerned the exercise of a judicial function.

Finally, it emphasized that, in such cases, two fundamental rights are reconciled without disregarding the right to equality and non-discrimination, since, when conscientious objection is invoked, the Consejo Superior del Poder Judicial must adopt all necessary measures to ensure that the public service provided by the Administration of Justice is delivered under the same conditions and within the same response times.

International rules governing conscientious objection at the universal level. Article 18 of the 1948 Universal Declaration of Human Rights provides:

“Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change one’s religion or belief, as well as freedom, either alone or in community with others and in public or private, to manifest one’s religion or belief through teaching, practice, worship, and observance.” In nearly identical terms, Article 18 of the 1976 International Covenant on Civil and Political Rights provides:

“1. Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to have or adopt a religion or beliefs of one’s choice, as well as freedom, either individually or in community with others and in public or private, to manifest one’s religion or beliefs through worship, observance, practice, and teaching.

2. No one shall be subjected to coercive measures that would impair that person’s freedom to have or adopt a religion or beliefs of that person’s choice.” Likewise, Article 8 of the 1976 International Covenant on Civil and Political Rights also states:

“Article 8.

3. a) No one shall be compelled to perform forced or compulsory labor (…)

• c)For the purposes of this paragraph, the term ‘forced or compulsory labor’ shall not include:
• ii)Service of a military character and, in countries where exemption on grounds of conscience is recognized, national service required by law of those who object to military service on grounds of conscience;” The provision partially transcribed above does not recognize a general right to conscientious objection and refers to States that have enacted legislation on the matter, with reference to substitute service (servicio sustituto). Similarly, compulsory military service should not be considered forced labor. Article 5 of the 1969 International Convention on the Elimination of All Forms of Racial Discrimination states:

“Article 5.

In accordance with the fundamental obligations laid down in Article 2 of this Convention, States Parties undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee everyone’s right to equality before the law, without distinction as to race, color, or national or ethnic origin, particularly in the enjoyment of the following rights:

(…)

• d)Other civil rights, in particular:

(...)

(...)

• vii)The right to freedom of thought, conscience, and religion.” International rules governing conscientious objection at the regional level. The right to freedom of thought, conscience, and religion is also recognized in regional human-rights instruments. Article 9 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms states:

“1. Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change one’s religion or beliefs and freedom, either individually or in community with others and in public or private, to manifest one’s religion or beliefs through 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 constitute measures necessary in a democratic society in the interests of public safety, the protection of public order, health, or morals, or 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, stating in Article 10:

“1. Everyone has the right to freedom of thought, conscience, and religion. This right includes freedom to change one’s religion or beliefs and freedom, either individually or in community with others and in public or private, to manifest one’s religion or beliefs through worship, teaching, practice, and observance.

2. The right to conscientious objection is recognized in accordance with the national laws governing its exercise.” For its part, at the regional level in the Americas, the 1969 American Convention on Human Rights states:

“Article 6. Freedom from Slavery and Servitude 2. No one shall be compelled to perform forced or compulsory labor. (...)

3. For the purposes of this Article, the following shall not constitute forced or compulsory labor:

(...) b. military service and, in countries where exemption on grounds of conscience is recognized, national service established by law in lieu thereof; Article 12. Freedom of Conscience and Religion.

“1. Everyone has the right to freedom of conscience and religion. This right includes freedom to maintain one’s religion or beliefs or to change one’s religion or beliefs, as well as freedom, either individually or in community with others and in public or private, to profess and disseminate one’s religion or beliefs.

2. No one may be subjected to restrictive measures that might impair the freedom to maintain or change one’s religion or beliefs.

3. Freedom to manifest one’s religion and beliefs shall 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 threatening the independence or security of a State Party, the State may adopt provisions that, to the extent and for the period of time strictly required by the exigencies of the situation, suspend its obligations under this Convention, provided that such provisions are not inconsistent with its other obligations under international law and do not entail discrimination on grounds of race, color, sex, language, religion, or social origin.

2. The foregoing provision does not authorize the suspension of the rights established in the following Articles: (...) 6 (Freedom from Slavery and Servitude); (...) 12 (Freedom of Conscience and Religion) (...), or of the judicial guarantees essential for the protection of such rights.” Likewise, Article 8 of the 1981 African Charter on Human and Peoples’ Rights provides:

“Freedom of conscience and the profession and free practice of religion shall be guaranteed. No one who respects law and order may be subjected to measures restricting the exercise of these freedoms.” The American Convention expressly recognizes the right of every person to freedom of conscience (libertad de conciencia) and freedom of religion (libertad de religión), which includes the entitlement to retain, change, profess, and disseminate one’s religion or beliefs. Within the Inter-American regional system, these rights have been the subject of few rulings by the Inter-American Court of Human Rights (CIDH). Thus, the high court has ruled on freedom of conscience and religion in the context of human rights violations suffered by persons engaged in religious activities (Nombre40 vs. Guatemala 1982, Nombre41 vs. Guatemala 1997, and Nombre42, Jorge Alberto Baro´n Guttlein and Rodolfo Izal Elorz vs. México 1998).

The CIDH has also ruled on freedom of conscience in connection with the censorship of the screening of a motion picture (Olmedo Bustos et al. vs. Chile 2001). In that ruling, the CIDH recognized that the right to freedom of conscience and religion concerns the protection afforded to persons so that they may retain, 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 vital element in protecting believers’ convictions and way of life. Within the Inter-American system, the right to freedom of conscience and religion may not be suspended. However, the freedom to manifest one’s religion and beliefs may be restricted. For such restrictions to be legitimate, they must be prescribed by law and necessary to protect public safety, order, health, or morals, or the rights and freedoms of others.

Likewise, the rulings of the CIDH establish that the right to freedom of conscience and religion may be violated through, for example, denial of entry into one’s country of origin; arbitrary detention and summary expulsion from a country; violation of the right to due process (debido proceso); surveillance; threats; abduction; and torture perpetrated by State agents to punish or thwart the religious activities of individuals (Nombre40 vs. Guatemala 1982, Nombre41 vs. Guatemala 1997, and Nombre42, 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—but rather, that right arises independently 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 recognize conscientious objection does not constitute forced or compulsory labor (Article 6.3.b of the American Convention). In other words, freedom of conscience protects conscientious objection in the military sphere only where domestic legislation recognizes it (Cristián Daniel Sahli Vera et al. vs. Chile 2005, Nombre43 vs. Bolivia 2005, and Nombre44 vs. Ecuador 2006).

• 3)Specific analysis of the matter submitted for consultation The petitioners consider that Article 23(g) of the “FRAMEWORK LAW ON PUBLIC EMPLOYMENT” bill, which is being processed under legislative expediente N°21.336 and establishes the possibility of conscientious objection in education and training processes, violates the principles of legality and legal certainty (seguridad jurídica), proportionality, and reasonableness. They consider that this provision conflicts with Constitutional Law (Derecho de la Constitución) because it allows public officials to invoke conscientious objection in order to avoid education and training that the State has deemed mandatory, and because it violates the principles of legality and legal certainty, proportionality, and reasonableness by failing to regulate the conditions, parameters, and restrictions necessary to prevent violations of fundamental human rights encompassed within Treaty Law (Derecho Convencional) and fully recognized by our legal system.

They state that, through a simple sworn statement (declaración jurada), public officials will be able to assert a right of conscientious objection whenever, in their view, the content of education and training programs violates their religious, ethical, or moral convictions. They argue that this is an entirely broad provision that, by permitting reliance on wholly subjective criteria, will allow any person to refuse training on core matters of Public Administration. In that regard, they consider that conscientious objection cannot be invoked to promote inequality, mistreatment, and discrimination from a position of authority. As noted above, this Constitutional Court has ruled on conscientious objection in various areas, including education and employment. Among its earliest pronouncements, the Court identified a formula derived from Articles 28 and 75 of the Political Constitution, understood as an outward manifestation (manifestación ad extra) of freedom of conscience and freedom of religion, which, like any external expression or manifestation, must remain within the limitations established by the legal system, whether by a constitutional provision or a statutory provision (see Judgment N°3173-93 at 14:57 hours on 06 de julio de 1993).

This position has made it possible to resolve constitutional disputes concerning conscientious objections raised in educational and employment settings. In that regard, this Court has taken the position that conscientious objections arise from a conflict between a legal precept and a personal conviction. It has also recognized that such an objection may be raised against provisions of any nature, whether regulatory, public-policy, or contractual, insofar as they affect a person’s convictions. In the bill under review, it is clear that the proposed provision would allow an official to invoke conscientious objection in order to obtain an exemption from mandatory training or an educational course on the ground that it conflicts with the official’s religious, ethical, or moral convictions. In that regard, the petitioners (consolidated petitions: expediente N°21-011713-0007-CO and expediente N°21-012118-0007-CO) state that: 1.

The objective of avoiding education and training that the State has deemed mandatory violates the principles of legality and legal certainty, proportionality, and reasonableness by failing to regulate the conditions, parameters, and restrictions necessary to prevent violations of fundamental human rights encompassed within Treaty Law and fully recognized by our legal system. 2. Through a simple sworn statement, public officials will be able to assert a right of conscientious objection whenever, in their view, the content of education and training programs violates their religious, ethical, or moral convictions; this is an entirely broad provision that, by permitting reliance on wholly subjective criteria, will allow any person to refuse training on core matters of Public Administration. 3. By openly and without regulation allowing public officials to refuse technical education and training that is mandatory and necessary for the performance of their positions merely by giving notice through a sworn statement, the wording could be deemed an abusive exercise contrary to the human rights of other citizens.

An analysis of the articles of the bill under review reveals a conflict among numerous rights, both those of officials and those of the citizens who receive services from these public servants. 4. To perform their duties honestly, efficiently, and effectively, public officials must necessarily possess the technical and administrative knowledge that enables them to carry out those duties. 5. Furthermore, the State has an obligation to train officials so that State operations comply with the standards governing the provision of public services that must be guaranteed to citizens. 6. They question how a public official can determine, before receiving training, that it infringes the official’s personal beliefs or convictions. 7. They contend that including conscientious objection in this bill could render it unconstitutional insofar as the State would allow officials to disregard the exercise of public powers (potestades públicas) that are mandatory and must be exercised by someone. 8.

Furthermore, this constitutional body has also held that when officials assume a position in which they must perform certain acts, they are required to perform them without a right to conscientious objection, insofar as they have agreed to hold public office in accordance with the law in force at the time of their appointment. 9. Refusing to receive training and education on matters relevant to one’s position could violate, for example, a citizen’s right to receive adequate health care, proper service from bodies responsible for administering justice, or an unbiased and accurate message from educational institutions. 10. Treating conscientious objection as a mere formality without further conditions or restrictions, and without any technical rigor, solely to generate controversy and polarize Costa Rican society, is contrary to the human rights recognized by the Inter-American Court of Human Rights and conflicts with the obligation borne by the State, which the State must guarantee.

On the first argument raised. The requesting parties indicated that, if public 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 necessary to prevent violations of fundamental human rights encompassed within treaty law (Derecho Convencional) and fully recognized by our legal system are not regulated. In this regard, it should be noted that, under this bill, the scope of the provision is limited so that a public servant need not receive training that the public servant considers contrary to his or her religious, ethical, and moral convictions. Accordingly, the requesting parties’ reasoning to that effect would not be valid, first, because the condition and scope are clearly limited to a specific circumstance, in this case mandatory training; and second, because it does not follow from this that the exercise of conscientious objection (objeción de conciencia) violates the fundamental or human rights of others.

In this regard, it should be recalled that conscientious objection has been a valid mechanism through which a person may exercise other rights, such as freedom of conscience and freedom of religion (art. 75 of the Constitution), which, when understood in harmony with the legal system, are subject in their exercise to the rights of third parties (article 28 of the Constitution). In this regard, judgment N°2020-001619 of 12:30 hours on 24 de enero de 2020 stated: “… conscientious objection has been conceptualized as the fundamental right of every person to refuse to fulfill a duty established in the legal system because the relevant provision is incompatible with that person’s 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 extension of freedom of conscience and constitutes one of its external manifestations.” On the second argument raised.

The requesting parties indicate that, through a simple sworn declaration (declaración jurada), public officials will be able to assert a right of conscientious objection whenever, in their view, the content of education and training programs violates their religious, ethical, or moral convictions; they contend that this is an entirely broad provision that will allow anyone, by invoking wholly subjective criteria, to refuse training on matters central to the Public Administration. With regard to the mechanism used to communicate conscientious objection, contrary to the requesting parties’ assertions, this Chamber considers it suitable insofar as the bill requires sufficient action by the public servant, since it requires the public servant to report the conscientious objection by means of a sworn declaration. It is not a lax mechanism; on the contrary, it entails action through a declaration that must be “sworn,” and therefore has administrative and even criminal consequences when false information is provided under oath.

The legal declaration is an instrument widely used in the Public Administration for matters of various kinds; examples include the declaration of assets that public officials submit annually to the Contraloría General de la República, and it is also used in the Universidades Públicas and other entities when faculty members and/or officials must provide information in that format. The Chamber does not consider it a weak or inappropriate instrument for exercising the right protected by article 23 subsection g) of the bill under review, because that oath is, in fact, a promise to tell the truth, and the person making it therefore assumes responsibility if his or her statements are untruthful. The use of sworn declarations in the Public Administration has streamlined formalities and procedures for the benefit of users as well as the Public Administration. For this reason, it is not valid to assert that it is a document based on wholly subjective criteria.

As to its practical application, it is relevant to note that, pursuant to this Court’s precedents and in accordance with judgment N°2012-010456 of 05:27 hours on 01 de agosto de 2012, conscientious objection may be exercised through “…a prompt and simple mechanism”; the Chamber therefore considers that a sworn declaration would be entirely appropriate because it is a prompt and simple mechanism. Moreover, as regards its personal scope (ámbito subjetivo), this Chamber has already indicated that conscientious objection applies not only to religious convictions but also extends to moral or ideological convictions (see judgment N°2020-001619 of 12:30 hours on 24 de enero de 2020). It is considered entirely possible for a person to issue a sworn declaration referring to those moral or ideological convictions in order to object under the terms of subsection g) of article 23, without being required in that document to prove or provide an extensive explanation of such convictions—since doing so could intrude upon that person’s internal and personal sphere—while still informing the Administration through a sworn declaration of the person’s objection based on moral or ideological convictions.

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 rules—to authorize people to hold differing views regarding political, economic, social, and cultural phenomena; otherwise, society would become authoritarian or totalitarian, with thought being homogenized or standardized. In this regard, Human Rights Courts are not called upon to impose a single way of thinking; rather, through a balancing analysis and the application of the principles of reasonableness and proportionality, they must permit the fullest possible exercise of the fundamental rights that are in conflict, so that they may coexist respectfully. It must be borne in mind that, in cases involving conflicts between fundamental rights, the Constitutional Court does not promote any particular ideology or worldview, because when it acts in that manner it abandons its mission and, consequently, paradoxically ends up trampling the fundamental rights of the person it is required to protect” (see judgment N°2020-001619 of 12:30 hours on 24 de enero de 2020).

In light of this judicial precedent, it is therefore valid for a person who thinks differently to express an objection through a sworn declaration in which that person is not required to set out his or her convictions openly and explicitly because the person wishes to safeguard his or her privacy; nevertheless, this instrument would allow the person to defend that position and demand that it be respected. If, however, the recipient of that document considers that it may contain false or inaccurate statements, it should be recalled that the system also provides for that possibility and that there is an entire legally established procedure through which the truthfulness of the statements may be verified. It is through the appropriate proceedings that it must be proven that the person did not tell the truth and that the corresponding sanctions, including criminal sanctions, may be imposed. The possibility that false statements may be made cannot, however, become an obstacle to the use of this instrument, since, as stated above, the statements are presumed to be true.

It should likewise be stated that this is a simple mechanism because it does not entail cumbersome processing; it is also effective and even discreet, allowing the person to exercise the right to conscientious objection and demand that it be respected while also making it easier to safeguard confidentiality and privacy, particularly in cases involving persons who do not wish to disclose their gender identity, their religious beliefs or agnosticism, their personal convictions, among other matters.

It is therefore considered that the breadth of its personal scope guarantees the inclusion and recognition of the various worldviews, beliefs, and convictions found in a democratic society. Accordingly, it is considered that the mechanism devised by the article under review through the use of a sworn declaration is consistent with that breadth of personal scope without infringing other rights of the person and is therefore not contrary to the Law of the Constitution.

On the third argument raised. The requesting parties indicated that the wording proposed in the bill under review openly and without regulation allows public officials to refuse technical education and training that are mandatory and necessary for the performance of their positions merely by giving notice through a sworn declaration, which, in the requesting parties’ view, could be considered an abusive exercise contrary to the human rights of other citizens. An analysis of the provisions of the bill under review shows that several rights are implicated, both those of public officials and those of citizens who receive services from these public servants. In this regard, it should be noted that public servants are hired on the basis of the constitutional principle of demonstrated suitability (idoneidad comprobada); that is, as a matter of principle, officials’ professional and technical qualifications have already been verified against the requirements for serving in various positions.

It should be recalled that the public-service employment system is founded on two fundamental pillars: demonstrated suitability upon entry and job stability. Accordingly, whether a professional’s failure to attend a course would directly affect that person’s qualifications is a matter that would have to be analyzed in the context of a specific case. It is also relevant to mention that every public servant has a constitutional duty to provide quality service in the performance of his or her position and that, if the person fails to comply with that mandate, he or she could commit a disciplinary offense and consequently incur the corresponding liability, for which all the specific factual circumstances of each case must be assessed. Hence, if a public servant were to engage in abusive or arbitrary conduct in any situation, including one involving conscientious objection, that person could be held directly liable as provided by law in all cases in which no exemption or valid justification from liability applies.

However, all of these are merely hypothetical possibilities or speculation that cannot be determined with certainty at this time and that will be established only when the specific situation is assessed. Therefore, based solely on the provision under review, it cannot be asserted that its current wording violates the Law of the Constitution.

Regarding the fourth allegation raised. The consulting parties indicated that, in order to perform their duties honestly, efficiently, and effectively, public officials necessarily require the technical and administrative knowledge that enables them to discharge those duties. As indicated, selection and appointment processes are based on choosing individuals qualified to hold public office, for which a series of academic, technical, attitudinal, and other requirements are imposed in order to guarantee efficiency in the provision of public services. If a public servant were to cease meeting the requirements initially imposed by the employer—in this case, the State—the necessary proceedings may be initiated to guarantee maximum efficiency and continuity of services, such as the transfer of personnel, reorganization of services, dismissal of the official, etc., all in accordance with the provisions established by law through the appropriate administrative or judicial channels.

Regarding the fifth allegation raised. The consulting parties state that the State has an obligation to train officials so that government operations conform to the standards for the provision of public services that must be guaranteed to citizens. With respect to the training of public officials, it should be noted that Article 1 of Ley 6362, Ley de Capacitación personal Administración Pública, provides:

“Article 1.- The professional education and training of Public Administration personnel in administrative sciences and techniques is hereby declared to be in the public interest, as the most appropriate means of promoting the comprehensive improvement thereof.” Likewise, Article 5 of the same body of law provides:

“Article 5.- Professional education and training constitute both a right and a duty of Public Administration officials. As a right, this means that every public servant who meets the conditions required to participate in professional-development and training programs must be afforded the opportunity to participate in them. As a duty, it entails the obligation to undergo such in-service training and technical-improvement programs as may be required for the proper performance of the position.” There is unquestionably a recognized public interest in educating public servants with a view to promoting the comprehensive improvement of the Public Administration. With regard to the bill under consultation, it should be noted that the objection clause is not inconsistent with the provisions of Ley de Capacitación personal Administración Pública, insofar as it is based on the exercise of the freedoms of conscience and religion by persons who invoke conscientious objection (objeción de conciencia) to mandatory training or education because they consider it contrary to their religious, ethical, or moral convictions.

Regarding the sixth allegation raised. The consulting parties ask: how can a public official determine, before receiving training, that it violates their personal beliefs or convictions? With respect to this argument, it is clear that the proposed legislation does not establish a time restriction for raising conscientious objection, which allows the objection to be raised before or during the training or course. It is clear that such an objection could be raised only in relation to education or training processes that are mandatory; in such a case, when the public servant is informed of the obligation, the name of the program or course, and its contents, the public servant may validly raise the objection insofar as it can be inferred from the title or content that the program or course would conflict with their personal convictions. It is not necessary for the public servant to begin a course before being able to exercise conscientious objection; that would be as inappropriate as requiring a nonbeliever to attend religious classes before being permitted to state whether they are contrary to their convictions.

Regarding the seventh allegation raised. The consulting parties allege that including conscientious objection in this bill could render it unconstitutional insofar as the State would allow officials to disregard the exercise of public powers (potestades públicas) that are mandatory and must be exercised by someone. One of the constitutional obligations of public administrations is the prompt and efficient provision of public services. Accordingly, when conscientious objection is recognized, the Administration is required to make the necessary arrangements so that persons subject to its authority do not suffer an impairment of their fundamental rights because of objecting officials. This was stated in judgment 2020-001619 of 12:30 hours on January 24, 2020, which noted that “…in these circumstances, two fundamental rights are reconciled; however, the first—equality and nondiscrimination—is not deprived of its essential content, since, where a judge raises conscientious objection to performing a marriage ceremony, the Consejo Superior del Poder Judicial must adopt all necessary measures to ensure that the public service of the Administration of Justice is provided to same-sex couples under the same conditions and within the same response times as those afforded to heterosexual persons.” The provision of the bill under consultation does not specifically concern the provision of public services, since its scope is limited to mandatory courses or training.

In that circumstance, it could not be understood as a failure to comply with constitutional mandates and the obligations of the Administration, since it would entail only the exemption of the objecting person, and all necessary measures would have to be adopted to ensure that the public service is provided under the same conditions and within the same service response times by non-objecting public servants.

Regarding the eighth allegation raised. The consulting parties state that the Sala Constitucional has held that, when officials assume a position requiring them to perform certain acts, they are obligated to perform them without a right to conscientious objection, insofar as they have agreed to hold public office in accordance with the law in force at the time of their appointment. Regarding conscientious objection in the workplace, the Sala has ruled on several occasions and has protected public servants’ freedoms of conscience and religion. In judgment N°2015-011897 of 11:41 hours on July 31, 2015, the Sala Constitucional protected an officer of the Fuerza Pública who practices Judaism, stating that “…the respondents were required to seek the least burdensome solution for the protected party so as not to infringe the provisions of numeral 75 of the Constitución Política. Nevertheless, the respondents did not proceed in that manner, because the measure adopted impaired the protected party’s religious freedom and, moreover, was not proportionate to the purpose for which it was adopted, since, as previously stated, allowing the protected party to observe his day of rest would not have entailed a serious impairment of the public interest.

In other words, of two possible solutions, the one most burdensome to the fundamental right was chosen and, consequently, that right was violated; moreover, the measure ordered by the respondent authority (SIC) was neither proportionate nor fair in itself, and therefore there is no alternative but to grant the application for constitutional relief (recurso de amparo).” The Corte Interamericana de Derechos Humanos recognized the right to freedom of conscience and religion, under which persons may retain, 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 vital element in protecting believers’ convictions and way of life (Nombre40 vs. Guatemala 1982, Nombre41 vs. Guatemala 1997, and Nombre42, Jorge Alberto Baro´n Guttlein and Rodolfo Izal Elorz vs. México 1998). It is clear that freedom of conscience and religion is protected under numeral 12 of the Convención Americana, which provides:

Article 12. Freedom of Conscience and Religion.

“1. Everyone has the right to freedom of conscience and religion. This right includes the freedom to retain 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.

(…)” In view of the foregoing, although a public servant who assumes a position requiring the performance of certain acts is clearly obligated to perform them, the fact remains that the performance of those duties does not nullify the public servant’s fundamental or human rights. It would therefore be inadmissible to conclude that, by accepting the position, the public servant ipso facto waives those rights. It is clear that these rights are, by their nature, inalienable because they protect human dignity.

Regarding the ninth allegation raised. Refusal to receive training and education on matters relevant to one’s position could violate, for example, a citizen’s right to receive adequate healthcare, proper service from the bodies responsible for administering justice, or an unbiased and accurate message from educational institutions. As already indicated, conscientious objection must be distinguished from related concepts such as civil disobedience (desobediencia civil), because the objector’s intention is not to hinder societal compliance with a legislative provision—as might occur through a refusal to provide healthcare services or the administration of justice—but to secure respect for the objector’s own conscience. The distinction lies primarily in the purpose of the action. The principal objective of civil disobedience is to modify a legal provision or public policy. Conscientious objection must likewise be distinguished from evasion on grounds of conscience (evasión de conciencia); that distinction concerns the public nature of the act rather than its purpose.

In that regard, conscientious objection is expressed publicly, because the objector must communicate the refusal to their superiors in order to obtain an exemption. By contrast, evasion on grounds of conscience is identified by its essentially secret nature; an example would be a person who departs from established legal doctrines to undertake discreetly an action understood as a moral duty, such as a physician who clandestinely performs an abortion procedure with the intention of helping the mother. As mentioned in the preceding section, when a public servant is granted an exemption, the Administration has a constitutional and legal obligation to make the necessary arrangements so that persons subject to its authority do not suffer an impairment of their fundamental rights because of objecting officials, thereby ensuring the promptness and quality of the services provided. Likewise, it cannot be assumed that, because a public servant lacks particular training, the public servant will issue a biased opinion or fail to provide a service, since this could occur even with the training; nor can the opposite be assumed. Consequently, no violation of Constitutional Law is apparent in this respect either.

Regarding the tenth claim raised. Treating conscientious objection (objeción de conciencia) as a mere formality without significant conditions or restrictions and lacking any technical rigor, solely to generate controversy and polarize Costa Rican society, is contrary to the human rights recognized by the Inter-American Court of Human Rights and conflicts with the State’s obligation to guarantee those rights. As already noted, this Chamber considers the procedure relating to the objection clause (cláusula de objeción) appropriate, insofar as the legislative bill requires sufficient action by the public servant, consisting of reporting the conscientious objection through a sworn statement (declaración jurada). This is consistent with the findings of this Court in judgment N°2012-010456 at 05:27 hours on 01 de agosto de 2012. Contrary to the petitioners’ assertions, the exercise of conscientious objection does not seek to generate controversy or polarize society; rather, it seeks to ensure respect for the public official’s beliefs. Accordingly, no violation of Constitutional Law (Derecho de la Constitución) is found on this point either.

• 4)Conclusion In light of the foregoing, it may be concluded that conscientious objection is understood as an ad extra expression of the freedoms of conscience and religion, manifested as a limit on public authorities so that they do not interfere with personal convictions. Specifically, it refers to the possibility of declining to comply with a legal duty or mandate when it conflicts or is incompatible with the objector’s convictions, without liability being imposed on the objector. Freedom of thought and conscience, in turn, constitute fundamental elements comprising the identity of believers and their conception of life, as they do for atheists, agnostics, skeptics, and indifferent persons. In the bill under review, it is clear that the proposed statutory provision would allow an official to claim conscientious objection so as to obtain an exemption from mandatory training or an educational course deemed contrary to the official’s religious, ethical, and moral convictions.

In this regard, it should be recalled that conscientious objection has been a valid mechanism through which a person may exercise other rights, such as freedom of conscience and freedom of religion (art. 75 of the Constitution), whose exercise, when understood in harmony with the legal system, would be limited by the rights of third parties. Regarding the mechanism proposed in the provision under review for communicating conscientious objection, this Chamber considers it appropriate insofar as the legislative bill requires sufficient action by the public servant, since it requires the servant to report the conscientious objection through a sworn statement. Accordingly, with respect to Article 23, subsection g), of the “FRAMEWORK LAW ON PUBLIC EMPLOYMENT” bill, which is being processed under legislative file N°21.336, the consultation is answered to the effect that the provision presents no constitutional defects, because it adequately guarantees the right to conscientious objection.

• 5)Separate Reasons and Interpretation Separate reasons of Justice Rueda Leal regarding subsection g) of Article 23 of the bill.

Regarding this point, the majority of the Chamber cites a series of rulings in support of its position, not all of which are directly related to conscientious objection. Thus, among the cited precedents in which I served on the Court, I concurred with the majority in judgments n.os 2015-011897 at 11:41 hours on 31 de julio de 2015, 2017-000228 at 09:15 hours on 13 de enero de 2017, and 2017014918 at 09:15 hours on 22 de setiembre de 2017, the last of which I authored, all concerning the protection of freedom of religion and worship. Nevertheless, no right is absolute, and the standard of constitutional review (parámetro de control de constitucionalidad) comprises a series of principles, protected interests, and rights—some rooted in the Constitution and others in international conventions. When conflicts arise among them, it is often necessary to undertake an optimization analysis so that the substance of the competing principles, protected interests, and rights is advanced to the greatest extent possible without violating their essential content.

Guided by that principle, I have issued separate reasons or dissenting opinions (votos salvados) in certain cases where the majority of the Court and the undersigned have disagreed regarding the harmonization of 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 n.º 2012-10456 at 05:27 hours on 01 de agosto de 2012, I set forth the following separate reasons:

“I concur with the majority’s view regarding the technical basis of the ‘Education for Affection and Comprehensive Sexuality’ Curriculum, to be taught in the Third Cycle of General Basic Education, that is, to all seventh-, eighth-, and ninth-year secondary-school students throughout the country. Indeed, it is an educational program addressing aspects of sexuality, the content of which resulted from consultations with various departments, organizations, and specialists knowledgeable in that field, as well as from several field studies. In this regard, pursuant to the provisions of Article 81 of the Political Constitution, it was considered that defining the content of educational programs falls exclusively within the purview of the Consejo Superior de Educación, chaired by the Ministro de Educación Pública, such that the Administration, exercising broad discretion, is empowered to decide that matter and to determine whom it will or will not consult.

With respect to sex education, as the majority indicates, there is also ample legal authority requiring the State to develop educational programs in this field (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 Young People; Article 19.1 of the Convention on the Rights of the Child; and Articles 44, 55 and 58 of the Código de la Niñez y la Adolescencia). However, this authority does not permit disregard of the subsidiary and complementary role played by the Administration in this area, since education regarding human sexuality is primarily the responsibility of the family, as the Consejo Superior de Educación itself recognized in Agreement number 28-01 of 12 de junio de 2001. Undoubtedly, as the majority indicates, parents, in exercising their right to educate their children, play a fundamental role in their children’s sexual education, in accordance with a worldview and values that enjoy broad constitutional protection because this entails the exercise of fundamental rights such as freedom of thought, including religious freedom.

Specifically, sex-education programs are not merely biological in nature; rather, they encompass a set of values embodied in models of sexual conduct to be followed, in which mothers and fathers undoubtedly assume a decisive responsibility that is constitutionally significant. Thus, the technical preparation of sex-education programs falls to the Administration, which has broad discretion to determine how they are to be developed; however, with respect to their implementation, mothers and fathers have the right to express their views as to whether such programs are appropriate for their children’s education in light of the set of values, whether religious or otherwise, and ethical standards embraced by those mothers and fathers. This, too, has ample legal support, as may be inferred from Article 23, subsection 3, of the Universal Declaration of Human Rights; Article 13, subsection 3, of the International Covenant on Economic, Social and Cultural Rights; Article 12, subsection 4), of the American Convention on Human Rights; Articles 2 through 3 of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities; Articles 1 through 3 of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief; and Article 18, subsection 4, of the International Covenant on Civil and Political Rights.

In these circumstances, the powers of the State and the rights of mothers and fathers clearly need to be reconciled; it is therefore reasonable to establish a mechanism for deciding, after hearing the views of the parents, whether a student may be excluded from the ‘Education for Affection and Comprehensive Sexuality’ Curriculum. Nevertheless, parents are not the only ones who must be heard in this matter, since adolescents also have the right to express their views. Indeed, in accordance with the best interests of the child (Interés Superior del Menor), it is not only the views of the State and of mothers and fathers that matter, since disregarding adolescents’ own right to express their opinions would be constitutionally untenable. Indeed, in the case under review (sub examine), a fundamental consideration is that sex-education programs are intended for seventh-, eighth-, and ninth-year students, that is, for minors entering adolescence, the stage of human life that begins with puberty.

In this case, irrespective of any debate concerning the age range encompassed by adolescence, there can be no doubt that seventh-, eighth-, and ninth-year students, who are normally twelve years of age or older, are adolescents, which implies emotional and cognitive development beyond that of childhood. Indeed, adolescence is the period in which a minor enters the adult world, discovers his or her own identity, develops his or her individuality and capacity to view matters in relative terms, and forms his or her worldview. Specifically, adolescents need to act according to personal convictions; although their level of maturity does not equal that of adults and they therefore require guidance and direction, it is no less true that their emotional and cognitive development demands respect for their convictions and values, that is, for the process by which their personalities are formed. These circumstances are not overlooked by the legal doctrine of the best interests of the child, enshrined in Article 3 of the Convention on the Rights of the Child.

This legal instrument is simultaneously a General Principle and a Right. As a principle, it has the legal nature of a governing rule for all other rules within the legal system. This means that consideration for the protection of and attention to minors’ interests must prevail both when courts apply positive law and when the Legislative and Executive Branches create law and develop government policies. From a constitutional perspective, this principle is an indispensable frame of reference when interpreting fundamental rights and assessing possible violations of the constitutional order. As a human right, it is inherent in every minor merely by virtue of being a minor, applies universally and transnationally, and affords an irreversible sphere of protection. The best interests of the child are based on moving beyond the Doctrine of the Irregular Situation (Doctrina de la Situación Irregular), under which a minor was not conceived as a rights-holder but merely as an object of intervention by the justice system.

This transition is achieved through the enshrinement of the Doctrine of Comprehensive Protection (Doctrina de la Protección Integral), which regards minors as subjects of rights rather than merely passive objects of protection. For children and adolescents, this entails recognition of their human condition and abilities, respect for their dignity as human beings in the process of development, and attention to their specific needs. Within the framework of this doctrine, minors acquire the right to be heard and to have their views taken into consideration when decisions are made concerning matters that affect them. Previously, boys and girls were regarded as persons with an abstract, dependent, and static legal interest lacking any defined projection; minors necessarily had to be regarded as persons lacking autonomy whose interests were lesser or inferior to those of adults, considered in ideal or abstract terms.

Accordingly, minors, as compared with adults—principally their respective mothers and fathers—were recognized as having a legal interest in possessing legal personality that was inferior to that of others. By contrast, under the current conception, the protection and advancement of children are understood according to the theory of comprehensive protection, which conceives of minors as subjects of rights. Thus, the interests of minors are no longer a concept detached from their own wishes and imposed by a guardianship state; on the contrary, their definition reflects a diversity of views and factors, among which the standpoint of adults or the State is not conclusive. In other words, children themselves matter in the full realization of their rights. Specifically, Article 14 of the Convention on the Rights of the Child provides as follows:

“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 parents and, where applicable, legal representatives to guide the child in the exercise of that right in a manner consistent with the evolving capacities of the child. 3) Freedom to manifest one’s religion shall be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, morals or health, or the rights and freedoms of others.” It follows from the foregoing that the State must respect both the right of fathers and mothers to guide their sons and daughters and the latter’s right to freedom of thought, conscience, and religion. Now, Article 12(1) of the aforementioned Convention provides that States Parties must guarantee children who are capable of forming their own views the right to express those views freely in all matters affecting them, for which purpose the child’s views must be given due weight in accordance with the child’s age and maturity.

As the Committee on the Rights of the Child correctly notes, this provision refers to the child’s right to express views specifically related to matters affecting the child, as well as the right to participate in decisions and actions influencing the child’s life. Article 12 calls upon Member States to provide the legal framework and mechanisms necessary to facilitate children’s active participation in all actions and decision-making processes affecting their lives, as well as to honor the commitment to give due weight to those views once expressed. On the other hand, under Article 13 of the aforementioned Convention, freedom of expression does not impose this type of commitment or response upon Member States. It does, however, establish an environment of respect, consistent with Article 12 cited supra, in which children may express their views and which also contributes to developing their ability to exercise their right to freedom of expression.

Consistent with the foregoing, Article 5 of the Código de la Niñez Código de la Niñez y la Adolescencia appropriately provides, among other elements, that in the process of determining the Principle, the child must be regarded as a holder of rights and responsibilities, and that application of the Principle cannot be uniform, since it depends on the child’s age, degree of maturity, capacity for discernment, and other personal circumstances. Accordingly, the weight to be given to children’s views is not the same for all children but varies according to their degree of maturity. Specifically, Article 14(b) of the Código de la Niñez y Adolescencia grants children the right to express their views in the spheres of their daily lives, especially within the family, community, and school; this right is not limited merely to expression but also encompasses the right to have their views taken into account in accordance with their emotional development.

Along the same lines, Article 60(b) of that body of law establishes, as an educational principle, respect for students’ rights, particularly their rights to organize, participate, associate, and express opinions, the latter especially with respect to the quality of the education they receive, which clearly includes sexuality education. Based on the foregoing considerations, I agree that there is a need for a mechanism to determine whether a student may be excluded from the “Educación para la afectividad y la sexualidad integral” curriculum; however, I disagree that this mechanism should consider only the views of fathers and mothers, without affording the minor any opportunity to be heard. I certainly recognize that fathers and mothers have the fundamental right to exert an effective influence over matters affecting their children’s moral or religious education, which could affect the approach to and manner of providing sexuality education.

Nevertheless, as I have stated on previous occasions, the best interests of the child (interés superior del niño) are neither parent-centered nor State-centered, but child-centered (see judgments numbers 2012-001806 of 9:05 hours on February 10, 2012, and 2011-012458 of 15:37 hours on September 13, 2011); accordingly, the child also has the right to be heard and to have the child’s views taken into account. In the case of adolescents, the Principle of the Best Interests of the Child (Principio del Interés Superior del Menor) requires the State to give greater weight to the child’s views, given the child’s level of emotional and cognitive development. I therefore consider that minors have the right to express their views as to whether or not they will participate in the “Educación para la afectividad y la sexualidad integral” curriculum, insofar as it includes matters that are not merely biological but encompass a set of values embodied in models of sexual conduct to be followed, which may conflict with an adolescent’s personal beliefs or convictions.

The foregoing constitutes an application of the doctrine known as “Guillick competence.” In the case Nombre45 v West Norfolk and Wisbech Area Health Authority, concerning the possibility of providing contraceptive treatment to minors under 16 years of age even without requiring parental consent, the “House of Lords” stated that “parental rights to control a child do not exist for the benefit of the parents… [but rather] are established for the benefit of the child and are justified only to the extent that they enable the parent to fulfill his duties toward the child.... Parental consent should, of course, normally be sought, but such consent may often not be immediately available. Where the patient, whether a boy or a girl, is capable of understanding what is being proposed and of expressing his or her own wishes, I do not see any good reason for holding that he or she lacks the capacity to express them validly and effectively.” As a minor approaches legal adulthood, parental authority (autoridad parental) diminishes, and it is clear that decisions concerning the medical treatment that an adolescent will undergo may be made by the adolescent: “It must be borne in mind that a child becomes independent as the child grows; as the child grows older, parental authority correspondingly diminishes.

Accordingly, the law recognizes no rule of absolute parental authority over any particular age group. Instead, parental rights are recognized by law only insofar as they are necessary for the child’s protection, and those rights therefore yield to the child’s right to make the child’s own decisions once the child has attained sufficient understanding and intelligence to be capable of making an [informed] decision on the child’s own behalf.” Consequently, in the specific matter of sexuality education, I consider that parental authority diminishes as the minor approaches legal adulthood; this proposition, however, depends on the type of matter affecting the child, since there are plainly other matters in which parental authority is preserved precisely in the child’s interests, such as the consumption of harmful substances or participation in dangerous recreational activities. What matters, therefore, is choosing the measure that most benefits the child, which the adjudicator must assess in the specific case using a child-centered approach.

Moreover, with due respect for the majority, I do not consider it appropriate, in view of the Principle of Judicial Self-Restraint (Principio de Autocontención del Juez Constitucional), for this Chamber to establish, in the degree of detail set forth by the majority, the requirements and conditions under which the proposed mechanism for exclusion from the “Educación para la afectividad y la sexualidad integral” curriculum must operate, since that falls within the authority of the Ministerio de Educación Pública, without precluding subsequent constitutional review. I therefore dismiss the application and clarify that, by virtue of the Principle of the Best Interests of the Child, the views of adolescents, given their level of emotional and cognitive development, must be taken into account in recognition of their right to evaluate the quality of the education they are to receive in accordance with their personal convictions and beliefs.

This applies exclusively to the sexuality-education curriculum at issue insofar as, as I indicated supra, it contains, in addition to merely biological matters, a set of values embodied in models of sexual conduct to be followed that may conflict with an adolescent’s personal beliefs or convictions. The assessment is different with respect to all other academic curricula, since they concern areas of knowledge in which minors must inevitably be educated, areas in which they may plainly express their own views and argue critically, but not to the extent of avoiding attendance at and successful completion of the courses.” Likewise, in judgment no. 2020-001619 of 12:30 hours on January 24, 2020, Justice Esquivel Rodríguez and the undersigned dissented from the majority as follows:

“Por tanto:

By majority vote, the application is granted; consequently, Fernando Cruz Castro, in his capacity as President of the Consejo Superior del Poder Judicial, or whoever holds that office in his stead, is ordered to bring the decision set forth in Article XVII of session no. 60-19 of July 4, 2019, into conformity with the terms of this judgment, in order to guarantee access to, attention from, and expeditious resolution by the public service for the administration of justice under conditions of equality. Justice Rueda Leal and Justice Esquivel Rodríguez dissent and would dismiss the application. The State is ordered to pay the costs, damages, and losses caused by the facts underlying this ruling, which shall be assessed during enforcement of the judgment in the administrative-law proceedings. This judgment shall be served personally upon Fernando Cruz Castro, in his capacity as President of the Consejo Superior del Poder Judicial, or whoever holds that office in his stead.

Fernando Castillo V.

Acting President Paul Rueda L. Nancy Hernández L.

Luis Fdo. Salazar A. Jorge Araya G.

Marta Esquivel R. Alejandro Delgado F.

Dissenting opinion (voto salvado) of Justice Rueda Leal and Justice Esquivel Rodríguez, authored by the former. With our customary respect, we depart from the majority’s position for the following reasons:

1. 1Jurisprudential reference. Given that the majority decision mentions only some international precedents that are highly relevant to the matter under examination (sub examine), we consider that a balanced weighing warrants reproducing some of their arguments. For example, although the judgment refers to case law of the ECtHR concerning 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 (objeción de conciencia), but they do not address the underlying issue in the case at hand (sub iudice): civil marriage between same-sex couples and the right to conscientious objection. The case that does address it is Nombre33 and Others v. the United Kingdom. The majority of this Chamber focused on the dissenting opinions without doing justice to the reasoning underlying the ECtHR’s decision. On that occasion, that Court decided the case of an official responsible for registering births, deaths, and marriages who objected to registering marriages between homosexual persons:

“102. The Court notes that the third applicant is a Christian who holds the orthodox Christian view that marriage is the lifelong union of one man and one woman. She believes that same-sex unions are contrary to the will of Nombre08 and that it would not be right for her to participate in creating an institution equivalent to marriage between a same-sex couple. Because she refused to be designated as an official responsible for registering homosexual unions, disciplinary proceedings were instituted against her, culminating in the loss of her employment.

103. The third applicant did not complain under Article 9 read 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 same-sex civil partnerships was directly motivated by her religious beliefs. The facts in question fell within the scope of Article 9, and Article 14 was applicable.

104. The Court considers that the relevant comparison in this case is with a registrar who had no religious objection to same-sex partnerships. It agrees with the applicant’s contention that the local authority’s requirement that all registrars of births, marriages, and deaths also be designated as registrars of same-sex civil partnerships had a particularly detrimental impact on her because of her religious beliefs. To determine whether the local authority’s decision not to make an exception for the applicant and others in her position amounted to indirect discrimination (discriminación indirecta) in violation of Article 14, the Court must consider whether the decision pursued a legitimate aim (objetivo legítimo) and whether it was proportionate.

105. The Court of Appeal stated in this case that the aim pursued by the local authority was to provide a service that was not only effective in terms of practicality and efficiency, but also complied with the general policy of being “an employer and public authority wholly committed to the promotion of equal opportunities, and required all its employees to act in a manner that did not discriminate against others.” The Court recalls that, in its case law under Article 14, it has held that differences in treatment based on sexual orientation require particularly serious reasons by way of justification (see, for example, Nombre46 v. Austria, no. 40016/98, para. 37, ECHR 2003 IX; Smith and Nombre47, cited above, para. 90; Nombre48 and Nombre49 v. Austria, no. 30141/04, para. 97, ECHR 2010). It has also held that same-sex couples are in a significantly similar position to different-sex couples with regard to their need for legal recognition and protection of their relationship, although practice in this regard continues to evolve throughout Europe, and the Contracting States enjoy a wide margin of appreciation (margen de apreciación) as to how this is achieved within their domestic legal systems (Nombre48 and Nombre49, cited above, paragraphs 99-108). Against this background, 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 proceedings (acción disciplinaria), rather than be designated as a registrar of same-sex civil partnerships, and she ultimately lost her job. Furthermore, 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 civil partnership of same-sex couples, since this requirement was introduced at a later date. On the other hand, however, the local authority’s policy sought to safeguard the rights of others, which are also protected by the Convention. The Court generally grants national authorities a wide margin of appreciation when balancing competing Convention rights (see, for example, Nombre50 v. the United Kingdom, GC, no. 6339/05, para. 77, ECHR 2007 I).

In any event, the Court does not consider that the national authorities—namely, the local authority official who conducted the disciplinary proceedings and the domestic courts that dismissed the applicant’s discrimination claim—exceeded the margin of appreciation available to them. Accordingly, it cannot be said that there has been a violation of Article 14 taken in conjunction with Article 9 in respect of the third applicant.” It should be emphasized that that Court considered it a legitimate aim for the respondent State to pursue a general policy promoting equal opportunities and, for that reason, to require all its employees to act toward service users in a non-discriminatory manner, referring specifically to unequal treatment of same-sex couples. It also found that the measure adopted—the dismissal of the official—fell within the State’s margin of appreciation.

The majority opinion also mentions the decision of the Colombian Constitutional Court, but without examining that Court’s reasons for denying a conscientious objection (objeción de conciencia) in the exercise of judicial functions:

“5.3. Judicial authorities may not invoke conscientious objection as a shield for refusing to process or decide a matter submitted for their consideration Conscientious objection is a right that is broadly guaranteed in the private sphere—when the rights of third parties are not being disregarded. It may not, however, be invoked by a person acting in the capacity of a public authority. A person acting in that capacity may not rely on reasons of conscience to refrain from fulfilling their constitutional and legal duties, because doing so would clearly disregard the provisions of Articles 2 and 6 of the National Constitution. Under the former:

“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 persons in decisions affecting 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 operation of a just order.

The authorities of the Republic are established to protect all persons residing in Colombia in their lives, honor, property, beliefs, and other rights and freedoms, and to ensure compliance with the social duties of the State and private individuals.” The latter, meanwhile, provides:

“Private individuals are answerable to the authorities only for violating the Constitution and the laws. Public servants are answerable for the same reason and for omissions or exceeding their authority in the performance of their duties.” The provisions set forth in the transcribed articles highlight the role performed by public authorities and the substantial differences that arise regarding the meaning and scope of the duties borne by those authorities, as compared with those borne by private individuals, in relation to the exercise of conscientious objection. When a person voluntarily accepts the status of a judicial authority, and even when private individuals undertake commitments involving the exercise of adjudicative functions (actividad jurisdiccional), one of the consequences—if not the most important—is the commitment to ensure strict compliance with the applicable laws and regulations (normatividad vigente).

Indeed, when a judicial officer issues a ruling, that officer is not exercising free will. In such cases, the judge is under an obligation to resolve the matter presented—Article 230 of the Constitution—on the basis of the Constitution and the other rules comprising the applicable legal system. This is because the judge’s function consists precisely of applying the law—understood in its broad sense—and the judge therefore may not, on the basis of religious, political, philosophical, or any other convictions, fail to perform that function. This does not mean that judges, as individuals, cannot exercise their fundamental rights; it means that, in their work administering justice, their convictions do not relieve them of the responsibility arising from their office, and they must administer justice solely and exclusively on the basis of law. That is the attitude ensuring that a State is governed by law rather than by the views of public authorities; in other words, it is what defines government by law rather than by individuals, and it is the means by which the rule of law (Estado de derecho) is built and consolidated.

Furthermore, allowing an objection on grounds of conscience to the application of a particular legal provision means, in the case of judicial authorities, accepting an unjustified denial of justice (denegación injustificada de justicia) and arbitrarily obstructing access to the administration of justice (acceso a la administración de justicia). It must be borne in mind that the exercise of judicial functions places at stake the protection of fundamental constitutional rights, which have themselves resulted from major efforts by historically discriminated groups within society—as women have been in the case before us.

It must likewise be noted that these achievements, crystallized in the form of fundamental rights, are not always readily accepted by every sector of society and are frequently exposed to attacks from those seeking to impose an all-encompassing and exclusionary viewpoint that is incompatible, as already stated, with openness to pluralism and with the need to protect and promote cultural diversity, as provided by Articles 1 and 7 of the National Constitution, read in harmony with other provisions contained in that same Fundamental Law[43].

It may therefore be affirmed here that judicial authorities must set aside considerations of conscience so that, under the rule of law, individuals’ right of access to justice is guaranteed and, through that avenue, their fundamental constitutional rights are duly respected and protected. A judicial officer’s personal reasons of conscience cannot be turned into an obstacle preventing individuals from obtaining prompt and proper justice.

It is therefore clear that anyone who voluntarily decides to become a member of the judicial branch must set aside considerations of conscience when performing their duties and must apply the applicable laws and regulations. The situation is different when such persons act in the private sphere, because in that sphere the National Constitution recognizes their full freedom to act in accordance with the dictates of their conscience and ensures that they may do so without impermissible interference by the State or private individuals.” (Emphasis not in the original. Tutela Judgment (Sentencia de Tutela) n.° 388/09 of 28 de mayo de 2009).

From our perspective, we note that, as of the date this decision was issued, our legal system (ordenamiento jurídico) contains no express recognition of conscientious objection, unlike the legal systems of other jurisdictions (for example, provision 30 of the Spanish Constitution concerning military service). In view of this situation, its application in Costa Rica is derived from more general provisions relating to freedom of conscience, thought, or worship, as analyzed by this Constitutional Court in judgment n.° 2012-10456 at 16:27 on 1 de agosto de 2012 (cited in the majority opinion).

1. 2Application of conscientious objection (objeción de conciencia). On the delineation of the legal and religious orders. In our view, the majority ruling inevitably falls into the error of failing to distinguish between the legal and religious orders, a problem already apparent in the petition initiating the proceedings, but which the Majority failed to notice. The petitioner stated that the rights of the “...Catholic, Evangelical, Muslim, or Jewish judge (or judicial technicians), for whom marriage between persons of the same sex is contrary to their deepest convictions...” are violated. Echoing this claim, the Chamber determined that each such judge “...has a different view of a social and religious institution from that which the prospective spouses may have and, consequently, compelling the judge to perform the marriage ceremony injures the judge’s deepest religious convictions and deprives the judge’s fundamental right of its essential content.” (Emphasis added).

Before addressing the specific case, it is useful to review several instances of conscientious objection based on religion in order to identify general principles through an inductive exercise.

The first example is military service. Some countries provide for military service or compulsory conscription and impose penalties on those who refuse to enlist in the army when required. The person subject to that obligation may practice a pacifist religion that opposes violence or killing, which are common occurrences in war or other types of military action. Military service thus presents the individual with a conflict: on the one hand, if the individual complies and enlists, the individual will disobey religious rules; on the other hand, if the individual acts according to their religious beliefs, the individual will incur a State penalty for failing to perform military service.

A second example is abortion. In countries where it is permitted, a physician in the State social security system might be required to perform it in the exercise of the physician’s public duties. Nevertheless, this legal obligation could conflict with the physician’s religious belief that life must be protected from conception. Once again, the person faces a dilemma: either fulfill the legal duty and incur religious condemnation, or risk a legal penalty for observing religious mandates. The same issue would arise in cases of euthanasia or eugenics, or when the reason for the objection instead derives from ethics.

As may be inferred from the foregoing examples, conscientious objection on religious grounds involves an underlying conflict between two normative orders: the legal and the religious. Because the individual is subjected to a dilemma that forces the individual to choose between religious beliefs and a legal obligation, conscientious objection operates as an escape clause insofar as it releases the person from the legal duty. The same applies when the controversy arises in the ethical sphere.

This type of conflict is evident in the justification provided by the ECtHR for issuing the 2011 decision Nombre19 v. Armenia, which constituted a paradigm shift in its case law, as the Court itself stated, by including conscientious objection within the scope of protection of Article 9 of the European Convention on Human Rights. The Court stated: “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). In other words, if opposition to military service is based on a serious and insurmountable conflict between the obligation to serve in the army and a person’s genuine and deeply held beliefs, including the person’s conception of the good of “life,” then that opposition could qualify for protection under Article 9.

In the case at bar (sub lite), because of the error in the starting premise cited above, the concept of marriage was ge[nerally construed to encompass both civil and religious marriage. We clarify that the appellant expressly stated that ]“What is at issue in this amparo proceeding is not the human right of every person to FREELY choose the sexual preference with which they feel most comfortable. To choose and decide about their sexuality. That right deserves all my respect, which I afford it." (Capitalization in the original). In other words, the issue lies in the solemnization or recognition of civil marriage between persons of the same sex, not in their sexual orientation. The petitioner even specifies the subject of the disagreement: “It is a notorious fact that the judicial population, specifically male and female judges and judicial technicians, overwhelmingly professes the Christian faith, and for many of them, participating in the processing of marriages between persons of the same sex would be something OPENLY CONTRARY TO THE FAITH THEY PROFESS.” (Capitalization in the original).

Unlike the examples discussed above, in the case under consideration (sub iudice), the asserted conscientious objection does not reveal a conflict between two obligations imposed by different normative orders; rather, it actually constitutes opposition to the State having its own normative order to regulate civil matters. The person—in the case at bar, the judge—does not face a dilemma like those discussed above, because these are two different normative spheres, each of which separately assigns different consequences to the same event: a homosexual couple enters into marriage. In that situation, the normative response pertaining to the religious sphere of the petitioner in this matter is to reject that claim and deny the marriage because it does not meet the requirements for a religious marriage (namely, that it be between a man and a woman). Faced with the same factual situation, the State may recognize such a marriage if it meets the other legal requirements, since the State has the authority to determine the legal requirements for civil marriage.

In other words, when a homosexual couple seeks to marry, the religious rule would instruct the competent religious authority, “Do not solemnize a religious marriage, because it does not meet the requirements”; whereas civil law would instruct the civil authority, “Solemnize the civil marriage because it meets the legal requirements.” Both responses coexist without conflict: a civil marriage without religious recognition.

Put more simply, 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 because of the rule of law in a civil-law system, as is currently characteristic of the Democratic State Governed by the Rule of Law.

These are clearly two entirely different institutions. For this reason, religious marriage (without civil recognition) cannot demand treatment equal to that of civil marriage. A religious marriage cannot resort to the courts to litigate marital property, inheritance rights, the establishment of a family estate, support rights, etc. Such effects can arise only if the State decides to grant them, not by decision of the religious authority, but because the State regulates them accordingly. Conversely, a civil marriage could not demand any form of religious recognition or effect: it could not be regarded as a sacrament, impose religious vows, claim a particular standing in the eyes of a given church, etc.

This confusion between civil and religious marriage is apparent because—as has occurred in many countries—religious opposition subsides when the civil institution is given a name other than “marriage,” for example, “civil union,” “civil partnership,” etc.

The failure to distinguish between these two normative orders and these two different institutions is apparent in the majority judgment when it states, wholly inconsistently, that conscientious objection could not arise in the case of a divorce: “Legal scholarship has maintained that conscientious objection is not available to a criminal judge who claims that the judge’s conscience does not permit the imposition of punishment. The same may be said of a family judge who objects to divorce. In all these cases—moreover, it must be borne in mind that when the judge accepted the position, the judge voluntarily assumed all its duties—we would consequently be violating an elementary rule of good faith if the judge later sought to exercise the right to conscientious objection.” (Emphasis added). Do all religions accept divorce? The answer is clearly no, or they accept it in a far more restrictive manner than civil law does. Why, then, is the exercise of conscientious objection to divorce precluded? Quite simply, because the divorce is civil, not religious. Civil divorce has no effects in the religious sphere, just as civil marriage has none.

It could be argued, as the majority does, that the person appointed as a judge voluntarily accepted the duty to adjudicate divorces, an institution already recognized in our legal system. However, what will happen when a new ground for divorce arises, such as incompatibility of temperament (legislative expediente n.° 20.406)? Under the majority’s position, judges will be able to claim that this ground did not exist when they took office and refuse to apply it on the basis of conscientious objection. Under our position, divorce affects only the civil marriage and therefore has no consequences in the religious sphere (if a religious marriage exists concurrently, that union would remain intact).

Another example is the recent amendment to Article 35 of the Family Code. Originally, that provision established that the “…husband is primarily responsible for covering the expenses required by the family...”. Currently, that obligation falls on both spouses. Could a judge refuse to apply that provision because the judge’s religion (or ethical belief) is based on patriarchy and the man’s duty to provide for the household? That possibility must be rejected because it is a consequence of civil marriage.

We note that this discussion refers to conscientious objection with a marked emphasis on the religious aspect. This responds to the grievance raised by the claimant. Nevertheless, it is clear that the same analysis applies when conscientious objection is linked to an ethical reason.

Lastly, it should be clarified that, in the practical-concordance analysis involving conscientious objection, it is essential to consider the type of competing constitutional interest at stake. In this regard, when “life” is involved, a relevant quality of this constitutional interest clearly carries particular weight: it is a condition sine qua non for the enjoyment of fundamental rights by the human being considered individually. That characteristic is not present in the case under consideration, where the balancing concerns only religious freedom in relation to other rights, such as equality and access to justice.

1. 3With 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 (objeción de conciencia) regarding an issue that, from a religious standpoint, is of the utmost importance does not mean that the judge is discriminating against a particular person; rather, it constitutes an objective and reasonable justification. What occurs is that the judge has a different view of a social and religious institution from that which the prospective spouses may hold and, consequently, compelling the judge to perform the marriage ceremony violates the judge’s deepest religious convictions and deprives the judge’s fundamental right of its essential content. Second, it is a public and well-known fact that, in a country where there are several judges performing notarial functions, the Administration of Justice may readily accept a conscientious objection, which, as stated supra, must satisfy all the requirements for the exercise of this fundamental right, and assign judges who do not object to perform marriages between persons of the same sex.

Indeed, in a State that guarantees all persons’ fundamental rights, it may establish a system that ensures that judges willing to provide the service to persons of the same sex are always available, under conditions equal to those afforded to other users of the service. Viewed in this light, there is no act of discrimination, since there will always be male and female judges who will perform the marriage ceremony, thereby satisfying the rights of the prospective spouses.” According to the majority, there would be no discrimination because a civil marriage between persons of the same sex could be performed by other judges who do not object, or because the State could design a “system” to ensure that judges were available to provide that service for purposes of such marriages.

On 1o de diciembre de 1955, Nombre51 refused to sit in the part of the bus reserved for “persons of color.” She was not being denied transportation service; indeed, there was a “special section” for her. Yet today it would be untenable to claim that such differential treatment did not constitute an abhorrent act of discrimination.

Under the majority’s solution, same-sex couples will have a “special system” through which their marriages will be handled. Thus, according to the majority’s reasoning, they would not be denied the services of the courts of justice; rather, they would have a system specifically intended for them. Does this not constitute a discriminatory act that violates the constitutional order and is promoted, no less, by the very Court charged with combating unequal treatment?

The problem with the majority’s reasoning is that it fails to recognize that conscientious objection may not be asserted when it results in a serious violation of human dignity—that is, of its essential core, or Kernbereich—here, through discrimination contrary to the constitutional and conventional order.

The situation is not improved by attempting a purported practical concordance, as the majority proposes. It would still have been discrimination if the bus driver had refused to transport Nombre51 by invoking the driver’s firmest beliefs; nor would it cease to be discrimination if the State had established a bus system specifically intended for persons of African descent in order to “protect” the beliefs of “objecting” drivers.

In the hypothetical case of a religion that, on the basis of its most deeply rooted creed, rejected unions between persons of different ethnicities—the wrongly termed interracial marriage—or between persons of different religions, etc., should a judge’s conscientious objection be accepted? Absolutely not. Such an objection must be categorically rejected because it is justified through an infringement of human dignity, regardless of when the official was appointed to the position.

This limitation on conscientious objection also has a basis in legislation and case law.

First, the Political Constitution guarantees the free exercise of other forms of worship different from the Catholic religion, provided that they “...are not contrary to universal morality or good customs.” The American Convention on Human Rights follows the same approach by safeguarding freedom of conscience and religion subject to the following limitation: “3. Freedom to manifest one’s religion and beliefs is 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 no different in Europe. Article 9, relied upon by the TEDH to recognize conscientious objection, provides: “2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and constitute measures 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 case under review (sub examine), if it were assumed that a conscientious objection based on a genuine conflict exists—which we reject, as explained in the preceding section—then such an objection would be limited by public morality and the rights of others.

As regards case law, this Court has stated numerous times that a person may not be discriminated against on the basis of sexual orientation. In cases, for example, where service or admission to a public establishment such as a bar or restaurant is denied for that reason, the Chamber has categorically rejected such a possibility:

“VI.—In judgment No. 2014-012703, issued at 11:51 hrs. on 1o de agosto de dos mil 2014, this Court held, insofar as relevant, as follows:

“...IV—DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION. Traditionally, persons comprising the LGTB population—an acronym collectively referring to lesbians, gay men, bisexuals, and transgender persons—have been subjected to discriminatory acts, whether through action or omission, by public authorities as well as third parties. This has occurred even though, 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 personal identity, the protection of which has increasingly been recognized through the interpretation of provisions contained in various international instruments forming part of the constitutional corpus (bloque de constitucionalidad), which prohibit discrimination based on sex. By way of example, Article 26 of the International Covenant on Civil and Political Rights 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 all discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or other social status.’ Likewise, the American Convention on Human Rights, Pact of San José, Costa Rica, provides that ‘all persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law’ (Article 24). Nevertheless, within the United Nations universal protection system, there is a specific declaration known as the Yogyakarta Principles, whose full title is The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, presented in 2007 to the UN Human Rights Council in Geneva. The document contains a series of principles intended to establish basic standards to guarantee the protection of the fundamental rights of persons comprising the LGBT population.

Principle 2 establishes the rights to equality and nondiscrimination, under which ‘all persons are entitled to the enjoyment of all human rights, without discrimination on the basis of sexual orientation or gender identity. The law shall prohibit all discrimination and guarantee to all persons equal and effective protection against any discrimination.’ Such a proclamation highlights the need to protect freedom of sexual orientation and gender identity in light of the human-rights violations, marginalization, stigmatization, and prejudice suffered by this population. In its role of protecting fundamental rights, this Court has protected individuals’ sexual orientation as part of respect for human dignity and the principle of equality. Thus, in judgment No. 2007-018660, issued at 11:17 horas de 21 de diciembre de 2007, and in subsequent judgments, this Court recognized ‘(...) respect for the dignity of every human being as a fundamental legal principle contained in the Political Constitution of Costa Rica and, consequently, the absolute prohibition against engaging in any type of discrimination contrary to that dignity.

In general terms, discrimination means drawing distinctions to the detriment of the rights and dignity of a human being or a group of human beings; in this case, homosexual persons. On the basis of the foregoing, it may validly be stated that discrimination on the basis of sexual orientation is contrary to the concept of dignity duly enshrined in the Political Constitution and in the International Human Rights Treaties signed by our country.’ Likewise, in judgment No. 2011-13800, issued at 15:00 horas de 12 de octubre de 2011, which granted the constitutional challenge (acción de inconstitucionalidad) brought against Article 66 of the Prison Technical Regulations (Reglamento Técnico Penitenciario), Executive Decree No. 33876-J, which restricted intimate visits (visita íntima) for persons deprived of liberty to contact with a person of a sex different from their own, this Chamber held: ‘(...) human dignity may not be violated through legal rules that fail to respect every person’s inalienable right to diversity, as occurs with the provision challenged in this proceeding, which establishes a prohibition contrary to human dignity and lacking any objective justification, because it is based on sexual-orientation criteria and unlawfully discriminates against those whose preferences differ from those of the majority, whose rights or interests are in no way affected by the free exercise of the former group’s freedom.

Considering that the provision is intended to permit contact with the outside world for the purpose of allowing inmates to exercise their sexual freedom, the difference in treatment is unjustified, since persons deprived of liberty whose sexual orientation is toward persons of the same sex are in the same factual situation as persons deprived of liberty with a heterosexual orientation. This situation 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). Although the circumstances of the LGTB population have become more visible within this legal context, social and cultural resistance persists, extending beyond private spheres and spaces and taking shape in administrative actions and even in legal rules that restrict these persons’ rights. Accordingly, sexual diversity and its concrete manifestations in social life require legal recognition that cannot be avoided in a State whose fundamental pillar is respect for human dignity (...).”

VII.Through its line of precedent, this Chamber has recognized respect for the dignity of every human being as a fundamental legal principle enshrined in the Political Constitution of Costa Rica and, consequently, the absolute prohibition against engaging in any form of discrimination contrary to that dignity. In general terms, to discriminate is to draw distinctions to the detriment of the rights and dignity of a human being or a group of human beings—in this case, homosexual persons. Based on the foregoing, it may validly be asserted that discrimination on grounds of sexual orientation is contrary to the concept of dignity duly enshrined in the Political Constitution and in the International Human Rights Treaties signed by our country. By way of example, Article 26 of the International Covenant on Civil and Political Rights prohibits discrimination on grounds of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other social status”; from which it also follows that acts infringing upon individuals’ right to equality and human dignity on account of their sexual orientation are impermissible, since they have the right to enter any commercial establishment and receive equal treatment, without discrimination on grounds of their sexual preference (see Judgment No. 2007-018660, issued at 11:17 a.m. on December 21, 2007).’” (Judgment No. 2018-10289, issued at 2:36 p.m. on June 26, 2018. Emphasis added).

In this judgment, the Chamber expressly recognized that discrimination on grounds of sexual orientation constituted a violation of the legal system and an act contrary to human dignity.

Imagine the case of a family restaurant whose owner objects to civil marriage between homosexual persons on the basis of religious beliefs. Under the majority’s solution, it would be valid for the married couple to go to another restaurant providing the same service or for a “special section” to be installed for such married couples within the establishment in question, where they would be served by persons other than the owner, since, as follows from the majority’s reasoning, this would “protect” both the “rights” of the establishment’s owner and those of the same-sex married couple. This abhorrent situation demonstrates that the underlying issue in this case is discrimination and an injury to human dignity, since conscientious objection (objeción de conciencia) is imposed in direct contravention not only of the rights and freedoms of third parties but also of public morals, because such discriminatory treatment will always be incompatible with the latter.

It bears mentioning that sexual orientation is a protected category under the Pact of San José, as the Inter-American Court of Human Rights has held in several decisions (Atala Riffo y niñas vs. Chile, Nombre52 vs. Colombia and Advisory Opinion OC-24/17).

Let us recall that many population groups have had their rights recognized through the struggles waged by preceding generations and that such recognition has not been free of opposition. Women; persons of African descent or Indigenous persons; persons born outside marriage; persons with disabilities; older adults; and homosexual persons, including those who profess a particular minority religion, to mention a few examples, are sectors of the population that have historically and culturally been marginalized to varying degrees. Marriage between persons of the same sex is a step forward for this type of minority, which deserves and must be protected by this Court.

For the reasons stated, we dissent and deny the appeal.

Paul Rueda L. Marta Esquivel R.” Now, regarding the subsection challenged in the sub lite, I once again express views differing from those of the majority. First, I maintain that the Court’s reasoning is mistaken. In summary, the majority opinion considers an affidavit (declaración jurada) an appropriate means of exercising conscientious objection because, should the person make a false statement, that person could be subject to the penalties established in the legal system, including criminal penalties. In my view, this approach contains an error regarding the content of the affidavit. In it, the declarant may attest to facts, which may be true or false. However, the declarant cannot attest to a legal interpretation or legal effects. That is, a person seeking to exercise conscientious objection may state that their deepest convictions concern one subject or another, but may not impose upon the Administration, as the object of the affidavit, the legal consequence of that statement; in this case, that would entail interpreting the person’s conviction as conflicting with a legal obligation and, therefore, concluding that the latter is unenforceable against that person.

By way of example, a taxpayer may declare under oath that their annual earnings do not exceed a certain amount; however, the taxpayer cannot declare under oath what the legal consequence of that fact is—for example, whether the Administration must include the taxpayer in one tax regime or another. In the sub iudice, I consider the situation analogous. The declarant may make a sworn statement regarding their convictions and, on that basis, request that the Administration exempt them from a legal obligation. Nevertheless, the interpretation and assignment of the legal consequence—whether or not to accept the conscientious objection—will be a decision resting solely with the Administration. Specifically, in the sub examine, I consider that the challenged subsection serves that function; that is, it allows the person subject to the Administration (administrado) to state their personal beliefs or convictions so that the Administration may decide the appropriate legal consequence.

In other words, as may readily be inferred from the literal wording of the provision under review, this provision simply authorizes public servants to inform the Administration, by means of an affidavit, of their right to conscientious objection for purposes of mandatory education and training programs; however, the right to provide such notice does not correspondingly entail an automatic obligation on the Administration’s part to grant the applicant’s request, since, to do so, it must harmonize and optimize the principles, legally protected interests, and rights at stake, so that the protective substance of each is strengthened in the specific matter, without stripping the essential core (Kernbereich) of any of them of its content, as would occur if openly discriminatory treatment or treatment contrary to human dignity were facilitated, as I explain in my dissenting opinion in Judgment No. 2020-001619, in which case the possibility of eventual constitutional review would always remain open, for example through an amparo proceeding (vía del amparo).

Lastly, I reiterate that I dissented regarding the admissibility of the consultation submitted in Case No. 21-012118-0007-CO. Accordingly, I refrain from ruling on the objections raised therein.

Dissenting opinion of Justice Hernández López regarding Article 23(g) of the bill under review.

As stated in the operative portion (parte dispositiva) of the judgment (item 54), the decision concerning Article 23(g) of the bill under review was adopted by majority rather than unanimously because, on this point, as indicated therein, I have considered the provision contrary to the Constitution and that it would comply with the Constitution only if interpreted to include the specified limitations; that is, “provided it is interpreted to mean that the affidavit referred to in the provision must be subject to a verification process ensuring that the public official is not evading obligations inherent to their special relationship of subjection (relación de sujeción especial) that would render ineffective or devoid of content the constitutional and statutory safeguards, boundaries, and limitations of conscientious objection, including safety, public order, health, and respect for the fundamental rights of individuals, particularly human dignity and non-discrimination.” I must also clarify that two optional legislative consultations (consultas legislativas facultativas) were submitted concerning conscientious objection: first, the one in Case No. 21-011713, and then the one in Case No. 21-012118.

The latter consultation was dismissed on procedural grounds by two fellow Justices (Castillo Víquez and Rueda Leal), but the first was not; in the latter, they did address the merits, joining the majority’s view that the provision under review contained no constitutional defects, a view from which I dissent, as I expressly placed on the record. Having clarified the foregoing, I will explain the basis for my reasoning, which recognizes the existence of a fundamental right to conscientious objection that may be exercised with respect to the training of public officials—which is what the provision concerns—but subject to express limits that must guarantee, at a minimum, safety (Costa Rica has no army as a permanent institution, so I will not address the exception permitting objection in this regard), public order, health, and respect for individuals’ fundamental rights, particularly human dignity and non-discrimination.

These limits must be verified in each specific case, and the law therefore cannot leave open the possibility of objecting to training merely by submitting an affidavit, without further proceedings. In that regard, I consider that the manner in which this matter was regulated in the bill under review (Article 23(g)) is inconsistent with the law of the Constitution (derecho de la Constitución). Because conscientious objection is a fundamental right, it was inappropriate to declare the provision under review unconstitutional, since the first part of that provision merely recognizes the existence of that fundamental right as such. Consequently, the option that appeared most viable to me was a conforming interpretation (interpretación conforme), because, as explained below, leaving the second part of the provision open-ended, without regulating or verifying the conditions governing its exercise, does violate the Constitution. I will now explain my reasoning.

Relationship between democracy and human rights.

Costa Rica is a constitutional democracy; consequently, one of its primary purposes is to guarantee the protection and promotion of a series of fundamental rights and freedoms as part of its ideological model. It is therefore widely recognized that democracy and human rights have a symbiotic relationship, so much so that democracy cannot be defined without human rights, and human rights can be duly protected only within the framework of a democratic state governed by the rule of law (Estado democrático de derecho). It is beyond dispute that each depends on the other and that no constitutional state exists without fundamental rights.

Human rights confer on each of the country’s inhabitants the legal and moral standing to claim conditions inherent in their status as human beings, universally recognized as essential to the exercise of freedoms and to a dignified life. In this regard, one of the objectives of the democratic state is to promote the comprehensive development of the individuals who comprise it, for which respect for and protection of a series of legally protected interests (bienes jurídicos), without which human equality and dignity cannot be guaranteed, is essential.

Human rights encompass a range of rights—individual or entitlement-based rights (derechos prestacionales), depending on the classification used—and are characterized by their interdependence; that is, they are interrelated and, in turn, indivisible, because the recognition and development of each right can be guaranteed only through the recognition of all of them.

In that regard, the protection of fundamental rights is the raison d’être of the democratic State, and its legitimacy is tied to the extent to which it fulfills or safeguards them. Fundamental rights and freedoms, in turn, serve to legitimize democracy; without their effective fulfillment, democracy is not truly democracy, but merely formal (“light democracy”), lacking its substantive elements. Accordingly, the history of constitutionalism reflects a consensus that the State justifies its existence and is legitimate only insofar as human rights are duly safeguarded.

The dual dimension of human rights and the obligations of the State.

In a social State governed by the rule of law (Estado social de derecho), human rights impose specific obligations and have a dual dimension (subjective and objective). On the one hand, they impose duties of protection (not to violate rights), and on the other, they impose mandates for action—affirmative obligations that become mandates for the State, entailing an obligation to undertake specific State action to secure fundamental rights.

Within this dual dimension, human rights become supreme values governing the entire legal system and guiding all State activity. This has effects on public authorities; that is, it is manifested in the Legislature’s substantive formulation of legal rules, in the Executive’s actions within the scope of its functions, and in judges’ application and interpretation of legal rules (essential, for example, in their role of interpreting and balancing rights).

Thus, for example, the Spanish Constitutional Court has held that the obligation of all public authorities to submit to the Constitution (lex superior) entails not only the State’s negative obligation not to infringe the individual or institutional sphere protected by fundamental rights, but also its positive obligation to contribute to the effectiveness of those rights and the values they represent, even when no subjective claim has been asserted by a citizen. In this regard, it has stated:

“As a consequence of this dual nature of fundamental rights, public authorities are likewise subject to a dual obligation: in their traditional subjective dimension, such rights impose upon them the negative obligation not to infringe the sphere of freedom delimited by those rights; and in their objective legal dimension, they generally require public authorities, within the scope of their respective functions, to help ensure that the implementation and enjoyment of fundamental rights are real and effective, regardless of the area of the legal system in which those rights are implicated. (see Judgment 53/1985) For its part, the German Constitutional Court recognizes that the objective nature of fundamental rights proceeds from the understanding that these rights are intended to protect an individual’s sphere of freedom against State interference, but that they also perform an axiological function of universal validity because they radiate in every direction and throughout all fields of law.

They are also rights of defense against negative State action affecting citizens, which, as Nombre53 has stated, confer three types of entitlements upon the rights-holder: a) The right to have the State refrain from preventing or obstructing certain actions by the rights-holder; b) The right to have the State refrain from affecting the rights-holder’s established situations or property; and c) The right to have the State refrain from eliminating the rights-holder’s established legal positions. Fundamental rights are also norms of principle that, together with their traditional conception as rights of defense, form a system of values permeating every field of the legal system (see judgment of the German Constitutional Court, BVerfG 6, 55 (72), and particularly the Lüth ruling of 15 de enero de 1958, judgment BVerfG 7, 98 (204).

In other words, fundamental rights today are not limited to operating as subjective rights held by the rights-holder and enforceable against the obligated party, whether a public authority or a private party; they also operate as objective norms of principle that serve as supreme guiding principles binding all branches of the State and constitute genuine mandates for action and duties of protection incumbent upon the State. As we shall see below, this directly affects the State’s obligation to provide human-rights training and education as part of its objective obligations, particularly for public officials.

3. Conscientious objection (objeción de conciencia) as a fundamental right.

Within the range of fundamental rights recognized at the constitutional or treaty level, there is no doubt that conscientious objection exists as a human right, a matter on which there is broad consensus, although that consensus disappears when it comes to its nature or scope in legal scholarship and case law. Today, conscientious objection is recognized in the principal human-rights covenants and declarations, in some cases as a right encompassed within freedom of thought, conscience, or religion. By way of example, Article 18 of the Universal Declaration of Human Rights states: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change one’s religion or belief, as well as freedom, either alone or in community with others and in public or private, to manifest one’s religion or belief through teaching, practice, worship and observance.” In very similar terms, this basic provision is reproduced in Article 18 of the International Covenant on Civil and Political Rights; Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; and Articles 6, paragraph 3(b), and 12 of the American Convention on Human Rights. The African Charter on Human and Peoples’ Rights also generally recognizes freedom of conscience and religion in Article 8.

Of course, like every fundamental right, it is not unlimited and must, as the Spanish Constitutional Court has stated (SSTC 11/81, 2/82, 110/84 or 120/90, among others), be subject to limits arising from the fundamental rights established by the Constitution itself, which require regulation of its exercise.

There is no consensus in either legal scholarship or case law regarding its nature (for example, whether it is an autonomous right) or its content or scope, since different legal systems treat it differently, although it has been widely accepted in cases involving compulsory military service or healthcare personnel in various contexts.

As is well known, conscientious objection entails the right not to be compelled to act—in fulfillment of a legal duty—against the most deeply held convictions of one’s inner self or conscience. It may therefore be identified as a corollary of freedom of conscience or religion, and the treaty provisions cited above are sufficient to establish its legal recognition at the international level. Under our Political Constitution, the Constitutional Chamber (Sala Constitucional) has derived it from freedom of religion and conscience, concerning whose scope and limitations it has issued case law in certain specific cases. Examples include judgments 3173-93 2004-08763, 2014-4575 and, in educational matters, judgments 2002-08557 2012-10456 and, more recently, judgment 2020-001619.

The Chamber has also recognized that this right is subject to limits and restrictions for healthcare personnel who refuse vaccination against COVID-19, acknowledging that public health is one of the principal limits on this right. Thus, for example, judgment 2020-01619 states that conscientious objection is not an absolute right:

“(…) one must bear in mind a fundamental premise and a historical constant: 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 is subject to limits and restrictions, and in cases in which it conflicts with another fundamental right, recourse must be had to the principle of practical concordance and, accordingly, the conflicting rights must be balanced (…)” (emphasis not in the original).

And in Judgment No. 2020-0019433, it adds:

“(…) this Chamber has recognized, first, the importance of vaccination as part of the essential healthcare that the Costa Rican State must guarantee in order to protect everyone’s fundamental right to health and, second, that safeguarding public health and preventing disease constitute a constitutionally legitimate purpose that may validly justify mandatory vaccination (…)” (emphasis not in the original).

The Chamber has stated that conscientious objection may not be invoked to avoid this obligation; the only permissible basis is a medical contraindication that must be reviewed and validated by the institution’s professionals through the procedures established in its internal regulations.

For its part, the Inter-American Human Rights System (SIDH) has thus far issued few decisions on this matter, primarily in connection with military service (see, by way of example: Sahli Vera v. Chile (2005), Nombre43 v. Bolivia (2005), Nombre44 v. Ecuador 11 (2006), and Nombre54 v. Colombia 12 (2010), all before the Inter-American Commission).

However, the November 2010 IACHR report “Access to Information on Reproductive Health from a Human Rights Perspective” recognized that healthcare professionals are entitled to respect for their freedom of conscience and adopted an approach aimed at harmonizing healthcare personnel’s right to conscientious objection with service users’ right to receive services (referral procedures must be established, as must the corresponding penalties for failure to fulfill this obligation) in the event of a potential conflict between that freedom and the rights of third parties (patients). As relevant here, it stated:

95. Conscientious objection is a highly relevant issue when addressing access to information concerning reproductive health. Many healthcare professionals have their own convictions regarding the use of family-planning methods, emergency oral contraception, sterilization, and legal abortion, and prefer not to provide those services. […] a healthcare professional’s right to conscientious objection is a freedom. However, that freedom could conflict with the freedom of patients. Consequently, the balance between the rights of healthcare professionals and those of patients is maintained through referral. In other words, a healthcare professional may refuse to treat a patient but must transfer the patient, without objection, to another healthcare professional who can provide what the patient has requested [...].

99. In this regard, the IACHR considers that States must ensure that women are not prevented from accessing reproductive-health information and services and that, when conscientious objectors are present in the healthcare field, States must establish referral procedures, as well as the corresponding penalties for failure to fulfill this obligation. (emphasis not in the original) In the text of this report, the IACHR expressly recognizes conscientious objection (objeción de conciencia) as a concrete manifestation of individual freedom and, in turn, in view of the potential conflict between that freedom and the rights of third parties (patients), it points to the same solution adopted by the ECtHR regarding this issue in the case of Nombre55. and Nombre56. v. Poland (no. 57375/08), of 30 de octubre de 2012, namely, harmonizing or reconciling the rights of the objector and the patient, stating:

“106. Insofar as the Government refers in its arguments to the right of doctors to refuse to provide certain services on grounds of conscience, based on Article 9 of the Convention, the Court reiterates that the word ‘practice’ used in Article 9.1 does not encompass each and every act or form of conduct motivated or inspired by a religion or belief (see, among many other authorities, Nombre24 and Nombre25 v. France (dec.), no. 49853/99, ECHR 2001-X). In the Court’s view, States are required to organize their health-service systems in such a way as to ensure that the effective exercise of freedom of conscience by healthcare professionals in a professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation (see R.R. v. Poland, cited above, no. 27617/04, § 206).

107. In connection with the foregoing, the Court notes that Polish law has recognized the need to ensure that doctors are not required to perform services to which they object and, to that end, provides for a mechanism under which such a refusal may be expressed. This mechanism also includes elements that make it possible to reconcile the rights of conscientious objectors with the patient’s interests, by requiring such a refusal to be made in writing and included in the patient’s medical record and, above all, by imposing on the doctor an obligation to refer the patient to another competent physician who will perform the same service. However, it has not been shown that these procedural requirements were met in the present case or that the applicable legislation governing the practice of the medical professions was duly observed.” (Translation by the author. Emphasis not in the original).

Within the European system, the case law of the European Court of Human Rights also includes cases—which, it must be said, are not particularly consistent—but they likewise relate primarily to military service and issues concerning health or the use of religious symbols. (For examples concerning military service, see: Nombre57 v. Greece, U¨lke v. Turkey (2006), Nombre19 v. Armenia (2011, the case from which onward it treats conscientious objection to compulsory military service as an autonomous right), Erc¸ep v. Turkey (2011), Nombre58 v. Turkey (2012), Nombre59 v. Turkey (2012), Feti Demitras v. Turkey (2012), and Nombre23 v. Turkey (2014). Regarding health-related matters (pharmacists), see: Nombre24 and Nombre25 v. France (2001). Regarding the use of religious symbols, see: Nombre60 v. Switzerland, Nombre61 v. Turkey, Nombre62 v. France, and Nombre32 v. France.

Legal obligations of persons responsible for providing public services.

From the examples cited above, we see how a significant body of legal scholarship and case law recognizes conscientious objection in qualified cases, but subject to limits that do not exempt individuals from complying with their duties under the law and from the duty to exercise this right in proper balance with the exercise of third-party rights.

In this regard, conscientious objection is a right that may be exercised only in very specific or exceptional cases because, by its nature, it entails the possibility of being excused from compliance with legal duties; if its indiscriminate exercise were permitted, it would negate the very rule of law (estado de derecho). The Spanish Constitutional Court itself opposed its general application in Judgment 161/1987, stating:

“The right to be exempted from compliance with constitutional or legal duties because such compliance is contrary to one’s own convictions is not recognized, nor is it conceivable that it would be recognized in our law or in any legal system, since that would negate the very idea of the State.” In the case of public service (servicio público), the possibility of being excepted from compliance with legal duties on grounds of conscientious objection is and must be even more restricted or exceptional than in the case of private individuals, since public service must be performed in absolute compliance with the legal system (the principle of legality (principio de legalidad)—including, of course, compliance with and respect for human rights) and with the governing principles of objectivity or neutrality, efficiency, and continuity. In other words, the distinction between private individuals and public servants is important when assessing the conditions governing the exercise of this right, because the same circumstances cannot be applied or extrapolated when the objector is a private individual as when the objector is a public official, among other reasons because the latter is subject to a special relationship of subordination (relación de sujeción especial) that entails obedience to the legal system in force, and the governing principles of public service require it to be neutral and equal, that is, free of discrimination, efficient, continuous, and, of course, subject to the principle of legality (see, among others, Judgment 2011-6221).

As I noted in section 2 of this opinion, a constitutional state under the rule of law (Estado Constitucional de Derecho), such as Costa Rica, is also required to promote human rights through positive actions that create the conditions for their exercise and observance. This means that, in addition to ensuring the provision of public services in accordance with the aforementioned principles of equality, non-discrimination, efficiency, and effectiveness, it is required to promote education regarding and compliance with human rights both generally and, in particular, among its public officials, who are bound by the governing body of law, that is, to comply with the fundamental rights guaranteed by the Constitución Política and the international human rights treaties in force in the Republic. This educational work is particularly important when it concerns the protection of persons in situations of vulnerability or cases of structurally entrenched discrimination or inequality, for example, in which changing the culture through education is essential to the effective enforcement of the legal rules in force.

This is why Nombre63’s statement that “no one is born hating another person because of the color of their skin, their origin, or their religion” is so relevant. Hatred and violence are forms of behavior that can be unlearned and changed by promoting positive values in society. Education is one of the principal tools for eradicating inequality and hatred; it is the path toward fulfilling the maxim expressed in Article 1 of the Universal Declaration of Human Rights, which establishes the equality and dignity of all human beings as humanity’s highest aspirations:

“All human beings are born free and equal in dignity and rights and, endowed as they are with reason and conscience, should act towards one another in a spirit of brotherhood.” Thus, when asked whether a public servant may invoke conscientious objection to be excused from the obligation to receive training on the subjects necessary to improve public service (the principles of efficiency, objectivity-neutrality, continuity, and legality) or concerning the State’s obligations to promote and respect human rights, the answer is no. A public servant may do so only under very exceptional, regulated circumstances that do not violate the conditions described above, for which purpose the objection raised must be subjected to a verification procedure (proceso de verificación) previously established by law with respect to the boundaries and limitations governing the exercise of the right.

Generally speaking, it may be affirmed that a public servant may not invoke conscientious objection to avoid fulfilling a functional duty (deber funcional)—except in highly qualified cases, as discussed above—because, although all citizens have the right to freedom of conscience, this right, as noted, does not protect public servants in the same manner as private individuals. And if invoking and accepting it as grounds for exemption from official duties (deberes funcionariales) must be exceedingly exceptional, it must be even more so when invoked to avoid the duty to receive training aimed at improving public service and fulfilling the State’s duty to respect and promote human rights as part of its constitutional and treaty-based obligations.

Likewise, because conscientious objection is not a right that may be invoked indiscriminately, in the case of public officials it requires a mechanism for verifying that one of the conditions permitting its exercise exists. These conditions include a written application (which is satisfied by an affidavit (declaración jurada)), but the process cannot end with that application, because otherwise it would encourage officials to evade duties inherent to public service and the rule of law, including, I repeat, the promotion of and respect for human rights or the rights of third parties. This issue has been addressed in the case law of other important courts, including the Spanish Constitutional Court in Judgment 160/1987. On that occasion, it stated that merely invoking conscientious objection would not suffice to release citizens (much less public officials) from constitutional duties. The exercise of this right must respect the limits accepted by the most authoritative legal scholarship and case law, including, I repeat: security (except for compulsory military service in cases where it exists), public order, health, and respect for people’s human rights, particularly human dignity and non-discrimination.

These limits must be verified, as noted, and therefore the law cannot leave open the possibility of objecting to training merely by submitting an affidavit (without a procedure for verifying the validity of the objection asserted). Accordingly, I consider that Article 23(g), as regulated in the bill under review, is inconsistent with constitutional law (derecho de la Constitución).

Along the same lines, this Chamber held in Judgment 2020-001619 that because the right to conscientious objection is subject to boundaries and limitations, if a conflict of rights arises, an assessment or balancing test (ponderación) must be conducted, which necessarily entails a procedure for determining whether the objection raised is valid. Insofar as relevant, it stated:

“…the right to conscientious objection is subject to boundaries and limitations, and in those cases in which it conflicts with another fundamental right, recourse must be had to the principle of practical concordance (principio de la concordancia práctica); consequently, a balancing test must be conducted between the conflicting rights.” That balancing test cannot be conducted without verifying that the conditions for exercising the right are satisfied.

Upon analyzing the consulted Article 23(g), there can be no doubt that the bill would allow public officials to have their conscientious objection (objeción de conciencia) approved merely upon submission of an affidavit (declaración jurada), without establishing a process for reviewing or verifying the validity of the conscientious objection asserted by the public official in the affidavit. It was explained supra that conscientious objection is not an unlimited right and, like every right, is subject to limits and restrictions, and those restrictions require statutory regulation within constitutionally accepted limits and restrictions.

The consulted article does not establish exception procedures for objectors; rather, it promotes a mechanism lacking oversight or any subsequent adversarial review, which could result in public administration personnel disregarding their duty to undergo training without the Law allowing their hierarchical superiors to question the validity of the objection and its relationship to the subject matter thereof. Given its effects, such a possibility could seriously impair the effectiveness of public service operations because it would allow officials to evade their duty to undergo training aimed at improving the service provided by the public administration as part of its constitutional obligations. It could likewise encourage noncompliance with duties established under current international human rights law, particularly regarding nondiscrimination 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 means of eradicating it:

“Article 7. States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture, and information, to combat prejudices that lead to racial discrimination and to promote understanding, tolerance, and friendship among nations and the various racial or ethnic groups, as well as to disseminate 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.” (underlining not in the original) We must not lose sight of the fact that demonstrated suitability and efficiency are requirements that public officials must maintain throughout their entire employment relationship with the State. This means that the Administration may require public officials to complete training courses related to improving the effectiveness and efficiency of the public service that the State provides to those under its administration.

The foregoing premise is directly related to every person’s right of access to quality public services, which also means that the Administration has a duty to ensure that public officials acquire the knowledge necessary to provide services that promote access to and the development of human rights and the personal interests of those under its administration, without any discrimination—objectives that, as discussed supra, must necessarily be promoted in a constitutional state governed by the rule of law. Historically and over recent decades, the public administration has implemented training courses for its personnel aimed at improving services for persons in vulnerable circumstances (Indigenous persons, persons with any type of disability, Afro-descendants, women, persons deprived of liberty, children, older adults, as well as LGBTIQ+ persons, victims, among others), and there are numerous examples of public policies intended to prevent, eliminate, and punish any discriminatory conduct.

Indeed, it is common for the Branches of the Republic and the other institutions and offices comprising the Public Administration to include among their institutional objectives the provision of training courses, both to develop the skills required to perform the respective position and to serve users and provide quality public services to those under its administration.

From the foregoing analysis, it is important to reiterate that public officials occupy the position of public servants subject to the principle of legality (Article 11 of the Political Constitution). The design of our Constitution imposes on the public service the obligation to provide services to persons in accordance with criteria of objectivity and efficiency, which operate as the principal elements legitimizing that service. Clearly, the foregoing premises do not mean that public servants must tolerate treatment that infringes their rights in the performance of their duties, because their status as servants does not deprive them of their inherent status as persons—it is here that conscientious objection applies, depending on the particular case and circumstances.

Nevertheless, as stated supra, leaving open the possibility that a public official may exempt himself or herself from necessary training intended to ensure the suitability and legality of the service—understood in the broadest sense—creates an environment conducive, on the one hand, to unsuitability and, on the other, to discrimination and, in the case of discrimination, to the perpetuation of discriminatory conduct rooted in culture, educational deficiencies, and other factors capable of depriving human rights of their substance, especially the rights of persons belonging to groups in vulnerable circumstances. This is particularly relevant when access to public services, the healthcare system, public safety, among others, is impaired or obstructed.

No less relevant is the fact that international human rights conventions in force in the Republic require States, as part of their provisions, to educate—that is, to provide training—as part of the measures intended to eradicate conduct that violates those rights, recognizing that reality cannot otherwise be changed.

There are likewise judgments in contentious proceedings within the Inter-American human rights system ordering States to provide training on a particular subject, obligations from which the State cannot exempt itself. Thus, for example, in several cases (e.g., CASE OF WOMEN VICTIMS OF SEXUAL TORTURE IN ATENCO V. MEXICO), it has been established that educating and training public officials is an effective means of eradicating violence against women:

“13. The State must, within 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 - 139 - of Mexico, under the terms of paragraphs 355 to 356 of this Judgment.” (CASE OF WOMEN VICTIMS OF SEXUAL TORTURE IN ATENCO V. MEXICO, JUDGMENT OF 28 NOVEMBER 2018 (Preliminary Objection, Merits, Reparations, and Costs) Finally, I consider that the deficiencies identified cannot be remedied solely through the exercise of regulatory authority (potestad reglamentaria), because, as regulations governing the exercise of a fundamental right (that of the objector), they must, by constitutional mandate, be set forth in the Law. This entails the need for a process to verify whether or not the asserted objection is valid, regardless of whether the subsequent development of the specific procedure occurs through regulatory authority.

In summary, the failure of the consulted provision to establish the need to verify the public official’s affidavit leaves conscientious objection open to automatic application, which is incompatible with the constitutional and conventional legal order and would be consistent with the Constitution only if interpreted to mean that the affidavit must be subject to a verification process ensuring that the public official is not evading obligations inherent in the official’s special relationship of subjection (relación de sujeción especial) in a manner that renders ineffective or deprives of substance the constitutional and statutory safeguards, limits, and restrictions governing conscientious objection, including, among others, public order, health, and respect for the human rights of persons, particularly human dignity and nondiscrimination. I consider that these matters must be corrected in the consulted Article 23(g).

XVI. Regarding the consultation concerning violation of the right to collective bargaining and the right to organize.-

• 1)Matters Submitted for Consultation Those submitting the consultation consider that Articles 43 and Transitory Provision XV of the “PUBLIC EMPLOYMENT FRAMEWORK LAW” bill, which is being processed under legislative expediente n° 21.336, violate the fundamental right to collective bargaining (negociación colectiva) and the right to organize (derecho de sindicación). Those provisions expressly state as follows:

“ARTICLE 43- Collective bargaining Collective bargaining may not create new obligations or rights or alter employment conditions concerning:

• a)Salaries or compensation, or changes or modifications concerning the salary scale or components of the global salary structure.
• b)The creation of incentives, compensation, or salary supplements.
• c)Matters requiring an additional expenditure of resources affecting the national budget or that of a public institution through expenditures that do not conform to the principles of reasonableness and proportionality developed by the Constitutional Chamber of the Supreme Court of Justice.
• d)Prohibitory provisions contained in this Law.
• e)The creation of new positions.

The conditions agreed upon in collective bargaining instruments must comply with the constitutional principles of reasonableness, proportionality, legality, equality, and budgetary legality. Minutes shall be prepared for each bargaining session and shall be published no later than the conclusion of the process, together with closing minutes containing the complete text of the clauses negotiated and indicating which clauses of the proposal were rejected or could not be negotiated due to a lack of agreement concerning them.

In the case of provisions that, by their nature or because they affect the principle of budgetary legality, require legislative or regulatory approval, their effectiveness shall be contingent upon their 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 they affect the budgets of institutions whose ordinary and extraordinary budgets or budget amendments require approval by that entity.” “TRANSITORY PROVISION XV- Upon the entry into force of this Law, the heads of public entities shall be required to give notice of termination of collective bargaining agreements (convenciones colectivas) upon their expiration.

If a decision is made to renegotiate the agreement, it must be brought into full compliance with the provisions of this Law and any other regulations issued by the Executive Branch.” The petitioners consider such provisions unconstitutional because they prohibit collective bargaining (negociación colectiva) on salary matters and other subjects, which would encompass practically everything that could be negotiated, thereby stripping of substance the possibility of any agreement intended to improve workers’ employment conditions, contrary to the provisions of article 62 of the Constitution; the Right to Organise and Collective Bargaining Convention, 1949, N° 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; and numeral 7 of the Political Constitution.

This is in addition to art. 690 of the Código de Trabajo. All of the foregoing also violates the principle of progressive realization (principio de progresividad). They maintain that article 43 of the bill constitutes an excessive and disproportionate restriction on the right to collective bargaining by prohibiting negotiation of any matter, not only salary matters, but also any matter that entails additional budgetary expenditure, the creation of positions, or a subject prohibited by this law, which could be understood to include vacation leave (the ILO has referred to vacation leave as a subject of collective bargaining; see Recommendation n°7). The provisions contained in article 43 and transitory provision XV of the bill infringe the enjoyment of that right by imposing unreasonable and abusive limitations contrary to the principle of conformity with international conventions (principio de convencionalidad) guaranteed by the American Convention on Human Rights and the International Covenant on Economic, Social and Cultural Rights and its Protocol.

Although constitutional case law has recognized that the right to collective bargaining is subject to constitutional and legality review (controles de constitucionalidad y legalidad), the principles of reasonableness and proportionality, and the proper use of public funds, such controls cannot strip this fundamental human right of its substance by violating the principle of freedom of association (principio de libertad sindical), as the bill proposes. Regarding the obligation of institutional heads to denounce collective bargaining agreements (convenciones colectivas) upon their expiration, the Constitutional Chamber has already ruled that such a provision is unconstitutional when deciding the optional consultation (consulta facultativa) concerning the Ley de Fortalecimiento de las Finanzas Públicas bill, processed under expediente 20580, which contained an identical provision; nevertheless, its inclusion is again sought in bill 21336, which states: “I) Regarding the mandatory denunciation of a collective bargaining agreement upon its expiration (transitory provision L of Title V, ‘Transitory Provisions’), pursuant to the Political Constitution (articles 62 and 74), the International Conventions of the International Labour Organization, and the case law of this Court, it is construed that each head of a public entity has the authority to denounce or refrain from denouncing the respective collective bargaining agreement, in accordance with the legal system currently in force.” (Decision Nº 2018-19511).

They therefore consider that this violates article 62 of the Political Constitution and the Right to Organise and Collective Bargaining Convention, 1949, N° 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 statutes; and the constitutional principles of legality and conformity with international conventions, because collective bargaining is a fundamental human right.

For the examination of these arguments, it is first necessary to recall what this Chamber has established in its consistent case law regarding the scope and limitations of the fundamental right to collective bargaining, in order to determine whether the provisions of the bill under review do in fact violate its essential content.

• 2)Case-Law Background on the Fundamental Right to Collective Bargaining The trilogy of fundamental rights arising from Collective Labor Law (Derecho Laboral Colectivo) consists of the right to unionize (derecho a la sindicación), the right to collective bargaining, and the right to the effective resolution of collective disputes (derecho a la resolución efectiva de los conflictos colectivos) (see judgment n°2006-03002 at 10:40 hours on 9 de marzo de 2006). These rights seek to give effect and provide a response to workers’ need to organize in order to offset the actual inequality they face when acting individually in relation to their employer and under the general regulation of their rights in the Código de Trabajo. With specific regard to collective bargaining agreements, article 62 of the Political Constitution provides for their constitutional recognition, their force of law, and the requirement that such agreements comply with the law. Indeed, this constitutional provision states:

“Article 62. Collective labor agreements entered into in accordance with the law between employers or employers’ unions and legally organized workers’ unions shall have the force of law.” The provision’s placement in the Chapter on Social Rights and Guarantees of the Political Constitution, as well as its content, indicate that it is intended to guarantee the right to “collective labor bargaining (negociación colectiva laboral).” On this matter, in judgment n°2020-12800 at 11:01 hours on 8 de julio de 2020, this Court highlighted the three aspects arising from this provision, namely: a) recognition of collective bargaining as a constitutional right; b) that the agreements thus concluded have the force of law; and c) that such agreements must be entered into as provided by law. All of this was, moreover, confirmed by the Inter-American Court of Human Rights in Advisory Opinion OC-27/21 of 05 de mayo del 2021, which states as follows:

“94. In view of the foregoing, and by way of conclusion, the Court considers it appropriate to note that the right to collective bargaining, as an essential component of freedom of association, comprises various elements that include, at a minimum: a) the principle of non-discrimination against workers engaged in union activities, since the guarantee of equality is a prerequisite for bargaining between employers and workers; b) the absence of direct or indirect interference by employers in workers’ unions during their formation, operation, and administration, since such interference may create bargaining imbalances 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 bargaining processes between employers and workers that make it possible to improve employment conditions through collective agreements.” With specific regard to the right to collective bargaining in the public sector, reference may first be made to judgment n°1696-92 at 15:30 hours on 23 de agosto de 1992, in which the Chamber declared unconstitutional the mechanisms of direct settlement (arreglo directo), conciliation (conciliación), and arbitration (arbitraje) for officials who perform public administration functions (gestión pública), but recognized that laborers, workers, or employees who do not participate in the Administration’s public administration functions may enter into collective labor agreements, such that entities with an employment regime governed by labor law rather than public law, such as State-owned enterprises, may engage in collective bargaining.

This criterion was reiterated in several subsequent judgments (see n°2000-07730 and n°2000-04453). Subsequently, in judgment n°2020-008396 at 9:20 hours on 6 de mayo de 2020, this Court ruled as follows regarding collective bargaining agreements in the public sector, confirming that they are permitted only for workers who do not perform public administration functions:

“V.- On collective bargaining in the public sector.- As follows from the case law of this Chamber, as a general rule, the employment relationship established between the State (including Municipalities) and its workers is governed by Public Law—and not by the Código de Trabajo—a relationship that has been termed public or statutory employment (empleo público o estatutaria). That said, State employees are described as being subject, as a general rule, to a public employment regime because an exception has been made, namely for workers who do not participate in public administration functions because they are employees of State-owned enterprises. It has thus been established that workers who do not participate in public administration functions, being subject to ordinary law (derecho común), may resort to the procedures for resolving collective economic and social disputes provided for in the Código de Trabajo (decision N° 94-3053) and to arbitration subject to certain limitations (decision N° 92-1696); and they may enter into collective bargaining agreements (decision N° 00-4453), likewise subject to certain limitations.

Thus, the possibility of collective bargaining for workers who do not participate in the Administration’s public administration functions (employees of State enterprises or economic services responsible for activities governed by ordinary law) has been repeatedly recognized by this Chamber since judgment number 03053-94, a criterion subsequently reiterated or confirmed in judgments 2000-07730 and 2000-04453. The remaining State employees, who therefore do participate in public administration functions (which generally includes not only institutional heads and legal and financial oversight bodies, as the Union representative states, but all workers who exercise public powers), may neither resolve their collective labor disputes through arbitration (decision N° 92-1696) nor enter into collective bargaining agreements (decision N° 00-4453); the execution of collective bargaining agreements in the public sector is unconstitutional when they concern personnel governed by a statutory employment relationship (relación estatutaria).

This means that collective bargaining in the public sector cannot be tolerated, pursuant to constitutional articles 191 and 192. In conclusion, collective bargaining agreements are not entirely prohibited in the public sector; rather, they are permitted only for workers who do not perform public administration functions, that is, those covered by articles 3, 111 and 112 of the Ley General de la Administración Pública. Determining in each specific case which workers are covered by those provisions is a matter beyond this constitutional jurisdiction and falls to legal practitioners.” (judgment N°2013-14499)

IV.On the challenged regulations. (…) it must be reiterated that there is no absolute prohibition against entering into collective bargaining agreements (convenciones colectivas) in the public sector, nor are such agreements per se unconstitutional, since, as already indicated, there is a group of public-sector employees who may 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 State-owned enterprises or economic services and among those groups of personnel of public institutions and entities in which the nature of the services provided does not involve public administration” (voto N°2000-004453. Emphasis not in the original). Accordingly, with respect to the collective bargaining agreements challenged in this action, they are constitutionally valid as regards the aforementioned groups of personnel who work for or provide services to the entities or institutions in question. However, as already indicated in the precedent partially transcribed above, it is incumbent upon:

“(…) each Public Administration to define which officials are covered by the collective bargaining agreement or are eligible to negotiate or enter into this type of collective bargaining agreement, all in accordance with the criteria of the Public Administration or the Courts of Justice, depending on which is responsible for the decision.” (voto N°2015-7221)”.

Regarding the substance of collective bargaining (negociación colectiva laboral), the Chamber has addressed the so-called normative clauses (cláusulas normativas) (which govern the interaction arising from the employee’s provision of services and the employer’s payment of wages or compensation), scope clauses (cláusulas de configuración) (which specify the personal, temporal, and territorial scope of the agreement and include the employer’s disciplinary authority and the exercise of its right to organize and manage), and obligatory clauses (cláusulas obligacionales) (which create rights and obligations between the parties and primarily concern labor peace and the duty to implement the agreement, such as the creation of labor-relations boards and the establishment of training centers), in the following terms:

“Given the specialized nature of the subject matter, the parties may validly agree only upon matters with which they can legally comply, due to the contractual nature of the collective bargaining agreement (convenio colectivo); as a matter of principle, it is accepted that its scope encompasses working or employment conditions, without that purpose extending to the regulation of matters unrelated to employment. In other words, the purpose of a collective bargaining agreement is to regulate, on the one hand, the conditions governing individual employment relationships or, equivalently, the so-called normative clauses, which govern the interaction arising from the employee’s provision of services and the employer’s payment of wages or compensation, as most labor-law scholarship maintains; this leads to the conclusion that anything that could be included in an individual employment contract may also be addressed in a collective bargaining agreement.

Also within this content, the so-called scope clauses may be subject to collective bargaining; these specify the personal, temporal, and territorial scope of the agreement and include those that limit or establish procedures for the exercise of the employer’s rights, particularly its disciplinary authority and the exercise of its right to organize and manage. Second are obligatory clauses, which create rights and obligations between the parties and primarily concern labor peace and the duty to implement the agreement, such as the creation of labor-relations boards, the establishment of employer-funded benefits intended for social projects within the workplace community, and the establishment of training centers, among others. By way of summary, we shall say that collective bargaining agreements, by constitutional mandate, have as their immediate purpose the inter partes review, with the force of law, of the minimum content of the statutory benefits governing employment relationships, all for the purpose of improving upon or exceeding that essential minimum.” (see sentencia n°2007-18485 de las 18:02 horas del 19 de diciembre de 2007).

On this same issue, in sentencia n°2020-12800 de las 11:01 horas del 8 de julio de 2020, the Chamber held that a right greater than that recognized by law may be recognized:

“Likewise, it cannot be argued that greater rights may be granted to the parties through collective bargaining, which is certainly true; however, it must be noted that these are greater concessions regarding validly and legitimately recognized rights, which is not the same as restricting the freedom of negotiation of any of the parties involved. In other words, a collective bargaining agreement may recognize a right greater than that recognized by law, but it may not restrict that right. In any event, such greater recognition, in accordance with what was stated in the preceding recital (considerando), must likewise be subject to Constitutional Law (Derecho de la Constitución), thereby achieving the legal harmony upon which a legal system depends.” (emphasis not in the original).

For its part, in sentencia n°2008-003935 de las 14:48 horas del 12 de marzo de 2008, the Chamber stated that Public Administration entities may grant certain incentives or benefits to their employees, which will be constitutionally valid only when supported by objective reasons that also result in improved provision of public services. In this regard, it stated:

“In other words, this Chamber has not questioned whether any Public Administration entity may grant certain incentives or benefits to its employees, since doing so may constitute an appropriate measure for compensating a special requirement of a position involving particular professional qualifications or skills on the part of those who hold it, or for compensating a particular risk inherent in the performance of such duties, whether a physical risk (for example, physically dangerous work) or a legal risk (for example, work that may give rise to civil liability).” Although 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, such negotiations are also subject to limits insofar as they must be reconciled with the exercise of the statutory powers of public entities and must respect the limitations necessary to harmonize public expenditure with budgetary availability and the sound management of public funds. In this regard, the Chamber has addressed the limits on collective bargaining, including the constitutional principles of reasonableness, proportionality, economy, and efficiency, as well as the law:

“It has also been indicated that, without in any way detracting from the fact that collective bargaining is a right recognized by the Constitution and by instruments of the International Labour Organization, its substance is also subordinate to constitutional rules and principles, insofar as the decisions made therein frequently have consequences for public finances. In this context, its adoption and validity are not subject merely to verification of the adoption procedure, but also to a substantive review, to the extent that its content must conform to constitutional rules and principles because public funds are involved. Thus, obligations undertaken by public institutions toward their employees, as occurs in this type of bargaining, may be reviewed for reasonableness, economy, and efficiency in order to prevent the rights of the employees themselves from being disproportionately restricted or infringed through a collective bargaining agreement, or to prevent the misuse of public funds” (see sentencia N°2021-009580 de las 9:15 horas del 12 de mayo de 2021).

Of particular interest is sentencia n°2018-19511, not only because it compiles relevant constitutional case law on the subject, but also because it confirms that the right to collective bargaining is based on free and voluntary negotiation and, moreover, has a minimum or essential content, namely, the possibility of negotiating better socioeconomic conditions for employees. The Chamber stated that:

“(…) the right to collective bargaining is based on the possibility of free and voluntary negotiation and, moreover, has a minimum or essential content, namely, the possibility of negotiating better socioeconomic conditions for employees.

2.4.- On the limits and review of the content of collective bargaining agreements: Clearly, such bargaining capacity cannot be unrestricted, as this Chamber has stated on several occasions; however, such a restriction may not entail the statutory evisceration of the minimum content of that right. Statutory restrictions imposed on the right to collective bargaining must conform to the Political Constitution and the International Instruments relating to the subject.

It is in this sense that this Chamber’s ruling in Sentencia N° 2000-004453 de las 14:56 horas del 24 de mayo de 2000 must be understood, in which it stated:

“Sixth: Notwithstanding the foregoing, it is important to clarify that, even within the public sector where the application of the institution of collective bargaining agreements is constitutionally permissible—that is, in the so-called State-owned enterprises or economic services and among those groups of personnel of public institutions and entities in which the nature of the services provided does not involve public administration, within the meaning of subsection 2 of Article 112 of the General Law of Public Administration (Ley General de la Administración Pública)—the Chamber reiterates and confirms its case law to the effect that authorization to negotiate cannot be unrestricted, that is, comparable to the situation of any private employer, because this mechanism cannot be used to waive or create exceptions to laws, regulations, or government directives currently in force, or to amend or repeal laws that confer or regulate the powers of public entities, assigned by reason of the hierarchy of legal norms (jerarquía normativa) or the special conditions governing the Public Administration’s relationship with its employees, a conclusion inferred from Article 112, subsection 3), of the General Law of Public Administration and recital XI of sentencia N°1696-92 of this Chamber.” (See, to the same effect, sentencias números 2000-006480, 2000-006481, 2000-006482, 2000-006483, 2000-006435, 2000-007730, 2005-006858, 2006-007261 y 2006-17436).

(...)

Thus, with respect to public-sector agreements, the Chamber has stated that laws, regulations, or government directives currently in force must be respected, as must the statutory powers of public entities conferred on the basis of the hierarchy of legal norms or the special conditions governing the Public Administration’s relationship with its employees. In addition, the limitations required to harmonize public expenditure with budgetary availability must be respected in furtherance of the public’s right to the sound management of public funds, derived from constitutional provision 11 (see Sentencia N° 2017-013443 de las 9:15 horas del 25 de agosto de 2017).

It must also be understood that the authority to negotiate (facultad de negociación) is subject to legality and constitutionality review (controles de legalidad y constitucionalidad), in accordance with the principles of reasonableness, proportionality, and the proper use and management of public funds.

(...)

It follows that an essential component of freedom of association (libertad sindical)—and of its counterpart, trade-union activity (acción sindical)—is workers’ right to collective bargaining (negociación colectiva), as a means of improving their socioeconomic conditions through incentives, compensation, or salary supplements (pluses salariales). This falls within the four rights encompassed by freedom of association: 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 members 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 corresponding legal framework.

The foregoing does imply, however, as stated, that all such salary components agreed upon through valid collective bargaining must comply with the constitutional principles of proportionality and reasonableness, as well as with the remainder of the legal system (ordenamiento jurídico). But it is contrary to the Law of the Constitution (Derecho de la Constitución), specifically to freedom of association and the right to collective bargaining, for the legislature to prevent those matters from being agreed upon through collective bargaining and to reserve them exclusively to formal legislation (ley formal).” (emphasis not in the original).

Next, regarding the mandatory denunciation (denuncia obligatoria) of collective bargaining agreements (convenciones colectivas), in the same judgment n°2018-019511 at 21:45 hours on 23 de noviembre de 2018, the Chamber stated as follows:

“(…)

It must be emphasized, however, that the existence of such controls cannot be allowed to deprive the right to collective bargaining of its minimum content or to compel denunciation of the agreement. Accordingly, it is contrary to the very essence of collective bargaining that, even in those sectors where it is constitutionally and legally permissible, incentives, compensation, or salary supplements may be created only through formal legislation enacted by the Legislative Branch, because, as stated, this would deprive that right of its content and would therefore violate the principle of freedom of association, which this Chamber has developed through its case law (jurisprudencia). …

(…)

Lastly, regarding the mandatory denunciation of collective bargaining agreements provided for in Transitory Provision L (Transitorio L) of the bill under review, (…)

It is therefore clear that, as the ILO has determined, a legal provision requiring one party to conclude a collective bargaining agreement with another would be contrary to the principle of free and voluntary bargaining.

In summary, a provision that requires the denunciation of collective bargaining agreements and, on the other hand, prevents improvements in conditions from being achieved through such agreements, without any form of qualification, would be contrary to the Law of the Constitution; therefore, the legislature could not preemptively restrict the possibility of concluding collective bargaining agreements between employers and workers in the public sector where the application of this institution is constitutionally permissible without violating freedom of association.” Likewise, judgment n°2020-12800 at 11:01 hours on 8 de julio de 2020 stated, insofar as relevant:

“Under this interpretation, a rule to that effect would not only be contrary to the principle of free bargaining, but would also clearly be inconsistent with the principles of reasonableness and proportionality.

In this regard, in the same judgment 2018-19511, the Chamber stated:

“[E]ach head of a public entity has the authority to denounce or not denounce the respective collective bargaining agreement, in accordance with the legal system in force.” —emphasis added— Thus, if the provision now challenged states, as it indeed does, that both parties to the Collective Bargaining Agreement of the Universidad Nacional undertake not to denounce that Agreement unilaterally, it imposes on both parties—not only on the Universidad but also on the union—a duty that conflicts with the constitutional provision governing collective bargaining by preventing both parties from freely exercising the bargaining right to which they are entitled within a framework of reasonableness and proportionality, and by compelling the claimant (parte accionante) to refrain from jointly reviewing with the union matters related to the proper use of public funds.

Accordingly, the action must be granted, because the aforementioned phrase in the final paragraph of article 185 of the Collective Bargaining Agreement of the Universidad Nacional is contrary to the Law of the Constitution, on the terms stated.

—Conclusion.— Ultimately, because the first part of the final paragraph of article 185 of the Collective Bargaining Agreement of the Universidad Nacional is contrary to the Law of the Constitution, this constitutional challenge (acción de inconstitucionalidad) must be granted, and the phrase “The parties undertake not to denounce this Agreement unilaterally” must be annulled as unconstitutional.

The constitutional recognition of the right to collective bargaining in the public sector, as well as the constitutional limits identified above, establishes the jurisdiction of this court to review the content and scope of collective bargaining agreements. Thus, in judgment N°2020-024200 at 12:11 hours on 16 de diciembre de 2020, the Court emphasized that there are no zones of immunity or public actions exempt from constitutional scrutiny, even in the case of public enterprises, in the following terms:

III. COLLECTIVE BARGAINING AGREEMENTS UNDER THE STANDARD OF CONSTITUTIONALITY (PARÁMETRO DE CONSTITUCIONALIDAD)

This Constitutional Court has established a solid body of case law holding that collective bargaining agreements must be subject to the constitutional review (control de constitucionalidad) exercised by this Chamber. Since judgment n.°2006-17441, it has been held that, whatever normative rank may be accorded to instruments of this kind, they are clearly subordinate to constitutional rules and principles. Consequently, notwithstanding the constitutional recognition of the right to collective bargaining and its development in various international instruments, the Costa Rican legal system contains no zones of “constitutional immunity,” that is, public actions exempt from compliance with the principle of constitutional regularity (principio de regularidad constitucional). On that basis, the Chamber has consistently held that although collective bargaining agreements have a constitutional foundation, individual agreements may indeed be reviewed for constitutional conformity, including those involving public enterprises.

It has likewise emphasized that obligations undertaken by public institutions and their employees may be reviewed for reasonableness, economy, and efficiency, whether to prevent a collective bargaining agreement from restricting or infringing the rights of the workers themselves or to prevent the misuse of public funds (see, among others, judgments 2019-008679, 2019-009222, 2019-016791 and 2019-017398).” From the extensive body of case law referenced, it may 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 force of law, of the minimum content of the statutory benefits governing labor relations, all with the aim of improving upon or exceeding that essential minimum. This Chamber has recognized that collective bargaining may be permitted in the public sector only for workers who do not perform public administrative functions (gestión pública), employees of State-owned enterprises or economic services, and those responsible for activities governed by ordinary law (Derecho común).

Regarding the content of collective bargaining in the public sector, it has been held that the parties may validly agree only upon matters with which they can legally comply, given the contractual nature of the collective agreement (convenio colectivo), and that its scope may encompass working or employment conditions, without extending to the regulation of non-employment matters. Thus, a collective bargaining agreement (convención colectiva) may address anything that could be included in an individual employment contract (namely, matters regulating the interaction arising from the worker’s provision of services and the employer’s payment of wages or remuneration), as well as rules that limit or establish procedures for the exercise of the employer’s rights, particularly disciplinary authority and the exercise of its right to organize and manage, and rules creating rights and obligations between the parties that primarily concern industrial peace and the duty to implement the agreement, such as the creation of labor relations boards (juntas de relaciones laborales).

This does not entail recognizing rights other than those validly and legitimately recognized, but rather seeking greater concessions concerning rights validly and legally recognized; accordingly, a collective bargaining agreement may recognize a greater right than that recognized by law, but it may not restrict that right. In this regard, the possibility of recognizing salary incentives (incentivos salariales) or salary supplements (sobresueldos) has been accepted as a means of promoting greater quality, continuity, efficiency in service, loyalty, and suitability; consequently, it is contrary to the Law of the Constitution (Derecho de la Constitución), specifically freedom of association (libertad sindical) and the right to collective bargaining, for the legislature to prevent such matters from being agreed upon through collective bargaining and to reserve them exclusively for formal legislation (ley formal).

Accordingly, the Public Administration (Administración Pública) may grant certain incentives or benefits to its workers when they are supported by objective grounds aimed at improving the provision of public services. There exists “a constitutional doctrine governing public-sector collective bargaining agreements (essential in the absence of formal legislation regulating them), which may be summarized as requiring that all rights, benefits, and improvements upon statutory minimums (arising from social legislation dating from the middle of the last century) contemplated in collective bargaining must be based on objective grounds aimed at improving the provision of public services, while also representing joint and mutually supportive social progress for public servants and the Administration, provided that the proper and reasonable administration of public funds is respected.” It has likewise been held that “collective bargaining agreements not only have the force of law, but also contain a minimum core that the legislature may not impair, including the improvement of minimum working conditions and, consequently, salary conditions as well.

The foregoing is based on the Christian principles of social justice and solidarity, which, as stated, are contained in article 74 of the Political Constitution…” (judgment N°2012-08891 issued at 16:02 hours on 27 de junio de 2012). Because public entities administering public funds are involved, their content is also subordinate to constitutional rules and principles. Thus, the validity of collective bargaining in the public sector is not subject merely to verification of the adoption procedure, but also to a substantive review of legality and constitutionality, in light of the principles of reasonableness, proportionality, and the proper use and management of public funds, in order to prevent a collective bargaining agreement from disproportionately restricting or infringing the rights of the workers themselves or permitting the misuse of public funds. Within the Public Administration, authorization to bargain collectively cannot be unrestricted—that is, equivalent to the position of any private employer—because the laws, regulations, and governmental directives in force must be respected, as must the statutory powers of public entities, conferred on the basis of the hierarchy of norms (jerarquía normativa) or the special circumstances governing the relationship between the Public Administration and its workers.

Accordingly, the obligations undertaken by public institutions and their employees may be reviewed for reasonableness, economy, and efficiency, whether to prevent a collective bargaining agreement from restricting or infringing the rights of the workers themselves or to prevent the misuse of public funds. The right to collective bargaining is subject to the Chamber’s judicial review (control jurisdiccional) because, as noted, it is subordinate to constitutional rules and principles.

• 3)Specific analysis of the matter under consultation (drafted by Justice Castillo Víquez) The requesting parties ask that article 43 and transitory provision XV of the Framework Public Employment Bill (proyecto de Ley Marco de Empleo Público), expediente 21336, be declared unconstitutional for contravening article 62 of the Political Constitution and the Right to Organise and Collective Bargaining Convention, 1949, N O 98 of the International Labour Organization (OIT), articles 4 and 6; the American Convention on Human Rights, Pacto de San José de 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 provision 7, which grants them a rank superior to statutory law, and the constitutional principles of legality and conformity with international conventions (convencionalidad), because collective bargaining is a fundamental human right and serves as an instrument through which workers in the broadly defined public sector, public enterprises, and public enterprises and institutions operating under competitive conditions may agree upon dignified working conditions.

The State therefore bears a twofold responsibility: on the one hand, ongoing oversight to guarantee that this right may be exercised without any discrimination and, on the other, refraining from State intervention that would impair its effective exercise.

Regarding this issue, there is also extensive Constitutional Chamber case law concerning collective bargaining. Specifically with respect to collective bargaining in the public sector, it should be noted that, recently, in decision nro. 2018-019511, this Court reviewed its case law on the subject and highlighted the following points:

 This Chamber has recognized, as a general principle, that the relationship between the State and public servants is a public-employment or statutory relationship (relación de empleo público o estatutaria); in other words, a public servant subject to the public-employment regime stands in a relationship of subordination to the Administration, which may unilaterally impose the conditions governing the organization and provision of services in order to safeguard the public interest. This conclusion means that collective bargaining cannot be permitted in the public sector, pursuant to constitutional articles 191 and 192. Nevertheless, collective bargaining has been allowed for laborers, workers, or employees who do not participate in the Administration’s public administrative functions, such that entities governed by an employment regime of a labor-law rather than public-law nature, such as State-owned enterprises, may bargain collectively in accordance with the provisions governing Collective Labor Law (Derecho Colectivo del Trabajo).

 Regarding its content, it has been held that the parties may validly agree only upon matters with which they can legally comply, given the contractual nature of the collective agreement; as a general principle, its scope may encompass working or employment conditions, without extending to the regulation of non-employment matters. In other words, the purpose of a collective bargaining agreement is to regulate, first, the conditions governing individual employment relationships—or, equivalently, the so-called normative clauses (cláusulas normativas)—which regulate the interaction arising from the worker’s provision of services and the employer’s payment of wages or remuneration. This leads to the conclusion that a collective bargaining agreement may address anything that could be included in an individual employment contract. This content may also include the so-called scope-defining clauses (cláusulas de configuración), which specify the personal, temporal, and territorial scope of the agreement and include those that limit or establish procedures for the exercise of the employer’s rights, particularly disciplinary authority and the exercise of its right to organize and manage.

Second are the obligatory clauses (cláusulas obligacionales), which create rights and obligations between the parties and primarily concern industrial peace and the duty to implement the agreement, such as the creation of labor relations boards, the establishment of employer-funded benefits (prestaciones patronales) for social projects within the workplace community, and the establishment of training centers, among others. In short, collective bargaining agreements, by constitutional mandate, have as their immediate purpose the review, inter partes and with the force of law, of the minimum content of the statutory benefits governing labor relations, all with the aim of improving upon or exceeding that essential minimum. Likewise, the possibility of recognizing salary incentives or salary supplements has been accepted as a means of promoting greater quality, continuity, efficiency in service, loyalty, and suitability. That is, the Public Administration may grant certain incentives or benefits to its workers when they are supported by objective grounds aimed at improving the provision of public services.

 Furthermore, the content of collective bargaining agreements must comply with higher-ranking norms and respect the body of fundamental rights enshrined in our Political Constitution. Thus, Collective Bargaining Agreements (Convenciones Colectivas de Trabajo) are subject to the Law of the Constitution; accordingly, contractual clauses (cláusulas convencionales) must comply with the constitutional rules and principles of equality, prohibition of discrimination, legality, reasonableness, and proportionality, particularly when public funds are involved, since they are subject to the principle of budgetary legality (legalidad presupuestaria).

Now, as the requesting legislators themselves point out, the specific issue raised in this request for an advisory opinion (consulta) was already analyzed in the aforementioned ruling no. 2018-019511, which addressed the legislative request for an advisory opinion concerning the bill entitled “Law on Strengthening Public Finances” (“Ley de Fortalecimiento de las Finanzas Publicas”) (legislative expediente no. 20.580). As stated in that ruling, the following was alleged on that occasion:

“h) Regarding the alleged unconstitutionality of Article 55 of Chapter VII, ‘General Provisions,’ of Title III, ‘Amendment to the Public Administration Salary Law,’ and of Transitory Provision L of expediente 20580, on grounds of violation of Article 62 of the Constitución Política and Convention N° 98 concerning the Right to Organise and Collective Bargaining, of the International Labour Organization (ILO).

1. 1Arguments of the requesting legislators: The requesting legislators challenge the constitutionality of Article 55 of Chapter VII, ‘General Provisions,’ of Title III, ‘Amendment to the Public Administration Salary Law,’ of Legislative Bill 20.580, which provides:

‘Article 55—Statutory Reservation (Reserva de Ley) for the Establishment of Salary Incentives and Compensation Incentives, compensation, or salary supplements (pluses salariales) may be established only by statute.’ They believe that, in this manner, although the right to collective bargaining (negociación colectiva) is provided for in Article 62 of the Constitución Política, the intention is to eliminate that right with respect to salaries, contrary to subsections h), j), and m) of Article 690 of the Código de Trabajo.

They add that the status of professional law (ley profesional) granted by the legal system to collective agreements (convenciones colectivas) means that the terms agreed therein must be incorporated into all existing individual or collective employment contracts, as well as those subsequently entered into in the companies, industries, or regions affected by them; that is, the employment conditions agreed therein may not be made less favorable in the future.

They likewise cite Article 4 of the Right to Organise and Collective Bargaining Convention, 1949, N° 98, of the International Labour Organization (ILO), which imposes the following obligation upon the States Parties:

‘Article 4 Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and use of voluntary bargaining procedures between employers and employers’ organizations, on the one hand, and workers’ organizations, on the other, with a view to regulating terms and conditions of employment by means of collective agreements.’ Thus, the right to collective bargaining is reaffirmed in the ILO Declaration on Fundamental Principles and Rights at Work of 1998, which states 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, promote, and realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights addressed by those conventions, namely: a) freedom of association and trade-union freedom (libertad sindical); and b) effective recognition of the right to collective bargaining.

The requesting legislators also challenge the constitutionality of Transitory Provision L of Bill N° 20580, which provides:

‘TRANSITORY PROVISION L—As of the entry into force of this statute, the heads of public entities shall be required to give notice of termination (denunciar) of collective agreements upon their expiration. If it is decided to renegotiate the agreement, it must be brought fully into conformity with the provisions of this Statute and any other regulations issued by the Executive Branch.’ They consider that this obligation limits the right to renegotiation or automatic renewal under the conditions stipulated in subsection e) of Article 58 of the Código de Trabajo.

In that matter, after analyzing the right to collective bargaining, collective agreements in the public sector, and the principle of trade-union freedom in light of its own case law and the rules comprising Constitutional Law (Derecho de la Constitución), the Court concluded:

‘(…) that the right to collective bargaining is premised on the possibility of free and voluntary bargaining and, moreover, has a minimum or essential content, namely the possibility of negotiating better socioeconomic conditions for workers.

2.4.- Regarding limitations on and review of the content of collective agreements: It is clear that such bargaining authority cannot be unrestricted, as this Chamber has stated on several occasions, but such restrictions cannot result in the minimum content of that right being emptied through legislation. Statutory restrictions imposed on the right to collective bargaining must conform to the Constitución Política and the relevant International Instruments.

It is in this sense that this Chamber’s holding in Judgment N° 2000-004453 of 14:56 hours on 24 de mayo de 2000 must be understood, in which it stated:

“Sixth: Notwithstanding the foregoing, it is important to clarify that, even within the public sector where application of the institution of collective agreements is constitutionally permissible—that is, in the so-called State-owned enterprises or economic services and among those groups of personnel of public institutions and entities whose services, by their nature, do not entail the exercise of public administration (gestión pública), within the meaning of subsection 2 of Article 112 of the Ley General de la Administración Pública—the Chamber reiterates and confirms its case law to the effect that authorization to bargain cannot be unrestricted, that is, equivalent to the situation of any private employer, because this mechanism may not be used to waive or create exceptions to statutes, regulations, or government directives currently in force, nor to amend or repeal statutes that confer or govern the powers of public entities, which are assigned by reason of the hierarchy of legal norms (jerarquía normativa) or the special conditions governing the relationship between the Administración Pública and its workers.

This conclusion follows from Article 112, subsection 3), of the Ley General de la Administración Pública and Considerando XI of Judgment No. 1696-92 of this Chamber.” (See, to the same effect, Judgments Nos. 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 stated that the statutes, regulations, and government directives currently in force must be observed, as must the statutory powers of public entities, conferred on the basis of the hierarchy of legal norms or the special conditions governing the relationship between the Administración Pública and its workers. In addition, the limitations necessary to reconcile public expenditure with available budgetary resources must be observed in the interest of the public’s right to the sound management of public funds, arising from Article 11 of the Constitution (see Judgment N° 2017-013443 of 9:15 hours on 25 de agosto de 2017).

It must also be understood that bargaining authority is subject to review for legality and constitutionality (controles de legalidad y constitucionalidad), in accordance with the principles of reasonableness, proportionality, and the proper use and management of public funds. Among other decisions, in Judgment N° 2006-17441 of 19:39 hours on 29 de noviembre de 2006 (cited above), this Court addressed the matter in the following terms:

(…)

It must be stressed, however, that the existence of such review mechanisms cannot be allowed to empty the minimum content of the right to collective bargaining or to compel the termination of collective agreements. Accordingly, it is contrary to the very essence of collective bargaining that, even in those sectors where it is constitutionally and legally permissible, incentives, compensation, or salary supplements may be established only through a formal statute enacted by the Legislative Branch, because, as stated above, this would empty that right of its content and would therefore violate the principle of trade-union freedom, which this Chamber has developed through its case law. …

(…)

It follows that an essential component of trade-union freedom—and of its counterpart, trade-union action (acción sindical)—is the workers’ right to collective bargaining as a means of improving their socioeconomic conditions through incentives, compensation, or salary supplements. This falls within the four rights encompassed by trade-union freedom: 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 members to participate democratically within the trade union. To these 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 applicable legal framework.

That does mean, however, as stated above, that all such salary components agreed upon through valid collective bargaining must comply with the constitutional principles of proportionality and reasonableness, as well as with the rest of the legal system. Nevertheless, it is contrary to Constitutional Law—specifically, to trade-union freedom and the right to collective bargaining—for the legislature to prevent such matters from being agreed upon through collective bargaining and to reserve them exclusively for formal legislation.

Lastly, regarding the mandatory termination of collective agreements provided for in Transitory Provision L of the bill under review, the International Labour Organization (ILO), in Report N° 344, of marzo de 2007, Case N° 2460, paragraph 990, stated:

“990. With regard to the court’s ruling in the Nombre64 case, according to which the statutory prohibition of collective bargaining is permissible under the United States Constitution because the latter contains no provision—including the right to freedom of association enshrined in the First Amendment—that requires one party to enter into a contract with another, the Committee, while recalling the importance it attaches to the obligation to bargain in good faith in maintaining the harmonious development of labor relations, wishes to emphasize 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. To be effective, collective bargaining must be voluntary and must not involve recourse to coercive measures that would alter the voluntary nature of such bargaining.

No provision of Article 4 of Convention No. 98 requires a government to coercively impose a collective-bargaining system upon a particular organization, as such government intervention would clearly alter the nature of those negotiations [see Compilation, op. cit., paragraphs 925-927 and 934]. Therefore, although a legal provision requiring one 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, which prohibit public authorities and public employees, including those who do not participate in the administration of the State, from entering into an agreement even if they wish to do so, are equally contrary to that principle.” It is therefore clear that, as defined by the ILO, a legal provision requiring one party to enter into a collective agreement with another would be contrary to the principle of free and voluntary bargaining.

In summary, a provision requiring the denunciation of collective bargaining agreements (convenciones colectivas) while also preventing improvements in conditions from being achieved through them, without any form of adjustment, would be contrary to the Law of the Constitution; therefore, the legislature could not restrict in advance the possibility of entering into collective bargaining agreements between employers and workers in the public sector where the application of this institution is constitutionally permissible without violating freedom of association (libertad sindical).

Consequently, Article 55 of Ley N° 2166 (Ley de Salarios de la Administración Pública), as added by the bill under review, must be understood not to be unconstitutional, provided that it is construed as not applying to Public Sector employees who may validly enter into collective bargaining agreements in accordance with the Constitution and the law; without prejudice to judicial review of legality (control de legalidad) and constitutionality (control de constitucionalidad) concerning the outcome of the negotiations, in light of the principles of reasonableness, proportionality, and the proper use and management of public funds. Likewise, concerning Transitorio L of the bill under review, it must be interpreted to mean that the head of each public entity has the authority to denounce or refrain from denouncing the respective collective bargaining agreement, in accordance with the legal system currently in force.” 4) Conclusion In light of the case law of the Chamber and, more specifically, the aforementioned voto nro. 2018-019511, it may be concluded that the provisions under review are as follows:

a.- Article 43 contains no constitutional defects, insofar as the new obligations or rights obtained within the scope of collective bargaining (negociación colectiva) conform to the principles of reasonableness, proportionality, and budgetary legality (legalidad presupuestaria), under constitutional case law, and provided that the collective bargaining agreements involve Public Sector employees who may validly enter into such agreements in accordance with the Constitution and the law.

b.- Transitorio XV, concerning the denunciation of collective bargaining agreements, is not unconstitutional, provided that it is interpreted in the same manner indicated in voto número 2018-019511 de las 21:45 horas del 23 de noviembre del 2018; that is, pursuant to the Political Constitution (Articles 62 and 74), the International Labour Organization Conventions, and the case law of this Court, it must be interpreted to mean that the head of each public entity has the authority to denounce or refrain from denouncing the respective collective bargaining agreement, in accordance with the legal system currently in force.

• 5)Separate reasons a) Separate reasons of Justice Rueda Leal concerning Article 43 and Transitorio XV of the bill.

Regarding Article 43, and on the premise that this concerns the portion of the public sector that may validly engage in collective bargaining, I consider that there are no conflicts with the Constitution, because it merely establishes partial limits on collective bargaining that are closely linked to the principle of budgetary balance (equilibrio presupuestario). In my view, the scope of collective bargaining encompasses a variety of matters extending beyond the limits of that article, negotiations concerning which would remain unchanged if this bill were ultimately to enter into force, including, for example, matters related to the organization of work, the disciplinary regime (régimen disciplinario), and trade-union organizations, among others. The fact that a law regulates matters subject to collective bargaining is not only consistent with the Constitution but required by it, as I explained in my separate reasons set forth in sentencia n.° 2018-019511:

“After analyzing the claims, I consider that the starting point for the constitutional analysis must be precisely our Political Constitution. Regarding collective bargaining, Article 62 thereof provides:

“ARTICLE 62.- Collective bargaining agreements entered into, in accordance with the law, between employers or employers’ unions and legally organized workers’ unions shall have the force of law.” Based on the claims asserted and the provisions transcribed above, I note that the task of the constitutional court is to examine whether the three quoted texts can be reconciled. Only if a constitutional reading of Article 55 were unworkable would a declaration of unconstitutionality be appropriate.

The first thing I observe is that Article 4 of the Convention imposes an obligation to adopt “…measures appropriate to national conditions, where necessary, to encourage and promote…” (emphasis added) collective bargaining.

Two points stand out from its plain language. First, these are measures intended to encourage and promote collective bargaining. In other words, the provision does not delegate the definition of every element of an employment contract (contrato laboral) to collective bargaining; nor does it appear to limit the legislature’s lawmaking authority (potestad configurativa) in this area, which is itself guaranteed by Article 62 of the Constitution, as explained below.

Even more important is the second point. The aforementioned Article 4 refers to “national conditions” for purposes of determining the measures to be adopted by the State. One basic element of those conditions is the domestic legal system and, necessarily, the Political Constitution. This reference requires an examination of the text of Article 62 of our Constitution, transcribed supra. Among its provisions, it grants collective bargaining agreements the force of law and defines the parties to collective bargaining. For purposes of the sub examine, it must be emphasized that our Constitution expressly places the regulation of collective bargaining in a statutory provision, since the force of law afforded to a collective bargaining agreement is conditional upon its being entered into “…in accordance with the law…”. This provision not only establishes an obligation to comply with the law when negotiating a collective bargaining agreement, but also creates a duty to legislate on the subject in order to establish a legal framework governing collective bargaining.” Regarding Transitorio XV, given its wording, the considerations I expressed in the aforementioned voto n.° 2018-019511 apply, where I analyzed an identical transitional provision (disposición transitoria):

“The consulting legislators challenge the constitutionality of Transitorio L of proyecto 20.580, which provides:

“TRANSITORIO L - Upon the entry into force of this law, the heads of public entities shall be required to denounce collective bargaining agreements upon their expiration.

If it is decided to renegotiate the agreement, it must be brought fully into conformity with the provisions of this Law and all other regulations issued by the Executive Branch." They consider that this obligation limits the right to renegotiation or automatic extension under the conditions established in subsection e) of Article 58 of Código de Trabajo.

After analyzing the filing initiating the proceeding (escrito de interposición), I observe that the grounds provided by the party refer solely to the apparent conflict between the challenged provision and the aforementioned article of Código de Trabajo. Such a conflict of laws (conflicto normativo) is a matter of mere legality and falls outside the jurisdiction of this Chamber.

I likewise reject the proposition that merely mentioning an alleged violation of Article 62 of the Constitution is sufficient to satisfy the requirements for legislative consultation (consulta legislativa). As required by Article 99 of Ley de la Jurisdicción Constitucional, an optional consultation (consulta facultativa) must be submitted in a “reasoned brief,” which distinguishes it from a mandatory consultation (consulta preceptiva). Accordingly, the petitioners have a duty to state clearly the grounds for the alleged constitutional violation, as the Chamber has indicated on other occasions:

“In this regard, the Constitutional Chamber, in defining the scope of that provision through sentencia No. 5544-95 de las 15:00 hrs. de 11 de octubre de 1995, stated:

“Insofar as the consultation concerns Article 28 of the Bill, it is not appropriate to answer the consultation because it was not submitted with reasons, ‘identifying the challenged aspects of the bill and the grounds for any doubts or objections regarding its constitutionality’ (Art. 99 of Ley de la Jurisdicción Constitucional), since the consulting legislators merely identify the matter submitted for consultation without presenting any constitutional argument. Constitutional case law has repeatedly so held, and for that reason, with respect to this issue, there are no grounds to answer the consultation submitted (See Opinión Consultiva Nº 5399-95, related to Consulta Nº 4773-95 and the subsequent interlocutory ruling, Nº 501-I-95).” Irrespective of the foregoing, a prima facie analysis of the provision—the extent of review being limited by the absence of supporting grounds in the filing initiating the proceeding—does not reveal it to be unconstitutional.

I emphasize that it is a transitional provision whose application is limited to collective bargaining agreements in which the State is the employer. I emphasize this fact because I consider that the purpose of the obligation imposed by that provision is to bring collective bargaining agreements into conformity with the legal framework that would enter into force under the challenged bill. Hence, any renegotiation of the agreement would require it to be brought “…fully into conformity with the provisions of this Law and all other regulations issued by the Executive Branch.” I also clarify and emphasize that this article does not entail the suspension, repeal, or annulment of collective bargaining agreements or their provisions, nor does it impose any restriction on their effects other than the period of validity previously agreed upon by the parties.

It must now be recalled that the Political Constitution establishes a basic requirement for collective bargaining agreements: they must be entered into “…in accordance with the law…”. Thus, it is clear that both the content and form of a collective bargaining agreement are subject to the law by constitutional mandate. Ergo, it is not unconstitutional for a provision—such as the challenged provision—to seek to ensure that collective bargaining agreements comply with the law. It should also be noted that it neither repeals nor empties of content subsection e) of Article 58 of Código de Trabajo, leaving intact the possibility of renegotiating the collective bargaining agreement.” b) Separate reasons of Justice Garro Vargas regarding the constitutionality of Article 43 The undersigned Justice considers Article 43 of the bill submitted for consultation to be constitutional in itself, without any need to interpret it in the terms proposed by the majority of this Court.

Indeed, the majority states that this article is not unconstitutional “insofar as the new obligations or rights obtained within the scope of collective bargaining conform to the principles of reasonableness, proportionality, and budgetary legality.” Nevertheless, the text of the provision under review itself expressly so provides in its second paragraph, stating that “The conditions agreed upon in collective bargaining instruments (instrumentos de negociación colectiva) must comply with the constitutional principles of reasonableness, proportionality, legality, equality, and budgetary legality.” Therefore, a simple comparison of the provision shows that it already embodies, in and of itself and without the need for any interpretation, the conclusion reached by the majority of the Chamber.

Additionally, I believe that the provision in question must be examined in light of the objectives of the general regulatory framework being proposed by the legislature for the entire public sector. One of the principal purposes sought by the Poder Legislativo is to introduce a series of provisions regarding the global salary (salario global) as a compensation system intended to achieve equitable and transparent pay recognition while avoiding certain mechanisms that distort the national budget. In this regard, reference may be made to the explanatory statement accompanying the bill, which, taking into account the recommendations and general principles of the Organisation for Economic Co-operation and Development (OCDE) and the Contraloría General de la República (CGR), emphasizes the following ideas:

“The public governance assessment conducted by the OCDE in 2015 recommended that the country gradually transition toward a single-salary system for new officials and also incorporate non-monetary incentives for the purpose of identifying other motivational mechanisms, as shown in the following excerpt from the Public Governance Review of Costa Rica:

‘Move toward a more transparent and sustainable performance-based compensation system, including non-monetary incentives. The current compensation system can be simplified by initiating a gradual transition toward a “single-salary” system, that is, an amalgamation of base salary, bonuses, and compensation. Any additional payment above the base salary should be universal and made in the most transparent and simple manner possible’ (…).

Recommendations of the CGR regarding compensation:

On various occasions, the Contraloría General de la República has drawn attention to the need to review the compensation structure, particularly those salary incentives that generate disparities among the same types of positions, such as seniority increments (anualidades). In the study Challenges for Modernizing the Compensation Structure in Government Ministries, DFOE-SAF-OS-00001-2018, the CGR revealed that there is a set of overarching principles that must govern compensation management in the public sector, such as paying equal salaries under equal conditions and paying different salaries where differences exist, as established by Article 57 of the Constitución Política (…).

Additionally, the recommendations of the Contraloría General de la República and the Organisation for Economic Co-operation and Development are adopted. These recommendations are aimed at reducing both vertical and horizontal salary distortions by introducing the global salary for new public servants, as well as for those who choose to transition to it, and for institutional heads.” (Emphasis not in the original).

It is thus established that the bill seeks to reduce pay inequities in public employment by introducing the concept of the “global salary” while simultaneously avoiding certain salary incentives that are, in substance, regarded as distortive mechanisms that ultimately affect the national budget.

In my view, the payment system that is intended to be implemented, known as the “global salary,” is neither implicitly nor explicitly contemplated in the Constitución Política. That is, it is neither required nor prohibited by it. If the law adopts this payment mechanism under the premises and for the purposes already examined, it may properly constitute a limitation on collective bargaining (negociación colectiva). In other words, if the legislature understands that there must be a regulatory framework establishing governing principles to guide compensation management, it would be inconsistent to allow collective bargaining to nullify this entire regulatory and planning effort concerning the methodology for compensating public servants. Therefore, it must be considered legitimate for collective bargaining to restrict the possibility of “creating new obligations or rights” relating to salaries or compensation, the creation of incentives, compensation payments, or salary supplements (pluses salariales), additional expenditures of resources affecting the national budget, or the creation of new positions.

It must be taken into account that Article 62 of the Constitución Política expressly provides:

“Collective labor agreements (convenciones colectivas de trabajo) entered into between employers or employers’ unions and legally organized workers’ unions, in accordance with the law, shall have the force of law.” It follows from the constitutional provision itself 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 foregoing premise, it follows logically that the negotiation and execution of collective agreements must be carried out in conformity with national legislation. That is, despite having the rank of law, they do not take precedence over statutory provisions. Therefore, for these negotiations to be regarded as legitimate, the agreements must be executed under and in compliance with the applicable legal framework.

Accordingly, if the Sala unanimously finds that there is no constitutional defect in the proposed transition of public employees’ compensation toward the concept of a “global salary,” with the legislature’s express purpose of preventing distortions in public expenditure, it is consistent and logical to introduce the stated limitations on collective bargaining so that the new rules restraining public-sector salary payments will in fact be applied.

Otherwise, collective agreements—and specifically provisions directly affecting salary payments—could frustrate one of the purposes of the bill. It is therefore logical to introduce these measures, which advance a central objective of the bill: transitioning toward a single-salary structure that avoids unreasonable and disproportionate disparities in compensation payments to the detriment of public finances.

In light of the considerations outlined above, I believe that Article 43 of the bill is not unconstitutional; rather, it introduces reasonable and narrowly tailored limitations that are consistent with and necessary to fulfill the legislature’s intended purpose regarding compensation. And, as I have stated, subjecting collective agreements to the law is part of the constitutional design.

• c)Justice Picado Brenes’s separate reasons regarding Article 43 of the bill as it concerns collective agreements (point 55 of the Por Tanto) The majority of the Sala has held that Article 43 of the Public Employment Bill contains no constitutional defects insofar as the new obligations or rights obtained through collective bargaining comply with the principles of reasonableness, proportionality, and budgetary legality, with constitutional case law, and with the requirement that participating Public Sector employees be legally entitled to enter into collective agreements in accordance with the Constitution and the law.

The interpretation given to the provision requires further clarification, because it could impair the minimum content of the fundamental right to collective bargaining. As is apparent from Article 43, it prohibits “creating new obligations or rights, or changing working conditions” concerning “salaries or compensation and changing or modifying matters relating to the salary scale or components of the global salary structure,” the “creation of incentives, compensation payments, or salary supplements,” “prohibitory provisions contained in this law” (e.g., vacation leave), and “the creation of new positions.” It must be borne in mind that freedom of negotiation between the parties—a characteristic and distinguishing feature of the right to collective bargaining—as an instrument for improving workers’ socioeconomic conditions entails the possibility that the Administration may grant certain salary incentives, compensation payments, or benefits to its workers.

Such measures may be appropriate for compensating a special requirement of a position involving particular professional qualifications or skills on the part of those who perform it, or for compensating a particular risk inherent in performing those duties, whether a physical risk (for example, physically hazardous work) or a legal risk, provided in every case that such measures are supported by objective reasons leading to improved delivery of the public service.

In the specific case of Costa Rica, the benefits and rights contained in the Código de Trabajo constitute a minimum that must be granted to workers; beyond that minimum, however, nothing prevents employers—even public-sector employers—from conducting negotiations that allow those minimums to be exceeded in response to special circumstances such as those just described. In this regard, this Tribunal Constitucional has emphasized that it is contrary to the Law of the Constitution (Derecho de la Constitución), specifically freedom of association and the right to collective bargaining, for the legislature to prevent such matters from being agreed upon through collective bargaining and to reserve them exclusively for formal legislation. By way of example, judgment n°2018-019511 of 21:45 on 23 de noviembre de 2018 held that it was unconstitutional because it was “contrary to the very essence of collective bargaining that, even in those sectors where it is constitutionally and legally permissible, incentives, compensation payments, or salary supplements may be created only through formal legislation enacted by the Poder Legislativo, because, as stated above, this would deprive that right of its substance and would therefore violate the principle of freedom of association.” Accordingly, the Sala has recognized in its case law that such matters—incentives, supplements, etc.—are elements that may indeed be included in collective bargaining, subject to the applicable limits of reasonableness, proportionality, and proper protection of public funds.

Collective agreements are constitutionally recognized in Article 62 of the Constitución Política and are also instruments intended to fulfill and address workers’ need to organize in order to offset the actual inequality they face when acting individually in relation to their employer and in light of the general regulation, or even omission, of their rights in the Código de Trabajo.

At this point, it is important to emphasize that the Sala Constitucional itself, in judgment n°2020-12800 of 11:01 on 8 de julio de 2020, identified the three elements arising from Article 62 of the Constitution, namely:

• a)recognition of collective bargaining as a constitutional right; b) that the agreements thus concluded have the force of law; and c) that such agreements must be concluded as provided by law.

It should likewise be noted that these elements were also affirmed by the Inter-American Court of Human Rights in Advisory Opinion OC-27/21 of 05 de mayo del 2021, when it stated the following:

“94. In consideration of the foregoing, and by way of conclusion, the Court deems it appropriate to note that the right to collective bargaining (negociación colectiva), as an essential component of freedom of association (libertad sindical), comprises various elements, which include, at a minimum: a) the principle of nondiscrimination against workers engaged in trade-union activity, since the guarantee of equality is a prerequisite for bargaining between employers and workers; b) the absence of direct or indirect interference by employers in workers’ trade unions during the stages of formation, operation, and administration, since such interference may produce imbalances in bargaining that undermine the workers’ objective of improving their living and working conditions through collective bargaining and other lawful means; and c) the progressive promotion of voluntary bargaining processes between employers and workers that make it possible to improve employment conditions through collective agreements (contratos colectivos).” Given the importance that this subject has had in Costa Rica, it is worth noting that, with respect to the substance of labor-related collective bargaining, the Chamber has addressed the so-called normative clauses (cláusulas normativas) (which govern the interaction arising from the worker’s provision of services and the employer’s payment of wages or compensation), configuration clauses (cláusulas de configuración) (which specify the personal, temporal, and territorial scope of the collective bargaining agreement (convención), and include the employer’s disciplinary authority and the exercise of its right to organize and manage), and obligatory clauses (cláusulas obligacionales) (which create rights and obligations between the parties and primarily concern industrial peace and the duty to implement the agreement, such as the creation of labor-relations boards and the establishment of training centers), and has stated that:

“Within this specialized field, the parties may validly agree only upon that which they can legally fulfill, given the contractual nature of the collective bargaining agreement (convenio colectivo); as a matter of principle, it is accepted that its scope encompasses working or employment conditions, without that purpose being extended to regulate matters unrelated to employment. In other words, the purpose of a collective bargaining agreement is to regulate, on the one hand, the conditions governing individual employment relationships—in other words, the so-called normative clauses—which govern the interaction arising from the worker’s provision of services and the employer’s payment of wages or compensation, as most labor-law scholarship maintains. This leads to the conclusion that anything that could be addressed in an individual employment contract may also be addressed in a collective bargaining agreement.

Within this subject matter, the so-called configuration clauses may also be subject to collective bargaining; these specify the personal, temporal, and territorial scope of the agreement and include those that limit or establish procedures for exercising the employer’s rights, particularly with regard to disciplinary authority and the exercise of its right to organize and manage. Second are the obligatory clauses, which create rights and obligations between the parties and primarily concern industrial peace and the duty to implement the agreement, such as the creation of labor-relations boards, the establishment of employer-funded benefits intended for social projects within the workplace community, and the establishment of training centers, among others. In summary, collective bargaining agreements, pursuant to the Constitution, have as their immediate purpose the inter partes revision—with the force of law—of the minimum content of the statutory benefits governing employment relationships, all with the aim of improving upon or exceeding that essential minimum.” (see judgment n°2007-18485 at 18:02 hours on 19 de diciembre de 2007).

On this same subject, in judgment n° 2020-12800 at 11:01 hours on 8 de julio de 2020, the Chamber found that a right greater than that recognized by law may be recognized:

“Likewise, nor is it tenable to argue that collective bargaining may recognize greater rights for the parties—which is certainly true—but it must be noted that these are greater concessions concerning validly and legitimately recognized rights, which is not the same as limiting the freedom of negotiation of any of the parties involved. Put differently, a collective bargaining agreement may recognize a right greater than that recognized by law, but it may not limit that right. In any event, such greater recognition, in accordance with what was stated in the preceding recital (considerando), must likewise comply with Constitutional Law (Derecho de la Constitución), thereby achieving the legal harmony on which a legal system depends.” (emphasis not in the original).

For its part, in judgment n° 2008-003935 at 14:48 hours on 12 de marzo de 2008, the Chamber noted 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 result in improved provision of public services:

“In other words, this Chamber has not questioned the ability of any Public Administration entity to grant certain incentives or benefits to its workers, since doing so may constitute a suitable measure for compensating a special requirement of the position, involving certain professional qualifications or skills on the part of those who hold it, or for compensating a particular risk inherent in performing those duties, whether a physical risk (for example, physically dangerous work) or a legal risk (for example, work that may give rise to civil liability).” Notwithstanding the foregoing, it is also fair to mention that, although the right to collective bargaining in the public sector is recognized and may be used to grant or recognize rights or benefits that exceed those predefined by law, such bargaining is also subject to limits: it must be compatible with the exercise of the statutory powers of public entities and respect the limitations necessary to reconcile public spending with budgetary availability and the sound management of public funds. In this regard, the Chamber has stated that the limits on collective bargaining are the constitutional principles of reasonableness, proportionality, economy, and efficiency, as well as the law:

“It has also been stated that, without in any way detracting from collective bargaining as a right recognized by the Constitution and by instruments of the International Labour Organization, its substance is also subordinate to constitutional rules and principles, insofar as the decisions made through such bargaining often have consequences for public finances. Within this context, its adoption and validity are not subject merely to verification of the adoption procedure, but also to a substantive analysis, since its content must comply with constitutional rules and principles because public funds are involved. Thus, the obligations agreed upon by public institutions toward their employees, as occurs in this type of bargaining, may be analyzed for reasonableness, economy, and efficiency, in order to prevent a collective bargaining agreement from disproportionately limiting or infringing the rights of the workers themselves, or to prevent the misuse of public funds” (see judgment N°2021-009580 at 9:15 hours on 12 de mayo de 2021).

This review of the Chamber’s case law on collective bargaining agreements illustrates the issues on which it has ruled, thereby clarifying the permissible scope of collective bargaining and the terms of such agreements. It also makes clear that collective bargaining must be analyzed in light of reasonableness, proportionality, economy, and efficiency.

With the foregoing in mind, and after carefully reading Article 43 of the proposed Law under review, I can conclude that collective bargaining is not actually being prohibited, even with respect to monetary matters, despite the wording of the first paragraph. A close examination of the second paragraph of Article 43 shows that collective bargaining is permissible, provided that it complies with the constitutional principles of reasonableness, proportionality, legality, equality, and budgetary legality; all of these parameters are set forth in the judicial precedents cited above. Furthermore, the third paragraph of Article 43 indicates that bargaining may concern monetary matters, since it expressly contemplates the possibility that the bargaining may affect the principle of budgetary legality and require legislative or regulatory approval, referring to the need to include the agreed terms in the budget law or in the corresponding regulations, as well as approval by the Contraloría General de la República when institutional budgets are affected.

I ask: How could an institution’s budget be affected if the bargaining did not concern some economic matter related to salary, incentives, salary supplements, and so forth? Although the wording of the provision is confusing, I must emphasize that its purpose is to make clear the conditions that must be satisfied for bargaining on economic matters to be permissible. Under this interpretation of Article 43, I consider it not to be unconstitutional. Nevertheless, I must stress that it is a confusing provision that could create problems in its application.

Discriminatory situations may arise, such as one that could occur between public servants who will be subject to the new public-employment system—for example, newly hired employees—and those who may continue to receive certain benefits derived from collective bargaining agreements that remain in effect. This situation entails an evident contradiction because, if the purpose of the proposed Law is to standardize the employment conditions of all workers included in this new public-employment system, provisions such as the one under review—which is included in that same proposed Law—would create distinctions and potential discrimination among public servants. This would unquestionably violate the principle of equality and nondiscrimination protected by Article 33 of the Constitution.

In view of the foregoing, if the wording of the provision remains unchanged, its content must be interpreted in light of Article 62 of the Constitution and the case law established by this Court. Accordingly, collective bargaining would not be prohibited; rather, what would not be permitted is bargaining conducted according to criteria that fail to respect proportionality, reasonableness, and the substance of the Constitution and the Law.

• d)Justice Garro Vargas’s differing reasons regarding the constitutionality of Transitory Provision XV I depart from the Chamber majority’s decision in responding to the legislative consultation insofar as it finds that Transitory Provision XV of the proposed law is constitutional in itself. The provision under review states as follows:

“Upon the entry into force of this law, the heads of public entities shall be required to denounce (denunciar) collective agreements (convenciones colectivas) upon their expiration.” The majority of the Chamber proposes answering the consultation to the effect that the provision is not unconstitutional “provided that it is interpreted in the same manner indicated in decision number 2018-019511 of 21:45 hours on 23 de noviembre del 2018; that is, pursuant to 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 to mean that each head of a public entity has the authority to denounce or not denounce the respective collective agreement, in accordance with the legal system in force.” In other words, from the outset, the majority of the Chamber is altering the content of the provision under consultation, because it asserts that denunciation of the collective agreement is discretionary, whereas the purpose of the bill is that, upon the “expiration” of the corresponding collective agreement, the head “shall be required to denounce” it.

This means that the collective agreement validly negotiated by the parties must remain in force for the term originally agreed upon, but once that term has ended, the heads shall be required to submit the corresponding denunciation. The purpose is to allow a new agreement to be reached thereafter, but under the legislation being enacted, so that the provisions seeking to restrict the elements that cause distortions in public-sector salary payments are therefore taken into account (see considerations concerning the constitutionality of Art. 43 of the bill).

It must be clarified that the situation presented in the bill under review differs from that resolved by this Court in judgment n.°2018-019511—in which I participated?—because that decision examined the constitutionality of a provision that, conversely, limited or restricted the parties’ ability to denounce the negotiated collective agreement. In other words, the provision declared unconstitutional sought to impose on the parties an obligation not to denounce the collective agreement. This therefore entailed a kind of perpetuation of the negotiated terms. Accordingly, what I state on this occasion does not contradict what was decided at that time, when, in light of Articles 62 and 74 of the Political Constitution, the provision was held unconstitutional because it “improperly establish[ed] an obligation to refrain from exercising a right recognized by the mandatory rule governing the collective bargaining (negociación colectiva) system.” That decision likewise cites, by way of reference, what was resolved in advisory opinion n.°2018-19511 and certain observations of the International Labour Organization (OIT), which state that “a legal provision compelling one party to conclude a contract with another would be contrary to the principle of free and voluntary bargaining.” In this regard, I must clarify that I did not participate in that advisory opinion and, moreover, I consider that the observation made does not fit the case now submitted to us for review.

Indeed, the OIT’s observations refer to a measure that prematurely terminates collective bargaining. The case at hand, however, presents a different scenario. It seeks to honor the original term of the negotiations, without requiring their denunciation in advance. On the contrary, the agreed term is respected, and denunciation is required upon “expiration.” From my perspective, that circumstance does not coincide with the case examined by the OIT, because it does not compel the early termination of the agreement or infringe its agreed terms. It merely indicates that, once the term of validity has ended, the corresponding adjustments should be made “in accordance with” the law (as stated in Art. 62 of the Political Constitution), one such law being, specifically, the new public employment law that is being proposed.

Ultimately, this is a transitional provision that recognizes the legal validity of collective agreements already concluded in accordance with the legislation in force, while proposing a legal solution for bringing subsequent agreements into conformity with the new statutory provisions intended to prevent salary distortions that affect public budgets.

Consequently, I depart from the considerations expressed by the majority of this Chamber and, based on the reasons explained herein, answer the consultation to the effect that the transitional provision under consultation does not violate the Law of the Constitution.

• e)Different reasons of Justice Picado Brenes regarding Transitional Provision XV of the bill, insofar as it concerns the denunciation of collective agreements (point 56 of the Por Tanto) I joined the unanimous vote of the Chamber, which held that Transitional Provision XV of the Public Employment Bill is not unconstitutional, provided that it is interpreted pursuant to the Political Constitution (Articles 62 and 74), the International Conventions of the International Labour Organization, and the case law of this Court, such that it must be understood that each head of a public entity has the authority to denounce or not denounce the respective collective agreement, in accordance with the legal system in force.

Regarding the denunciation of collective agreements, it is relevant to recall that, in judgment n°2018-019511 of 21:45 hours on 23 de noviembre de 2018, the Constitutional Chamber stated that no party may be compelled to denounce a collective agreement because doing so is contrary to the very essence of collective bargaining, and the Chamber stated:

“(…)

Lastly, regarding the mandatory denunciation of collective agreements provided for in Transitional Provision L of the bill under consultation, the International Labour Organization (OIT), in Report N° 344, of marzo de 2007, Case N° 2460, paragraph 990, stated:

“990. Regarding the court’s ruling in the Nombre64 case, according to which the legal prohibition of collective bargaining is permissible under the Constitution of the United States because it contains no provision—including the right of freedom of association enshrined in the First Amendment—that compels one party to conclude a contract with another, the Committee, while recalling the importance it attaches to the obligation to bargain in good faith in order to maintain the harmonious development of labor relations, wishes to emphasize that the voluntary negotiation of collective agreements and, therefore, the autonomy of the social partners in negotiations constitute a fundamental aspect of the principles of freedom of association. For collective bargaining to be effective, it must be voluntary and must not entail recourse to coercive measures that would alter the voluntary nature of such bargaining.

No provision of Article 4 of Convention No. 98 requires a government to coercively impose a collective bargaining system upon a particular organization, since such governmental intervention would clearly alter the nature of those negotiations [see Digest, op. cit., paragraphs 925-927 and 934]. Therefore, although a legal provision compelling 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 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.” It is therefore clear that, as defined by the OIT, a legal provision compelling 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 requires collective agreements to be denounced and, on the other hand, prevents improvements in conditions from being achieved through such agreements, without any form of qualification, would be contrary to the Law of the Constitution; accordingly, the legislature could not, in advance, restrict the possibility of concluding collective agreements between employers and workers in the public sector where the application of this institution is constitutionally permissible without violating freedom of association.” Similarly, judgment n° 2020-12800 of 11:01 hours on 8 de julio de 2020 stated, insofar as relevant:

“Under this understanding, a provision to that effect would not only be contrary to the principle of free bargaining but would also clearly conflict with the principles of reasonableness and proportionality.

It was in this sense that, in the same judgment 2018-19511, the Chamber stated:

“[E]ach head of a public entity has the authority to denounce or not denounce the respective collective agreement, in accordance with the legal system in force.” —emphasis added— Thus, if the provision now being challenged states, as it indeed does, that both parties to the Collective Labor Agreement of the Universidad Nacional undertake not to denounce that Agreement unilaterally, a duty is being imposed on both parties—not only on the Universidad, but also on the union—that runs counter to the constitutional provision concerning collective bargaining, by preventing both parties from freely exercising the right to bargain within a framework of reasonableness and proportionality, and by compelling the petitioner to refrain from jointly reviewing with the union matters related to the proper use of public funds.

Accordingly, the action must be granted because the referenced phrase in the final paragraph of Article 185 of the Collective Labor Agreement of the Universidad Nacional is contrary to the Law of the Constitution, under the terms stated.

—Conclusion.— Ultimately, because the first part of the final paragraph of Article 185 of the Collective Labor Agreement of the Universidad Nacional is contrary to the Law of the Constitution, the appropriate disposition is to grant this constitutional challenge and annul as unconstitutional the phrase ‘The parties undertake not to denounce this Agreement unilaterally.’ Consequently, and as I likewise state with respect to Article 43 of the bill under review, I consider that any provision requiring the denunciation of collective agreements, as the aforementioned Transitional Provision XV does, must be analyzed in light of the ruling in judgment n°2018-019511.

As I indicated in the reasons I expressed regarding Article 43, which is the subject of this consultation, if the wording of this transitional provision is retained, its content must be interpreted in light of Article 62 of the Constitution and the case law established by this Court. Thus, collective bargaining would not be prohibited; rather, what would be prohibited is conducting it under criteria that do not respect proportionality, reasonableness, and the content of the Constitution and the Law.

XVII.Regarding the consultation submitted concerning the sanction of general disqualification (inhabilitación genérica).—(drafted by Justice Picado Brenes)

• 1)Specific analysis of the matters under consultation The requesting legislators consider that Article 4(a) of the bill entitled “PUBLIC EMPLOYMENT FRAMEWORK LAW,” which is being processed under legislative expediente N° 21.336, by establishing a general sanction of disqualification (inhabilitación), violates constitutional principles. That provision expressly states as follows:

“ARTICLE 4—Governing Principles The governing principles of public employment (empleo público) are:

• a)Principle of the State as a single employer: this is based on the premise that the State is a single center to which employment rights are attributable, regardless of where the public servant works. This means that when a public servant transfers from one position to another within the public sector, the employment relationship must be treated as a single relationship for purposes of recognizing the corresponding employment rights and ensuring accountability for official duties, irrespective of any changes in position that may occur. Additionally, it entails that sanctions resulting in an official’s dismissal without employer liability (despido sin responsabilidad patronal) from an institution, in accordance with the legal system in force, shall prevent any other entity or body forming part of the State from hiring that official for a period ranging from six months to two years.” The requesting legislators consider it unconstitutional because, in their view, it constitutes a generic and automatic disqualification sanction that would apply to any type of dismissal, regardless of whether it concerns serious or minor offenses, without the sanctioning body being able to assess the seriousness of the conduct and without any balancing of the rights that would be affected.

They consider that, although it is true that the Constitutional Chamber has upheld disqualification sanctions barring persons from holding public office as part of the criteria for ensuring the suitability (idoneidad) of public-sector workers, the sanction created by the provision under review is generic; that is, it would apply to any type of dismissal, regardless of whether it concerns serious or minor offenses. They therefore regard it as an automatic sanction imposed merely because a person has been dismissed without employer liability. In the opinion of those signing the request, the offenses giving rise to termination of the employment relationship without employer liability do not all irremediably establish a lack of suitability for holding positions in every Public Administration. They consider that the automatic application of such a severe measure must take into account the type of offense committed, balancing the proportionality and reasonableness of the punitive administrative act (acto administrativo sancionatorio); however, they believe that the provision in question does not allow such balancing or assessment.

At this point, it is important to recall, first, that the Constitutional Chamber has ruled repeatedly on the sanction of disqualification, stating that a person may be temporarily disqualified from holding public office through administrative proceedings (vía administrativa) and that it is therefore not a sanction foreign to the administrative sphere. Thus, for example, in judgment n°2013-04491 at 16:00 on 03 de abril de 2013, it held as follows:

“Accordingly, the ruling is not particularly conclusive regarding the reasons why the imposition, at the administrative level (sede administrativa), of disqualification from public positions would be unconstitutional. Indeed, this particular type of sanction is not subject to the rigid and amply substantiated limits that apply, for example, to the imposition of imprisonment by any public authority other than a court. In this latter respect, 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 as to the necessity, among other requirements, that a decision as serious as restricting personal liberty be adopted through an act of a judge. Disqualification, by contrast, is not a sanction foreign to the administrative sphere.

In our legal system, for example, provisions such as Article 100(a) of the Administrative Procurement Law, Article 3 of the Mining Code, Article 9(f) of the Regulations to the Civil Service Statute, and Article 13 of the Notarial Code authorize the respective competent bodies to impose an administrative penalty of that nature, and the Chamber has consistently rejected challenges brought against some of them (judgment #2000-5525 at 14:58 on 5 de junio de 2000, regarding the Administrative Procurement Law; decisions #2002-6057 at 14:42 on 19 de junio de 2002, #2002-10940 at 15:08 on 20 de noviembre de 2002, #2003-3423 at 15:58 on 29 de abril de 2003, and #2006-3135 at 10:42 on 10 de marzo de 2006, concerning the Regulations to the Civil Service Statute).” (Underlining not in the original) Regarding its constitutional basis, judgment n°2006-08493 at 14:43 on 14 de junio de 2006 stated:

“Disqualification is justified by:

‘the State’s power to sanction offenses committed by its employees in the public service, as well as the need to safeguard and protect itself against irregular conduct by its officials that affects rules of subordination and the public interest, through its sanctioning power, like any employer, in response to the failure to perform public-service duties properly. Once the disciplinary regime (régimen disciplinario) has been applied, as an executive and enforceable act, the provision in question becomes operative. It should be noted that the case law recognizes the existence of reasonable requirements imposed by law, not as a limitation on Articles 56 and 57 of the Constitution, but to ensure that the provision of public services complies with Articles 191 and 192 of the Political Constitution. Thus, before appointing any public employee, the State may lawfully impose additional conditions or requirements for the selection of its employees, and even more so when the possibility of rehiring arises.

Accordingly, the conditions in the challenged provision are lawful limitations—from a constitutional standpoint—imposed by a Law of the Republic that establishes the temporary unsuitability (inidoneidad temporal) of former officials for a new public position where they have been dismissed without employer liability, as occurred in the matter under review. It should be noted that the Chamber’s case law even allows disciplinary investigations not to be closed because the person under investigation left the position early, so that the matter will remain on file should that person subsequently apply for another appointment by the Administration.’” And that judgment ultimately states:

“From the foregoing, it follows that the existence of a provision establishing the duration of the consequences of a dismissal is not unconstitutional, since it exists precisely so that officials who have misused their position or State assets may not be appointed again for a specified period, all in order to ensure the morality and legality of the Administration.” (To the same effect, see rulings #2002-6057 at 14:42 on 19 de junio de 2002 and #2003-05262 at 14:40 on 18 de junio del 2003. Regarding the possibility of continuing administrative proceedings despite a public servant’s resignation, see judgments #1999-2958 and #622-93 at 15:48 on 8 de febrero de 1993.)

Furthermore, in judgment n°2012-00267 at 15:34 on 11 de enero de 2012, the Chamber held, insofar as relevant:

“In the case of the challenged provision, it is a regulatory provision establishing the consequences of a dismissal without employer liability within the Public Administration, so that public officials who have misused their position or State assets may not be appointed again to a Civil Service position for a specified period. As public employees, they must comply with a particular set of ethical and moral duties, and it is prudent to make their appointments subject to the constitutional principle of suitability, as occurs in this case. Furthermore, the Chamber considers it illusory and wholly devoid of legal logic for an official dismissed for violating these principles to seek an immediate return to public service while disregarding the protective mechanisms established by the legal system against possible abuses of State property, which directly bear upon the ethics and morality that every official must demonstrate (judgment 2002-5424 11:10 31 de mayo 2002).

The provision under review establishes the temporary unsuitability of public officials who were dismissed from their positions without employer liability, and its sole purpose is to protect the Public Administration with respect to the moral fitness of persons who at some point violated the rules of the Civil Service Statute; consequently, future appointments in the Executive Branch under that regime are subject to a specified waiting period. The Chamber notes that judgment number 2001-12005 stated:

‘It clearly makes sense to indicate that the suitability of public servants must not be understood solely in a specific sense, such as “academic” or “physical” suitability, but must instead be viewed as a combination of elements or factors of various kinds which, when assessed as a whole, result in one person being the most suitable for the position. Moreover, the Chamber cannot conceive how the necessary “psychological fitness” could be disregarded, not only in general terms of “stability” or “normality,” but also with respect to the conditions or “specific aptitudes” that certain positions necessarily require for efficient performance. In the Chamber’s view, this is therefore an appropriate and proportionate means of achieving the constitutional purpose established in Articles 191 and 192 of the Constitution, insofar as, as explained, it complements the other aspects of suitability; and this same reason causes it to take precedence—in this specific case—over the other constitutional rights that the appellant considers implicated in this dispute, namely, the right to equal treatment and the right to work, since psychological fitness must be regarded as an integral component of the suitability 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 correctly states, the Statute does include among its rules the requirement that suitability for the position be demonstrated—broadly—and, with it, the requirement that psychological fitness be established.’” Consequently, it is consistent with constitutional parameters for the provision to establish a period of disqualification (inhabilitación) from reentry into the Civil Service (Servicio Civil) for a public servant who was dismissed without State liability. It should be borne in mind that this is not an additional penalty to dismissal, as the petitioner appears to understand it, but rather the regulation of the legal consequences of an event, whereby the State protects itself against improper conduct that undermines the subordination owed by every public servant to the State as employer and to the legal system.

Thus, when misconduct is established for which disciplinary authority should have been exercised, as a means of requiring strict compliance with the duties of public office or termination of the service relationship on one of the existing grounds, that fact must form part of the requirements for reentry into the Civil Service.” From this perspective, therefore, the challenge raised regarding the possibility of imposing a disqualification penalty in the field of public employment would not be unconstitutional. In the opinion of the Constitutional Chamber (Sala), these are lawful limitations—from a constitutional standpoint—imposed by a law of the Republic, which provides for the temporary ineligibility of former officials for a new public position if they were dismissed without employer liability, as occurred in the matter under review. The Chamber has also held that the existence of a provision establishing the duration of the consequences of a dismissal is not unconstitutional, precisely because it exists to prevent officials who have misused their positions or State assets from being appointed again for a specified period, all in order to guarantee the integrity and legality of the Administration (see judgment nº 2006-08493 at 14:43 on 14 de junio de 2006 and, to the same effect, rulings 2002-6057 at 14:42 on 19 de junio de 2002 and 2003-05262 at 14:40 on 18 de junio del 2003).

This Court considers it consistent with constitutional principles to impose disqualification on an official dismissed for just cause, since it cannot be expected that such an official may immediately return to public service while bypassing the safeguards established by the legal system (judgment 2002-5424 at 11:10 on 31 de mayo 2002). From this perspective, an analysis of Article 4.a of the bill under review shows that, given the legislature’s objective of making the State a single employer, penalties resulting in an official’s dismissal without employer liability from one institution automatically bar that official from working in any other entity or body forming part of the State for the period established in that provision. On this point, sight must not be lost of the State’s obligation to safeguard the fitness required of anyone seeking a public-service position, as an integral part of the requirement set forth in Article 192 of the Political Constitution (Constitución Política).

The issues raised by the requesting parties concerning the relationship between the type of misconduct committed and the penalty, or the proportionality and reasonableness of the punitive administrative act (acto administrativo sancionatorio), are matters that must be assessed in each specific case as part of due process (debido proceso); they do not, for that reason, render the provision unconstitutional per se. It is also relevant to recall that the Costa Rican legal system contains certain provisions concerning disqualification whose content is somewhat similar to that of Article 4.a under review. These include the following:

• 1)Regulations to the Civil Service Statute (Reglamento del Estatuto del Servicio Civil):

“Article 9° - In addition to those established by Article 20 of the Statute, the requirements for entering the Civil Service are as follows:

• d)Not to have been removed from office for violating the provisions of the Statute, these Regulations, or the autonomous regulations of institutions covered by the Statutory Regime, during a period of no less than three and no more than ten years preceding the date of entry, depending on the seriousness of the misconduct and in accordance with the guidelines to be established on this matter by the Dirección General de Servicio Civil.” 2) Organic Law of the Office of the Comptroller General of the Republic (Ley Orgánica de la Contraloría General de la República).

“Article 72.- Prohibition on entry or reentry by the offender. No person who has committed a criminal offense or serious violation of the rules comprising the oversight system provided for in this Law, or an offense against property or good faith in business dealings, may be appointed to a position within the Public Treasury (Hacienda Pública). This prohibition shall remain in force for a period of no less than two and no more than eight years, as determined by the Contraloría General de la República, which shall decide after reviewing the evidence in the case. The prohibition shall likewise apply, for the same period, to former public servants seeking to reenter the Public Treasury when they have committed a criminal offense or serious violation such as those mentioned above, even if their prior service relationship with the Public Treasury ended through no fault of their own. In addition, the prohibition established herein shall apply to any public servant who was dismissed for having committed a criminal offense or serious violation such as those already cited.” Accordingly, the temporary administrative disqualification of a public servant from holding public office is a measure recognized by this Court.

It allows officials who have breached their ethical and moral duties by misusing their positions or State property to be barred from reappointment for a defined period, in order to uphold the principles of administrative efficiency and demonstrated fitness (idoneidad comprobada). This principle of fitness must not be understood solely as verification of academic qualifications, physical abilities, or experience; it also extends to a series of ethical, moral, and even psychological elements that form part of the fitness required for holding public office. It is therefore an appropriate means of fulfilling the constitutional purposes embodied in Articles 191 and 192 of our fundamental charter. In accordance with the foregoing, disqualification establishes the temporary ineligibility of former officials for a public position when they have been dismissed without employer liability, thereby seeking—as stated supra—to ensure that public services are provided in accordance with the principles of demonstrated fitness and efficiency in public service (Articles 191 and 192 of the Political Constitution).

It should likewise be emphasized that the Chamber has stated that this disqualification is not absolute but is subject to a series of limits governing its application, among which this Court has identified the following:

• 1)it must have a defined term authorized by law or be imposed for a reasonable period;
• 2)it must be temporary;
• 3)it must be duly reasoned; and
• 4)it must be imposed solely as a consequence of removal for proven serious misconduct. All these matters must be assessed in each specific case and as part of due process. Moreover, all of this must be applied in light of any special rules that each institution may have in this regard, with the legal decision-maker (operador jurídico) performing the necessary interpretive analysis. In this respect, it should be recalled that, in matters involving optional consultations (consultas facultativas), this Court rules only on the issues submitted for consultation; therefore, its silence on any matter cannot be construed as a form of endorsement of the bill under consultation. If it is considered that this issue involves other elements, beyond those submitted for consultation, that may violate the supremacy of the Political Constitution, the appropriate avenue would remain open for their proper adjudication (see, to that effect, judgments 2001-11643, 2001-12459, 2012-9253, 2019-9220 and 2020-010160, among others).
• 2)Conclusion In accordance with the foregoing considerations, it may be concluded that the existence of a provision establishing disqualification as one of the continuing consequences of a dismissal is not unconstitutional. Thus, under the terms indicated and in accordance with constitutional case law, with respect to the matter submitted for consultation, Article 4.a of the bill entitled “FRAMEWORK LAW ON PUBLIC EMPLOYMENT” (“LEY MARCO DE EMPLEO PÚBLICO”), pending under legislative expediente N° 21.336, is not unconstitutional. It will be for the legal decision-maker to address all matters relating to affording due process in the dismissal, assessing the relationship between the type of misconduct committed and the penalty, evaluating the proportionality and reasonableness of the punitive administrative act, and determining the specific provision to be applied when the institution concerned is governed by special rules.
• 3)Note Note by Justice Picado Brenes concerning Article 4 subsection a) of the bill, regarding the general disqualification penalty (point 57 of the Por Tanto) I concur with the majority opinion in finding that the disqualification penalty contained in subsection a) of Article 4 of the bill under review is not unconstitutional in itself; however, I consider it necessary to make certain clarifications that, in my opinion, are important to bear in mind because they could entail constitutional violations.

I must begin from the premise that, although it is true that, in general terms, the existence of a provision establishing the continuing consequences of a dismissal—such as disqualification from holding public office, as regulated in Article 4 subsection a)—is not unconstitutional, it is equally true that this must be accompanied by a series of mechanisms facilitating its proper application, as well as safeguards for the Administration in the interest of 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 the wording deficient because it fails to address these details and could therefore, in practice, give rise to constitutional issues.

First, it should be noted that the provision merely refers to “penalties resulting in the official’s dismissal without employer liability from an institution,” which the requesting parties have understood as referring to the disqualification penalty. Nevertheless, it is abundantly clear that the provision’s open-ended wording could encompass any other type of penalty imposed on the employee, whether one currently existing in the legal system or any other that might be created in the future. This element alone could cause future problems, since it must be recalled that punitive matters must be expressly defined, and the word “penalties” may refer to many situations—currently indeterminate—that, when used to the detriment of an employee, could encompass a wide range of conduct to which subjective criteria might even be applied.

In another vein, if the provision is interpreted as the requesting parties do, to mean that it refers exclusively to the penalty of disqualification (inhabilitación), in my view this would constitute an automatic and generic disqualification from holding public office, to the detriment of any public servant who has been dismissed without employer liability (despedido sin responsabilidad patronal), regardless of the type or seriousness of the offense committed. Such a situation disregards the proportionality standard that must exist between the severity of the legal consequence (disqualification), the type of conduct sanctioned, and the public interest protected. In this regard, it is relevant to cite judgment n°2009-14027 of this Court, which concluded that there must be a constitutionally permissible proportionality between the seriousness of the conduct in relation to the interests sought to be protected and the characteristics and type of penalty established by law. In the case of the provision under review, it should be noted that it does not explain which offenses are subject to which penalties, nor does it determine the type of penalty to be applied to each offense or conduct. Furthermore, the article does not establish the standard for determining whether such disqualification should be imposed for the minimum period of 6 months or the maximum period of 2 years.

As the Constitutional Chamber has held in settled case law, the Public Administration has the authority to temporarily disqualify a person, through administrative proceedings, from holding public office when that person has misused his or her position or State property; therefore, the provision would not, in general terms, be unconstitutional. It is nevertheless essential to point out that such a penalty of disqualification is not absolute, but is subject to a series of limits governing its application: 1) it must have a defined term authorized by law, or be imposed for a reasonable term; 2) it must be temporary; 3) it must be duly reasoned; and 4) it must be imposed only as a consequence of a public servant having committed serious offenses proven through due process (debido proceso), because there must be a constitutionally valid proportionality between the seriousness of the conduct, the interest sought to be protected, and the type of penalty established by law. In this regard, in judgment n°4425-94 of 8:06 hours on 19 de agosto de 1994, subsequently cited in decision n°2013-015701 of 9:20 hours on 29 de noviembre de 2013, the Chamber held that such a penalty is improper for a former official who was not removed from public service for serious offenses. On that occasion, in addressing the limits on its application, the Chamber emphasized:

“VI.- The corollary of the foregoing recitals would therefore be that the imposition of the penalty challenged herein would be constitutional if: a) it has a defined term authorized by law, or is imposed for a reasonable term (it should be noted that the former term of three years and the current term of five years do not appear excessive, provided that it is applied under the conditions mentioned and summarized below); b) it is temporary; c) it is expressly ordered and reasoned; and d) it is imposed only as a consequence of dismissal for serious offenses proven through due process.” (Emphasis not in the original).

Now, in the case under review, a reading of article 4, subsection a), shows that this provision does not include tools that would allow the reasonableness and proportionality of the alleged conduct to be assessed. It should be noted that the article establishes the automatic and generic disqualification from holding public office of any public servant who has been dismissed without employer liability, regardless of the type or seriousness of the offense committed. This disregards the proportionality standard that must exist between the severity of the legal consequence (disqualification), the type of conduct sanctioned, and the public interest protected.

In addition to the foregoing, it must be recognized that the purpose of a penalty disqualifying a person from holding public office is to safeguard the principles of administrative efficiency and demonstrated suitability (idoneidad comprobada), since the sanctioned person committed an offense that undermines those principles. In this regard, it must be borne in mind that suitability should not be understood solely as proof of academic qualifications, physical fitness, or experience, but also encompasses a series of ethical, moral, and even psychological elements necessary for holding public office. It is therefore an appropriate means of achieving the constitutional purposes set forth in articles 191 and 192 of the Constitución Política. Consequently, if a person’s disqualification presupposes that person’s temporary or permanent unsuitability (inidoneidad) to hold public office—in the event of dismissal without employer liability, as provided by the provision—and this is intended to ensure that public services are provided in accordance with the principles of demonstrated suitability and efficiency in public service (articles 191 and 192 of the Constitución Política), logic dictates that determining this circumstance with respect to a public servant would require compliance with a series of previously established requirements by which those qualifications would be assessed.

As stated above, such requirements or conditions are not found in the provision, and their absence could also constitute an omission that infringes fundamental rights, since the wording of the article would allow that determination to be made on the basis of subjective and insufficiently technical criteria.

It is relevant to cite judgment N°2002-05424 because, when analyzing the constitutionality of article 72 of the Ley Orgánica de Contraloría General de la República, the Chamber rejected the contention that disqualification contravened Constitutional Law (Derecho de la Constitución), emphasizing that it safeguarded the moral suitability required of anyone seeking a public-service position, as an integral part of the requirement established in numeral 192 of the Carta Política, where serious offenses had been committed, as transcribed below insofar as relevant:

“What the provision establishes is a presumption of the temporary unsuitability of a former official who leaves public service through dismissal for having committed serious offenses against the oversight system, against property, or against good faith in business dealings, or who has committed criminal offenses. The provision bars from a Public Treasury position anyone who has committed a criminal act or the serious offenses described in the challenged provision, once disciplinary authority has been exercised...” (emphasis not in the original).

Another matter that must be considered is the term, because the Chamber has held that allowing the Administration, at its discretion, to determine the period that must elapse before an applicant becomes eligible to reenter public service, without establishing objective standards or maximum limits, violates the principle of legal certainty (seguridad jurídica). This is the basis for the statement supra regarding the ambiguity and imprecision of the provision in establishing a term ranging from 6 months to 2 years. In this regard, the cited judgment N°2012-00267 held:

“VIII.- Moreover, the second paragraph of subsection d) of article 9 establishes that ‘......A public servant who has been dismissed for the second time on grounds warranting dismissal without employer liability within the Executive Branch or any State institution shall be considered indefinitely ineligible. ’ The transcribed phrase establishes a definitive measure and would therefore constitute a perpetual penalty, carrying with it the resulting harm to the rights of the affected person, a situation that openly conflicts with article 40 of the Constitución Política. The only exception to the foregoing is where such ineligibility has been ordered in a criminal conviction; therefore, the Administration may not establish an indefinite disqualification through provisions of general application, and for that reason this paragraph conflicts with articles 39 and 56 of the Carta Política.

Certainly, a former public employee who has been dismissed on only one occasion (first-time offender) and one who has been dismissed on two occasions (repeat offender) are not similarly situated and therefore do not merit equal treatment with respect to the term of disqualification. Nevertheless, repeat-offender status does not justify discrimination contrary to human dignity, since the treatment ultimately given to the repeat offender may be the same as that eventually given to the first-time offender, given that the consequences of dismissal in both cases must be established within reasonable limits. Unsuitability, represented in this case by repeated misconduct, is a circumstance that must be considered when individualizing the disqualification period, because the seriousness of the acts for which the person was dismissed is the principal standard to be considered as a personal condition of the candidate.

Another important consideration is that employment or personal-history records assessed in the background investigations or personal-history reviews conducted by the Administration, on which findings of ineligibility due to unsuitability are based, must not date back more than 10 years (unless a judicial decision provides otherwise), as the Procuraduría General de la República correctly noted in its report. Unsuitability based on the former public employee’s disciplinary record must take into account the time elapsed since those entries were made, because they cannot remain in force indefinitely in light of article 40 of the Constitución Política. An entry recording the official’s dismissal, whether with or without employer liability, that dates back more than ten years and has not been removed from the personnel file would have a permanent effect and would also infringe the fundamental right to privacy and the presumption of innocence, because it stigmatizes the person and prolongs his or her culpability.

Thus, disqualification is not in itself unconstitutional, but its effects may be unconstitutional if they infringe fundamental rights. The foregoing entails recognition of the unconstitutionality of the second paragraph of the cited provision, which permits repeat-offender status to be taken into account as a standard supporting indefinite disqualification from entry into the civil service career.”

XVIII. Regarding the questioned violation of the right to equal pay and the global salary (salario global)

• 1)Issues raised Regarding the Global Salary, the requesting deputies question the following three matters:

-Violation of the principle of separation of powers and of institutional autonomy, because a Ministry of the Executive Branch would establish the global salary scale (columna salarial global) (art. 34) and thereby the salaries of the entire State apparatus, including the Poder Judicial, the universities, the municipalities, and decentralized entities.

-Violation of the principle of equal pay, because persons holding the same positions under the same conditions would receive different salaries (transitorio XI); furthermore, because equal treatment is given to persons who are not similarly situated, such as health-sciences officials, officials performing police duties for the Ministerio de Seguridad and those of the Organismo de Investigación Judicial, justice administrators, foreign-service officials, positions of trust, etc. (art. 30.a and 34). It is likewise questioned that the salaries of the deputies are not included within the salary cap (art.37).

—Violation of the principle of human dignity at work (principio de dignidad humana en el trabajo), because the definition of salary (art. 5.r) excludes recognition of any other remuneration (emolumento), whether in cash or in kind, that the employer directly or indirectly grants to workers, as provided by ILO Convention N° 100. Furthermore, because “availability” will be taken into account as a relevant factor in job evaluation (art.31.f), to the particular detriment of women, who usually have work outside the office and therefore have little “availability.” In addition, because the salaries of certain officials will be frozen, and they will receive no increase in their base salary or incentives (Transitory Provision XII).

Upon reviewing the filing submitting the consultation, it can be established that the objection raised by the petitioners regarding those provisions lacks adequate grounds and does not clearly state the reasons or arguments underlying the doubts brought before this Chamber. In this regard, it must be borne in mind that article 99 of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional) is very clear in establishing that the consultation must identify the challenged aspects of the bill and the reasons for the constitutional doubts or objections, and that all of this must be reasoned and duly substantiated; this requirement has not been met in this particular case, and therefore the consultation cannot be resolved in the terms sought by the petitioners. The only two provisions challenged on substantiated grounds are Transitory Provision XI and Transitory Provision XII. Accordingly, this Chamber shall rule solely on these two issues. It is understood that the conformity of the remaining provisions with the Political Constitution (Constitución Política) is not being examined.

In this regard, before proceeding to examine the constitutionality of the challenged provisions, it is appropriate to recall the constitutional scope and limitations of constitutional case law (jurisprudencia constitucional) concerning salaries.

• 2)Case-Law Background Regarding the Fundamental Right to Equal Pay In general, regarding the right to a salary, constitutional case law has stated: “A salary, as remuneration owed to a civil servant by virtue of a statutory employment relationship (relación estatutaria) for services rendered, is not merely an obligation of the employer but a constitutionally protected right.” (see judgment n°2015-009504). This fundamental right, moreover, is nonwaivable (art. 74 of the Constitution). The fundamental right to equal pay (igualdad salarial), or the right to pay equity (equidad salarial), is understood as the right that permits salary differences based on the conditions of the position (negative dimension), without allowing discrimination (art. 68 of the Constitution: “No discrimination may be made with respect to salary, … against any group of workers”). Conversely, it is the right to maintain equal salaries when the conditions of the position are equal (positive dimension).

The latter is established in art. 57 of the Constitution, which states: “The salary shall always be equal for equal work performed under identical conditions of efficiency.” This is confirmed 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 remuneration for work of equal value, without distinction of any kind…”), and the Protocol of San Salvador (Art. 7.a: “…and fair and equal remuneration for equal work, without distinction of any kind…”), to name only a few.

The Chamber has stated that, although a balanced and fair salary policy must be pursued, differences in the duties of each position cannot be disregarded. In judgment n° 97-1320, it stated:

“I. It is evident that a clear intention may be derived from the constitutional articles alleged to have been violated (33, 57, 68 and 74): that, in salary matters, the various forms of employment should receive balanced and fair treatment, whether or not they are professional in nature. This Chamber has reiterated this in its various rulings. But, as has also been explained, such balanced treatment requires—as in any other case involving an equality dispute—that the differences among the various activities be recognized, so that different activities are not treated as equivalent and equal activities are not treated differently, thereby preventing improper privileges resulting from the overvaluation of some activities or injustices resulting from the undervaluation of others.” With regard specifically to equal pay, judgment nº 94-6471 stated: “Nor is there any impairment of the right to equal pay under identical conditions, since it is evident that the diversity of duties set forth in the Position Classification Manual (Manual descriptivo de puestos) logically entails salary differences.” Furthermore, in judgment n° 15-10348, the Chamber stated:

“[The PGR]… the advisory body clarifies that, although the intention of the Constituent Assembly was to establish a single, uniform salary system for the entire Public Administration, the fact remains that, in the case of branches of government other than the Executive, autonomous and decentralized entities, and public enterprises, their highest governing bodies have full authority to establish their own policies regarding position classification and evaluation, as well as to set the corresponding remuneration in the exercise of their legal authority. The PGR concludes by stating that UNED governs its internal affairs and organization in accordance with the provisions of its organic law and internal bylaws, which embody the collective will of the university, because, under articles 84 and 85 of the Political Constitution, it enjoys an exceptionally high degree of administrative and governmental autonomy, distinct from that of other decentralized entities; it may therefore freely issue—within the limits of the Constitution—provisions governing its internal employment system (including remuneration), for both academic and administrative positions. This Constitutional Court agrees with the position adopted by the advisory body in resolving the merits of this case.” Accordingly, with respect to equality in general, judgment nº 4090-94 stated the following:

“It is of the utmost importance, for purposes of the issue raised, to indicate that the principle of equality established in article 33 of the Constitution is not absolute, since it does not confer a right to be treated in the same manner as any other individual regardless of differing circumstances, but rather the right to demand that the law not differentiate between two or more persons who are in the same legal situation or under identical conditions; equal treatment cannot be sought when the conditions or circumstances are unequal…” The Chamber’s line of precedent has been clear in recognizing that the remuneration of members of the branches of government cannot be indiscriminately equalized, since imposing equal treatment upon situations or officials who objectively find themselves in unequal circumstances would violate the general principle of equality and, specifically with respect to salaries and working conditions, article 57 of the Constitution. However, if salary equalization (equiparación salarial) is not indiscriminate but instead follows substantiated, objective technical criteria, there would be no inequality:

“As to the alleged discrimination, this Chamber has stated in its consistent case law that article 33 of the Political Constitution does not require equal treatment in every case regardless of any potentially differentiating factors of legal significance that may exist; in other words, not every inequality necessarily constitutes discrimination. As this Chamber has stated, the principle of equality is violated only when the inequality lacks an objective and reasonable justification.” (judgment n° 2000-00953).

Regarding salary increases and human dignity at work, in judgment n° 2003-005374 the majority of the Chamber at that time held that there is no fundamental right to cost-of-living increases when the salary exceeds the minimum wage:

“It is further asserted that there is a fundamental right to a cost-of-living increase. The majority of the Chamber cannot accept this latter argument because, under the Political Charter, the only subjective public right (derecho público subjetivo) that exists is the right to a salary, a provision that creates the employer’s legal duty to provide dignified remuneration for the work of its employees. In other words, the provision automatically imposes a positive obligation upon the employer, consisting of the duty to provide dignified remuneration to the salaried worker. Thus, as provided by article 57 of the Constitution, every worker is entitled to ‘…a minimum wage, periodically determined, for a normal working day, sufficient to provide well-being and a dignified existence.’ Contrary to what is claimed, no fundamental right to cost-of-living increases can be derived from this fundamental guarantee.

The provision guarantees minimum remuneration, a right that translates into the guarantee that work will be compensated through a minimum wage subject to periodic determination; this is in no way equivalent to a right to an annual salary increase in cases where the salary exceeds the minimum wage. Moreover, the majority of this Court does not consider there to be evidence in the record that the provision prevents the claimants from receiving dignified remuneration, and this allegation must therefore likewise be rejected. Not only is such evidence absent, but the matter also cannot be deemed an obvious circumstance requiring no proof.” The foregoing was affirmed by judgment n° 2004-013421, insofar as it states that there is no fundamental right whatsoever to a salary increase. However, this Court notes that a salary freeze is not only a different situation, but must also be temporary rather than permanent, as follows from judgment n° 2003-009952, because such a freeze—which entails a sacrifice by the worker, whose salary does not increase despite the rise in the cost of living—may be imposed only for a defined or determinate period and solely in extraordinary circumstances or circumstances involving the national interest.

An indefinite salary freeze would unlawfully affect vested legal situations (situaciones jurídicas consolidadas) in the future and would constitute an ad infinitum abuse by the State, since it would harm not only the official’s salary but also other rights, such as retirement benefits.

• 3)Specific Analysis of the Matters Under Consultation (drafted by Justice Castillo Víquez) In the first optional constitutional review petition (consulta de constitucionalidad facultativa), the members of the Legislative Assembly argue that the salary freeze established in Transitional Provision (Transitorio) XI, subsection b), violates Articles 11 and 33 of the Constitution because it disregards other existing legislation recognizing rights for this group of healthcare professionals—referring to CCSS employees—and because persons newly hired under the same conditions as those already working for the institution will receive a different, higher salary. To substantiate the alleged violation, they specifically refer to the provisions contained in sections 6, 7 d), 9, 13 b), 14, 17, and 18 of the bill. They also argue that it subjects CCSS to Mideplán provisions governing public employment management; for example, it imposes upon CCSS the duty to populate and update an employment platform every 6 months. They state that Transitional Provision XI, subsection b), seeks to change the salary system to a global salary (salario global) without repealing or amending other legislation that recognizes differentiated salary adjustments, such as the Ley de Incentivos a los Profesionales en Ciencias Médicas and its regulations, or the Estatuto de Servicios de Enfermería.

In the second optional constitutional review petition, the petitioners assert that Transitional Provision XI, as drafted, contemplates and promotes the establishment of two different salary scales and compensation amounts for the same position, applicable to public officials who perform duties and responsibilities under equal conditions but who will be compensated differently, without this distinction being based on objective and rational factors, and that this situation may continue for 12 or 15 years. In the members’ view, this violates the principles of equal pay, equity, and nondiscrimination, Articles 33 and 57 of the Constitution, and Articles 167 and 405 of the Código de Trabajo. They further maintain that there are no technical or objective studies or grounds justifying the continued existence of the salary difference proposed in that Transitional Provision. Finally, Transitional Provision XI contravenes and violates the principle of pay equity established in section 4 c) of the same bill.

As may be inferred from this summary of the grievances raised in both petitions, the members’ objection focuses on the cited Transitional Provision, rather than on other provisions of the bill. Their references to provisions of the bill and to other legislation currently in force—the Código de Trabajo and incentive laws in the healthcare sector—are supporting arguments advanced to maintain that Transitional Provision XI and, to a lesser extent, Transitional Provision XII are unconstitutional. Therefore, the majority will limit its analysis to the challenged transitional provisions and will not address other subconstitutional rules (normas infraconstitucionales) currently in force—which cannot be subject to prior constitutional review (control previo de constitucionalidad), but only to subsequent constitutional review (control de constitucionalidad a posteriori)—or the provisions of the bill that they cite.

As is well known, transitional law (derecho transitorio) is a legal technique intended to address problems concerning the temporal application of rules that arise when one rule is repealed and another enters into force, requiring existing situations to be adapted to the new reality created by the recently enacted law. Indeed, as legal scholarship has correctly maintained, transitional provisions form part of intertemporal law (Derecho Intertemporal), insofar as they are intended to resolve conflicts of laws. In response to the transitional issues caused by the new law, the legislature establishes a legal regime applicable to pending legal situations. In this regard, the function of so-called transitional provisions is to regulate certain situations temporarily in order to adjust or accommodate the new legislation, or to afford certain situations distinct, temporary, and exceptional treatment.

It is important to emphasize that the basis of a transitional provision lies in the need to address problems arising from the entry into force of the new law; that is its essence. It has been said that the content of transitional provisions seeks to resolve several types of situations. First, they determine whether the new regulations apply to legal situations predating the law, either by declaring the new law applicable, maintaining the former law in effect, or establishing a transitional regime different from that established by either law—the former or the new one. Another option available to the legislature, among a range of alternatives, is to regulate new legal situations provisionally when doing so is intended to facilitate the definitive implementation of the new law.

Regarding whether a transitional provision violates the principle of equality, it is important to recall what the Spanish Constitutional Court stated in Order 367/2003, of 13 November -ECl:ES:TC:2003:367A-.

“Furthermore, it is not apparent that the challenged provision entails the discrimination violating art. 14 CE to which the order referring the question alludes by reference to the admittedly confusing arguments of the claimant in the proceedings below. At the outset, it should be noted that the rules for calculating the pension’s regulatory base have nothing to do with whether retirement occurs early or upon reaching the ordinary retirement age of 65 years (age is taken into account for purposes of the percentage); consequently, there is no valid comparator on which to base an equality analysis concerning the alleged discrimination invoked to challenge the provision. Indeed, the rules contained in Transitional Provision Five, 1, LGSS apply to any type of retirement occurring after the provision enters into force, based on the date on which retirement occurred. Because the claimant retired in the year 2002, the final paragraph of Transitional Provision Five, 1, LGSS applies to him; it refers to art. 162.1 LGSS (a provision that, moreover, was not challenged by the referring court), namely, dividing by 210 the claimant’s contribution bases for the 180 months immediately preceding the triggering event.

Certainly, if the claimant in the proceedings below had been born several years earlier, he could have retired before the year 2002 and other calculation rules—those in force during the year in which retirement occurred—would have applied to him. However, the fact that the application of the preceding legislation might have been more beneficial to the claimant in the proceedings below does not mean that the new regulations may, for that reason, be deemed contrary to art. 14 CE, since the principle of equality cannot become a barrier to successive legislative reforms that the legislature considers necessary. That principle does not require all situations to receive equal treatment under the law irrespective of when they arose or produced their effects, since this would encroach upon the sphere of authority constitutionally assigned to the legislature and, ultimately, upon 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 stated early on in its STC 27/1981, of 20 July, FJ 10, in connection with a legislative reform concerning the administrative mutual-benefit system, whose reasoning is fully applicable to the matter before us, ‘the legal system, by its very nature, resists being frozen at a particular historical moment: it governs the relationships of human coexistence and must respond to the social reality of each period as an instrument of progress and improvement. It normally does so by establishing relationships pro futuro. But it is difficult for a rule to prevent a rule governing the future from affecting preexisting legal relationships, which constitute the foundation of future relationships; for that reason, such rules must often include transitional safeguards governing the pace at which one legal regime is replaced by another.... The challenged change in legal regime does not entail the elimination of any benefit entitlement that has already vested.’” (Emphasis does not appear in the original).

In addition to the foregoing, it must be borne in mind that Article 33 of the Constitution, which recognizes the principle of equality, means—as the Constitutional Chamber has recognized in numerous decisions—that all persons in the same situation must be treated equally. Moreover, “The principle of equality, contained in Article 33 of the Constitution, does not mean that equal treatment must be afforded in every case without regard to any legally relevant differentiating factors that may exist; in other words, not every inequality necessarily constitutes discrimination. As the Chamber has stated, equality is violated only when unequal treatment lacks an objective and reasonable justification. Furthermore, the justification for the act deemed unequal must be evaluated in relation to its purpose and effects, so that there must necessarily be a reasonable relationship of proportionality 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 different solutions for different situations as a form of differentiated treatment. All of the foregoing means that equality before the law cannot imply substantive equality or real and effective economic equality” (see decisions nos. 1770-94 and 1045-94).

The issue is to determine whether this difference in treatment is based on constitutionally legitimate purposes; whether it is objective—that is, whether it rests on 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 that has been adopted, as well as between the grounds for and content of the act; and whether that treatment is suitable for achieving the intended purpose.

In the first instance, a difference in treatment must be based on constitutionally legitimate objectives, which has three consequences for the purpose pursued. First, laws may not pursue purposes that conflict with constitutional law (Derecho de la Constitución) or with the rules contained in international human-rights instruments. Second, when purposes that are not constitutionally protected but do not conflict with constitutional values and principles are pursued, the difference in treatment must be subjected to strict scrutiny in relation to the factual premises that justify it and the purpose it pursues. Finally, when a constitutionally protected purpose is pursued, the difference in treatment will be valid provided that it satisfies the standards of reasonableness and proportionality and is necessary.

In decision N.º 4883-97, the Constitutional Chamber stated the following regarding this principle:

“The principle of equality, enshrined in Article 33 of the Political Constitution, does not mean that equal treatment must be afforded in every case irrespective of any legally relevant differentiating factors that may exist; in other words, not every inequality necessarily constitutes discrimination. Equality, as this Chamber has held, is violated only when the inequality lacks an objective and reasonable justification. Moreover, the justification for the act deemed unequal must be assessed in relation to its purpose and effects, such that there must necessarily be a reasonable relationship of proportionality 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 preclude different solutions for different situations, with differing 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 at 16:15 hours on 13 de diciembre de 1995).” (Emphasis in bold does not appear in the original).

Finally, it must be emphasized that compliance with the principle of financial or budgetary balance (principio de equilibrio financiero o presupuestario) in this case constitutes an objective and reasonable justification for concluding that the transitional provisions (normativa transitoria) comply with Constitutional Law (Derecho de la Constitución), particularly when account is taken of the central Government’s severely deteriorated fiscal position, which jeopardizes the viability of the social rule-of-law state (Estado Social de Derecho) and the Costa Rican economy as a whole. In this regard, in advisory opinion (opinión consultiva) n.° 2018-18505, we stated as follows:

“On this matter, in the face of a critical condition in public finances (duly supported by technical studies) that jeopardizes the effective or proper provision of constitutionally significant benefits, the decision of the competent authorities to define and implement appropriate measures to mitigate or resolve the problem is not only reasonable but, indeed, unavoidable.

That said, it is not for the Chamber to define specifically what type of remedies should be applied or which is most appropriate, since that forms part of the State’s economic policy, which in turn is a matter of governance. In fact, constitutional review (control de constitucionalidad) is limited to ensuring that solutions are adopted while safeguarding the fundamental rights (derechos fundamentales) protected by the Political Constitution and the international human rights instruments ratified by Costa Rica, as well as the essential attributes of the country’s political system (in a democratic, free, independent, multiethnic, and multicultural republic whose Government is popular, representative, participatory, alternating, and accountable), all of which entails 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 rule-of-law state is especially important. The Chamber observes that, for a social rule-of-law state to endure and fulfill its constitutional and statutory purposes, sound management of public finances is necessary; that is, an inexorable balance must exist between entitlements to state-provided benefits (derechos prestacionales) and the State’s financial 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 solidarity-based political system, one in which the less advantaged strata of society are afforded protection for their human dignity and their right to progress. Put differently, the ‘ideal’ social rule-of-law state is the ‘possible’ social rule-of-law state, which is precisely what is undermined when the principle of budgetary balance is breached, since, in the medium term, this seriously jeopardizes or altogether prevents securing the resources necessary to sustain a ‘real’ social rule-of-law state, one that the most vulnerable can truly and effectively enjoy.

It is therefore a fundamental task of this Chamber, strictly within the limits of its jurisdiction, to guard against the emergence of a failed or merely paper constitution in which constitutionally protected entitlements to state-provided benefits cannot be made effective.

It must indeed be noted that all constitutional principles, values, and provisions must be observed under all circumstances, which the constitutional jurisdiction (jurisdicción constitucional) is permanently responsible for overseeing. However, when the constitutional judge undertakes a balancing or optimization exercise to resolve a conflict among such principles, values, and provisions, the context surrounding the conflict cannot be overlooked.

As a corollary to the foregoing, failure to observe the principle of budgetary balance has been one of the causes of the current deterioration of public finances, which leads this Chamber to underscore the cross-cutting nature of that principle and to emphasize its actual implementation in furtherance of the principle of the social rule-of-law state. The observation of the Programa del Estado de la Nación bears repeating: ‘This [referring to the structural imbalance in public finances] has placed the future of the social welfare state built over the second half of the twentieth century in jeopardy, since its funding and the efficiency of its spending are insufficient.’” With respect to the alleged violation of the principle of legality (principio de legalidad), the requesting parties do not present an adequate argument from the standpoint of Constitutional Law. Accordingly, this Court offers no further consideration on the matter.

• 4)Conclusion For the foregoing reasons, it is concluded, by majority, that Transitional Provisions XI and XII do not violate the principle of equality—equal pay for equal work under identical conditions of efficiency—or the principle of legality and, consequently, are not unconstitutional.
• 5)Dissenting opinion and separate statement a) Dissenting Opinion (Voto Salvado) regarding subsection a) of Transitional Provision XI of the bill concerning salary rules (item 58 of the operative portion [por tanto]) by Justices Hernández López, Garro Vargas, and Picado Brenes, drafted by the last-named Justice We, the undersigned Justices, dissent on this point because we consider that subsection a) of Transitional Provision XI of the bill violates the fundamental right to equal pay (derecho fundamental de igualdad salarial). It follows from a reading of that subsection that persons holding the same positions under equal conditions will receive different salaries. Thus, existing public employees who perform the same duties as newly hired public employees are nevertheless placed in different salary categories. Specifically, this is the following situation: “Salary below the global salary: those whose composite salary is lower than the global salary shall continue earning their salary, and once it reaches the global salary, they shall automatically transition to it.” Although the purpose of transitional provisions is to make the adjustments necessary for a new law to take effect, that transition period must also respect individuals’ fundamental rights, and, in this specific case, that premise would not be satisfied.

It should be noted that public servants whose composite salary is lower than the amount to which they would be entitled under the global salary system would be the ones whose right to equal pay is violated because, despite having begun working earlier and performing the same duties as a newly hired employee subject to the global salary, they would receive a lower salary than those new employees. This creates pay inequality contrary to Constitutional Law, as also demonstrated by Report AL-DEST-CJU-027-2021 of the Departamento de Estudios, Referencias y Servicios Técnicos de la Asamblea Legislativa. From this perspective, foreclosing the possibility that current officials (whose composite salary is lower than the global salary) may transition to the global salary constitutes an inequality lacking objective and reasonable justification (see vote n°1997-4883). As explained in the case-law summary, the fundamental right to equal pay, or the right to pay equity (derecho a la equidad salarial), is understood as the right that permits salaries to be differentiated according to the conditions of the position (negative dimension), but without allowing discrimination (art.68 of the Constitution: “No discrimination may be made with respect to salary, … regarding any group of workers”).

Conversely, the right to salary is the right that allows the same salaries to be maintained when the conditions of the position are equal (positive dimension). This latter dimension is established in art.57 of the Constitution, which states: “Salary shall always be equal for equal work under identical conditions of efficiency.” There would therefore be inequality between current officials, who would receive a lower salary, and new officials receiving the global salary. We consider all of this unconstitutional.

• b)Separate statement by Justice Garro Vargas regarding subsection a) of Transitional Provisions XI and XII of the bill concerning salary rules (item 58 of the operative portion [por tanto]) As a premise for examining the grievance raised, it must be noted that I am aware of the purpose underlying the bill, namely that—in order to safeguard public finances—it is necessary to combat inequities and mechanisms that trigger or distort public spending through the uncontrolled payment of salary supplements and salary-based recognition payments (pluses y reconocimientos salariales). The latter has generated uncontrolled spending growth, which has a significant impact on public finances, but, above all, has created substantial inequality (in pay and responsibilities) among public servants who perform similar work.

That said, in order to examine and contextualize the constitutional question raised, reference must also be made to the bill’s statement of reasons (exposición de motivos). The legislative initiative is based on the objective of improving and updating compensation mechanisms for all public servants. A careful review of that statement of reasons shows that one of its guiding principles is precisely to pursue pay equality:

“Recommendations of the CGR regarding compensation:

On various occasions, the Contraloría General de la República has drawn attention to the need to review the compensation structure, particularly those salary incentives that create disparities among the same types of positions, as in the case of seniority payments (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 overarching principles that must govern compensation management in the public sector, such as paying equal salaries under equal conditions and paying different salaries when differences exist, as established by article 57 of the Political Constitution. Specifically, the CGR report stated as follows:

‘Based on the literature review, the study determines that there are general principles toward which compensation schemes (esquemas de remuneración) in the public sector may be oriented, with the aim of maintaining a motivated, effective, and efficient workforce. These are: paying equal wages for the same work performed under the same conditions; paying different wages where there are differences in the work performed, the responsibilities assigned, and the qualifications required; paying government wages comparable to those for equivalent skills in the private sector; and periodically and systematically reviewing compensation schemes to ensure their continued validity.’” (Emphasis not in the original).

Specifically, with respect to compensation management (gestión de compensación), the statement of reasons (exposición de motivos) for the bill summarizes it as follows:

“Compensation management: Governing principles are established to guide the management of remuneration and the recognition of monetary and nonmonetary incentives based on competitiveness, productivity, and performance.

Additionally, the recommendations of the Contraloría General de la República and the Organización para el Desarrollo y la Cooperación Económica are adopted; these recommendations seek to reduce both vertical and horizontal wage distortions by introducing the global salary (salario global) for newly appointed public servants (personas servidoras públicas), as well as for those who choose to transfer to it, and for institutional heads (jerarcas institucionales).” (Emphasis not in the original).

Accordingly, one of the core principles underlying this reform is wage equity (equidad salarial), as a mechanism specifically intended to prevent wage distortions. Art. 4 of the bill approved in the first debate provides as follows:

“c) Principle of wage equity (principio de equidad salarial): the remuneration of public servants shall be determined on the basis of strict technical criteria, according to the responsibilities and position they hold, seeking to ensure that wage differences within the same agency or in relation to the other entities and bodies included are consistent and reasonable, and that the principle of equal pay for equal work (igual función igual salario) is respected.” (Emphasis not in the original).

However, to address the transition to the proposed global-salary compensation scheme, the bill initially proposed the following mechanism:

“TRANSITIONAL PROVISION XI—Transition to the Global Salary The transition to the global salary shall be optional for public servants who are active on the date this Law enters into force. Regulations shall determine the order and the maximum percentages of the total payroll that, in each of the public agencies included in article 2° of this Law, will gradually migrate to remuneration under the global salary.” In other words, voluntary transition to the global-salary rules was initially considered as a possible mechanism. However, the Contraloría General de la República (CGR) questioned its possible impact on the fiscal situation and therefore recommended that a series of technical studies be conducted to justify the decision. Thus, for example, in report DJ-1737-2020, DFOE-0116-2020 of 24 de noviembre de 2020, the CGR made the following recommendations to the Asamblea Legislativa:

“To gradually achieve the anticipated benefits of implementing the global salary throughout the public sector, the following observations and warnings are offered regarding the proposed transition mechanisms and their potential impact on public finances, so that the corresponding assessments may be conducted during the legislative debate and a feasible, sustainable, and gradual transition may be designed on the basis of a reasonable measure that makes the necessary reform of the public employment regime (régimen de empleo público) viable, bearing in mind that any measure applied will have a multiplier effect whose economic cost must be determined and analyzed. First, it is noted that the transitional provision does not include newly appointed public servants; it is therefore understood that the global-salary method will apply directly to them once their employment relationship begins. This is consistent with what the Contraloría General has stated on several occasions regarding the need for the public-employment bill to provide simple, technically supported rules for implementing the global salary, addressing newly appointed public servants first and then, gradually, persons already incorporated into the civil service (función pública).

It should be noted, however, that Transitional Provision XI proposes rules for placing public servants currently incorporated into the public sector under that method in different scenarios, and it is with respect to those scenarios that the observations and warnings of the Oversight Body (Órgano Contralor) must be specified. Thus, the first scenario allows officials who, when the Law enters into force, receive a composite salary (salario compuesto) lower than the global salary applicable to their respective category to transfer voluntarily to the global salary; the second scenario governs the cessation of increases for the 2 public servants who, when the Law enters into force, receive a composite salary higher than the global salary applicable to their category, until the global salary reaches the level of their current remuneration, at which time they will continue under the global-salary system, as will those who choose to retain the composite scheme under the first scenario.

The first situation, involving voluntary transfer, merits particular attention, because it must be noted that this transition method would have short-term fiscal implications that, given the current state of public finances, would make its financing unfeasible and would jeopardize an effective and sustainable transition to the single-salary model (modelo de salario único) and its future benefits. Although this provision appropriately seeks to standardize and harmonize the different wage-compensation schemes currently in effect within the Administración Pública, so as 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 systems currently in existence, it is essential, for purposes of its analysis and approval, that the legislator have clear and precise data supplied by the Poder Ejecutivo regarding the economic estimates associated with these transition mechanisms, as well as evidence that the necessary funding sources will exist to cover any resulting expenditures, not only throughout the public sector but also in light of the circumstances of each institution.

Before the cited transitional provision can be approved, it is essential to have adequate information allowing the implications of this mechanism to be weighed, so as to ensure that the proposed transition is both legally and economically viable. That information will also make it possible to properly manage—from this point forward—any immediate effects and effects arising during the first few years on public finances, particularly in the current complex economic environment, which is characterized by a fiscal imbalance that severely limits the availability of funds with which the State can meet new expenditures.

To illustrate the importance of having the timely, relevant, and accurate data referred to above, the Contraloría General analyzed the 3 effects that application of the proposed transitional provision would have in 30 institutions of the Gobierno Central. It was determined, for reference purposes, that the remuneration item could increase, on average, by between 1 and 5%; that increase could vary among institutions within a range of between 0,1 and 12,8%, depending on factors such as the salary established and the organizational structure. This would entail, at a minimum, an average budgetary allocation of slightly more than 18.000 million colones for that group, with a larger allocation required for the public sector as a whole. Therefore, this Oversight Body considers that, if the proposal is retained, other transition mechanisms providing for reasonable, sustainable, and gradual measures should be assessed in order to transition public servants currently incorporated into the public sector and ensure genuine reform of the public employment regime.

One such measure could provide that, for public servants who, when the Law enters into force, receive a salary lower than the salary applicable to them under the relevant global-salary category, their transfer may be authorized insofar as it is feasible in light of the Administration’s financial capacity and tied to the behavior of the Gobierno Central debt, so that voluntary transfers may be authorized based on an analysis of the decrease in public debt. This would not only provide objective and technical criteria for decision-making but would also be consistent with the efforts to restore the health of public finances already introduced through Ley n.° 9635. Thus, voluntary transfers could be permitted only when the Gobierno Central debt is below 60% of GDP; otherwise, transfer would not be possible. Additionally, based on the approach established in Transitional Provision XI, the provision does not appear to include the situation of those public institutions that, under their own regulations, have already implemented single- or global-salary schemes and currently operate wholly or partially under such rules.

In that event, there is no clarity as to how those institutions, including this Oversight Body, should proceed; it is therefore suggested that the rules under which the provision would apply in such cases be specified.” (Emphasis not in the original).

From the preceding quotation, it is worth emphasizing the statement that migration to the compensation scheme designed by the legislator requires studies, because “any measure applied will have a multiplier effect whose economic cost must be determined and analyzed.” Likewise, the CGR emphasized that approval of the proposed transitional provision—or any other transitional measure, I would add?—requires “adequate information allowing the implications of this mechanism to be weighed, so as to ensure that the proposed transition is both legally and economically viable.” In my view, a legally viable transition specifically entails recognizing the constitutional rules underpinning salary entitlements (reconocimientos salariales) for public servants, as well as the economic criteria that reasonably support the corresponding determination.

In response to the concerns raised, the legislator opted for a different proposed transitional provision, which is the subject of this consultation. It was worded as follows:

“a) Those receiving a composite salary lower than the salary applicable to their category under the global-salary method shall continue receiving their salary in the same manner as before, and it may be increased by payment of the seniority increment (anualidad) to which they are legally entitled; once their composite salary equals the amount applicable to them under the global-salary scheme, they shall automatically transfer to that salary system the following month” (emphasis not in the original).

A reading of the legislative proposal shows that the mechanism devised is one under which civil servants whose component-based salary (salario compuesto) is lower than the amount established for their salary band will retain that lower salary, receiving less than newly hired civil servants who enter the public employment regime (régimen de empleo público) under the rules of the global salary (salario global). Equalization will occur only when increases from annual increments (anualidades) bring the component-based salary up to the same amount as the global salary.

From my perspective, the provision under review is manifestly unreasonable and contrary to the principles governing labor law, particularly the principle of equal pay (igualdad salarial) enshrined in the Political Constitution. Art. 57 provides: “The salary shall always be equal under identical conditions of efficiency.” Constitutional Art. 68 states: “No discrimination may be made with respect to salary, benefits, 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 area, incorporates that principle by providing in Art. 167: “In setting the amount of the salary for each type of work, its quantity and quality shall be taken into account. Equal work performed in an equal position, during an equal workday, and under equal conditions of efficiency shall receive equal pay.” Regarding that principle, the Constitutional Chamber (Sala Constitucional) stated, for example, the following in judgment No. 2010-004659:

“II.- Regarding the principle of equality in general and the principle of equal pay. Equality, as this Court has repeatedly held, 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 different solutions from being contemplated for situations that are likewise different:

‘Through various rulings, constitutional case law has clarified the content of the principle of equality established in Article 33 of the Constitution, stating that it prohibits distinctions between two or more persons who are in the same legal situation or under identical conditions; equal treatment cannot be demanded when the conditions or circumstances are unequal, and different treatment is permitted for different personal situations and categories. That simple formulation was recognized many years ago by the Constitutional Court, now the Supreme Court of Justice, which was responsible for hearing constitutional challenges before the creation of this specialized Chamber. However, the requirement of equality does not legitimize every inequality so as to authorize differential treatment; to determine whether discrimination is truly justified, it is necessary to analyze whether the reason producing it is reasonable—that is, whether the particular circumstances of the case justify different treatment.’ (Judgment No. 1372-92, issued at fourteen hours and fifty minutes on May twenty-six, nineteen ninety-two).

The principle of equal pay, which arises 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 provides, ‘The salary shall always be equal for equal work under identical conditions of efficiency.’ In other words, equal pay is based on the premise that the same category corresponds to the same salary. This is provided by the first paragraph of Article 68 of the Political Constitution, which states: ‘No discrimination may be made with respect to salary, benefits, or working conditions between Costa Ricans and foreigners, or with respect to any type of workers.’ However, this does not mean that differences in treatment among categories of workers are unconstitutional. In this regard, this Court has previously stated:

‘Thus, as a matter of principle, we may hold that, so long as discrimination does not violate human dignity or the creation of categories affording different treatment to persons is reasonable, legal equality is respected. Those who are in the same situation must receive equal treatment. Because the rule is not absolute, it must be understood as a mandate to treat equally all those who form part of a given category. The issue therefore becomes whether the categories are arbitrary and whether the criteria for becoming part of or being excluded from them are likewise arbitrary.’ Judgment No. 00138-93, issued at 15: 55 hours on January 12, 1993.” The proposed mechanism is therefore contrary to the constitutional principle of equal pay, because two civil servants who perform the same duties and fall within the same technically designed job family and job classification (categorización de puestos) would receive different salaries without a reasonable constitutional basis.

Moreover, this is contrary to the origin and rationale of the bill, whose stated objective is to pursue pay equity (equidad salarial). Indeed, in the specific case, if the officials are already subject to a public employment regime, this means that they have undergone a selection process based on demonstrated suitability (idoneidad comprobada) and a continuous process of performance assessment, and it therefore seems unreasonable that they would receive a salary lower than that corresponding to the technical evaluation of their salary band. This mechanism runs counter to the logic of salary payment, which inherently recognizes experience and training, and devalues these aspects that are so important to ensuring efficiency in public service.

It should be recalled that the principle of equality is violated when a determination lacks an objective and reasonable justification. In the specific case, the arrangement selected for officials whose component-based salary is lower than the amount established for their salary category lacks such justification. It has certainly been said that public authorities may afford different treatment to different situations (as one might consider this case to involve—officials receiving a component-based salary and officials receiving a global salary—), but that distinction should rest on an objective, reasonable, and proportionate basis. In the case under review, no such basis justifying the salary distinction is apparent. It is unreasonable that, despite the existence of a technical decision classifying a position, the employee with the greatest training and experience in the position—that is, the employee who has demonstrated greater merit—should be penalized in terms of salary.

This, of course, assumes that the Administration has already been implementing performance and results evaluations. But even if this were not so, and even if it had not conducted such evaluations, nothing supports the presumption that current officials have less experience than new ones, nor are there grounds for the legislature to take as established that, merely because they are new, the latter are better qualified than the former.

Consequently, it would not be fair for the salary of current employees whose amount is lower than the global salary assigned to their new class to remain at that level indefinitely. This is because it could be increased only through annual increments. First, because this would not in fact achieve the bill’s primary objective of eliminating the existing inequity between salary and work; but also because allowing newly hired personnel in the same class or category to receive the established global salary in an amount higher than the component-based salary would create legal inequality vis-à-vis current civil servants, who may even have greater experience and longer service. This would be unconstitutional because it would violate the constitutional principles of equal pay and reasonableness. It is clearly discriminatory and unreasonable for essential elements of remuneration, such as experience, training, and demonstrated results (merit), to be devalued, rendered invisible, or left unrecognized.

Likewise, it would be unreasonable, for example, for middle management within the same organization to earn more than senior management precisely because of the manner in which the transitional provision at issue is designed. This would similarly constitute discrimination because it is unreasonable for two officials with different levels of responsibility to earn the same amount, and it would be even less reasonable for the official with greater responsibility to earn less.

A reading of the recommendations of the CGR shows that various alternatives had been considered for managing the transition to this remuneration scheme. A voluntary transition was objected to because it would run counter to the bill’s purpose and to the precarious state of public finances. However, the CGR did recommend that the measure be actuarially justified, and there is no indication that this requirement was satisfied in the specific case. In other words, based on the statement of reasons (exposición de motivos), the fiscal situation in which we find ourselves, and the constitutional principle of reasonableness, a technical justification for the decision is necessary. Accordingly, the absence of a technical justification for the adopted decision is an additional factor contributing to the unconstitutionality of the proposed transitional measure.

Likewise, the absence of a specific period for equalizing salaries is another basis for arguing that the provision violates the principle of reasonableness and, concomitantly, the principle of legal certainty (seguridad jurídica). It is contrary to all logic for an official with experience and satisfactory performance evaluations to rank, in salary terms, below newly hired officials who lack that highly valued experience and training in the position. If a general salary reform benefits a particular position, it must benefit everyone in that position, lest it disregard the very principle of pay equity proposed as the genesis of this legislative initiative.

Legal certainty means that legal situations must not remain in a precarious state, to the detriment of public order and social peace. Under the principle of legal certainty, the State is required to provide a regulatory framework so that individuals know what to expect in their dealings with the Administration. In the specific case, the decision lacks any reasonableness or legal certainty because it is unknown—and therefore uncertain—how long an official who performs identical duties and has greater experience might continue receiving a lower salary than a newly hired official who begins working under the global salary scheme. In other words, the measure is indefinite in duration.

Finally, it should be recalled that the constitutional principle of the reasonableness of legal provisions requires that they possess legitimacy, suitability, necessity, and proportionality in the strict sense. In the specific case, the measure appears to fail the requirements of suitability and proportionality, because other, better-justified mechanisms could exist for transitioning to this salary scheme, supported by appropriate actuarial studies as proposed by the CGR and consistent with the constitutional principles governing the payment of salaries.

• c)Separate note by Justice Picado Brenes regarding Transitional Provisions XI and XII of the bill concerning salary rules (point 58 of the operative provisions (por tanto)) By majority vote, the Chamber has held that Transitional Provisions XI and XII of the proposed Ley Marco de Empleo Público, which concern salary rules, are not unconstitutional. On this point, I must clarify that, in reaching that conclusion, the Chamber analyzed these transitional provisions solely in relation to the principles of equality and nondiscrimination and the principle of financial and budgetary balance. As for the principle of legality mentioned by the petitioners, the Court stated that they had not presented an adequate argument from the standpoint of Constitutional Law and therefore issued no opinion in that regard.

 Transitional Provisions XI and XII: it follows from their wording that they would allow individuals to hold the same positions under the same conditions while receiving different salaries. Indeed, under these transitional provisions, different salary regimes (regímenes salariales) would coexist for individuals who, although performing the same duties, are placed in different salary categories, resulting in salary distinctions among persons falling within three different sets of circumstances but performing the same duties.

Although the Chamber omits any reference to other articles of the bill related to salary compensation (remuneración salarial)—contained in Chapter VIII, concerning Compensation Management, which includes sections 30 to 37—it is essential to consider some of them in order to explain our position more clearly, such as sections 30 a), 34, and 35:

 Art.30.a and 34: a reading of both sections shows that there will be a single salary, which will always be equal for equal work performed under identical conditions of efficiency, position, working hours, and other conditions, regardless of the public institution for which the public servant works. This means, then, that employees of different institutions will receive the same salary, regardless, for example, of whether an attorney works as a Judge in the Poder Judicial, as a Judge in an Administrative Tribunal, as an advisor in a public institution, in Parliament, or in a ministry. In turn, under article 34 of the bill, a single salary column is created for the grades within each job family (familia laboral). Because each grade within each family would include, on an equal basis, employees performing duties as dissimilar as those of health-sciences personnel, law-enforcement personnel from both the Ministerio de Seguridad and the Organismo de Investigación Judicial, and administrators of justice, among others, it is more than evident that, under the bill, in the example of an attorney, the only relevant consideration will be that the person is a legal professional, and for that reason alone, that person will receive equal treatment regardless of where the attorney works.

In practice, this means that the duties of a legal professional would be treated as an amalgam of tasks that can be assigned to one place or another, without taking into account that they must differ depending on the institution in which the person works. Clearly, because these provisions would apply equally and without distinction to the entire State apparatus and within the framework proposed by the bill, under which all attorneys, for example, must earn the same salary merely because they are attorneys, they would violate the principle of equal pay.

 Art. 35: it should be noted that this section provides that the salary regime will be unified, will be based on the global salary column (columna salarial global), and will apply to the entire public sector, meaning that all institutions will be included. This unified salary regime also infringes the right to equal pay because it does not take into account any of the components of salary when determining it; instead, it simply imposes equality for equality’s sake. It is essential to remember that each employee is willing to invest labor, dedication, personal effort, knowledge, and skills if adequately compensated and that, at the organizational level, the effectiveness with which compensation is managed makes a significant difference in increasing or reducing the competitiveness of either the organization or its employees. Preparing a compensation plan requires care because its effects and consequences have a significant impact on individuals and on the organization’s performance.

Therefore, in setting compensation, it is essential to consider and analyze the employee’s different duties rather than basing it solely on the fact that the person is an attorney, again using that profession as an example. Section 35 completely disregards the fact that salary policy is a particular and specific aspect of human-talent management that is inherent and integral to the organization. That policy will therefore cease to exist and will be replaced by a centralized salary policy requiring equal pay for equal duties without regard to the specific characteristics of each institution, much less its organizational culture, work environment, shared values, turnover rates, and other factors that are highly specific to each institution and very important when establishing a salary policy.

 Final paragraph of Transitional Provision XI and Transitional Provision XII: by excluding all public servants from salary increases based on cost of living, which would amount to an indefinite and unjustified freeze, the right to a salary and the principle of dignity at work are violated.

It is apparent that what these provisions of the bill under review establish goes beyond the relevant recommendation made by the OECD, which recommended a gradual transition to a single-salary system, but only for new officials and over a period of 35 years. In any event, it must also be recalled that the OECD does not compel the country to do anything; it merely issues recommendations that the country must analyze and assess in order to determine whether they can be implemented.

Accordingly, based on the foregoing and on the content of Transitional Provisions XI and XII under review, three types of employees working under the same employment conditions could receive different salaries. This is in addition to the indefinite freeze on salary increases, which is contrary to human dignity.

I will now analyze a series of factors that should have been considered before reaching a conclusion regarding the constitutionality of Transitional Provisions XI and XII of the proposed Ley Marco de Empleo Público, which concern salary rules.

Matters to be considered in relation to salaries:

• a)The right to a salary and its essential content: article 57 of the Constitución Política provides that “Every worker shall have the right to a periodically determined minimum wage for a normal working day that provides well-being and a dignified existence. The salary shall always be equal for equal work performed under identical conditions of efficiency (…).” In settled case law, this Court has stated that salary is a worker’s constitutional right and an obligation of the employer. In this regard, judgment No. 6074-95 at 13:21 hours on 14 de octubre de 1994 stated, as relevant:

“In this regard, it is important to note that salary, as the compensation owed to a worker by virtue of an employment contract for work the worker has performed or is required to perform, or for services the worker has rendered or is required to render, is an obligation of the employer that, because of its importance to the worker and its very nature, must be paid at regular intervals. A regular interval cannot be understood to exceed three months, considering the worker’s need to cover the expenses of daily life. The Constitution, for its part, guarantees in article 57 a periodically determined salary for a normal working day as a fundamental right of every worker who must meet the needs inherent to every human being and the subsistence needs of the worker’s family.” As may be seen, this economic compensation or remuneration, established as an enforceable obligation of the employer and received by a worker for work performed, seeks to guarantee the worker’s livelihood and that of the worker’s family. This right is therefore protected to prevent abuses that undermine the worker’s human dignity. This connection between the right to a salary and human dignity is found not only in the Constitución Política but also in instruments of International Law. Thus, article 23.3 of the Declaración Universal de Derechos Humanos provides:

“3. Everyone who works has the right to fair and satisfactory remuneration ensuring for that person and that person’s family an existence consistent with human dignity, supplemented, if necessary, by any other means of social protection.” For its part, article 45.b of the Carta de la Organización de los Estados Americanos states:

“Work is a right and a social duty; it confers dignity on the person who performs it and must be carried out under conditions that, including a fair-wage regime, ensure life, health, and a decent standard of living for the worker and the worker’s family, both during the worker’s working years and in old age, or whenever any circumstance deprives the worker of the ability to work.” For its part, article XIV of the Declaración Americana de los Derechos y Deberes del Hombre provides:

“Article XIV: “Every person has the right to work under dignified conditions and to freely pursue a vocation, insofar as existing employment opportunities permit. Every person who works has the right to receive remuneration that, in relation to that person’s ability and skill, ensures a suitable standard of living for that person and that person’s family.” It may be concluded from the foregoing that human dignity is the governing criterion in developing the essential content and limits of the right to a salary, because the objective is to ensure that workers have an adequate standard of living consistent with their basic needs and taking into account the activity performed, the category of the task, the degree of specialization, the quality of the work, and other factors.

Regarding the applicable legal regime, national legislation established a special salary-setting system for public servants covered by the statutory regime (régimen estatutario). This means that the minimum-wage provisions contained in both the Código de Trabajo and the Ley de Salarios Mínimos (Nº 832 de 4 de noviembre de 1949) do not apply to all public servants and public employees, nor could they apply generally to private-sector employees. Accordingly, this Court has recognized that the public-employment regime and its salary-setting system differ from those established for the private sector because they are based on different criteria. Thus, in judgment No. 2021-07445 at 9:15 hours on 15 de abril de 2021, the Chamber stated, as relevant:

“a) The public- and private-employment regimes. On repeated occasions, this Court has ruled on the statutory regime and its differences from the private sector as follows:

“III.- On the statutory regime (régimen estatutario). Our original framers provided in the Political Constitution of 1949 that there should be an administrative employment regime governing relations between public servants and the State, in order to protect the former from arbitrary dismissals (job security) and to professionalize the civil service (the pursuit of service efficiency and employee suitability). The purpose of this mandate was to ensure that the Public Administration had organizational mechanisms enabling it to satisfy citizens’ right 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 set forth in Articles 191 and 192 of the Constitution, thereby seeking qualified personnel to hold public office for the purpose of ensuring efficiency and effectiveness in the civil service.

The civil service regime (régimen de servicio civil) is therefore not established as a corporate privilege, but rather as a guarantee of institutional impartiality. To that end, the regulatory framework governing the civil service must guarantee personnel selection based on criteria of merit and ability, as well as a fair balance between the rights and responsibilities of public employees. Such legislation must also provide instruments that facilitate the planning, organization, and more efficient use of personnel by the various administrations. Hence, the public employment relationship (relación laboral de empleo público) is subject to certain particular features and principles, such as merit and ability in gaining entry, as well as to certain rules of public law, such as the incompatibility regime (régimen de incompatibilidades), which ensure objectivity and impartiality in the provision of public services…

In light of the foregoing, it is clear and evident that, beginning in 1949, the legal system governing the employment relationship between the Public Administration and its servants in our country has been governed by public law, a principle reiterated in Article 112 of the Ley General de la Administración Pública (see, to that effect, Judgment No. 1995-3125 at 16:24 hours on June 14, 1995). This regime necessarily entails—as indicated in the above-cited precedent—that this relationship, by its very nature, is based on its own general principles, which are not only different from those of (private) labor law, but are often even contrary to them… Much less so when such labor provisions could be imposed upon the State in its capacity as employer by bodies external to it in which interests converge that are unrelated, and sometimes contrary, to the purposes of the Public Administration. As stated by the Chamber in Judgment No. 2003-10615, the wording ultimately given to Article 191, together with the profound decentralization process experienced by the Costa Rican State beginning in 1949, led to the current validity of various statutory relationships (relaciones estatutarias) within the Administration, in view of the functional independence and administrative autonomy that the legal system guarantees to several public institutions.

However, “what is not legitimate—as stated—is for relations between each Administration-employer and its officials to be governed by rules agreed upon (contractual rules) between the two parties, as validly occurs in private employment relationships.” The Chamber has recognized two broad categories of employees who provide services to the State: those who qualify as a “public official,” “public servant,” or “public employee,” and those who work for State-owned enterprises or State economic services responsible for activities subject to ordinary law. The former have been defined as those who, in performing their duties, carry out the State’s public administration, and to whom, consequently, the public employment regime applies, together with all the principles and characteristics arising from Articles 191 and 192 of the Political Constitution; whereas the latter are those laborers, workers, and employees who, although they work for the State, do not qualify as public officials or servants because they do not participate in the Administration’s public administration, since they are hired by public enterprises or State economic services responsible for activities subject to ordinary law in the exercise of their private-law capacity. Consequently, their employment regime is governed by the rules of ordinary law, that is, ordinary labor legislation (see Judgment No. 2006-14416).

As a corollary to the foregoing, the public employment relationship applicable to public servants is a special public-law or statutory relationship which, by virtue of its legal nature, is subject to limitations regarding the application of ordinary labor law. Its regulation is likewise subject to Articles 11, 191, and 192 of the Political Constitution…”. (Judgment No. 2018-231 at 11:00 hours on January 10, 2018). (Emphasis not in the original).

Regarding public-sector salaries, in Judgment No. 1998-3089 the Chamber specified:

“…The salary policy arising from service relationships—between the Administration and its servants (Art. 112 LGAP)—as a uniform and universal State public employment regime, is, of course, an integral part of government policy (SSC No. 2294 at 14:48 hours on August 19, 1992). The Full Court, acting as the Constitutional Court, stated the following, among other things, when analyzing this matter:

“The goals (a typical ‘governmental matter’) established by the State with respect to the remuneration of its servants constitute an entire salary policy that concerns not only compensation for the effort of the individual considered separately, but also its consequences for other aspects of the economy, since it may introduce economic distortions owing to social unrest. A ‘directive’ must be understood as the ‘set of instruments or general rules for carrying something out,’ that is, guidelines or orientations that serve as a conceptual framework for decision-making. Thus, matters concerning the setting of salaries as a general policy in the Public Sector cannot be said to be primarily, exclusively, or predominantly an ‘administrative’ matter; rather, they are a ‘governmental’ matter, in which the subjection of a decentralized entity to the Law is not only possible but also necessary and advisable.” (Extraordinary Session No. 42 at 13:30 hours on June 14, 1994).” (Emphasis not in the original).

That is, not only are these two different employment regimes, but the civil service is also remunerated in accordance with the other principles governing it. Now, irrespective of the existence of different statutes within the Public Administration, the validity of which has been upheld by this Court (see the above-cited Judgment No. 2018-231 at 11:00 hours on January 10, 2018), the following is noted with regard to the Estatuto de Servicio Civil, the matter at issue in this action, given the reference made by the challenged Article 8 to the Salary Regime (Régimen de Sueldos):

“Article 48.-The salaries of officials and employees protected by this law shall be governed by the following rules:

• a)No employee or official shall receive a salary lower than the minimum corresponding to the position held.
• b)The salaries of Executive Branch servants shall be determined by a Ley de Salarios establishing the minimum, intermediate, and maximum amounts corresponding to each category of employment.
• c)In setting salaries, account shall be taken of fiscal conditions, the characteristics of each class of work, the cost of living in the various regions, the salaries prevailing in private enterprises for comparable positions, and the other factors stipulated in the Código de Trabajo.
• d)Within the minimum and maximum amounts referred to in subsection b), the respective supervisors may approve salary increases based on factors such as efficiency, seniority, conduct, aptitude, and other qualities identified through the periodic evaluation of their servants, all subject to the provisions established for that purpose in the Ley de Salarios. Before granting such increases, the supervisors of the various administrative personnel sections must obtain the approval of their hierarchical supervisor; such increases shall be subject to the provisions of subsection e) of this same Article; and e) The National Treasury is prohibited from issuing payments to employees or officials in amounts other than the minimum amounts established in the Budget or Ley de Salarios; and, in the case addressed by the preceding subsection, the increase shall not take effect until it is included in the Ordinary Budget Law or in an extraordinary budget. The Dirección General de Servicio Civil shall notify the National Treasury of increases in the salaries of public servants.” (Emphasis not in the original).

That is, under this provision, the minimum, intermediate, and maximum salaries of public officials governed by the Estatuto de Servicio Civil are established in accordance with the Ley de Salarios de la Administración Pública. For that purpose, fiscal conditions, the characteristics of each class of work, the cost of living in the various regions, the salaries prevailing in private enterprises for comparable positions, and the other factors stipulated in the Código de Trabajo must be taken into account. Article 1 of the Ley de Salarios de la Administración Pública provides that this body of law is enacted for the purpose of ensuring the efficiency of the Public Administration and constitutes the official compensation system for all classes of positions classified in the Manual Descriptivo de Puestos, as provided in Chapter X of the Estatuto de Servicio Civil. For these purposes, Article 2 of that law states that Manual Descriptivo de Puestos means the set of specifications indicating the duties and powers of the Civil Service classes and the minimum requirements imposed on those who are to perform them.

Consequently, these salaries are established through a complex public-sector organizational structure, which does not necessarily correspond to the characteristics of the structure existing in the private sector, where the parties enjoy freedom of contract. Furthermore, the Article regulates salary scales with a base category for annual increases, which is subsequently adjusted in accordance with other components, where applicable, such as geographic pay differentials (zonaje), exclusive-service compensation (dedicación exclusiva), seniority increments (anualidad), availability pay (disponibilidad), and other incentives recently modified by the Ley de Fortalecimiento de las Finanzas Públicas. Thus, the public employment regime and the manner in which its compensation is established differ from those applicable to the private sector, as this Court has recognized:

“XI.- In the opinion of this Sala, therefore, Articles 191 and 192 of the Constitución Política establish, as a matter of principle, the existence within the public sector of an employment system governed by public law (Derecho Público), as was made clear by the debate in the Asamblea Nacional Constituyente and is reflected in incipient form in the Ley General de la Administración Pública. This public employment system (régimen de empleo público) necessarily entails consequences arising from the nature of that relationship, with its own general principles that are not merely different from those of (private) labor law, but are often contrary to them. Obviously, the declaration contained in this judgment encompasses the employment relationship between the public administration—or, more accurately, public administrations—and its employees; however, in those sectors where there is a (reasonable) regulation referring them to a different private employment system, the solution must be different ...” Emphasis added; see judgment n.° 2002-6513 of 14:57 hours on 3 de julio de 2002.

Recently, in the above-cited judgment n.° 2020-13316, the Majority of this Sala stated:

“…Nor, as will be explained below, is there a mandatory correlation between the salaries of public officials and private-sector salaries, since the former are agreed upon by the Comisión de Negociación de Salarios del Sector Público under rules of public law, whereas the Consejo Nacional de Salarios Mínimos operates differently and under different legal principles. Even the base salary used in the public sector is not necessarily the same as the minimum wage, although the two could be equal or one could even exceed the other; this does not entail a binding linkage between the public budget and decisions made in the private sector…”. (Emphasis added).

In accordance with the foregoing and with the position stated by the Procuraduría General de la República in opinion n.º C-064-1992, private-enterprise salaries reflect the enterprise’s economic prosperity while respecting the minimum wage; in the Public Administration, by contrast, salaries are related to the budget, which limits the actions of public authorities, and are subject to the principle of legality (principio de legalidad).” It follows from the foregoing that, with respect to employment and salaries, the public and private sectors each have their own legal system: in the private sector, the contractual relationship (relación contractual) prevails, whereas in the public sector, the statutory relationship (relación estatutaria) predominates pursuant to Articles 191 and 192 of the Constitución Política. In view of the particular characteristics of the service relationship between the administration and its employees, the salary conditions of public employees are established in accordance with the laws and principles governing public employment, which differ from the criteria prevailing in a relationship governed solely by private law, as stated above.

Based on the foregoing, the case law of the Sala has defined the essential content of the right to remuneration applicable to the public sector as follows:

• 1)Minimum wage: “As this Tribunal has stated, this provision is grounded precisely in the Principle of the Social Rule of Law (Principio del Estado Social de Derecho) embodied in our Constitución Política, under which the Constituent Assembly established a minimum wage floor that protects workers and guarantees not only the encouragement of production but also the proper distribution of wealth (numeral 50), all of the foregoing on the basis of the Christian Principle of Social Justice (Principio Cristiano de Justicia Social), set forth in ordinal 74 of the same Constitution” (see judgment No. 2021-7445 of 9:15 hours on 15 de abril de 2021).
• 2)Periodic remuneration: “This Tribunal Constitucional has held that if work is conceived as an individual right whose exercise benefits society and guarantees an official periodic remuneration, it cannot be accepted that the State receive services without paying the corresponding salary or that payment be made late” (see judgment No. 2006-008385 of 17:34 hours on 13 de junio de 2006).
• 3)Does not include salary supplements (pluses salariales): “(…) disputes concerning the payment of salary supplements do not affect the essential content of the right to remuneration from a constitutional perspective (Article 57 of the Constitución Política); consequently, they are disputes that must be resolved in ordinary legal proceedings (sede de legalidad)” (see judgment No. 2017-0000170 of 9:05 hours on 11 de enero de 2017).
• 4)Equality: “Article 33 of the Constitución Política provides that ‘Every person is equal before the law, and no discrimination contrary to human dignity may be practiced.’ Likewise, Article 57 states, insofar as relevant, that: ‘...The wage shall always be equal for equal work performed under identical conditions of efficiency.’ … Now, as this Sala has repeatedly held, the principle of equality is not absolute, since it does not confer a right to be treated in the same manner as any other individual regardless of differing circumstances, but rather a right to demand that the law make no distinctions between two or more persons who are in the same legal situation or under identical conditions; equal treatment cannot be demanded when the circumstances or conditions are unequal” (see judgment No. 2005-03496 of 14:49 hours on 30 de marzo de 2005).

Furthermore, the provisions of Article 178 of the Código de Trabajo must be taken into account:

“The minimum wages established pursuant to law shall apply, from the effective date of the respective Decree, to all workers except those serving the State, its Institutions, and Municipal Corporations whose remuneration is specifically determined in the corresponding public budget. However, the State, its Institutions, and Municipal Corporations shall annually make the necessary adjustments when preparing their respective ordinary budgets so that none of their workers receives a wage lower than the applicable minimum” (emphasis not in the original).

It should be clarified that the preceding Article applies to the system established by law for setting minimum wages and not to the universally recognized principle of the right to a minimum wage, which is expressly extended to public employees in the final portion of the aforementioned Article 178. Thus, in the public sector, minimum wages are governed primarily by the Estatuto de Servicio Civil and the Ley de Salarios de la Administración Pública, without prejudice to other related provisions contained in other legislation.

Accordingly, Article 48 of the Estatuto de Servicio Civil provides:

“Article 48.-The salaries of officials and employees protected by this law shall be governed by the following rules:

• a)No employee or official shall receive a salary lower than the minimum applicable to the position held.
• b)The salaries of employees of the Poder Ejecutivo shall be determined by a Ley de Salarios establishing the minimum, intermediate, and maximum amounts corresponding to each employment category.
• c)In setting salaries, consideration shall be given to fiscal conditions, the particular features of each class of work, the cost of living in the various regions, prevailing private-enterprise salaries for comparable positions, and the other factors stipulated in the Código de Trabajo.
• d)Within the minimum and maximum amounts referred to in subsection b), the respective Heads may approve salary increases based on factors such as efficiency, seniority, conduct, aptitude, and other qualities revealed by the periodic evaluation of their employees, all subject to the provisions established for that purpose by the Ley de Salarios. Before granting such increases, the Heads of the various administrative personnel sections must obtain authorization from their hierarchical supervisor; such increases shall be subject to subsection e) of this same Article; and e) The Tesorería Nacional is prohibited from issuing payments to employees or officials in amounts other than the minimum amounts established in the Budget or Ley de Salarios; and, in the case of the preceding subsection, the increase shall not take effect until it is included in the Ley de Presupuesto Ordinario or in an extraordinary budget. The Dirección General de Servicio Civil shall inform the Tesorería Nacional of increases in the salaries of public employees.” For its part, Article 8 of the Ley de Salarios de la Administración Pública provides:

“ARTICLE 8º.- Every salary shall be understood to cover monthly payment for the corresponding working day. If it is agreed that a public employee will work fewer hours than those established in the official schedule, that employee shall receive a salary proportional to the working day authorized in such case by the Minister. No regular employee shall receive a salary lower than the minimum for the respective category.” As stated, minimum wages are intended to enable public employees and their families to live a dignified life; however, this wage floor does not by itself guarantee that the established levels will actually satisfy that condition. In response to this situation, the Law provides for salary increases in accordance with the decree on minimum wages issued by the Poder Ejecutivo every six months and for the recognition of salary supplements pursuant to collective bargaining agreements (convenios colectivos de trabajo), which seek to adjust salaries to the cost of living. In this regard, in judgment No. 2009-014280 of 15:11 hours 9 de septiembre de 2009, this Tribunal stated:

“This Tribunal understands—consistent with the cited case law—that a system of increases that includes a cost-of-living adjustment among its conditions merely brings workers’ salaries into balance with their ability to obtain the means of subsistence for themselves and their families.” Thus, if work is conceived as an individual right whose exercise benefits society, and the State, as employer in a statutory employment relationship (relación estatutaria), has the obligation to pay wages periodically, wages being a constitutionally protected right (see judgment N° 2009-008062 at 21:35 hours on 13 de mayo de 2009), it would not be possible to accept that those wages be set under the terms proposed by the bill under review. The same Chamber has held that there must be access to wages determined through a national policy that ensures a dignified life for workers and their families; such remuneration must be set through the mechanisms established in international law (ILO Conventions numbers 26, 95, and 131, among other instruments), as well as in the second paragraph of Constitutional Article 57, for the purpose of preventing ruinously low and indecent wages for individuals (see judgment nº 2019-016791).

In this regard, reference must first be made to Convention N° 131 of the International Labour Organization, ratified by Costa Rica, which establishes that although the minimum wage (salario mínimo) was implemented as a wage-policy instrument intended to prevent poverty, it must also guarantee that the needs of workers and their families are met and provide social protection through what may be regarded as permissible minimums, which are determined by technical studies with the participation of social stakeholders (see judgment nº 2020-013316). It is likewise important to highlight the provisions of Article 3 of that Convention, according to which, in determining the level of minimum wages, account must be taken of the needs of workers and their families, having regard to 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, productivity levels, and the desirability of attaining and maintaining a high level of employment.

• b)Wage-compensation management (gestión de compensación salarial): It should be noted that Article 30 of the bill provides that the salaries of public servants (personas servidoras públicas) shall be governed by the principles established therein: equal pay for equal work; Nombre01 shall have the highest salary; salaries shall be set through a remuneration methodology; each job family (familia de puestos) shall have a global-salary scale (columna de salario global) indicating the position and remuneration; adjustments or modifications to the salary scale shall be based on technical criteria; and salaries shall be adjusted in accordance with the rules of the Ley de Salarios de la Administración Pública.

First, it should be recalled that this Court has held that State salaries must be based on technical criteria and therefore may not be lower than those established by the Executive Decree on minimum wages for other workers (see judgment nº 2019-016791). Notwithstanding the foregoing, nowhere in the provisions of the bill under review is it established that the setting of the “new” salary for public servants will be based on criteria or technical studies justifying it; this is not even mentioned in Article 5, which defines the global salary (salario global) as the remuneration or single amount that a public servant will receive for the provision of services, in accordance with the principles established by the bill. Notwithstanding the foregoing, it should be noted that, pursuant to Article 30, adjustments or modifications to the salary scale will be based on technical criteria, which appears nonsensical because such studies should actually exist from the outset when salaries are set, not merely for adjustments or modifications.

It must not be overlooked, as this Court has also stated, that establishing a calculation method for determining wages, even minimum wages, is very important because it has consequences for the worker who will receive the wages and for the employer with respect to compliance with the established amounts; this may create a degree of social pressure that would also affect the population’s poverty rates. It is therefore not an irrelevant matter. The Chamber has further stated that, in practical terms, this concerns a wage-policy issue (for public- and private-sector employers), which must be generally observed by all respective employers. Clearly, however, there is an issue of sufficiency that cannot be associated with each worker considered individually or in relation to that worker’s personal or family needs. Instead, the objective must be an average wage level, to be estimated by representatives of the State, employers, and workers, that provides fair compensation for work in the national context, with the assistance of economic and social mechanisms, so as to ensure workers and their families a dignified existence.

It must be reiterated, as is the case with many economic, social, and cultural rights, that these rights cannot be defined with reference to specific solutions, an individual, or that individual’s specific needs, but rather with reference to society as a whole, comprehensively established through technical studies on the basis of a fair mean or average (see, in this regard, judgments nº 2019-016791 and 2020-013316, among others).

In this regard, upon considering the meaning of the global salary and the implications of Articles 30 through 37 of the Ley Marco de Empleo Público bill, it is readily apparent that a methodological change is being made regarding adjustments to the setting of salaries, which would require rigorous technical studies conducted by specialized bodies; such studies are absent from the proposal. From this perspective, the lack of technical support for this “global salary” is a highly significant issue, since it must not be forgotten that the Executive Branch will have the authority to issue guidelines concerning the remuneration of public servants.

• c)Global salary as static remuneration: Based on the bill, it is more than evident that this “global salary” being created by the Ley Marco de Empleo Público bill will ultimately become a static salary (salario estático), which may initially be competitive for certain positions but, after a number of years and taking into account the country’s economic and financial circumstances, will become a static salary with no possibility of increases on any grounds, despite increases in the country’s inflation and cost of living. It should be noted that Article 5 of the bill defines the global salary as the remuneration or single amount that a public servant will receive for the provision of services, in accordance with the principles established in this law.
• d)Participation of social sectors representing workers: Another aspect lacking in the bill in relation to the wage-compensation management governed by Articles 30 through 37 concerns the participation of public-sector workers’ representatives. It should be noted that, under ILO Convention 131—which, although referring to the establishment of minimum wages, may appropriately serve as a general framework for this analysis—Article 4.2 provides that “in connection with the establishment, operation and modification of such machinery, full consultation shall be held with representative organizations of employers and workers concerned or, where no such organizations exist, with representatives of the employers and workers concerned.” Consequently, if the State, in regulating the minimum wage, must ensure the establishment of a comprehensive consultation system as a mechanism enabling dialogue between the country’s productive sectors and workers, it would have been appropriate to do so in the case of the global salary that is intended to be introduced as a “novel issue” in the country, particularly when account is taken of what has been stated: that at some point it will become the minimum wage, that it is a salary that will remain static—a static minimum wage—and that it is not based on technical criteria.

It should be borne in mind that setting the minimum wage, as conceived in ILO Convention N° 131, is the result of discussions, not impositions—at least as it has been implemented in the country—because Article 4.3(a) of that Convention allows the social partners (interlocutores sociales) to participate on equal terms. It is therefore clear that the regulatory framework seeks to create conditions of balance, which are so necessary in negotiations of this kind (see judgment nº 2020-013316), but which are absent from the bill under review.

• e)Collective bargaining (negociación colectiva) concerning salaries: Article 43 of the bill under review cannot be overlooked. As I noted in the section analyzing that provision, from my perspective the bill submitted for consultation permits bargaining concerning salaries, but subjects it to a series of rules. It is important that the right to negotiate salary improvements by consensus be exercisable at some point in the medium or long term, because otherwise public servants’ salaries will cease to be competitive, causing a serious exodus of officials not only from the State but, worse still, from the country, with the grave consequences that this entails. A clear example may be seen in the case of health-science professionals, who are highly valued abroad, whereas this Ley Marco de Empleo Público bill completely disregards the existence of specific legislation such as the Ley de Incentivos a los Profesionales en Ciencias Médicas, among others.

It should be recalled that this Chamber has held that wages are the remuneration owed to a worker under an employment contract (contrato de trabajo) for work performed or to be performed, or for services provided or to be provided (judgment nº 6074-95). Accordingly, those wages must correspond to the work performed, but must also enable the worker to lead a dignified life (Constitutional Article 57) and meet both the worker’s needs as a human being and the subsistence needs of the worker’s family (see judgment nº 6074-95). Clearly, there must be an opportunity to reach consensus on salary improvements, since the salary contemplated by the bill could remain static, preventing it from evolving and thereby precluding attainment of the constitutional objective of fostering a dignified life.

• f)The principle of financial or budgetary balance (principio de equilibrio financiero o presupuestario): The Ley de la Jurisdicción Constitucional assigns this Constitutional Court the role of protecting human rights and fundamental rights; it must therefore take special care not to favor the protection of a statutory principle of a purely economic and political nature over social rights falling within its protective jurisdiction.

It is pertinent to cite the document prepared in 2013 by the Council of Europe Commissioner for Human Rights, available at www.commissioner.coe.int, according to which the UN Human Rights Council stated during its special session in 2009 that “global economic and financial crises do not diminish the responsibility of national authorities and the international community for the realization of human rights.” It further mentions that, in 2009, the European Committee of Social Rights declared that “the economic crisis must not result in a reduction in the protection of the rights recognized by the [European Social Charter]. Therefore, governments are required to adopt all necessary measures to ensure that the Charter’s rights are effectively guaranteed during periods when beneficiaries need greater protection.” It likewise notes 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 an obligation to ensure the primacy of human rights when making decisions on borrowing and lending.” Accordingly, that Commissioner concludes that “States bear the primary burden of proving that proposed austerity measures are consistent with their human rights obligations.” It should also be noted that, as described in that document, recent case law (jurisprudencia) from 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 international loan provisions stipulated in the agreements with the IMF / ECB / EC could not serve as grounds for restricting constitutionally guaranteed human rights obligations consisting of ensuring adequate social security. Both the social consequences of pension cuts and other less restrictive alternatives should have been taken into account when concluding such agreements. In Portugal, the Constitutional Court declared the reduced budgetary allocations for social rights unconstitutional and ordered their restoration. The Constitutional Court of Lithuania, for its part, has established strict and specific criteria that must be taken into account when assessing, during an economic crisis, the circumstances under which social rights may be restricted.” All of the foregoing means that the sound management of public finances referred to by the Sala in judgment nº 2018-019511, and the balance between entitlement rights (derechos prestacionales) and the State’s economic solvency, must not serve as a pretext for curtailing a population’s fundamental and human rights; rather, they should be the driving force compelling the appropriate authorities to hold those responsible for financial debacles accountable.

A Constitutional Court or Fundamental Rights Court, as the Sala Constitucional is, must interpret the Constitution and, as such, must give precedence over those decisions to the fundamental and human rights that it is required to safeguard, regardless of any State budgetary or financial interest. Therefore, if there is a crisis because of an improper application of the principle of budgetary balance (principio de equilibrio presupuestario), which is legal and economic in rank—not constitutional in rank, because Article 176 of the Constitución Política does not state that it is—measures must be adopted to determine who is responsible and to establish the measures necessary to overcome that problem.

Regarding Transitorios XI and XII concerning salary rules:

Transitorio XI of the proposed Ley Marco de Empleo Público: its application will result in discriminatory and unequal situations because, while the intended adjustment between existing and new employees, or between higher-paid and lower-paid employees, is being achieved, an imbalance will arise that is wholly inconsistent with the very bill that seeks “equal pay for equal work.” That disparity, which could take years to correct—because there are likewise no technical studies indicating how long it would take—will result in violations of fundamental rights, since it will be impossible to prevent—and the bill does not provide for—situations in which one person who works as much as another earns less, or, in other words, “unequal pay for equal work.” This renders the transitional provision (transitorio) unconstitutional.

Furthermore, Transitorio XII states that public servants will be excluded from salary increases for as long as the conditions specified in subsection d) of Article 11 of Ley 9635 de Fortalecimiento de las Finanzas Públicas remain in effect. Although that Law’s objective was to improve public finances, it is also true that, in a country such as Costa Rica, given the levels of financial collapse seen in recent years, linked to serious problems involving the mismanagement of public funds, corruption, and other factors, it may be concluded that the objective of that Law is unlikely to be achieved and that, consequently, public officials will not be entitled to any cost-of-living increase. As already stated, this means that the global salary (salario global) will ultimately become a static global minimum salary, causing the resulting harm to public-sector workers, whose incomes will be considerably reduced in relation to the country’s high cost of living, inflation, and other economic factors that will undoubtedly arise in the country.

• d)Separate reasons of Justice Rueda Leal regarding the consulted Transitorios XI and XII.

There are two reasons that lead me to uphold the constitutionality of Transitorio XI. The first is that there is no complete equality among all the persons who would be directly or indirectly subject to those provisions. Indeed, the mere fact that an employment relationship began at different times—while different legal provisions were in force—may entail different legal treatment. The limitations in this area lie in respect for acquired rights (derechos adquiridos) and consolidated legal situations (situaciones jurídicas consolidadas), limitations that—in my view and as I explained, for example, in judgment n.° 2018-19030 at 17:15 on 14 de noviembre de 2018—are not absolute either. The second reason derives from the underlying balancing test (ponderación subyacente). In my view, this is a transitional provision—temporary by definition—which, contrary to what has been alleged, instead seeks salary equality for all public servants, since its purpose is precisely to standardize the salaries of persons whose employment relationships began at different times and under different regulations.

This gradual transition is necessary in light of the principle of budgetary balance. With respect to Transitorio XII, I note that it is a provision concerning the potential exclusion of salary increases, “…provided that the conditions indicated in subsection d) of Article 11 of Ley 9635, Fortalecimiento de las Finanzas Públicas, of 3 de diciembre de 2018 remain in effect.” Thus, the provision, as such, refers to a question of statutory interpretation (interpretación de legalidad) that falls outside the Sala’s jurisdiction in proceedings of this type.

XIX.Regarding the violation of due process (debido proceso) (single dismissal proceeding (proceso único de despido)).- (drafted by Justice Picado Brenes)

• 1)Matters submitted for consultation The petitioners state that both the dismissal procedure (procedimiento de despido) governed by Article 21 of the bill under review and the appellate stage (fase recursiva) against dismissal provided for in the following Article 22 violate a series of constitutional provisions and principles relating to due process, and they indicate that the content of these provisions is related to Article 49 subsection b)—of the same bill—which refers to a series of proposed amendments concerning the Estatuto de Servicio Civil. They argue that the proposed amendment to Article 43 of the Estatuto de Servicio Civil seeks to incorporate this dismissal procedure; however, they contend that there are significant differences, inconsistencies, and contradictions between the two texts. The petitioners consider that these contradictions and conflicts of laws (antinomias) arising within the same text violate the principles of legal certainty (seguridad jurídica) and legality (legalidad), and they add that there is no clarity regarding time limits, the admission of evidence, the right of defense (derecho de defensa), and other matters, noting that this was brought to light by the Tribunal de Servicio Civil.

They consider the dismissal procedure essential to the development of public employment relationships in public institutions and therefore believe that clarity in the proceeding is fundamental to its application, since without a detailed procedure that respects constitutional guarantees, the result could be nullity and unenforceability, while also leaving officials defenseless and creating an extremely harmful situation for the administration, which would be unable to dismiss an official, even when grounds exist, because there would be no proceeding that complies with legality and due process. The petitioners insist that due process is a constitutional guarantee that must be respected in every administrative and judicial proceeding, allowing for compliance with the right of defense and the corresponding procedural guarantees (garantías procesales), and they recall that the essential components of due process include the right to a hearing (derecho de audiencia), the evidentiary principle (principio probatorio), the principle of legality, the right to two-tier review (doble instancia), and others, which the petitioners believe are being violated by the text of the bill.

They allege that both the Corte Suprema de Justicia and the Contraloría General de la República highlighted the omissions and deficiencies contained in the bill regarding the procedure for dismissing officials.

Specifically, the legislators allege that some of the inconsistencies and contradictions concerning the dismissal procedure are as follows:

Automatic disqualification sanction (sanción automática de inhabilitación): they indicate that subsection a) of Article 4 establishes the principle of the State as sole employer (principio de Estado como Patrono único) and provides that, by virtue of that principle, sanctions resulting in the dismissal of an official from an institution without employer liability (despido sin responsabilidad patronal), in accordance with the legal system in force, will prevent any other entity or body forming part of the State from hiring that person for a period ranging from six months to two years. They argue, however, that the manner in which the duration of the established disqualification will be determined is not specified, nor is the body with authority to establish that period. In this regard, it should be noted that this issue was already examined in this judgment in a previous recital (considerando) (considerando XVII); reference is therefore made to what was stated there.

Grounds for immediate dismissal (two ratings below 70%): They state that the first paragraph of Article 21 establishes as grounds for immediate dismissal the receipt of two ratings below 70% in the performance evaluation, once those ratings become final. They assert that the second and third paragraphs also establish the obligation of the institutions to implement a remedial plan after the first rating. The requesting legislators indicate that the first three paragraphs of this Article 21 do not establish procedural rules, but rather grounds for dismissal, and therefore—in their view—should actually be included in the preceding article, concerning termination of public employment. They note that the third paragraph of this Article 21 repeats the same provision established in the second paragraph, creating confusion, ambiguity, and possible differing interpretations, resulting in a lack of clarity regarding the rule.

They further point out that, although both paragraphs refer to the preparation of remedial plans arising from the performance evaluation, the second paragraph establishes that this plan must be agreed upon with the public servant, whereas the third does not establish that condition. They likewise consider that there is a contradiction as to whether the remedial plan must be prepared with advice from human resources. In this regard, in the opinion of this Tribunal, it must be stated that there does indeed appear to be confusion, insofar as the second and third paragraphs appear to duplicate each other, with certain differences. Nevertheless, although this may constitute poor legislative drafting, the fact remains that, in the view of this Tribunal, it does not render the provision unconstitutional; consequently, the argument raised by the requesting legislators on this point is rejected.

Period of 15 days or 10 days: They state that subsections b) and c) of this Article 21 grant a period of 15 days for the respondent public servant to object to the statement of charges (traslado de cargos); nevertheless, they contend that, inconsistently, subsection g) of the same article states that this period is 10 days, which they consider an evident contradiction in the periods specified for the statement of charges and a violation of the principle of legal certainty. In this regard, although the Chamber observes a possible contradiction and potentially poor legislative drafting, this does not mean that the text under review is unconstitutional, and the arguments raised on this specific point must therefore be rejected.

Appeals (recursos): They argue that subsection i) of the same Article 21 establishes motions for reconsideration (recursos de revocatoria) and subsidiary appeals (apelaciones en subsidio) against a decision ordering an oral reprimand, written warning, or suspension without pay, and they note that the legislative record contains a memorandum signed by the Actuary of the Tribunal de Servicio Civil, stating: “In addition to the evident contradiction between what is proposed in subsection i of Article 22 of the bill and in the proposed amendment to subsection i) of Article 43 of the Estatuto de Servicio Civil, which establish the right to appeal decisions ordering an oral reprimand, written warning, or suspension without pay, and what is proposed in the amendment to Article 75 of the Estatuto de Servicio Civil, the second paragraph of which provides that a decision ordering an oral reprimand, written warning, or suspension without pay for up to one month shall be subject only to a motion for reconsideration.” In this regard, this Tribunal finds that the matter submitted for review is unclear and that the consultation on this point is not duly substantiated or developed sufficiently to understand the scope of the objection intended to be raised.

In this respect, it must be taken into account that the bill does not contain an amendment to Article 75 of the Estatuto de Servicio Civil; nor does it include an amendment to Article 43 of that body of law. On the contrary, a complete reading of the bill under review shows that it repeals those provisions. Accordingly, this issue submitted for review need not be examined.

Absence of a body to hear appeals: The requesting party asserts that the second paragraph of subsection i) of Article 21 under review limits the authority of the Tribunal de Servicio Civil to hearing appeals filed by public servants working in an institution covered by the Estatuto de Servicio Civil (Ley n°1581). Nevertheless, it is argued that this subsection does not specify which body will hear appeals filed by public servants working in institutions not covered by that law, which, in their view, once again violates the principle of legal certainty. In this regard, this Tribunal must state that the issue raised, concerning the rule’s lack of clarity, is not a constitutional matter. It will be for the legal decision-maker to determine, in each case, which rule applies to the specific situation then under consideration. Consequently, this claim must be dismissed.

Contradictory subsections: The requesting legislators contend that Article 21 of the bill under review grants institutional heads jurisdiction to decide dismissals at first instance and provides that the investigatory and decision-making stages of dismissal proceedings are to be conducted internally within each institution. They add that Article 22, in turn, grants the Tribunal de Servicio Civil jurisdiction at second instance over appeals against dismissal decisions. However, they contend that it “establishes a subsection that contradicts all of the foregoing and states that the Tribunal hears dismissals at first instance and that the Dirección General de Servicio Civil conducts the investigation; it likewise creates an exception to investigation by the Dirección General de Servicio Civil when dismissal proceedings are brought against officials of the Ministerio de Educación Pública (teaching or administrative personnel) who have incurred any of the grounds set forth in Article 66, subsection a), of the Código de la Niñez y la Adolescencia, Ley No 7739, stating that, in such cases, the investigation shall be conducted internally within the Ministerio de Educación Pública, pursuant to Title II, Chapter IV, Articles 59 et seq. of the Estatuto de Servicio Civil.

This provision makes no sense if all the preceding provisions grant Ministers and institutional heads the authority to investigate and decide dismissals at first instance and grant the Tribunal jurisdiction to decide at second instance.” In this regard, it is evident that the matter submitted for review is unclear and that the grievance is not duly substantiated or developed. Likewise, the written consultation does not identify the “subsection that contradicts all of the foregoing.” A general reading of the bill does not reveal any provision resembling the one described by the requesting legislators; consequently, because the consultation is not adequately substantiated on this point, the Chamber cannot rule on it.

Tribunales Administrativos del Régimen de Pensiones y Jubilaciones del Magisterio Nacional y del Servicio Civil: The requesting legislators consider that due consideration must be given to examining the jurisdiction of, and the bodies responsible for deciding matters relating to, the dismissal procedure, in connection with the provisions of the 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), which created the Tribunal Administrativo del Servicio Civil and assigned it the function of hearing appeals in matters concerning the dismissal of workers subject to the employment regime established by the Estatuto de Servicio Civil, as well as any other matters that, by law or regulation, must be heard by that Tribunal. The requesting legislators argue that, notwithstanding the foregoing, the bill under review was not harmonized with that law, nor was jurisdiction granted to or modified for that Tribunal, and that this omission could create a jurisdictional conflict or leave that Tribunal without assigned functions, resulting in a duplication of work or, in the worst case, a body with personnel and resources but no functions.

In this regard, it is observed that, in addition to the provisions of Articles 21 and 22, the bill under consultation provides for a series of modifications and amendments to the Estatuto de Servicio Civil and the aforementioned 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 changing the dismissal procedure applicable to date to officials covered by that statute. Nevertheless, notwithstanding the foregoing, with respect to the consultation raised on this point, the Chamber observes that the requesting legislators have provided no duly substantiated argument linking those changes to constitutional issues; consequently, because this matter has not been substantiated, the Chamber declines to rule on it.

Different time limits and appeals: It is argued that the time limits and appeals are processed differently under the bill and Ley n°8777 (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 point submitted for review has not been duly developed or substantiated, and therefore this Chamber cannot examine the objection.

Confusion regarding spheres of jurisdiction: It is stated that the bill creates absolute confusion regarding the dismissal procedure and the spheres of jurisdiction at each level; it is further asserted that the Tribunal de Servicio Civil plainly cannot, on the one hand, have jurisdiction to hear dismissals at first instance and, on the other, be responsible for reviewing those dismissals at second instance. In this regard, the matter submitted for review has not been duly developed or substantiated, and therefore the Chamber cannot examine it.

Confusion between concepts: It is stated that due process is a constitutional guarantee that must be respected in every proceeding, whether administrative or judicial, and, in the opinion of the requesting legislators, the procedure contained in the bill (Articles 21 and 22) contravenes the Constitutional Chamber’s jurisprudence concerning due process: first, by violating the principle of legality through the statutory gaps and conflicts of laws (antinomias) arising from the existing contradictions; and second, by failing to provide for fundamental rights. They state in the Consultation that this was brought to light by the Corte Suprema de Justicia through official communication N° SP-62-2021 del 3 de junio de 2021, which alerted the legislature to the serious deficiencies in Articles 21 and 22 of the bill: confusion between the concepts of lapse (caducidad) and limitation (prescripción), impairment of oral proceedings, preliminary objections (excepciones previas), and other matters. In this regard, it must be noted that this matter submitted for review has not been duly developed or substantiated in the consultation brief, because the requesting legislators merely transcribe an excerpt from official communication N° SP-62-2021 but do not adequately develop their reasoning to justify what they seek to have reviewed. Accordingly, this Chamber cannot examine this point either.

Weaknesses: The requesting legislators state that the Sala Constitucional, in judgment number 1739-92, established that there is a general right to legality and justice derived from numeral 41 of the Constitución Política, and they assert that both rights constitute sine qua non conditions without which due process (debido proceso) cannot be carried out, such that an infringement of either right in itself entails a violation of due process. They argue that, in the case under review, the procedure established in the bill (articles 21 and 22) violates the Sala Constitucional’s pronouncement regarding due process: first, because the principle of legality (principio de legalidad) is violated by regulatory gaps and conflicts of laws (antinomias) arising from the contradictions noted above; and second, because the procedure fails to provide for fundamental rights. The requesting legislators state that both the Corte Suprema de Justicia and the Contraloría General de la República identified weaknesses regarding:

• 1)uncertainty and/or confusion between the concepts of expiration (caducidad) and prescription (prescripción);
• 2)regulation oriented toward the institutional hierarchy;
• 3)impairment of the principle of oral proceedings (oralidad) in the procedure;
• 4)methods of service (medios de notificación);
• 5)preliminary defenses (excepciones previas);
• 6)a second hearing (segunda comparecencia);
• 7)the range of penalties (elenco de sanciones); and
• 8)extension of appeal periods (plazos recursivos). With respect to this issue submitted for review, in addition to its similarity to the preceding point, this Tribunal finds that it has not been adequately developed and that the position on which review is sought has not been properly substantiated. It should be noted that the requesting legislators merely refer to alleged weaknesses identified by the Contraloría General de la República, without developing or arguing them. Under these circumstances, the Sala cannot issue a ruling, and the request for review is therefore rejected as to this issue.

Omissions: It is stated that the bill fails expressly to repeal all current legislation that conflicts with it, and the requesting legislators note that such repeals, because they concern a matter as complex as public service, are subject to the statutory reservation (reserva de ley) and cannot be left to the future, unrestricted, and arbitrary interpretation of legal practitioners. In this regard, in the Sala’s view, what the requesting legislators characterize as “omissions” may actually result from poor legislative drafting, which does not necessarily entail a constitutional problem. Accordingly, it will be for the legal practitioner to determine any implied repeals (derogaciones tácitas) that may exist when applying the law, should it enter into force in this form; consequently, this issue does not entail an infringement of the Law of the Constitution (Derecho de la Constitución).

• 2)Conclusion The matters submitted for review concerning articles 21 and 22 of the "PUBLIC EMPLOYMENT FRAMEWORK LAW" bill, which is being processed under legislative expediente n°21.336, do not contain violations of the constitutional principle of due process. Rather, most of the matters raised concern legislative-drafting problems that must be corrected by the legislator or the legal practitioner. Furthermore, other matters submitted for review were not properly substantiated, and this Sala therefore declines to issue a ruling on their merits.

XX.Regarding the violation of the principle of fiscal sustainability by the leaves of absence.- (drafted by Justice Picado Brenes)

• 1)Specific analysis of the matters submitted for review The requesting legislators allege that articles 39, 40, 41 and 42 of the Bill are contrary to articles 11, 176, 179 and 190 of the Constitución Política, the principle of reasonableness (principio de razonabilidad), the unequivocal rules of science and technical knowledge, and the elementary principles of justice, logic, and expediency, and that they also entail a violation of the principle of fiscal sustainability (principio de sostenibilidad fiscal). These articles concern, respectively, unpaid leave (permiso no remunerado) to reduce working hours by up to one third, the inclusion of paternity leave (permiso de paternidad), and the extension of maternity leave (licencia de maternidad) by up to two additional months.

As may be gathered from the bill under review, the challenged articles concern, in summary, the following:

-Article 39: paid leave (permiso remunerado) to reduce working hours by up to one third when necessary to care for a family member with an illness or disability.

-Article 40: unpaid leave to reduce working hours by up to one third when necessary to care for a family member with an illness or disability.

-Article 41: one month of paid paternity leave.

-Article 42: extension of paid maternity leave by up to two additional months in cases of premature birth, children with a severe disability or chronic illness, and multiple births.

Specifically, the requesting legislators raise the following arguments:

Lack of a cost study: They state that when these leaves were incorporated into the bill, no cost study or source of funding to cover them was taken into consideration. In this regard, it must be borne in mind that the legislator has broad legislative discretion (discrecionalidad legislativa) in the enactment of laws, a position repeatedly upheld by the Sala Constitucional, which has stated that, as a general rule, it is not strictly necessary for every legislative decision to be supported by technical or financial studies. For example, in judgment n° 2018-000230 at 10:40 on January 10, 2018, this Tribunal stated: “[t]he Sala rejects the proposition that every decision of the legislator must inevitably include a technical study, since that would nullify the discretion of the legislative body by subjecting it to the judgment of third parties who lack democratic representation. Technical studies are necessary when an express rule so requires (for example, in environmental matters) or when the subject matter requires them, lest discretion be transformed into arbitrariness.” Thus, not every decision of the legislator must include a technical study, since that would nullify the discretion of the legislative body by subjecting it to the judgment of third parties who lack democratic representation.

Technical studies are necessary when an express rule so requires (for example, in environmental matters) or when the subject matter requires them, lest discretion be transformed into arbitrariness (a position reiterated, among others, in judgment n° 2019-020596 at 19:15 on October 25, 2019). In this area, the Sala has referred to the principle of legislative discretion or freedom of legislative configuration (principio de discrecionalidad o libre configuración del legislador), mentioned in judgment n°2003-05090 at 14:44 on June 11, 2003, under which the Asamblea Legislativa, in exercising its substantively legislative function of enacting rules of a general and abstract nature—that is, laws in both the formal and substantive senses (article 121, subsection 1°, of the Constitución Política)—enjoys broad freedom to shape legislation in order to implement the constitutional program established by the Poder Constituyente.

This latitude regarding the regulated subject matter has also been termed legislative discretion, understood as the ability of that body—limited only by the Law of the Constitution—when faced with a particular need of society, to select the statutory solution or rule of law that it considers fairest, most appropriate, and best suited to meet that need, from among the range or plurality of policy options freely offered by the electorate through the system of legislative representation (a position reiterated, among others, in judgment n° 2016-010244 at 09:05 on July 20, 2016 and recently in judgment 2020-015542 at 11:40 on August 19, 2020). From this perspective, the requesting legislators are incorrect in asserting that the leaves provided for in these articles 39 to 41 are unconstitutional solely because, according to their claim, they are not supported by cost studies or corresponding funding sources capable of covering them.

Moreover, the requesting legislators did not provide sufficient grounds to conclude that the provisions submitted for review would, per se, increase costs in a manner that would endanger State finances, or that funding sources for their implementation are lacking. In view of these circumstances, the argument raised with respect to this issue is rejected.

Failure to Consider the Opinion of the CCSS: They state that the opinion that the CCSS might have was not considered, although, in cases of paid maternity leave (licencia remunerada de maternidad), pursuant to Article 95 of the Código de Trabajo, the CCSS must, together with the employer, cover the payment for the leave in equal shares. The petitioners allege that this constitutes a violation of Article 189 of the Constitución Política, since it could entail a violation of the administrative and financial autonomy of the CCSS. In this regard, in the Chamber’s opinion, although it is true that the bill, by changing the duration of maternity leave or creating paternity leave (permiso de paternidad), could potentially affect this autonomous institution operationally and financially, it is also true that the opinion of the CCSS was requested. In this connection, it must be borne in mind that Article 190 of the Constitución Política provides that “For the discussion and approval of bills relating to an autonomous institution, the Asamblea Legislativa shall first hear its opinion”; for its part, in interpreting that provision, the Sala Constitucional has held that the consultation established therein must be conducted when the bill in question affects the essential powers of autonomous institutions.

This does not mean that every bill, or any amendment relating to an autonomous institution made through a bill, must be submitted to that institution for consultation, but only those aspects concerning its establishment or organizational structure, or those relating to the essential scope of the powers of the institutions involved (see judgments no. 2020-008848 of 9:20 a.m. on 13 de mayo de 2020, no. 2001-011129 of 1:08 p.m. on 23 de octubre de 2001, 2014-007914 of 9:15 a.m. on 6 de junio de 2014, 2012-02675 of 11:52 a.m. on 24 de febrero de 2012, and 2008-004569 of 2:30 p.m. on 26 de marzo de 2008, among others). Now, upon reviewing legislative file N° 21.336, the Court finds it established that the bill in question was duly submitted to the authorities of the Caja Costarricense de Seguro Social for consultation on several occasions, and that, by official letter N° SJD-885-2019 of 5 de julio de 2019, the Junta Directiva de la Caja Costarricense de Seguro Social sent the Comisión Permanente Ordinaria de Gobierno y Administración de la Asamblea Legislativa the opinion requested from that institution concerning bill N° 21.336 (see folio 592, Volume 2 of the legislative file).

Subsequently, at folio 7602 of Volume 28, another opinion issued by that institution concerning the bill appears. Accordingly, it is clear that the bill in its entirety was submitted to the Caja Costarricense de Seguro Social for consultation. The latest version of the bill in question, which includes the provisions challenged here, was submitted to the CCSS for consultation in abril del 2021; however, there is no record of any response from that institution. It should also be recalled that it is for the legislature to determine whether the views expressed in the consultation warrant changing the text of the bill. For purposes of the constitutional framework, what must be verified is that the mandatory consultation (consulta obligatoria) with the CCSS took place; what occurs thereafter is a matter beyond the Law of the Constitution. Thus, whether the views expressed by the CCSS in response to the various consultations submitted to it were sufficiently reasoned on this point to prompt the legislators to decide whether or not to change the text is not a constitutional matter. Therefore, there is no basis for finding that a constitutional violation occurred in this respect.

Failure to Consider the Impact on the Services Provided by the CCSS: They contend that the potential impact on the operation of each institution and on its performance in providing services was likewise not considered, even though the continuity and quality of the public service (servicio público) must be guaranteed. In this regard, although the petitioners raise this claim, the Chamber does not find that they have presented any arguments demonstrating unconstitutionality or the violation of a constitutional right or principle. At bottom, the Chamber finds that the petitioners’ objection is based on the failure to consider technical and scientific criteria that might have shown an impact on the institution’s operation and performance. Nevertheless, the Chamber reiterates what was stated supra: the drafting of these provisions is protected by the principle of legislative discretion or freedom of legislative configuration (principio de discrecionalidad o libre configuración del legislador), and therefore no violation of the Law of the Constitution is apparent; consequently, the challenges raised on this point must be rejected.

Notwithstanding the foregoing, it should be noted that, in one of the responses provided by the CCSS to the consultations submitted to it and in relation to this specific issue, that institution stated that the bill’s proposal to reduce working hours by up to one-third for a maximum of one year “could result in a deterioration of the services provided by the institution, considering that healthcare services are essential, and that, to remedy this situation, overtime would have to be paid to cover the one-third of the working day not worked by a public servant who avails himself or herself of this article, which would generate an increase in expenditure” (see folios 610 and 611 of Volume II of Legislative File No. 21.336). Likewise, with respect to the leaves protected under provisions 41 and 42 of the bill under review, the CCSS stated that “the funding that the institution would have to meet the cost of extending maternity leave is not defined, and, regarding paid paternity leave, it must be borne in mind that the CCSS provides six calendar days of leave; therefore, extending this benefit to employees would entail additional expenses for the institution, because staff replacements would be required to guarantee continuity of services” (see folio 611 of Volume II of Legislative File No. 21.336).

It is the legislature’s responsibility to address or disregard these concerns, and whether those opinions were considered at the various parliamentary stages is not a constitutional matter for this Chamber to examine.

Absence of Objective Reasons or Technical Criteria for Expanding the Grounds for Maternity Leave: Regarding Article 42, which provides for an extension of maternity leave, the petitioners argue that it contains a series of circumstances in which that extension applies (premature birth, children with severe disabilities and/or chronic illnesses, and multiple births). Nevertheless, they contend that the bill does not set forth the objective reasons or technical or scientific criteria justifying the inclusion of those grounds and not others. Once again, it is apparent that the disagreement concerns the exercise of the legislature’s freedom of configuration or discretion and that, at bottom, the petitioners’ objection is again based on the failure to consider technical and scientific criteria in defining the circumstances under which such leave could be extended. In this regard, it is necessary to reiterate the holding in judgment n°2018-00230, in which the Sala Constitucional rejected the proposition that every legislative decision must necessarily be supported by a technical study, since, as previously stated, this would nullify the legislature’s discretion by subjecting it to the opinions of third parties who lack democratic representation. In this case, it has not been established that technical studies were necessary; accordingly, the alleged unconstitutionality is rejected.

Lack of Technical Studies Concerning Paternity Leave: Regarding the paternity leave provided for in Article 41 of the bill, which grants one calendar month of paid leave (permiso con goce de salario) following the date of birth or the adoption of a minor, the petitioners complain that, once again, the file does not identify any studies or technical criteria indicating the cost to the State of granting this leave or the source of funding. In this regard, the Chamber unquestionably finds that, on this point, the petitioners’ arguments reiterate those analyzed supra in point a). Accordingly, reference is made to the discussion therein, and the Chamber reiterates that this challenge is not capable of violating the Law of the Constitution; therefore, the claim is rejected.

Antinomy Between Articles 39 and 40: The petitioners allege a purported antinomy (antinomia) between Articles 39 and 40 (concerning paid and unpaid leave to reduce working hours by up to one-third, for a maximum of one year, in order to care for a family member with an illness or disability). They contend that, for purposes of its application, the provision does not make clear whether the leave is paid or unpaid, or whether the accident must be serious, and they believe that this creates legal uncertainty (inseguridad jurídica). They further contend that such contradictions can be found in other provisions; for example, in the amendment to Article 7 bis of the Estatuto de Servicio Civil introduced by subsections b) and e) of Article 49, under which it is unclear whether the Dirección General de Servicio Civil is an agency of MIDEPLAN or remains within the Ministerio de la Presidencia. Regarding this challenge, the Chamber concludes that the arguments supporting it do not concern a constitutional issue but rather a matter of legislative drafting and the quality of the legislature’s work, which must be corrected within the Asamblea Legislativa itself. The claim is therefore rejected.

• 2)Conclusion The Chamber finds no defects of unconstitutionality (vicios de inconstitucionalidad) in the challenged aspects of Articles 39, 40, 41, and 42 of the bill submitted for review, because they concern a matter of legislative discretion, the mandatory consultation with the CCSS was completed, and there are no grounds for finding that, in this case, the legislature was required to have obtained a technical study beforehand. Moreover, because the alleged contradiction between Articles 39 and 40 of the bill is a possible legal antinomy, it is not a matter of constitutional concern.
• 3)Dissenting Opinion and Individual Reasons Dissenting Opinion of Justice Garro Vargas Regarding the Inadmissibility of the Consultation in Relation to Articles 39, 40, 41, and 42 of the Bill (expediente 21-11915-007-CO) The legislators submitted arts. 39, 40, 41, and 42 of the bill for constitutional review. They alleged that these provisions were included on the second day for motions pursuant to art. 137 of the Reglamento de la Asamblea Legislativa, and challenged the fact that, when these forms of leave were incorporated, no cost study was evaluated to provide for their funding. They asserted that the views of the Caja Costarricense de Seguro Social (CCSS) were not considered and that the possible impact on the operation of the institutions and their performance in providing services was likewise not assessed.

The legislators proceed from the premise that these leaves or permits were introduced during the final stage of the legislative process (trámite parlamentario). However, a careful review of the original bill shows that both the statement of reasons and the substance of the bill contemplated regulating the leaves in question. That bill was published in the Official Gazette La Gaceta n.°84, Supplement n.°102 of 8 de mayo de 2019 (https://www.imprentanacional.go.cr/pub/2019/05/08/ALCA102_08_05_2019.pdf ). For these purposes, the following was proposed:

“Article 34—Permit to reduce the working day by up to one third when necessary to care for a family member with an illness or disability A paid permit 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 related by blood or marriage up to the second degree who has a disability or is suffering from a terminal illness or accident.

Article 35—Extension of paid maternity leave by up to two additional months in special cases The paid maternity leave established in Article 95 of the Labor Code shall be extended by up to two additional months for a mother who is a public servant in the following cases: premature birth, birth of children with a disability or special needs, birth of children with chronic illnesses, or multiple births.

Article 36—Paternity leave Fathers who have a biological or adopted child shall be entitled to one month of paid paternity leave following the birth or upon completion of the adoption.” Thus, irrespective of any changes the bill may have undergone during the legislative process, the fact remains that regulation of the leaves about which the legislators now inquire was contemplated from the original proposal.

Furthermore, in essence, they challenge the fact that these leaves are not supported by the corresponding technical studies and that the bill was not submitted for consultation—although they refer only to the CCSS. However, their assertions are not properly substantiated. Indeed, a careful review of the copies of the legislative record establishes that the bill was submitted for consultation to the CCSS and also to numerous institutions (see the summary of the legislative history (iter parlamentario) contained in the recitals of this decision). Moreover, as noted, these were not provisions added at the end of the bill’s consideration; rather, they are provisions contemplated from the bill’s initial proposal. Finally, the legislators themselves do not compare these provisions with provisions already in force in order to determine whether they actually entail a cost for the institutions allegedly affected.

The legislators’ arguments are therefore neither properly supported nor in the nature of well-founded doubts regarding constitutionality. They are merely general and abstract assertions that do not allow this Court to conduct a full constitutional analysis, including an examination of reasonableness. It should be recalled in this regard that Article 99 of the Law on Constitutional Jurisdiction provides that a discretionary constitutional consultation (consulta facultativa de constitucionalidad) “must be submitted in a reasoned brief, identifying the challenged aspects of the bill and the grounds for the doubts or objections concerning its constitutionality.” Failure to satisfy this requirement warrants declaring this aspect of the legislative consultation unanswerable.

Individual reasons of Justice Picado Brenes concerning Articles 39, 40, 41, and 42 of the bill regarding new grounds for permits (point 60 of the Por Tanto) As is apparent from a reading of this judgment, a majority of the members of this Constitutional Chamber has found that Articles 39, 40, 41, and 42 of the Public Employment Framework Law bill, which is being processed under legislative expediente nº 21.336 and includes new grounds for permits, are not unconstitutional. Notwithstanding the foregoing, I consider it necessary to make certain additional clarifications that must be taken into account when analyzing these provisions.

Generally speaking, it must be recalled that the matters addressed in the articles under review concern what have come to be known as “Social Rights,” which, in a Social State governed by the rule of law (Estado Social de Derecho), have been incorporated into the constitutional text as a series of political objectives of great social importance whose protection is intended to secure the common good and satisfy people’s basic needs.

Specifically, the matter under review concerns permits to reduce working hours in order to care for family members due to terminal illness or accident, as well as provisions intended, under certain circumstances, to grant paternity leave or to extend existing maternity leave; these are aspects of human life that unquestionably relate to the satisfaction of basic needs.

With regard to such rights and their constitutional protection, it should be noted that historically they arose as minimum guarantees that have progressively been extended to a greater number of persons or circumstances—as would be the case here. This trend does not exclude the development of social-security coverage, which likewise tends to be expansive and connected to the objective of protecting employees in particular from misfortunes of which they may involuntarily become victims—in the event of a family member’s illness or accident—but also in positive circumstances such as the birth or addition of a new member to the family. This unquestionably entails the right of the child’s father and/or mother, or both, to receive specific leave to begin the bonding process within the family unit, which has also prompted the development of this Court’s case law toward providing better conditions for workers (see, to similar effect, judgments number 2007-17971 of 14:51 hours on 12 de diciembre de 2007 and number 2011-003077 of 15:00 hours on 9 de marzo de 2011).

In this regard, in judgment number 2020-008254 of 17:15 hours on 30 de abril de 2020, the Chamber stated, insofar as relevant, that dialogue between employer and workers makes it possible to improve working conditions with a view to achieving a balance among employer demands that ensure productivity, the worker’s optimal psychological well-being, and even the specification of circumstances in which such considerations must be accompanied by a more flexible labor regime, inspired by the principles of human solidarity but always limited by the principle of reasonableness, bearing in mind Article 51 of the Political Constitution insofar as it provides for the protection of the family, as well as the mother, child, elderly person, and destitute sick person. Similarly, it should be recalled that the Chamber has held that, in labor matters, benefits established for workers are grounded in the principles of human solidarity and social justice contained in Article 74 of the Political Constitution (see, to that effect, judgment number 6934-96 of 9:09 hours on 20 de diciembre de 1996).

For its part, when analyzing matters relating to paid leave for workers upon the birth or adoption of a child, as well as permits to care for sick persons, this Court has not deemed such measures unconstitutional because they reflect principles of human solidarity and the understanding that should prevail in people’s social and family relationships. Reference must also be made to judgment N° 2006-17438 of 19:36 hours on 29 de noviembre de 2006, in which the Chamber stated that “… based on the special protection that the Constitution affords the family, granting workers leave upon the birth of their children is justified …”. Likewise, it is appropriate to note that this Court has also stated that it must not be forgotten that these are mandatory, exceptional, and special permits covering a number of days that is not considered excessive (see, to similar effect, Judgments N° 2006-017593 of 15 hours on 6 de diciembre de 2006 and N° 2006-017441 of 19 hours 39 minutes on 29 de noviembre de 2006), and that “… these are benefits that have increasingly gained ground within the sphere of labor relations, reinforcing the propriety of granting workers permits without affecting their salary so that they may attend to particular situations affecting them or their family …” (see Judgment N° 2018-008882 of 16:30 hours on 5 de junio de 2018).

Accordingly, as to the merits, it follows from the foregoing that the Chamber’s case law has been quite clear in recognizing the constitutional permissibility of permits such as those provided for in Articles 39, 40, 41, and 42 of the bill under review. These permits are granted to address specific situations connected with events affecting the family unit, and such social rights enjoy constitutional protection that the Chamber has recognized and promoted.

From this interpretive perspective, I generally consider the content of Articles 39, 40, 41, and 42 to represent progress in the protection of social rights. Nevertheless, in order to prevent any gray areas that might adversely affect workers, I must state that, in my opinion, certain unresolved issues must be brought to light to prevent violations of Constitutional Law (Derecho de la Constitución).

First, it should be noted that Article 39 contains no mechanism protecting workers with respect to their compensation, which could ultimately entail a considerable reduction in their income and, if left to the employer’s sole discretion, could have serious future consequences for their assets. Likewise, the provision does not regulate the conditions under which the public servant may return to work once the purpose for which the special leave was taken has ceased to exist. If similarly left to the employer’s discretion, this circumstance could result in a permanent reduction of the employee’s working hours or deterioration of the employment status enjoyed before taking the permit.

Following a similar line of reasoning, Article 40 would not regulate these post-permit situations either, since it does not clearly establish the conditions under which a public servant could take that permit. Although unpaid, the permit could lead the employer subsequently to decide to dismiss the worker upon realizing—during the worker’s absence—that the position or the worker is unnecessary. Similarly, no safeguard is provided for the worker with respect to compensation, since the employer could, upon the worker’s return, decide to terminate the employment relationship and rehire the worker to reduce costs, or alternatively modify the worker’s employment conditions regarding salary, benefits, or the type of duties to be performed upon returning to the position.

With respect to both the situation regulated by Article 39 and that regulated by Article 40, the failure to clearly establish in the provision the conditions under which those permits—paid or unpaid—would be granted could result in violations of workers’ fundamental rights.

In the case of Article 41 of the bill under review, the conditions under which leave (permiso) would be granted in the case of the adoption (adopción) of a minor are not clearly regulated, since the provision states “at the time the adoption is finalized,” but it is not clear whether this refers to:

• a)the time when the minor is placed with the adoptive family; b) the time when the child is declared to be in a state of abandonment (estado de abandono) and, therefore, may be eligible for adoption; c) the time when a judge orders the judicial placement (depósito judicial) of a minor with a family, without the child necessarily being eligible for adoption; d) the time when a judge issues a judgment formally granting the adoption of a minor to an adoptive family.

It should be borne in mind that all of the foregoing are very different points in time that may arise—together or separately—during the process of adopting a minor, but that, at the same time, each could have different consequences that might ultimately affect not only the public servant’s life and emotional and family stability, but also the interests of the Administration, because paid leave (permiso con goce de salario) could be granted for this reason, yet ultimately the minor—because the minor has not been declared abandoned—might not be eligible for adoption and might be ordered returned to the Patronato Nacional de la Infancia. The Administration should therefore take this circumstance into account, as well as decide whether, in such cases, it would seek reimbursement from the public servant for the amounts paid, given that the adoption was not completed as expected.

Furthermore, with regard to Article 42 of the bill, it should be noted that although the first paragraph of the provision appears to grant—automatically and without question—an extension of maternity leave (licencia de maternidad) for up to 2 additional calendar months in the cases involving the births of babies stipulated therein, the second paragraph negates all of the foregoing because it makes that right—which appeared to arise immediately upon satisfaction of those requirements—subject to the judgment of the medical professional treating the mother. That judgment may not only be subjective, but also gives the professional the power to determine the duration 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 the extension of leave, she would not be granted it, to the detriment of her rights and those of the child and in a clear situation of inequality and discrimination compared with other mothers whose physicians did consider an extension of leave necessary.

In view of the foregoing, I consider that the provision could be constitutionally defective (vicios de inconstitucionalidad) if the criteria I have identified, which must be analyzed by the legislature, are not taken into account.

XXI.Regarding the challenge concerning the exclusion of public enterprises operating in competitive markets and other exclusions.- (drafted by Justice Picado Brenes)

• 1)Matters Presented The petitioners consider that Articles 2 and 3 of the bill violate Articles 33 and 191 of the Political Constitution, because the bill should not exclude any institution from its scope of application. They state that the Constituent Assembly provided that relations between the State and public officials should be governed by a single regulatory framework and a single statute applicable to all public officials, without exclusions or distinctions. Consequently, creating these exclusions would result in different classes of public officials being subject to one body of legislation or another depending on the institution in which they work, thereby violating the intent of the Constituent Assembly with respect to ensuring administrative efficiency. It should be noted that Article 2 of the bill under review has already been duly analyzed in previous recitals (considerandos) (see considerandos IX, X, XII y XIII), and therefore, on this specific issue, the Chamber will rule only on Article 3, which expressly regulates exclusions. Nevertheless, to understand the relationship between the two provisions as presented by the petitioners, it is essential to quote both:

“ARTICLE 2- Scope of Coverage This law applies to public servants of the following entities and bodies under the principle of the State as a single employer:

• a)The Branches of the Republic (Executive, Legislative, and Judicial), their auxiliary and affiliated bodies, and the Tribunal Supremo de Elecciones (TSE), without prejudice to the principle of separation of powers established in the Political Constitution.
• b)The institutionally decentralized public sector, consisting of: autonomous institutions and their affiliated bodies, including state universities, the Caja Costarricense de Seguro Social (CCSS), semi-autonomous institutions and their affiliated bodies, and state-owned public enterprises.
• c)The territorially decentralized public sector, consisting of municipalities, municipal leagues, 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 operating in competitive markets, except with respect to provisions governing collective bargaining (negociación colectiva).
• c)The Benemérito Cuerpo de Bomberos.” 2) Jurisprudential Background In a previous recital, this Chamber analyzes the case law (jurisprudencia) concerning what this Court has stated regarding the existence or nonexistence of a single public employment regime (régimen de empleo público). For purposes of this section, it is appropriate to reiterate the line of precedent it has maintained regarding the possible existence of differentiated regimes and the exception established in Article 192 of the Constitution, as follows:

“…The legislature, however, chose to regulate the service not generally, but by sector, thus enacting the Estatuto del Servicio Civil (which applies to employees of the Executive Branch) and subsequently other statutes regulating the provision of services in the remaining branches of the State and in certain decentralized institutions (…) It is clear that the Constituent Assembly contemplated that not all public servants could be covered by the special regime, because the method of selection, the particular qualifications, the duties of each position, and the relationships of trust and subordination are not the same in every case. Accordingly, the principles derived from Article 192 apply to certain officials—the majority—but not to all. The Constitution itself identified several categories of officials subject to discretionary appointment and removal, including government ministers, members of the public security forces, directors of autonomous institutions, diplomatic representatives, and, in general, ‘employees and officials holding positions of trust’ (Article 140, subsection 1), leaving it to the law (the Ley de Servicio Civil, according to Article 140) to identify other officials who, in very exceptional cases, could be excluded from the general regime.

Article 192 reiterates this possibility of excluding certain officials. It bears repeating that the Constituent Assembly intended for a single law, a Statute, to govern the entire public service. Nevertheless, what is important is that the detailed regulation of the special regime’s coverage was left to the ordinary legislature through legislation, which it could enact, as it did, in separate laws without detracting from the constitutional mandate. Through legislation, the legislature has excluded several categories from the common regime.” (judgment n°1990-1119). Emphasis not in the original.

Because one of the entities excluded from the bill under review is the Instituto Nacional de Seguros, it is appropriate to mention what this Chamber stated in judgment n°2013-16637 regarding employment at that institution:

“With respect to this particular provision, the Chamber has repeatedly held that the Instituto Nacional de Seguros, as a state-owned public enterprise, has the authority to establish its own internal organization. Consequently, it is not subject to Article 192 of the Constitution, and its employees are therefore neither covered by the Statutory Civil Service Regime (Régimen Estatutario del Servicio Civil) nor subject to the principle of stability in public employment (estabilidad en el empleo público). In judgment No. 2008-11920 at 15:11 on 30 de julio de 2008, recently reiterated in judgment No. 2012-4942 at 15:39 on 18 de abril de 2012, this Court ruled on the same arguments raised by the petitioner, rejecting the asserted grounds of unconstitutionality for the following reasons:

“III.- The petitioner alleges that, pursuant to Article 62 of the Political Constitution, collective bargaining agreements (convenciones colectivas) have the rank and force of law and that, therefore, in accordance with the principle of constitutional supremacy (principio de supremacía constitucional), their legal force is inferior to that of any constitutional provision or principle. Article 7 of the Constitution accords the international treaties of the ILO a status superior to that of statutes. Article 192, for its part, contains several constitutional principles that must govern the employment relationship, including suitability and job stability; as a corollary to these two elements, it provides for removal on the grounds of justified dismissal (despido justificado) established by labor legislation and for the forced reduction of services (reducción forzosa de servicios) (restructuring), whether due to lack of funds or in an effort to achieve a better organization of those services.

It follows that, by constitutional mandate, a public official (funcionario público) may be removed from office or from an appointment only on grounds of justified dismissal, in accordance with the country’s labor legislation. The petitioner errs in his analysis, because he asserts that the system established beginning with Article 191 of the Political Constitution—specifically, the conditions prescribed in Article 192 of the Constitution for public servants (servidores públicos), namely removal on grounds established by legislation or due to a forced reduction of services—must be applied to Instituto Nacional de Seguros. Article 192 of the Constitution is contained in Title XV, “The Civil Service,” Sole Chapter, which governs the relationship between the State and public servants for the purpose of ensuring the efficiency of the administration. However, as the petitioner correctly states, I.Nombre65 is an autonomous institution (institución autónoma) that enjoys administrative autonomy, which grants it the authority to exercise the powers and responsibilities conferred upon it constitutionally or by law, including the authority to administer itself and dispose of its resources (human, material, and 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. In view of the foregoing, neither Article 192 nor any of the provisions contained in Title XV applies to Instituto Nacional de Seguros, because it is not among the bodies that make up the Public Administration. It is precisely this status as an autonomous institution that places I.N.S. and its employees in a legal position entirely different from that of the Executive Branch, its bodies, and public servants: they are not protected by the Civil Service Statute and therefore do not enjoy the benefits of that labor legislation, including the job-stability system. In judgment 2004-5960, the Chamber determined that I.N.S. is a public enterprise–public-law entity (empresa pública-ente de derecho público), defining this as an entity that assumes the form of a public entity in order to conduct activities that are wholly or partially commercial in nature (industry, trade in goods and services, etc.).

I.N.S. employees are subject to a private employment regime (régimen privado de empleo), which means that the institution may manage its employment relationships as best suits its organization, the public interest, and the achievement of its objectives. This Court has stated that I.N.S. is an enterprise whose activity is similar to that carried out by any private party insofar as it sells a particular product. Because it does not engage in “public administration” (gestión pública), it may enter into collective bargaining agreements (judgment 4453-2000). […]

IV.Conclusion. I.Nombre65.’s power of self-organization (potestad de auto-organización) derives from Article 189 of the Political Constitution. It is a public enterprise–public-law entity whose employees are not covered by the Civil Service system but by private labor law; for that reason, it may enter into collective bargaining agreements. Based on those premises, the content of Article 160 is constitutionally valid, and the constitutional challenge must therefore be dismissed on the merits.”

It is likewise appropriate to cite this Chamber’s statements regarding disputes concerning the personnel of Instituto Costarricense de Electricidad, particularly after the telecommunications reform adopted in 2008:

“For its part, the respondent authority (autoridad recurrida) argues that Law No. 8660 on the Strengthening and Modernization of Public Entities in the Telecommunications Sector granted ICE full autonomy to administer and dispose of its human resources. On that basis, the respondent asserts that ICE employees—with certain exceptions, which do not include the protected party (tutelada)—are not public officials and are therefore governed by ordinary labor law. Consequently, ICE was not required to conduct disciplinary proceedings before dismissing the protected party.

To decide the matter under review (sub examine) and determine whether the petitioner’s fundamental rights to due process and work were in fact violated, it is necessary to examine the regulatory framework governing the employment relationships of ICE officials.

First, Law No. 8660 on the Strengthening and Modernization of Public Entities in the Telecommunications Sector (published in La Gaceta No. 156 of August 13, 2008) provides:

“ARTICLE 32.- Personnel Statute. ICE shall have full autonomy to administer and dispose of its human resources in accordance with labor legislation, the Personnel Statute, and any other instrument negotiated by ICE with its workers. With respect to liability, its employees shall be accountable under public law.

The continued validity of the Personnel Statute and the authority of the ICE Board of Directors to issue the rules and policies governing working conditions, the creation of positions, compensation schemes, and the obligations and rights of ICE officials and workers are hereby ratified. (…)

ARTICLE 33.- Labor rights and vested legal situations The continued validity, full validity, and effectiveness of the labor rights, vested legal situations (situaciones jurídicas consolidadas), and socioeconomic benefits that ICE workers possess and have been receiving pursuant to its Personnel Statute are hereby ratified, as are those of Radiográfica Costarricense Sociedad Anónima (Racsa), pursuant to its Work Regulations, and those of Compañía Nacional de Fuerza y Luz (CNFL), pursuant to the collective bargaining agreement; these shall remain in force upon the enactment of this Law.” (emphasis added) Regarding the legislative history of those provisions, motion No. 277-69, contained in legislative record No. 69, should be mentioned. That motion—which was ultimately rejected—sought to eliminate the current Article 33 because ratifying the continued validity of the ICE Personnel Statute was considered redundant.

In this regard, Representative Zamora Chaves explained, “there is nothing in this law, at least nothing I have found, that repeals the Personnel Statute; therefore, if it does not repeal it, there is no reason to ratify anything; that is, it remains in force (…)” The Chair of the Committee, for his part, replied that “I would only add that, in fact, given the various pressures and needs conveyed by the different groups, on this particular issue the ICE unions expressed concern that statements of ratification—those statements ratifying the existing Law—be included; and since it is in force and has not been repealed, it does no harm, in order to reassure them, to state that those provisions remain in place and are ratified by this Law.” In light of the foregoing, although ICE has full autonomy to administer its human resources, it is equally true that it may do so only in accordance with labor legislation, the Personnel Statute, and any other instrument negotiated by ICE with its workers.

Ergo, the Personnel Statute, which remains in force by express provision of law, constitutes the mandatory legal framework governing human-resources administration, including dismissal procedures.” (Judgment No. 2015-7499).

Regarding Cuerpo Benemérito de Bomberos and its personnel, this Court has ruled as follows:

“II. REGARDING THE SPECIFIC CASE.- In this case, the petitioner (petente) alleges that the respondent decided to dismiss him without informing him of the reasons for that action and consequently requests this Court’s intervention to reinstate him in his position, because—in his view—the dismissal was unjustified and openly violated his rights of defense and due process. On this issue, there is extensive case law from this Court establishing that, given the nature of the respondent, an employment contract may be terminated without just cause. In this regard, in judgment 2016005950 at 9:05 a.m. on May 4, 2016, this Chamber ruled:

“Article 1 of Law 8228 of March 19, 2002, ‘Law on the Distinguished Fire Department of Costa Rica,’ establishes that Cuerpo de Bomberos is a deconcentrated body (órgano desconcentrado) of Instituto Nacional de Seguros. In this regard, it should be noted that, as established by this Court’s case law (see judgments No. 2008-11920 and No. 2010-9158 concerning INS, as well as judgments No. 00-7730, 01-244, and 01-12953 concerning other public enterprises), the general legal framework is—in principle—private law, which also constitutes the specific legal regime governing its employment relationships, under which freedom of dismissal applies, although public law applies to members of the Board of Directors, as established by the regulations themselves (Article 26 of the Regulations to the Law on Cuerpo de Bomberos). In a similar matter involving an INS worker, this Chamber ruled: ‘…it may be concluded that Instituto Nacional de Seguros has the authority, pursuant to the aforementioned Article 160, to terminate an employment contract with employer liability (responsabilidad patronal), without just cause, whenever it deems necessary, without thereby committing any labor violation or creating a conflict with the legislation in force.

In cases similar to the present one, this Court has found that these are employment relationships governed by private law and, upon examining the cited article, has determined that its provisions are proper and do not conflict in any way with the fundamental rights of that institution’s workers’ (judgment No. 2010-9158; see also, to the same effect, judgment No. 2014-1686).” —emphasis added— That precedent is applicable to this specific case because the Chamber finds no reason to alter its position; therefore, any dispute concerning the termination of the amparo petitioner (amparado) must be resolved through the corresponding ordinary proceedings. Ergo, the petition is inadmissible.” (Judgment No. 2016-12794) 3) Specific analysis of the matter submitted for consultation Regarding this matter, it must first be said that, although the consulting deputies are of the view that this bill should not establish the exclusions set forth in Article 3, this Chamber recalls that, pursuant to the text of Article 192 of the Constitution itself, national legal doctrine, and Articles 3, 111, and 112 of the Ley General de la Administración Pública, there is a group of State employees who, because of the nature of their duties or the type of workplace in which they work, are governed by the private labor regime (régimen laboral privado) and therefore cannot be governed by a public employment law.

Second, when the Costa Rican legal system is considered as a whole, the fact is that it permits exceptions such as those proposed in Article 3 under review. Thus, it is legally possible to exempt certain institutions from a public employment regime (régimen de empleo público), based specifically on what the Constituent Assembly established in Article 192 of the Constitution by providing at the outset, “subject to the exceptions established by this Constitution and the civil service statute”; a phrase that, as this Court indicated, “requires the foregoing conclusions regarding the scope of application of the civil service regime or statute to be qualified.” Regarding this matter, the Chamber has upheld the possible existence of differentiated regimes (regímenes diferenciados) based on the exception established in Article 192 of the Constitution. As stated in decisions n°2010-010713 (affirmed 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 private-law capacity, the general principles of employment stability (estabilidad en el empleo) do not apply to its officials—except those holding managerial or senior oversight positions—and therefore they may be removed from their positions without just cause, with employer liability (responsabilidad patronal); that is, without alleging that they committed any misconduct and upon payment of the applicable compensation. (Emphasis not in the original).

Accordingly, and as this Court has repeatedly held, the Constituent Assembly itself anticipated that not all State employees could be covered by the special regime, because the method of selection, the special qualifications, the duties of each position, and relationships of trust and dependence are not the same in every case. Hence, the principles derived from Article 192 apply to most State employees, but not to all of them. From this perspective, contrary to the consulting deputies’ assertion, exceptions may indeed be established to the scope of application of the civil service regime or statute; such exclusion may not be arbitrary and must be duly justified. The consulting deputies challenge this provision—Article 3 of the bill under review—solely on the ground that competitiveness alone is not sufficient to justify different treatment, because these are likewise public officials who manage public funds.

As they themselves acknowledge, however, these are public enterprises and institutions operating under competitive conditions; that is, they are not in the same position as other State institutions. As may be inferred from Articles 3, 111, and 112 of the Ley General de la Administración Pública, employees of this type of State-owned enterprise are governed by private law. To understand the scope of the exclusions in the aforementioned Article 3, a conceptual distinction must be drawn between subsection (a), which concerns non-State public entities (entes públicos no estatales), and subsection (b), which encompasses public enterprises and institutions operating under competitive conditions. It is with respect to the latter that the consulting deputies raise their objection because, as noted above, they believe that competitiveness alone is insufficient to justify different treatment, since the persons involved are still public officials who manage public funds.

The first entities excluded under the aforementioned Article 3 of the bill under review are non-State public entities. These entities have a legal nature different from that of other State institutions. Legal doctrine has conceived of them as membership-based corporate bodies established by agreement or by law that bring together private interests which are nevertheless relevant to the State and are financed through contributions from their members, parafiscal contributions (contribuciones parafiscales), other direct contributions, and, to a lesser extent, State funding. Their legal regime is therefore predominantly private, although they are subject to the body of administrative legality (bloque de legalidad administrativo) with respect to the exercise of sovereign powers (potestades de imperio) delegated to them by law. Consequently, non-State public entities technically do not belong to the State but exceptionally perform administrative functions, through which they issue administrative acts (actos administrativos) and are considered part of the Public Administration.

Outside the exercise of those sovereign powers, they interact with other parties on the basis of the principle of freedom of contract (principio de la autonomía de la voluntad), which is governed by private law. Their employment relationships have therefore been deemed subject to private law, and for that reason they are also reasonably exempted from the public employment regime contemplated by the Asamblea Legislativa. Professional associations are an example: they are defined as non-State public entities, and their employees are governed by private law.

Second are public enterprises and institutions operating under competitive conditions, examples of which include the Instituto Nacional de Seguros and, in telecommunications matters, the Instituto Costarricense de Electricidad. Regarding the former, the INS, it must be said that private law prevails both in its activities and in the employment relationships it maintains with its employees, in accordance with the case law cited above. This is justified because, in the view of the Sala Constitucional, the Instituto Nacional de Seguros, as a public enterprise, has the authority to establish its own internal organization, since it is not subject to Article 192 of the Constitution. Its employees are therefore neither subject to the Civil Service Statutory Regime (Régimen Estatutario del Servicio Civil) nor protected by the principle of stability in public employment. Regarding this matter, this Court has stated as follows:

“(…) the I.Nombre65 is an autonomous institution enjoying administrative autonomy, which grants it the authority to exercise its constitutionally or legally conferred powers and responsibilities; these presuppose the authority to administer itself and manage its own resources (human, material, and financial). Its status as an autonomous institution is expressly recognized in Article 189 of the Constitución Política; it may establish its own internal organization and determine its content. For the foregoing reasons, neither Article 192 nor any provision contained in Title XV applies to the Instituto Nacional de Seguros, because it does not form part of the bodies comprising the Public Administration. It is precisely this status as an autonomous institution that places the I.N.S. and its employees in a legal position entirely different from that of the Executive Branch, its bodies, and its public servants, who are not protected by the Estatuto del Servicio Civil and therefore do not enjoy the benefits of that labor legislation, including the employment-stability regime.

In judgment 2004-5960, the Chamber determined that the I.N.S. is a public enterprise organized as a public-law entity (empresa pública-ente de derecho público), defining it as one that assumes the form of a public entity in order to conduct an enterprise wholly or partially (industry, trade in goods and services, etc.). I.N.S. employees are subject to a private employment regime (régimen privado de empleo), which means that the institution may manage its employment relationships as best suits its organization, the public interest, and the achievement of its objectives. This Court has stated that the I.N.S. is an enterprise whose activity is similar to that carried out by any private party insofar as it sells a particular product. Because it does not perform ‘public administration’ (gestión pública), it may enter into collective bargaining agreements (convenciones colectivas de trabajo) (judgment 4453-2000) (see judgments n°2013-16637 of 9:20 a.m. on 13 de diciembre de 2013, n° 2008-11920 of 3:11 p.m. on 30 de julio de 2008, reaffirmed in n° 2012-4942 of 3:39 p.m. on 18 de abril de 2012).

The Chamber ruled similarly regarding the Instituto Costarricense de Electricidad in the judgment cited above (n° 2015-7499).

Finally, pursuant to Article 3, there is the Benemérito Cuerpo de Bomberos, which, under the law that created it, n°8228, is a body with maximum administrative deconcentration (órgano de desconcentración máxima) attached to the Instituto Nacional de Seguros (INS), domiciled in San José and having jurisdiction throughout the national territory to perform the functions and exercise the powers assigned to it exclusively by laws and regulations. It was granted instrumental legal personality (personería jurídica instrumental), including for contracting and all matters relating 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 enters into to implement the decisions of its Board of Directors and perform the functions specified by law in matters of budget administration, administrative procurement (contratación administrativa), human resources, training, interinstitutional coordination, emergency management, and other specific technical responsibilities...” “Article 7.—Organization The Cuerpo de Bomberos shall operate under the senior direction of a Consejo Directivo del Benemérito Cuerpo de Bomberos de Costa Rica, hereinafter referred to as the Board of Directors, which shall consist of five members of recognized moral standing, who shall annually elect a chair from among their members. Three members shall be appointed by the Junta Directiva del Instituto Nacional de Seguros, and the remaining two shall be elected by the officials of the Cuerpo de Bomberos in accordance with the Reglamento of this Law. They shall hold office for five years and may be reelected.

The administration and representation of the Cuerpo de Bomberos shall be vested in the director general del Cuerpo de Bomberos, who shall assume the managerial duties of that body.

The Cuerpo de Bomberos shall have the operational, technical, and administrative units necessary for the faithful performance of its public responsibilities and shall have the officials needed to fulfill its management objectives; by means of this Law, it is authorized to create positions and fill vacant posts.” It is important to note that Article 7 bis was added to this Article 7 and was incorporated by Ley 8653, Ley Reguladora del Mercado de Seguros, which provides:

“Article 7 bis.—Organization, duties, operation, and per diem allowances of the Board of Directors To the extent reasonably applicable, and except for the rules specific to insurance activities, the requirements, incompatibilities, and grounds for removal established for members of the Junta Directiva del Instituto Nacional de Seguros shall apply to members of the Board of Directors; furthermore, they may be freely removed from their positions by the Junta Directiva del Instituto Nacional de Seguros by a majority vote of five of its members…

The organization and operation of the Governing Council shall be governed, as applicable, by the chapter concerning collegial bodies (órganos colegiados) of the Ley general de la Administración Pública, as well as by the provisions of the Regulations to this Law.

The functions of the Governing Council of the Cuerpo de Bomberos de Costa Rica are:

• a)To define and authorize the organization of the Cuerpo de Bomberos de Costa Rica, including the creation of positions and the definition and allocation of powers among the functional, operational, technical, and administrative units necessary for the efficient and effective fulfillment of its public duties.
• b)To issue the organizational and service regulations necessary for the proper performance of the functions of the Cuerpo de Bomberos.
• c)To appoint the Director General of the Cuerpo de Bomberos through an internal credentials-based competitive process (concurso interno de atestados), in accordance with applicable legislation. If no qualified candidate is available within the organization, a public competitive process (concurso público) shall be held.
• d)To remove the Director General of the Cuerpo de Bomberos, in compliance with due process (debido proceso).
• e)To appoint and remove the internal auditor, in accordance with the process established in the Ley general de control interno, N.º 8292, de 31 de julio de 2002, as well as the Ley orgánica de la Contraloría General de la República, N.º 7428, de 7 de setiembre de 1994.
• f)To issue technical standards (normalización técnica) and regulations, which shall be mandatory for natural or legal persons and for public or private entities in matters of safety, fire protection, and life safety.
• g)To hear and decide on appeal the challenges filed against decisions issued by the Director General of the Cuerpo de Bomberos. Decisions of the Governing Council shall exhaust administrative remedies (agotarán la vía administrativa).
• h)To approve the strategic plan and the annual operating plan.
• i)To approve budgets, amendments thereto, and their final settlement, and to submit the corresponding documentation to the Contraloría General de la República for final approval.
• j)To ensure compliance with the provisions issued by oversight or technical authorities having jurisdiction over the Cuerpo de Bomberos.
• k)To establish the fees that the Cuerpo de Bomberos shall charge for providing special services, as well as any changes thereto, as shall be provided in the Regulations to this Law.
• l)Any other functions provided by law.

The members of the Governing Council shall receive per-session allowances (dietas), the amount of which shall be equal to fifty percent (50%) of the allowances received by the members of the Board of Directors of the INS, except where they are officials of that same Institution and the sessions are held during working hours, in which case they shall not be entitled to any remuneration.” Consistent with the foregoing, it should be noted that the firefighters’ employment regime (régimen de los bomberos) has characteristics specific to the type of duties they perform, and for that reason the matter has been regulated in Article 9 of the Ley del Benemérito Cuerpo de Bomberos nº 8228, which provides:

“Article 9—Firefighters’ regime. In the performance of their duties, firefighters shall be public officials vested with the authority, powers, and functions granted to them by this Law, its Regulations, and any other regulations issued for that purpose by the INS. The disciplinary regime (régimen disciplinario) applicable to firefighters shall correspond to the nature of their duties and the importance of their public mission.

The employment regime (régimen laboral), working hours, and retirement regime applicable to workers who are members of the Cuerpo de Bomberos shall take into account the special conditions under which their services are provided and the labor rights set forth in the legislation and collective bargaining agreement currently in force.

The Regime for Volunteer, Affiliated, and Honorary Firefighters, the Brigade Members’ Regime, and other regimes of a similar nature shall be regulated by the INS.” To better understand why the legislature decided to exclude the Benemérito Cuerpo de Bomberos from this bill under consideration, it is necessary to refer back to the explanatory statement (exposición de motivos) of legislative file n°13.574, which gave rise to Ley 8228 del Benemérito Cuerpo de Bomberos. A reading thereof shows that fires, spills of toxic chemicals, and natural, technological, or human-caused emergencies result in loss of life and extensive property damage affecting the country’s economy, development, and social security. It is therefore necessary to provide the workers of that corps with employment conditions suited to the type of duties they are required to perform. Precisely for reasons of expediency and appropriateness, the current Law grants 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 required to achieve the objectives inherent in its administration; it is 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, which is inextricably linked to emergency response, it is justified in having greater procedural flexibility, but also special regulations tailored to its working conditions and to the technical and safety requirements involved. These reasons support the legislature’s determination that this institution should be exempted from the general public-employment regime examined in this bill. Fully applicable to the specific case is this Court’s finding regarding the special retirement conditions of members of the Cuerpo de Bomberos who joined before 15 de julio de 1992, when it stated:

“(…) For this Constitutional Court, the retirement conditions of members of the Cuerpo de Bomberos are indeed unequal to those of other workers (sic) in the public sector, and even in the private sector; however, such unequal treatment is neither arbitrary nor discriminatory, but is based on objective, reasonable, and proportionate grounds, as explained below. First, the nature of the work performed by the Cuerpo de Bomberos de Costa Rica must be recalled in order to understand that such differential treatment is a mechanism devised by the legislature and by the Administration itself to improve the social conditions of this type of worker, with a view to protecting higher interests based on human solidarity and principles of social justice such as those enshrined in Article 74 of the Constitución Política itself. (…) The work performed by its workers is of great importance to society because, in responding to emergency situations, they constantly place their lives at risk and are subject to working conditions very different from those of other workers.” Finally, it should be noted that the legal decision-maker (operador jurídico) shall be responsible for determining the consequences arising from a joint interpretation of this Article 3 and sections 3, 111, and 112 of the Ley General de la Administración Pública, since the provision making only public enterprises operating in competition, rather than all public enterprises, subject to private-law rules would be a question of legality.

• 4)Conclusion Under the terms stated and in accordance with constitutional case law, Article 3 of the bill entitled “LEY MARCO DE EMPLEO PÚBLICO,” which is being processed under legislative file n°21.336, is not considered unconstitutional by reason of the exclusions established therein for public enterprises operating in competition, non-State public entities, and the Benemérito Cuerpo de Bomberos.

XXII. Conclusions

Regarding procedural defects:

• 1)No substantial procedural defect is found with respect to the argument that motions 138-231 and 138-250 were inadmissible, because the written request for this advisory opinion did not identify the motion that amended and “superseded” them; nor is any such defect found regarding the inadmissibility of motion 138-18, because the argument was based on an uncertain event—the possibility that another motion might supersede it.
• 2)No substantial procedural defect is found with respect to the argument concerning the improper joinder (indebida acumulación) of motion 138-154 because, although it was initially joined improperly, the President of the Assembly subsequently severed it and permitted it to be discussed separately.
• 3)No substantial procedural defect is found with respect to the argument that motion 138-210, introduced by Deputy Paola Vega, was not discussed, because the motion allegedly not submitted for discussion bears a withdrawn stamp and the signature of the sponsoring deputy.

Regarding substantive defects:

• 1)Poder Judicial and Tribunal Supremo de Elecciones: Regarding Articles 12 (database), 13.h (family members in positions of trust), 15 (recruitment and selection principles), 19 (mobility or transfers), and 31 (working methodology), as submitted for consultation with respect to the Poder Judicial and the Tribunal Supremo de Elecciones, because sufficient grounds were not provided to enable this Chamber to understand clearly the matter submitted, the consultation is declared unanswerable for lack of supporting grounds.
• 2)Poder Judicial: Having analyzed all aspects submitted for consultation 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, and 49 (subsections b, g, and h), of the bill entitled “LEY MARCO DE EMPLEO PÚBLICO,” legislative file n° 21.336, insofar as they concern the Poder Judicial, this Chamber finds that those provisions are contrary to Constitutional Law (Derecho de la Constitución) because they violate the principle of separation of functions, the principle of judicial independence, the particular employment regime of the Poder Judicial, and the constitutional administrative powers of the Corte Suprema de Justicia.
• 3)Tribunal Supremo de Elecciones: Having analyzed all aspects submitted for consultation 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 entitled “LEY MARCO DE EMPLEO PÚBLICO,” legislative file n° 21.336, insofar as they concern the Tribunal Supremo de Elecciones, this Chamber finds that those provisions are contrary to Constitutional Law because they violate the principle of separation of functions and Articles 9 and 99 of the Constitution.
• 4)Public Universities: Regarding Articles 11 (workforce planning), 15 (recruitment and selection principles), and 16 (job offerings), as submitted for consultation with respect to the Public Universities, because sufficient grounds were not provided to enable this Chamber to understand clearly the matter submitted, the consultation is declared unanswerable for lack of supporting grounds.
• 5)Public Universities: Having analyzed all aspects submitted for consultation regarding Article 6, 7, 9 (second paragraph of subsection a), 13 (subsection e), 14, 17, 30 (except subsection b), 31, 32, 33, 34, and 37 (subsection f), of the bill entitled “LEY MARCO DE EMPLEO PÚBLICO,” legislative file n° 21.336, insofar as they concern the Public Universities, this Chamber finds that those provisions are contrary to Constitutional Law because they violate university autonomy. Articles 30.b, 35, and 36 of the bill in question are constitutional for the reasons already stated.
• 6)Caja Costarricense de Seguro Social: Having analyzed all the matters raised regarding Articles 2 (subparagraph b), 6, 7 (subparagraphs d), 9 (second paragraph of subparagraph a), 13 (subparagraph b), 14, 17, and 18 of the bill entitled “LEY MARCO DE EMPLEO PÚBLICO,” legislative expediente n° 21.336, insofar as they concern the Caja Costarricense de Seguro Social, this Chamber finds that those provisions are contrary to Constitutional Law (Derecho de la Constitución) because they violate the constitutionally protected governing autonomy (autonomía de gobierno) of this institution, the CCSS (Constitutional Article 73).
• 7)Municipalities: Having analyzed all the matters raised regarding Articles 2 (subparagraph c), 6, 7, 9 (second paragraph of subparagraph a), 13, 14, 17, and 18 of the bill entitled “LEY MARCO DE EMPLEO PÚBLICO,” legislative expediente n° 21.336, insofar as they concern the Municipalities, this Chamber finds that those provisions are contrary to Constitutional Law because they violate the constitutionally enshrined governing autonomy of the municipalities.
• 8)Autonomous institutions: The constitutional consultation (consulta de constitucionalidad) concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” being processed under legislative expediente n° 21.336, is declared unanswerable with respect to Article 2, subparagraph b)—specifically as it 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 constitutional grounds.
• 9)Conscientious objection (objeción de conciencia): With respect to Article 23, subparagraph g), of the bill “LEY MARCO DE EMPLEO PÚBLICO,” being processed under legislative expediente N° 21.336, concerning conscientious objection, there are no substantive constitutional defects (vicios de inconstitucionalidad de fondo), because it adequately guarantees the right to conscientious objection.
• 10)Collective bargaining (negociación colectiva): Article 43 contains no constitutional defects, provided that the new obligations or rights secured through collective bargaining comply with the principles of reasonableness, proportionality, and budgetary legality, pursuant to constitutional case law, and provided that the collective bargaining agreements (convenciones colectivas) in question involve Public Sector employees who may validly enter into such agreements under the Constitution and the law.
• 11)Notice of termination of a collective bargaining agreement (denuncia de convención colectiva): Transitory Provision XV, concerning notice of termination of collective bargaining agreements, is not unconstitutional, provided that it is interpreted in the same manner indicated in decision number 2018-019511 at 21:45 on 23 de noviembre del 2018; that is, pursuant to the Political Constitution (Articles 62 and 74), the International Labour Organization Conventions, and the case law of this Court, it must be interpreted to mean that the head of each public entity has the authority to give or refrain from giving notice of termination of the respective collective bargaining agreement, in accordance with the legal system in force.
• 12)Disqualification (inhabilitación): Article 4.a of the bill “LEY MARCO DE EMPLEO PÚBLICO,” being processed under legislative expediente N° 21.336, is not unconstitutional. All matters concerning the application of due process (debido proceso) to dismissal, the assessment of the relationship between the type of misconduct committed and the sanction, the proportionality and reasonableness of the punitive administrative act (acto administrativo sancionatorio), and the determination of the specific provision applicable where the institution in question is governed by special regulations are matters for the legal decision-maker (operador jurídico).
• 13)Salary and the principle of equality: Transitory Provisions XI and XII do not violate the principle of equality—equal pay for equal work performed under identical conditions of efficiency—or the principle of legality and, consequently, are not unconstitutional.
• 14)Due process: The matters raised regarding Articles 21 and 22 of the bill “LEY MARCO DE EMPLEO PÚBLICO,” being processed under legislative expediente n°21.336, do not contain violations of the constitutional principle of due process; rather, most of the matters raised in this regard concern legislative-drafting issues (problemas de técnica legislativa) that must be corrected by the legislature or the legal decision-maker.
• 15)Leave: The Chamber finds no constitutional defects in the matters challenged regarding Articles 39, 40, 41, and 42 of the bill under consultation, because this is a matter of legislative discretion, the mandatory consultation with the CCSS was conducted, and there are no grounds for determining that, in this case, the legislature was required to obtain a technical study beforehand. Moreover, the alleged contradiction between Articles 39 and 40 of the bill, because it concerns a possible conflict of laws (antinomia legal), is not a matter of constitutional significance.
• 16)Exclusions: On the terms indicated and in accordance with constitutional case law, Article 3 of the bill “LEY MARCO DE EMPLEO PÚBLICO,” being processed under legislative expediente n°21.336, is not considered unconstitutional merely because it establishes the exclusions specified therein for public enterprises operating in competition, non-state public entities, and the Benemérito Cuerpo de Bomberos.

XXIII. General Separate Opinions

Separate opinions of Justice Castillo Víquez regarding points 1, 4, 6, and 45 of the Por Tanto.- In view of the wording of the advisory opinion, he withdrew the separate opinions indicated in points 1, 4, 6, and 45 of the Por Tanto.

Separate opinion of Justice Hernández López During the deliberations in this matter, I had reserved the right to draft a separate opinion. However, I dispense with it because the wording of the judgment comprehensively reflects the observations I had on the matter.

Separate opinion of Justice Rueda Leal.

Several points must be clarified in this general separate opinion regarding the bill under consultation. Respect for the independence of the branches of the Republic and for constitutionally protected forms of autonomy begins with recognition of their respective constitutional mandates. Rather than indicating how public employment must be regulated, the Chamber, in this decision, identifies regulatory impediments or prohibitions derived from constitutional provisions and the case law of this Court, and it does so precisely in observance of those mandates. By its nature, a legislative constitutional consultation is not intended to exhaust the constitutional analysis of a bill, as follows from Section 101 of the Ley de la Jurisdicción Constitucional, which states:

“…the advisory opinion does not preclude the possibility that the challenged provision or provisions may subsequently be contested through constitutional-review proceedings (vías de control de constitucionalidad).” Likewise, the opinion issued by the Chamber does not prevent it from hearing matters concerning the protection of fundamental rights in situations related to public employment when it considers them to fall within its jurisdiction (Article 7 of the Ley de la Jurisdicción Constitucional).

The case of Section 2 under consultation illustrates the complexity of this bill. Its unconstitutionality does not arise from its wording in itself, but from its effects, because other articles of the bill infringe the constitutionally protected independence or autonomy of a given body, causing the inclusion made in Section 2 to contravene the Constitution. I believe that this complexity will increase exponentially if the provision is enacted and fully incorporated into the legal system, since it will have to be harmonized with other provisions that also regulate public employment but are specifically directed at some of those entities.

In a different vein, given the length of this decision and the number of precedents cited, it would be pointless to add a separate opinion at every point merely to record each instance in which I dissented, stated reasons, or joined a separate opinion, except where I consider that omission might cause confusion regarding my individual position.

Final separate opinion of Justice Garro Vargas.- THE BODY OF LAW GOVERNING THE CONSTITUTIONAL CHAMBER. In previous separate opinions (see judgments 2014-004630, 2015-016070, 2015-019582, 2016-018351, 2020-013316), I made several observations concerning the exercise of constitutional review and international instruments as a standard of review. In this regard, insofar as relevant and in summary, I stated the following:

“The function of reviewing the conformity of laws and general provisions with treaties and conventions is not expressly provided for in the constitutional text, but only in Article 73.d) of the LJC; nevertheless, it is not contrary to that text, because it ensures the effectiveness of Article 7 of the CP. The function of reviewing such conformity is distinct from the function exercised by the Chamber under Article 10 of the CP—constitutional review—and from that established in Article 48 of the CP—judicially safeguarding constitutional rights and fundamental rights established in international human-rights instruments.

When this Chamber exercises its constitutional-review function, it should not resort to treaties and use them in practice as though they formed part of the constitutional standard of review (parámetro de constitucionalidad). Such instruments, and only if duly ratified, may serve as standards for determining the conformity of statutory and sub-statutory provisions with those instruments themselves, pursuant to Articles 7 of the CP and 73.d) of the LJC. This is consistent with a systematic interpretation of the Constitution and the LJC and with respect for the separation of powers, a foundational principle of every democratic State governed by the rule of law.” (Emphasis does not appear in the original decisions).

In this particular 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 “Estatuto del Juez Iberoamericano,” approved at the VI Cumbre Iberoamericana de Presidentes de Cortes Supremas y Tribunales Supremos de Justicia, held in Santa Cruz de Tenerife, Islas Canarias, España; Opinion n.°1 of 23 de noviembre del 2001, issued by the Consultative Council of European Judges (CCJE); the Estatuto de Justicia y Derechos de las Personas Usuarias del Sistema Judicial; the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms; the Charter of Fundamental Rights of the European Union (2000/C 364/01); and citations to several decisions of international courts. From my perspective, and given the rigor required of this Constitutional Court, those references are merely illustrative and do not in themselves constitute a binding legal standard for conducting constitutional review.

Separate opinion of Justice Araya García In view of the final wording of this judgment 21-17098, and taking into consideration the arguments and considerations set forth in this decision, I, the undersigned Justice, dispense with the separate opinion that I stated at the time of the vote that I would enter.

General separate opinion of Justice Picado Brenes.- Given that I have already set forth the pertinent matters in the various preceding separate opinions and statements of reasons, I hereby withdraw this general separate opinion.

XXIV. DOCUMENTATION SUBMITTED FOR INCLUSION IN THE CASE FILE

The parties are hereby advised that, if they submitted any paper document, as well as any objects or evidence contained on any additional electronic, computer, magnetic, optical, or telematic device or produced by new technologies, these must be retrieved from the court within a maximum period of 30 business days from notification of this judgment. Otherwise, any material not retrieved within that period shall be destroyed, pursuant to the "Reglamento sobre Expediente Electrónico ante el Poder Judicial", approved by the Corte Plena at session N° 27-11 of 22 de agosto del 2011, article XXVI, and published in Boletín Judicial number 19 of 26 de enero del 2012, as well as the resolution approved by the Consejo Superior del Poder Judicial at session N° 43-12 held on 3 de mayo del 2012, article LXXXI.

Por tanto:

On the admissibility (admisibilidad) of the consultations:

• 1)The consultation (consulta) filed under expediente n°21-011713-0007-CO is unanimously admitted. Justices Castillo Víquez, Salazar Alvarado, and Garro Vargas file separate opinions (notas separadas). Justice Rueda Leal provides different reasons concerning the admissibility of this Consultation.
• 2)The consultation filed under expediente n°21-011915-0007-CO is unanimously admitted. Justices Hernández López and Garro Vargas separately provide different reasons. Justices Salazar Alvarado and Picado Brenes file separate opinions.
• 3)By majority vote, the consultation filed under expediente n°21-012118-0007-CO is admitted. Justice Salazar Alvarado files a separate opinion. Justices Castillo Víquez and Rueda Leal dissent (salvan el voto) and, for separate reasons, declare the consultation incapable of being answered (inevacuable).
• 4)By majority vote, the consultation submitted by the Corte Suprema de Justicia under expediente n°21-012714-0007-CO is declared incapable of being answered. Justices Castillo Víquez and Rueda Leal file separate opinions. Justices Garro Vargas and Picado Brenes dissent and admit the consultation. Justice Garro Vargas files a separate opinion.

On the alleged procedural defects (vicios de procedimiento):

• 5)It is unanimously found that none of the alleged substantial procedural defects exists with respect to: a) The argument concerning the inadmissibility of renewal motions (mociones de reiteración) numbers 138-231, 138-250 and 138-18; b) The argument concerning the improper consolidation of the renewal motions; c) The argument concerning the failure to debate motion 138-210.

On the alleged substantive defects (vicios de fondo) concerning the Poder Judicial and the Tribunal Supremo de Elecciones:

• 6)The constitutional consultation (consulta de constitucionalidad) concerning the "LEY MARCO DE EMPLEO PÚBLICO" bill being processed under expediente legislativo n° 21.336 is unanimously answered to the effect that article 2 subsection a) is not in itself unconstitutional insofar as it includes the Poder Judicial and the Tribunal Supremo de Elecciones within a general regulatory framework for public employment, but it is unconstitutional in its effects because some of its provisions—as examined below—deprive the principle of separation of powers of its substance. Justices Castillo Víquez, Rueda Leal, Garro Vargas, and Picado Brenes file separate opinions.
• 7)The constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is unanimously answered to the effect that article 6 subsection b) is unconstitutional. It is declared unconstitutional insofar as it subjects the Poder Judicial and the Tribunal Supremo de Elecciones to the executive authority (potestad de dirección) of the Poder Ejecutivo. Justice Rueda Leal files a separate opinion. Justices Garro Vargas and Picado Brenes provide different reasons and declare it unconstitutional insofar as it subjects the Poder Judicial and the Tribunal Supremo de Elecciones to the governing authority (rectoría) of the Sistema General de Empleo Público under Mideplán.
• 8)The constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is unanimously answered to the effect that subsections d), g), and p) of article 7 are unconstitutional because they impair the independence of the Poder Judicial and the Tribunal Supremo de Elecciones by subjecting them to Mideplán’s executive and regulatory authority, as well as to its verification of whether the objectives of the performance evaluation (evaluación del desempeño) have been met, even though that latter function belongs to the aforementioned branches pursuant to their internal regulations. Justices Garro Vargas and Picado Brenes provide additional reasons.
• 9)The constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is unanimously answered to the effect that the second paragraph of article 9 subsection a) is unconstitutional with respect to its application to the Poder Judicial and the Tribunal Supremo de Elecciones.
• 10)The constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is unanimously declared incapable of being answered with respect to article 12, due to the lack of supporting grounds for the question presented concerning the Poder Judicial and the Tribunal Supremo de Elecciones. Justices Garro Vargas and Picado Brenes file separate opinions.
• 11)The constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is unanimously answered to the effect that article 13 subsection f) is unconstitutional because it impairs the independence of the branches of government, with respect to both the Poder Judicial and the Tribunal Supremo de Elecciones. Justices Garro Vargas and Picado Brenes provide different reasons.
• 12)The constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is unanimously answered to the effect that article 13 subsection a) is unconstitutional with respect to the Tribunal Supremo de Elecciones, because all officials of that body, except its justices, would be transferred to the Servicio Civil.
• 13)The constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is unanimously declared incapable of being answered with respect to article 13 subsection h), due to the lack of adequate constitutional grounds for the question presented concerning the Poder Judicial and the Tribunal Supremo de Elecciones.
• 14)The constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is unanimously answered to the effect that the first paragraph of article 14 is unconstitutional with respect to the Poder Judicial and the Tribunal Supremo de Elecciones.
• 15)The constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is unanimously declared incapable of being answered with respect to article 15, due to the lack of supporting grounds for the question presented.
• 16)The constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is unanimously answered to the effect that the first paragraph of article 17 is unconstitutional insofar as it subjects senior management positions (cargos de alta dirección) in the Poder Judicial and the Tribunal Supremos de Elecciones to the generally applicable provisions, directives, and regulations issued by Mideplán.
• 17)The constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is unanimously answered to the effect that article 18 is unconstitutional because it impairs the independence of the Poder Judicial and the Tribunal Supremo de Elecciones.
• 18)The constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is unanimously declared incapable of being answered with respect to article 19, due to the lack of adequate constitutional grounds for the question presented. Justices Garro Vargas and Picado Brenes file a separate opinion.
• 19)The constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is unanimously answered to the effect that articles 21 and 22 are unconstitutional because the exercise of disciplinary authority (potestad disciplinaria) over employees of the Poder Judicial and the Tribunal Supremo de Elecciones is an essential component of judicial and electoral independence. Nevertheless, the creation of a new ground for dismissal (causal de despido) for failing the performance evaluation on two consecutive occasions is not unconstitutional, provided that it is applied by the Poder Judicial and the Tribunal Supremo de Elecciones in accordance with their internal regulations.
• 20)The constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is unanimously declared incapable of being answered with respect to article 31, due to the lack of adequate constitutional grounds for the question presented. Justice Picado Brenes files a separate opinion.
• 21)By majority vote, the constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is answered to the effect that article 49 subsection b) is not unconstitutional, provided it is interpreted to mean that the Dirección General de Servicio Civil lacks jurisdiction (competencia) over matters relating to the Poder Judicial and that the special regulations governing it in these matters are not repealed. Justices Castillo Víquez, Salazar Alvarado, and Hernández López dissent and reject the claim (agravio) because it does not concern the Poder Judicial and does not repeal its special regulations in these matters.
• 22)By majority vote, the constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is answered to the effect that subsections g) and h) of article 49 are unconstitutional because they violate the independence of the Poder Judicial. Justices Castillo Víquez and Hernández López dissent and declare that these subsections are not unconstitutional.

On the alleged substantive defects concerning public universities:

• 23)The constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is unanimously answered to the effect that article 6 is unconstitutional insofar as it subjects public universities to the executive authority of the Poder Ejecutivo. Justices Garro Vargas and Picado Brenes provide different reasons.
• 24)The constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is unanimously answered to the effect that article 7 is unconstitutional with respect to those provisions that subject public universities to Mideplán’s executive and regulatory authority. Justices Garro Vargas and Picado Brenes provide additional reasons.
• 25)The constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is unanimously answered to the effect that the second paragraph of article 9 subsection a is unconstitutional with respect to its application to public universities.
• 26)The constitutional consultation concerning the "LEY MARCO DE EMPLEO PÚBLICO” bill being processed under expediente legislativo n° 21.336 is unanimously declared incapable of being answered with respect to article 11, due to the lack of adequate constitutional grounds for the question presented concerning public universities.
• 27)Unanimously, the consultation on constitutionality (consulta de constitucionalidad) concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that Article 13(e) is unconstitutional because it does not include public servants who conduct research and social and cultural outreach at public universities. Justices Garro Vargas and Picado Brenes provide additional reasons.
• 28)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that Article 14 is unconstitutional because it subjects the recruitment and personnel-selection system of public universities to Mideplán’s directive authority (potestad de dirección).
• 29)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is declared inadmissible with respect to Articles 15 and 16 because the issues raised concerning public universities lack adequate constitutional grounds.
• 30)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that Article 17 is unconstitutional insofar as it subjects the senior management personnel of public universities to the generally applicable provisions, directives, and regulations issued by Mideplán. Justices Garro Vargas and Picado Brenes append a note.
• 31)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect 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 view of university autonomy, responsibility for constructing the salary-column job family (familia de la columna salarial) and defining its characteristics lies solely and exclusively with the highest governing bodies of the university entities. Justices Garro Vargas and Picado Brenes provide different reasons.
• 32)By majority vote, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that Article 30(b) is constitutional. Justices Hernández López, Garro Vargas, and Picado Brenes dissent with respect to Article 30(b) and consider that, as regards university autonomy, it is unconstitutional in its effects for the salary of Nombre01 to constitute a ceiling for universities when technical grounds justify different compensation.
• 33)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect 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 responsibility for defining the relevant job factors, their relative weight, the number of grades required within each job family and its characteristics, and for preparing the salary column lies solely and exclusively with the highest governing bodies of the university entities. Justices Garro Vargas and Picado Brenes provide different reasons.
• 34)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that Article 33 is unconstitutional insofar as it does not exclude officials who perform substantive duties inherent to university autonomy and subjects the job-classification manual (manual de puestos) for those officials to analysis and evaluation by Mideplán, a responsibility that, in view of university autonomy, lies solely and exclusively with the highest governing bodies of the university entities. Justices Garro Vargas and Picado Brenes provide different reasons.
• 35)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that Articles 35 and 36 are constitutional. Justices Garro Vargas and Picado Brenes separately provide different reasons.
• 36)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that Article 37(f) is unconstitutional.

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

• 37)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that Article 2(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 because some of its provisions deprive the CCSS’s governing autonomy of substance. Justices Castillo Víquez and Rueda Leal, and Justices Garro Vargas and Picado Brenes, append separate notes.
• 38)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that Article 6 is unconstitutional insofar as it subjects the CCSS to the Executive Branch’s directive authority. Justices Garro Vargas and Picado Brenes provide different reasons.
• 39)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that Article 7(d) is unconstitutional in relation to those provisions that subject the CCSS to Mideplán’s directive and regulatory authority. Justices Garro Vargas and Picado Brenes provide additional reasons.
• 40)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that the second paragraph of Article 9(a) is unconstitutional as applied to the CCSS.
• 41)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that Article 13(b) is unconstitutional because it does not include public servants who perform substantive and professional duties relating to the constitutional purposes assigned to the CCSS. Justices Garro Vargas and Picado Brenes provide additional reasons.
• 42)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that the first paragraph of Article 14 is unconstitutional because it subjects the system for recruiting and selecting personnel who perform substantive and professional duties relating to the constitutional purposes assigned to the CCSS to Mideplán’s directive authority.
• 43)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that Article 17 is unconstitutional insofar as it subjects the CCSS’s public senior management personnel to the generally applicable provisions, directives, and regulations issued by Mideplán.
• 44)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that Article 18 is unconstitutional because it affects the CCSS’s political autonomy with respect to the terms of office of public senior management personnel. Justice Picado Brenes provides additional reasons.

Regarding the alleged substantive defects concerning the municipalities:

• 45)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that Article 2(c) is not in itself unconstitutional insofar as it includes the municipalities within a general regulatory framework for public employment, but it is unconstitutional in its effects because some of its provisions—as examined below—deprive their governing autonomy of substance. Justices Castillo Víquez and Rueda Leal, and Justices Garro Vargas and Picado Brenes, append separate notes.
• 46)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that Article 6 is unconstitutional insofar as it subjects the municipalities to the Executive Branch’s directive authority.
• 47)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that Article 7 is unconstitutional in relation to those provisions that subject the municipalities to Mideplán’s directive and regulatory authority. Justices Garro Vargas and Picado Brenes provide additional reasons.
• 48)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that the second paragraph of Article 9(a) is unconstitutional as applied to the municipalities. Justice Garro Vargas provides different reasons. Justice Picado Brenes provides additional reasons.
• 49)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that, by failing to create a job family (familia de puestos) for municipal employees, Article 13 includes all such employees within the Civil Service (Servicio Civil). Justice Garro Vargas provides different reasons. Justice Picado Brenes records additional reasons.
• 50)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that the first paragraph of Article 14 is unconstitutional because it subjects the system for recruiting and selecting personnel who perform substantive and professional duties relating to the constitutional purposes of the municipalities to Mideplán’s directive authority.
• 51)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that Article 17 is unconstitutional insofar as it subjects municipal senior management positions to the generally applicable provisions, directives, and regulations issued by Mideplán.
• 52)Unanimously, the consultation on constitutionality concerning the bill “LEY MARCO DE EMPLEO PÚBLICO,” under consideration in legislative expediente n° 21.336, is answered to the effect that Article 18 is unconstitutional because it affects the municipalities’ political autonomy with respect to the terms of office of public senior management personnel. Justice Picado Brenes provides different reasons.

Regarding the substantive defects concerning autonomous institutions:

• 53)The Court unanimously declares that the constitutional consultation (consulta de constitucionalidad) concerning the bill entitled "LEY MARCO DE EMPLEO PÚBLICO", under consideration in legislative expediente n° 21.336, cannot be addressed with respect to Article 2(b)—specifically regarding “autonomous institutions and their affiliated bodies, including semi-autonomous institutions and their affiliated bodies”—and Articles 6, 7, 9, 13, 14, 17, 18, 21, 22, 24, 30 and 49, due to inadequate constitutional grounds.

Regarding the remaining substantive defects (vicios de fondo):

• 54)By majority vote, the Court rules on the constitutional consultation concerning the bill entitled "LEY MARCO DE EMPLEO PÚBLICO", under consideration in legislative expediente n° 21.336, finding that Article 23(g) is not unconstitutional because it adequately guarantees the right to conscientious objection (objeción de conciencia). Justice Rueda Leal provides different reasons regarding the question raised on this issue in expediente n°21-011713-0007-CO. Justice Hernández López considers that Article 23(g) of the bill under review is constitutional, provided it is interpreted to mean that the sworn declaration (declaración jurada) referred to in the provision must be subject to a verification process ensuring that the public official is not evading obligations inherent in the official’s special relationship of subordination (relación de sujeción especial) that would render ineffective or devoid of substance the constitutional and statutory safeguards and limitations governing conscientious objection, such as safety, public order, health, and respect for people’s fundamental rights, particularly human dignity and nondiscrimination, pursuant to the balancing test (juicio de ponderación) that must be conducted in each specific case, as established in judgment 2020-001619 of this Chamber. Justices Castillo Víquez and Rueda Leal refrain from ruling on the question raised regarding this issue in expediente n°21-012118-0007-CO.
• 55)By majority vote, the Court rules on the constitutional consultation concerning the bill entitled "LEY MARCO DE EMPLEO PÚBLICO", under consideration in legislative expediente n° 21.336, finding that Article 43 contains no constitutional defects, insofar as the new obligations or rights obtained through collective bargaining (negociación colectiva) comply with the principles of reasonableness, proportionality, and budgetary legality, pursuant to constitutional case law, and provided that the collective bargaining agreements (convenciones colectivas) involved are those in which Public Sector employees who may validly enter into such agreements under the Constitution and the law participate. Justice Rueda Leal and Justices Garro Vargas and Picado Brenes provide different reasons.
• 56)The Court unanimously rules on the constitutional consultation concerning the bill entitled "LEY MARCO DE EMPLEO PÚBLICO", under consideration in legislative expediente n° 21.336, finding that Transitory Provision XV, concerning the termination (denuncia) of collective bargaining agreements, is not unconstitutional, provided it is interpreted in the same manner indicated in Voto 2018-019511, issued at 21:45 on 23 de noviembre del 2018; namely, that under the Political Constitution (Articles 62 and 74), the International Labour Organization Conventions, and the case law of this Court, each head of a public entity must be understood to have the authority to terminate or not terminate the respective collective bargaining agreement, in accordance with the legal system in force. Justice Rueda Leal provides separate reasons regarding this point. Justices Garro Vargas and Picado Brenes provide different reasons.
• 57)The Court unanimously rules on the constitutional consultation concerning the bill entitled "LEY MARCO DE EMPLEO PÚBLICO", under consideration in legislative expediente n° 21.336, finding that Article 4(a), concerning disqualification from holding office (inhabilitación), is not unconstitutional. Justice Picado Brenes appends a note.
• 58)By majority vote, the Court rules on the constitutional consultation concerning the bill entitled "LEY MARCO DE EMPLEO PÚBLICO", under consideration in legislative expediente n° 21.336, finding that Transitory Provisions XI and XII, concerning salary rules, are not unconstitutional. Justice Rueda Leal states different reasons. Justices Hernández López, Garro Vargas, and Picado Brenes dissent and consider subsection (a) of Transitory Provision XI unconstitutional because it violates the right to equal pay. Justices Garro Vargas and Picado Brenes append separate notes.
• 59)The Court unanimously rules on the constitutional consultation concerning the bill entitled "LEY MARCO DE EMPLEO PÚBLICO", under consideration in legislative expediente n° 21.336, finding that Articles 21 and 22 do not violate the principle of constitutional due process (debido proceso constitucional) and are therefore not unconstitutional with respect to the issue raised.
• 60)By majority vote, the Court rules on the constitutional consultation concerning the bill entitled "LEY MARCO DE EMPLEO PÚBLICO", under consideration in legislative expediente n° 21.336, finding that Articles 39, 40, 41 and 42, concerning new grounds for leave (permisos), are not unconstitutional. Justice Picado Brenes provides separate reasons. Justice Garro Vargas dissents and declares that the consultation cannot be addressed.
• 61)The Court unanimously rules on the constitutional consultation concerning the bill entitled "LEY MARCO DE EMPLEO PÚBLICO", under consideration in legislative expediente n° 21.336, finding that Article 3, concerning the scope of exclusions, is not unconstitutional.
• 62)Justices Rueda Leal and Araya García, and Justices Hernández López, Garro Vargas and Picado Brenes, append separate notes.

Let notice be served upon the Asamblea Legislativa and the Corte Suprema de Justicia.- Fernando Castillo V.

President Paul Rueda L. Nancy Hernández L.

Luis Fdo. Salazar A. Jorge Araya G.

Anamari Garro V. Ana María Picado B.

[the concept of marriage was broadly encompassed, including both civil and religious marriage. We clarify that the appellant expressly stated that ]1In this regard, the Court observes 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 armed forces and a person’s conscience or religious beliefs or other profound and genuine beliefs, constitutes a conviction or belief of sufficient force, seriousness, cohesion, and importance to attract the guarantees of Article 9...” Free translation.

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 Nombre01 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. 1La 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. 2Mediante 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. 3Mediante 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. 4Mediante 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. 5Mediante 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. 6Mediante 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. 7Mediante 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. 8Mediante 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. 9El 28 de junio de 2021, el Magistrado Fernando Cruz Castro planteó gestión de inhibitoria para conocer la presente consulta.
10. 10Por 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. 11Por 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. 12Mediante 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. 13Mediante 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. 14Mediante 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. 15Por 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. 16Por 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. 17Mediante 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. 18Mediante 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. 19Por 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. 20Mediante 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. 21Por 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. 22Por 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. 23Por 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. 24Por 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. 25Por 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. 26Mediante 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. 27Por 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. 28Mediante 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. 29A 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. 30En 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. 31Mediante 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. 32En 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 Nombre02, 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 Nombre03, 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 Nombre02, 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 Nombre03, 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 Nombre01 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 Nombre04, 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 Nombre04 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 Nombre05 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.

1. 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 Nombre06. 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 Nombre01 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 Nombre01 es garante de la independencia de la autoridad judicial. Para ello, el Nombre01 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.Nombre06 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 Nombre01 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 Nombre01 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 Nombre01 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 Nombre01 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 Nombre01 por razones personales, políticas o de otra índole.

Asimismo, si un (a) Nombre01 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 Nombre01 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 Nombre01 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 Nombre01 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 Nombre01-, 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 Nombre01.

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. 1Al 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. 2Al 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.

1. 3Es 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.
2. 4Para 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.
3. 5La 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.
4. 6Es 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 Nombre07, 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 Nombre08 de no hacer uso de imágenes o ídolos de connotación religiosa, la obligación de portar un escudete con la imagen de la Nombre09 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 Nombre09 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 Nombre10 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 Nombre11, 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 Nombre12 y Nombre13 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 Nombre14 v. Nombre15 (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 Nombre16 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 Nombre17 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 Nombre18 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 Nombre19 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 Nombre20 vs. Turquía (2011), Nombre21 vs. Turquía (2012), Nombre22 vs. Turquía (2012) Feti Demitras vs. Turquía (2012) y Nombre23 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 Nombre24 y Nombre25 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 Nombre26 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 Nombre27 y Nombre28, 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 Nombre29 v. Suiza (2001), Nombre30 vs. Turquía (2004), Nombre31 vs. Francia (2008) y Nombre32 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 Nombre33 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 Nombre34, 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 Nombre35 y De Gaetano en relación con la peticionaria Nombre34, 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 Nombre33 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 Nombre36. 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 Nombre37 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.

Nombre37 se autodenominaba como profesional en pastelería y devoto cristiano, cuyo principal objetivo en la vida era ser obediente a las enseñanzas de Nombre38, por lo que buscaba honrar a Nombre08 mediante su trabajo en su tienda en Masterpiece Cakeshop. Precisamente, una de sus creencias religiosas radicaba en la intención de Nombre08 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 Nombre37 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 Nombre39 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 (Nombre40 vs. Guatemala 1982, Nombre41 vs. Guatemala 1997, y Nombre42, 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 (Nombre40 vs. Guatemala 1982, Nombre41 vs. Guatemala 1997, y Nombre42, 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, Nombre43 vs. Bolivia 2005 y Nombre44 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 (Nombre40 vs. Guatemala 1982, Nombre41 vs. Guatemala 1997, y Nombre42, 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 Nombre45 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. 1Referencia 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 Nombre33 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 Nombre08 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. Nombre46 contra Austria, núm. 40016/98, ap. 37. TEDH 2003 IX: Smith y Nombre47, ya citada, ap. 90; Nombre48 y Nombre49 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 (Nombre48 y Nombre49, 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.

Nombre50 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).

1. 2Aplicación 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 Nombre19 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 ge[neralizada 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.

1. 3Con 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, Nombre51 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 Nombre51 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, Nombre52 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 Nombre53, 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.

3. 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) Nombre43 vs. Bolivia (2005), Nombre44 vs. Ecuador 11 (2006), Nombre54 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 Nombre55. y Nombre56. 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, Nombre24 y Nombre25 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: Nombre57 vs. Grecia, U¨lke vs. Turquía (2006), Nombre19 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), Nombre58 vs. Turquía (2012), Nombre59 vs. Turquía (2012), Feti Demitras vs. Turquía (2012) y Nombre23 vs. Turquía (2014).Referente a temas de salud ( farmacúeticos) ver: Nombre24 y Nombre25 vs. Francia (2001). Referente a uso de símbolos religiosos ver: Nombre60 vs. Suiza, Nombre61 vs. Turquía, Nombre62 vs. Francia y Nombre32 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 Nombre63 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. 1Alegatos 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 Nombre64, 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 Nombre64, 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 Nombre01 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.Nombre65 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.Nombre65. 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.Nombre65 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 Nombre01 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.

[neralizada se englobó el concepto de matrimonio, incluyendo en él tanto al civil como al religioso. Aclaramos que el recurrente de modo expreso manifestó que ]1A 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.